text:
    James T. MORRIS v. PARISH RADIO SERVICE COMPANY, INC.
    No. 83 CA 0230.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.

      Ronald G. Coleman, Baton Rouge, for plaintiff-appellee James T. Morris.
    Gary M. O’Neil, Baton Rouge, for defendant-appellant Parish Radio Service Co., Inc.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

This is a suit to collect unpaid compensation and vacation pay from defendant brought by plaintiff, a former employee of defendant’s, pursuant to La.R.S. 23:631. Penalty wages and attorney fees were also sought under La.R.S. 23:632.

From a judgment awarding plaintiff the amount of unpaid compensation, the vacation pay and the attorney fees, but denying penalty wages,, defendant appeals and plaintiff answers that appeal.

FACTS

Plaintiff, James T. Morris, worked for defendant, Parish Radio Service Company, Inc. (“Parish”) for over three years. Plaintiff was paid on an hourly rate, with payment made once a month by Parish. Parish’s employees made occasional climbs on radio towers for which they were paid 50 cents a foot, over and above their regular salaries. Plaintiff claims to have made several of these climbs on a particular tower for which he was never paid. No written records of these climbs were found. Plaintiff did not take a vacation while working for Parish; he claims that Parish owes him pay for the accrued vacation time. Parish contends that no pay is owed for unused vacations under its policies.

The trial court found that plaintiff did make the tower climbs and hence was owed $1,275.00 by defendant. The court also found that plaintiff was owed $495.94 in accrued vacation pay. Parish was found to have had an equitable defense, and therefore no penalty wages were awarded; attorney fees of $1000.00 were awarded to plaintiff, however.

SPECIFICATIONS OF ERROR

The defendant claims that the trial court erred in: 1) finding there was a preponderance of the evidence in favor of plaintiff’s allegations; 2) awarding plaintiff money for the tower climbs because payment for such irregular work is not contemplated under La.R.S. 23:631; 3) finding that plaintiff was owed money for accrued vacation time; 4) awarding plaintiff attorney’s fees; and 5) awarding $1000.00 as those fees.

Plaintiff has answered the appeal, alleging that the trial court erred in: 1) not awarding penalty wages because defendant had an equitable defense; and 2) awarding only $1000.00 in attorney’s fees.

ISSUES

I

In defendant’s first and third assignments of error it asserts that plaintiff failed to prove his case by a preponderance of the evidence. Plaintiff was unable to locate any written evidence in defendant’s files which would corroborate his claim ' that he was owed $1,275.00 for tower climbs and $495.94 for accrued vacation time; furthermore, defendant introduced a written company policy which denied vacation pay unless there was an agreement between the employer and employee.

Plaintiff did produce witnesses who testified that they saw him make the climbs on the Galvez Tower, which was owned by defendant. A former co-worker testified that climbs made on this tower were not invoiced as were climbs made on towers owned by customers, thus explaining the absence of plaintiff’s climbs in the records. Climbs on non-company-owned towers were billed directly to the customers and the employees who climbed were paid from those fees. The defendant paid for climbs on its own tower from its own cash reserves, which were admittedly low.

Plaintiff also introduced written correspondence from, to and between officers of the defendant corporation; he made his claims for the unpaid climbs and vacation pay and they were then acknowledged by the officers, who stated they would pay plaintiff $70 a month for 24 months, which they did not do. The officers stated later that they had taken plaintiff’s word about his not being paid for the climbs.

Defendant introduced a written company policy which appeared to be in effect at the time plaintiff resigned. The policy stated that no payments would be made for vacation time that was not used unless the employer and employee reached an express agreement; there was no evidence of such an agreement. Plaintiff countered this by introducing the former company policy which provided for pay for accrued vacation time as a normal matter. Former co-employees of plaintiff testified that they never saw the policy introduced by defendant, nor did they understand that vacation pay would not be paid. One coworker stated that he received vacation pay upon his resignation, which was six months after plaintiff’s. Thus it appears that the payment for accrued vacation time was customary and still the usual practice despite the new written policy. We find no error.

II

Defendant’s next claim is that La.R.S. 23:631 and 23:632 are inapplicable here because plaintiffs climbs were not wages payable on a hourly, daily, weekly, or monthly basis. Rather, workers were paid 50 cents a foot for climbing the tower.

Defendant argues that since this method of calculating wages is not listed in the statute then that law does not govern here. It cites Gatti v. Southern Research Company, Inc., 271 So.2d 376 (La.App. 2nd Cir.1972) which held that where an employee (an investigator) was paid by the hour but hired for a term (the length of the case), La.R.S. 23:631, before amendment by Acts 1977, No. 317, § 1, did not apply. The Supreme Court in Mason v. Norton, 360 So.2d 178 (La.1978), discussed the Gatti case and other court of appeal decisions. La.R.S. 23:631, which read before the amendment “by the day, week or month,” was held to be referring to an employee’s pay period, and not the method used in calculating wages. Thus, the employee in Mason, who received his hourly wages weekly, could sue under the statute.

The amendment to La.R.S. 23:631, which gave employers three days after termina-' tion to pay, also changed the wording to “... whether the employment is by the hour, day, week, or month....” (emphasis added)

Whether the statute now refers to pay periods or the method of computing wages is immaterial here since plaintiff would fit under either category: his hourly wages were paid to him monthly, i.e. his pay period was monthly and on the other hand his regular wages were calculated by the hour.

The amount plaintiff sued for is “wages,” as it must be for the statute to apply. See Stell v. Caylor, 223 So.2d 423 (La.App. 3rd Cir.1969). The pay for climbing the radio tower was characterized as extra-hazardous duty pay. It was undisputed that employees who made the climbs were owed compensation calculated at 50 cents a foot and were consequently paid that much, regardless of whether the climbs were made on customer-owned towers or the defendant-owned Galvez tower, as was done here. Thus the amount plaintiff sued for is agreed-upon remuneration for services rendered (“wages”).

III

Defendant further contends that since the trial court found it had an equitable defense to the suit, the court erred in awarding attorney’s fees to plaintiff. Reasonable attorney’s fees are to be awarded in the event of a well-founded suit for any unpaid wages, under La.R.S. 23:632, even though penalty wages are not owed because the employer was not in bad faith. Nassauer v. Marine Offshore Catering Company, Inc., 413 So.2d 946 (La.App. 1st Cir.1982). Thus Appellant’s argument is without merit.

IV

Plaintiff’s answer to the appeal contests the trial court’s finding that defendant had an equitable defense to the imposition of penalty wages. The employer must be found to have acted in bad faith or in an arbitrary or unreasonable manner in not paying the wages, for an award of penalty wages to be proper. Nassauer v. Marine Offshore Catering Company, Inc., supra.

The facts here support the trial court. No written records were shown to have existed that would have proven plaintiff’s claim. Thus, there was no proof of bad faith.

V

Both plaintiff and defendant complain about the amount of attorney’s fees awarded ($1,000.00). However, we conclude that the trial court did not abuse its discretion in the award of attorney fees.

Additionally, in answering the appeal, plaintiff requests an increase in attorney fees for work rendered in this court. We conclude that a reasonable fee for service rendered in this court is $600.00, and the judgment will be amended accordingly.

For the above and foregoing reasons, the trial court’s judgment is amended to increase the award for attorney fees by $600.00, and in all other respects the judgment is affirmed. All costs are to be paid by the defendant-appellant.

AMENDED AND AFFIRMED.

      . La.R.S. 23:631 reads:
      "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 records. 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."

      . See Keith v. Little, 434 So.2d 548 (La.App. 2nd Cir.1983), Alexander v. American Food Management, Inc., 424 So.2d 1246 (La.App. 3rd Cir.1982), and Singleton v. Gulf Coast Truck Service, Inc., 409 So.2d 377 (La.App. 4th Cir.1982), all of which hold that Mason’s construction of La.R.S. 23:631 (before amendment) is still valid after amendment. Though an hourly pay period is not inconceivable, in common parlance to be paid “by the hour” means to have one’s wages calculated on an hourly basis. Since "by the hour ...” is at the beginning of the phrase in question, separated from "day, week, or month” by commas, it would seem that the most sensible reading of "by the hour, day, week, or month” would be the method of calculating wages.
      Notwithstanding this, however, the main purpose of the amendment to La.R.S. 23:631 was to give employers more time in which to pay terminated employees and to allow payment by mail. The word "hour” was added in committee by legislators who did not have the benefit of the opinion in Mason. It appeared to be an afterthought and probably was not intended to change the meaning from that found in Mason.

      . La.R.S. 23:632 reads:
      “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.”


source: Caselaw Access Project

author: ALFORD, Judge.

license: Public Domain

text:
    Lawrence MACKIE, Sr. v. CROWN ZELLERBACH CORPORATION.
    No. 83 CA 0233.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.

      Joseph Gladney, Baton Rouge, for plaintiff.
    William A. Norfolk, Baton Rouge, for defendant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

This is a worker’s compensation suit filed by plaintiff-appellee, Lawrence Mackie, Sr., against defendant-appellant, Crown Zeller-bach Corporation, claiming disability as a result of a back injury sustained on June 2, 1980, within the course and scope of his employment.

After a trial on the merits, in an excellent seven page written opinion, the lower court found the plaintiff partially disabled and awarded Mackie appropriate benefits. Penalties and attorney’s fees were denied. The defendant has appealed the judgment in favor of plaintiff alleging only one specification of error. It is Crown Zellerbach’s contention that the trial judge erred in concluding that plaintiff sustained an on-the-job injury. The plaintiff has not appealed the decision below, nor has he answered defendant’s appeal. As such, we are powerless to modify or change the judgment in his favor. La.C.C.P. art. 2133; Gaspard v. Aetna Insurance Company, 390 So.2d 243 (La.App. 3rd Cir.1980), writ denied, 396 So.2d 909 (La.1981). Thus, the only issue on appeal is whether or not the evidence supports the conclusion that plaintiff’s back injury was job related.

