text:
    Frances B. SNEED, Plaintiff-Appellee, v. DEPARTMENT OF PUBLIC SAFETY, State of Louisiana, Defendant-Appellant.
    No. 13154.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 1977.
    En Banc. Rehearing Denied March 21, 1977.
    Writ Refused May 25, 1977.

      Foye L. Lowe, Jr., Associate Gen. Counsel, Dept, of Public Safety, Baton Rouge, for defendant-appellant.
    Baker, Culpepper & Brunson by William H. Baker and James R. Hatch, Jonesboro, for plaintiff-appellee, Frances B. Sneed.
    Before PRICE, HALL and JONES, JJ.
   JONES, Judge.

The Department of Public Safety appeals a district court judgment which orders the Department to rescind the revocation of the driver’s license of Mrs. Frances Sneed. We reverse.

Mrs. Sneed plead guilty of Driving While Intoxicated in violation of LSA-R.S. 14:98, on December 13,1974. This was her second D.W.I. conviction. Although the court did not retain her driver’s license and forward it to the Department upon this conviction, as provided by LSA-R.S. 32:393(B)(2), the Department did receive an abstract of the court records containing this conviction on January 7, 1975. The Department, acting under the mandate of LSA-R.S. 32:414(B) (2), then sent Mrs. Sneed a notice of suspension of her license on September 17, 1975. The notice stated the one year suspension would begin upon surrender of Mrs. Sneed’s license to the Department.

Mrs. Sneed obtained counsel and requested an administrative hearing in a letter dated September 23. The hearing was held on November 17, and the decision was adverse to her. On December 29, 1975 she petitioned the district court to reverse the decision of the administrative hearing officer. The district court rendered judgment in her favor on September 7, 1976, and ordered the Department to rescind its revocation of her driver’s license. The trial court based its decision on two grounds: (1) the Department waived its right to revoke Mrs. Sneed’s license by waiting too long, and (2) Mrs. Sneed had not received effective notification of the suspension of her license, and she was entitled to notice of suspension as of a certain date.

LSA-R.S. 32:414 provides in part:

“§ 414. Suspension, revocation and cancellation of licenses; judicial review
* * :{: * 4s Hs
“B. The department shall forthwith revoke the license of any person, for a period of twelve months, upon receiving satisfactory evidence of the conviction or of the entry of a plea of guilty and sentence thereupon or of the forfeiture of bail of any such person charged with any of the following crimes:
* * * * * *
“(2) Conviction or the entry of a plea of guilty and sentence thereupon, or of the forfeiture of bail of any such person on the second or subsequent offense for operating or being in actual physical control of a motor vehicle while under the influence of intoxicating beverages, of central nervous system stimulants or depressants, or of narcotic drugs or any other drug or substance to a degree which renders him incapable of safely operating a motor vehicle, where any or all of the offenses were the result of violations of a state law, a municipal ordinance, a federal law or any combination of them; . . .

Mrs. Sneed states that “forthwith” means “immediately; without delay; at once. . . . ”, and urges because of the eight month delay the Department is now estopped from suspending her license. Mrs. Sneed does not deny or contest the validity of the DWI convictions. She does not show this eight month delay resulted in any prejudice to her in any manner.

This argument was previously considered and rejected in State v. Cornelison, 304 So.2d 758 (La.App., 4th Cir.1974), which stated:

“The ‘forthwith’ mandate of the statute is directed to the Department for the purpose of protecting the public at large from the habitually intoxicated motorist and not to create by implication a prescriptive period to relieve the convicted driver from the penalties of his own misconduct. . . .” Id. page 759

The delay in Cornelison was fourteen months.

The Department has waived no rights and is not estopped to act under LSA-R.S. 32:414 because of delay in notification, under the facts of this case.

The trial court also found Mrs. Sneed did not receive effective notification of her suspension, or of the time the suspension began. This finding is not supported by the evidence. Mrs. Sneed does not deny receipt of the form letter notifying her of the suspension. The letter contains the following language, “Your license has been suspended”, and “Date license surrendered begins period of suspension.” We conclude this letter gave Mrs. Sneed effective notification of both the pending suspension and the time it began to run.

Mrs. Sneed alternatively argues the time of suspension has already run. She states the sending of the notice commences the running of the suspension, citing Smiley v. Waguespack, 314 So.2d 492 (La.App., 1st Cir.1975) (writ denied). The Department urges the applicable rule is that the suspension begins when the license is surrendered, relying on Vicknair v. State, Department of Public Safety, 303 So.2d 226 (La.App., 4th Cir.1974).

Under our facts we feel the correct statement is enunciated in Vicknair. The court there stated in the situation where the license holder has employed administrative or judicial action to contest the suspension or revocation, the time of suspension was from the surrender of the license. Wagues-pack is distinguishable on its facts since there the delay of the licensee in surrendering his license was due to his failure to receive notice of suspension, rather than his seeking administrative and judicial review of the order. However, to the extent Wag-uespack differs from our holding here, we decline to follow it.

