author: ELLIS, Judge:

text:
    Joseph D. LUPO, Plaintiff and Appellant, v. Mildred D. LUPO, Defendant and Appellee.
    No. 12269.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.
    Rehearing Denied Jan. 16, 1979.

      Joseph D. Lupo, pro se.
    Iddo Pittman, Hammond, counsel for Mildred D. Lupo.
    Before ELLIS, BLANCHE, and LOT-TINGER, JJ.
   ELLIS, Judge:

This is a suit for divorce. Plaintiff is Joseph D. Lupo and defendant is Mildred Doles Lupo. The parties were married in 1946, and were the parents of seven children, two of whom were minors at the time of these proceedings.

Prior to the institution of this suit, a judgment of separation from bed and board had been rendered in favor of plaintiff herein on May 16, 1975, in a proceeding in the 22nd Judicial District Court for St. Tammany Parish. Plaintiff, in his petition, has judicially admitted that there was a reconciliation following that judgment, and this is not disputed by defendant. Apparently, the community was reestablished by. notarial act, since both parties so testified, although no copy of the act appears in the record.

The parties once again became estranged, as early as May 30, 1975, according to defendant, or as late as July 26, 1975, according to plaintiff. This suit was instituted on July 27, 1977, by Mr. Lupo, seeking a divorce on the ground of living separate and apart for two years, custody of the two minor children, and a dissolution of the community. Defendant answered, seeking a divorce in her favor on the same ground, custody of the minor children, alimony and child support, an inventory of the community property, and an injunction to prevent plaintiff from disposing of the community property. In addition, a rule for an injunction, custody, alimony and child support pendente lite was fixed for hearing.

Plaintiff then filed exceptions of vagueness and lis pendens, the latter exception being based on the fact that an alimony rule had been filed in the proceeding in St. Tammany Parish, and was then pending. Later, plaintiff filed an exception of res judicata and exceptions of no cause and no right of action to the rule, based on the judgment of separation rendered in St. Tammany Parish on May 16, 1975, and an order bonding an injunction issued in yet another suit filed by Mr. Lupo against Mrs. Lupo in Tangipahoa Parish, concerning which we are not otherwise enlightened.

The matter eventually came to trial before Judge Leon Ford, on the exceptions. Judgment was signed, overruling all exceptions. Subsequently, Judge Ford also heard the rule for alimony, child support, custody and the injunction, and rendered a judgment granting a preliminary injunction, giving custody of the children to Mrs. Lupo, and fixing alimony in the amount of $200.00 per month, and child support in the amount of $200.00 per month per child.

Defendant then filed a motion for summary judgment, asking for a divorce, custody and permanent alimony. Plaintiff filed an opposition to that motion, and filed a motion to bond the injunction preventing him from alienating the community property, as well as a motion to release interest income on certain community and separate funds. Both of these motions are based on the allegation that plaintiff needed the money to pay community debts.

Shortly thereafter, on February 6, 1978, the case was transferred from Judge Ford to Judge Ben R. Miller, who was sitting as judge-ad-hoc in the 21st Judicial District. On February 10, 1978, a conference was held among Judge Miller, counsel for defendant, and Mr. Lupo in the judge’s chambers at the courthouse in Livingston Parish. There is no written record of what took place at this conference, and no formal order was signed. However, at the time of the trial, the district judge stated for the record that, at the conference, Mr. Lupo was advised that the Case was going to be brought up on its merits on February 24, 1978; that he could present any witnesses he wanted to at that time; and that the judge would read any previous testimony bearing on the matter.

On February 14th, Mr. Lupo filed an “Exception of Prematurity of Motion for Trial Date”, based on there being interlocutory matters not disposed of in the record.

When the case was called on February 24th, Mr. Lupo objected to going to trial on the merits because he was not notified of a motion for a pre-trial conference, and because there was no pre-trial order in the record. The trial judge overruled that objection; peremptorily denied the motion to bond the injunction and the motion to release the interest income, and heard the trial on the merits. At the conclusion, he granted a divorce to Mr. Lupo, granted custody to Mrs. Lupo, and awarded alimony in the amount of $200.00 per month to Mrs. Lupo and in the amount of $200.00 per month for each of the minor children. After a motion for a new trial was denied, without a hearing, by the trial judge, Mr. Lupo appealed the judgment to this court, assigning a number of errors.

First, he asserts that the court erred in overruling his exception of lis pendens. Of course, the rule in St. Tammany Parish could not be validly prosecuted, because it was brought in a matter which had been legally extinguished by the reconciliation of the parties. Since plaintiff has judicially admitted the reconciliation, he cannot rely on the alleged validity, of that judgment.

Second, he complains that the court erred in overruling his exceptions of res judicata and of no right of action and no cause of action. These exceptions are also predicated on the validity of the judgment of separation rendered in St. Tammany Parish, which was extinguished by the reconciliation of the parties and the reconstitution of the community between them. They are without merit.

Plaintiff then contends that the court erred in holding hearings pendente lite, because there was no contest on the merits of the divorce. It may be that the interest of judicial economy might best have been served by an early trial on the merits, but we find no irregularity in the procedures followed relative to the hearings held by Judge Ford. These took place pursuant to motion, in proper order, and without objection on the part of plaintiff. In brief, plaintiff states that he put on evidence sufficient to support a judgment of divorce, but that the judge refused to grant the divorce. This ruling was, of course, proper, since the matter was not before the court on its merits.

Next, plaintiff objects to the alleged arbitrary dismissal of his motion to bond the injunction. We learn from the record that plaintiff and defendant had a substantial sum of money on deposit in various financial institutions, which produced an income in excess of $4,000.00 per year. There is a dispute as to the separate or community nature of a portion of these funds. Plaintiff wished to post a bond to secure defendant’s interest in these funds, and obtain possession of them.

Plaintiff has furnished no authority for the proposition that community property subject to an injunction can be released to one partner on the posting of a bond. Since the adoption of the Code of Civil Procedure, and the repeal of Article 307 of the Code of Practice of 1825, there is no provision in our law for the bonding of injunctions of any sort. Further, as pointed out by the trial judge, the extent of the community property has not been determined. The motion was properly overruled.

Plaintiff’s other motion, to have the income from the above funds released from the injunction, so that it might be used to pay community debts, was dismissed by the trial judge, without hearing evidence or ar-' gument.

According to his motion, the debts which plaintiff wanted to pay were alimony pen-dente lite, child support, insurance premiums and property taxes. It would appear that none of these could properly be considered community debts since they arose subsequent to the institution of this suit. Article 150, Civil Code. In any event, we doubt that the judge has the authority to grant such a motion, except by consent, in the light of the injunctive provisions of Article 149 of the Civil Code. We find no error in the ruling.

Plaintiff’s fifth specification of error relates to the manner in which the pre-trial conference was noticed and conducted, and the manner in which the case was fixed for trial on the merits.

The Code of Civil Procedure contains the following provisions on the assignment of cases for trial:

“Art. 1571. The district courts shall prescribe the procedure for assigning cases for trial, by rules which shall:
“(1) Require adequate notice of trial to all parties; and
“(2) Prescribe the order of preference in accordance with law.
“These rules shall not allow the assignment of ordinary proceedings for trial except after answer filed.”
“Art. 1572. The clerk shall give written notice of the date of the trial whenever a written request therefor is filed in the record or is made by registered mail by a party or counsel of record. This notice shall be mailed by the clerk, properly stamped and addressed, at least ten days before the date fixed for the trial.”

Rule IX of the Rules of the Twenty-First Judicial District Court provides:

“Section 1. Assignment of civil cases on the merits will be made on oral or written motion in the division to which the case has been allotted or transferred. Assignments may also be made at pre-trial conferences.
“Section 2. Motions and exceptions may be fixed in the same manner as provided for in Section 1, or by the Clerk of Court at the written request of any party. “Section 3. Unless it is otherwise specifically provided by statute, at least fifteen days’ notice will be required for trial on the merits and five days’ notice on motions, rules and exceptions. These delays will commence on the day after the notice provided for in Section 4.
“Section 4. The Clerk of Court, within two judicial days, will give written notice to all parties of any assignment.”

Clearly, under the rules of his own court, the assignment for trial made by the trial judge was improper. Less than 15 days’ actual notice'was given verbally by the trial judge, and the written notice required by Section 4 of Rule IX was never sent. Such an assignment for trial cannot be valid if objected to, and plaintiff’s objection appears in the record in writing, and was made to the trial judge orally before the start of the trial.

We are aware of the jurisprudential rule that an appellate court may not take judicial notice of the rules of a district court, if the rules are not placed in evidence in the case being considered. See Bryant v. Travelers Insurance Co., 288 So.2d 606 (La.1974). However, since the rendition of that opinion, and the prior jurisprudence to that effect, the rules of all the district courts have been compiled, are published annually by West Publishing Company, and are in the possession of virtually every judge and lawyer in the state. Under those circumstances the rule of the Bryant case, supra, is outmoded. We do not believe we should be held to ignorance of that which is readily to hand, particularly when it is decisive of the case under consideration. We will, therefore, take judicial notice of the rules of the Twenty-First Judicial District Court.

We hold that the trial judge should have maintained plaintiff’s objection to going to trial on the merits of the case, and should have heard the case only on the interlocutory matters then pending before it.

The judgment appealed from is therefore reversed and set aside, and this case is remanded to the trial court for trial on its merits, in accordance with law. All costs of this appeal shall be paid by defendant. All other costs shall await final disposition of the case on its merits.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    James JACKSON and Sandra Faye Jackson, Plaintiffs-Appellants, v. Eddie W. GORDON and Curtie Lucille Garner Davis, Defendants-Appellees.
    No. 12291.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.
    Rehearing Denied Jan. 16, 1979.
    Sam J. Dileo, Jr., Hammond, for James Jackson and Sandra Faye Jackson, plaintiffs-appellants.
    E. Lynn Singleton, Greensburg, for Eddie W. Gordon and Curtie Lucille Garner Davis, defendants-appellees.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is a suit by illegitimate children to have a judgment of possession in the father’s succession declared null and void. From a summary judgment in favor of the defendants, plaintiffs have appealed.

