author: LANIER, Judge.

text:
    Kelly SIBLEY v. INSURED LLOYDS.
    No. 83 CA 0162.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      W. Hugh Sibley, Greensburg, for plaintiff.

      Robert L. Kleinpeter, Baton Rouge, for defendant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

This is a suit in contract concerning insurance claims submitted after a dump truck trailer collapsed and was damaged. The insured sought collision damages of $28,550.07 (the policy provided coverage of $20,000 with a $500 deductible) and unspecified damages for loss of income, loss of business and consequential expenses. The insured also alleged that the insurer was arbitrary, capricious and without probable cause in failing to pay these claims and requested statutory penalties including an attorney fee of $7,250. The insurer admitted the occurrence of the accident and coverage but asserted that the trailer could be repaired for $5,056.20 less any unforeseen or hidden damage which would also be covered by the policy. The trial court rendered judgment in favor of the insured for $19,500 for collision damage, $150 for a wrecker fee, $633.20 for rental of a substitute trailer and $2,205 for storage fees from June 6, 1981, until August 11, 1982, and $5.00 per day thereafter until paid in full. The trial court also granted statutory penalties of $2,340 (12% of $19,500) and an attorney fee of $1,160. The insurer took this suspensive appeal. The insured answered the appeal asserting that the attorney fee award in the trial court was inadequate and requested an additional attorney fee for this appeal.

FACTS

On August 24, 1979, Kelly A. Sibley purchased a new 1979 Hobbs aluminum dump truck trailer from Leon Pickard Chevrolet, Inc. for $21,000. Sibley made a down payment of $5,000 and financed the balance through the General Motors Acceptance Corporation (GMAC).

On August 18, 1980, Sibley purchased a policy of insurance from Insured Lloyds (Lloyds) for a period of one year on the trailer (and also on the truck that apparently pulled it). This policy provided various coverages including collision coverage on the trailer of $20,000 less a $500 deductible.

On February 27, 1981, the hydraulic cylinder on the trailer gave way Causing it to turn over on its side and sustain damages. Sibley notified his insurance agent of this accident that same day. Sibley was advised that someone would be out to survey the damages to the trailer. After a period of apparent inactivity, Sibley decided to obtain his own estimate of damages. He went to three places but was only successful in getting an estimate' from Slade’s Welding Service, Inc. of $28,550.07 on March 24,1981. This estimate provided for the disassembly of the trailer and reassembly using new parts. Sibley also retained the services of an attorney.

On April 17, 1981, Tommy Cook, the manager of Cook and Cook, Inc., the adjuster for Lloyds, sent Sibley’s attorney an estimate of repairs for the trailer for $5,056.20 which was prepared by Cook and Cook, Inc. on March 6, 1981. Cook further advised that All Truck Parts & Equipment Co. Inc. (All Truck) of Baton Rouge would repair the trailer for that amount. On April 24, 1981, Sibley’s attorney sent to Tommy Cook a copy of the estimate of repairs secured by Sibley from Slade’s.

On May 7, 1981, GMAC filed suit under executory process against Sibley for the seizure and sale of the trailer because Sib-ley failed to pay the March and April 1981 installment payments due on the financed balance of the purchase price of the trailer. This suit was dismissed by GMAC on May 15, 1981.

On May 26, 1981, Tommy Cook again wrote to Sibley’s attorney and forwarded to him for execution by Sibley a proof of loss in the amount of $5,056.20 less the $500 deductible. Cook stated that if any additional damage over this estimate was found in the course of repair which was a result of the accident that Lloyds would honor that amount. On June 10, 1981, Sibley’s attorney wrote back to Cook and advised that Sibley had executed the proof of loss statement but that it would not be released until all repairs necessary to return the trailer to its original pre-accident condition were guaranteed for a period of one year from the date of delivery to Sib-ley. By reply letter of June 12, 1981, Cook furnished Sibley’s attorney with a copy of a letter dated June 3, 1981, signed by Mike Culotta, president of All Truck, wherein Culotta agreed to repair the trailer for $5,056.20 but provided that any unforeseen or hidden damage would be in addition to that amount. Cook further advised that Culotta would guarantee his repairs and requested that the proof of loss be forwarded so that it could be placed in line for payment.

On June 29, 1981, Sibley’s attorney advised Cook that he needed a written guarantee from Culotta and All Truck warranting all work for one year from date of delivery. On July 17, 1981, Sibley’s attorney again notified Cook of the necessity for a written guarantee, advised that without this guarantee settlement was out of the question and requested a reply within five days. This identical letter was sent again by Sibley’s attorney to Cook on August 5, 1981. On or about August 20, 1981, Sibley submitted a proof of loss in the sum of $28,050.07. This suit was filed on August 27, 1981. After suit was filed, Culotta on behalf of All Truck signed a written guarantee. This agreement did not provide a one year guarantee period but contained the following language:

This guarantee does not cover any hidden damage not detected 30 days after repairs or damage that is not related to the above accident, nor damage sustained to this same area of repair by normal wear and tear and/or abusive treatment on this trailer.

DAMAGE TO TRAILER

Lloyds contends that the trial court committed error by concluding that the trailer could not be repaired for $5,056.20 and was a total loss.

Sibley testified that he had worked with gravel trucks for 20 years and did some of his own repairs. He inspected the trailer and observed that the braces under it were all broken, the steel frame was twisted, the main braces on the hydraulic lift cylinder were broken and the tailgate was twisted. He did not think that the trailer could be properly repaired for the amount offered by Lloyds. For this reason, he wanted a guarantee from the repairer that the trailer would be fixed correctly and operate safety-

Robert L. Jackson testified that he was the owner of Slade’s Welding Service, Inc. and had been repairing trucks and trailers since 1964. He worked primarily on tank trailers (250-300 per year) but had worked on three dump trucks. He was qualified as an expert in the field of trailer repairs and estimating costs of such repairs. Jackson only had the capability of repairing the tailgate and would have to replace the steel frame and the hydraulic lift cylinder. The estimate of repairs that he gave to Sibley involved disassembly and reassembly of the trailer with new parts. He was not aware of anyone in his area who could repair the frame. Repair is generally less costly than replacement if substantial freight charges are not involved.

Andrew J. McPhate, a Professor of Mechanical Engineering from Louisiana State University in Baton Rouge, was accepted as an expert in mechanical engineering with a specialty in design. He inspected the trailer and found a large permanent torsional deformation (twisting) in the underframe of the trailer. He indicated that there were two methods by which the frame could be repaired. One involved placing the frame in a large heat treating oven, bringing the oven to a high temperature, soaking the frame, clamping the frame in position and pulling it back into shape. McPhate was not aware of such an oven in this area. This method would relieve the tension from the frame. The second method involved tieing the frame to a heavy table and using jacks to twist it back in shape. After the frame was in the correct shape, shear plates would be welded to it to keep it from twisting. This method would not relieve the tension from the frame and, if the welds broke, the frame would return to its prior twisted condition. As to whether or not it was economically feasible to repair the frame, McPhate testified as follows:

A. It is not repairable. The underframe is not repairable. You would be really better off building a new underframe. It is as simple as that. It is so deformed that the amount of man power, the amount of time, the amount of effort to insure that what you’re doing in results in a good product would be more expensive than it would be to start from fresh materials and build a new one, especially if you had a factory set up and you were already building these things. For example, I’m talking about the manufacturer would already be set up and would be producing these things. That the amount of money involved and the amount of time and effort it would be cheaper to actually build a new underframe.
Q. So it is then your opinion that this trailer was unrepairable using standard procedures for this area?
A. Right. It is just simply deformed too far.

Charles A. Rochester, an appraiser with ten years experience employed by Cook and Cook, Inc., was directed to inspect the Sib-ley trailer and prepare an estimate of repairs. Most of Rochester’s prior experience was with appraisals on automobiles, but he had done some trucks. He was accepted as an expert in the field of vehicle appraisals. Rochester was of the opinion that the frame could be repaired. This work would be subcontracted to a firm in Lafayette, Louisiana. Rochester went to a General Motors body shop school in New Orleans but had no other schooling in making appraisals. This was the most extensive damage to a trailer that he had seen. He asked Mike Culotta to assist him in the appraisal.

Mike Culotta, the owner of All Truck, had been repairing trucks since 1969. All of his experience in this field was acquired on the job, and he had no formal schooling for this work. Culotta indicated his business was not equipped to repair the twisted frame but that this work could be properly done by R.J. Arceneaux Auto and Truck Repair of Lafayette, Louisiana. Culotta had contacted that firm about doing the work.

The trial court apparently accepted the testimony of Professor McPhate, determined that it was not economically feasible to properly repair the trailer and concluded that the trailer was a total loss. There are facts in the record to support these rulings and these factual determinations are not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

When a vehicle is a total loss, the owner is entitled to recover the market value of the vehicle before the accident less its salvage value, if any. Bernard v. Fidelity & Casualty Company of New York, 186 So.2d 904 (La.App. 1st Cir.1966). Cf. Coleman v. Victor, 326 So.2d 344 (La.1976); Cenac v. Duplantis Moving & Storage Company, Inc., 407 So.2d 424 (La.App. 1st Cir.1981). In the Lloyds policy, the parties contractually agreed that the value of the trailer was $20,000. Counsel for Lloyds admitted this during the course of the trial. Sibley testified that the dump box on the trailer was salvageable but that he did not think the trailer had any salvage value because it could not be used by him. Professor McPhate testified that the dump box and the suspension components on the trailer were salvageable. He estimated that 20-25% of the trailer was salvageable but acknowledged that he did not “... make a component by component evaluation of the salvage value of that trailer.” The trial judge awarded Sibley $19,500, the total value of $20,000 less the $500 deductible. In view of the testimony of Professor McPhate, this conclusion was in error. We accept the 20% ($4,000) salvage figure given by Professor McPhate and reduce the award for damages to the trailer to the sum of $15,500.