Accordingly, the judgment of the trial court is reversed and the finding of the administrative hearing officer is reinstated, suspending the driver’s license of Frances B. Sneed for a period of twelve months, commencing upon surrender of her driver’s license to the Department of Public Safety.

Reversed and rendered.

      . Although LSA-R.S. 32:414(B)(2) states the Department of Public Safety shall revoke a driver’s license upon . (certain conditions) . . ., the Department here is only attempting to suspend Mrs. Sneed’s license. Since neither party urges this as error, we shall consider this alternative is within the reasonable administrative powers of the Department.


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    Henry FIELDS, Administrator of the Estate of William S. Fields and Anita Fields, Tutrix of the minor, William Kyle Fields, Plaintiffs-Appellants, v. SPERRY RAND CORPORATION and the Travelers Insurance Company, Defendants-Appellees.
    No. 13158.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 14, 1977.
    En Banc. Rehearing Denied March 21, 1977.

    Writs Refused May 26, 1977.

      Campbell, Campbell & Johnson by John T. Campbell, Minden, for plaintiffs-appellants.
    Blanchard, Walker, O’Quin & Roberts by William Timothy Allen, III, Shreveport, for defendants-appellees.
    Before PRICE, HALL and JONES, JJ.

       MARVIN, J., took no part in en banc denial of rehearing.

   HALL, Judge.

This is a workmen’s compensation case. The deceased workman suffered a heart attack on the job resulting in disability. About eight months later he suffered a second heart attack at home resulting in death. The administrator of his estate sued the employer and its insurer for disability benefits from the date of the first attack to date of death. The tutrix of the decedent’s minor child sued for death benefits from the date of death. The defendants denied liability and, after trial, the district court rejected plaintiffs’ demands. We reverse and award both disability and death benefits.

Issues

The issues are:

(1) Was the first heart attack an injury by accident arising out of and in the course of the decedent’s employment, entitling him to disability benefits?
(2) If so, was decedent’s death from the second heart attack a consequence of the on-the-job accidental injury so as to entitle his dependent child to death benefits?

Facts

William S. Fields, age 41, was employed by Sperry Rand Corporation as a shot blast worker on the assembly line of defendant’s ordnance plant in Webster Parish. He had been working for Sperry Rand for about two months at the time of the first heart attack on June 9, 1972. Fields also worked as a self-employed automobile mechanic at a service station in Shreveport.

Fields’ job at the ordnance plant required him to pull 80 pound “bullets” from the main conveyor belt onto a smaller conveyor which runs through the shot blast machine, and then return them to the main conveyor belt. He handled one bullet every 25 or 30 seconds. He was not required to lift the full weight of the bullets but had to pick up one end. The work was strenuous and hot. The temperature in the area where he worked was at least ten degrees hotter than outside.

On the day of the first heart attack, a summer day, Fields reported to work about 3:30 in the afternoon, having already worked most of the day at the service station. He complained to his foreman of having a little indigestion. After he had been at work about 40 minutes, it was noticed that he was pale, sweating profusely, and complained of pain in his chest and shortness of breath. At the foreman’s suggestion he went outside for some fresh air and then returned to work on the assembly line. A few minutes later, when he was still not feeling well, it was decided that he should go to the first aid station. He complained to the nurse of chest pains and told her he thought he got overheated. His clothing was saturated with perspiration and he was pale. She had him lie down, took his blood pressure, which was low, gave him salt tablets, and applied ice packs to bring his body temperature down. Fields stayed at the first aid station until about 8:00 p.m. when he went home with instructions from the nurse to see his doctor if he continued to feel badly.

The next day Fields went to see Dr. Jason Sanders, who was out of town, and was admitted to the Schumpert Hospital and placed in intensive care by Dr. Knapp, who was handling Dr. Sanders’ patients while he was away. Dr. Sanders saw Fields within the next few days and diagnosed his condition as myocardial infarction due to arteriosclerotic heart disease with a coronary occlusion. This diagnosis was confirmed by Dr. Herbert Tucker, a heart specialist, who also examined Fields on one occasion. Dr. Sanders described the arteri-osclerotic myocardial infarction as probably massive in character and defined massive as meaning 20% to 25% of the heart muscle was affected. Infarction is the destruction of the muscle or tissue of the heart due to the fact that the blood supply has been cut off to that particular tissue. Arteriosclerosis is hardening of the arteries which is generally a process which takes place over a period of years. An occlusion is usually caused by plaque which breaks off and blocks the flow of blood through the artery to the heart.

Fields was discharged from the hospital on June 20, after about 11 days. The doctor told him to take a little exercise, not to overdo it, and to come back in about two weeks.

