author: FRED W. JONES, Jr., Judge.

text:
    STATE In the Interest of T.M. and W.M.
    No. 15787-CAJ.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 1983.
    Rehearing Denied Nov. 10, 1983.
    Writ Denied Jan. 4, 1984.

      Richard Ducote, Staff Atty., Dept, of Health & Human Resources, New Orleans, for appellant.
    Blaine Adkins, West Monroe, for appel-lee.
    Before JASPER E. JONES, FRED W. JONES and NORRIS, JJ.
   FRED W. JONES, Jr., Judge.

The Louisiana Department of Health and Human Resources (“DHHR”) instituted this proceeding under the pertinent statutory provision to have the two minor children, T.M. and W.M., declared abandoned by their parents. After a hearing attended by the parents and their appointed attorneys, judgment was rendered adjudicating the children abandoned by their father but not with reference to their mother.

DHHR appealed the judgment, contending the juvenile judge erred in finding that DHHR did not prove by clear and convincing evidence that the children were abandoned by their mother. The father of the children did not appeal.

Since our review of the record leads to the conclusion that the juvenile judge was not clearly wrong in his factual determination that the mother never intended to permanently avoid parental responsibility for these children, we affirm.

Based upon affidavits executed by the parents of T.M. (born 3/30/75) and W.M. (born 12/23/76) that they were no longer able to care for their children, on April 15, 1977 the juvenile court placed the temporary custody of the youngsters with DHHR. Thereupon, the children were placed in separate foster homes in the Monroe area.

During the ensuing months the DHHR caseworker began working with the mother [now Mrs. C] to establish regular visitations with her children, but was hampered by Mrs. C’s tendency to make unplanned visits to the foster homes. Be that as it may, the caseworker testified at the hearing that during the period from April to October 1978 the mother evidenced a constructive attitude, expressed a repeated desire for the return of her children, and worked to establish a home for them.

In October 1978 Mrs. C moved from Oua-chita Parish to Union Parish, coming under the supervision of another DHHR caseworker. Consistent with department policy, after a preparatory period this caseworker, with court approval, returned' the physical care of the children to their mother on December 10, 1979. However, because of Mrs. C’s severe physical abuse of W.M. [for which she was later convicted of simple battery and incarcerated] the children were returned to the DHHR and foster care on January 14, 1980. The mother completed her jail sentence and was released from confinement in August 1981.

Upon the request of Mrs. C, in September 1981 the DHHR caseworker arranged for a visit by the mother to her children. Mrs. C failed to appear at the designated time and place for this visit. Subsequently, DHHR learned that on September 15, 1981 Mrs. C moved with her husband [not the father of these children] to Odessa, Texas, where the latter felt there' were better employment opportunities. The mother failed to notify DHHR of this move and of her new address. Further, during the following 15 months Mrs. C made no effort to contact these two children, sent no presents on their birthdays or on Christmas, and contributed nothing to their support. Consequently, on February 11,1983 the DHHR filed this petition for a decree of abandonment. Upon receiving notice of the date fixed for the hearing, Mrs. C returned to Louisiana to contest the matter.

At the hearing in April 1983 Mrs. C adamantly denied any intention to permanently surrender her parental rights to these children. She reviewed her consistent efforts, after placement of the youngsters in foster care, to establish regular visitations with them and, ultimately, to secure the return of their custody. On the critical question of why she failed to give DHHR notice of her move to Texas and to contact the children for a fifteen month period, Mrs. C rationalized that such an atmosphere of hostility permeated her relations with DHHR [because of the child cruelty incident] any effort on her part to get in touch with the children would have been frustrated.

In oral reasons for judgment in favor of the mother, based at least in part on his dealing with this case since placement of the children in 1977, the juvenile judge commented:

“I really believe that the mother’s fire [interest in the children] was quenched by our conduct, by the state’s conduct, if it has been quenched, and I am not sure it has been quenched. The court is not willing on the record before it to terminate the mother’s rights.”

La.R.S. 9:403 provides in part:

A. A child shall be considered abandoned when clear and convincing evidence is introduced at a judicial proceeding to prove either:
(b) the parent or parents have failed to provide for the care and support of the child for a period of at least four months under circumstances showing an intention to permanently avoid parental responsibility.
(2) The introduction of clear and convincing evidence which establishes the facts required by Subparagraphs (l)(a) or (l)(b) of this Subsection shall create a presumption that the parent or parents intended to permanently avoid parental responsibilities. The child shall be declared abandoned unless the parent or parents present evidence that rebuts the presumption.

As DHHR points out in its appellate brief, this statute has been amended a number of times, with the latest modification coming in 1980. Review of the legislative history indicates a trend toward liberalizing previous restrictions placed upon the state in actions of this nature. However, we continue to adhere to the basic principle that a decree of abandonment which irrevocably breaks one of the closest and most fundamental human relationships must be predicated upon evidence of circumstances clearly manifesting the parent’s intention to permanently avoid parental responsibility.

In this case there is no question but that Mrs. C did not provide for the care and support of her two children for at least a four month period. It is not clear whether in his reasons for judgment the juvenile judge found circumstances showing an intention to permanently avoid parental responsibility [thereby triggering the “presumption” of intention to permanently abandon] or whether he concluded that this presumption had been refuted. Regardless, we cannot say that his factual determination was manifestly erroneous. Implicit in his reasoning is the conviction that Mrs. C’s initial demonstrated interest in securing the return of her children was never changed, reversed or extinguished, despite the prolonged period during which she failed to contact the youngsters. Great weight must be accorded by us to this conclusion of the conscientious juvenile judge, who was intimately acquainted with the case and observed the witnesses at the hearing.

The argument of DHHR that this mother is being rewarded for her hostile conduct which “chilled” her relations with the department [considered by the juvenile judge as justification for her failure to contact the children during the 15 month period] is without merit. While Mrs. C’s mistreatment of her child is reprehensible, the juvenile judge correctly emphasized that this is not a child custody case. Further, the mother’s one irrational act of abuse, standing alone, does not constitute conclusive evidence of an intent to permanently avoid parental responsibility.

At the conclusion of the hearing the juvenile judge advised Mrs. C of her legal right to visit these children, under DHHR supervision. As he wisely explained, failure by the mother to exercise that right in the future may well expose her to another abandonment action with the possible rendition, in that proceeding, of a decree of abandonment.

For these reasons, we affirm the judgment of the juvenile court denying DHHR’s petition for an adjudication of abandonment of these children with reference to the mother.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Thelma E. FOGLEMAN and Perry H. Fogleman, Plaintiffs-Appellees, v. ROY O. MARTIN INDUSTRIES, INC., and Louisiana-Pacific Corporation, Defendants-Appellants.
    No. 83-149.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Rehearing Denied Dec. 5, 1983.

      Gold, Little, Simon, Weems & Bruser, Dee D. Drell, Alexandria, for defendants-appellants.
    Nelson M. Lee and Dan B. McKay, Bunk-ie, for plaintiffs-appellees.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   DOMENGEAUX, Judge.

Mrs. Thelma E. Fogleman and Perry H. Fogleman sued Roy 0. Martin Industries, Inc., and Louisiana-Pacific Corporation to rescind a timber sale alleging lesion beyond moiety. The trial court rendered judgment in favor of plaintiffs, which entitled them to the difference between the amount originally paid (the lesionary price) and the fair market value at the time of the contract. The defendant lumber companies have appealed.

FACTS

In addition to other property, Perry H. Fogleman and his mother, Thelma E. Fogle-man, each owned an undivided one-half interest in a 580-acre tract of land located in St. Landry Parish. Perry Fogleman’s interest in indivisión was subject to a surviving spouse usufruct in favor of his mother. In February, 1977, Mrs. Thelma E. Fogle-man, as tutrix of her minor son, Perry, applied to the district court for approval of the sale of standing timber, i.e., alienation of the minor’s interest in the immovable property. Under that tutorship, Mrs. Fo-gleman represented to the court that the price of $17,000.00, which was offered for both her interest and that of the minor’s in the timber, was fair and reasonable. The court authorized the sale by Mrs. Fogleman to Roy O. Martin Industries, Inc. A timber deed was executed on February 9, 1977, under which terms the lumber company was permitted to cut and remove all trees 14-inches and larger in diameter, and 14-inches above the ground.

On March 29, 1979, Perry Fogleman attained majority; on August 29, 1979, petition and judgment were filed discharging Mrs. Fogleman as tutrix. Mrs. Fogleman then entered into an extension of the timber contract on her behalf and on behalf of Perry Fogleman, to which the latter consented. The original timber deed was due to expire on December 31,1980. The extension agreement proscribed that the cutting period would continue through December 31, 1981. Mrs. Fogleman and her son received an additional $2,000.00 for the extension agreement. The lumber company began logging operations in December, 1980.

On January 12, 1981, Mrs. Fogleman and Perry Fogleman filed the present suit against Roy O. Martin Industries and Louisiana-Pacific Corporation for rescission of the timber sale on the ground of lesion beyond moiety. Alternatively, plaintiffs sought a supplement in the purchase price. The district court issued a temporary restraining order which enjoined the timber cutting for four days, January 13-16, 1981. On January 19, 1981, the plaintiffs withdrew their request for injunctive relief. The district court dissolved the injunction; the motion to dissolve (previously filed by defendants) was declared moot in the order signed by the trial judge. Defendants reserved their claim for damages and wrongful issuance of the temporary restraining order.

The trial judge found that the timber sale was lesionary. In his written reasons for judgment he fixed the fair market value of the timber at $37,705.00. The trial judge credited $17,000.00 paid to the Foglemans from the original sale, but not the additional $2,000.00 paid for the timber deed extension. The plaintiffs were awarded $20,-705.00 plus costs, less attorney’s fees assessed against them attributable to wrongful issuance of the temporary restraining order.