STATUTORY PENALTIES

La.R.S. 22:658 provides that all insurers issuing policies like that of Lloyds shall pay the amount of any claim due an insured within sixty days after receipt of satisfactory proofs of loss from the insured. If the insurer fails to make such payment and such failure is arbitrary, capricious or without probable cause, the insurer shall be subject to penalties of 12% of the total amount of the loss and a reasonable attorney fee for the prosecution and collection of the loss. This statute is penal in nature and must be strictly construed. The burden is on the claimant to prove lack of probable cause, arbitrariness or capriciousness. Batiste v. Pointe Coupee Constructors, Inc., 401 So.2d 1263 (La.App. 1st Cir.1981), writ denied 409 So.2d 615 (La.1981).

Lloyds contends that the trial court committed error by assessing it with statutory penalties. A trial court’s conclusion concerning the assessment of statutory penalties is in part a factual determination which should not be disturbed in the absence of a finding that it is manifestly in error. Meshell v. Insurance Company of North America, 416 So.2d 1383 (La.App. 3rd Cir.1982); Cameron State Bank v. American Employers’ Insurance Company, 401 So.2d 1090 (La.App. 3rd Cir.1981), writ denied 409 So.2d 674 (La.1981).

Where there is a reasonable disagreement between the insured and the insurer as to the amount of a loss, the insurer’s refusal to pay is not arbitrary, capricious or without probable cause and failure to pay within the statutory delay does not subject the insurer to penalties. However, if part of a claim for property damage is not disputed, failure of the insurer to pay the undisputed portion of the claim within the statutory delay will subject the insurer to liability for penalties on the entire claim. To avoid imposition of penalties in such a situation, the insurer must unconditionally tender to the insured that part of the claim for which there is no dispute. O’Brian v. Allstate Insurance Company, 420 So.2d 1222 (La.App. 3rd Cir.1982); Sigue Trucking, Inc. v. Insured Lloyds, 417 So.2d 97 (La.App. 3rd Cir.1982); LeBlanc v. Underwriters at Lloyd’s, London, 402 So.2d 292 (La.App. 3rd Cir.1981); Foster v. Western World Insurance Co., 339 So.2d 395 (La.App. 1st Cir.1976).

Lloyds does not contest the occurrence of the accident or that it provided collision coverage on Sibley’s trailer. A dispute arose between the parties as to the extent of the damages to the trailer. Although Lloyds could reasonably dispute and litigate the issue of whether or not the trailer was a total loss, its own appraisal acknowledged that the damages were at least $5,056.20. Lloyds did not make an unconditional tender of this amount (less the $500 deductible) to Sibley. Instead, as a condition precedent to payment, Lloyds required Sibley to execute a proof of loss admitting that $5,056.20 was the extent of the damages (unless hidden damages were discovered during repair), even though Sib-ley contended that the trailer was a total loss. Sibley would not agree to this proposal unless furnished with a written one year guarantee on the repairs. This guarantee was not given. The ruling of the trial court assessing Lloyds with statutory penalties was correct.

In his answer to the appeal, Sib-ley contends that the award of $1,160 for an attorney fee is inadequate. In the trial court’s reasons for judgment appears the following:

The Court is of the further opinion that plaintiff is entitled to reasonable attorney fees which the court feels would be an amount of $3500.00.

However, the judgment rendered by the trial court provided as follows:

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of plaintiff and against the defendant for 12% statutory penalties on the total amount of the loss being 12% of $19,500.00 or $2340.00 plus reasonable attorney fees set at $1160.00 for a total of $3500.00.

For purposes of this appeal, the trial court judgment is controlling, even though the trial judge intended otherwise. Hebert v. Hebert, 351 So.2d 1199 (La.1977); Harmon v. Harmon, 416 So.2d 614 (La.App. 5th Cir.1982). Although Sibley alleged in his petition that his attorney had performed 50 hours of work, no evidence of this was presented at the trial. However, proof of the value of an attorney’s services is not necessary where the services are evident from the record and/or are rendered under the supervision of the court. Hebert v. Neyrey, 432 So.2d 396 (La.App. 1st Cir.1983). After reviewing the entirety of the record, we conclude that the trial court attorney fee award is inadequate and it is increased to $3,500.

The trial court granted a penalty of $2,340 based on 12% of a recovery of $19,500. Since we have reduced the collision recovery to $15,500, this penalty award must be reduced to $1,860.

In his answer to the appeal, Sibley also requested an attorney fee for defending this appeal. Sibley is entitled to such an award. Cameron State Bank, 401 So.2d at 1094. The attorney fee award for defending this appeal is fixed at $1,000. The legal interest on this portion of the recovery shall commence to run from the date of rendition of'this decision. Heard v. Blakney, 415 So.2d 487 (La.App. 1st Cir.1982); Haynes v. Standard Fire Insurance Company, 370 So.2d 118 (La.App. 1st Cir.1979).

STORAGE FEES

The trial court allowed Sibley to recover storage fees of $5.00 per day from June 6, 1981, until the date of trial of August 11, 1982, totaling $2,205, and $5.00 per day thereafter until paid in full. Lloyds contends that this judgment is erroneous.

Sibley testified that after the accident on February 27,1981, the damaged trailer was taken to his house and remained there until it was seized by GMAC on May 7, 1981. After the trailer was seized by the sheriff, it was taken to the Trading Post Wrecker Service yard where it was stored. The executory process suit was dismissed on May 15, 1981, and the trailer was released from seizure. However, Sibley allowed the trailer to remain in storage and did not seek its return prior to trial.

Sibley also testified that after the trailer was damaged he rented a substitute trailer for two months to continue his trucking business. Thereafter, he purchased a new trailer. Sibley did not pay his installment notes in March and April of 1981 and that is why GMAC instituted the executory process. After the GMAC suit was filed, Sibley made arrangements to pay off the past due notes, and the suit was dropped. Sibley has continued paying his monthly notes on the truck and damaged trailer since that time.

Sibley has failed to prove a causal relationship between Lloyds’ tardy failure to pay the undisputed portion of the claim and the storage charges. Further, the Lloyds policy contains no coverage for storage fees. Cf. Ellis v. MFA Mutual Insurance Company, 419 So.2d 92, 96 n. 7 (La.App. 2nd Cir.1982), writ denied 422 So.2d 158 (La.1982). The trial court judgment awarding this element of damages is clearly wrong and is reversed.

CONCLUSION

For the foregoing reasons, the trial court collision damage award is reduced to $15,-500; the 12% statutory penalty award is reduced to $1,860; the statutory penalty award for trial court attorney fees is increased to $3,500; the attorney fee award for defending this appeal is fixed at $1,000 with legal interest thereon from date of rendition of this opinion until paid; and the trial court award for storage fees for the damaged trailer is reversed. In all other respects, the judgment of the trial court is affirmed. Lloyds is to pay for all costs of this appeal.

REVERSED IN PART, AMENDED AND AFFIRMED IN PART.

      . Neither Sibley nor Lloyds assert error in the trial court awards for towing charges and substitute trailer rental.

      . By our calculations, it is 432 days from June 6, 1981, to August 11, 1982. At $5.00 per day this award should have been $2160.


source: Caselaw Access Project

author: CRAIN, Judge. SHORTESS, Judge,

license: Public Domain

text:
    Maurice C. DURBIN v. D. Lamar COCKERHAM and Gloria C. Jordan.
    No. 83 CA 0167.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Charles H. Dameron, Baton Rouge, for plaintiff.
    Gerald Walter, Baton Rouge, for defendants.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

Maurice Cockerham Durbin (plaintiff), Maurice K. Cockerham’s granddaughter, filed a petition for a declaratory judgment seeking to set aside a “settlement agreement” in which she released defendants, D. Lamar Cockerham and Gloria Cockerham Jordan, from any claim “which she had or might have asserted against them or any of them, in the Succession of Maurice K. Cockerham....” Plaintiff contends that the settlement was entered into through an error of fact due to the ignorance of all the parties as to the existence of a potential claim belonging to the succession. The matter was submitted to the trial court on a joint written stipulation of facts. The trial court rendered judgment in favor of plaintiff decreeing the nullity of the settlement agreement.

Maurice K. Cockerham was married once to Dovie Carpenter Cockerham. Of this marriage, three children were born: Henry L. Cockerham, D. Lamar Cockerham and Gloria Cockerham Jordan. Henry L. Cock-erham predeceased his father and left only plaintiff as his descendant. Maurice K. Cockerham died on September 2, 1979. He left a will in which he bequeathed to plaintiff her forced portion and left defendants the remainder of his estate.

Following the death of Maurice K. Cock-erham, questions arose concerning the assets of his estate and the amount of inheritance that plaintiff was to receive. His financial records and affairs were in the hands of defendant Gloria Cockerham Jordan. Defendants’ attorney informed plaintiff's attorney-husband, James E. Durbin, that Maurice K. Cockerham’s estate consisted of only $3,809.85 in cash and that plaintiff’s share was $846.63. Plaintiff was surprised at the small amount of cash and requested a review of the financial records.