Plaintiffs attached to their petition a copy of an affidavit signed by the deceased wherein he acknowledged both of the plaintiffs as his illegitimate children. The affidavit in part states:

“Affiant has been married three times, as follows:
“Affiant was married to Helen Walker about 1946, at Hammond, Tangipahoa Parish, Louisiana, and said marriage was terminated by a divorce at Amite, Tangipahoa Parish, Louisiana, about 1957;
“Affiant was married to Ruth Jennings on or about June 15, 1967, at Amite, Tangipahoa Parish, Louisiana, and said marriage was terminated by divorce at Kansas City, Jackson County, Missouri, about 1971; and
“Affiant was remarried to the aforementioned Ruth Gordon nee Ruth Jennings, about June, 1972, at Kansas City, Missouri, and said marriage was terminated by a decree of dissolution of marriage on or about February 14, 1974, at Kansas City, Jackson County, Missouri.
“Affiant did not have any children born of any one of the three marriages mentioned next above.
“Affiant does have two natural children, namely:
“James Jackson, a son, who was born on May 8, 1957, at Independence, Tan-gipahoa Parish, Louisiana, who now lives in Independence, Tangipahoa Parish, Louisiana; and
“Sandra Faye Jackson, a daughter, who was born on November, 1958, at Independence, Tangipahoa Parish, Louisiana, who now lives in Independence, Tangipahoa Parish, Louisiana.”

In an affidavit attached to the defendants’ motion for summary judgment, the affiant states “that James B. Gordon [decedent] was married to Helen Walker in about 1957, and he was divorced from her by Judgment of Divorce dated June 28, 1967, and that she [affiant] was one of the witnesses who testified in said divorce proceeding.” Also attached to the motion for summary judgment is a certified copy of the divorce decree dated June 28, 1967.

Obviously there exists some confusion as to when the decedent married Helen Walker, and whether he was married or divorced at the time of conception of these two plaintiffs.

Though the constitutional issue was not pleaded to the trial court it was apparently briefed and argued. Thus the trial judge obviously considered it, and it is properly before this court. Summerell v. Phillips, 258 La. 587, 247 So.2d 542 (1971).

If the plaintiffs as illegitimate offspring of the decedent were eligible to be acknowledged, and were so acknowledged, then the constitutional issue is denial of equal protection of the laws based on sex, Art. 1, § 8, La.Const. (1974), in that acknowledged natural children are treated differently in the father’s succession, La.C.C. art. 919 vis-a-vis the mother’s succession, La.C.C. art. 918.

However, if there existed an impediment to the marriage of the natural parents at the time of conception, no acknowledgement could be made unless the parents contracted a legal marriage with each other. La.C.C. art. 204. The constitutional issue in this factual situation would be denial of equal protection of the laws based on birth. Art. 1, § 3, La.Const. (1974).

Necessarily then, the date of marriage of decedent to Helen Walker, date of divorce, as well as birth dates of plaintiffs, proven with certainty — preferable with the use of documentary evidence — become crucial facts in determining which, if either or both, of these constitutional issues resolves this lawsuit.

Because of the confusion as to the date of marriage, we find there exists a genuine issue of material fact, La.C.C.P. art. 966, and thus the trial judge was in error in granting a motion for summary judgment.

Therefore, for the above and foregoing reasons the judgment of the trial court is reversed and remanded for further proceedings not inconsistent with the views expressed hereinabove. All costs of this proceeding are to be paid by defendants-appel-lees.

REVERSED AND REMANDED.


text:
    BENTON CASING SERVICE, INC., Plaintiff and Appellee, v. AVEMCO INSURANCE COMPANY, Defendant and Appellant.
    No. 12296.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.
    Rehearing Denied Jan. 16, 1979.
    Writ Granted Feb. 23, 1979.
    Stanwood R. Duval, Jr., Houma, for plaintiff and appellee.
    Robert E. Peyton, New Orleans, for defendant and appellant.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is a suit by plaintiff, Benton Casing Service, Inc. (Benton), against its insurer, Avemco Insurance Co. (Avemco), under an aircraft policy for the total loss of its airplane as a result of an engine malfunction and ensuing crash landing. From a judgment in favor of plaintiff, defendant appeals.

On September 1, 1976, Harry Roth, a pilot-salesman for Benton, upon departure from Lafayette Airport in a Cessna 185 amphib experienced engine failure and executed an emergency landing resulting in extensive damage to the aircraft. Plaintiff, as owner of the aircraft, maintained a policy of insurance issued by defendant and in effect on the date of the accident. The trial court awarded plaintiff $42,500.00 together with 7% per annum interest from judicial demand, and all costs.

In denying coverage, defendant contends that Harry Roth, the pilot at the time of the accident, was not listed in the policy or in any endorsements and cites the following as found on the “declarations” page of the policy:

“Item 7. PILOTS: This policy applies when the aircraft is in flight, only while being operated by one of the following pilots (indicated by X below) who, (1) holds a valid and effective Pilot and Medical Certificate, (2) has a current biennial flight review and (3) if carrying passengers, has completed at least three Take-Offs and Landings within the preceding 90 days in an aircraft of the same make and model as the insured aircraft: * # % >>

The only pilot listed is Sammy Whatley. In an endorsement to the policy the only pilot listed is Billy Kirkpatric.

The trial judge has not favored us with written reasons for judgment. In ruling for plaintiff he could have concluded that (1) because of the past activities of the defendant, Avemco is estopped from pleading the failure to include Harry Roth as a pilot, or (2) the failure to list Harry Roth as a pilot was not “such a breach as would increase either the moral or physical hazard under the policy,” La.R.S. 22:692.

1. ESTOPPEL

We find no evidence in the record which would lead this court to believe that past actions have placed the defendant in the position of being estopped from pleading the failure to include Harry Roth as a pilot. The office manager of Benton testified that it was not the custom to use a written form to add a pilot to the policy, but that a phone call followed up by written confirmation was sufficient. The representative of the defendant stated that phone calls confirmed in writing were accepted as accommodations to their insureds. In the instant case, however, no contact, either via telephone or in writing, with the defendant was made by plaintiff prior to the crash. Thus we conclude that the trial judge did not rule in favor of plaintiff based on a theory of estoppel.

2. MORAL OR PHYSICAL HAZARD

We are well aware that the general rule in Louisiana is that an insurance policy is a contract between the insured and the insurer, and thus, like all contracts it is the law between the parties. If the policy is clear and free from ambiguity, it must be enforced as written. However, “the trend of modern authority is to hold that there is no forfeiture if the breach of condition or warranty did not contribute to the loss, or did not increase the risk at the time of loss.” Appleman, Insurance Law and Practice, § 4146 at 439 (1972).

In Rodriguez v. Northwestern National Insurance Company, 358 So.2d 1237, 1240 (La.1978), Mr. Justice Dennis said:

“Due to the increasing complexity of insurance policies and to the greater danger of overreaching by insurers — ‘their gaining an unconscionable advantage by the use of complex policy provisions concerning facts that the untutored purchaser would be surprised to find relevant to his insurance coverage,’ — many states, including Louisiana, enacted ‘anti-technical’ statutes designed to preclude denial of coverage through the assertion of defenses not materially related to the risk. The statutes, in general, are of two types: one requires that the violation of the warranty must increase the physical or moral risk protected by the policy; the other states that a violation, in order to constitute a defense, must contribute to the loss.
“Prior to the time of the enactment of the anti-technical statutes, Louisiana courts followed the common-law rule of voiding an insurance policy upon a breach of warranty regardless of the materiality of the provision to the risk. Goicoechea v. Louisiana State Insurance Company, 6 Martin (N.S.) 51 (1827). Some insurance companies, however, included in the policy provisions further stating that the policy, would be of no effect if the insured in any way increased the risk to the insured property during the tenure of the policy. Meyer v. Queen Ins. Co., 41 La.Ann. 1000, 6 So. 899 (1890). See, Dittmer v. Germania Insurance of New Orleans, 23 La.Ann. 458 (1871).
“By Act 222 of 1928, the Louisiana legislature enacted an ‘anti-technical’ statute to limit defenses on fire insurance policies. The legislation, after amendment and reenactment as Louisiana Revised Statute 22:692, provides:
‘No policy of fire insurance issued by any insurer on property in this state shall hereafter be declared void by the insurer for the breach of any representation, warranty or condition contained in the said policy or in the application therefor. Such breach shall not avail the insurer to avoid liability unless such breach (1) shall exist at the time of the loss, and be either such a breach as would increase either the moral or physical hazard under the policy, or (2) shall be such a breach as would be a violation of a warranty or condition requiring the insurer to take and keep inventories and books showing a record of his business. Notwithstanding the above provisions of this Section, such a breach shall not afford a defense to a suit on the policy if the fact or facts constituting such a breach existing at the time of the issuance of the policy and were, at such time, known to the insurer or to any of his or its officers or agents, or if the fact or facts constituting such a breach existed at the time of the loss and were, at such time, known to the insurer or to any of his or its officers or agents, except in case of fraud on the part of such officer or agent of the insured, or collusion between such officer or agent and the insured.’ ” (Footnotes omitted.)

Additionally in Rodriguez, supra, the Supreme Court in speaking of the application of La.R.S. 22:692 said:

“It applies as well to warranty conditions upon fire insurance coverage included in contracts of insurance which cover a variety of risks. This Coúrt has previously applied the statute to a policy covering accident and theft in addition to fire losses. Lee v. Travelers Fire Ins. Company, 219 La. 587, 53 So.2d 692 (1951).”

In both Rodriguez v. Northwestern National Insurance Company, supra, and Lee v. Travelers Fire Ins. Co., supra, the Supreme Court refused to limit the application of La.R.S. 22:692 to strictly fire policies, and extended its application to fire loss included in policies covering other risks.