Defendants have appealed suspensively, submitting that the trial judge erred in finding: (a) that plaintiffs sustained the burden of proof of lesion beyond moiety, the timber sale was lesionary, and plaintiffs were entitled to a supplement in the purchase price; (b) that the experts’ evaluation of the amount of timber was accurate; (c) that lesion invalidated the sale of the minor’s interest in the property; (d) that es-toppel, ratification, and the exception of no right of action did not apply to plaintiffs’ claim for relief; (e) that monies paid for the timber deed extension did not constitute partial consideration for additional tree growth specified in the original timber deed and the $2,000.00 did not form part of the original purchase price; and that (f) the trial judge refused to grant defendants’ motion for directed verdict.

Plaintiffs answered the appeal seeking an increase in the award for the price supplement and expert witness fees. Plaintiffs also urged that defendants be denied any award for wrongful issuance of the temporary restraining order.

RESCISSION FOR LESION BEYOND MOIETY

Lesion is the injury suffered by one who does not receive a full equivalent for what he gives in a commutative contract. La. C.C. Art. 1860. The right to rescind the contract or to demand full value on this basis is the remedy granted to the aggrieved party. La.C.C. Arts. 1861 and 1877. In the case of persons of full age, the remedy for lesion is limited to partitions (with a difference in value greater than one-fourth) and sale (with a difference in value greater than one-half) or exchange of immovable property. See La.C.C. Arts. 1861, 1862, 1863, and 1865-1866.

As will be shown hereafter, we conclude that plaintiff Mrs. Fogleman is entitled to lesionary relief, but that plaintiff Perry Fo-gleman is not.

According to the trial judge’s calculations, the sale was lesionary because the price given was less than one-half of the value of the timber at the time of the contract. See La.C.C. Art. 1861(2). We find no error in the trial court’s holding as to the value of the timber tract.

“When there are great variances among appraisals, it is the court’s function to examine each appraisal to determine which is more reasonable. The court is not bound to accept to [sic] reject one expert’s testimony in its entirety to the preference or rejection of another’s. Parts of each expert’s testimony may be accepted when the testimony so accepted is based on proper facts and sound reasoning. Dixie Electric Membership Corp. v. Guitreau, 302 So.2d 324 (La.App. 1st Cir.1974); State Department of Highways v. Salassi, 244 So.2d 871 (La.App. 1st Cir.1971). We think the trial court properly weighed the witnesses’ testimony.”

Bisco v. Middleton, 383 So.2d 1047, 1049 (La.App. 1st Cir.1980).

Since the purchase price was less than one-half of the value placed on the property by the trial court, plaintiff co-owner Mrs. Fogleman is entitled to relief for lesion beyond moiety.

Mrs. Fogleman’s actions of: (a) stating that the price of $17,000.00 was fair and reasonable in her capacity as tutrix; (b) executing the timber deed on her behalf; and (c) later accepting $2,000.00 for the timber deed extension do not preclude her from questioning the validity of the sale involved herein. La.C.C. Art. 2589 provides for the right to demand rescission of the sale of an immovable for lesion beyond moiety although the vendor expressly waived or abandoned such right. Therefore, Mrs. Fogleman’s execution of the extension agreement and acceptance of $2,000.00 from defendants do not constitute a ratification of the original contract which would effectively estop her from challenging the sale. The trial court was correct in its refusal to apply the doctrine of estoppel. Even though, as noted by the trial judge, the extension agreement was valid and not procured by fraud, the money paid for the extension agreement would not be considered price-related. Rather it involves a time factor only. Since there was no transfer of any object in the extension agreement, there was no sale and no price modification. Hence, that $2,000.00 is not to be included in the purchase price for the purposes of determining lesion.

Additionally, the trial court was correct in refusing to grant defendants’ motion for directed verdict because Mrs. Fogleman had shown a right to relief based upon the facts and the law. A trial judge has much discretion in determining whether a motion for directed verdict should be granted. La. C.C.P. Art. 1810; Burrell v. Kirkpatrick, 410 So.2d 1255 (La.App. 3rd Cir.1982). Therefore we find no errpr on the part of the trial judge as to Mrs. Fogleman’s claim. However, the trial judge erred in his determination of whether lesion invalidates the sale of the minor’s interest in the immovable property.

RESCISSION FOR LESION BEYOND MOIETY NOT AVAILABLE

Although relief against lesion is granted more generally in the case of minors according to La.C.C. Arts. 1864 and 1865, these Articles must be construed in pari materia with other laws concerning lesion. La.C.C. Art. 17. Article 1867 states that minors are relieved of lesion with the exception provided for in Articles 1868 and 1869.

La.C.C. Art. 1869 provides:

“No lesion whatever, even in the case of minors, can invalidate judicial sales, or sales of an insolvent’s property made by syndics or other trustees. Sales of property belonging to successions or minors, directed or authorized by courts, are judicial sales under this provision.”

Further reinforcing this exception is La. C.C. Art. 2594, which states:

“Rescission for lesion beyond moiety is not granted against sales of movables and produce, nor when rights to a succession have been sold to a stranger, nor in matter of transfer of credits, nor against sales of immovable property made by virtue of any decree or process of a court of justice.”

These Code provisions must be given their plain textual meaning. La.C.C. Art. 13.

ROMAN AND FRENCH LAW — AN HISTORICAL BACKGROUND

A brief history of lesion is necessary to determine the applicability of La.C.C. Art. 1869 to the case sub judice. The right to rescind a contract or to demand full value for a lesionary sale originated in ancient Roman law. The right of action, laesio enormus, codified in the Code of Justinian, was designed to protect the poor against the potentiores.

An examination of the doctrinal writings of the French Civil Code reveals that simple lesion confers the special personal privilege on minors to rescind various agreements. However, at French law, the right to a remedy due to simple lesion is not available against obligations which the tutor has validly undertaken in his name, i.e., within the limit of his authority, and in appropriate cases, with observance of the formalities prescribed by law. The commentators further maintain that rescission from lesion involves only obligations assumed by minors themselves. See Code Civil Art. 1305. Aubrey and Rau suggest that if unemanci-pated minors were granted an action in rescission against obligations their tutor has validly consented to, the result would be improvident legislative interpretation because the tutor as legal mandatory of this minor is charged with the duty to represent the minor in all acts of civil life and should be in a position to oblige in all cases where he does not exceed the limits of his mandate. See Code Civil Arts. 45 and 1998(2). Therefore, obligations which required authorization of the tutor which were validly contracted are not subject to lesion. Nor is an emancipated minor accorded the right to attack an obligation by an action in rescission which the minor had the right to undertake alone. In effect, the minor is considered (“reputed”) to be a major for the purpose of these articles. Additionally, obligations which ’ require the assistance of tutors (or curators) and were actually contracted with that assistance are not subject to attack on account of lesion. It follows that when the formalities prescribed by law are observed by the tutor or emancipated minor, “the obligations resulting from these acts are no more subject to attack than if they were made by a person enjoying the full exercise of his civil rights.” See Code Civil Articles 1314 and 463. “Thus, on the one hand, these obligations cannot be attacked by an action in nullity. This proposition is indisputable and has never been contested. On the other hand, these obligations cannot be attacked by an action in rescission.”

It is established that an action for rescission of a contract due to lesion beyond moiety is not a general cause. Another article of the French Civil Code reinforces the explanation offered by the commentators. “The legal provisions governing the action in rescission on account of lesion in favor of majors are not susceptible of [judicial] extension. (Article 1313).” Rescission applies “only ‘for certain persons,’ who are minors, and ‘for certain contracts’ namely, partition and the sale of immova-bles. (Article 1118).” The exception to the relief for lesion has been explained thusly:

“In conformity with tradition, rescission is not possible except for sales of immovables. Art. 1674 says so expressly, by stating that the vendor suffers lesion ‘in the price of an immovable.’ And further, such an action is not admitted in every case involving sale of an immovable. In fact an exception should be made in two kinds of sales:
(2) Sales made by Authority of the Court (Art. 1684). The reason for this exception appears to have been based on the guaranties which this kind of sale offers because of its publicity. ‘The just price of things,’ said Pothier ‘is the price at which they can be sold.’ Furthermore when the auction has not produced favorable results, there is a special proceeding, the ‘re-auction of the sixth,’ which permits raising the price of the adjudication (Art. 708, C.Proc.Civil). To annul the sale and to proceed to a new adjudication would augment the expenses considerably, and probably would not give a better result. Art. 1684 reproduces a traditional rule (Pothier, Vente, No. 340).
Furthermore, this exception does not apply to all judicial sales but only those which, according to the law, can only be made by authority of the court. Such are sales upon seizure, sales of property of minors or of interdicts, and sales in case involving the acceptance of a succession under benefit of inventory. (Cass.Req., 7 Nov. 1927, D. 1928.1.43, with the report of M. Pringué). But judicial sales which could just as well have been made privately remain subject to the general rules of law and are rescindable for lesion.” (Emphasis ours).

It is to be noted that according to the provisions of Article 457 of the French Civil Code, the sale of an immovable of a minor can only take place by virtue of a deliberation of a family meeting homologated by the court, regardless of the value of the immovable. The forms of the sale are determined by Article 459. These forms serve as models for all voluntary sales made judicially. See Code Civil Articles 806 and 889; Code Civil Articles 743 and 997. By examining the above-mentioned French Civil Code articles it is apparent that the sale of a minor’s immovable property constitutes a judicial sale. There does not exist at French law any distinction whatsoever between a “public” sale or a “private” sale. The only distinction for alienation of a minor’s immovable property is between a voluntary sale and a forced sale, e.g. (1) a public utility expropriation which dispenses with the family meeting and homologation by the court; the sale is then directly authorized by the court; (2) licitation (sale at auction) of an immovable held in indivisión, when licitation is requested by one of the co-owners of the minor. This procedure guarantees protection of the minor’s interest.