Plaintiff, after thoroughly reviewing the assets of the estate and discovering that she was unable to prove that there was any additional cash, demanded to share equally in the estate. Defendants were willing to enter into a complete compromise and to afford plaintiff one-third of the estate in return for her agreement to settle all claims against the estate, to terminate efforts to attack the will, and to stop questioning the handling of the estate. A settlement agreement was entered into wherein plaintiff received the sum of $1,269.95. Under the will, she only would have been entitled to $846.43. Thus, under the settlement agreement she received $423.52 more than she would have received under the will. The settlement agreement prepared by plaintiff’s husband provides in part:

Maurice C. Durbin does by these presents release, remise and forever discharge all the other parties hereto, of and from any right, claim, demand, pretension, action or cause of action of every nature of (sic) kind, which she had or might have asserted against them or any of them, in the Succession of Maurice K. Cockerham, intending that the present act of compromise and settlement shall be deemed and considered as a complete divestiture of her rights in said succession and as a bar against any further claim, right, or pretension against it or any of the other parties hereto.

Approximately three months after the execution of the settlement, plaintiff’s husband became aware of a potential claim belonging to the succession. This claim involves an undivided one-half interest in 3.46 acres of immovable property within the right of way limits of Cockerham Road and Hatchell Lane in Livingston Parish. This property is included in Sand Unit B of the Amoco Lockhart Crossing Field and is estimated to have a value of approximately $50,000.00 per acre. It is undisputed that at the time of the execution of the settlement agreement all parties thought that the sole asset of the estate was $3,809.85 in cash. Plaintiffs stipulated testimony is to the effect that she never would have entered into the settlement agreement if she had known of the potential claim. Upon learning of this claim, plaintiff instituted proceedings to have the release annulled and tendered back the money which she had received as consideration for the settlement.

Defendants assert that the trial court erred when it rendered judgment decreeing the nullity of the settlement agreement.

The law encourages the settlement of disputes by compromise, and such settlements should not be rescinded lightly. Salling Wiping Cloth Co., Inc. v. Sewell, Inc., 419 So.2d 112 (La.App. 2nd Cir.1982). A compromise may not be attacked for an error of law or lesion. La.C.C. art. 3078. However, compromises regulate only the differences which appear clearly to be comprehended by the parties and may be rescinded for: (1) error in the person; (2) error of fact on the matter in dispute; (3) fraud; or (4) violence. La.C.C. arts. 3073 and 3079; Halford v. Dugas, 422 So.2d 693 (La.App. 3rd Cir.1982); Matthew v. Melton Truck Lines, Inc., 310 So.2d 691 (La.App. 1st Cir.1975).

Plaintiff does not assert that there was any error in the person or that any fraud or violence was involved. The question thus becomes whether or not there was any error of fact on the “matter in dispute”. La.C.C. art. 3079. The burden of proving an error of fact on the matter in dispute to invalidate a compromise is on the party claiming it. Saunders v. New Orleans Public Service, Incorporated, 387 So.2d 603 (La.App. 4th Cir.1980), writ denied 394 So.2d 614 (La.1980).

A compromise is a form of contract. Richardson v. Ward, 202 So.2d 327 (La.App. 1st Cir.1967), writ refused 251 La. 389, 204 So.2d 573 (1967); Cole v. Lumbermens Mutual Casualty Company, 160 So.2d 785 (La.App. 3rd Cir.1964). Under the law of obligations, legally given consent of both parties is requisite to the validity of a contract, and there is no valid consent or contract where the consent has been produced by error. La.C.C. arts. 1779, 1819, 1821 and 1824; Cole, 160 So.2d at 787. The only error that invalidates a contract is an error which affects a principal cause for making the contract. La.C.C. art. 1823; Saunders, 387 So.2d at 603.

In the present case, a compromise was entered into between the parties based on a mutual error of fact that the sole asset of the estate was $3,809.85 in cash. The contract of compromise was based on the fact (relied on by both parties) that the succession consisted of only movable assets —cash. The record establishes that, in addition to the cash, the estate has a claim of ownership to an undivided one-half interest in 3.46 acres of immovable property. The parties were unaware of this claim at the time the compromise agreement was executed.

This case was submitted on a joint stipulation of facts which included statements of the parties and documentary evidence. Included in this stipulated evidence was Mrs. Durbin’s statement to the effect that she would not have entered the compromise had she known of the true facts. Also included was a statement by Mr. Durbin that had he known the true facts, he would have prevented Mrs. Durbin from executing the agreement.

Since there was no live testimony presented at trial, the trial judge is in no better position to assess the weight of the evidence than an appellate court. Thus, this court is not bound by the rules enunciated in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978) and Canter v. Koehring Company, 283 So.2d 716 (La.1973) when reviewing the evidence. F & S Offshore, Inc. v. Service Machine & Shipbuilding Corporation, 430 So.2d 1167 (La.App. 1st Cir.1983).

There was a mutual mistake of fact as to the assets of the succession. Based on the erroneous facts known to the parties when the compromise was executed, the “matter in dispute” was $423.52. The plaintiffs entitlement to inherit a portion of the 3.45 acres of immovable property was not a part of the dispute at that time. The plaintiff would not have agreed to the compromise had she known that her claim to the 3.46 acres was part of the dispute. The plaintiff has established that there was an error of fact on the “matter in dispute”. The ruling of the trial court is correct.

For the foregoing reasons, the judgment of the trial court is affirmed at the appellants’ costs.

AFFIRMED.

SHORTESS, J., dissents with reasons.

SHORTESS, Judge,

dissenting.

I respectfully dissent.

The majority has, in my opinion, reached the erroneous conclusion that the matter in dispute was $423.52. I feel that the matter in dispute was plaintiff’s interest in her grandfather’s estate. Her attorney-husband, after reviewing the records in defendant’s possession, concluded that the estate consisted of $3,809.85. Notwithstanding that knowledge, he prepared the very broad release we have before us, which provides:

Maurice C. Durbin does by these presents release, remise and forever discharge all the other parties hereto, of and from any right, claim, demand, pretension, action or cause of action of every nature of (sic) kind, which she had or might have asserted against them or any of them, in the Succession of Maurice K. Cockerham, intending that the present act of compromise and settlement shall be deemed and considered as a complete divestiture of her rights in said succession and as a bar against any further claim, right, or pretension against it or any of the other parties hereto.

The above language is clear and unambiguous. Plaintiff gave up all her right to the estate, and her aunt and uncle were willing to give her more than her legal share thereof in return for her agreement to settle all claims against the estate, to terminate efforts to attack the will, and to stop questioning the handling of the estate. This is the stuff of which compromises are made. La.C.C. art. 3071.

La.C.C. art. 3079 provides that error as to the “matter in dispute” is a ground for rescinding a compromise. However, it does not provide that error as to the quantity or quality of the matter in dispute would warrant rescission. In fact, La.C.C. art. 3078 states that compromises “can not be attacked on account of any error in law or any lesion.” (Emphasis added.) The error complained of by plaintiff is that she executed the compromise under the erroneous impression that only movables, i.e., cash, was involved when in fact a potential claim involving immovables was present. Thus, she bases her claim for rescission on the fact that she was ignorant as to the quantity and/or quality of the “matter in dispute,” i.e., the estate. I find no provision in the law to relieve her of her compromise which was written in the very broadest terms.

Compromises, by their very nature, contain a potential for loss as well as gain. La.C.C. art. 3071. The compromise in the instant case contains broad language and explains that plaintiff was “intending that the present act of compromise and settlement shall be deemed and considered as a complete divestiture of her rights in said succession_” (Emphasis added.) The instrument itself, prepared by plaintiff’s representative, reads that she discharges the other parties from all claims “which she had or might have asserted” and not just those of which she was presently apprised. Plaintiff is bound by her intent, as expressed in the settlement, to renounce all further rights in the succession. The result reached by the majority thwarts the substantive policy long adhered to by Louisiana courts. Compromises are favored under the law because they promote judicial efficiency by “permitting parties to resolve their differences without resorting to the judicial machinery.” Sailing Wiping Cloth Co. v. Sewell, Inc., 419 So.2d at 117.

I respectfully dissent.

      . If it is determined that the estate has no lawful right to the immovable property within the right of way, this dispute unfortunately will have to be resolved all over again.

      . This case is factually distinguishable from the Saunders case cited by the majority in that the record in the instant case contains no hint of over-reaching.


author: COLE, Judge.

text:
    Mrs. Adele M. BRUNET v. STATE of Louisiana.
    No. 83 CA 0172.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Russell Zaunbrecher and Nolan J. Edwards, Crowley, for plaintiff-appellant Adele Marguerite Brunet.
    A. Clay Pierce, Jr., Baton Rouge, for third party defendants-appellees Rockwood Insurance Company, R.D. Bushnell.
    Glenn R. Ducote, Baton Rouge, for defendant-third party plaintiff-appellee State of La., Department of Agriculture.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

This is a suit for workers’ compensation death benefits filed by the widow of Alois J. Mayer, Jr., who was killed in a car wreck while in the course and scope of his employment with the Louisiana Department of Agriculture. The ultimate issue is whether or not Mayer’s death was the result of his willful intention to injure himself so as to preclude recovery under the compensation law.