The policy in question insured against all risks. If Harry Roth was flying the aircraft and it caught on fire, La.R.S. 22:692 would be applicable in determining whether the failure to list Roth as a pilot is a valid defense. Rodriguez v. Northwestern National Insurance Company, supra, and Lee v. Travelers Fire Ins. Co., supra. To hold that La.R.S. 22:692 is applicable where there is a fire, and not applicable where there is an engine malfunction and resulting crash landing, under the same insurance policy, is illogical, unreasonable, irrational, inconsistent and self-contradictory.

We feel constrained, however, to intrude into an area in which the legislature has refrained from establishing an anti-teehnical rule for breach of an inconsequential condition for other than fire loss, irrespective of the policy coverage.

Since La.R.S. 22:692 is limited by this court to fire loss, we pretermit any determination as to whether the failure to list Harry Roth as a pilot increased “either the moral or physical hazard under the policy.” Under the above circumstances, we are of the opinion that the policy must be enforced as written.

Therefore, for the above and foregoing reasons the judgment of the trial court is reversed, and IT IS ORDERED, ADJUDGED AND DECREED that plaintiff-appellee’s suit be and the same is hereby dismissed with prejudice at plaintiff-appel-lee’s costs.

REVERSED AND RENDERED.

      . An amphib aircraft can land and take off on both land and water.


text:
    STATESMAN NATIONAL LIFE INS. CO. v. AMERICAN ALLIED LIFE INS. CO. et al.
    No. 12301.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.
    Rehearing Denied Jan. 16, 1979.

      John W. Barton, Jr., Baton Rouge, of counsel for plaintiff-appellant Statesman National Life Ins. Co.
    William F. Guest, Houston, Tex., of counsel for plaintiff-appellant Statesman National Life Ins. Co.
    Scott D. Allen, Stephenville, Tex., Commissioner of Insurance Office, of counsel for defendant-appellee Commissioner of Insurance, State of Louisiana.
    Raymond C. Vinet, Sr., Baton Rouge, of counsel for defendant-appellee American Allied Life Ins. Co.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge:

This is a suit by Statesman National Life Insurance Company for review of an order of the Commissioner of Insurance which allows American Allied Life Insurance Company to change its name to Statesman Life Insurance Company. From an adverse judgment in the trial court, plaintiff has appealed.

American Allied is part of a holding company known as the Statesman Group, Inc., which controls a number of relatively small insurance companies which operate in a number of states. American Allied presently operates in eleven states, including Louisiana, where it has been authorized to do business for a number of years. It writes life, health and accident insurance. Another member of the Statesman Group which has been operating in Louisiana is Statesman Insurance Company, which writes casualty insurance. The change of name was requested by 'American Allied in order to achieve identity with its group, and in order to utilize the facilities and personnel of the Statesman Insurance Company to sell its insurance.

Statesman National Life Insurance Company, plaintiff herein, is a Texas based company, selling life, health and accident insurance. It is presently licensed in Louisiana, Arizona, New Mexico and Alaska, and has been licensed and operating in Louisiana since 1972. It relies heavily on the name Statesman for its identity, and, at the time of the Commissioner’s ruling, was the only life insurance company in Louisiana using that name. It markets its insurance, generally, by advertising through the news media and by direct mail.

On May 12, 1976, American Allied wrote the Commissioner of Insurance, inquiring if the name “Statesman Life Insurance Company” was then registered or reserved in Louisiana, and was advised that the name was available for use, and was reserved for the use of American Allied for a 30-day period. On May 26, 1976, Statesman National wrote the Commissioner to register its objection on the ground that there would be substantial confusion with its name. The Commissioner replied as follows:

“Acknowledgement is made of your letter of May 26, 1976.
“We will call a hearing, but you will have to follow our rules of procedure. I will be happy to send you a copy of the rules of procedure upon receipt of your $13.00 check.
“Under our Juris Prudience (sic) the National in your name is distinguishable. Because of this we reserved the name Statesman Life Insurance Company on May 19, 1976 for use by American Allied Life Insurance Company.”

A hearing was held before Richard E. Britson, Deputy Commissioner of Insurance, on August 24, 1976. The Commissioner eventually found that the word “National” in the plaintiff’s name distinguished it from Statesman Life Insurance Company, and approved the name change requested by American Allied.

Statesman National then petitioned the 19th Judicial District Court for review of the Commissioner’s order. The district court found no abuse of discretion on the part of the Commissioner, and dismissed plaintiff’s suit. This appeal followed.

There are two specifications of error. First, plaintiff complains that the trial judge used the wrong standard of review, and, second, that he erred in not finding that the two names involved here are deceptively similar.

R.S. 22:1360 et seq. provide the procedure to be followed in seeking review of an order of the Commissioner. R.S. 22:1363 provides:

“The court shall give precedence to and may summarily hear and determine the case. The court shall hear the case upon the transcript of the record of the commissioner of insurance’s hearing and on such additional proper evidence as may be offered by any party. After considering the evidence the court may affirm, modify or set aside the order. Costs shall be awarded as in civil cases.”

R.S. 49:964, under Administrative Procedures, provides, in part, as follows:

“A. A person who is aggrieved by a final decision or order in an adjudication proceeding is entitled to judicial review under this Chapter whether or not he has applied to the agency for rehearing, without limiting, however, utilization of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by law. A preliminary, procedural, or intermediate agency action or ruling is ■ immediately reviewable if review of the final agency decision would not provide an adequate remedy and would inflict irreparable injury.”
“G. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
“(1) In violation of constitutional or statutory provisions;
“(2) In excess of the statutory authority of the agency;
“(3) Made upon unlawful procedure;
“(4) Affected by other error of law; “(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or “(6) Manifestly erroneous ■ in view of the reliable, probative, and substantial evidence on the whole record. In the application of the rule, where the agency has the opportunity to judge of the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.”

Plaintiff argues that, under the provisions of R.S. 22:1363, it was entitled to a trial de novo, and the trial judge should have considered the question without reference to the decision of the Commissioner.

We cannot agree. R.S. 22:1363 suggests no standard for review, and we must refer to R.S. 49:964(G). Since there are no factual questions involved in the case, manifest error is not an appropriate standard. We find that the applicable standard is that dictated by subsection (5), supra. Since the trial judge used “abuse of discretion” as his standard of review, he made no error.

Under R.S. 22:988, the Commissioner has the power to issue an amended certificate of authority to a foreign insurer doing business in this state which wishes to change its name, provided the conditions of R.S. 22:983 are complied with. That statute states, in Section A thereof:

“A. After the requirements of R.S. 22:982 have been completed and before a certificate of authority is issued by the commissioner of insurance, a foreign or alien insurer shall satisfy the commissioner of insurance that:
“(1) Its name is not the same as, or deceptively similar to the name of any other insurer already authorized to transact business in this state; . . . ”

In the only appellate case in this state involving this question, Continental Ins. Co. v. Martin, 213 La. 147, 34 So.2d 405 (1948), the Supreme Court considered not only the names of the corporations involved, but also the likelihood of there being deception of the public as a result of the use of similar names. It concluded that the names Continental Fire and Casualty Insurance Corporation and Continental Insurance Company were not deceptively similar, although both companies sold the same kind of insurance. It considered the fact that fire and casualty insurance was, at that time, generally sold by independent agents, and the name of the company with whom the insurance was placed was not important to the public.

In this case, it would be unrealistic to deny the similarity of the names “Statesman Life Insurance Company” and “Statesman National Life Insurance Company”. Both of the companies acknowledge the importance of the name “Statesman” to their selling campaigns. Both of them plan to emphasize the name in their advertising. Both companies sell the same types of insurance, and therefore, will be competing in the same market.

We think it obvious that the above circumstances are such that it is likely that the public would be confused and deceived by the similarity of the names. We therefore find that the name “Statesman Life Insurance Company” is deceptively similar to the name “Statesman National Life Insurance Company”, and that the name change requested by American Allied should not be allowed. In finding otherwise, the Commissioner abused his discretion.

The judgment appealed from is therefore reversed and set aside, and there will be judgment herein in favor of plaintiff overruling the order of the Commissioner of Insurance dated November 24, 1976, and holding that the name Statesman Life Insurance Company is not available for use by American Allied Life Insurance Company. All costs shall be paid by American Allied Life Insurance Company.

REVERSED AND RENDERED.


author: BLANCHE, Judge.

text:
    Gerald W. RUTHERFORD, Plaintiff and Appellee, v. Leon V. IMPSON, Sr., Defendant and Appellant.
    No. 12310.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.
    Rehearing Denied Jan. 16, 1979.
    Writ Refused March 16, 1979.

      Robert G. Levy, Baton Rouge, counsel for plaintiff and appellee.
    Kenneth J. Fogg, Denham Springs, counsel for defendant and appellant.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

Defendant-appellant, Leon V. Impson, Sr., appeals an adverse judgment of the trial court ordering him to convey a certain parcel of land to plaintiff-appellee, Gerald W. Rutherford. Plaintiff answered the appeal seeking, in addition to the specific performance awarded in the trial court, reasonable attorney’s fees based upon defendant’s bad faith breach of contract to sell.

In late March or early April of Í977, plaintiff found himself desirous of purchasing a certain tract of twenty-one acres in Livingston Parish. The land was owned by seven brothers and sisters of the Impson family who were apparently well known to Rutherford. An oral agreement to buy and sell the property was made between Rutherford and each of the seven brothers and sisters, the sale to close when Rutherford sold his house. Pursuant to that agreement, a purchase agreement was executed with a third party to purchase plaintiff’s home. As a result of a conversation with Leon Impson, who indicated he was having doubts about selling the twenty-one acres, Rutherford decided to get the agreement in writing.

Rutherford drew up the following agreement which was subsequently signed by all the heirs on or before April 19, 1977.

“We the undersigned
“(1) (signed) Ashford A. Impson
“(2) (signed) Florence I. Drowns
“(3) (signed) Joe W. Impson
“(4) (signed) Annie I. Snyder
“(5) (signed) Beverly I. Miller
“(6) (signed) Leon V. Impson
“(7) (signed) Delia I. Miller
“Here by agree to sell the following 21 acres described as being located in Section 56, T-5-S, R-2-E Livingston Parish, La. and being bounded now or formerely [sic] on the north, by the north line of said Section 56, on the north by land of Edward Cornich, and La. Hwy 16 on the east, and by V. R. Impson on south & C. I. Thames on west. We agree to sell to (signed) Gerald W. Rutherford the afore mentioned property for the sum of $42,-000.00, providing clear title can be obtained.” (Record, p. 13)

Testimony established that it was the intent of the parties that the sale would be closed as soon as practical after the closing of the sale of Rutherford’s home.