We are fortunate on appeal to have at our disposal the trial judge’s written reasons for judgment. These reasons are complete, well-written and adequately describe the factual context of this case and the factors which influenced the trial judge to hold for the plaintiff. As such, we will adopt a considerable portion of the trial judge’s opinion as our own, and quote his opinion as follows:

On the day of the accident, plaintiff reported to work at approximately 7:00 a.m. and received his orders for the day. By 7:15 a.m. the plaintiff testified that he was on the job, beginning by emptying all the trash baskets. After emptying the trash baskets, the plaintiff was going to mop, but the mop bucket was full of dirty water that had been left from the night before. Plaintiff alleges that he injured his back when he lifted this bucket to empty it into the sink. Plaintiff related that this was when he felt a “funny pain across my back” that started a half an inch or more above the belt line in his lower back, and continued around to the bottom of his stomach and onto the thigh of his left leg. After experiencing this pain, plaintiff tried to continue with his work, but the pain was too great.
When plaintiff felt he was unable to continue with his duties, he reported to his foreman, Julius H. Lacey, Jr., and to the nurse at the mill’s first aid office, Elizabeth Turnley, that he was returning home because he did not feel well. When the plaintiff was questioned as to why he did not report that he had received an on the job injury at this time, he responded that he believed that he had just pulled a muscle or had aroused a prior hernia problem, but that with rest he would be better and could return to work.
This “sickness in his stomach” led to numerous medical appointments for the plaintiff, beginning the day following the accident. On June 3, 1980 the plaintiff saw Dr. Jerry Stone and Dr. Alfred Holden, who both examined the plaintiff only to find nothing concerning any hernia symptoms. Nothing was mentioned by the plaintiff to either of these doctors as to the origin of the pain about which he was complaining.
Plaintiff next had an appointment with Dr. James T. Bernard on June 4, 1980 whose report states that the examination performed did not reveal the cause of the plaintiff’s pain and that the condition was not related to employment. The report also states that prolonged rest by the plaintiff from his job might cause the pain being experienced by the plaintiff to subside in order that he can resume his usual work duties. Nothing again was related to this physician concerning the on-the-job accident.
Beginning in the latter part of June, plaintiff had two appointments with a Dr. McKinnon at Ochsner Clinic in New Orleans. This doctor injected some fluid into the area of the plaintiff’s previous hernia surgery to relieve the pain, but was unable to detect the cause of the pain. Testimony by the plaintiff did not reveal any mention of an accident on the job to this physician in order to assist him in locating the cause of the plaintiff’s pain. It seems as though the symptoms and assistance given by the plaintiff to this physician also was limited to the facts and circumstances surrounding the plaintiff’s previous hernia operation, and what he suspected as post problems.
Plaintiff’s next doctor’s appointment was in the first part of August with Dr. John McCutchen in Houston, Texas. Plaintiff had three appointments with this doctor over the course of six weeks, during which time the doctor diagnosed the plaintiff’s condition as having two ruptured discs and performed a disco-gram, a myelogram and x-rays on the plaintiff to confirm this diagnosis. Dr. McCutchen preferred not to perform surgery and directed the plaintiff first to abstain from any activity and later prescribed certain exercises for the plaintiff.
The first time plaintiff mentioned the activities which occurred on June 2, 1980 concerning the lifting of the bucket of water and the resulting pain was to Dr. McCutchen. Prior to being examined by Dr. McCutchen, the plaintiff had been examined by four physicians in an effort to determine the source of his pain. The Court notes the difficulty in rationalizing the reasons for the plaintiff’s silence until months later and can understand the reluctance on the part of the defendant in light of the fact that an accident report was not filed with the plaintiffs foreman as to the on-the-job injury until four or five months after the incident occurred and also after numerous doctors had been consulted. The plaintiff explained that due to the questions asked him by Dr. McCutchen he realized the importance of the events of June 2, 1980 to his present condition and, therefore, described the events thereof to Dr. McCutchen.
On plaintiffs last visit to Dr. McCutchen he was told that he could now do light work. At this time, plaintiff contacted Douglas Robson at Crown Zellerbach, who at that time was the safety coordinator, and explained to him the bucket incident and the resulting pain and back trouble. This was in August of 1980. When asked if there was any light work available at the mill, Robson responded that he did not know of any at this time. Dr. McCutchen had told the plaintiff that driving a taxicab was the type of light work he was referring to, if not done for too long of a period at one time, so plaintiff began driving his brother’s taxicab four to five hours a day.
On November 16, 1980 the plaintiff had the first of five appointments with Dr. Kenneth Vogel of New Orleans. Dr. Vogel was also told of the events of June 2, 1980 by the plaintiff during the course of the examination. In the course of these five appointments, Dr. Vogel confirmed the ruptured disc diagnosis given by Dr. McCutchen and performed surgery on the plaintiff. Dr. Vogel, on December 29, 1980, performed a lumbar laminectomy at plaintiff’s L4-5 and L5-S1 levels and lumbar facet rhizotomy at his L8, L4 and L5 levels.
Concerning the disability suffered by the plaintiff as a result of the ruptured discs, both Dr. Vogel and Dr. R.C. Llewellyn, who examined the plaintiff on January 20, 1982 at the request of the plaintiff’s attorney, found the plaintiff totally disabled for heavy labor, permanent anatomical disability of 15% due to the surgical removal of portions of two discs, and now able to perform light work.
It was Dr. Vogel’s opinion that in all medical probability the incident of June 2, 1980 was the precipitating factor which caused the plaintiff’s subsequent pain and resulted in the necessity for surgery. Dr. Llewellyn also agreed that picking up a heavy bucket of water could have brought on the major disc problems experienced by the plaintiff.
Also of importance to the Court was the testimony of Elizabeth Turnley, the Crown Zellerbach nurse, who related to the Court that on June 2, 1980 when the plaintiff reported he was going home because he was not feeling well, he was holding his lower abdomen. Mrs. Turn-ley stated that she could recognize manifestations of pain, and the plaintiff appeared to be in pain in the groin area.
Various friends and relatives testified on behalf of the plaintiff and the conditions they observed. Bennett Mackie, Sr., plaintiff’s brother, testified that on June 2, 1980 when asked why he was at home the plaintiff said that he was in pain because he had lifted something heavy at work. Andrew Hargrove, plaintiff’s cousin, stated that he sees plaintiff two to three, times a week, and that the day after the accident the plaintiff told him that he had reinjured his hernia when he was attempting to empty a bucket of water at work. Thomas Joseph, a friend of the plaintiff for ten years, testified that when he spoke to the plaintiff about ten days after the June 2, 1980 incident, plaintiff told him that he had sustained an injury to his back at work when he lifted something heavy, and later identified this heavy object as a bucket of mop water. Annette Mackie, plaintiff’s wife, testified that when the plaintiff returned home on the morning of June 2, 1980 holding his abdomen, he told her he was attempting to lift a bucket of mop water when he felt a funny pain on his side. He told her that he tried to keep working but the pain continued and he could not continue with his work.
Each of the above witnesses testified that the plaintiff’s complaints of pain have continued up until the present, although have decreased somewhat since the December surgery.
During the course of the trial, much was said about the fact that the plaintiff did not report an on-the-job accident until November 21, 1980 when Crown Zeller-bach received the first report from the plaintiff. Douglas Robson testified that Crown Zellerbach could not accept plaintiff’s injury as a workmen’s compensation injury in view of the fact that an accident report was not given at the time of the alleged injury, or nothing said until months thereafter, and the fact that the doctors’ reports received by Crown Zellerbach stated that examinations performed on the plaintiff did not reveal the cause of plaintiff’s pain and there is no history of a distinct back injury. This silence on the part of the plaintiff concerning his injury to his employer is truly strange in light of the fact that numerous friends and relatives testified about their knowledge of the bucket lifting incident within a few days of June 2, 1980. Questions may also rise as to why the plaintiff failed to mention to his foreman or to the nurse on the day he left work the pain he suffered after lifting the bucket of mop water, but instead related that he did not feel well and held his groin area. Testimony by the plaintiff revealed that it seemed perfectly reasonable and acceptable to him that the pain he was suffering stemmed from a prior hernia, and thus a few days rest was all he required before he would be able to resume his usual work duties. This prior hernia history could also account for the failure of the first few doctors who were consulted to suggest more extensive examinations to find the source of the plaintiff’s pain even when their treatment seemed to give no relief.
It is the opinion of this Court that the plaintiff did suffer an injury while on the job, which injury has rendered him partially disabled to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he is fitted by education, training and experience. This determination by the Court is also reasonable when considered in light of the plaintiff’s approximately ten years of service as a laborer at Crown Zellerbach and the fact that manifestations of pain were observed by the nurse when the plaintiff left work on June 2, 1980. This conclusion is also consistent with the failure of the plaintiff to report his on the job accident to his employer when one considers his past hernia difficulties and the failure of numerous doctors to pinpoint the true source of the plaintiff’s pain.
In essence, we are dealing with the fact of accomplished disc surgery, ten years of previous heavy labor at Crown Zellerbach, an acute pain and its manifestation to the trained nurse on the date in question and no indication that injury resulted from other sources. It is a very close case because of the events following the injury, but on the standard “more likely than not” plaintiff has sustained his burden.
Attorney fees and penalties will be denied.

On appeal, the appellant presents only one issue for our consideration: whether or not the plaintiff proved a compensable accident in the course and scope of his employment with the defendant. We think he did and we think the trial judge’s determination in this respect is supported by the evidence.

The appellant submits that the defendant’s story as to the occurrence of the accident is not to be believed. Yet, the trial judge felt as if the evidence presented supported the plaintiff’s version of the facts and we do not feel as if we are in a better position to judge the witnesses’ credibility than the district court. It is well settled that in a worker’s compensation proceeding, the reviewing court must give great weight to the factual conclusions arrived at by the trier of fact, and the reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even though the appellate court may feel that its own evaluations and inferences are as reasonable. Clinton v. American Mutual Inability Insurance Co., 422 So.2d 570 (La.App. 3rd Cir.1982). We have read the transcript and the numerous depositions, reports and other exhibits in this case and we feel the trial judge’s evaluations and inferences are not only reasonable, but are quite correct.