Mayer was killed immediately when his automobile struck the rear end of a flat-bed truck which was parked on the westbound shoulder of 1-10 in St. John the Baptist Parish. The collision occurred on April 20, 1976 at around 8:30 A.M. At the time, Mayer was driving from New Orleans to Baton Rouge for a meeting with his supervisors. It was stipulated he was in the course and scope of his employment with the Department of Agriculture when he died. The defendants, the State of Louisiana and its workers’ compensation insurer, defended the suit contending Mayer had intentionally injured himself. After trial on the merits, the trial court dismissed plaintiff’s suit pursuant to a finding that Mayer intentionally took his own life. From this adverse judgment, plaintiff has appealed.

The record shows Mr. Mayer was traveling westbound toward Baton Rouge at about 8:00 A.M. on a clear day. The autopsy performed after his death indicated his blood was free of alcohol and barbiturates. Two eyewitnesses testified they saw Mayer stop his car in the middle of the interstate highway by the side of the parked truck. Mayer then put his car in reverse and backed down the shoulder of the highway several hundred feet. The witnesses then saw him stop, put his ear in forward gear, accelerate quickly, and drive straight into the truck at a high rate of speed. These witnesses testified Mayer’s brake lights never came on, nor did he ever attempt to return to the highway, though there was no other car in the right driving lane to prevent his re-entry onto the highway. Mayer continued to accelerate until the point of collision and drove through several reflectors which were placed behind the disabled truck. These witnesses remained at the scene of the collision and gave statements to the State Police trooper who later arrived at the scene.

Another witness presented a totally different account of the accident. Plaintiff called Mr. John Wells on rebuttal. Mr. Wells is a truck driver who contends he was riding by Mayer when the wreck occurred. According to Wells, Mayer had just passed his truck when he began to drift off to the right side of the road. Mayer’s car left the road and hit the railings on the interstate, which is a long bridge where the collision occurred. Mayer’s car hit the bridge about 200 feet from the parked truck, and was thrown directly in line with the truck. Wells testified Mayer never hit his brakes, but he never put his car in reverse. Wells said he believed Mayer must have had a heart attack or had fallen asleep. Wells testified he stopped after the wreck and used his fire extinguisher on Mayer’s engine. However, he left before the state trooper arrived and did not make a statement. Mr. Wells also testified his truck was the only other automobile which was near Mayer at the point of the collision, though the other two witnesses claimed to have been within a few car lengths from the point of impact, and had expressed fear of being hit by flying debris.

One of plaintiff’s assignments of error charges the trial court erred when it found the testimony of Mr. Wells lacked credibility. We disagree with this contention.

The reviewing court must give great weight to the factual conclusions arrived at by the trier of fact. As has been said repeatedly, the trial court is better able to evaluate live witnesses, as compared with the appellate court’s access only to a cold record. Also, the proper allocation of trial and appellate functions between the respective courts requires us to defer to the trial court’s findings of fact unless we are able to assess those findings as “clearly wrong.” Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Since the trial court’s finding that the collision was intentional is supported by two other eyewitnesses, we cannot say the finding is clearly wrong. This is particularly true in this instance because the trial court made an express determination of credibility. The trial court stated:

“The court if often faced with determining credibility of witnesses. I know there are instances where people see things happening in which they get a different perspective as to the events that they see, and I think it’s quite obvious when you’re in court listening to witnesses testify relative to events that they’ve seen how, perhaps, it’s easy that people can see somehwat different things. I don’t see how witnesses in this case could have been so opposite. Which means, obviously, that this court has to determine the credibility of the witnesses. Which witnesses does the court believe? In determining credibility of witnesses you do not count noses. The quality of the witness is what we’re interested in, not the quantity. So the court never, never counts noses, but it listens to the witness. It observes the demeanor, looks for motives, contradictory evidence that’s given, then it arrives at a decision as to who it believes. There’s no question in my mind but that the testimony of John Wells is absolutely false. It’s not the facts of what occurred on April 20th, 1976 relative to events leading up to the death of Mr. Mayer.” (Emphasis added.)

The above narrative, perhaps better than anything a reviewing court might formulate, illustrates the function of the trial court and validates our deference to the trial court’s findings of fact. And, the fact this is a workers’ compensation case does not alter the approach. The determination of an employee’s conduct is a factual one and it can be reversed by an appellate court only upon a finding of manifest error, i.e., that the trial court was clearly wrong. Crump v. Hartford Acc. & Indemn. Co., 367 So.2d 300 (La.1979); Bennett v. Industrial Welding and Fabricating, 411 So.2d 574 (La.App. 1st Cir.1982). As regards this employee’s conduct the trial"court stated:

“It is a finding of fact that ... Mr. Mayer did stop by the truck, he backed his vehicle up, as a witness testified, several hundred yards, he stopped his vehicle, and he accelerated at a high rate of speed and rear ended the flatbed truck.”

These, then, are the basic facts, solidly ingrained for the application of law. From these facts the trial court concluded:

“The court finds from the evidence that it was an intentional act to injure himself....”

Aside from the great weight we, as a matter of law, must give this factual conclusion, it is clear the opposing evidence before the trial judge justified fully his belief that the testimony of John Wells was “absolutely false.”

Plaintiff’s next assignment of error concerns the burden of proof required of defendants in establishing the statutory defense provided by La.R.S. 23:1081. La.R.S. 23:1081 provides in pertinent part:

“No compensation shall be allowed for an injury caused (1) by the injured employee’s wilful intention to injure himself. ...
“In determining whether or not an employer shall be exempt from and relieved of paying compensation because of injury sustained by an employee for the causes and reasons set forth in this Section, the burden of proof shall be upon the employer.”

This statute provides a special defense which must be clearly established by the employer, who bears the burden of proof. Velotta v. Liberty Mutual Insurance Company, 241 La. 814, 132 So.2d 51 (1961); Armstrong v. Jefferson Disposal Company, 258 So.2d 213 (La.App. 4th Cir.1972), writ refused, 261 La. 532, 260 So.2d 318 (1972).

Plaintiff contends the trial court erred when it failed to place upon the defendants the burden of excluding every reasonable hypothesis other than suicide. In support of this argument, plaintiff cites the case of Rome v. Life & Casualty Insurance Co. of Tenn., 336 So.2d 275 (La.App. 1st Cir.1976), writ denied, 338 So.2d 1155 (La.1976). In Rome, the court held that “when suicide is offered as a defense to a suit upon an insurance policy the burden of proof rests heavily upon the insurer to establish the occurrence of the suicide to the exclusion of every other reasonable hypothesis.” 336 So.2d at 276.

We do not believe the burden of proof required in Rome applies in this case. Rome dealt with “suicide” as a contractual defense supplied by the insurance policy at issue in that case. This case involves a statutory defense which only requires proof of the employee’s “willful intention to injure himself.” In the absence of legislative language imposing the higher burden of proof required in Rome, we conclude the defense supplied by La.R.S. 23:1081 needs only to be established by the normal burden of proof in civil cases, that is, by a preponderance of the evidence. We think this applies, even under factual situations such as the present, where the employee’s willful intention to injure himself would almost certainly result in death. And, even if we were to assume, arguendo, the burden of proof in Rome was required, we believe the physical facts surrounding the death are such as to exclude every other reasonable hypothesis but that Mayer intended to take his own life.

In concluding the conduct of the decedent constituted an intentional act to injure himself, the trial court relied upon the case of Soileau v. Travelers Insurance Company, 198 So.2d 543 (La.App. 3d Cir.1967), writ refused, 250 La. 978, 200 So.2d 665. In Soileau, it was held where death is caused by suicide, workers’ compensation benefits may not be recovered unless it is established the act was the product of some form of insanity, mental disease, mental derangement or psychosis, which resulted from injury. Otherwise, the court held, a suicide is attributable to the decedent’s own volitional act which constitutes an independent intervening cause. The court added it is not sufficient for recovery to show the suicide resulted merely from the fact the decedent had become discouraged, depressed, despondent or melancholy as the result of an accident or injury. (Here, there was no prior accident or injury.)

We think the court’s reliance upon Soi-leau is well placed. The facts of this case are analogous to those of Soileau as regards possible motivations for willful intention to injure one’s own self. In Soileau, plaintiff asserted the death was employment-related, alleging decedent committed suicide because of despondency over her work-related injury. There was little indication she was contemplating such an act. Here, Mr. Mayer was concerned over what he perceived to be employment problems, including possible termination and whether or not he would receive retirement benefits. There was no indication he was contemplating suicide. Although Soileau is the only prior Louisiana case dealing with the problem of intent to injure one’s own self, it is a well reasoned opinion based upon a review of prevailing authorities from numerous jurisdictions.

The trial court did not articulate the burden of proof it imposed in this case. Its conclusion, however, that the decedent’s conduct constituted an intentional act to injure himself is a sound one. This is true under either the preponderance of the evidence rule or under the exclusion of every other reasonable hypothesis rule. And, as we view the problem, it is really immaterial whether the incident was, in fact, a suicide. It suffices the statutory defense was established.