Rutherford, with the permission of Ash-ford Impson and presumably the other vendors as well and with the knowledge of Leon Impson, took possession of the premises in early May and made extensive renovations to the house located on the property including rewiring, reflooring and some remodeling, the costs of which were in the neighborhood of $5,000 to $6,000.

The agreement to sell to Rutherford was executed in late June, and the closing of the sale was set for July 5. Leon Impson did not attend the closing, having informed Rutherford that he was going to north Louisiana to buy horses. Two weeks later the defendant told plaintiff he was not sure whether he would go through with the sale. Plaintiff made demand, through his attorney, on defendant to transfer his portion on July 20, 1977, and subsequently filed suit seeking specific performance of the purchase agreement..

The trial court, without assigning written reasons, awarded specific performance to the plaintiff, ordering defendant to convey his portion of the property to plaintiff. Defendant appeals. We affirm.

Defendant argues that the document signed by him on April 19 was a unilateral offer to sell which did not bind the plaintiff in any way. As an offer, defendant claims that he was free to withdraw it at any time prior to its acceptance and that he orally revoked the offer prior to July 5, 1977. Finally, defendant asserts that since there was no mutual or reciprocal consent, no contract resulted and specific performance was improperly ordered.

We are to decide whether the April 19th agreement was a binding agreement to sell.

Our law requires that any agreement to buy and sell immovables must be in writing. LSA-C.C. art. 2275; Liuzza v. Panzer, 333 So.2d 689 (La.App. 4th Cir. 1976). Parol evidence may not be admitted to create title in one who never owned the immovable. Fleming v. Romero, 342 So.2d 881 (La.App. 3rd Cir. 1977), writ refused, 345 So.2d 50 (1977); Scurto v. Le Blanc, 191 La. 136, 184 So. 567 (1938). Neither may parol evidence be admitted to modify or contradict what the parties have set down in their written agreements. LSA-C.C. art. 2276; Renaudin v. Zapata Development Corporation, 339 So.2d 942 (La.App. 4th Cir. 1976), writ denied, 341 So.2d 1123 (La.1977). However, where an agreement is ambiguous in its terms such that reasonable minds may differ as to its meaning, extrinsic evidence may be considered to find the true intent of the parties. Renaudin v. Zapata Development Corporation, supra; Bank of Napoleonville v. Knobloch & Rainold, 144 La. 100, 80 So. 214 (1918).

In the agreement before us Rutherford signed his name in the blank space following the words “We agree to sell to.” Ordinarily, the offeree’s name would have simply been printed in this space which Rutherford, utilized for his signature. Nevertheless, we are satisfied from the evidence that Rutherford’s signature therein was for the purpose of accepting the offer to sell the property.

Much testimony regarding the intent and understanding of the parties in confecting the agreement was received in evidence. This evidence, particularly the testimony of the other vendors, convinces us that all parties believed they were entering into a binding purchase agreement and that Rutherford’s placing of his signature thereon was a manifestation of his intent to accept the offer and become bound. This is borne out more completely by the subsequent taking possession and extensive repair work by Rutherford.

We also find, contrary to defendant’s contention, that the closing was to be held within a reasonable period of time after the purchase agreement was executed to allow the closing of the sale of Rutherford’s home and do not consider July 5 to have been beyond that reasonable time.

LSA-C.C. art. 2462, in pertinent part, states:

“Art. 2462. Specific performance of options and promises to sell
“A promise to sell, when there exists a reciprocal consent of both parties as to the thing, the price and terms, and which, if it relates to immovables, is in writing, so far amounts to a sale, as to give either party the right to enforce specific performance of same.”

Counsel for defendant correctly points out that the right to specific performance is not absolute and is only available where the remedy at law is inadequate. LSA-C.C. arts. 1926 and 1927; Thompson v. Thompson, 211 La. 468, 30 So.2d 321 (1947). However, it has usually been held that damages are an inadequate remedy for breach of a contract to sell real estate. Thompson v. Thompson, supra.

We believe all the requisites of Article 2462 have been met. The document contains the price, an adequate description of the property and manifests reciprocal consent to buy and sell. We, therefore, agree with the trial court’s awarding specific performance and ordering defendant to convey the property to the plaintiff.

The final issue to be addressed is plaintiff’s request for damages of reasonable attorney’s fees for bad faith breach of the agreement by the defendant. Plaintiff’s request is based on LSA-C.C. arts. 1926, 1930 and 1934.

LSA-C.C. art. 1934, in pertinent part, provides:

“Art. 1934. Where the object of the contract is any thing but the payment of money, the damages due to the creditor for its breach are the amount of the loss he has sustained, and the profit of which he has been deprived, under the following exceptions and modifications:
“1. When the debtor has been guilty of no fraud or bad faith, he is liable only for such damages as were contemplated, or may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract. By bad faith in this and the next rule, is not meant the mere breach of faith in not complying with the contract, but a designed breach of it from some motive of interest or ill will.
“2. When the inexecution of the contract has proceeded from fraud or bad faith, the debtor shall not only be liable to such damages as were, or might have been foreseen at the time of making the contract, but also to such as are the immediate and direct consequence of the breach of that contract; but even when there is fraud, the damages can not exceed this.
# sfc ‡ * sjc
“In the assessment of damages under this rule, as well as in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury, while in other cases they have none, but are bound to give such damages under the above rules as will fully indemnify the creditor, whenever the contract has been broken by the fault, negligence, fraud or bad faith of the debtor.”

Plaintiff claims that had the defendant not breached his obligation to convey the property he would not have expended the attorney’s fees necessary to enforce his rights under the contract and that unless he is awarded attorney’s fees, he will not be made whole.

As a general rule attorney’s fees are not allowed a successful litigant in Louisiana except where authorized by statute or by contract. Nassau Realty Company, Inc. v. Brown, 332 So.2d 206 (La.1976); Inzer v. Hollis, 339 So.2d 522 (La.App. 2nd Cir. 1976), writ denied, 341 So.2d 1124 (1977). Furthermore, an action for breach of contract does not fall within one of the limited exceptions to this rule. Maloney v. Oak Builders, Inc., 256 La. 85, 235 So.2d 386 (1970). This is because the parties had an opportunity to stipulate in the contract that attorney’s fees would be due in the event the contract was breached. The parties having failed to expressly provide an obligation to pay attorney’s fees, the law will not imply one.

The Second Circuit Court of Appeal rejected the identical argument advanced before this Court in Lloyd v. Merit Loan Company of Shreveport, Inc., 253 So.2d 117 (La.App. 2nd Cir. 1971), writ denied, 259 La. 1050, 254 So.2d 462 (1971). There the Court expressly overruled Raney v. Gillen, 31 So.2d 495 (La.App. 2nd Cir. 1947), and Berry v. Ginsburg, 98 So.2d 548 (La.App. 2nd Cir. 1957), cases cited by counsel in support of an award of attorney’s fees. The Court held that even if it could be shown that the defendants were in bad faith, this would not entitle the plaintiffs to recover attorney’s fees in the action.

We hold, therefore, that plaintiff is not entitled to attorney’s fees in an action to specifically enforce an agreement to buy and sell real estate.

Plaintiff also seeks attorney’s fees for the cost of having to defend the appeal and cites numerous cases to support his claim. We find, however, all the cases cited inapposite since they all involved situations where the plaintiff was entitled to attorney’s fees under either a specific statutory provision such as LSA-C.C. art. 2545 (redhi-bition), a contractual agreement between the parties, or an exception to the general rule (misuse of conservatory procedure). In all those cases, the appellate court merely increased the award of attorney’s fees by the trial court sufficient to cover the cost of the appeal.

Here, as noted above, there is no authority to grant attorney’s fees as a measure of damages. Therefore, we reject plaintiff’s request for attorney’s fees to cover his cost of appeal.

For the above reasons, the judgment of the trial court is affirmed, defendant-appellant to pay all costs.

AFFIRMED.


author: LOTTINGER, Judge. ELLIS, Judge,

text:
    Harvard G. NELSON v. The STATE BOARD OF EDUCATION for the State of Louisiana and Southeastern Louisiana College (2 cases).
    Nos. 12315, 12316.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.
    Rehearings Denied Jan. 16, 1979.
    Writ Refused March 5, 1979.
    Roy A. Maughan, Baton Rouge, of counsel for plaintiff-appellant Harvard G. Nelson.
    Tom H. Matheny, Hammond, of counsel for defendants-appellees The State Board of Education, et al.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

These consolidated cases arise from the termination of employment of a tenured professor at Southeastern Louisiana University, Hammond, Louisiana. The plaintiff, Dr. Harvard Nelson, sues Southeastern Louisiana University, the State Board of Education for the State of Louisiana, and/or the State Board of Trustees for State Colleges and Universities (hereinafter collectively referred to as the Board). Both cases will be handled in this opinion.

The facts are undisputed that Dr. Harvard Nelson, a tenured professor in the agriculture department, began his teaching at Southeastern in 1950. On June 8, 1967, he was notified that his position would be terminated at the end of the spring semester, 1968. During this time period, the university was undergoing administrative changes, and through the new president, Dr. Clea Parker, plaintiff was led to believe of his possible reinstatement on a probationary basis. However, by letter dated May 28, 1968, plaintiff was unequivocally informed that his termination was final.

From May 28, 1968, until January, 1971, no written request for appeal to the Board appears in the record. In 1971, the record reveals that Dr. Nelson wrote personal letters to several board members to solicit their aid in gaining reinstatement. In March of 1972, Dr. Nelson was denied an opportunity to be formally heard before a committee of the Board.