Dr. Sanders subsequently saw Fields in his office on July 3, July 17 and October 19. After the last visit, Dr. Sanders was of the opinion Fields was still unable to return to work and the doctor advised him not to do so. Dr. Sanders felt like it would be at least three more months before Fields would be able to return to work and then maybe not to the heavy work he had been doing. He did not see Fields again after October 19.

About a month after Fields got out of the hospital he returned to doing automobile mechanic work at the service station but not at the same pace as previously and he avoided heavy work. During the next several months persons who saw Fields observed that he looked pale and tired, suffered from dizzy spells, and was generally in a poor state of health.

During the night of February 28, 1973, Fields died at home. He was not attended by a physician. The coroner listed the cause of death on the death certificate as myocardial infarction due to arteriosclerotic heart disease.

Fields was survived by a widow from whom he was legally separated and a four year old son. The mother had custody of the child and Fields was under a court order to pay child support of $30 per week, but was actually paying $15 per week. The mother was employed as a nursing instructor at an annual salary of more than $7,000 per year.

This suit was filed June 7, 1973.

Disability Benefits

Compensation benefits are due if an employee receives personal injury by accident arising out of and in the course of his employment. LSA-R.S. 23:1031.

“Accident” and “injury” are defined by LSA-R.S. 23:1021(1) and (7). It is well settled in Louisiana jurisprudence that a heart attack is “injury by accident.” Roussel v. Colonial Sugars Company, 318 So.2d 37 (La.1975); Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (1969); Barnes v. City of New Orleans, 322 So.2d 821 (La.App. 4th Cir. 1976), writ denied 325 So.2d 584 (1976). See also Parks v. Insurance Company of North America, 340 So.2d 276 (La.1976)—acute bronchitis; Leleux v. Lumbermen’s Mutual Insurance Company, 318 So.2d 15 (La.1975)—stroke; Ferguson v. HDE, Inc., 270 So.2d 867 (La. 1972)—stroke; Francis v. Gerlach Meat Company, Inc., 319 So.2d 534 (La.App. 2d Cir. 1975)—ruptured intracranial aneurysm.

Louisiana has adopted the accidental result approach as distinguished from the accidental cause approach in determining whether there is injury by accident. Louisiana is among many jurisdictions that look to the employee, that is, the result to the employee, to determine whether there was an unexpected and catastrophic effect upon him. See Larson’s Workmen’s Compensation Law § 37.20. Extraordinary physical stress and strain is not essential to the definition of disabling accident. When the performance of the usual and customary duties of a workman cause or contribute to a physical breakdown, the statutory requirements for an accidental injury are present. An injury is accidental if it is unexpected and unforeseen and happens suddenly and violently, producing objective symptoms of injury at the time. Ferguson v. HDE, Inc., supra and the other cases cited above.

It is equally well settled, however, that disability is compensable only if it results from a work-related accident. The question presented is generally factual in nature: is plaintiff’s disability causally related to an employment accident? Prim v. City of Shreveport, 297 So.2d 421 (La.1974), and the other cases cited above. It is not necessary that the accident be caused by extraordinary activities of an employee or that the employment activities be the exclusive cause of an accidental injury. It is only necessary that the accidental injury be caused, precipitated, aggravated or contributed to by the actions, exertion or other factors directly connected with the employment. It is immaterial that the disability could have been brought on by causes other than a work-related accident. Parks v. Insurance Company of North America, supra, and other cases cited above.

Roussel recognizes the difficulty in proving causation in a heart attack case, arising from the fact that a preexisting heart infirmity can produce disability irrespective of any outside influence. Roussel recognizes that it is of no significance that the heart attack could have occurred at another time and place if, in fact, the accidental injury occurred on the job. It is only necessary that the death or disability resulting from the accidental injury be caused or precipitated by the usual and customary actions, exertions or other factors directly connected with the employment.

While adhering to the preponderance of the evidence rule, the court in Roussel found that the medical testimony established the myocardial infarction “could have been caused or precipitated by” the decedent’s duties as a machinist and “causal connection was thus clearly established by a preponderance of the evidence.” The holding takes a realistic approach to the difficulty posed by the vagueness of the medical testimony in most of the heart attack and similar cases.

The cases are not clear as to whether the causation inquiry is part of the “accident” determination or is part of the “arising out of” determination. Ferguson and Prim indicate the former. Roussel and Parks indicate the latter. In any event, the requirement of causal relationship between the work activities and the injury remains a viable part of the decisionmaking process. Even in Barnes, which awarded benefits for the death of a clerical employee who worked in a relaxed atmosphere in an air conditioned office, whose work entailed only the ordinary necessity of getting something done, and who died at home after experiencing chest pains at work, the court made the determination based on medical evidence not discussed in detail, that the work caused or contributed to the fatal infarction.