Plaintiff’s final assignment of error specifies that the trial court erred in excluding the rebuttal testimony of Dr. Lyle LeCorgne, a psychologist, concerning the deceased’s propensity for suicide. The trial court excluded this testimony as outside the scope of rebuttal evidence, since the defendants in their case-in-chief had not tried to establish the decedent had a motive for suicide. While the matter of admission of rebuttal evidence is largely within the discretion of the trial court, Baltzar v. Missouri Pac. R.R., 406 So.2d 324 (La.App. 3d Cir.1981), the trial court erred in refusing to allow this testimony. It is true defendants did not attempt to establish a motive for suicide but the thrust of the defense, developed mainly through fact witnesses, was that the decedent had intentionally taken his own life. Testimony by a psychologist to the effect the decedent was not the kind of person who was prone to commit suicide would therefore seem to be proper on rebuttal. However, we have examined Dr. LeCorgne’s testimony which is before this Court on proffer, and we do not find it to be persuasive. His opinion the decedent was not predisposed towards suicide was not based upon personal knowledge of the decedent or upon an examination of the decedent. He obtained his information from depositions, and also from interviews of decedent’s wife and a former neighbor. This testimony is not very convincing given the facts surrounding the death.

For the above reasons, the judgment appealed from is affirmed at plaintiffs cost.

AFFIRMED.


author: COVINGTON, Judge.

text:
    Richmond F. KEMP, III v. STATE FARM FIRE AND CASUALTY COMPANY, et al.
    No. 83 CA 0179.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Writ Denied Jan. 27, 1984.
    Walker P. Macmurdo, Baton Rouge, for plaintiff-appellant Richard F. Kemp, III.
    Dale M. Maas, John Dale Powers and David M. Vaughn, Baton Rouge, for defendants-appellees Dr. Joseph C. Bonck and Joseph C. Bonck, Jr.
    Horace C. Lane, Baton Rouge, for defendant-appellee State Farm Fire and Casualty Co.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

Plaintiff, Richmond F. Kemp, III, sued defendants, State Farm Fire and Casualty Company, Dr. Joseph C. Bonck and Joseph C. Bonck, Jr., seeking recovery for personal injuries sustained when he attempted to light a butane gas burner which was located at Dr. Bonck’s camp. The issue presented for determination is whether Joseph C. Bonck, Jr. was an “insured” under a homeowners policy, No. 1800210195, issued by State Farm Fire and Casualty Company to Dr. Joseph C. Bonck. The trial court held that he was not an “insured” and granted a summary judgment in favor of State Farm. We affirm.

On July*8,1981, Dr. Joseph C. Bonck was the owner of a camp at Grand Isle. On that day, Joseph C. Bonck, Jr. and Richmond F. Kemp, III, both young men about twenty-one years of age, were at the Bonck camp, with Dr. Bonck’s permission, and both young men suffered burns when they attempted to light a butane gas burner to boil some crabs. Dr. Bonck did not accompany the young men on the trip and was not present when the accident occurred.

Dr. Bonck and Mary L. Bonck, the mother of Joseph C. Bonck, Jr., were divorced more than eight years ago, and Mrs. Bonck was given legal custody of Joseph, Jr., who has attained the age of majority, but continues to reside with his mother.

At the time of the accident, State Farm Fire and Casualty Company had in force a policy of homeowners insurance providing liability insurance coverage for Dr. Bonck, his second wife and their relatives residing with them in their household.

In the District Court, the judge granted the motion of State Farm for summary ■ judgment, finding no genuine issue as to a material fact. The District Court found that Joseph C. Bonck, Jr. was not a resident of his father’s household and, as a result, not insured under his father’s policy-

The Court below made its ruling based on the insurance policy and the depositions of Dr. Bonck, Joseph, Jr. and Richmond F. Kemp, III, all of these documents having been filed in evidence in connection with State Farm’s motion for summary judgment.

The depositions of Dr. Bonck and his son make it clear that the son was not residing with his father at the time of the accident. The policy insures Dr. Bonck and his second wife, as the named insureds, and those relatives of theirs who are residents of their household. The term “resident of household,” has been judicially interpreted many times in this state and the jurisprudence shows, under the established facts of this case, that Joseph, Jr. was not a resident of his father’s household. He resided with his mother.

Briefly, the depositions show that Dr. and Mrs. Mary L. Bonck were divorced when Joseph C. Bonck, Jr. was still a minor. The accident occurred many years later when Joseph, Jr. was about twenty-one years old. At the time he was a student at Southeastern Louisiana University, and still lived full time with his mother, who is insured by State Farm under another policy. The depositions show that in the divorce Mrs. Bonck was awarded custody of the son, and that he has lived with her up to the present time. The depositions also show that he did not spend any time at his father’s house. In fact, he could only remember spending the night there once in the last five years. He kept no clothes there and has not lived in his father’s house since Dr. Bonck and Mrs. Bonck were divorced.

The pertinent definition of “insured,” reading from the policy, is as follows:

* * * * ⅜! Sfc
3. “insured” means you and the following residents of your household:
a. your relatives;
b. any other person under the age of 21 who is in the care of any person named above.

In order to be insured under his father’s policy, Joseph, Jr. would have had to be a resident of his father’s household. The contrary is demonstrated by the testimony of Dr. Joseph C. Bonck.

Q. Doctor, do you recall what year you and your first wife were divorced?
A. I’d say about eight years ago.
Q. Okay.
A. We were separated about ten, divorced about eight.
Q. And was there a property settlement?
A. Yes, sir, there was.
Q. And did the Court award Mrs. Bonck custody of the children?
A. Yes, they did.
Q. Subsequent to the divorce, did Joe ever live with you at your house?
A. No, he hasn’t.
Q. And you heard him testify that he had spent one night in your house in the last four or five years. Would you agree with that?
A. That is certainly correct.
Q. Did he keep any clothes at your house, any possessions?
A. No, sir.

Joseph Bonck, Jr. testified in his deposition that his date of birth was March 2, 1959. At the time of the accident he was a college student. The following testimony from his deposition confirms that of his father to the effect that he was not on the date of the incident a resident of the household of Dr. Bonck:

Q. Are your mother and father divorced?
A. Yes, sir, they are.
Q. Do you know what year they were divorced?
A. No, sir. I’m not sure.
Q. About how long?
A. About 11, 12 years.
Q. Has either one of them remarried?
A. Yes, sir. My' father has.
Q. You would have been 11 or 12 years old when they got the divorce?
A. I believe I was 13.
Q. Do you know whose custody you were placed in as a result of the divorce?
A. Yes, sir. I was placed in my mother’s custody.
Q. Have you lived with her ever since?
A. Yes, sir, I have.
Q. What is her address?
A. 409 East Buffwood, B-u-f-f-w-o-o-d.
Q. And you were living with your mother in July of 1981 except for the time you put in at school?
A. Yes, sir, I was.
Q. Have you ever lived in your father’s house since he and your mother were divorced?
A. No, sir.
}⅜ !{! sj« ⅝ ‡ ⅝
Q. In the past several years, had you ever spent the night at your father’s house?
A. Yes, sir. I believe on one occasion I did.
Q. When was that?
A. It seems like maybe a year, a year and a half before the accident. I believe I stayed over. We were planning on going to Grand Isle fishing, before we had the camp. And I showed up. I came home about 10:30, 11:00 o’clock that night and stayed on his couch. And then we left like 4:00 or 5:00 in the morning to go fishing.
Q. Except for that occasion, have you ever spent another night at your father’s house in the last four, five years?
A. No, sir.

We find that Joseph C. Bonck, Jr. has at no timé since the divorce of his parents been a resident of his father’s household. He has lived with his mother from the time of the divorce up to and including the time of the accident. Therefore, he does not have coverage under his father’s policy because he is not a resident of his father’s household.

In the case of Bannerman v. St. Paul Mercury Indemnity Company, 144 So.2d 167, 170 (La.App. 1st Cir.1962), the Court said:

We do not believe that there can be any doubt that John Litchy was not a member of his father’s household at the time of the accident. Black’s Law Dictionary defines “household” as “A family living together” * * * “those who dwell under the same roof and compose a family.” In Leteff v. Maryland Casualty Company, La.App., 91 So. 2nd 123, this Court was concerned with determining the meaning of the phrase “member of household”. In that case, on Page 130, we stated as follows:
“Whether the term ‘household’ or ‘family’ is used, the term embraces a collection of persons as a single group, with one head, living together, a unit of permanent and domestic character, under one roof; a ‘collective body of persons living together within one curtilage, subsisting in common and their attention to a common object, the promotion of their mutual interest and social happiness.’ ” We do not believe that by any stretch of the imagination that John Litchy could be considered a member of his father’s household in this particular case.

Appellant, in his brief, relies upon Bond v. Commercial Union Assurance Co., 407 So.2d 401 (La.1981); Earl v. Commercial Union Assurance Company, 391 So.2d 934 (La.App.2d Cir.1980); and Taylor v. State Farm Mutual Automobile Insurance Company, 248 La. 246, 178 So.2d 238 (1965).

These cases are factually distinguishable from the case at bar.

In Bond, the son had an apartment in another town for work purposes only. The son still maintained a substantial connection with his father’s home, where he had actually maintained a residence. In Bond, the Court said:

... The deceased’s father testified, however, that his son kept only his work clothes and the bare essentials for apartment living in Lafayette.
Mr. Bond testified that his son lived at his home in Alexandria most of the time when he was not required to be on call for work. He had his own key to the house and came and went as he pleased. The deceased had his own room at the house in Alexandria and kept various items of personal property there, including a desk, most of his clothes, a gun collection, two dogs, stereo and camping equipment and other personal belongings. Young Bond was allowed free use of the family automobile to which he had duplicate keys. The deceased received various items of mail at the Alexandria address, including dividend checks from two different corporations, federal and state tax forms, car insurance payment notices, and mail from friends. Further, Mr. Bond testified that the deceased had a substantial relationship with the Alexandria social, commercial, and professional communities involving bank accounts, retail charge accounts, dental and other medical consultations, and church membership. Id., 407.