IN LOUISIANA

Similarly, the Louisiana Code of Civil Procedure provides for the protection of the interest of minor children by interposing a court into the process of making contracts on their behalf. These articles replace the Louisiana Civil Code articles which govern the sale of a minor’s immovable property by the tutor. The tutor must file a petition and obtain court approval for any matter affecting a minor’s interest. La.C.C.P. Art. 4271. A tutor may sell or exchange any interest owned by a minor either in its entirety or in indivisión for any purpose when authorized by the court as provided for in La.C.C.P. Art. 4271. See La.C.C.P. Art. 4301.

The redactors of the Louisiana Civil Code also incorporated the .concept embodied in the French Code and doctrine into Article 1869. The language of the article has remained essentially unchanged since its first appearance in the Projet of 1825. The interpretation of the French law is reflected in Article 1869 which states clearly and unambiguously that lesion does not invalidate a judicial sale. For the purposes of this exception, when the sale of a minor’s property has been authorized or decreed by the Court, relief against lesion is not applicable. See also La.C.C. Art. 2594.

Louisiana jurisprudence has upheld this exception. In Levenson v. Chancellor, 68 So.2d 116 (La.App.Orl.1953), the court discussed La.C.C. Art. 1869 and said that “[s]ales of property belonging to successions or minors, directed or authorized by courts are judicial sales.” (Emphasis ours). But see Prestridge v. Humble Oil & Refining Company, 131 So.2d 810 (La.App. 3rd Cir. 1961), which involved the applicability of prescriptive periods to the sale of a minor’s mineral rights. On rehearing, this Court differentiated between a public sale and private sale of a minor’s property for the purposes of applying La.C.C. Art. 3543. The court stated that:

“[although the conveyance in question was made pursuant to order of court, it was a private and not a public sale. Our original opinion herein discusses the origin and purpose of Act 209 of 1932 which provided a procedure for the ‘private sale’ of a minor’s property. Such a conveyance is a private contract and not a sale at public auction made by a sheriff, a licensed auctioneer or other persons authorized by order of the courts of this state to sell at public auction within the meaning of LSA-Civil Code, Article 3543
Prestridge, at 827.

The court in Prestridge limited the distinction between public sales and private sales of a minor’s interest in property for the purposes of prescription only. This distinction does not exist between public and private sales for the purposes of applying Article 1869. In Middle Tennessee Council, Inc., Boy Scouts of America v. Ford, 205 So.2d 867 (La.App. 1st Cir.1967), that court, we respectfully submit, incorrectly applied the Prestridge ruling to the sale of succession property. The First Circuit stated that a private sale is distinct from a judicial sale for the purposes of Article 1869 by erroneously relying upon the rationale of Pres-tridge. Prestridge did not purport to interpret Article 1869, but rather dealt with the preseriptability of an action to nullify or rescind testaments or other acts. Further, the court in Middle Tennessee Council, we again respectfully submit, misconstrued French doctrinal authorities in an effort to draw a line between a public and private sale of a minor’s interest in property. We will not adhere to the holding in Middle Tennessee Council insofar as the reasoning therein establishes a distinction between a public and private sale for the purpose of applying Article 1869. Instead, we choose to' follow the clear legislative directive of Article 1869 which plainly states that lesion cannot invalidate judicial sales, even in the case of minors, and specifically, further provides that court-authorized sales of minors’ property are judicial sales. It is also a matter of policy to preserve the validity of sales made by a tutor under court authorization in accordance with La.C.C.P. Art. 4301.

VALUE OF THE TIMBER

The valuations given by the four expert timber appraisers who testified at trial on behalf of both plaintiffs and defendants for the entirety of the property in question ranged from $27,500.00 to $79,357.00. There is no indication that the trial judge relied upon speculative values to determine the lesionary price. But see Cheramie v. St. Pierre, 382 So.2d 1003 (La.App. 1st Cir. 1980); Peterson v. Herndon, 221 So.2d 615 (La.App. 2nd Cir.1969).

We cannot say that the trial judge committed manifest error when he considered all the information gathered from the timber cruises-(which is a method of classifying and evaluating timber taken from the property), and scale tickets, together with other facts and expert evidence, to reach a conclusion that reconciled the disparity of the price of the timber. The trial judge used a formula based upon testimony given by one of the plaintiffs’ expert forestry consultants to determine the amount of value of the timber, i.e., $37,705.00. He then credited $17,000.00 from the original sale price and awarded plaintiffs $20,705.00 plus costs.

Thus, inasmuch as Mrs. Fogleman owned an individed one-half interest in the timber, she is entitled to a supplement in the purchase price of $10,352.50. See La.C.C. Article 2600, and preceeding articles.

Finally, contrary to plaintiffs’ request via their answer to the appeal, we find no error in the trial judge’s award of attorney fees and costs to defendants for the wrongful issuance of the temporary restraining order in the early stages of this litigation.

DECREE

For the above and foregoing reasons the judgment of the trial court which awarded plaintiffs, Thelma E. Fogleman and Perry H. Fogleman, the sum of TWENTY THOUSAND, SEVEN HUNDRED FIVE AND NO/100 ($20,705.00) DOLLARS is reversed and it is hereby Ordered, Adjudged, and Decreed that there be judgment herein in favor of plaintiff, Thelma E. Fogleman and against defendants, Roy O. Martin Industries, Inc. and Louisiana-Pacific Corporation, in solido in the full sum of TEN THOUSAND, THREE HUNDRED FIFTY-TWO AND 50/ioo ($10,352.50) DOLLARS, together with legal interest from date of judicial demand, January 12, 1981, until paid; it is further Ordered, Adjudged, and Decreed that the suit of plaintiff Perry H. Fogleman is hereby Ordered dismissed; it is further Ordered that all costs at trial are assessed in the proportion of three-fourths (¾) to defendants Roy O. Martin Industries, Inc. and Louisiana-Pacific Corporation, and one-fourth (⅛) to plaintiff, Perry H. Fogleman. The judgment of the district court is affirmed in all other respects.

All costs on appeal are assessed in the proportion of three-fourths (¾) to Roy O. Martin Industries, Inc. and Louisiana-Pacific Corporation and one-fourth (¾⅛) to plaintiff, Perry H. Fogleman.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . The timber involved in this dispute was growing on this tract.

      . On August 1, 1978, Roy O. Martin Industries, Inc. became a wholly-owned subsidiary of Louisiana-Pacific Corporation, when Louisiana-Pacific acquired 100% of that corporation’s outstanding capital stock.

      . La.C.C. Art. 1877 states that in an action brought for lesion “the purchaser may elect either to rescind the sale, or to have it confirmed on paying the full value.” The purpose of this provision is either to return the parties to their status before they entered the contract or to restore the full value to the seller. See La.C.C. Arts. 1878, 2591; Smart v. Bibbins, 109 La. 986, 34 So. 49 (1902). However, if it is not possible to surrender the property, then the buyer must pay the determined balance. See La.C.C. Art. 1880. Here, the timber had already been cut and removed from the property.

      . See La.C.C. Art. 1875, which states that:
      “A ratification made by a person of full age of any contract made during his minority, cures all defects arising as well from the want of the necessary formalities as from the want of a proper consideration. No action for nullity or lesion can be brought after such ratification.”

      . La.C.C. Art. 2589 provides:
      “If the vendor has been aggrieved for more than half the value of the immovable estate by him sold, he has the right to demand the rescission of the sale, even in case he had expressly abandoned the right of claiming such rescission, and declared that he gave to the purchaser the surplus of the thing’s value.”

      . S. Litvinoff, Obligations § 106 (La.Civ.L.Trea-tise Vol. 6, 1969).

      . For a complete discussion of the historical concept of lesion, see Comment, Lesion Beyond Moiety in the Law of Sale, 14 Tul.L.Rev. 249 (1940); 2 M. Planiol, Traité élémentaire de droit civil (An English Translation by the Louisiana Law Institute) Part I, No. 1587, at 879 (11th ed. 1939).

      . 4 Aubrey et Rau, Droit Civil Francais, (An English Translation by the Louisiana Law Institute, Yiannopoulos) § 335, at 269 (6th ed. 1942).

      . Id. at 269-270 n. 4.

      . Id. § 334, at 267.

      . Id. at 268 n. 17.

      . Id. at 269.

      . 2 M. Planiol, supra No. 1586.

      . Id. No. 1589 at 880-881.

      . 1 M. Planiol, id. Part 2, No. 1919 at 156-157, n. 7 (12th ed. 1942).

      . Id. No. 1920 at 157.

      . La.C.C. Art. 3542.


author: CUTRER, Judge.

text:
    Alice Faye Frazier CLOUD, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
    No. 83-198.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Rehearing Denied Dec. 5, 1983.

      Martin S. Sanders, III of Sanders & Cas-tete, Winnfield, for plaintiff-appellant.
    Lunn, Irion, Switzer & Salley, Julie Mob-ley Lafargue, Shreveport, Watson, Murchison, Crews, Arthur & Corkern, Ronald E. Corkern, Jr., Natchitoches, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

Alice Faye Frazier Cloud sued Carson Cloud and his insurer, State Farm Mutual Automobile Insurance Company (State Farm), to recover damages allegedly sustained by Mrs. Cloud as a result of Mr. Cloud’s negligent operation of an automobile. The trial court granted defendant’s motion for dismissal pursuant to LSA-C. C.P. art. 1810(B). Mrs. Cloud appeals; we affirm.

Mrs. Cloud filed separate suits against Mr. Cloud and State Farm. At trial, and on appeal, these suits have been consolidated. Our statement of the facts and resolution of the issues presented on appeal in this, State Farm’s, case are equally applicable to the suit against Mr. Cloud. However, a separate opinion will be issued today in Mr. Cloud’s case. See, Cloud v. Cloud, 440 So.2d 965 (La.App. 3rd Cir.1983).

FACTS

The episode which resulted in Mrs. Cloud’s injury was part of a long-running dispute between Mr. and Mrs. Cloud. The Clouds (Alice and Carson), in the summer of 1981, were involved in a custody dispute over their, then seven-year-old, daughter. According to Alice, on June 29, 1981, a custody hearing was scheduled. When Carson failed to appear with his daughter at that hearing, Alice went to Carson’s residence demanding the child be turned over to her. A loud and heated argument, lasting several hours, took place. Alice finally left without the child.