In no. 12315 Dr. Nelson filed suit on August 7, 1975 seeking reinstatement and back pay. The Board filed an “exception of prematurity and no right or cause of action” contending plaintiff had not exhausted his administrative remedies by failing to apply for a hearing before the Board. The trial court overruled the exceptions and ordered the Board to conduct a hearing within 15 days, or in default thereof, the trial court would hear the case on its merits. This judgment was appealed by the Board to this Court, but was ultimately remanded, on motion, for further proceedings in the trial court.

The hearing ordered by the trial court was held on May 27, 1976, and on October 29, 1976, the Board adopted the recommendation of its grievance committee that Dr. Nelson be denied reinstatement based on the committee’s finding that he was dismissed because his position was abolished and the committee could find no record of an official request for a hearing before the Board.

Plaintiff was notified that the Board denied his appeal for reinstatement. In no. 12316 Dr. Nelson filed suit on January 13, 1977 seeking judicial review of the Board’s denial of his reinstatement.

In affirming the decision of the Board, the trial judge concluded that the termination of plaintiff was due to a lack of student interest in the courses taught by him, along with plaintiff’s failure to assist in finding a suitable alternate position for himself within the university. The trial judge found the termination was justified and concluded that the decision of the Board was neither arbitrary nor capricious. La.R.S. 49:964 G(6). Plaintiff has appealed.

On appeal, plaintiff’s basic argument is that since he was a tenured professor he could not be dismissed for any reasons other than those listed in the handbook distributed by Southeastern to all teaching personnel, to wit: (1) being found guilty of gross neglect of duties, (2) refusing to perform assigned duties, or (3) grave moral delinquency. The handbook further states that “should the administration discharge a permanent faculty member, he has the right to appeal to the State Board of Education.”

In reviewing this decision this Court finds two crucial issues: (1) whether the plaintiff timely appealed his discharge to the Board, and (2) were the reasons for the termination of plaintiff’s employment valid.

ISSUE NO. 1

The Board found as a question of fact that there was no official request for a review hearing before the Board in the record. After a complete and exhaustive review of this record, we cannot say the Board was in error in this finding.

The method employed by Dr. Nelson in attempting to have an appeal hearing before the Board was clearly not in the form of a formal request. Importantly, from May 28, 1968, to January, 1971, this Court can find no evidence in the record of a request by Dr. Nelson for a review by the Board. The handbook upon which Dr. Nelson so heavily relies provides for a right of appeal to the Board; however, no time period for seeking such an appeal is given. We have not been cited any statutory authority limiting the time within which to seek review.

Though appeals are favored, they must be timely requested. Where, as in this case, there is no definitive period for appeal established, this Court finds that an appeal must be taken within a reasonable time frame to allow justice to be done for both parties involved. We can find nothing in the record to excuse or justify a seven year delay on the part of the plaintiff in seeking judicial review.

By comparison, La.R.S. 17:443 allows a public school teacher one year within which to seek judicial review of termination of employment by a public school board. As above pointed out, plaintiff did nothing from May 28, 1968, to January, 1971, and then only personal letters seeking aid from board members. Additionally, in March, 1972, plaintiff was denied a formal hearing before a committee of the board, and did not file suit until August 7, 1975, better than three years later.

Plaintiff had within his own power the ability to seek a judicial determination of his rights but failed to do so. Through his own self imposed delay, plaintiff attempts to recover a substantial award based on an extended period of time. We are convinced that the time period plaintiff waited to seek a review is unreasonably long, and thus find no error in the board’s finding that no review had been sought.

ISSUE NO. 2

Considering that we find no error in the board’s decision to uphold the dismissal because of failure to seek review, there is no need to discuss this issue, and thus we pre-termit same.

Therefore, for the above and foregoing reasons the judgment of the trial court is affirmed in the consolidated cases, numbered 12315 and 12316. Plaintiff-appellant is to pay all costs of this appeal.

AFFIRMED.

ELLIS, J., dissents and assigns written reasons.

ELLIS, Judge,

dissenting:

The majority opinion in this case, as well as the opinions of the district court and the State Board, overlook an important fact.

Dr. Nelson was notified of his dismissal, effective at the end of the 1968 spring semester, by letter dated June 8, 1967. On March 1, 1968, he wrote to V. J. Scogin, President of the Board, as follows:

“This letter is being written in accordance with instructions received regarding my position at Southeastern Louisiana College.
“Several months have passed since the administration at Southeastern Louisiana College was instructed to investigate the Department of Agriculture. In view of the fact that some problems were associated with personality conflicts and since a number of changes in leadership have been made at the College it would appear that a review of the situation might now be in order.
“The interest that you have expressed in reviewing this matter is appreciated.”

I think this is clearly a request for a hearing, by the Board, of Dr. Nelson’s appeal from his dismissal.

Thereafter, attempts were made to retain Dr. Nelson on the faculty at Southeastern, including a recommendation by the president, Dr. Parker, that he be retained, on probation. The Board refused to reconsider its original decision, and Dr. Nelson was so notified by Dr. Parker on May 27, 1968.

It is true that, since that time, Dr. Nelson never formally requested a hearing of his appeal. However, I do not believe it was necessary that he do so, since he had already appealed the initial action of the Board.

Before filing the first of these suits in August, 1975, Dr. Nelson spent seven years trying to get a hearing from the Board. He talked to many members of the Board, including Messrs. Woodard, Wetstone, Curry, Peltier, Bopp, Egan, Colbert, and Bankston. Almost all of them expressed interest in his case and promised him action. The record is replete with evidence of these attempts to get a hearing, including testimony, correspondence between Dr. Nelson and various Board members, and minutes of the meetings of the Board. On February 20, 1974, Dr. Nelson received a letter from Louis Michot, then Superintendent of Education, advising him that his case was still under consideration.

Dr. Nelson testified that he had attended at least twelve meetings of the Board during this period, sometimes at the explicit invitation of a member, but was never afforded the hearing which he sought. Until he received his court ordered hearing, Dr. Nelson had never been advised of the reason for his dismissal, much less given an opportunity to present a case to the Board.

I must admit that seven years is a long time to wait before attempting to compel action on the part of the Board by filing a suit. However, the actions of the Board itself, and of some of its members, were the major contributing cause of this delay. I believe that the circumstances of this case require that Dr. Nelson’s ease be heard and decided on its merits.

On the merits, I find the dismissal to be completely illegal. None of the grounds for dismissal of a tenured professor, which are expressed in the S.L.U. Handbook, are present in this case. Although Dr. Nelson was fully qualified to teach, and had taught, both chemistry and mathematics, he was never formally offered, nor did he refuse the opportunity to teach in these departments. In any event, the record conclusively shows that it was contemplated by the Agriculture Department that Dr. Nelson would have a full teaching load for the 1968-1969 school year. It is true that there were not many students in Dr. Nelson’s area of specialization, but it is just not true that there were no students for him to teach. Dr. Nelson, naturally, wanted to remain in his field of specialization, but he was never given the opportunity to refuse to teach in other areas.

Dr. Nelson was fired without legal cause, and his constitutional rights to notice and a hearing have been denied him. I believe he should be reinstated, and I therefore dissent.


author: SARTAIN, Judge. EDWARDS, Judge,

text:
    Juanita C. Phillips WICKHAM v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA.
    No. 12217.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.
    Dissenting Opinion Dec. 4, 1978.
    Rehearing Denied Jan. 16, 1979.

      Frank J. Gremillion, Baton Rouge, of counsel for plaintiff-appellee, Juanita C. Phillips Wickham.
    Lester J. Gauthier, Jr., Lafayette, of counsel for defendant-in-reconvention-ap-pellant, Beverly P. Phillips.
    Charles W. Wilson, Jr., Baton Rouge, of counsel for defendant-appellee, Prudential Insurance Co. of America.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   SARTAIN, Judge.

This litigation involves two conflicting claims to the proceeds of a life insurance policy. The principal question presented is whether the insured, Dr. Jack H. Phillips, changed the beneficiary named in the policy from his first wife, Mrs. Juanita C. Phillips Wickham (Mrs. Wickham), to his second wife, Mrs. Beverly P. Phillips (Mrs. Phillips). From a judgment in favor of Mrs. Wickham ruling that the beneficiary had not been changed, Mrs. Phillips has appealed. We affirm.

In 1957, the policy in question was issued by The Prudential Insurance Company of America and delivered to Dr. Phillips in Mississippi, where he resided. At the time, Dr. Phillips was married to Mrs. Wickham, who was named as the beneficiary.

In 1971, Dr. Phillips and Mrs. Wickham were divorced in Mississippi. They contemporaneously entered into a written settlement of their jointly owned property. This agreement contained no mention of the subject policy. Mi 3. Wickham, who continued to reside in Mississippi, retained possession of the policy until the time of the trial.

After the divorce, Dr. Phillips moved from Mississippi to Lafayette, Louisiana, and subsequently married his second wife. He lived with her in Lafayette until his death.

On January 16, 1975, Dr. Phillips signed and forwarded to Prudential a change of beneficiary form naming his second wife, Mrs. Phillips, as the primary beneficiary. This form was immediately returned to him along with a request for the policy so that the change of beneficiary might be endorsed thereon. The pertinent provision of the policy with respect to change of beneficiary states:

“The Beneficiary under this Policy may be changed from time to time, upon proper written request, provided such request is submitted to the Home Office together with this Policy for endorsement, but such change shall become operative only if this Policy is endorsed by the Company. After such endorsement has been made, the change shall take effect and any interest of any previous Beneficiary shall cease as of the date of such written request whether or not the Insured is living at the time of such endorsement. Any change of Beneficiary shall be subject to the rights of any assignee of record at the Home Office.”

Dr. Phillips did not submit the policy and did nothing for several' months to change the beneficiary. Mrs. Phillips testified that he did not know where the policy was and believed it to be lost.

In April of 1975, Dr. Phillips suffered a heart attack and was hospitalized until his death on May 20, 1975.