None of the circumstances found by the Court in Bond to indicate “residence” are found in the present case. Young Bonck had never lived with his father after the divorce, had no room in his father’s house, kept no clothing there and was not free to come and go at his father’s house, as was the situation in Bond.

The Earl case involved an unemanei-pated minor temporarily absent from the parental home with no intent being shown to establish a residence separate from that of the parents. It is not a similar situation to the instant case. The Court noted that:

Plaintiff was only temporarily in Houston. She visited her parents during her absence and there were plans for her to return to her father’s residence and attend college. She retained her room in her father’s home and there left part of her possessions. Her father aided her financially during her absence, and when she was injured she returned to her father’s household to convalesce. Plaintiff was temporarily absent from her father’s household at the time of the accident and had retained her status as a member of her father’s family group.
We conclude that plaintiff is a member of the same household as defendant’s named insured. Id., 938.

The Taylor case also involved an un-emancipated minor who was found to be a legal resident of the household of his undi-vorced parents although he resided temporarily elsewhere, because there had been no change of the relationship between the parents and the unemancipated minor child or establishment of a separate residence. In the instant case, there was a legal change or divestiture of residence. While he was yet a minor, young Bonck was legally residing with his mother under court order of custody. After he became of the age of majority he continued to reside with his mother, and never became a resident of his father’s household after the divorce.

We find the following cases applicable: Chapman v. Allstate Insurance Company, 306 So.2d 414 (La.App. 3rd Cir.1975), involved a child of divorced parents where the mother had legal custody. The child was a minor and was unemancipated, and had on several occasions stayed with his father for periods of a month or more, but actually resided with his mother. There was evidence that the child was going to live with the father as soon as school was out; however, the son had visited his father only after the latter had moved to Florida. The Court held that the child was not a member of his father's household; he was a legal resident of his mother’s household. The Court found that young Chapman was not a “legal resident” of his father’s household and, further, the Court found he was not an “actual” resident of his father’s household. The Court emphasized there was “a change of status by law.” The Court said:

... However, we do not find that Carl was an actual resident of the same household of his father. At the time of the accident Carl was living with his mother in Ville Platte. None of his belongings had been transferred to his father’s household in Kenner. Id., 416.

Another pertinent case is Dofflemyer v. Gilley, 395 So.2d 403 (La.App. 3rd Cir.1981), where the Court found that an un-emancipated minor no longer resided with his parents. In Dofflemyer the evidence showed that the minor’s decision to leave the parental home was voluntary, permanent and with no intention to return or be further dependent on his parents for support. The Court held that this removed him from the status of a member of his father’s household, even though he was still a minor. See also Flannigan v. Valli-ant, 371 So.2d 349 (La.App. 4th Cir.1979), where a minor who had removed all of his personal belongings from his father’s residence, and had become self-supporting and chose voluntarily to leave the residence, was held not to be residing with his father.

In the present case, young Bonck never resided in his father’s household after the divorce. Indeed he never intended to return to his father’s household as a resident.

Under the explicit provisions of LSA-C. C.P. arts. 966 and 967, it was proper for the trial court to render judgment in favor of State Farm because there was no genuine issue as to material fact and it was entitled to judgment as a matter of law. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980).

For the reasons stated above, the trial court’s granting of the motion for summary judgment is affirmed at appellant’s costs.

AFFIRMED.


author: SAVOIE, Judge.

text:
    Lawrence SIMS, Betty Sims and Hermanese Sims v. CRC HOLSTON, INC., Terminix Pest Control, Inc., Robert J. Fonseca, Herman J. Conner and the Home Insurance Company or Home Indemnity Company.
    No. 83 CA 0187.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Rehearing Denied Dec. 30, 1983.
    Writ Denied March 9, 1984.

      Lawrence A. Arcell, New Orleans, for plaintiffs and appellants.
    Frank J. Achary, Metairie, for defendant and appellee Herman J. Conner and CRC Holston, Inc.
    William Stark, Houma, for defendant and appellee Terminix Pest Control, Inc., and Robert J. Fonseca.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

This is a suit for damages sustained by Lawrence Sims, Betty Sims and their daughter, Hermánese Sims, as the result of a 3-car collision.

Defendants herein are Herman Conner; his employer, CRC Holston, Inc.; its insurer, The Home Indemnity Company; and Robert Fonseca and his employer, Terminix Pest Control, Inc.

By interrogatories, the jury found that defendants Conner, Holston and Home Indemnity were negligent and that their negligence was a proximate cause of this accident. Accordingly, it awarded monetary damages against these defendants. As to defendants Fonseca and Terminix, the jury concluded that although Fonseca and Ter-minix were negligent, their negligence was not a proximate cause of this accident. However, the jury also awarded damages against these defendants. See EXHIBIT 1 attached hereto.

In light of these findings, the trial court rendered judgment in favor of plaintiffs and against Conner, Holston and Home Indemnity. However, it dismissed plaintiffs’ demand against Fonseca and Terminix. Furthermore, the trial court dismissed the third party demand against Fonseca and Terminix. The court based its determination upon finding that: (1) the third party plaintiffs failed to prove by a preponderance of the evidence that their negligent acts and those of the third party defendants united to cause a single accident; (2) third party plaintiffs and defendants were not joint tortfeasors; and (3) the jury determined that Fonseca’s negligence was not a proximate cause of the accident.

From this judgment, plaintiffs appealed, alleging that the trial court erred in: (1) concluding that Fonseca’s and Terminix’s negligence was not a proximate cause of the accident, and (2) reducing the jury award by the percentage awarded against Fonseca and Terminix.

Defendants Conner, Holston and Home Indemnity also alleged several assignments of error in their brief. However, the record is devoid of any document constituting an answer to an appeal or an appeal by these defendants. Accordingly, these assignments of error are not before us for review. L.S.A.-C.C.P. art. 2133; Alleman v. Sentry Insurance Company, 257 So.2d 799 (La.App. 3rd Cir.), writ denied, 261 La. 466, 259 So.2d 915 (1972).

We recognize that plaintiffs’ contentions center around the jury’s inconsistent answers to the interrogatories given to it at the close of the evidence. In such instances, application of L.S.A.-C.C.P. art. 1812 was appropriate. It provides, in pertinent part, that when the answers to interrogatories are inconsistent with each other, the court shall not direct the entry of judgment but may return the jury for further consideration of its answers or may order a new trial.

Here, the trial court neither returned the jury for further consideration nor ordered a new trial. It is now impossible for us to determine exactly what the jury intended. Since we have the entire record before us, and since a firsthand view of the witnesses is not essential to a fair resolution of the conflicting evidence, we will decide the case. Ragas v. Argonaut Southwest Insurance Co., 388 So.2d 707 (La.1980).

The record reflects that plaintiffs’ vehicle was at a complete stop on the highway, waiting for another vehicle to negotiate a left turn. While in this position, plaintiffs’ vehicle was rear-ended by a truck driven by Conner. Immediately thereafter, Conner’s truck was rear-ended by a van driven by Fonseca.

Some question exists as to whether Conner’s vehicle was pushed into plaintiffs’ vehicle a second time as a result of the impact between Fonseca and Conner. It is this controversy that we must resolve.

LIABILITY

Hermánese Sims, driver of the first vehicle, testified that her vehicle was struck from behind twice. According to her, the first impact was harder and moved her vehicle approximately five feet. She approximated that the second impact moved her vehicle another three feet.

Betty Sims, a passenger in the first vehicle, agreed that there were two impacts and that the first impact was harder. She estimated that the vehicle moved forward a couple of feet after the first impact and two to three feet after the second impact. Mrs. Sims stated that she did not know how the second impact occurred.

Herman Conner, driver of the second vehicle, admitted that he rear-ended the Sims’ vehicle. Additionally, he stated that almost immediately thereafter, his truck was hit from behind by Fonseca’s van and pushed forward two to three feet. As a result thereof, he testified that his truck struck the Sims’ vehicle again, moving it eight to ten feet forward.

Robert Fonseca, driver of the third vehicle, stated he barely tapped Conner’s truck. He testified that this impact did not move Conner’s truck more than an inch and denied that it caused Conner to strike the Sims’ vehicle a second time.

Trooper Price, the investigating officer, testified that there were two impacts — Conner rear-ending the Sims’ vehicle and Fonseca rear-ending Conner’s truck. He stated that he questioned all of the persons involved in the accident and no one informed him that they had been hit twice. In addition, he stated that Mr. Conner did not indicate that he again hit the Sims’ vehicle as a result of his being rear-ended. Further, Trooper Price testified that the only physical evidence at the accident scene was some debris from the Sims’ vehicle. This debris was found approximately a foot or two under the front of Conner’s truck. Trooper Price explained that this indicated that the Sims’ and Conner’s vehicles moved only two to three feet as a result of all collisions.