The following day, at about 9:00 A.M., Alice returned to Carson’s residence. Shortly after she arrived, Carson, with his daughter in tow, got into his Ford station wagon and attempted to leave. Alice armed herself with a loaded .22 caliber rifle and ordered Carson to stop his car. After the car was stopped, and the motor was turned off, Alice mounted the hood. Alice and Carson remained in their respective positions, Carson behind the wheel and Alice on the hood, apparently content to wait each other out.

During the standoff Alice repeated her demands. Carson responded verbally but, because the windows in the car were closed, Alice says she could not hear him. Carson also displayed some papers through the window for Alice to see; Alice said she did not know what the papers were. After some time Alice pounded on the windshield of the car with the butt of her rifle. Her attempt to break the windshield was unsuccessful.

After Alice pounded on the windshield, and some thirty to forty minutes after she first climbed onto the hood of his car, Carson started the motor of his station wagon. Alice testified that she heard the motor start but she did not get off the car because she did not want Carson to leave with the child. Carson proceeded to drive around his yard; he sped up and braked intermittently trying to remove Alice from the car. Alice, now lying on the hood of the ear with her rifle, was able to remain on the car by holding on to the windshield wipers.

Carson proceeded onto a public road with Alice and the rifle still on the car. After Carson traveled a short distance, he braked his car and, at that point, Alice’s rifle fell from the car. Carson put his car into reverse and backed to a point in front of his residence where he stopped. Alice, now unarmed, attempted to dismount the car and, according to Alice, injured her right foot and ankle. Alice left Carson’s residence, without the child, and sought medical attention.

Alice brought separate suits against Carson and his insurer, State Farm, to recover medical expenses, future medical expenses, pain, suffering and mental anguish, disability and permanent disfigurement. In a bench trial, after hearing all of Alice’s evidence on liability (Mrs. Cloud’s attorney having rested his case holding the record open for the receipt of a deposition from a treating physician), the judge below dismissed the suits pursuant to an 1810(B) motion by the defendant’s counsel. Mrs. Cloud appeals. We affirm.

ISSUES

Mrs. Cloud’s attorney has raised three issues on appeal:

(1) Whether the trial court erred in granting a dismissal after the plaintiff had presented his evidence as to liability but had not presented medical testimony as to quantum;
(2) Whether the trial court erred in finding that plaintiff had not proven that her injury was caused by the negligence of the driver of the station wagon; and
(3) Whether a defense of assumption of the risk was properly before the trial court.

We will discuss each of these issues, in the order presented, below.

WHETHER THE MOTION TO DISMISS WAS TIMELY CONSIDERED BY THE TRIAL COURT

Code of Civil Procedure article 1810(B) provides in pertinent part:

“In an action tried by the court without a jury, after the piaintiff has completed the presentation of his evidence, any party, ... may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. .... ” (Emphasis added.)

Plaintiff’s attorney cites the emphasized word above and argues that the court below committed error when it entertained an 1810(B) motion after plaintiff’s evidence had, by agreement of all counsel and the court, been held open for the later taking and filing of a deposition by a treating physician. Plaintiff cites a case from this circuit, Duplechin v. John Doe, Dimmer and Garret, Inc., 365 So.2d 53 (La.App. 3rd Cir.1978), as support for the proposition that the trial judge could not grant a motion to dismiss when plaintiff had completed the liability portion of his evidence but had not yet presented testimony dealing with quan-turn. Duplechin does not support this proposition.

In Duplechin this court stated the circumstances at the time the trial court considered the motion to dismiss as follows:

“The trial judge notes in the record that he ordered the plaintiff to proceed first with the liability portion of his evidence. At one point, after most of plaintiffs witnesses to the liability of the defendant had testified, the judge asked plaintiff if he had rested. The plaintiff stated that he had not yet presented the testimony of two witnesses whose evidence would only tangentially affect the issue of liability, and he had not yet presented his evidence as to quantum. Over plaintiff’s protest, he was deemed to have rested his case, and the court allowed and granted the motion for a directed verdict.”

In view of the fact that the trial court, in Duplechin, considered the motion to dismiss before the plaintiff had presented all his evidence pertaining to liability, this court correctly held “in the instant case, the plaintiff had not presented all of his evidence and should have been allowed to do so.”

The case at hand is distinguishable. In this case, the plaintiff had presented his entire case concerning liability. The case was held open for the deposition of a treating physician which testimony would not concern liability. We also note that plaintiff’s counsel did not object to the trial court’s consideration of the motion at this juncture of the case.

While the above discussion of Duplechin shows it is not support for the proposition advanced by Mrs. Cloud’s attorney in this case, we are left with the clear wording of the statute referring to the “completion” of plaintiff’s evidence. We find that the position espoused by the court in Smith v. Travelers Indem. Co. of Rhode Island, 374 So.2d 708 (La.App. 1st Cir.1979), which addressed the issue of whether a dismissal under 1810(B) was appropriate when all liability evidence, but not all quantum evidence, had been presented, is a correct interpretation of the scope and intent of C.C.P. art. 1810(B) in this situation.

In Smith, the trial judge dismissed plaintiff’s suit as to the defendant police jury after the plaintiff’s liability evidence was complete but before all of plaintiff’s evidence as to quantum was presented. The First Circuit said:

“Plaintiffs argue that the trial judge was in error in dismissing the suit against the police jury prior to the presentation of all of plaintiffs’ evidence. A close review of the record reveals that plaintiffs had rested subject to a proffer and medical testimony. Conceding arguendo that the proffered evidence was admissible, we find no fault on the part of the trial judge in dismissing the suit as against the police jury. We do not believe that the spirit or intent of La.C.C.P. art. 1810 B was violated by the dismissal of a suit on a question of liability where only medical evidence is missing.”

The factual situation in the instant case is strikingly similar to that of Smith. The trial judge, after hearing the testimony of Alice and Carson about the occurrences of June 30, 1981, had before him all of the available evidence bearing on the liability of Carson and State Farm. Mrs. Cloud’s attorney had rested his case subject to the inclusion in evidence of a deposition of a treating physician. After Mrs. Cloud’s attorney rested, the defendant’s counsel moved for a dismissal. In his motion for dismissal defendant’s counsel characterized the remaining evidence as being only relative to quantum; Mrs. Cloud’s attorney did not object to this characterization. It is clear plaintiff had “completed” the presentation of her liability evidence.

Having all of the evidence relevant to liability before him, the trial judge appropriately considered defendant’s motion. This assignment of error has no merit. The basis of the trial judge’s decision of the motion for dismissal is the subject of plaintiff’s second assignment of error.

LIABILITY OF CLOUD

The plaintiff contends that she sustained a foot and ankle injury as a.result of the negligence of Cloud. The testimony pertaining to liability consisted of only that of the plaintiff. The husband was called on cross-examination but was asked only six questions seeking to establish that State Farm was his liability insurer and that he was the driver of the station wagon during the episode in question.

In his ruling on the motion for a dismissal, the trial judge agreed with the defense attorney’s argument that plaintiff had assumed the risk. Also, the trial judge stated as follows:

“I might add also that a further reason for this is Mrs. Cloud — Mrs. Frazier frankly could not say how she got injured. She failed to prove with that amount of proof necessary as required by Louisiana law exactly how she did get injured. I will include that as part of the reason for the granting of the motion.

Plaintiff contends that she was injured after the station wagon was finally brought to a stop in front of Cloud’s house. We note that she reiterated in detail the events occurring up to the time that the station wagon was finally stopped in front of the house. At that point, the testimony as to how she injured her foot becomes confusing, unclear and indefinite. She stated that, as the station wagon stopped, she started sliding off the front of the hood. She testified that, as she got off the hood, Cloud moved the vehicle forward injuring her foot. At another point, she stated that she did not slide completely off the hood in front as she was holding on to the windshield wipers. She stated that, after the stop, she slid partially off but then pulled back up on the hood and then rolled off the hood on the passenger side, falling into a ditch. She was unable to say what part of the car caused the injury. Her recollection of the facts surrounding the injury were vague and indefinite. Whether she was injured by some action of Carson is uncertain and speculative. The plaintiff’s testimony is such that it cannot be determined whether she was injured by a negligent act of Carson or by some of her own actions during the escapade or upon leaving the hood of the vehicle after it was stopped.

The record supports the trial judge’s conclusion that plaintiff had failed to prove how she was injured. We cannot say that the trial court was clearly wrong in this conclusion. The failure of plaintiff to prove that any negligence of Carson was a cause of the injury justifies the trial court’s granting of the motion to dismiss.

Having come to this conclusion it is unnecessary that we address the defense of assumption of the risk.

For the reasons assigned, the ruling of the trial court is affirmed. All costs of this appeal are to be paid by Alice Faye Frazier Cloud, plaintiff-appellant.

AFFIRMED.

GUIDRY, J., concurs.

      . Prior to trial attorneys for Mr. Cloud filed a peremptory exception on behalf of their client. The exception alleged that, on the date of Mrs. Cloud’s injury, she and Mr. Cloud were husband and wife and, as such, Mrs. Cloud had no “cause or right of action” against Mr. Cloud. It is clear that a cause of action exists in the factual circumstances described in Mrs. Cloud’s petition; i.e., a remedy is provided by our law. However, if Mr. Cloud’s allegation is true, Mrs. Cloud has no right of action in this case. See, LSA-R.S. 9:291 which lists the only instances in which spouses may sue one another; negligent injury is not one of the instances enumerated.
      As to the exception of no right of action, when this matter came on for hearing, this exception was referred to the merits. The record fails to clearly address the marital status of the parties. Because of our resolution of the merits of this case in State Farm’s appeal; i.e., affirming the trial court’s dismissal of Mrs. Cloud’s suit on the merits, it would be inefficient to remand this case for the taking of further evidence regarding this exception.