Appellant’s chief defense is that the plaintiff did not report the existence of an accident and resulting injury to the nurse when he left the mill for the day. The trial judge adequately addressed this issue. We will simply add that the potential worker’s compensation claimant should not be barred from recovery because he does not realize or diagnose the full extent of his injury immediately after its occurrence. In this case, the plaintiff’s explanation of the accident and his subsequent behavior seem to us entirely reasonable in light of plaintiff’s prior hernia operations.

La.R.S. 23:1021(1) defines “accident” for purposes of Louisiana worker’s compensation law as:

[A]n unexpected or unforseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.

Although the issue may have been close in this case, we think the lower court’s resolution of the controversy in plaintiff’s favor is supported by the evidence. Our review of the entire record convinces us that the district court was not clearly wrong in finding that plaintiff succeeded in proving, by a preponderance of the evidence, the occurrence of a work-related accident. Accordingly, we find no manifest error in the district court’s judgment. Arceneaux v. Domingue, 365 So. 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

For the foregoing reasons, the judgment of the district court is affirmed. Costs of this appeal are to be borne by defendant-appellant.

AFFIRMED.


author: CRAIN, Judge.

text:
    LINCOLN BIG THREE, INC. v. W.G. “Bill” THOMAS, et al.
    No. 83 CA 0239.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.

      John B. Williams, Baton Rouge, for plaintiff.
    Kim P. Stansbury, Morgan City, for defendants.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This appeal is from a judgment of the trial court which dismissed plaintiff’s suit seeking rental and replacement costs of cylinders belonging to plaintiff, delivered to and allegedly unreturned by defendant. Plaintiff appealed.

This is a suit termed a suit on open account arising from the sale of oxygen and acetylene by plaintiff, Lincoln Big Three, Inc. (Lincoln), to the defendant, W.G. “Bill” Thomas, B.A. Favret and B.T. Oilfield Services, Inc. (B.T.). Plaintiff stipulated the dismissal of the individual defendants and proceeded only against the corporation, B.T.

Lincoln is in the business of selling welding supplies, and B.T. was engaged in the fabrication business requiring the use of welding supplies- including oxygen and acetylene gas. The gases were sold in cylinders owned by Lincoln. The cylinders were rented to the customer with Lincoln retaining ownership. The dispute giving rise to this lawsuit concerns cylinders which Lincoln alleges were not returned and for which B.T. should have to pay under the terms of the contract between the parties.

Until May of 1977, B.T. was engaged in the offshore and onshore oilfield fabrication business which was operated from various locations. In the course of business B.T. would request Lincoln to supply gases contained in cylinders. Lincoln would deliver the number of cylinders requested at designated places. If the filled cylinders were replacements for empty cylinders, the empty cylinders were picked up by Lincoln at the request of B.T. Lincoln would also pick up empty cylinders which were not replacement cylinders at the request of B.T. B.T. paid for the gas it used out of the cylinders and paid a daily rental for use of the cylinders from the day of delivery to the day Lincoln was called to pick up the cylinders. This was standard business practice, as well as the custom in the fabrication industry. In many cases cylinders were delivered and picked up at places other than the user’s place of business. Lincoln had specially designed trucks for delivery and pick-up of its cylinders and had special forms and procedures established for recording pick-up of its cylinders.

B.T. alleges that it notified Lincoln that it was shutting down its fabrication business, that it would not need any refilled cylinders, and that all the cylinders should be picked up by Lincoln. B.T. was never notified that the cylinders were not picked up by Lincoln as instructed until it received an invoice from Lincoln for the rental of forty-two cylinders. B.T. objected to the invoice and notified Lincoln that there were no cylinders in B.T.’s possession and that it had instructed Lincoln to pick up all of the cylinders it had delivered. However, Lincoln continuously invoiced B.T. for the rental of forty-two cylinders.

Lincoln subsequently filed suit against B.T. alleging B.T. owed the sum of $1,712.20 for the rental of forty-two cylinders for a IV2 year period. Lincoln also alleged in its petition that B.T. was responsible for the replacement of forty-two cylinders at a cost of $6,767.04. Attached to Lincoln’s petition was an affidavit from Ronald Wayne Shaffer, a representative of Lincoln, stating that he was familiar with Lincoln’s books and records and that the records showed that forty-two cylinders delivered to B.T. had not been picked up by Lincoln. Despite the insistence by B.T. that Lincoln’s records were in error, Lincoln maintained its records were accurate and the debt owed by B.T. for the rental and replacement of forty-two cylinders was correct.

In preparation for trial it was discovered by Lincoln that B.T. had not been given credit for some cylinders which had been returned. At trial Lincolh introduced business records which allegedly indicated that only nineteen cylinders were unaccounted for instead of forty-two. The dollar amount sued for was reduced to $2,975.93 for replacement of unreturned cylinders and $916.01 for rental on unreturned cylinders.

After trial on the merits, the trial judge in oral reasons held that there probably had been a loss by Lincoln due to unre-turned cylinders but that he could not attribute any of the loss to B.T., and additionally the evidence was insufficient to establish the value or number of missing cylinders. Judgment was then signed dismissing Lincoln’s suit. Lincoln claims on appeal that this was error. We affirm.

Lincoln contends that the responsibility of B.T. for the missing cylinders was established from Lincoln’s business records as testified to by Mr. Ronald Shaffer. Lincoln contends that its business records establish that B.T. owes rental and replacement costs on nineteen cylinders. Lincoln argues that B.T., has no records of the number of cylinders received or the number of cylinders returned to Lincoln and therefore under the terms of the contract is liable for the rental of the cylinders.

The shipping orders (the contract between the parties) provided that: “(2) Customer shall and must return each cylinder and container, and all fittings and attachments thereto, when empty, safely at customer’s cost and expense, to the distributing station of seller from which the same were shipped originally.”

The standard business practice in the fabrication industry, which was adhered to by Lincoln and B.T., is that the user notifies the seller of the amount of gas it needs and the place for the gas to be delivered. The seller then delivers the gas in the cylinders to the place designated by the user and at the same time picks up any empty cylinders. This establishes a course of dealing. La.R.S. 10:1-205(3).

A course of dealing is allowed to give particular meaning to and supplement or qualify terms of an agreement. The course of dealing between Lincoln and B.T. qualifies the terms of the contract to allow the distributing station (place where cylinders are to be picked up) to be the place designated by the user (B.T.). Accordingly, we hold that B.T. has not breached any written obligation owed to Lincoln.

There remains the issue of whether or not the business records introduced by Lincoln sufficiently establish responsibility for the allegedly missing cylinders. The trial judge was not convinced by Lincoln’s business records that B.T. is responsible. We find no manifest error in this conclusion.

Mr. Shaffer, credit manager for Lincoln, testified that the procedure for picking up cylinders for return is for the truck driver for Lincoln to go to the designated dock and pick up the empty cylinders. More than one Lincoln customer would use the same dock. At the dock, the truck driver requires someone to sign a cylinder receipt form. The form, however, does not signify which of Lincoln’s customers using the same dock are credited for the returned cylinders. The only evidence of which returned cylinders should have been credited to a particular customer’s account would be the testimony of the particular truck driver who serviced the dock used by B.T.

As in any civil case, plaintiff has the burden of proving each and every essential element of its claim by a preponderance of the evidence. Meyer v. State, Dept. of Public Safety License Control and Driver Improvement Div., 312 So.2d 289 (La.1975). The identity of the customer responsible for the missing cylinders is an essential element to Lincoln’s claim. Absent the truck driver’s testimony, we find that the trial court was not manifestly erroneous in finding that Lincoln had failed to establish by a preponderance of the evidence the responsibility of B.T. for the missing cylinders. Canter v. Koehring Co., 283 So.2d 716 (La.1973). Therefore, Lincoln’s first assignment of error is without merit.

Lincoln argues the court erred when it refused to apply the account rendered rule that failure to object within a reasonable time to an account rendered is regarded as an admission of its correctness by the party charged.

William G. Thomas, Sr., president of B.T., testified that after he received the invoices from Lincoln showing B.T. still possessed forty-two cylinders, he called Lincoln on several occasions informing Lincoln that all cylinders had been returned. Although the trial judge acknowledged that there were no letters of protest written by Thomas to document the denial of this account, he found that B.T. did in fact object to the invoices. We find no manifest error.

For the foregoing reasons, we affirm the judgment of the trial court. The trial judge assessed costs equally between the parties. Since neither party assigned as error the assessment of costs, we affirm the costs incurred at the trial level. However, we assess all appeal costs to the appellant.

Affirmed.


author: WATKINS, Judge.

text:
    Mrs. Elizabeth CONGELTON v. BATON ROUGE GENERAL HOSPITAL.
    No. 83 CA 0241.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Rehearing Denied Jan. 19, 1984.
    Walker P. Macmurdo, Baton Rouge, for plaintiff-appellee Mrs. Elizabeth Congelton.
    Felix Weill, Baton Rouge, for defendant-appellant Baton Rouge General Hosp.

      Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Elizabeth Congelton filed suit against Baton Rouge General Hospital for an injury sustained during a phlebotomy performed in the hospital’s blood bank. The trial court found the hospital liable and it appeals. Plaintiff answered .the appeal seeking an increase in damages.

The primary issue for our determination is whether the trial court erred in applying the doctrine of res ipsa loquitur.

On June 12, 1980, plaintiff went to the blood bank of Baton Rouge General Hospital to donate blood for a fellow employee at Ethyl Corporation. She was interviewed by Georgia Hardesty, the technician who performed the phlebotomy, and placed in a donor chair. She informed Hardesty that she had given blood previously and that the left arm had worked best. Hardesty then placed a tourniquet on the arm, inserted the needle, and began drawing blood.