In the case now before this court, the medical evidence, as well as ordinary judgment based on experience and a reading of the numerous heart attack cases in the jurisprudence, leaves no doubt that Fields’ employment activities caused, precipitated, or contributed to the heart attack. Fields was doing strenuous work under hot conditions. The symptoms—chest pains, dizziness, profuse sweating, low blood pressure—manifested themselves on the job. The fact that he had symptoms of indigestion, which can be a symptom of an oncoming heart attack, at the time he reported to work is of no consequence.

Dr. Sanders testified unequivocally that in his opinion the heart attack occurred while Fields was on the job. Dr. Sanders testified that stress is probably the primary cause of such heart attacks, that Fields was under a stressful situation and that his work was an aggravating factor. His work aggravated his preexisting condition.

The conclusion of this court is that the decedent suffered an injury by accident arising out of and in the course of his employment and the administrator of his estate is entitled to recover the disability benefits to which he was entitled from the date of the accident to the date of his death, and medical and funeral expenses.

The administrator of decedent’s estate prayed for $49 'per week, the statutory maximum at the time of the accident, from June 10,1972 to February 28,1973, a period of 37 weeks. The administrator is, therefore, entitled to $1,813, with legal interest on each weekly payment from its due date until paid, plus decedent’s medical bills and funeral expenses of $2,062.68, with legal interest thereon from date of judicial demand until paid, for a total of $3,875.68, plus interest.

Death Benefits

The issue of entitlement to death benefits is more difficult to resolve. Did the on-the-job heart attack cause or contribute significantly to Fields’ death approximately eight months later? Did his death result from the on-the-job accident? Was his second heart attack a natural and expected consequence of the first heart attack?

It is established that an employer is liable for workmen’s compensation when the initial injury is aggravated by medical complications that set in following the injury, whether due to improper medical treatment or otherwise. Deville v. Townsend Bros. Construction Company, 284 So.2d 110 (La.App. 3d Cir. 1973); Andrus v. Great American Insurance Company, 161 So.2d 109 (La.App. 3d Cir. 1964), Malone, Louisiana Workmen’s Compensation Law and Practice, § 233.

This court recently dealt with a similar causation issue in a workmen’s compensation case. Carter v. Rockwood Insurance Company, 341 So.2d 595 (La.App. 2d Cir. 1977). In that case the employee sustained an on-the-job knee injury and about one and one-half years later fell at home sustaining additional injuries. This court found that the second accident was causally related to the first accident and injury and awarded compensation benefits for the disability resulting from the combination of the two accidents and injuries. It was held that post-accident complications may be compensable if they are causally related to an on-the-job accident. The second accident was a natural and expectable consequence of the work-related accident and the disability resulting from the combination of the two accidents was compensable. Causation of the second accident and resulting disability by the previous on-the-job accident was clearly established. The nature of the original injury was such that the chance of subsequent reinjury was a foreseeable risk and an expectable consequence. The second accident resulted during normal activity and was a reasonably foreseeable and natural consequence of the work-related injury.

In the case now before the court we find that the second heart attack and resulting death of the decedent was caused or contributed to by the first heart attack. The second heart attack was a natural, foreseeable, and expectable consequence of the work-related heart attack and the employee’s death resulting therefrom is com-pensable.

The medical testimony supports this conclusion. Dr. Sanders testified that the first infarction caused the loss of 20% to 25% of the heart muscle or tissue. The doctor expressed the opinion that the second heart attack could have indirectly been related to the first heart attack. Because of the previous damage to the heart the doctor was of the opinion that it would take a lesser strain to produce a second heart attack. The doctor stated “there was a definite correlation between the first heart attack and the second, because I feel a person that has one heart attack is more likely to have a second one, than a person that never has had one at all.” Although the doctor stated in a letter that the employee’s work was not the cause of his death, the doctor explained in the letter that the work did aggravate the employee’s heart condition. Dr. Sanders testified that Fields had a damaged heart that never did function like it did previous to the attack, and that his condition put his heart under a stress and strain which would cause further damage to the heart. The doctor stated that the first myocardial infarction was the predisposing cause to the second one. The doctor spoke of the causal relationship as a “probability.”

Fields experienced a massive myocardial infarction damaging 25% of his heart muscle in an accidental injury arising out of and in the course of his employment. He never fully recovered from the first heart attack and was still disabled from it at the time of his second heart attack. The medical evidence establishes that the first heart attack made it more likely that he would have a second one, that a greater stress and strain was placed on his heart because of the damage from the first attack, and there was at least an indirect connection between the two. The conclusion of this court is that it is more probable than not that the second heart attack and Fields’ death was caused by and contributed to by the on-the-job accident and injury and that the second heart attack and death was a natural and expectable consequence of the first injury.