While hospitalized on May 12, 1975, Dr. Phillips, with the aid of Wayne Hebert, a family friend and an insurance agent with another company, again signed a change of beneficiary form naming Mrs. Phillips as beneficiary. On this occasion, Dr. Phillips also signed a lost policy request, seeking a duplicate copy of the policy so that the beneficiary change might be endorsed thereon by the company. Hebert received both of these forms. He forwarded the change of beneficiary form to Prudential and gave the lost policy form to Pamela P. Harris, Dr. Phillips’ daughter by his first marriage, and requested that she obtain her mother’s signature and return the form to him. Prudential requires the signature of both the insured and the named beneficiary on the lost policy request form. This latter form, apparently removed from Dr. Phillips’ nightstand (where it had been placed by Pamela) and discarded by hospital personnel, did not reach Mrs. Wickham and was never sent to Prudential. The company refused to recognize the change of beneficiary.

After Dr. Phillips’ death, Mrs. Wickham instituted this suit against Prudential to recover the proceeds of the policy. Prudential reconvened, provoked a concursus, im-pleaded Mrs. Phillips, and deposited the proceeds of the policy with the court.

In the trial court, Mrs. Wickham urged (1)that the ownership of the policy was given to her in trust for the benefit of their two children; (2) that if the signature of Dr. Phillips on the change of beneficiary form is genuine, he was mentally incapable' of executing the same; and (3) that under the conflict of laws issue presented, Louisiana law should apply.

The trial judge, in his written reasons for judgment, held that Dr. Phillips was at all times the owner of the policy and did not intend to create a trust when he left the policy with Mrs. Wickham following their divorce. The judge a quo also concluded that on May 12, 1975, when Dr. Phillips executed the change of beneficiary form, he possessed the mental capacity to do so. These conclusions are based on factual determinations which are amply supported by the record.

The remaining issue relates to the choice of law to be applied, Mississippi or Louisiana. Ironically, Mrs. Wickham, a Mississippi resident, urges that Louisiana law of strict construction should apply; and Mrs. Phillips, a Louisiana resident, contends that Mississippi law of substantial compliance is applicable. The position taken by each is not without some authoritative basis.

The rule of strict construction followed in Louisiana is based on the theory that the policy of insurance is a contract which constitutes the law between the parties; thus, if the policy provides that a change of beneficiary is not effective until the policy itself is endorsed, strict construction requires just that. Douglass v. Equitable Life Assurance Society, 150 La. 519, 90 So. 834 (1921); Giuffria v. Metropolitan Life Insurance Company, 188 La. 837, 178 So. 368 (1937); and Morein v. North American Co. for Life & Health Insurance, 271 So.2d 308 (La.App. 3d Cir. 1972).

The rule of substantial compliance applicable in Mississippi is reflected in the maxim, “Equity will regard that as done which ought to have been done.” Faulkner v. Faulkner, 192 Miss. 358, 5 So.2d 421 (1942). Thus, if the owner of the policy has done all that is within his power under the circumstances to change the beneficiary, the requirement of endorsement contained in the policy should not thwart his efforts. This rule is followed in the vast majority of jurisdictions. See, Appleman, Insurance, Secs. 940, et seq. The rule itself is subject to many variations according to the particular facts of a given case. See, 19 A.L.R.2d, Secs. 1-52 and Supplement.

When confronted with a conflict of laws problem (such as here) the approach taken by Louisiana courts has been that the nature, validity and interpretation of insurance contracts are governed by the law of the place where the contract was entered into. Deane v. McGee, 261 La. 686, 260 So.2d 669 (1972); Chase v. Safeco Ins. Co. of America, 345 So.2d 969 (La.App. 2d Cir. 1977); Porter v. State Farm Mutual Automobile Ins. Co., 342 So.2d 1265 (La.App. 4th Cir. 1977). Support for this view is found in C.C. art. 10, which provides in pertinent part:

“The form and effect of public and private written instruments are governed by the laws and usages of the places where they are passed or executed.”
* * * * * *

Some Louisiana courts have retreated from the above cases advocating strict application of conflicts rules (e. g. lex loci contractus) and have applied an “interest analysis” in determining the choice of law. See, Jagers v. Royal Indemnity Co., 276 So.2d 309 (La.1973); Sutton v. Langley, 330 So.2d 321 (La.App. 2d Cir. 1976), writs denied, 332 So.2d 805, 332 So.2d 820, 333 So.2d 242 (La.1976). Cf., Restatement, Conflict of Laws 2d, Vol. 1, chap. 8.

The district judge felt compelled to adopt the stricter rule of Louisiana under the “interest analysis” theory. He concluded that inasmuch as the owner of the policy and the newly designated beneficiary were Louisiana residents and the change of beneficiary form was • executed in this state, Louisiana had “a greater interest than Mississippi.” Having made this determination, the judge a quo felt bound to apply the Louisiana rule of strict construction as expressed in the hereinabove cited authorities. We agree.

The ownership and more particularly the change of beneficiary requirements of life insurance policies are areas that require a great degree of predictability, certainty and consistency in the law. This need is emphasized by virtue of the mobile nature of modern-day life where countless families by choice of employment are forced to move from one state to another. It could be argued that the application of C.C. Art. 10, above, (the law of the place where the policy was issued and delivered) lends that stability. We think not. The facts in the instant case graphically illustrate otherwise.

The trial judge found that Dr. Phillips, a Louisiana resident, fully intended to change the beneficiary. We concur in this conclusion. Yet, to satisfy that desire the intended beneficiary, also a Louisiana resident, must rely on the more favorable law of a foreign jurisdiction.

We are not unmindful of the cases cited by counsel for Mrs. Phillips evidencing ample authority to apply C.C. art. 10 and adhere, in the instant cause, to the principle of lex loci contractus (Mississippi). However, this we do not choose to do. We believe that once it has been determined that Louisiana has the most substantial interest in a controversy, then'Louisiana law should be applied. Like the trial court, we feel bound by the established jurisprudence requiring strict construction. Any change in these authorities addresses itself to the Supreme Court.

For the above reasons, the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.

EDWARDS, J., dissents and assigns reasons.

EDWARDS, Judge,

dissenting.

The majority resolves the conflict of laws issue in favor of Louisiana law by applying an “interest analysis” theory in determining the choice of law. I disagree.

Louisiana, unlike most American jurisdictions, has provided statutorily for the resolution of conflicts problems involving contracts. LSA-C.C. art. 10 provides:

“The form and effect of public and private written instruments are governed by the laws and usages of the places where they are passed or executed.
“But the effect of acts passed in one. country to have effect in another country, is regulated by the laws of the country where such acts are to have effect. “The exception made in the second paragraph of this article does not hold, when a citizen of another State of the Union, or a citizen or subject of a foreign State or country, disposes by will or testament, or by any other act causa mortis made out of this State, of his movable property situated in this State, if at the time of making said will or testament, or any other act causa mortis, and at the time of his death, he resides and is domiciliated out of this State.”

The jurisprudence concerning insurance contracts is in accord with this rule. See Deane v. McGee, 261 La. 686, 260 So.2d 669 (1972); Chase v. Safeco Ins. Co. of America, 345 So.2d 969 (La.App. 2nd Cir. 1977); Porter v. State Farm Mutual Automobile Ins. Co., 342 So.2d 1265 (La.App. 4th Cir. 1977).

The two cases cited in support of the “interest analysis” theory do not address the above codal provision. Jagers v. Royal Indemnity Co., 276 So.2d 309 (La.1973) dealt with conflicts in a tort situation (lex loci delicti). The court in Sutton v. Langley, 330 So.2d 321 (La.App. 2nd Cir. 1976) interpreted Jagers as authority for abandoning the rigid application of the lex loci contrac-tus rule in favor of an interest analysis as contained in the Restatement, Conflicts of Laws 2d, Vol. 1, chap. 8. However, the court failed to mention or discuss the significance of LSA-C.C. art. 10.

This approach effectively reads article 10 out of the code and supplants it with a foreign treatise. This, I believe, is incorrect.

The proper application of LSA-C.C. art. 10 in the instant case would result in the selection of Mississippi law, since the insurance contract was executed and delivered in Mississippi at a time when Dr. Phillips was a resident of that state.

A Mississippi court applying Mississippi law to the instant facts would determine that the attempted change of beneficiary was effective based on the principles of equity and the doctrine of substantial compliance as stated in Faulkner v. Faulkner, 192 Miss. 358, 5 So.2d 421 (1942). See also Gayden v. Kirk, 207 Miss. 861, 43 So.2d 568 (1949). The doctrine of “substantial compliance” endeavors to give full weight to the intent of the insured when such intent to change a beneficiary is expressed in the manner required by the insurer and the insured has done everything reasonably within his power to accomplish his purpose. In such instances, the court will employ equity in a contest between the old beneficiary and the new one, and treat as done that which ought to have been done, thereby giving effect to the intent of the insured.

The trial court found that Dr. Phillips indeed intended to change the beneficiary named in the policy to his second wife, Beverly Phillips. I believe that Dr. Phillips, by signing both the change of beneficiary form and the lost policy request form, did all that was reasonably within his power to change the beneficiary, and that he substantially complied with the prerequisites to the change of beneficiary as stated in the policy so that his expressed intent should govern.

I would reverse the judgment of the trial court and render judgment in favor of Beverly Phillips.


author: SARTAIN, Judge.

text:
    William BRANNON v. Glenn L. BABIN et al.
    No. 12266.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.
    Rehearing Denied Jan. 16, 1979.

      Charles N. Malone, Baton Rouge, of counsel, for plaintiff-appellee, William Brannon.
    Glenn L. Babin, in pro. per.
    Robert L. Kleinpeter, Baton Rouge, of counsel, for defendant-appellant, Stanley LaFargue.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   SARTAIN, Judge.

In this suit which is based on alleged false representations, Dr. William Brannan (Brannan) obtained a judgment in the district court against Glenn L. Babin (Babin) and Stanley LaFargue (LaFargue), jointly and in solido, in the amount of $30,000.00. Babin made no appearance and the judgment against him was by default. La-Fargue now appeals. We affirm.

We deem it helpful to relate certain background facts which, though not related to LaFargue’s averred liability here, form the setting for the present controversy.