There is some disagreement about when plaintiff began to complain of pain. Plaintiff testified that she immediately told Har-desty that she was experiencing pain. Hardesty testified that plaintiff did not complain until the phlebotomy was almost completed. However, the testimony is in agreement that when plaintiff complained of pain Hardesty repositioned the needle and adjusted the tourniquet. Hardesty repositioned the needle a second time when plaintiff complained of tingling and numbness in her arm. The testimony is also in agreement that when plaintiff informed Hardesty of the pain, Hardesty offered to remove the needle. However, plaintiff decided to complete the phlebotomy.

When the phlebotomy was completed plaintiff complained that her arm was still numb. Hardesty told her to call back the next day if the condition persisted. The next day plaintiff called the hospital and spoke to Norma Bender, the supervisor of the blood bank. Bender told plaintiff to return to the hospital to permit Dr. Robert Ward of the hospital’s pathology department to examine her. Subsequently she was advised to see Dr. John Hopper, a neurologist.

Dr. Hopper concluded that plaintiff sustained an injury to the left antebrachial cutaneous nerve. His diagnosis was confirmed by Dr. Richard Gold, a neurologist who performed an electromyogram on the nerve.

The trial court concluded that the doctrine of res ipsa loquitur was applicable and that the hospital failed to rebut the inference of negligence thus imposed, and awarded plaintiff $5,466.24 for her injury.

The doctrine of res ipsa loquitur is a rule of circumstantial evidence whereby a defendant’s negligence is inferred when the facts indicate that such negligence is the most probable cause of the injury. Walker v. Union Oil Mill, Inc., 869 So.2d 1043 (La.1979). The doctrine of res ipsa loquitur applies when: the accident would not normally occur in the absence of negligence, there exists an absence of direct evidence to explain the activities leading to the injury, and the accident or injury was caused by an agency or instrumentality within the actual or constructive control of the defendant. Sabella v. Baton Rouge General Hospital, 408 So.2d 382 (La.App. 1st Cir.1981).

We find that the trial court erred in applying res ipsa loquitur to the facts of this case. It was undisputed that plaintiff’s injury was caused when the needle struck the nerve in her arm. Therefore, there was direct evidence to explain the activities leading to the injury, rendering the doctrine of res ipsa loquitur inapplicable.

Additionally, all of the medical testimony adduced at trial indicated that plaintiff’s injury could have occurred in the absence of negligence. The medical testimony is best reflected by that of Dr. Vance Byars, who served on the medical review panel in this case. He testified that it was standard medical procedure to reposition the needle as Hardesty did when a patient complains of pain and that an injury of this type could happen even with the best medical technique.

We note that the injury suffered by plaintiff was highly unusual and extremely rare. Dr. Byars testified that he has performed over 30,000 venipunctures in his lifetime and has never heard of an injury of this type. Mrs. Bender, who has worked in blood banks for approximately thirty-six years, testified that she has never heard of a nerve being damaged during a phlebotomy. However, the unusual nature of plaintiff’s injury does not alone justify the application of res ipsa loquitur, because the great weight of the testimony shows clearly that the negligence of the hospital was not the most plausible explanation of the injury to plaintiff. Brocato v. Leggio, 393 So.2d 183 (La.App. 1st Cir.1980), writ denied, 398 So.2d 530 (La.1981).

Since plaintiff is not entitled to the benefit of the application of the doctrine of res ipsa loquitur, the negligence on the part of the hospital must have been proven by a preponderance of the evidence. This she has failed to do. The evidence clearly establishes that there was no substandard conduct or negligence on the part of the personnel of the hospital in the performance of the phlebotomy. It was very unfortunate that Mrs. Congelton suffered an injury which very rarely occurs to blood donors. But the evidence shows that the hospital discharged its obligation to exercise due care in accordance with recognized standards for this procedure. The hospital, therefore, is not liable to plaintiff under the law.

For the foregoing reasons, the judgment of the trial court is reversed. All costs of this appeal are assessed against plaintiff-appellee.

REVERSED.


author: PONDER, Judge.

text:
    Gary Lynn FOGG v. David LOTT, D/B/A Slidell Hotel Bar, and Tommy Barnes.
    No. 83 CA 0242.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.

      Joseph Anderson, Jr., Slidell, for plaintiff, appellant.
    L.J. McCreary, Slidell, for defendant, ap-pellee.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Plaintiff appealed the judgment awarding him damages for injuries sustained as the result of a battery.

The issues are the employer’s liability, quantum and the expert witness fee.

We reverse in part and amend and affirm in part.

Plaintiff was prevented from entering the Slidell Hotel Bar by the defendant, Tommy Barnes, one of the doormen at the bar, because of his dress. After plaintiff continued to try to gain admittance despite repeated requests to leave, during which time other patrons were hindered from entering and leaving the premises, Barnes escorted plaintiff and other members of his party out the front door. During further discussion outside, Barnes hit plaintiff in the face causing him to fall to the ground. Plaintiff was admitted to Slidell Memorial Hospital that morning and released later that same day.

The trial court granted judgment in favor of plaintiff against Tommy Barnes in the amount of $350.00, but found that the defendant, David Lott Enterprises, Ltd., d/b/a Slidell Hotel Bar, should not be held vicariously liable for the actions of its employee since the battery occurred outside the bar and prior to plaintiff becoming a patron of the bar. The court also found some personal animosity between plaintiff and Barnes which resulted from Barnes allegedly making a pass at plaintiffs wife on an earlier occasion.

Plaintiff initially alleges that at the time of the battery Barnes was acting within the scope of his employment; that among the duties assigned to doormen working at the bar was the enforcement of the dress code, which included denying admittance to any individual wearing blue jeans.

Defendant, David Lott Enterprises, Ltd., argues that since the doormen are instructed not to use force, Barnes was acting in violation of his employer’s rules and regulations, negating any liability on the part of the employer.

An employer is liable for a tort committed by his employee if, at the time of the tort, the employee is acting within the scope of his employment. La.C.C. art. 2320; LeBrane v. Lewis, 292 So.2d 216 (La.1974).

The mere fact that an employee violates his employer’s express orders and instructions is not conclusive of the issue of scope of employment. The determination depends upon the particular facts and circumstances of each case. Poydras v. Parker, 392 So.2d 94 (La.App. 1st Cir.1980); Cain v. Doe, 378 So.2d 549 (La.App. 4th Cir.1979). We find that Barnes was acting within the scope of his employment.

Defendant further argues, however, that the battery took place outside the bar before plaintiff ever became a patron and that it was motivated by personal reasons.

When an employee’s tortious conduct is closely related in time, place and causation with his employment duties, the risk of harm is fairly imputable to the employer’s business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s interests. LeBrane v. Lewis, supra; Cain v. Doe, supra.

The dispute which resulted in Barnes hitting plaintiff was primarily employment-rooted. It began in connection with Barnes’ attempts to enforce the dress code and plaintiff’s desire to enter the bar. The dispute began on the employment premises during business hours. The actual battery took place just outside the bar immediately after plaintiff was ejected by Barnes in the performance of his employment duties.

Because the tortious conduct was reasonably incidental to the performance of Barnes' duties as a doorman and was not based on purely personal considerations, David Lott Enterprises, Ltd., as Barnes’ employer, is solidarily liable with Barnes for the damages sustained as a result of the battery.

Dr. Jack R. Diamond, plaintiff’s treating physician, testified by deposition in lieu of a court appearance. He stated that on his instructions, plaintiff was admitted to the hospital for observation but that the emergency room physician first examined plaintiff.

When Dr. Diamond saw plaintiff at about 8:00 a.m. that morning, he was conscious and well-oriented. He had a lump on the back of his head, but there were no other significant findings. Dr. Diamond noted that plaintiff probably sustained a mild cerebral concussion and ordered tests, which were normal. Dr. Diamond discharged plaintiff that date to be followed up in his office should plaintiff have further trouble.

Four days after the battery, plaintiff went to Dr. Diamond’s office with complaints of headache, which Dr. Diamond believed to be post-concussion headache. Plaintiff was told to return in one month if the headaches persisted.

A little more than one month later, plaintiff complained of pain localized in the right temporal area. Dr. Diamond stated that was not very typical and ordered an electroencephalogram. The EEG was normal.

Dr. Diamond has not seen plaintiff since that time for his headaches.

The trial court awarded $350.00 in damages. No itemization was made, but a review of the court’s oral reasons for judgment makes us believe the award was for general damages. We find no abuse of discretion in that award.

Plaintiff complains, however, that he was denied recovery for medical expenses and lost wages.

Plaintiff introduced a copy of the hospital bill dated the day of the battery in the amount of $262.00. A copy of the bill for the EEG in the amount of $100.00 was also introduced. Dr. Diamond testified that he charged plaintiff $15.23 for the first office visit. The statement was attached to the deposition. We find the evidence sufficient to allow recovery in those amounts, total-ling $377.23.

Plaintiff testified that as a result of being hit, his glasses were knocked off, marring the lenses, breaking the nose piece and bending the frame. He testified he wore them for a while but eventually had to replace them.

Plaintiff introduced into evidence a check dated six months after the battery, in the amount of $25.00, made payable to his optometrist for his lens prescription. He also testified that the new glasses cost him about $37.00 or $38.00.

The burden of proving both the existence of the damage and the causal connection rests with the plaintiff. Such proof must be shown to a legal certainty and by a reasonable preponderance of the evidence. A mere possibility is insufficient. Villavaso v. State Farm Mutual Automobile Insurance Company, 424 So.2d 536 (La.App. 4th Cir.1982); Stevens v. Gulf American Fire and Casualty Company, 317 So.2d 199 (La.App. 1st Cir.), writ denied, 321 So.2d 363 (La.1975).

We find no manifest error in denying this item of damages.

Plaintiff also testified he missed three days of work because of the battery. He stated he was paid by the hour and also received a commission, but could not remember what he was making per hour at that time. Plaintiff did state it was about $50.00 per day.