The dependent son is entitled to death benefits. The minor child was partially dependent upon the decedent. His right to benefits is governed by LSA-R.S. 23:1231, which states that “the weekly compensation to be paid shall be equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependents in the year prior to his death bears to the earnings of the deceased at the time of the accident.” In this case, the decedent contributed approximately 13% of his income to the support of his child. The child is, therefore, entitled to 13% of what he would receive if he had been wholly dependent. Since this amount is well below the statutory minimum of $12.50 per week in effect at the time of Fields’ death, the child is entitled to $12.50 per week. LSA-R.S. 23:1202; Fontenot v. Annelida Acres, Inc., 302 So.2d 690 (La.App. 3d Cir. 1974).

The minor child is entitled to $12.50 per week for 500 weeks, less a credit for the $1,813 payable to the estate. The credit is dollar for dollar rather than week for week as claimed in the petition. LSA-R.S. 23:1223; Allen v. Insurance Company of North America, 216 So.2d 400 (La.App. 4th Cir. 1968). The credit of $1,813 equals 145 weeks at $12.50 per week and will be applied to reduce the number of weeks for which payments should be made to the child. The minor is entitled to be paid $12.50 per week for 355 weeks, commencing March 7, 1973, with legal interest on any past due weekly payment from its due date until paid.

Decree

For the reasons assigned, the judgment of the district court is reversed and it is ordered, adjudged and decreed that there be judgment herein in favor of Henry Fields, Administrator of the Estate of William S. Fields, and against Sperry Rand Corporation and The Travelers Insurance Company, in solido, for workmen’s compensation benefits at the rate of $49 per week beginning June 10, 1972 and continuing through February 18, 1973, a period of 37 weeks and a total of $1,813, with legal interest on each weekly payment from its due date until paid; and for medical, hospital and funeral expenses in the amount of $2,062.68, together with legal interest on said amount from date of judicial demand until paid.

It is further ordered, adjudged and decreed that there be judgment herein in favor of Anita Fields, Tutrix of the minor, William Kyle Fields, and against Sperry Rand Corporation and The Travelers Insurance Company, in solido, for workmen’s compensation death benefits at the rate of $12.50 per week beginning March 7, 1973 and continuing for a period of 355 weeks, with legal interest on each past due weekly payment from its due date until paid.

It is further ordered, adjudged and decreed that all costs of this proceeding, including expert witness fees and cost of appeal, are assessed to the defendants, in soli-do.

Reversed and rendered.


author: GULOTTA, Judge. REDMANN, Judge, LEMMON, Judge, BOUTALL, Judge,

text:
    Louis J. DOESCHER v. Agnes Doescher Marcotte, Wife of/and Paul MARCOTTE, et al.
    No. 7651.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Rehearing Denied March 15, 1977.

      Daniel T. McKearan, Jr., Harahan, for plaintiff-appellant.
    Walter E. Kollin, Metairie, for defendants-appellees, Agnes Doescher Marcotte, Wife of/and Paul Marcotte, and John H. Doescher.
    Henican, James & Cleveland, Carl W. Cleveland, A. Reed Sharpe, Jr., New Orleans, for defendant-appellee, Eureka Homestead Society.
    Before SAMUEL, REDMANN, LEM-MON, GULOTTA and BOUTALL, JJ.
   GULOTTA, Judge.

The central issue with which we are confronted is whether funds can be withdrawn from a homestead account by a third party without written authorization from the person in whose name the account is placed.

In July, 1956, a homestead account was opened in the Eureka Homestead in the names of “Clarence Doescher or Louis J. Doescher”. The accumulated principal and interest in the sum of $16,956.43 was withdrawn on January 8, 1969 by one of the defendants — Agnes Doescher Marcotte — a sister of Clarence and Louis Doescher. At the time of the withdrawal, the account passbook was presented to the homestead by Mrs. Marcotte and a receipt for the withdrawn funds was signed “Clarence F. Doescher by Agnes D. Marcotte”. A check issued to Clarence Doescher or Louis J. Doescher for the total amount withdrawn was endorsed “Clarence Doeshcer signed by Agnes D. Marcotte”. On the same date, and apparently at the same time, a written subscription for 320 shares of Eureka Homestead stock in the amount of $16,-000.00 was signed by Clarence F. Doescher and Agnes Doescher Marcotte. An “X” appears in a box next to the word “Transfer” on the subscription request. Another similar subscription for 19 shares of Eureka Homestead stock, dated January 8, in the amount of $956.43 was signed by Clarence F. Doescher and Agnes Doescher Marcotte. With the check endorsed as indicated above, Agnes Marcotte, on the same day, January 8, opened another joint account in the Eureka Homestead in the names of “Clarence F. Doescher or Agnes D. Marcotte”. No written request for withdrawal or receipt for the withdrawn funds was signed by Clarence. Though the written withdrawal request-receipt was signed by Agnes for Clarence, no written power of attorney was furnished to the homestead authorizing Marcotte to withdraw funds from the account or endorse checks in the name of Clarence F. Doescher or Louis Doescher. Clarence F. Doescher died on December 7, 1969.