      . The parties erroneously termed the motion a directed verdict. As the instant case involved a bench trial, the motion is correctly designated a motion for dismissal. LSA-C.C.P. art. 1810(B).

      . We note that plaintiff also cites the case of Tilley v. Mount Vernon Ins. Co., 411 So.2d 72 (La.App. 3rd Cir.1982), as support for its proposition. Tilley dealt with whether a motion to dismiss could be urged by a defendant at the close of defendant’s case. This court held that, since 1810 states such a motion may be made after the evidence presented by the non-moving party, it was appropriate for the court to consider such a motion both at the close of plaintiffs case and at the close of defendant’s case prior to submission of the case to the jury. Tilley did not involve 1810(B).


text:
    Alice Faye Frazier CLOUD, Plaintiff-Appellant, v. Carson CLOUD, Defendant-Appellee.
    No. 83-199.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Rehearing Denied Dec. 5, 1983.

      Martin S. Sanders, III of Sanders & Cas-tete, Winnfield, for plaintiff-appellant.
    Lunn, Irion, Switzer & Salley, Julie Mob-ley Lafargue, Shreveport, Watson, Murchison, Crews, Arthur & Corkern, Ronald E. Corkern, Jr., Natchitoches, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

For the reasons assigned in Cloud v. State Farm Mutual Automobile Insurance Company, 440 So.2d 961 (La.App. 3rd Cir. 1983), our docket number 83-198, this day decided, the decision of the trial court is affirmed. Costs of this appeal are assessed to plaintiff-appellant, Alice Faye Frazier Cloud.

AFFIRMED.

GUIDRY, J., concurs.


text:
    AETNA LIFE AND CASUALTY, Plaintiff-Appellee, v. John S. O’BRIEN, Defendant-Appellant.
    No. 83-204.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Rehearing Denied Dec. 5, 1983.

      Richard M. Sandefer, Lafayette, for defendant-appellant.
    Terri Rowe and Michael S. O’Brien, of Martin & Taulbee, Lafayette, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

John S. O’Brien, accepted for safekeeping certain valuable items from his friend and business associate, Gerald M. Wormser. Six pieces of Wormser’s jewelry, held by O’Brien, were insured by Aetna Life and Casualty, Inc. (Aetna). While these items, and others, were in O’Brien’s possession, they disappeared. Aetna paid Wormser $18,000.00 for the pieces of jewelry which are now missing. Aetna, as conventional subrogee of Wormser, sued O’Brien for the recovery of the amount paid to Wormser under a “deposit” theory. The trial court awarded judgment in favor of Aetna for the sum of $18,000.00. O’Brien appealed. We affirm.

SPECIFICATIONS OF ERROR

O’Brien contends that the trial court erred in:

(1) Finding that O’Brien did not fulfill his obligation as a depositary; i.e., that he did not act as a prudent administrator; and
(2) Finding that the plaintiff (Aetna) proved that the jewelry had a value of $18,000.00.

SCOPE OF REVIEW

We note that O’Brien has not challenged the basic finding by the trial court that this case involves a depositor/depositary relationship. Therefore, our review of the questions presented by O’Brien will be limited to the application of our laws on deposit. We are further constrained in our review by the well-established jurisprudential rules which provide that the findings made by the trier of fact will be overturned only when clearly wrong or when a manifest error has been committed.

FACTS

John S. O’Brien and Gerald Wormser were business associates and, according to O’Brien, “exceptionally close” friends. At some time in late 1979 or early 1980, while Wormser and his wife were involved in marital difficulties, Wormser asked O’Brien to hold certain manila envelopes containing items which Wormser did not want his wife to have access to. O’Brien accepted the envelopes and hid them at his home. Almost immediately Wormser began the practice of periodically calling O’Brien and requesting that O’Brien deliver the envelopes to Wormser so that Wormser could inspect the contents of the envelopes. The calls from Wormser for such inspections became frequent and regular. So much so that O’Brien, instead of hiding the envelopes at his home, placed the envelopes in a locking briefcase to facilitate their easy transportation to Wormser. O’Brien owned the briefcase but gave the combination to Wormser.

Wormser’s inspections of the contents of the envelopes were originally done in secret. After about five or six months of weekly or bi-weekly inspections by Wormser, during which period O’Brien testified they became “exceptionally close,” O’Brien was no longer asked to leave the room when Wormser inspected the envelopes. According to O’Brien he saw Wormser add and remove cash, stocks, bonds, and “legal type documents, like his will” from the envelopes at various times. Also, shortly after this arrangement began, Wormser indicated that a particular “small envelope that had obviously something lumpy in it” contained jewelry.

As Christmas of 1981 approached, during a time of relative marital calm for Mr. and Mrs. Wormser, the Wormsers planned an out-of-town trip. On December 23, 1981, O’Brien met with Wormser and Wormser again inspected several envelopes, removed some cash and' Travelers Checks in O’Brien’s presence, and returned the envelopes and briefcase to O’Brien. After this meeting Wormser departed on his vacation trip and O’Brien, with the briefcase in his car, made several business calls. Later in the afternoon, with his business calls completed, O’Brien spent several hours playing tennis at a local club and then returned to his home for the night. The next morning, December 24th, when O’Brien entered his office adjacent to his home, he noticed the briefcase containing Wormser’s valuables was not where he normally kept it in his office (O’Brien’s office was equipped with a burglar alarm). When O’Brien went to his car to retrieve the briefcase he found it was missing.

O’Brien testified that, after leaving Wormser sometime in the early afternoon of December 23rd, he did not handle the briefcase. While O’Brien is almost certain he locked his car at his several stops during the afternoon, he admitted the briefcase was easily visible from outside of the car and he does not recall noticing if the briefcase was still in his car after any one of his stops.

When O’Brien learned the briefcase was missing he immediately retraced his route of the prior day hoping to find the briefcase. He was unsuccessful. Not knowing how to get in touch with Wormser, and not sure if Wormser wanted to involve the police, O’Brien did not report the loss.

On January 4, 1982, Wormser contacted O’Brien from California. During their conversation O’Brien reported the loss to Wormser and Wormser asked O’Brien to immediately contact the police. The subsequent police investigation failed to recover Wormser’s property.

Wormser filed a claim with Aetna seeking recovery, under a “Valuable Items Policy,” for six pieces of jewelry which were in the briefcase. Aetna paid Wormser $18,-000.00, the scheduled value of the six pieces of jewelry, and instituted the instant suit against O’Brien in its capacity as conventional subrogee of Wormser. The trial court, after a non-jury trial, rendered judgment in favor of Aetna. The trial judge, in his reasons for judgment, stated in part:

“This is an unfortunate case. Defendant [O’Brien] was trying to do his friend [Wormser] a favor by holding papers and valuables for him. He [O’Brien] was unaware of any legal relationship which thereby developed between them. He [O’Brien] was unaware of the legal consequences of his actions. Nevertheless, ‘ignorance of the law is no excuse.’
“The facts of this case make out a classic example of gratutious [sic] deposit. The Defendant [O’Brien] knew he was holding items of value for Mr. Wormser. This fact is proven beyond a doubt. He lost the items due to his negligence....
“The Plaintiff [Aetna] proved that the jewelry in question was in the briefcase and that their value at the time of the loss exceeded $18,000.00.” (Emphasis added.)

The trial judge awarded judgment in favor of Aetna, against O’Brien, in the amount of $18,000.00 and condemned O’Brien to pay the costs of the suit. O’Brien has appealed raising the errors mentioned earlier.

THE LAW OF DEPOSIT

A deposit, essentially a gratuitous contract, involves the delivery of movable property by a depositor, Wormser, to a depositary, O’Brien, with the duty arising in the depositary to keep safe the item deposited. The deposit is complete upon delivery of the item and the consent of both parties; that is, the depositor consents to the depositary possessing the item and the depositary accepts the delivery of the item. Harper v. Brown & Root, Inc., 391 So.2d 1170 (La.1980).

The duty of a depositary is set out in Civil Code art. 2937, which provides:

“The depositary is bound to use the same diligence in preserving the deposit that he uses in preserving his own property.”

In the case of Mercer v. Columbia Equipment Co., Inc., 409 So.2d 1285, 1287 (La.App. 2nd Cir.1982), writ den., 413 So.2d 507 (La.1982), the court addressed the burden of proof in a deposit case as follows:

“Once the depositor proves the existence of a contract of deposit and the loss of the deposited articles, there is a presumption that the depositary has not fulfilled his obligation to act as a prudent administrator. Harper v. Brown & Root, Inc., supra, p. 1173.
“It follows that, in this case, it became incumbent upon the defendant depositary to exonerate itself from liability by proving, as an affirmative defense, that it had acted as a prudent administrator in safeguarding the deposited property, .... ”

In Harper v. Brown & Root, Inc., 398 So.2d 94, 95 (La.App. 3rd Cir.1981), (on remand from the Louisiana Supreme Court for determination of quantum), this court held: “... under our law the depositary is bound to restore the precise object which he received, however, if unable to return the precise object received he is responsible to the depositor for its value.”

Keeping in mind the above principles of the law of deposit and the facts of this case we will address O’Brien’s specifications of error.

O’BRIEN’S DUTY AS DEPOSITARY

As noted earlier the duty of a depositary, to safeguard the items deposited in his care, requires the depositary to act as a prudent administrator. This duty imposes a high standard of conduct on the depositary. So much so in fact that if a deposited item is lost while in the possession of the depositary the depositary is presumed to have failed in his duty. We have reviewed the record and find no error in the trial judge’s ruling which, in effect, finds that O’Brien failed to overcome this presumption.

O’Brien attempted, at trial and in his brief to this court, to shift the responsibility for the deposited items back to Wormser, the depositor. This argument centers mainly on the fact that Wormser did not fully disclose to O’Brien the specific nature of each item deposited; this theory presumes that, had O’Brien been aware, more specifically, of the items he held, he would have treated them differently. This argument is disposed of by Civil Code art. 2943 which provides:

“The depositary should not seek to know what are the things confided to him, if they are shut up in a box, or in a sealed cover."

