Weinhardt v. Weinhardt, 2961

• Decision Date: 15 July 1968
• Docket Number: No. 2961,2961
• Citation: 214 So.2d 254
• Parties: Joseph E. WEINHARDT v. Olga W. WEINHARDT and Lojewol Corporation.
• Court: Court of Appeal of Louisiana — District of US

Page 254

214 So.2d 254

Joseph E. WEINHARDT v. Olga W. WEINHARDT and Lojewol Corporation.

No. 2961.

Court of Appeal of Louisiana, Fourth Circuit.

July 15, 1968.

Rehearing Denied Oct. 7, 1968.

Writ Refused Dec. 10, 1968.

Nathan Greenberg, Gilbert P. Cohen, Gretna, for Joseph E. Weinhardt, plaintiff-appellant.

Frank P. Krieger and A. G. Williams, New Orleans, for Olga Weinhardt and Lojewol Corporation, defendant-appellee.

Before YARRUT, SAMUEL and CHASEZ, JJ.

CHASEZ, Judge.

The matter before us in this appeal while involving a lengthy and complicated series of events, in our opinion poses but one question for our determination. This question can be stated simply as to what degree of responsibility should we hold a gratuitous mandatary in the administration of her office.

In 1962 Joseph Weinhardt, plaintiff herein, was suffering from a series of ailments including diabetes, which kept him in poor health . His brother's widow, Mrs. Olga Weinhardt, defendant herein who lived but a few houses from plaintiff, saw him daily and cared for him as best she could. Joseph Weinhardt was an elderly man and at that time it seemed that he did not have long to live.

On March 16, 1962 he affixed his signature to an act of procuration by which Olga Weinhardt was given the power of attorney over Joseph's entire estate. Later Joseph Weinhardt was to deny having any knowledge of this act, either of its contents or its preparation, however he did admit that it bore his signature. We will speak of this document in greater detail below. Subsequently Joseph Weinhardt was hospitalized for what his physicians considered a terminal diabetic coma. However, he made a remarkable recovery and was able to return home.

Pursuant to the powers which she had vested in her by this power of attorney, and acting upon the advice given to her by the attorney-at-law of her own choosing, one Dean A. Andrews, Olga Weinhardt transferred all the property belonging to Joseph Weinhardt, which was considerable, to the Lojewol Corporation, a 'real estate holding company' created specifically for that purpose. Included in this property were some six lots in and around the City of New Orleans, as well as the money on deposit in Joseph Weinhardt's name in certain savings and loan and banking institutions in New Orleans. These savings accounts alone amounted to over $17,000.00.

Olga Weinhardt then, with her daughter Lois Weinhardt, as officers of Lojewol, and again on the advice of Mr. Dean A. Andrews, paid out to Mr. Andrews from Lojewol's account the total sum of $15,406.00 and accepted in return Andrews' unsecured promissory note in the sum of $15,432.00. It was allegedly her intention that Mr. Andrews invest this money in a 'profitable business venture', rather than simply letting it remain in the savings institutions accruing a stable rate of interest. Then to complete this improbable misadventure, in Mr. Andrews' words, his friend to whom the money was entrusted, 'went south with the money', and it was lost to its real owner Joseph Weinhardt.

When Joseph Weinhardt had recuperated from his long seige of illness he became aware through his accountant who tabulated his income tax for the year that something was amiss with his fortunes. He immediately secured legal counsel and took immediate action to recoup his property.

Suit was subsequently filed by Joseph Weinhardt against Lojewol and Mrs. Weinhardt. After some delay Mrs. Weinhardt's attorney, the aforementioned Mr. Andrews, acting for her and the corporation, as a magnanimous gesture of his complete good faith, allowed judgment by consent to be rendered against his clients Lojewol and Mrs. Weinhardt. Mrs. Weinhardt then sought other legal representation and was able to have the consent judgment annulled as to her. The part of the judgment against Lojewol was executed and all the real property and some cash were returned to Joseph Weinhardt. Further Mr. Andrews returned $1,000.00 himself and as a result of a foreclosure on his home a sum in excess of $3,000.00 was returned to Joseph Weinhardt.

In the meantime a trial was had on the merits as to that part of Joseph Weinhardt's suit which attempted to seek personal recovery from Olga Weinhardt. The amount of the still unrecovered monies was $10,652.05, and it was this sum specifically which was prayed for. Judgment was subsequently rendered in Olga Weinhardt's favor and against Joseph Weinhardt, rejecting his claims of the personal liability of Olga Weinhardt. It is this judgment which is the subject of this appeal.

In addition there was controversy as to the introduction into the record on this appeal certain testimony given by Dean Andrews taken on Olga Weinhardt's hearing for the annulment of the original consent judgment as to her. The trial court on rule decreed that this testimony should have been made part of the record on appeal. Joseph Weinhardt has taken a separate appeal from this decision, and it is also here before us.

As to this latter decision we are of the opinion that the trial judge was correct in holding that this testimony properly forms a part of the entire record, and should now be before us. It forms but one element of the entire proceeding as it developed in the trial below. As such it correctly forms part of the matter on appeal and should remain part of the record herein. It is noteworthy that the testimony certainly does no prejudice to plaintiff's case, to the contrary it tends to aid his cause, yet it was plaintiff who sought to have the testimony excluded.

We are of the opinion that the judgment on the merits which relieved Olga Weinhardt from personal responsibility, was also correct.

The trial judge quoted LSA-C.C. art. 3003 in his reasons for judgment and concluded by stating:

'We note that the responsibility with respect to faults, Art. 3003 of the Louisiana Civil Code, is enforced less rigorously against the mandatary acting gratuitously than against him who receives a reward.

'Mrs. Weinhardt acted gratuitously. There will be judgment dismissing the suit insofar as Mrs. Weinhardt is concerned.'

He was correct in applying article 3003 to the facts as presented in this case. However we do not believe that that article by itself should preclude recovery. It provides:

'Art. 3003. The attorney is responsible, not only for unfaithfulness in his management, but also for his fault or neglect.

'Nevertheless, the responsibility with respect to faults, is enforced less rigorously against the mandatary acting gratuitously, than against him who receives a reward.'

Before we can make an accurate determination of all the legal principles involved herein, we feel that a close examination of the act of Procuration is in order. This document in pertinent parts provides as follows:

'BY THIS INSTRUMENT OF PROCURATION

'BE IT KNOWN, That on this 16th day of March in the year of our Lord one thousand nine hundred and sixty-two * * *

* * *

* * *

'BEFORE ME, DEAN A. ANDREWS, JR., Notary Public, in and for the Jefferson * * * PERSONALLY

CAME AND APPEARED:

'Joseph Weinhardt, * * *

'who declared that he had made and appointed, and he does by these presents make, nominate, ordain authorize, constitute and appoint, and in his place and stead, depute and put Olga M. Weinhardt, * * * to be his true and lawful Attorney in fact, general and special, giving, and by these presents granting unto the said Attorney full power and authority for him and in his name and behalf, and to his use; to conduct, manage and transact all and singular his affairs, business and concerns of whatever nature or kind, without any exception or reservation whatsoever; to open all letters of correspondence addressed to him and to answer the same; to Make and endorse promissory notes in the name of Joseph Weinhardt and draw, endorse and accept bills of exchange; to make checks...