On April 2, 1973, Brannan purchased from one Peter C. Brown for a cash consideration of $7000.00 some five thousand acres of land situated in Ventress County, Tennessee. On April 11, 1973, Brannan entered into an agreement to purchase from Babin an undivided one-half interest in an additional five thousand acres for a cash consideration of $4000.00. Either at this time or shortly thereafter, Babin told Bran-nan that he was attempting to purchase some four hundred eighty thousand acres. All of this property is described as “wild mountain land in eastern Tennessee.” Attached to the above two instruments are various documents which purport to reflect land grant numbers, acreage totals, and appropriate recordation data.

Later, Babin called Brannan and stated that a policy of title insurance covering the four hundred eighty thousand acres was available at a premium cost of $100,000.00, of which amount $70,000.00 had been raised and the balance of $30,000.00 was needed. Brannan declined to express an interest at this time. Throughout the above, La-Fargue’s name was not mentioned.

Sometime during the late summer of 1974, one Harvey Martin called Brannan and stated that the $70,000.00 was being held in escrow by LaFargue, who was also going to obtain a title policy, and that if Brannan would loan Babin $30,000.00, this sum would be repaid and as a bonus Bran-nan would receive title to another 15,000 acres. On this occasion, according to Bran-nan, he was given LaFargue’s telephone number.

Brannan testified that he then called La-Fargue and confirmed the fact that the latter did indeed have $70,000.00 in an escrow account, that a title policy was available at a premium cost of $100,000.00, that the requested $30,000.00 would be put into the same account, and that the policy would be picked up simultaneously with the payment of the premium. Brannan stated that he discussed this matter with LaFargue by phone bn at least two occasions prior to September 4, 1974.

Based on the above assurances, Brannan then executed an agreement with Babin whereby Babin agreed to transfer to him 15,000 acres of the 480,000 acres. The recited consideration was $30,000.00 cash and “other valuable consideration.” On this same date, September 4, 1974, Brannan gave to Babin a cashier’s check for $30,-000.00 payable to the joint order of “GLENN L. BABIN & STANLEY LA-FARGUE & ASSOCIATES.” On this check is the hand written notation “Obtain Title Insurance on Tenn Lands and purchase 15,000 Acres.”

Several weeks later, Brannan read an article in the Wall Street Journal which detailed the activities of others in the sale of Tennessee mountain properties in what can best be described as a series of outright swindles. Brannan then wrote LaFargue on September 27, 1974, withdrawing from the “venture” and requesting the return of his $30,000.00.

LaFargue denies that he made any of the above statements upon which Brannan claims to have relied. He does, however, acknowledge having talked to him on one or two occasions prior to September 4, 1974. LaFargue claims that his sole responsibility in this matter was to represent Babin individually in an effort to obtain title insurance on the 480,000 acres.

The crucial question, of course, is one of fact, namely, did LaFargue tell Brannan that a title policy was available, that $70,-000.00 was in his escrow account, and that all that was needed was $30,000.00. The trial judge concluded that LaFargue did make these statements, which were not true, and that in reliance thereon Brannan advanced the $30,000.00. We agree.

The judge a quo attached considerable weight to evidence that impeached testimony given by LaFargue. When Brannan failed to receive the return of his $30,-000.00, he engaged the assistance of an attorney in New Orleans. On October 7, 1974, this attorney called LaFargue at his office in Baton Rouge and was advised that the $30,000.00 was still in escrow, and if Babin would approve, LaFargue would release it to Brannan. LaFargue repeatedly denied having made such a statement but a recording of that conversation, which is in the record, conclusively establishes the falsity of his sworn testimony. The sum was not in his escrow account. To the contrary, the check had been immediately cashed and $16,000.00 of it was given to Babin.

Brannan argues alternative theories of recovery, namely, breach of fiduciary duty, negligence, breach of contract, and intentional tortious misrepresentation. Preter-mitting the question of the applicability of other theories to the proven facts, we hold that Brannan has established a tort of intentional misrepresentation.

Our jurisprudence has recognized that Civil Code article 2315 affords a cause of action for damages resulting from misrepresentations made with knowledge of falsity and with intent to deceive which causes loss to another when that person reasonably relies upon the false statements. Wilder v. Wilder, 263 So.2d 730 (La.App. 1st Cir. 1972), writ refused 262 La. 1101, 266 So.2d 225; Swann v. Magouirk, 157 So.2d 749 (La.App. 2d Cir. 1963). Cf Ladas v. Savage, 284 So.2d 852 (La.App. 4th Cir. 1973).

For the above reasons, the judgment of the district court is affirmed at defendants’ costs.

AFFIRMED.


author: CHIASSON, Judge.

text:
    UNITED INSURANCE CO. OF AMERICA v. F. C. DOYAL, Jr., Administrator of the Department of Employment Security of the State of Louisiana and George Hubbard.
    No. 12280.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.
    Rehearing Denied Jan. 16, 1979.
    John F. Pugh, of Pugh, Lanier & Pugh, Thibodaux, and Gordon A. Pugh, of Brea-zeale, Sachse & Wilson, Baton Rouge, for petitioner and appellee.
    James A. McGraw, Baton Rouge, for defendant and appellant.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   CHIASSON, Judge.

This is an unemployment compensation case. George Hubbard (Hubbard) was employed by United Insurance Company of America (United) for approximately six months. Hubbard missed three work days due to sickness and on August 19, 1976 he was discharged by United. On November 11, 1976, Hubbard filed an application for unemployment compensation.

United advised the Louisiana Department of Employment Security (Department) that Hubbard was not eligible for unemployment compensation benefits because his type of employment was exempt from the Employment Security Law of the State of Louisiana.

The Department determined that Hubbard was entitled to unemployment benefits. United appealed that determination and a hearing on the appeal was held on January 4, 1977 before an Appeals Referee who affirmed the original determination of the Department.

United then appealed to the Board of Review pursuant to La.R.S. 23:1630. The Board of Review’s decision, dated March 25, 1977, denied the appeal and affirmed the decision of the Appeals Referee. The decision of. the Appeals Referee therefore became the decision of the Board of Review. La.R.S. 23:1630.

United timely filed a petition for judicial review pursuant to La.R.S. 23:1634. The Department filed its answer and return on judicial review attaching.thereto a certified copy of the administrative record as required by law.

United then filed a motion for summary judgment which, after a hearing thereon, was granted by the trial court. The judgment reversed the determination of the Appeals Referee and the Board of Review of the Department of Employment Security. The Administrator of the Department of Employment Security has filed this appeal from the judgment of the District Court.

The record establishes that Hubbard was a duly licensed insurance agent who worked for United. Hubbard sold insurance policies and collected debits owed to United. Hubbard’s method of payment was strictly by commissions upon the insurance policies he sold and upon collections he made.

Hubbard’s claim for benefits was resisted by United on the ground of exclusion from coverage under La.R.S. 23:1472(12)(H)(IX). That section provides in pertinent part as follows:

“(H) The term ‘employment’ shall not include:
* * * * * *
“(IX) service performed by an individual as an insurance agent or as an insurance solicitor, if all such service performed by such individual for his employing units is performed for remuneration solely by way of commission;”
$ * * sfc *

The Department contends that the “insurance agent or solicitor” referred to in the exemption are those agents who, for the lack of control, are to be characterized as independent contractors in the sense that they need not rely on the company to maintain their earnings. The Department further contends that a debit route collector such as Hubbard, however, must rely on the company’s debits to maintain his earnings and is not an “insurance agent” within the meaning of La.R.S. 23:1472(12)(H)(IX).

The issue therefore is whether an industrial insurance agent such as Hubbard, who collects insurance premiums as well as sells new insurance policies, is eligible for unemployment compensation. No Louisiana decision interpreting the law at issue herein has been cited nor have we been able to find any decision on point. There are two lines of jurisprudence on the subject from other courts. We believe the better view is as expressed in the following cases:

In Commonwealth Life & Accident Insurance Co. v. Board of Review, 414 Ill. 475, 111 N.E.2d 345 (1953) the court stated:

“Although there seems to have been little controversy over the question in the proceedings below, appellants make the contention that the claimant was not an ‘insurance agent’ or an ‘insurance solicitor’ within the meaning of the controverted section and, thus, not exempt. They argue that the legislature, by the terms employed, intended to remove from coverage only those agents or solicitors who sold new insurance exclusively and who had no territory or debit, were not engaged in the collection of premiums, received no advances and were compensated solely on a commission basis. This, in effect, is the holding in Capital Life & Health Ins. Co. v. Bowers, 4 Cir., 186 F.2d 943, wherein the court interpreted a provision of the Federal Unemployment Tax Act, 26 U.S.C.A. § 1607(c)(14), identical with the Illinois provision. We do not impute such a narrow construction to the Illinois provision for several reasons.
“The exclusionary provision was incorporated into the Federal Unemployment Tax Act by an amendment passed by Congress in 1940. Subsequently, Illinois and thirty-eight other States adopted identical or similar provisions in their own Unemployment Compensation Act. The history of the Federal legislation, which is fully discussed in Washington National Ins. Co. v. Employment Security Comm., 61 Ariz. 112, 144 P.2d 688, and Home Beneficial Life Ins. Co. v. Unemployment Compensation Comm., 181 Va. 811, 27 S.E.2d 159, shows that the exclusionary provision was enacted because of disagreements among courts as to the coverage of industrial insurance agents who collect premiums, as well as life insurance agents paid solely by commission. In explaining the purpose of the amendment, the chairman of the congressional committee stated: ‘ * * * Several states have exempted insurance salesmen from coverage, and your committee believes that it would be wise to exclude from the Federal Unemployment [compensation] Tax insurance salesmen whose sole pay is by way of commission. This would, of course, still leave the states free to cover this employment when they choose to do so, but it would eliminate the present situation, where the entire federal tax, without any offset for state unemployment contributions, comes to the federal government where the state exempts this employment. The principal class of insurance salesmen which would be affected, is that class engaged in what is generally called industrial insurance.’ 61 Ariz. 112, 144 P.2d 692. The Arizona and Virginia courts, in the cases cited above, as well as the court in American National Ins. Co. v. Keitel, 353 Mo. 1107, 186 S.W.2d 447, concluded from this comment that the avowed purpose of the Federal amendment was to exclude from the act the service of industrial salesman or agents, provided they are remunerated solely by way of commission, and that the State amendments, being couched in identical language, had the same purpose.”