There is no provision in our law to change the duty owed by a depositary when the depositary is not particularly aware of the items entrusted to his safekeeping. Article 2943 contemplates the exact deposit situation found in this case; i.e., the deposit of a sealed container. Wormser and Aetna cannot be protected less by our law because O’Brien was not privy to the contents of the envelopes he agreed to hold.

PROOF OF THE VALUE OF THE LOST ITEMS

O’Brien complains that the trial court erred in finding that Aetna proved the value of the pieces of jewelry which are missing. The trial judge was presented with the testimony of Wormser who described the six pieces of stolen jewelry. Written appraisals and expert testimony was presented as to the value of five of the six pieces of jewelry. We cannot say that this proof was insufficient or that the trial judge was clearly wrong in accepting such proof; neither does O’Brien question these valuations which totaled $11,500.00. O’Brien’s argument as to value is limited to the proof offered regarding the sixth piece of jewelry, a wedding ring. The ring in question was insured by Aetna for $6,500.00. The record does not contain a written appraisal of this ring. However, Aetna’s expert, in response to a hypothetical question which included a description of the ring, stated that such a ring could be worth between $4,000.00 and $9,000.00. The trial judge apparently believed the ring was proven to be worth at least its $6,500.00 insured value and awarded Aetna that amount. Such proof, by expert testimony in response to hypothetical questions, is good and sufficient. This assignment of error has no merit.

In summary, as the trial judge stated, this is a classic example of a gratuitous deposit. O’Brien agreed to hold certain valuable items for his friend, Wormser. A presumption exists that a loss which occurs during such a deposit is caused by the depositary’s failure to act with the required diligence. O’Brien did not overcome this presumption. The value of the items lost was adequately proven and this value, since the precise items are no longer available, was due to Wormser from O’Brien. Aetna, after paying Wormser under a policy of insurance, as subrogee of Wormser, has the right to collect the value from O’Brien.

For these reasons, the judgment of the trial court is affirmed. The costs of this appeal are to be paid by defendant-appellant, John S. O’Brien.

AFFIRMED.

      . See Civil Code articles 2926, 2928-30, 2932 and 2933.


text:
    Gussy J. CALAIS, Plaintiff-Appellee, v. LOUIS ORTIS BOAT COMPANY, Defendant-Appellant.
    No. 83-205.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Rehearing Denied Dec. 5, 1983.
    Writ Denied Jan. 27, 1984.
    Sera H. Russell, III, Lafayette, for defendant-appellant.
    Brinkhaus, Dauzat & Falgoust, Jerry Fal-goust, Opelousas, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   DOMENGEAUX, Judge.

This is a worker’s compensation case in which plaintiff seeks on-the-job benefits for the disability which he allegedly occasioned as a result of his suffering from emphysema. From a judgment which was rendered in favor of the plaintiff, defendant-employer appeals.

Plaintiff had been employed by Burton Shipyard in Texas for a number of years before he moved to Louisiana. In 1978, while engaged in his Texas employment he had been diagnosed as suffering from emphysema.

In September of 1980 plaintiff came to Krotz Springs, Louisiana, where he commenced employment with defendant Louis Ortis Boat Company as a welder. He remained in defendant’s employ for some nine months but in December of 1980, he experienced trouble breathing and consulted Dr. W.J. Briley, a physician in Opelousas, Louisiana. At that time Mr. Calais had missed some work, but he continued to work for the defendant boat company until May of 1981, when he was laid off. He looked for work elsewhere and returned twice to the Louis Ortis Boat Company in search of employment but in July of 1981, he felt he could no longer continue working because of his problem with emphysema. This suit to recover worker’s compensation benefits was filed in April of 1982.

The defendant seeks reversal, claiming the trial court erred in finding that plaintiff had carried his burden of establishing by an “overwhelming preponderance of the evidence” that this disease had been contracted in the course of and arising out of his employment. We agree and reverse on those grounds without reaching defendant’s other assignment of error dealing with a prescription claim.

La.R.S. 23:1031.1 states (in pertinent part):

“A. Every employee who is disabled because of the contraction of an occupational disease as herein defined, or the dependent of an employee whose death is caused by an occupational disease, as herein defined, shall be entitled to the compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment.
B. An occupational disease shall mean only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.
D. Any occupational disease as herein listed contracted by an employee while performing work for a particular employer in which he has been engaged for less than twelve months shall be presumed to be non-occupational and not to have been contracted in the course of and arising out of such employment, provided, however, that any such occupational disease so contracted within the twelve months’ limitation as set out herein shall become compensable when the occupational disease shall have been proved to have been contracted during the course of the prior twelve months’ employment by an overwhelming preponderance of evidence.
E. All claims for disability arising from an occupational disease are barred unless the employee files a claim with his employer within six months of the date that:
(a) The disease manifested itself.
(b) The employee is disabled from working as a result of the disease.
(c) The employee knows or has reasonable grounds to believe that the disease is occupationally related.
Notice filed with the compensation insurer of such employer shall constitute a claim as required herein.”
(Emphasis added by the Court.)

Because plaintiff had worked for the Louis Ortis Boat Company for only nine months, La.R.S. 23:1031.1(D) applies and Mr. Calais’ emphysema is presumed non-occupational. Under the emphasized portion of the statute, plaintiff is required to show that the disease was contracted during his employment by an overwhelming preponderance of the evidence. This court has previously held that this provision of the Louisiana Workers’ Compensation Statute means exactly what it says. In Hanlon v. Sline Industrial Painters, Inc., 358 So.2d 700, 702 (La.App. 3rd Cir.1978), this Court stated that:

“it does not necessarily follow that liability rests on the employer at the time that the disease became disabling, as would be true in the typical ‘accident’ case. R.S. 23:1031.1 does not require that there be an accident in occupational disease cases. Also, Section 1031.1 states that a claimant cannot recover the benefits for occupational disease from a short-term employer, i.e., an employer for whom the plaintiff has worked for less than twelve (12) months, unless the claimant can establish that he contracted such occupational disease during his short-term employment by an overwhelming preponderance of the evidence.” (Citations omitted.)

In the case sub judice, plaintiff was required to show that he contracted this disease, emphysema, during his nine months employment by an overwhelming preponderance of the evidence. It is evident that he has not done so.

The testimony of Dr. W.J. Briley, M.D., by deposition, is the only medical evidence in the record. It reveals that when the physician was asked if the disease was present in a complete sense in December of 1980, the doctor replied: “Oh, yes, he gave me that in his history. He knew he had emphysema when he went to work for them [defendant].” And when the physician was asked if he knew of anything specific about the plaintiff’s employment that caused him to have an aggravation of his emphysema, the doctor replied: “No, I can’t say anything specific.” Thus, the medical evidence in the record reveals that the disease was present in a complete sense when the plaintiff accepted his employment with the defendant company. The medical evidence also fails to point to any subsequent factors relating to plaintiff’s employment which aggravated the pre-existing condition.

The Louisiana Supreme Court in dealing with a similar issue, made the following comment, albeit in dicta:

“The only departure in 23:1031.1 is sub-section D, covering disability from occupational diseases occurring when a worker has been employed for less than twelve (12) months. In that case, the worker must prove by an ‘overwhelming preponderance of the evidence’ that the disease was contracted within the last twelve (12) months in order to establish that the ‘occupational disease .. . shall become compensable.’ 23:1031.1 D.” Carter v. Avondale Shipyards, Inc., 415 So.2d 174, 181 (La.1981). (Emphasis in the original.)

In the case at hand, there is no evidence that plaintiff contracted the disease while working for Louis Ortis Boat Company. In fact the evidence is to the contrary. Mr. Calais’ own testimony indicates that he had emphysema for some period of time and in fact went to work for the defendant with the knowledge of such. Because Mr. Calais did not work for the Louis Ortis Boat Company for the statutory minimum of twelve months he was required to prove that he contracted emphysema while in the defendant’s employ and thus overcome the presumption of La.R.S. 23:1031.1(D) by an overwhelming preponderance of the evidence. The plaintiff has failed to meet this burden.

The plaintiff also contends, based on the reasoning of Carter v. Avondale Shipyards, Inc., 415 So.2d 174 (La.1981) that defendant should be held liable. That case was a dispute between two successive employers over liability for worker’s compensation benefits due to the plaintiff on account of total and permanent disability caused by silicosis. In Carter plaintiff had been employed by DBR from 1940 to 1968 and by Avondale from 1968 to 1977. The court, after determining that plaintiff was indeed entitled to worker’s compensation benefits held Avondale liable for the full amount of the award stating:

“The decision to require contribution from a former employer, whose working conditions might have contributed to the occupational disease which ultimately disables the worker, is a policy decision which is best left to the legislature.” At 181.

However, our case is easily distinguishable 'from the Carter case in that the plaintiff in Carter had been employed by the second employer, Avondale, for eight or nine years and was not required to overcome the presumption of La.R.S. 1031.1(D). Here, plaintiff had been employed by the defendant company for only nine months. In Carter the court felt the policy decision that they were dealing with was one best left to the legislature. In the case at bar we are dealing with a policy decision which has already been made by the legislature, i.e., that when, as here, occupational disease claims are made by a plaintiff who has been employed for less than twelve months, he shall not recover unless it is established by an “overwhelming preponderance of the evidence” that such occupational disease was contracted during his employment. Mr. Calais has not done what the statute requires him to do in order to recover.

For the above and foregoing reasons, the judgment of the trial court is reversed, and plaintiff’s suit is hereby ordered dismissed, at his costs, both at trial and on appeal.

REVERSED AND RENDERED.


text:
    HONEYWELL, INC., Plaintiff-Appellant, v. JIMMIE B. GUINN, INC., Jesse F. Heard & Sons, Inc., and Travelers Indemnity Company, Defendants-Appellees.
    No. 83-207.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Rehearing Denied Dec. 5, 1983.
    Provosty, Sadler & deLaunay, Michael L. Glass and David Spence, Alexandria, for plaintiff-appellant.
    Jesse S. Heard, Jr., West Monroe, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   DOMENGEAUX, Judge.