Plaintiff did not introduce employment records, paycheck stubs or any other corroborative evidence to support his claim. We find no error in denying recovery for lost wages. Britten v. Payne, 381 So.2d 855 (La.App. 1st Cir.), writ denied, 384 So.2d 800 (La.1980); Boyles v. Bridgeman, 342 So.2d 1150 (La.App. 1st Cir.1977).

Plaintiff next alleges the trial court erred in fixing the expert witness fee of Dr. Diamond in the amount of $50.00, as the doctor’s standard fee for giving a deposition is $350.00.

The amount of the fee of an expert witness is within the discretion of the trial court and will not be set aside absent an abuse of discretion. La.R.S. 13:3666; D’Angelo v. New Orleans Public Service, Inc., 405 So.2d 1262 (La.App. 4th Cir.), writ denied, 407 So.2d 748 (La.1981). The amount charged by the expert is not conclusive in fixing the amount. State, Department of Highways v. Kornman, 336 So.2d 220 (La.App. 1st Cir.1976).

Dr. Diamond’s deposition was no more than eleven pages long and consisted primarily of reading plaintiff’s medical record. While $50.00 is low, we do not find an abuse of discretion.

For the foregoing reasons, the judgment of the trial court is reversed insofar as it dismissed plaintiff’s demands against David Lott Enterprises, Ltd. The judgment is amended so as to hold this defendant solidarily liable with the defendant, Tommy Barnes, to the plaintiff in the amount of $727.23. In all other respects, the judgment is affirmed. Defendants are to pay all costs.

REVERSED IN PART AND AMENDED AND AFFIRMED IN PART.

      . Service was made upon Barnes but he could not be located and was not subpoenaed for trial. He has not answered the petition and a preliminary default had previously been entered against him.

        . La.C.C. art. 2320:
      Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.
      Teachers and artisans are answerable for the damage caused by their scholars or apprentices, while under their superintendence.
      In the above cases, responsibility only attaches, when the masters or employers, teachers and artisans, might have prevented the act which caused the damage, and have not done it.

      . La.R.S. 13:3666:
      A. Witnesses called to testify in court only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examinations, and to state the results thereof, shall receive additional compensation, to be fixed by the court, with reference to the value of time employed and the degree of learning or skill required.
      B. The court shall determine the amount of the fees of said expert witnesses which are to be taxed as costs to be paid by the party cast in judgment either:
      (1) from the testimony adduced upon the trial of the cause, the court shall determine the amount thereof and include same or,
      (2) by rule to show cause brought by the party in whose favor a judgment is rendered against the party cast in judgment for the purpose of determining the amount of the expert fees to be paid by the party cast in judgment, which rule upon being made absolute by the trial court shall form a part of the final judgment in the cause.
      C.In either manner provided in Subsection B, the court shall also determine and tax as costs, to be paid by the party cast in judgment, the reasonable and necessary cost of medical reports and copies of hospital records.


text:
    Sheila L. MAXIE v. JUBAN LUMBER COMPANY.
    No. 83 CA 0243.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.

      ■ Paula Cobb, Ltd., Baton Rouge, for plaintiff/appellant.
    Joseph Juban, Baton Rouge, for defendant/appellee.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

The trial court rendered judgment ordering defendant Juban Lumber Company (Ju-ban) to return plaintiff Sheila Maxie’s $100.00 rental deposit, but denying attorney’s fees and damages. Plaintiff appeals.

On May 9, 1980, Mrs. Sheila Maxie paid Juban $100.00 as a deposit on a rental house. On May 26, 1980, Mrs. Maxie also signed a document furnished by Juban which set forth five conditions precedent to the return of her security deposit. One of those conditions required two weeks’ notice before leaving. Mrs. Maxie later moved into another of Juban’s rental houses, and her original security deposit was transferred to the new rental.

On May 18, 1982, Mrs. Maxie gave notice to Juban’s rental manager, Mrs. Prescott, that she would be moving out of the house on June 1, 1982. However, because Mrs. Maxie was moving to a house which was not yet completed, she asked and was allowed to continue renting after May 31, 1982, on a week-to-week basis. This arrangement continued until June 19,1982, at which point she was allowed to pay $17 for her last three days rent. She returned the key and vacated the house on the 21st day of June.

Mrs. Maxie first asked for her deposit back either on the 19th or 22nd of June. She was informed by Mrs. Prescott that it would take a few weeks. Mrs. Maxie continued to call and inquire about it weekly until Mrs. Prescott finally told her the deposit was not going to be returned at all due to Mrs. Maxie’s failure to give two weeks’ notice of leaving.

On September 28, 1982, Mrs. Maxie filed suit against Juban demanding her deposit back, plus damages and attorney’s fees. After trial on the merits, the court awarded Mrs. Maxie her $100.00 deposit back, but denied attorney’s fees and damages. From that judgment Mrs. Maxie appeals, assigning as error the trial court’s denial of attorney’s fees and damages.

La.R.S. 9:3251 provides that a deposit of money by a lessee to secure the performance of any part of a lease shall be returned to the lessee within one month after the lease terminates with the exception that a lessor may retain all or any portion of the deposit reasonably necessary to remedy a default of the tenant. In the event the lessor retains the deposit, the lessor must forward to the lessee within one month of the date the tenancy terminated, an itemized statement accounting for the proceeds which are retained and the reasons therefor. “Willful failure” to comply with La.R.S. 9:3251 by the lessor, gives the lessee the right to recover damages. Failure to remit within thirty days after written demand for a refund constitutes “willful failure”. La.R.S. 9:3252. The court may in its discretion award costs and attorney’s fees. La.R.S. 9:3253.

Juban never sent Mrs. Maxie the itemized statement accounting for her deposit as required by La.R.S. 9:3251. Even if there is a valid dispute over a lease, the lessor must comply with this section or suffer the penalties provided under La.R.S. 9:3252 and La.R.S. 9:3253. Altazin v. Pirello, 391 So.2d 1267 (La.App. 1st Cir.1980). However, in order to recover damages for willful failure to comply with La.R.S. 9:3251, the lessee must have made written demand upon the lessor. La.R.S. 9:3252; Trapani v. Morgan, 426 So.2d 285 (La.App. 4th Cir.1983), writ denied, 433 So.2d 165 (La.1983). Mrs. Maxie did not make written demand upon Juban, therefore the trial judge was correct in denying her claim for damages.

Appellant also assigns as error the trial court’s denial of attorney’s fees under La.R.S. 9:3253. That statute allows the court in its discretion to award attorney’s fees to the prevailing party in an action under La.R.S. 9:3252. Since we agree with the trial court’s determination that appellant is not entitled to damages under La. R.S. 9:3252, La.R.S. 9:3253 is inapplicable, and the trial court properly denied attorney’s fees.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs are to be paid by the appellant.

AFFIRMED.


text:
    Theodore J. JEMISON, Jr. v. Isaac B. GREGGS.
    No. 83 CA 0245.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.

      Jack M. Dampf, Baton Rouge, for plaintiff-appellee Theodore J. Jemison, Jr.
    Vanue B. Lacour, Baton Rouge, for defendant-appellant Isaac B. Greggs.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Plaintiff, Theodore J. Jemison, Jr., filed suit against defendant, Isaac B. Greggs, for return of the purchase price and other damages when an automobile which defendant sold to plaintiff turned out to be stolen. The trial court awarded plaintiff $17,830.50 and defendant appeals.

Defendant, who is director of bands at Southern University, testified that after performing a concert in Chicago in 1978, he was approached by an individual who claimed to be a used car dealer. This person showed defendant a silver Mercedes Benz and told defendant that he could supply him with one for $14,700.00. Defendant indicated that he was interested and the “dealer” agreed to contact him when one was available.

About three months later, defendant received a telephone call from the “dealer” who advised him that a car was available. Defendant indicated that he was still interested and shortly thereafter a brown 1978 Mercedes Benz 450 SL was delivered to defendant at his home in Baton Rouge. The automobile was left with defendant together with Illinois registration papers and a bill of sale in defendant’s name. Defendant testified that his signature on the bill of sale had been forged.

Defendant decided that he did not want the brown Mercedes, so he contacted plaintiff and offered to sell him the car for $14,700.00. In order to secure funds for the purchase, plaintiff obtained a loan from Fidelity National Bank in Baton Rouge. Defendant and plaintiff went to the bank where the transfer papers were signed.

The Mercedes was later found to be stolen and was seized by law enforcement agents. Defendant returned $6,000.00 of the purchase price to plaintiff but refused to make any further payments. Plaintiff later acquired the car from the true owner.

The trial court awarded plaintiff $17,-830.50. Damages were itemized as $14,-700.00 for the purchase price, $885.97 for tax and license, and $8,244.53 in interest on the loan less the $6,000.00 which defendant returned to plaintiff.

In his first specification of error, defendant contends that the trial court erred in finding that he was the seller of the automobile and not merely a “party interposed”. Defendant also contends that the trial court erred in failing to conclude that plaintiff purchased the car at his own risk and peril.

We cannot agree with defendant’s first contention. The testimony at trial shows that at all times defendant acted as owner of the car. There is no testimony in the record indicating that defendant informed plaintiff that he was acting on behalf of another party. Defendant testified that he delivered the registration papers and bill of sale, both of which were in his name, to plaintiff at the time of the sale. Plaintiff testified that he dealt only with defendant and never spoke to any other person about the sale.

We also find no merit to defendant’s contention that plaintiff purchased the automobile at his own risk and peril. Defendant claims that because plaintiff was an automobile salesman he should have been aware of any defects in the title and that Civil Code Article 2505 therefore applies.

We find that Article 2505 is not applicable. There was no testimony indicating the plaintiff waived the warranty or that he had any knowledge of defects in the title. Further, defendant testified that although his signature on the original bill of sale was forged he did not inform plaintiff of this fact.

Defendant next contends that the trial court erred in awarding plaintiff the interest paid on the loan which plaintiff obtained to purchase the automobile. Defendant argues that the loan was an independent undertaking by plaintiff over which defendant had no control.