We note that Trooper Price is the only disinterested witness in this case. His testimony that no vehicle was struck twice coincides with the testimony of Fonseca. In addition, Fonseca’s and Trooper Price’s testimony as to the vehicles’ positions after all impacts is closely related to plaintiffs’ and Conner’s testimony with respect to the vehicles’ positions after the first impact. Furthermore, we find that there is a wide discrepancy in plaintiffs’ and Conner’s testimony as to the force of the alleged second impact to plaintiffs’ vehicle. Such discrepancy affects the credence of their testimony as to the occurrence of a second impact to plaintiffs’ vehicle. Finally, the minimal physical damage to the front of Fonseca’s van and the rear of Conner’s truck supports the conclusion that the impact between these two vehicles was so minor that the possibility of that impact pushing Conner’s truck several feet into plaintiffs’ vehicle a second time is remote.

Taken as a whole, we conclude that plaintiffs have failed to prove by a preponderance of the evidence that the collision between Fonseca and Conner resulted in a second collision between Conner and plaintiffs. Therefore, Fonseca’s negligence was not a proximate cause of plaintiffs’ injuries.

However, we do find that the record established by a preponderance of the evidence that Conner’s negligence was a proximate cause of the accident and injuries sustained by plaintiffs. Thus, the only remaining issue is damages.

DAMAGES — HERMANESE SIMS

Dr. Harris, a family practitioner, examined Hermánese Sims in the emergency room after the accident. He testified that she complained of neck pain which he diagnosed as a cervical strain with contusions to the right shoulder. Dr. Harris prescribed an “ice to heat” treatment and a muscle relaxant and anti-inflammatory drug.

Several days later, Hermánese was seen by Dr. Nauls, a family practitioner who was in practice with Dr. Harris. Dr. Nauls testified that Hermánese complained of neck and back pain, and headaches. While he could find nothing physically wrong with Hermánese, he did find a subjective limitation of range of neck motion. Dr. Nauls prescribed pain medication, a muscle relaxer and heat. Approximately one week later, Hermánese returned, still complaining of neck and back pain. Dr. Nauls still could find no objective reasons for the pain and, therefore, referred her to an orthopedist.

Dr. Rhymes, an orthopedic surgeon, first saw Hermánese in January, 1981, approximately eight months after the accident. She was referred to him by her attorney.

Dr. Rhymes recounted that, at that time, Hermánese complained of neck and low back pain. He found some tenderness in her neck and lower back, accompanied by muscle spasms. He also noted that Her-mánese stood with a moderate amount of swayback which aggravated the muscle spasms. Dr. Rhymes’ treatment consisted primarily of physical therapy and exercise. By mid-April, Dr. Rhymes found no significant evidence of muscle spasms although Hermánese continued to experience some pain and swayback. However, the above mentioned complaints continued for a year and a half during which time the examinations results remained unchanged. Dr. Rhymes last treated Hermánese in July, 1982, at which time a CT scan was performed. The results thereof were normal.

Hermanese’s major complaint was her back pain which she contends caused her to remain in bed on numerous occasions. Because of these instances, she contends she missed over half her classes which attributed to her poor performance in school. Further, she testified that she continually sought medical attention from the school infirmaries, as well as occasionally from off-campus doctors. Hermánese also testified that she took her medication and exercised regularly. At the time of trial, Her-mánese maintained that she still experienced neck pain, although it was less than that experienced right after the accident.

Undoubtedly, Hermánese suffered a substantial amount of discomfort as a result of this accident. However, the evidence fails to substantiate that she sustained a serious bodily injury. Contrarily, the medical testimony indicates that Her-mánese suffered primarily a cervical strain and lower back tenderness aggravated by her being swayback. Accordingly, we award Hermánese Sims $796.00 for medical expenses, as reflected in the record, and fix general damages at $3,000.00.

DAMAGES — BETTY SIMS

Dr. Harris also examined Betty Sims in the emergency room following the accident. He diagnosed a subjective cervical strain and prescribed an “ice to heat” treatment and aspirin. Dr. Harris found no objective explanation for the pain. Further, he pointed out that normally a person similarly injured would not have come to the emergency room. However, since Mrs. Sims was already there with her daughter, she requested an examination.

Approximately nine days after the accident, Dr. Nauls examined Mrs. Sims for complaints of lower back pain. He determined her tailbone was tender and prescribed anti-inflammatory medication and heat. Dr. Nauls commented that he had neither any record of Mrs. Sims having been previously injured nor could he say with any degree of certainty that his diagnosis was related to the accident. Further, his records failed to reflect any complaints or diagnosis of neck pain.

Subsequently, Betty Sims was referred to Dr. Rhymes by her attorney. Upon her first visit in January, 1981, she complained of neck pain down to her left shoulder. Dr. Rhymes found tenderness in the left shoulder up to the base of her neck. He further determined that there was some muscle spasm in the shoulder and neck area. However, no other objective findings were discovered. Dr. Rhymes diagnosed a cervical sprain of the muscle and ligaments of the side of the neck and shoulder. Accordingly, he prescribed physical therapy and a medication for reducing swelling and inflammation around the sprains.

By the following month, Betty Sims experienced no tenderness. However, Dr. Rhymes recommended continued therapy and medication. Although she was to return in two weeks, she did not return for two months. At that time, she complained of more neck and lower back pain. Dr. Rhymes discovered some muscle spasm in the lower back area which had not previously existed but believed this was caused by female problems which Mrs. Sims was then experiencing. A week later, the tenderness was gone.

Subsequently, Mrs. Sims complained of injury to her entire left side. Dr. Rhymes performed a CT scan which results were normal. Over the next four months, Mrs. Sims continued these complaints for which Dr. Rhymes could find no logical explanation. In September, 1981, a myelogram and brain scan were performed on Mrs. Sims. Both test results proved normal. Dr. Rhymes saw Mrs. Sims on two more occasions — in March, 1982 and August, 1982 — at which times she further complained of neck pain.

At the time of trial, Mrs. Sims maintained that she was still experiencing neck pain, although it was less than that experienced immediately after the accident.

Undoubtedly, Mrs. Sims suffered some discomfort as a result of this accident. However, the evidence fails to indicate that she sustained a serious bodily injury therefrom. Contrarily, the medical testimony indicates • that Mrs. Sims’ neck pain was the only injury attributable to the accident. Her back pain was attributable to another cause completely unrelated to the accident. Accordingly, we award Betty Sims $1,577.25 for medical expenses, as reflected in the record, and fix general damages at $1,000.00.

DAMAGES — LAWRENCE SIMS

The testimony reveals that the rear of the Sims’ vehicle sustained a moderate amount of damage as a result of the accident. This included a dent in the back gate and the rear bumper. Accordingly, we award Mr. Sims $749.10 for property damage.

For the foregoing reasons, judgment of the trial court is amended and as amended affirmed. It is hereby ordered, adjudged and decreed that there be judgment in favor of Hermánese Sims and against Conner, CRC Holston, Inc. and The Home In-demmty Company, m solido, m the amount of $3,796.00; judgment in favor of Betty Sims and against Conner, CRC Holston, Inc. and The Home Indemnity Company, in solido, in the amount of $2,577.25; and judgment in favor of Lawrence Sims and against Conner, CRC Holston, Inc., and The Home Indemnity Company, in solido, in the amount of $749.10, together with legal interest on the above stated amounts from the date of judicial demand. All costs, including expert witness fees, in the amounts set forth in the trial court’s judgment, are to be borne by Conner, CRC Holston, Inc., and The Home Indemnity Company, in solido.

AMENDED AND AS AMENDED AFFIRMED.

EXHIBIT ‘1”

      . C.C.P. art. 2133 reads as follows:
      "An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later. The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer. Additionally, however, an appellee may by answer to the appeal, demand modification, revision, or reversal of the judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court. If an appellee files such an answer, all other parties to the incidental demand may file similar answers within fifteen days of the appellee’s action.”

      . See Exhibit 1 attached hereto.

      . C.C.P. art. 1812 reads as follows:
      “The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict.
      "When the general verdict and the answers are harmonious, the court shall direct the entry of the appropriate judgment upon the verdict and answers.
      "When the answers are consistent with each other but one or more is inconsistent with the general verdict, the court may direct the entry of judgment in accordance with the answers, notwithstanding the general verdict, or may return the jury for further consideration of its answers and verdict, or may order a new trial.

        “When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, the court shall not direct the entry of judgment but may return the jury for further consideration of its answers or may order a new trial." (Emphasis added).

      . See generally, Mart v. Schlumberger, Ltd., 422 So.2d 1205 (La.App. 1st Cir.1982), writ denied, 429 So.2d 128 (La.1983).

      . See generally, Autin v. Allstate Insurance Company, 402 So.2d 219 (La.App. 1st Cir.1981).

      . , , . , _ , . This figure was derived from the estimate report by Barbera Chevrolet, Inc., documented as P-1 and Plaintiff’s Proffer # 3. We extracted therefrom the cost of repair for only such damage that was proven to have resulted from the accident


text:
    ALL STAR FLOOR COVERING, INC. v. Mike TREECE.
    No. 83 CA 0189.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.
    Thomas K. Kirkpatrick, Baton Rouge, for plaintiff/appellee.
    Arthur J. Boudreaux, III, Baton Rouge, for defendant/appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

The issue in this case is whether or not plaintiffs attorney is entitled to attorney fees under La.R.S. 9:2781. There is no dispute as to the facts. Defendant Mike Treece purchased certain carpet from plaintiff. The carpet was installed in Mr. Treece’s home on June 27, 1982, and he was presented with an invoice for $614.98. The invoice stated the terms were “cash.” Two days later, on June 29, 1982, Mr. Treece wrote a check to All Star for this amount. All Star attempted to collect the check but it was returned to them marked “Account closed” and “Do not redeposit.” On August 5, 1982, the attorney for All Star wrote a letter to Mr. Treece, demanding payment of the $614.98 owed for the carpet. No payment was made so All Star filed suit on September 30, 1982. The suit was entitled “Petition on Open Account” and prayed for attorney fees under La.R.S. 9:2781.