In Home Beneficial Life Insurance Company v. Unemployment Compensation Comm., 181 Va. 811, 27 S.E.2d 159 (1943) the Court was called upon to determine the status of an industrial insurance salesman under the Virginia unemployment statute, which contains a similar exemption for insurance agents. The Appellate Court held:

“This holding [that industrial insurance agents are not within the exemption provision], we think, places too narrow an interpretation on the words of the amendment. The ‘service’ excluded is that performed by one ‘as an insurance agent or as an insurance solicitor’.” (wordings in brackets added).
“In 29 Am.Jur., Insurance, § 86, p. 110, it is said: ‘An insurance agent, so far as the insurer is concerned, is a person expressly or impliedly authorized to represent it in dealing with third persons in matters relating to insurance. These agencies are of various kinds and classes, such as general, special, local, resident, soliciting, recording, issuing, collecting, adjusting, etc.’ See also, American Casualty Co. v. Ricas, 179 Md. 627, 22 A. 484, 487.
“From this definition it is manifest that the term ‘insurance agent’ includes both an ‘insurance solicitor’ and ‘insurance collector.’
“It is an elementary rule of statutory construction that every word in the statute must be given its full effect if that can be’ done consistent with the manifest purpose of the act. City of Richmond v. Grand Lodge, 162 Va. 471, 476, 174 S.E. 846.
“If it had been the intent of the draftsman of the Act to exclude the service of only ‘an insurance solicitor,’ why the necessity of adding that of the broader class, ‘an insurance agent’? Since both classes are found in the statute we must conclude that both were intended to be given effect and were intended to be excluded.”

We are in accord with the rationale of these cases and, for the reasons expressed therein, we hold that Hubbard is not eligible for unemployment compensation.

The decision of the trial court is affirmed.

AFFIRMED.


author: PONDER, Judge. LANDRY, Judge,

text:
    Charles B. W. PALMER, Plaintiff-Appellant, v. Walter WREN et al., Defendant-Appellee.
    No. 12145.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.
    Rehearing Denied Jan. 16, 1979.
    Writ Refused March 5, 1979.

      John J. Cummings, III, New Orleans, for Charles B. W. Palmer, plaintiff appellant.
    Arthur J. O’Keefe, New Orleans, for Walter Wren, et al., defendant appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

Plaintiff appeals from the jury verdict, made the judgment of the court, denying recovery for injuries sustained in an automobile collision.

The sole issue is the propriety of that verdict. We affirm.

The jury, answering interrogatories, found both plaintiff and defendant negligent and the negligence of both proximate causes of the accident. The Supreme Court has held in Rowe v. Travelers Insurance Co., 253 La. 659, 219 So.2d 486, that we should make findings of fact since the jury findings are conclusions.

The defendant first testified that he did not know whether he crossed the center line and that he could not testify to anything the plaintiff did to cause the accident. He did state that he was coming off the Bennett Road and “I didn’t yield enough . He finally agreed with plaintiff’s counsel that he must have crossed the center line.

The investigating officer could not recall any specific findings even after looking at the accident report, which did not note the presence of any debris. At the time he “determined that the impact point probably was somewhere near the center of the roadway probably inside the eastbound lane of La. 16,” but admitted that the validity of this conclusion depended entirely on what the plaintiff told him.

Plaintiff testified he was driving eastward toward Amite within his lane of travel at about 45 miles per hour. As he went past the Ardillo building and part of the parking lot on his right, out of the corner of his eye he saw only a flash of light and then glass fell on him. At another time, on cross-examination, he testified he saw a flash of light and a truck coming at a high rate of speed. At still another time he said that he saw the truck coming from behind a brick or lumber truck. Again, when asked if he saw the truck coming out from Bennett Road, he replied that he saw the lights coming. When the defendant did not stop at the scene, he, the plaintiff, chased him at high speed until he secured the license number. He then returned to the scene of the accident and called the police. When the officer arrived, unexplainedly said to be only five to ten minutes after the collision, they examined the scene for the first time. Orange glass from the blinker light was scattered around in the left lane. Some soft dirt or mud had been run over by other cars. According to plaintiff there were four lanes eastbound and four westbound.

Ralph Singleton did not see the collision but did turn around and see the vehicles shortly thereafter estimated by him to be ten seconds after the collision. A pickup truck was in the westbound lane and plaintiff’s car in the eastbound. There was some mud in both eastbound and westbound lanes and some chrome and glass in the westbound lanes.

Another purported witness was not produced at the trial.

We have concluded that the plaintiff has not borne his burden of proof. The defendant’s testimony for the most part is agreement with conclusions proposed by plaintiff’s counsel. The officer’s conclusion admittedly was based only on statements made to him by the plaintiff. His report did not contain and he did not remember any physical facts to support his conclusion which was stated in the vaguest terms. Singleton could not testify to the impact of the vehicles. His testimony and that of others as to the debris is at best inconclusive. The relation of the debris to the collision leaves much to speculation and conjecture. Even when definitely related to the collision, conclusions based upon the location and conditions of debris are of secondary value unless explained by expert testimony, which was conspicuously absent in this case.

This leaves only the testimony of the plaintiff, who was firm, however, in his conclusion that he was and remained in his own lane. This is true even though some of his other statements are inconsistent with each other and with other testimony and the physical evidence. We believe, in the circumstances of this case, the facts proved are insufficient for the awarding of damages.

For these reasons, the judgment of the lower court is affirmed at appellant’s costs.

AFFIRMED.

LANDRY, Judge,

dissenting.

Because I find the record preponderates clearly in favor of the conclusion that plaintiff, Palmer, was free of negligence, I must disagree with the decision affirming rejection of plaintiff’s claim by the majority herein. It is noteworthy that the trial jury found Appellant guilty of contributory negligence barring his 'recovery and that the majority herein affirmed upon finding that Appellant failed to prove his case. I find both conclusions manifestly erroneous based on the record before the court.

Subject accident occurred at an intersection during the nighttime. Plaintiff Palmer was proceeding upon the superior highway traveling in his proper lane of travel and proceeding at a lawful rate of speed. It was incumbent upon defendant, Wren, to yield to Palmer’s vehicle.

The pivotal issue is whether the impact occurred in Palmer’s lane of travel. The tenor of the majority opinion is that if Palmer had established that he was in fact in his proper lane of travel at the moment of impact, Palmer would have recovered but this he failed to do. This I believe is patently contrary to the testimony and physical evidence which, in my judgment, establishes with an overwhelming preponderance that Palmer was in his proper lane when his vehicle was struck by defendant’s truck.

Admittedly, the investigating officer, State Trooper Milton Breechen, arrived at the scene about 15 to 20 minutes after the accident. Although the officer could not recall specific findings, he was of the opinion, based on his observation of debris, glass and dirt on the highway surface, that the impact occurred near the centerline of the highway inside Palmer’s lane of travel. He also noted that, more likely than not, the evidence he observed appeared to support plaintiff’s version of the accident, namely, that plaintiff was in his proper lane of travel at the instant of impact.

I consider of utmost importance the testimony of defendant Wren who testified on cross-examination that he knew of nothing that plaintiff did to cause the accident. When asked on cross-examination if his testimony was that his vehicle crossed the centerline of the highway and struck plaintiff’s vehicle, he replied: “I say undoubtedly that it must have been that way.”

There is no evidence whatsoever to establish the presence of Appellant’s vehicle at any place except in its own lane of travel prior to the accident. I can find no firmer basis for exonerating a plaintiff from negligence than the testimony of a defendant, whose testimony remains unimpeached, to the effect that he alone was at fault and that plaintiff did nothing to contribute to the accident. I find such a damaging admission, supported by the physical facts and the testimony of a disinterested witness (the state trooper), to be ample proof of plaintiff’s freedom from negligence and defendant’s liability.

I therefore respectfully dissent from the judgment rejecting Appellant’s claim.


author: PONDER, Judge.

text:
    INTERNATIONAL PLANNING SERVICES, INC., Plaintiff and Appellant, v. Hector VALLE, Defendant and Appellee.
    No. 12238.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.
    Rehearing Denied Jan. 16, 1979.
    Winston W. Riddick and Ralph W. Stephenson, Jr., Baton Rouge, counsel for plaintiff.
    Michael J. McNulty, III, Bauer, Darnall, McNulty & Boudreaux, Franklin, counsel for defendant.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed from the dissolution of a writ of attachment of property belonging to a nonresident.

The issue is whether the appointment of an attorney to represent the absentee is required at the inception of the proceedings. We affirm.

Plaintiff pled that defendant, a nonresident, has become indebted to it and as a basis for jurisdiction asked for and secured an order of attachment on defendant’s property upon giving of bond. There was no order appointing an attorney to represent the defendant. However, the latter through an attorney bonded out the property. The petition and citation were then served on that attorney. Thereafter defendant filed a rule to dissolve the attachment on the basis that an essential requisite to the issuance of a writ of attachment of an absentee’s property is the appointment of an attorney to represent the defendant.

Plaintiff’s contention is that there is no codal requirement for the appointment. We disagree and point to C.C.P. Art. 5091 which reads in part as follows:

“The court shall appoint an attorney at law to represent the defendant, on the petition or ex parte written motion of the plaintiff, when:
“(1) It has jurisdiction over the person or property of the defendant, or over the status involved, and the defendant is: (a) a nonresident or absentee who has not been served with process, either personally or through an agent for the service of process, and who has made no general appearance; . . . ”

As was pointed out in de Lavergne v. de Lavergne, 224 So.2d 149 (La.App., 4th Cir. 1969) the failure to require the appointment of an attorney at the beginning would result in constitutional defects. We therefore affirm. The costs are assessed against the appellant.

AFFIRMED.