Civil Code Article 2501 defines the vendor’s warranty against eviction:

“Although at the time of the sale no stipulations have been made respecting the warranty, the seller is obliged, of course, to warrant the buyer against the eviction suffered by him from the totality or part of the thing sold, and against the charges claimed on such thing, which were not declared at the time of the sale.”

Article 2506 provides for damages in the event of eviction:

“When there is a promise of warranty, or when no stipulation was made on that subject, if the buyer be evicted, he has a right to claim against the seller:
1. The restitution of the price.
2. That of the fruits or revenues, when he is obliged to return them to the owner who evicts him.
3. All the costs occasioned, either by the suit in warranty on the part of the buyer, or by that brought by the original plaintiff.
4. The damages, when he has suffered any, besides the price that he has paid.”

We conclude that plaintiff is entitled to recover the interest paid on the loan under subsection (4) of Article 2506. Plaintiff testified that he obtained the loan in order to purchase the automobile. Additionally, defendant testified that he accompanied plaintiff to the bank and. was aware that plaintiff had to obtain a loan in order to purchase the car.

In a redhibition action, the buyer may recover from the seller finance charges incidental to the purchase price as an expense of the sale. Smith v. Max Thieme Chevrolet Company, Inc., 315 So.2d 82 (La.App. 2nd Cir.1975). We can see no reason why finance charges cannot also be recovered in an action for breach of the warranty against eviction.

We also find no error in the trial court’s calculation of the interest paid on the loan. Dudley McElveen, a senior vice-president in commercial loans for Fidelity National Bank, testified that the interest paid on the loan up to December 7, 1982, the date of trial, was $8,244.53. Defendant offered no evidence to contradict this testimony.

Defendant next argues that the trial court erred in excluding as hearsay statements made by the unidentified “dealer” to defendant during initial negotiations for the purchase of the car. Defendant contends that the statements were not offered to prove the truth of the matters asserted therein and were highly relevant.

Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of the matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. Veal v. Hutchinson, 284 So.2d 60 (La.App. 4th Cir.1973), writ denied, 286 So.2d 662 (La.1973). The trial court permitted defendant to proffer the testimony in question. We have examined the proffered testimony and find no error in the trial court’s conclusion that the statements were offered to prove the truth of the matters asserted. Further, we fail to see how the statements made by the unknown seller to defendant would have any relevance in an action between plaintiff and defendant.

In his final specification of error defendant contends that the trial court erred in failing to render judgment on his reconventional demand for the $6,000.00 of the purchase price he returned to plaintiff. The trial court found that defendant was indebted to plaintiff for the return of the purchase price and allowed defendant a credit for the $6,000.00 paid to plaintiff. We find no error in the trial court’s determination.

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

AFFIRMED.

      . “Even in case of stipulation of no warranty, the seller, in case of eviction, is liable to a restitution of the price, unless the buyer was aware, at the time of the sale, of the danger of the eviction, and purchased at his peril and risk.”


author: SHORTESS, Judge.

text:
    Cornell B. GRIFFIN v. CITY OF BATON ROUGE, et al.
    No. 83 CA 0252.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.

      Raymond L. Simmons, Baton Rouge, for plaintiff-appellant Cornell B. Griffin.
    A. Foster Sanders, III, Baton Rouge, for defendants-appellees City of Baton Rouge, Parish of East Baton Rouge, Baton Rouge Civil Service Bd. (City Parish Personnel Bd.), City Parish Dept, of Public Works.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

Cornell B. Griffin (plaintiff) was terminated from his position as a refuse worker in the City-Parish of East Baton Rouge Department of Public Works. He appealed his dismissal to the City-Parish Personnel Board, and the Board sustained the action of the appointing authority. He then filed a petition for reinstatement in the Nineteenth Judicial District Court requesting relief under La.R.S. 33:2501. The trial judge dismissed plaintiffs suit stating in the judgment that:

“R.S. 33:2501 provides the jurisdiction of appeals to the District Court for paid fire and police department personnel from decisions of a municipal fire and police civil service board. Mr. Griffin was not employed as a fireman or policeman, therefore, this Court has no jurisdiction to hear this appeal.”

Plaintiff says that the trial court erred in holding that it did not have jurisdiction to hear the case.

The right to judicial review of administrative proceedings is well established in Louisiana and is an important safeguard of due process. Parker v. Board of Barber Examiners, 84 So.2d 80 (La.App. 1st Cir.1955). The right to judicial review is a constitutional right and exists even in the absence of statutory authority. La. Const. of 1974, art. I, § 22; Bowen v. Doyal, 259 La. 839, 253 So.2d 200 (1971); Anderson v. State, 363 So.2d 728 (La.App. 2nd Cir.1978), writ denied, 364 So.2d 600 (La.1978); Werner v. Bd. of Trustees of New Orleans Police, Etc., 360 So.2d 615 (La.App. 4th Cir.1978).

In Tanner v. City of Baton Rouge, 422 So.2d 1263 (La.App. 1st Cir.1982), writ denied, 429 So.2d 128 (La.1983), this court stated that the district court had jurisdiction to review actions taken by the City-Parish Personnel Board. Thus, the trial court in the instant case had jurisdiction to hear plaintiffs case.

The record contains a letter from Ben Jeffers, Personnel Administrator, which states, “[pjlease be advised that a large part of the cassette tape was unintelligible and could not be adequately transcribed.” The inadequacy of the record makes a proper review impossible. In view of this fact, we remand this case to the City-Parish Personnel Board with instructions to either prepare a complete transcript for the district court to review or hold a second hearing so that an adequate record can be made. Cochran v. City of Baton Rouge, 399 So.2d 656 (La.App. 1st Cir.1981). Costs of this appeal are taxed to the City of Baton Rouge.

REVERSED AND REMANDED.

      . The City-Parish Personnel Board is composed of three members. One of the Board members was absent. One favored suspension, and the other, who was Chairman, favored termination. The Department's action was affirmed on a one-one vote. We express no opinion as to the validity of this vote at this time.


text:
    Rev. John SCHAEFER, et al. v. Honorable David C. TREEN, et al.
    No. 83 CA 0259.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Writ Denied March 9, 1984.
    Woodrow W. Wyatt, Baton Rouge, and George Scariano, Metairie, for plaintiffs-appellants Rev. John Schaefer, Helene Waterman, Paul A. Emmer, Dolcie S. Ehl-inger, and Ladd P. Ehlinger.
    James Hrdlicka, Baton Rouge, for defendants-appellees David C. Treen, Governor of State of La., E.L. Henry, Com’r of Admin, for State of La.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This is an appeal from a judgment of the trial court which granted defendants’ peremptory exception of no right of action and dismissed plaintiffs’ lawsuit. Plaintiffs appeal.

Plaintiffs filed suit seeking a declaratory judgment and injunctive relief from the actions of the defendants in allegedly refusing to uphold and enforce the laws of the State of Louisiana. Specifically, plaintiffs allege that defendants refuse to implement all of the individual projects evidenced in the capital outlay bills passed by the legislature and signed by the Governor.

Plaintiffs instituted this action as taxpayers and citizens of this state. Defendants filed numerous exceptions to the plaintiffs’ suit including the peremptory exception of no right of action. By amended petition plaintiffs Paul A. Emmer and Ladd P. Ehl-inger assert that they have a special interest in this lawsuit as taxpayer architects. Emmer and Ehlinger also asserted a class action on behalf of all certified architects in this state.

After hearing arguments on the exceptions the trial court granted the defendants’ exception of no right of action and dismissed the lawsuit. From this judgment, plaintiffs sought supervisory writs which were denied by this court. Plaintiffs now appeal claiming the judgment of the trial court granting defendants’ exception of no right of action was error.

TAXPAYER’S SUIT

In plaintiffs’ first assignment of error it is argued that the trial court erred in holding that the plaintiff-taxpayers had no right of action (i.e. standing) to assert the causes of action pled in the petition as amended. Plaintiffs contend they have standing because the taxpayers of the state will be adversely affected in the following ways:

(1) The projects will cost much more to plan and complete at a later date;
(2) The Defendants have caused and will continue to cause great expenditure of State funds in the salaries of public officials and consultants in furtherance of their activities in suspending these appropriations; and,
(3) As to some projects, vast amounts of public monies were expended prior to their suspension, which monies have been wasted unless the projects are resumed and completed.
(4) The Defendants have caused vast amounts of both cash and credit of the State to be encumbered, thereby depriving the taxpayers and citizens of this State not only of the benefits of the encumbered projects, but also of other needed and requested projects which cannot be enacted by the Legislature due to the finite resources of the public fisc.
(5) The Defendants have depleted the public fisc of the interest that was not earned on the cash expended on implemented and then- suspended projects financed from the General Fund in the cash portion, and on the lines of credit issued during the period prior to the sale of bonds, as well as depriving the taxpayers and citizens of the projects themselves.
(6) The Defendants have placed the State at risk and damaged the credibility of the State in current litigation in the Federal Courts involving corrections facilities and desegregation facilities.
(7) The Defendants are placing the State at risk of losing favorable tax treatment under the Internal Revenue Code of the United States, thereby causing the loss of taxes and the ability to raise revenues in future through bond sales.

A plaintiff must have a real and actual interest in the action asserted, La.C. C.P. art. 681. In order to have standing, a plaintiff must show an interest in the litigation peculiar to him personally and separate and distinct from that of the general public. League of Women Voters of New Orleans v. City of New Orleans, 381 So.2d 441 (La.1980). As stated by the court in League, 381 So.2d at 446, “A public right or duty may not be compelled or enforced by a private citizen without a showing of a personal grievance or interest in the outcome.”

The plaintiffs’ contentions as stated above do not assert any specific adverse effect to them separate and distinct from that of the general public.

Plaintiffs argue that Bussie v. Long, 286 So.2d 689 (La.App. 1st Cir.1973), writ refused, 288 So.2d 354 (La.1974), provides them with an exception to the taxpayer — standing rule enunciated in League. The Supreme Court in League stated the Bussie holding as follows:

when a public official charged with the unlawful performance or the refusal to perform a legal duty discriminates against a taxpayer by increasing his tax burden or otherwise injuriously affecting his person or property, the taxpayer need not show such an interest in order to sustain a right of action. League, 381 So.2d at 447.