Subsequent to Clarence’s death, Agnes Marcotte withdrew the funds from the Doescher or Marcotte account, endorsed the check and opened a third joint account in the names of “John H. Doescher or Agnes D. Marcotte”. The funds, together with accumulated interest, are presently in the Eureka Homestead in the joint “John H. Doescher or Agnes D. Marcotte” account.

The trial judge dismissed plaintiff’s suit for the amount of the funds on deposit initially in the account of Clarence Doescher or Louis J. Doeseher and now in the account of John H. Doeseher or Agnes D. Marcotte, and for accrued interest, damages and attorney’s fees. In written reasons, the trial judge concluded that the evidence had established that the funds on deposit initially in the name of Clarence F. Doeseher or Louis J. Doeseher were in fact the sole property of Clarence; that Agnes Marcotte had authority from Clarence to transfer the funds; and that plaintiff did not own any of the funds transferred.

While it is true that the record generally supports the trial court’s conclusion that the money originally on deposit was contributed to Clarence by the father of Clarence, we do not reach this factual question. At the outset, we find no written authorization either from Clarence or Louis to Agnes Marcotte to withdraw the funds initially on deposit in the homestead in the names of “Clarence Doeseher or Louis J. Doeseher”. In the absence of a written power of attorney, neither the receipt for the funds signed by Agnes Marcotte for Clarence, nor the endorsement of the check by Agnes Marcotte for Clarence, nor the subscription for homestead stock, signed by Clarence and Agnes, can satisfy the requirement for written authorization from Clarence to Agnes to withdraw the funds on deposit. Noticeably absent from the documentary evidence is a withdrawal slip signed by Clarence or Louis or a written power of attorney. We consider it worthy of mention at this point that Clarence’s signature could have been obtained on a withdrawal slip, or the receipt, or on the endorsement of the check. No explanation is made in the record why Clarence’s signature was obtained on the subscription dated January 8, but not on the receipt and check dated the same day.

Further, Cheryl Van Kregten, a teller at Eureka Homestead who handled the transaction, acknowledged that no written authority had been given by Clarence Doescher to Agnes to withdraw the funds from his account. Mrs. Van Kregten also stated that she had not found any written authority permitting an account to be opened with a check made out to a person named on the check and not endorsed by that person. This witness acknowledged that what had been done in this case was contrary to the homestead’s policies. However, Katie M. Doeseher — secretary-assistant treasurer of the homestead and an aunt of Clarence, Louis and Agnes — testified that Clarence had considered the money in the joint account as belonging to him and that he had expressed a desire to this witness that the money be transferred to an account in his and Agnes’s names.

Support exists in the record for a conclusion that Clarence orally authorized Agnes to withdraw the funds in the original account and place them into a joint account in the names of Clarence or Agnes. However, oral authorization to the homestead by the person in whose name a homestead account is placed permitting a third party to withdraw funds from the account is not sufficient authority to warrant withdrawal of the funds or transfer of the funds into another account. LSA-R.S. 6:806, relating to homestead and savings and loan associations, in pertinent part, provides:

“Except as otherwise provided in the instrument or document evidencing a savings account or shares, any member, his authorized representative or a person authorized by operation of law may present at any time a written appiication for withdrawal of all or any part of his un-pledged savings accounts or shares. * * * ” (emphasis ours)

Further, in LSA-R.S. 6:922, relating to powers of attorney, a requirement is made that the representative of the person in whose name the account is placed be authorized “in writing” to make “withdrawals”. LSA-R.S. 6:922, in pertinent part, provides as follows:

“Any association may continue to recognize the authority of an attorney-in-fact authorized in writing to manage or to make withdrawals either in whole or in part from the savings account or of the shares and the sums paid in on account of unpledged savings accounts or shares of a member, whether minor or adult, until it receives written notice or is on actual notice of the revocation of his authority. * * * ” (emphasis ours)

Needless to say, to permit withdrawals by third parties based on oral authorization would result in chaos in the homestead and banking businesses.

Accordingly, we conclude that no authority existed for the withdrawal of the funds in the Eureka Homestead in the names of “Clarence Doescher or Louis J. Doescher”. Any subsequent transfer of the funds is null and without effect. Accordingly, plaintiff is entitled to have the funds presently on deposit in the Eureka Homestead in the names “John H. Doescher or Agnes D. Marcotte” transferred to the original account in the names “Clarence Doescher or Louis J. Doescher”.