At trial, defendant’s attorney stipulated the principal sum of $614.98 was due plaintiff. Left unresolved was whether or not plaintiffs attorney was entitled to attorney fees. The trial court ruled an open account had been established and awarded attorney fees of 25 per cent. Defendant applied for a new trial, a hearing was held on the matter and the new trial denied. Defendant then appealed.

The threshold question to be answered is whether or not the “arrangement” between the parties was in fact an “open account.”

Appellant argues, and we agree, that a single-transaction occurrence, such as we have here, does not constitute an “open account.” Appellee, on the other hand, insists that any time credit is extended, whether it is for a day or a year, an open account is created. The recent jurisprudence refutes this argument and appel-lee has cited no cases supporting his position.

In O.J. Rivero Towing Co. v. Coastal Flex Co., 414 So.2d 1384 (La.App. 4th Cir.1982), the plaintiff sued the defendant for damages caused by certain defective equipment sold to plaintiff by defendant. Defendant reconvened for cost of materials ordered but not paid for by plaintiff. The court found the seller (defendant) was enti-tied to be paid for the materials supplied but was not entitled to attorney fees because the transaction was not one on an “open account.” The court stated at page 1388:

“The work involved was for a single job and the record contains no evidence of other business transactions between plaintiff and defendant, or any expectation of future dealings. Under these circumstances we cannot find that this action is on an open account entitling plaintiff to attorney’s fees.” (Citations omitted.)

In Womack Bros. v. Equipment Rental Services, 399 So.2d 661 (La.App. 1st Cir.1981), plaintiff filed suit seeking payment for ■ repairs it had made on defendant’s equipment. Attorney fees were sought. This court reversed the trial court’s award of attorney fees, finding there was no “open account” under La.R.S. 9:2781. The court, remarked (page 664):

“The repair work on the pump was a single job, for which defendant tendered payment immediately (although later revoking it). The record contains no evidence of other business transactions between the parties, a line of credit extended to defendant, or any expectation of future dealings. In fact, the invoice for the repair work on the pump, which plaintiff introduced in evidence, specifically refers to the agreement as a ‘cash’ transaction. Under these circumstances, we cannot find that this action is one on open account, entitling plaintiff to attorney fees.” (Citations omitted.)

Several other cases support appellant’s contention that a single transaction does not amount to an open account. See, e.g., Seaboard Allied Milling Corp. v. Benitez, 408 So.2d 325 (La.App. 3d Cir.1981).

Plaintiff further contends defendant is required to pay attorney fees because the invoice delivered to defendant stated "... should it become necessary that this invoice be turned over to an attorney for collection, an additional 1% interest will be charged per month on past due accounts plus attorney fees and lien costs.”

We note, however, the defendant did not sign the invoice, although there was a space for him to do so>. Without his signature the provision is merely unilateral. The defendant cannot be bound simply because the statement concerning the attorney fees is printed on the invoice.

For these reasons, we amend the judgment of the trial court so as to delete the provision granting attorney fees. In all other respects the judgment is affirmed. Costs of this appeal are to be paid by appellee.

AMENDED, AND AS AMENDED, AFFIRMED.

      . The statute reads in pertinent part as follows:
      “A. When any person fails to pay an open account within thirty days after receipt of written demand therefor correctly setting forth the amount owed and a copy of the invoices in support thereof, that person shall be liable for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. Evidence of receipt of written demand by the spouse of the debtor, when they are living together as husband and wife, on behalf of the debtor may be introduced as evidence of written demand on the debtor.”

      . Sub-part "C" of La.R.S. 9:2781 has now been amended by Act 311 of 1983 to provide an "open account” includes single transaction accounts. Had this legislation been in effect at the time of the occurrence under consideration, plaintiff would be entitled to the attorney fee awarded.


text:
    John M. DAIGLE v. Sharon MELANCON and Anthony J. Melancon, Jr.
    No. 83 CA 0190.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 22, 1983.

      Chester Hugh Boyd, Baton Rouge, for plaintiff/appellee.
    Larry G. Starns, Denham Springs, for defendants/appellants.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

Plaintiff, John M. Daigle, filed suit seeking $2993.78 from defendants, Sharon Me-lancon and Anthony Melancon, Jr., as damages for the repair of a house leased to the defendants on Shadybrook Drive, Baton Rouge. The defendants reconvened for the return of a $1,000.00 deposit and for $10,-000.00 in damages. The trial court awarded the plaintiff $2,768.70 with legal interest and costs, and dismissed the reconventional demand. The defendants appealed. We amend in part and affirm in part.

The record reflects that on October 8, 1979, the defendants entered into a lease/purchase agreement of a new house and lot owned by Mr. Daigle. The agreement provided that the price of the house was $82,500.00 cash. In connection with the agreement, the purchasers made a cash deposit of $1,000 with the seller. Further, the agreement allowed the purchasers to occupy the house for a monthly rental of $600.00 until the sale, which was to occur by December 31, 1980.

The defendants, their two children, Mrs. Melancon’s mother, an invalid uncle and three dogs moved into the house and lived there, under the original agreement. The defendants later notified the seller that they could not afford to purchase the house, but wished to occupy it for an additional six month period, which would end June 30, 1981.

On December 1, 1980, a new, 6-month “lease agreement”, with an increased monthly rental, was signed between the parties. The defendants moved out of the house during the middle of June, 1981. After their removal, plaintiff inspected the premises and determined that extensive cleaning and repairs were needed. Plaintiff had the work done and afterwards filed the suit seeking damages for the repairs. Defendants reconvened seeking the return of the deposit which' was made in connection with the original agreement and damages. The court below awarded plaintiff the amount sought, subject to certain adjustments, and denied the defendants’ re-conventional demand.

The house was new when delivered to the defendants. The evidence clearly supports the plaintiff’s claims regarding the condition of the house when vacated by the defendants. Plaintiff’s witnesses established that the carpet needed replacing; the kitchen cabinets and formica counter-top were scratched and scarred from abusive use; the interior walls needed repainting; an exterior post, a window screen, and a portion of bifold doors needed replacing; several nails had been driven in the mortar on the face of the living room fireplace; and the house was infested with fleas. The defendants did not deny that some damage to the house had occurred, but they attempted to diminish the magnitude of the damage. The trial court found that the plaintiff had proved his claim for damages and made the award complained of.

There is a presumption that the lessee received the premises in good order. LSA-C.C. arts. 2719, 2720. This is especially true in a situation, such as in the instant case, where the leased house is new. As stated above, the lessor proved the damage to the premises. Once the lessor has established proof of damage, the lessee must then go forward with proof that the damages occurred prior to the commencement of his lease or they occurred without his fault during his tenancy. Speirer v. McIntosh, 342 So.2d 238 (La. App. 4th Cir.1977); Schmidt v. Cohan, 96 So.2d 400 (La.App. 2nd Cir.1957).

The court in the instant case found that the plaintiff had proved that the house had been damaged, that the defendants’ evidence failed to absolve them of fault and that the repairs made by the plaintiff were necessary and proper. The record supports the trial court’s fixing of damages under the circumstances of this case. St. Tammany Investment Properties, Inc. v. Cairns, 425 So.2d 252 (La.App. 1st Cir.1982).

The next issue raised on appeal concerns the $1,000.00 deposit made by defendants to plaintiff when the original lease/purchase agreement was signed. Appellants contend that it was a refundable “security” deposit and therefore should be returned.

The contract of October 8, 1979, is clearly a purchase agreement, with lease provisions. The contract required that a deposit “... as part óf the cash payment, in the sum of one thousand dollars ...” be made with the seller. It also stipulated that: “This deposit shall not be considered as earnest money ... Time is of the essence in this contract. In the event of default by either party, the non-defaulting party shall have the right to demand and sue for specific performance and/or damages.”

The “Lease Agreement” dated December 1, 1980 provided “This agreement is to take the place of the original lease/purchase agreement ... if sale is not passed by December 31, 1980. If sale is not passed by December 31, 1980, the original agreement shall be deemed null and void.”

When the sale did not take place by December 31, the Melancons continued to occupy the house as tenants under the December 1 agreement. They were never placed in default by appellee, and they requested the $1,000.00 be applied to the June, 1981 rent.

The contract of October 8 specified that the deposit was not earnest money, and was to be applied to the purchase price at the act of sale. The agreement of December 1 provided for the cancellation of the October 8th agreement upon the happening of an event — i.e., failure of the purchaser to take title by December 31. Since that event occurred without either party being in default, the deposit should have been returned to the purchasers. LSA-C.C. art. 2463; Southern Pacific Transportation Company v. Port-O-Call, Inc., 314 So.2d 755 (La.App. 4th Cir.1975), writ denied 318 So.2d 45 (La.1975). Under the circumstances of this case, the $1,000.00 retained by appellee shall be credited against the judgment of $2,768.70 in his favor.

For the reasons assigned, the judgment of the trial court is affirmed in part and amended in part. The costs of this appeal shall be divided equally between appellants and appellee, and the costs in the trial court shall be paid by appellant.

AMENDED AND AFFIRMED.