In Bussie, it was shown that an assessment of all property at actual cash value for ad valorem tax purposes would adversely affect the particular plaintiff-taxpayers. In the instant case, unlike the taxpayers in Bussie, the plaintiffs have failed to make any allegations that would reveal how they as individual taxpayers would suffer an increased tax burden by the actions or inac-tions of the defendants. In fact the net effect of their suit would require the expenditure of additional tax money. Therefore, plaintiffs’ first assignment of error is without merit. We affirm dismissal of the suit of plaintiffs as taxpayers.

INDIVIDUAL ARCHITECT’S SUIT

Plaintiffs, Paul A. Emmer and Ladd P. Ehlinger, by amended petition, allege that they have a sufficient special interest to have standing and that the trial court erred in dismissing their lawsuit. Emmer and Ehlinger are certified architects of this state. They allege that they were deprived of the opportunity to earn professional fees because La.R.S. 38:2310 et seq. requires that architects be appointed and retained for the design of capital outlay projects. We disagree.

Emmer and Ehlinger do not allege that they in particular have been or would be the architects selected for any of the projects. Consequently, they do not allege a real or actual interest in the action asserted. The second assignment of error is without merit. We affirm dismissal of the suit by Emmer and Ehlinger in their individual capacities as architects.

SUIT FOR ARCHITECTS AS A CLASS

Lastly, plaintiffs, Emmer and Ehl-inger, argue that the trial court erred in not allowing them to assert a class action on behalf of all architects certified by the State of Louisiana. Plaintiffs argue that La.R.S. 38:2310 et seq. provides a statutory-right to the class to be selected to design the capital outlay projects, and therefore the class has standing to maintain this suit. We disagree.

A close look at La.R.S. 38:2310 et seq. reveals that architects as a class do not have any statutory right to be selected to design capital outlay projects. Instead these statutes give the Division of Administration discretion, after evaluating the proposed projects, to decide what professional services are required. If the Division of Administration determines that a proposed project requires the professional services of an architect, the Louisiana Architects Selection Board will be notified and will follow the proper procedures in appointing an architect to the project.

Plaintiffs as a class have failed to allege that the Division of Administration has decided that these proposed projects will require the services of an architect. This is sufficient to maintain the exception of no right of action to the class action. However, this deficiency might be cured by amendment. La.C.C.P. art. 934. Accordingly, we will remand to the trial court for the purpose of the trial judge allowing an amendment to be made within delays to be fixed by the trial court.

We specifically note that we do not decide that this is appropriately a class action even if the petition can be amended to allege an actual interest by the class. The procedural question of availability of the class action in this particular case is not before us. Our action is directed only at a right of action by the class assuming availability of the class action. If and when allegations are made which would give the class a right of action, the availability of the class action in this particular suit would still have to be decided. Livingston Parish Police Jury v. Illinois Central Gulf Railroad Company, 432 So.2d 1027 (La.App. 1st Cir.1983), writ denied, 437 So.2d 1137 (La.1983). For the foregoing reasons we remand the suit of the plaintiffs as a class action to the trial court for further proceedings in accord with this opinion. All costs of this appeal are to be paid by the appellants.

AFFIRMED IN PART, REMANDED IN PART.


author: CARTER, Judge:

text:
    The TRAVELERS INSURANCE CO., et al. v. Robert GUIDRY, et al.
    No. 83 CA 0263.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Michael F. Grennan, New Orleans, for plaintiffs-appellants Travelers Ins. Co. & Champ Service Co.
    Robert D. Morvant, Thibodaux, for defendants-appellees Robert Guidry & United States Fidelity & Guaranty Co.
    ' Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

This is an appeal seeking to reverse the ruling of the trial court allowing the name of defendant Robert Guidry to be deleted from the answer filed in a lawsuit.

On July 17, 1981, Robert Guidry, insured by United States Fidelity and Guaranty Company (USF & G), was involved in an automobile accident with a vehicle owned by Champ Service Company (Champ) and insured by Travelers Insurance Company (Travelers). As a result of the accident, the vehicle owned by Champ and a building located near the site of the accident were both damaged.

Travelers and Champ filed suit naming Guidry and USF & G as defendants. After being served with the petition, USF & G retained Robert D. Morvant as counsel. Morvant filed an answer on behalf of both USF & G and Guidry. It was later learned that service of process had never been made on Guidry (his whereabouts were and still are unknown). As a result of this, USF & G filed a motion to show cause why the answer filed should not be amended so as to strike Guidry’s name therefrom. After a hearing on the rule to show cause, the trial judge made the rule absolute and allowed Guidry’s name to be removed from the answer because proper service had not been made on Guidry and the answer filed was effective only as to USF & G.

Plaintiffs argue on appeal that because the insurance policy in effect between Guidry and USF & G stated that USF & G had a “right and a duty to defend any suit against the insured”, Morvant (as counsel for USF & G) had a right to file an answer for Guidry. Therefore, plaintiffs contend that when the answer was filed an “appearance” was deemed to have been made by Guidry, and thus, any objection to the jurisdiction of the court over Guidry was waived.

We disagree. Morvant did not have the authority to submit Guidry to the jurisdiction of the court. There was no direct authorization from Guidry to Morvant, nor was there any indirect authorization as a result of the insurance policy between Gui-dry and USF & G.

The policy stated that USF & G has a “right and a duty to defend any suit against the insured.” The duty of an insurer to defend is well established in the jurisprudence. American Home Assurance Company v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969). This duty to defend is in the nature of a fiduciary relationship in which the rights of the insured are deemed paramount.

The policy also states that an insurer has the right to defend. It is clear that the purpose of the insurer’s right to defend is to enable the insurance company to safeguard its interests by participating in litigation involving the insured. However, in asserting its right to defend, the insurance company can do nothing that would prejudice or jeopardize the insured’s position. Therefore, we find that, absent the express authorization of the insured, the right of the insurance company to defend the insured does not include the right to submit the insured to the jurisdiction of the court or to take any other action to the prejudice of the insured.

Under the circumstances present in the case sub judice, Morvant was not authorized by Guidry and could not be authorized by USF & G under the policy to file an answer on behalf of Guidry. Therefore, the trial judge was correct in ruling that the answer be amended so as to strike Guidry’s name therefrom.

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

AFFIRMED.


author: COLE, Judge.

text:
    TEACHERS’ RETIREMENT SYSTEM OF LOUISIANA, et al. v. LOUISIANA STATE EMPLOYEES RETIREMENT SYSTEM.
    No. 83 CA 0265.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Rehearing Denied Jan. 19, 1984.
    Writ Granted April 13, 1984.
    Frank Middleton, Baton Rouge, for plaintiffs-appellants Teachers’ Retirement System of Louisiana, Great American Management & Inv., Lomas & Nettleton Co., Con-stantin Foundation, and Vista Mortg. & Realty Inc.
    Carlos G. Spaht, Baton Rouge, for defendant-appellee La. State Employees Retirement System.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

The issue in this complicated financial ease is whether or not plaintiffs have a right of action against defendant. The pertinent facts giving rise to the litigation are as follows.

Harry J. Hart, representing West Side Twelve Corporation (West Side), sought financing for acquisition and development of land in West Baton Rouge and Pointe Cou-pee Parishes. In July of 1973 Mr. Hart approached Great American Mortgage Investors (Great American or GAMI), concerning a loan to finance his project. Great American was interested in providing interim financing but required Hart to obtain a “take out commitment” from another lender for permanent financing. Hart successfully sought this commitment from Louisiana State Employees’ Retirement System (Employees’).

On August 23,1973, West Side and Great American executed a loan agreement, the principal sum of the loan not to exceed $13,500,000. The loan was secured by the pledge of a collateral mortgage note in the amount of $20,000,000, which in turn was secured by the collateral mortgage. On the same day Great American contracted with several other parties in a “Participation Agreement.” The agreement involved the following parties: Great American, Justice Mortgage Investors (Justice), The Lo-mas & Nettleton Company (Lomas), The Constantin Foundation (Constantin), Teachers Retirement System of Louisiana (Teachers), and Cobbs, Allen & Wall Mortgage Company. The agreement referred to the first mortgage loan commitment by Employees’ to West Side and a prior “Agreement for a Land Acquisition and Development Loan” between Great American and West Side. The participation agreement stated each of the parties listed therein would participate in the loan from Great American to West Side in varying proportionate amounts.

On August 24, 1973, Great American, Employees’ and West Side entered into a “Tri-Party Agreement.” This document referred to the interim loan made by Great American to West Side and the permanent financing promised by Employees’ to West Side. Employees’ then agreed, according to the terms and conditions of the agreement, to “... pay INTERIM LENDER the unpaid principal balance of funds it has advanced to BORROWER in an amount not to exceed THIRTEEN MILLION FIVE HUNDRED THOUSAND AND NO/100 ($13,500,000.00) DOLLARS.” Such an agreement is commonly referred to as a “take-out” or a “buy-out” agreement. Employees’ received a fee of $405,000 for this commitment.

Sometime prior to October 1974, during the interim financing period (which was to last until August 23, 1975), West Side defaulted on the loan. Thereafter, pursuant to the Tri-Party Agreement, Great American notified Employees’ of the default. In a letter dated October 7, 1974, Employees’ informed Great American it did not desire to purchase Great American’s rights to the loan, due to West Side’s default. On July 2, 1975, Great American made written request upon Employees’ for Employees’ to “take them out” of the loan. Employees’ refused. On March 25,1977, Great American filed for an arrangement under Chapter XI of the Bankruptcy Act of 1898. In that proceeding the United States District Court for the Northern District of Georgia decreed that Great American was authorized to prosecute its claim against Employees’. An “Agreement Regarding Prosecution of This Claim” was entered into by parties to the Participation Agreement. The present suit was filed by these parties against Employees’ in October of 1979, alleging Employees’ owed the participants $13,429,372.44, less certain credits enumerated in the petition.