We find no merit in defendant’s suggestion that the subscription for stock in the Eureka Homestead dated January 8, signed by Clarence Doescher and Agnes Marcotte, on which the word “Transfer” appears, constitutes written ratification of the oral authorization to withdraw the funds. This subscription of Eureka Homestead stock does not refer to any particular fund or account which is to be used for the purchase of the subscribed Eureka stock. No indication appears on the subscription form that the funds on deposit in the original account are to be used for the purchase of the newly-subscribed Eureka Homestead stock.

We further reject defendants’ claim that plaintiff’s action is based upon “conversion of property” and as such is a tort action which prescribes in one year. According to defendants, the suit was filed on July 21, 1972, more than one year from the time that the transaction had taken place, and more than one year since plaintiff had acquired knowledge of the transaction. Although plaintiff’s pleading is labeled a “Petition for Conversion of Property” and as such may sound in tort, courts look to the content of pleadings to ascertain the nature of a complaint, rather than to the labels placed on those pleadings. LSA-C.C.P. arts. 865 and 5051. Northern Assurance Company of America v. Waguespack, 304 So.2d 865 (La.App. 4th Cir. 1974); Bert’s Boat Works, Inc. v. Cuccia, 278 So.2d 134 (La.App. 4th Cir. 1973). When the allegations contained in the petition are considered, we conclude plaintiff’s claim is based upon a breach of contract which prescribes in ten years. LSA-C.C. art. 3544.

Finally, we have not ordered the homestead to place plaintiff in possession of the funds now on deposit in the names “John H. Doescher or Agnes D. Marcotte”, nor awarded a judgment in favor of plaintiff against the homestead for the amount of the funds on deposit, as prayed for by plaintiff. Our decision ordering the transfer of the funds to the original account may very well result, hereafter, in the withdrawal of the funds by Louis. By the same token, the heirs of Clarence, after the finality of this judgment, might seek injunctive relief and assert a succession claim to the ownership of the funds. However, as we view this matter, the succession’s claim to the ownership of the funds is not before us.

Accordingly, the judgment dismissing plaintiff’s suit is reversed and set aside. It is now ordered, adjudged and decreed that the funds in the Erueka Homestead in the names “John H. Doescher or Agnes D. Mar-cotte” be transferred to an account in the Eureka Homestead in the names “Clarence Doescher or Louis J. Doescher”. Costs to be paid by defendants.

REVERSED AND RENDERED.

REDMANN, J., concurs.

LEMMON, J., concurs and assigns reasons.

BOUTALL, J., dissents.

REDMANN, Judge,

concurring.

The judgment against Eureka should grant plaintiff the amount of money which the “Clarence or Louis” account should have in it but for the improper withdrawal, However, since a majority cannot'agree to a money judgment as demanded, there results the lesser decree ordering Eureka to restore the funds to the “Clarence or Louis” account, whence Louis may withdraw them (subject, presumably, to any delay or other requirement that the original account terms would allow; see e. g., R.S. 6:807 and 808).

One’s signature authorizing a new joint account is not an equivalent of his signature on a withdrawal from an existing account. A contrary holding would facilitate theft by anyone who could obtain another’s consent to open a joint account. Thus X might obtain A’s signature on a card opening an “A or X” account on some pretext (e. g., X wants A to be able to withdraw X’s money in the event X is hospitalized); then X obtains A’s funds from A’s account by check payable to A; then X deposits the check to “A’s” A or X account and then X withdraws it.

(La.R.S. 10:4-205 [U.C.C. § 4-205], applicable to banks, makes “effective as the customer’s endorsement” “a statement placed on the item by the depositary bank to the effect that the item was deposited by a customer or credited to his account” [emphasis added]. An account in the name of the customer “or” another presumably is not “his” [the customer’s] account within § 4-205: it is their account, but not his. Perhaps most bank signature cards on “or” accounts expressly authorize either customer to endorse and deposit cheeks payable to the other. In any event, the logically prior issue in this appeal is the lack of authorization at the first step of withdrawal of the funds from the original account, rather than the last step of deposit of the unauthorized withdrawal’s check, effectively un-endorsed, into the second “or” account.)

LEMMON, Judge,

concurring.

Prior to January 8, 1969, both Louis and Clarence Doescher had the right to withdraw funds from the joint account. Our decision holds that Clarence did not make a valid withdrawal on that date. Louis, therefore, still has the contractual right to demand the funds from the homestead, and I would render a money judgment in his favor.

The homestead cannot resist Louis’ demand by asserting Clarence’s ownership of the funds; this simply is not a defense available to the party. Furthermore, no party has appeared in this litigation as Clarence’s succession representative or as his heir. Any question about the ownership of the funds as between Louis and Clarence is therefore not before us.

BOUTALL, Judge,

dissenting.