Plaintiff, Honeywell, Inc., initiated this proceeding seeking to recover from Jimmie B. Guinn, Inc., Jesse F. Heard & Sons, Inc., and the latter’s surety, Travelers Indemnity Company, for payment of $11,513.00 allegedly remaining due for work performed in constructing the LaSalle General Hospital of Jena, Louisiana. The trial judge found liability as to Jimmie B. Guinn, Inc., but dismissed plaintiff’s claim against Jesse F. Heard & Sons, Inc. and Travelers Indemnity Company. From this adverse judgment plaintiff has appealed.

The issue presented on appeal is whether or not defendants, Jesse F. Heard & Sons, Inc. (hereinafter referred to as Heard, Inc.) and Travelers Indemnity Company (hereinafter Travelers) are liable to the plaintiff on a labor and material payment bond which Heard, Inc. had entered into with Travelers.

In October of 1977, Heard, Inc. entered into a construction contract with the Board of Commissioners of the LaSalle General Hospital. In connection therewith, as general contractor they secured a labor and material payment bond from Travelers. In performance of its contract, Heard, Inc. sub-contracted Jimmie B. Guinn, Inc., which in turn, sub-contracted appellant, Honeywell, Inc., for the furnishing and installation of a pneumatic system of automatic temperature control. There remains no dispute as to Jimmie B. Guinn, Inc.’s liability to Honeywell. But, defendants, Heard, Inc. and Travelers, contend that they should not be liable to Honeywell, Inc. because: (1) Honeywell, Inc. did not timely file its claim; and (2) there is no privity of contract between Honeywell and Heard, Inc.

No reasons were rendered by the trial judge for his decision but in light of the fact that he denied recovery, we must conclude that he found the claim to have been untimely filed. For the reasons hereinafter stated, we agree and conclude that recovery should not be allowed under the provisions of the Public Works Act, La.R.S. 38:2241, nor should recovery be allowed under the terms of the labor and material payment bond.

La.R.S. 38:2242 of the Public Works Act provides:

“Any person to whom money is due for doing work, performing labor, or furnishing materials or supplies for the construction, alteration, or repair of any public works, or furnishing oil, gas, electricity, or other materials or supplies for use in machines used in the construction, alteration, or repair of any public works, excluding persons to whom money is due for the lease or rental of movable property, but including any architect or consulting engineer employed by the owner or his duly authorized agent or representative or engaged by the contractor or subcontractor in connection with the building of any public work, may after the maturity of his claim and within forty-five days after the recordation of acceptance of the work by the governing authority or of notice of default of the contractor or subcontractor, file a sworn statement of the amount due him with the governing authority having the work done and record it in the office of the recorder of mortgages for the parish in which the work is done. After the filing and recor-dation of claims, any payment made by the governing authority without deducting the amount of the claims so served on it shall make the authority liable for the amount of the claim. If an architect or engineer has not been employed by the contractor or subcontractor he shall have no claim to or privilege on the funds due the contractor or subcontractor, nor shall such architect or engineer be within the coverage of the payment and performance bond required of the contractor by R.S. 38:2241.” (Emphasis added).

In order for a claimant to assert the rights provided for in the Public Works Act he must file his claim “within 45-days of the recordation of acceptance of the work by the governing authority.” Here the acceptance of the work by the governing authority was recorded May 12,1980, and plaintiff filed his claim on October 7, 1980. Thus plaintiff was well outside the parameters of the 45-day statutory lien period.

As pointed out by the Louisiana Supreme Court the effect of filing the sworn affidavit is two-fold:

“First, it accords to those not enjoying contractual privity with the general contractor a right of action against both the contractor and his surety; second, upon the filing and recordation of the affidavit as claimed, any payment made by the governing authority without deducting the amount of the claim renders the authority liable for the claim.” Thurman v. Star Electric Supply, Inc., 307 So.2d 283 (La.1975). (Emphasis added).

It should be noted that the second effect, i.e., attaching liability to the governing authority, is conditioned “upon the filing.” Thus a general contractor would not incur liability under the provisions of the Public Works Act absent a timely filing of the sworn affidavit. Further, with the general contractor incurring no liability under the terms of the Public Works Act the provisions under that chapter do not apply. Here plaintiff’s claim was filed too late under the provisions of the statute and accordingly any rights he may have held under the Public Works Act had expired.

That, however, does not end our consideration of the issue. The Louisiana Supreme Court in Construction Material, Inc. v. American Fidelity Fire Insurance Company, 388 So.2d 365 (La.1980), indicated that the Public Works Act does not prohibit a surety company from extending bond coverage to claims for labor, materials and equipment beyond that required by the statute. In Construction Materials, Inc., the Court, in discussing the purposes of the Public Works Act, stated:

“The statute’s aim is to define the types of claims to be given protection and to make the governing authority responsible for their deduction and payment out of the contractor’s receipts. The legislation clearly does not forbid a contractor and his surety from providing security for the payment of claims falling outside the ambit of statutory protection. In fact, the Public Works Act makes clear that it shall not be construed to deprive any person of his right of action on the contractor’s bond. La.R.S. 38:2247, in pertinent part, provides:
‘Nothing in this Part shall be construed to deprive any person or claimant within the terms of this Part of his right of action on the contractor’s bond which shall accrue at any time after maturity of his claim .... ’
Defendant surety argues that this provision was intended to provide protection only for ‘a claimant within the terms’ of the statute. We think it clear, however, that the section was designed to protect ‘any person’ with a ‘right of action on the contractor’s bond.’ Claimants whose claims fall within the ambit of the statutory protection have no need of the savings clause. It was specifically for the benefit of those persons and claimants whose rights depend solely on the contractor’s bond that the section preserving their actions was added.” (Emphasis added).
At 367

It is thus clear that a contractor and his surety may provide security for the payment of claims falling outside the ambit of statutory protection. That being the ease we must look to the provisions of the bond supplied in the case sub judice to determine if supplementary protection was provided.

The bond in question defines a claimant as “one having a direct contract with the principal or with a sub-contractor of the principal for labor, material, or both, used or reasonably required for use in the performance of the contract.” There is no dispute to the fact that Honeywell, Inc. had a direct contract with Jimmie B. Guinn, Inc., “a sub-contractor of the principal,” and thus plaintiff clearly falls within the instrument’s definition of a claimant.

The bond further provides that “[n]o suit or action shall be commenced hereunder by any claimant, unless claimant, other than one having a direct contract with the principal, shall have given written notice to any one of the following: the principal, the owner, or the surety above named, within ninety (90) days after such claimant did or performed the last of the work or labor, or furnish the last of materials for which said claim is made, .... ” The record expressly establishes that plaintiff “did or performed the last of [his] work or labor”; and within the subsequent ninety days (the contractually established period) his notice of the claim was given. Therefore plaintiff’s notice was timely under the provisions of the bond.

The bond next requires that even if notice has been timely given “[n]o suit or action shall be commenced hereunder by any claimant after the expiration of one (1) year following the day on which principal [Heard, Inc.] ceased work on said contract .... ” This suit was filed on August 28,1981. In order to be within the contractually established cutoff date it would have been necessary for the principal, Heard, Inc., to have ceased work no sooner than August 28, 1980. But this is not the case, for although there is conflicting evidence in the record, we find that at the latest, Heard, Inc. completed the contract on August 18, 1980. Honeywell’s general foreman testified that they were the last persons on the job and that they had completed their contract work on August 18, 1980. Thus the principal’s, Heard, Inc.’s, obligation on the contract was fulfilled at latest on August 18, 1980. This suit was commenced on August 28, 1981. The action was thus begun beyond one year after the principal ceased work on the contract and consequently the suit is outside the permissible period of the bond.

Plaintiff is not entitled to recover under the provisions of the Public Works Act nor is he entitled to any relief under the provisions of the labor and material payment bond.

For the above and foregoing reasons the trial court’s judgment, in favor of Honeywell for $11,513.00 against Jimmie B. Guinn, Inc. and dismissing the demands against Jesse F. Heard & Sons and Travelers Indemnity Company, is affirmed. All costs on appeal are assessed against appellant, Honeywell, Inc.

AFFIRMED.

GUIDRY, J., concurs.

      . Raymond Huval, Honeywell’s general foreman, testified at trial:
      “Q. When was the last work that you performed on the Honeywell job?
      A. That was on August 18th.
      Q. And that would have been work in accordance with your bid proposal to Jimmie Guinn, or was that repair work that you were doing?
      A. No, sir. That was part of my proposals.

      Q. Can you tell me who was the last man to work on the LaSalle General Hospital was?
      A. Yes, sir, I did.”


text:
    Robert METRAILER, Plaintiff-Appellee, v. CAMERON CABLE & CORDAGE, INC., Defendant-Appellant.
    No. 83-210.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 1983.
    Rehearing Denied Dec. 5, 1983.

      Sanders & Castete, Ltd., Martin S. Sanders, III, Winnfield, for defendant-appellant.
    Terry J. Manuel, Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

Robert Metrailer sued Cameron Cable & Cordage, Inc. (CCCI), his employer, for past due wages, penalties and attorney’s fees pursuant to LSA-R.S. 23:631 and 632. The trial court rendered judgment in favor of plaintiff for past due wages and attorney’s fees but denied penalty wages. CCCI has appealed the judgment in favor of plaintiff and plaintiff has answered that appeal seeking penalty wages. We amend and affirm as amended.

ISSUES

Two issues are presented by this appeal. The defendant challenges the award of wages and attorney’s fees made by the trial court. This challenge is based upon an alleged improper expansion of pleadings by plaintiff at trial. Plaintiff has answered CCCI’s appeal and raises the additional question of whether the trial judge’s denial of penalty wages was appropriate.

WAS THERE AN IMPROPER EXPANSION OF THE PLEADINGS?