Employees’ responded to the suit by filing a peremptory exception raising the objections of no right of action, no cause of action and prescription. The trial court sustained the exception based on the no right of action claim as to all plaintiffs but Great American. The no cause of action and the prescription claims were overruled and have not been raised on appeal. Teachers, Constantin, Lomas and Vista (formerly Justice) have appealed.

Concerning the no right of action objection, the court based its conclusion on two grounds. First, it held plaintiffs were not parties to the Tri-Party Agreement, nor were they third party beneficiaries to it; therefore, they had no right to sue to enforce the contract between Employees’ and Great American.

Appellants contend the court erred in failing to find them third-party beneficiaries of the Tri-Party Agreement. The basis of the concept of a stipulation made in favor of a third party is found in La.Civ. Code art. 1890 which reads as follows:

“A person may also, in his own name, make some advantage for a third person the condition or consideration of a commutative contract, or onerous donation; and if such third person consents to avail himself of the advantage stipulated in his favor, the contract can not be revoked.”

Courts have held consistently that in order to find a “stipulation pour autrui” the provision must be in writing and must “clearly reveal” or “clearly manifest” the intent of the contracting parties was to provide a benefit to a third party. See Fontenot v. Marquette Casualty Co., 258 La. 671, 247 So.2d 572 (1971); Hertz Equip. Rent. Corp. v. Homer Knost Const. Co., Inc., 273 So.2d 685 (La.App. 1st Cir.1973).

An examination of the Tri-Party Agreement fails to show a clear intent to bestow a benefit upon the parties to the Participation Agreement. The gist of the Tri-Party Agreement has been stated above. The only mention of the participants is found in a paragraph entitled “Restriction on Assignment of Note” and reads as follows:

“Notwithstanding the provisions of this paragraph, INTERIM LENDER may sell participation interests in the loan and the collateral therefor to such other lenders as INTERIM LENDER may select, but INTERIM LENDER shall not thereby be relieved of any of its obligations hereunder.”

The trial court commented this language did not show an intent to bestow a benefit upon the participants, but "... merely reflected an intent that the signatories [of the Tri-Party Agreement] remain bound to each other regardless of participation.” We agree with this conclusion. This language does not show in any way that Employees’ or Great American intended to confer any benefit upon the participants. The fact that a third party may incidentally derive a benefit from a contract does not in and of itself mean the contract contains a “stipulation pour au-trui.” See New Orleans Public Service v. United Gas Pipe Line, 690 F.2d 1203 (5th Cir.1982), opinion withdrawn in part, 694 F.2d 421 (5th Cir.1982).

Professor J. Denson Smith discussed the “incidental benefit” aspect of contracts in his article, Stipulations Pour Autrui, at 11 Tulane L.Rev. 18 (1936). At p. 28 Professor Smith wrote:

“But it is also true that not every promise, performance of which may be advantageous to a third person, will create in him an actionable right. The problem is to separate the cases where an advantage has been stipulated from those where the advantage relied upon is merely an incident of the contract between the parties.”

Undoubtedly, the fact that Great American was assured Employees’ would “buy it out,” was a benefit that might be advantageous to the participants, but without finding a clear intent to bestow such a benefit directly upon the participants, we cannot conclude they were third-party beneficiaries to the Tri-Party Agreement.

Appellants contend that in addition to their right of action as third party beneficiaries, they also have a right of action based upon their being undisclosed principals to the Tri-Party Agreement. In other words, they argue when Great American contracted with Employees’, Great American was acting as an agent for them (as well as acting in its own behalf). As such, they contend they have the right to sue Employees’ on the contract.

There is no question but that the Participation Agreement creates a principal-agent relationship as to matters concerning the loan to West Side. The following language indicates this is so:

“(5) The original Loan Agreement dated the 23rd day of August, 1973, and all collateral security therefor shall be held by GAMI for the benefit of the participants. GAMI shall make advances and carry out the provisions of the Loan Agreement, exercise all rights and privileges accruing by reasons of the provisions thereof and all collateral security therefor, and enforce all rights thereunder, all in the exercise of its business judgment, subject to the provisions hereinafter contained. GAMI shall not renew or extend the maturity date of the loan without prior written consent of all participants.” (Emphasis added.)

However, we are unimpressed by this argument. It seems, in essence, a mere rewording of the argument concerning the third party beneficiary concept. The Louisiana Civil Code deals extensively with the subject of mandate in articles 2985 to 3034. Nowhere in these articles do we find authority for an undisclosed principal suing a third person on a contract made by an agent. In fact, “undisclosed agency” is not recognized at all by the code. The jurisprudence is remarkably sparse on this subject. Appellants rely heavily on the case of Childers v. Police Jury of Parish of Ouachita, 9 La.App. 490, 121 So. 248 (2d Cir.1928), in which an undisclosed principal was allowed to enforce a contract made by his agent with the police jury. The court cited several common law cases as well as several Louisiana cases which had held the undisclosed principal may be sued on such a contract. The court then reasoned the opposite result should also be allowed, i.e., the undisclosed principal should be allowed to sue the third party. The court therefore held the principal had a right of action against the third party, as long as the third person would not be injured by the principal (as opposed to the agent) suing him. A suit by an undisclosed principal was also allowed in DeSoto Building Co., Ltd. v. Kohnstamm, Orleans No. 7627, 3 Pelt. 54 (La.App.1919).

However, we are not convinced of the correctness of these older appellate decisions. A comment, Juridical Basis of Principal — Third Party Liability in Louisiana Undisclosed Agency Cases, 8 La.L. Rev. 409 (1948), addresses the situation at hand. The author there notes that under French law, the question of the liability between the principal and the third party is resolved according to whether or not the agent represented himself as acting for another. If he so represents, the situation is termed mandate and there is liability between the principal and the third party. If there is no representation, the situation is one of commission or préte-nom and there is no liability between the third party and the principal.

In Planiol’s Civil Law Treatise (Traité élémentaire de droit civil), he too distinguishes between “mandate” and “commission.” In the former, the principal employs an intermediary and this fact is known by all. In the latter, the identity of the principal is insignificant in that the agent guarantees his personal responsibility to the third person. In this case the intermediary acts as a “préte-nom.” More specifically, Planiol states:

“Third persons do not know, or are considered as not knowing anyone but the préte-nom: it is he who is their creditor, who is their debtor, who is the proprietor of the property put in his name. They have therefore the right to sue him and they can be sued by him; and furthermore he is the only one who can sue or be sued. The contract between him and his principal is as to them “res inter alios acta”; the act should be taken for, what it is in appearance, because third persons have no right to criticize it....” (Citations omitted.) 2 Planiol Civil Treatise, pt. 2, no. 2271 at 303 (11th Ed. La. St.L.Inst. transl. 1959).

We conclude that under the civil law tradition, Great American was a “préte-nom” who acted in its own behalf as opposed to representing itself to be acting for the other principals. As such, only Great American has a right of action against West Side.

In Turner v. Snype, 162 La. 117, 110 So. 109 (1926), the Supreme Court declined to allow an undisclosed principal to sue a third party on a contract. A real estate agent, acting for his undisclosed client, entered a purchase agreement with the owner of certain property. When the sale failed to materialize the client filed suit against the owner. The court concluded the contract was only between the agent and the owner and therefore the client could not enforce it unless the right had been assigned to him. We follow the reasoning of this case and conclude that in the present case, the appellant parties to the Participation Agreement have no right of action (as alleged undisclosed principals) against Employees’.

Finally, appellants contend in their brief they have a right of action against Employees’ because the Participation Agreement makes them partial assignees of all “... security arrangements entered into by Great American for their benefit, including all rights created by the ‘Tri-Party Agreement.’ ” The language relied upon by appellants as granting their partial assignment is found in the Participation Agreement and reads as follows:

“Upon the payment by the Louisiana State Employees’ Retirement System for the repayment of the principal of the-loan or upon the repayment to GAMI of the principal of the loan from any other source whatsoever, GAMI shall forthwith pay to each participant the amount of its Proportionate Share of such principal repayment.”

We do not find this language to create an assignment. Assignment is defined by Black’s Law Dictionary (1968) as, “A transfer or making over to another of the whole of any property, real or personal, in possession or in action, or of any estate, or right therein.” The language above does not transfer to the participants any right in the Tri-Party Agreement but merely reiterates or confirms the rights that flow from the Participation Agreement. In the latter agreement they promised to participate in the loan money to West Side. The language above states simply that when Great American (GAMI) receives any repayments of the loan, Great American will in turn pay the various participants their proportionate share of the repayment. We find no validity to the argument that this language is evidence of an assignment.

The trial court’s second basis for sustaining the no right of action claim was that even if the plaintiffs had a right of action at one time, the right should have been asserted in Great American’s bankruptcy proceedings. Because we have concluded plaintiffs have never had a right of action against Employees’, we find it unnecessary to address this alternate argument.

For these reasons, the judgment of the trial court, sustaining defendant’s objection of no right of action and dismissing plaintiffs’ case as to all plaintiffs except Great American, is affirmed. Costs are to be paid by appellants.

AFFIRMED.

      . In June of 1976 Great American filed suit against West Side in the 18th Judicial District Court based on the loan agreement. Judgment was rendered in its favor for $13,407,261.16, plus other amounts for taxes and attorney fees. Further, Great American was recognized as mortgagee of the real estate located in West Baton Rouge and Pointe Coupee parishes. A Writ of Fi.Fa. was issued, the property was seized and Great American purchased the property at a sheriff's sale.

      . Cobbs, Allen and Wall Mortgage Company was the only participant who did not file suit. By the time suit was filed some of the original corporations had been succeeded by other entities. Great American Mortgage Investors had become Great American Management and Investment, Inc. and Justice had become Metro-plex Realty Trust. At some later point Metro-plex became Vista Mortgage and Realty, Inc.