The plaintiff was employed by CCCI on January 15, 1981, at a salary of $3,000.00 per month plus expenses. The employment continued until November 30, 1981, at which time plaintiff was discharged. Upon discharge plaintiff demanded wages for the last half of October and all of November. CCCI refused the demand and plaintiff brought suit alleging that CCCI owed him wages for the last half of October and all of November 1981.

To prove that wages were due for this period the plaintiff sought to introduce into evidence all of the payroll checks he received from CCCI during the ten and one-half months of his employment. The defendant corporation, CCCI, objected to the introduction of any evidence concerning the payment or non-payment of wages in months other than October and November 1981, the months specified in plaintiff’s petition. CCCI argued that any evidence concerning months other than those mentioned in plaintiff’s petition amounted to an improper expansion of plaintiff’s pleading. The trial judge overruled CCCI’s objection. CCCI now maintains the plaintiff’s failure to amend his pleadings to conform to his “expansion” is an error which requires this court to ignore the objected to evidence and find that the plaintiff has failed to carry his burden of proof in this case. We disagree.

LSA-R.S. 23:631 provides in part: “... upon the discharge ... of any ... employee ..., it shall be the duty of the person employing such ... employee to pay the amount then due under the terms of employment, ... not later than three days following the date of discharge.” (Emphasis added.) This statute places a specific, positive burden on an employer to pay, within three days, any wages due to a discharged employee under the terms of the discharged employee’s employment.

In the instant case ■ CCCI, without making any attempt to check its records, denied it owed plaintiff any wages as of November 30, 1981. Plaintiff was, therefore, forced to file suit to collect the alleged past due wages. To prove wages were past due, within the terms of plaintiff’s employment, plaintiff introduced testimony detailing the terms of his employment with defendant and copies of defendant’s own records covering plaintiff’s entire employment record. CCCI cannot now complain that plaintiff has used the very records, that CCCI was under a statutory duty to consult, in proving that wages were, in fact, past due.

The record reveals that plaintiff was hired by defendant at a salary of $3,000.00 per month beginning January 15, 1981. Plaintiff was to be paid $3,000.00 on the first of each month, representing payment for the preceding half month and the following half month. Copies of defendant’s payroll checks issued to plaintiff indicate this procedure was followed during the first five months of plaintiff’s employment. Plaintiff’s salary for the sixth month of his tenure with defendant was paid almost one month early. However, beginning in the last half of July, defendant’s payroll became irregular and on two occasions plaintiff was issued checks which represented only one-half of a month’s salary rather than the full monthly salary of $3,000.00. During this period of irregular payments, delinquent wages began to accrue. By the time of plaintiff’s discharge, November 30, 1981, the delinquent wages totaled $4,500.00, or one and one-half month’s wages.

According to defendant’s own records, as of November 30th, plaintiff had received $27,000.00 in total salary payments from the defendant for the ten and one-half months he had worked. Simple mathematics shows that, under plaintiff’s terms of employment, $3,000.00 per month, plaintiff should have been paid a total of $31,500.00 for ten and one-half months work. The difference between the amount due plaintiff under the terms of his employment, $31,500.00, and the amount defendant actually paid plaintiff, $27,000.00, equals $4,500.00, which, at $3,000.00 per month, figures to be one and one-half months ar-rearages. The last month and one-half of plaintiff’s employment with defendant covered November and the second half of October. This is the time period specified in plaintiff’s petition. This is also the wages owed under the terms of the employment.

The trial court did not err in overruling defendant’s objection to plaintiff’s introduction of the evidence to prove the wages owed at the time of the termination of the employment. Plaintiff has carried his burden of proof under the statute and the trial judge’s award of $4,500.00 in past due wages and attorney’s fees shall be affirmed.

WAS THE DENIAL OF PENALTY WAGES APPROPRIATE?

LSA-R.S. 23:632 is penal in nature and, axiomatically, must be strictly construed. However, this does not mean that penalty wages will be imposed in every case. There are “equitable defenses” which an employer may raise to avoid the imposition of penalty wages. The theory of “equitable defenses” in the context of 23:632 has been cited in many cases. However, for a proper understanding of this theory we look to a case from this circuit which defined “defenses” under these and similar circumstances. In Becker v. Choate, 204 So.2d 680, 683-684 (La.App. 3rd Cir.1967), [application not considered, not timely filed], writ den., 251 La. 751, 206 So.2d 96 (1968), this court said:

“While cases on this point generally state that R.S. 23:632 is subject to ‘equitable defenses’, we are of the opinion that the word ‘defenses’ does not mean a ‘defense’ in the strict sense of the word. Rather, the tenor of these cases seems to indicate that the court will refuse to assess penalties and attorneys’ fees where the facts of the particular case strongly indicate that greater justice will be attained by such refusal. These facts then become equitable considerations, or ‘defenses’ in a loose sense of the word, which will move the court to deny the penalties.”

In the instant case the trial judge found that an “equitable defense” existed. The judge below correctly pointed out that a business corporation cannot hide behind poor bookkeeping procedures as justification for not making the timely payment of wages required by R.S. 23:631. Then the trial judge went on to find that, in this case, an equitable defense was presented because:

“[T]he present owner of the corporation [Wagner] was a half-owner [sic, should be two-thirds] during most of plaintiff’s employment period. During that time, the other [one-third] owner was the brother-in-law of the plaintiff and the bookkeeper was plaintiff’s sister-in-law. After the present owner consolidated the whole of the business he also inherited its financial problems, many of which he was unaware. Considering that the ‘management’ of the business at the time of this demand was in no better position than the plaintiff in determining the validity of the claim for unpaid wages, the denial was not arbitrarily made."

The trial court seems to indicate that, because these arrearages accrued at a time when plaintiff’s relatives were involved in the defendant corporation’s business, and prior to the time Wagner assumed the management of the defendant corporation, the “management” of the corporation, i.e., Wagner, had an equitable defense. Whether Wagner, personally, had an equitable defense was not before the court. CCCI was plaintiff’s employer. The question before the court was whether the corporate entity, CCCI, had an equitable defense. We conclude that the trial court erred in disallowing penalties.

In the recent case of Powell v. Flotation Services, Inc., 413 So.2d 276 (La.App. 3rd Cir.1982), writ den., 415 So.2d 941 (La.1982), this court said:

“In order for an employer to be liable for penalty wages, the employer must have been motivated by bad faith or must be found to have acted in an arbitrary or unreasonable manner. It is only a ‘good faith non-arbitrary defense to liability for unpaid wages; i.e., a reasonable basis for resisting liability’ which will permit the courts to excuse the employer from the imposition of penalty wages.” (Citations omitted.)

We conclude that CCCI has not presented a reasonable basis for its refusal to pay plaintiff’s wages.

The essence of a corporation is its ability to carry on despite changes in stock ownership. There is no evidence to indicate that anyone at CCCI made any attempt to determine the validity of plaintiff’s claim for unpaid wages after demand was made. CCCI had ample time, after demand, to ascertain whether wages were due. The demand letter to CCCI was dated December 17,1981, and suit was not filed until February 1, 1982. A simple inspection of the corporate books, and consideration of the plaintiff’s tenure with CCCI, would have alerted even the least sophisticated business that wages were due.

“When the failure to pay wages due according to the statute is attributable to neglect or improper pay procedure of an employer, the equitable defense enunciated by the Becker case is not available to an employer.”

McCaskill v. Deviney Construction Company, 323 So.2d 178, 181 (La.App. 3rd Cir. 1975), writs den., 325 So.2d 615 (La.1976).

In the case at hand, there exists a neglect by the supervisory personnel of CCCI to ascertain the existence of wages due as demanded. Such failure of CCCI to timely pay plaintiff’s past due wages as provided by R.S. 23:631 subjects the corporation to the penalty wages provision of R.S. 23:632. The judgment of the trial court will be amended accordingly.

For the reasons assigned, the judgment of the trial court is amended to add penalty wages in the amount of $9,000.00, that being 90 days wages. The remainder of the trial court judgment is affirmed. The costs of this appeal are assessed to defendant-appellant, Cameron Cable & Cordage, Inc.

AMENDED AND AFFIRMED AS AMENDED.

      . LSA-R.S. 23:631 provides:
      “A. Upon the discharge or resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, not later than three days following the date of discharge or resignation. Said payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee’s or laborer’s current address as shown in the employer’s record. In the event payment is made by mail the employer shall be deemed to have made such payment when it is mailed. The timeliness of the mailing may be shown by an official United States postmark or other official documentation from the United States Postal Service.
      B. In the event of a dispute as to the amount due under this Section, the employer shall pay the undisputed portion of the amount due as provided for in Subsection A of this Section.
      C. With respect to interstate common carriers by rail, a legal holiday shall not be considered in computing the three day period provided for in Subsection A of this Section.”
      LSA-R.S. 23:632 provides:
      “Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.”

      . Defendant’s counsel conceded at trial that plaintiffs exhibit P-4 included all payroll checks issued by defendant to plaintiff between February 1, 1981, and October 26, 1981. One other check, in the amount of $1,800.00 written by defendant to plaintiff on November 23,1981, was offered by defendant at trial as being, in part, a salary payment to plaintiff. There was considerable conflict in the testimony concerning the characterization of this $1,800.00 check. Plaintiff contended that the $1,800.00 was part payment for $2,316.77 for expenses he had incurred. Defendant, through Don Wagner, contended the check represented $1,500.00 in salary and $300.00 in expense reimbursement.
      At trial plaintiff produced detailed expense reports which showed that, as of November 23, 1981, defendant owed plaintiff $2,316.77 in expense reimbursements. Plaintiff also introduced a check from Don Wagner to plaintiff dated December 3, 1981, in the amount of $516.77; Wagner acknowledged this check was for expense reimbursement. The trial court apparently accepted plaintiffs explanation of the characterization of the $1,800 as being only for expense reimbursement. We find no error in this finding and note defendant has not challenged this finding on appeal.

      . Plaintiff makes no request in his answer for additional attorney’s fees for this appeal.