I disagree with the majority opinion in this case both as to the result and as to the reasoning by which it reached that result. This suit concerns an account opened in the Eureka Homestead in the names of “Clarence Doescher or Louis J. Doescher”. Louis J. Doescher brings suit against his sister Agnes Doescher Marcotte and brother John H. Doescher alleging they have unlawfully converted the account to their own purposes, and against the Eureka Homestead Society for damages, alleging that the funds belong to plaintiff Louis J. Doescher.

The main issue is not whether a third party may withdraw the funds without written authorization, but the ownership of the funds in question. If Louis is not the owner of the account, he is not able to obtain recovery of either ownership or damages. Additionally, I point out that the funds are still intact, together with accumulated interest in an account in the name of the defendants in the Eureka Homestead, and plaintiff is seeking a decree of ownership. The majority opinion sidesteps this issue and causes the parties to engage in another legal entanglement to settle the issue presented in this case. At this same time, I take care to point out that there is no issue in this case as to any inheritance rights or heirship rights that the plaintiff or defendants may have against the funds in question.

At the outset it must be emphasized that the original account stood not just in the name of Louis J. Doescher, but in the name of Clarence Doescher or Louis J. Doescher. Louis claims the ownership of that entire account. The basic defense is by other siblings who contend that Clarence owned the entire account.

As to the issue of the ownership of the funds in question, either owner can prove ownership in whole or in part when the account or deposit in a bank is in the name of two persons. Wilson v. King, La.App., 165 So.2d 70 (1964). Agnes Marcotte, sister of the plaintiff, and Katie Doescher, aunt of both plaintiff and defendants, testified that the original funds were given to Clarence Doescher by his father to compensate him for the work he had done on the family dairy without compensation. Agnes and Katie Doescher testified that they were the only persons present when the benefactor, William Doescher, made such disposition. Plaintiff had earlier testified that he too was present, but the donation was to both him and Clarence. This credibility conflict was resolved in favor of the defendants.

On appeal, the plaintiff argues that the trial court erred when the court allowed ‘hearsay’ evidence as to what the benefactor, William Doescher, told others as to the purpose of the funds. I note that the record of the testimony shows that the plaintiff was the first party to testify as to the statements of the deceased William Doescher’s intent, and that there was no timely objection made by plaintiff’s counsel. Plaintiff had opened the issue with ‘hearsay’ testimony, but now attempts to deny the defendants the opportunity to countervail the 'proof of William Doescher’s intentions. Furthermore, the testimony respecting declarations of a person since deceased, even when against interest, is the weakest sort of evidence, but such statements are legal evidence against other persons claiming under him. Larocca v. Ofrias, 231 La. 292, 91 So.2d 351 (1956).

The testimony of the witnesses shows that the plaintiff had in fact received much more compensation than Clarence had received. The testimony also shows that during the period that the account was in Louis Doescher’s name, he never attempted to withdraw any of the funds, even though he was in a dire financial condition, verging on bankruptcy. Plaintiff offers no explanation of this fact. Further, plaintiff never reported the interest on the funds as his income, but Clarence reported all of the interest on his income tax return.

As to the authority of Agnes to act as Clarence’s agent, even plaintiff admitted that Agnes handled all of Clarence’s financial transactions. Indeed, Agnes handled all of the financial matters for several members of the family. Although the Homestead normally would not allow a third party to withdraw the funds of a joint account, Clarence nonetheless gave implied approval of the first withdrawal by himself signing the authorization-subscription card for the new account opened in January, 1969. The testimony also shows that plaintiff had knowledge of the change of the original account, despite his denial in testimony, prior to a discussion in February of 1970, shortly after Clarence’s death.

Another issue raised by the plaintiff is whether the trial court erred in allowing the testimony of Agnes Marcotte and Katie Doescher as to the circumstances surrounding the transactions, on the ground that parol evidence may not be used to vary the terms of a written contract; plaintiff alleging that the account established a contract between the depositor and the Homestead. This court has said that the relationship of a bank and a depositor is that of a debtor and creditor. Wilson v. King (supra).

The question as to whether Clarence or Louis is the owner of whole or part of the funds deposited has been resolved by the trial court against ownership by Louis and in favor of ownership by Clarence. This determination is largely made on the basis of the credibility of the witnesses. For the reasons stated above, the record supports his judgment, and accordingly I conclude that the trial judge was correct in his judgment and would affirm it on this appeal.

      . For other examples of the requirement th; see LSA-R.S. 6:744(C); LSA-R.S. 6:768( transactions with the homestead be in writing,

      . In oral argument Louis contended he was entitled to damage because the homestead foreclosed on his home mortgage after he, by filing this suit, had demanded the funds in the joint account. No damages were demanded in the pleadings (except non-specified “exemplary” damages). Moreover, the pleadings did not mention the foreclosure, although evidence of that suit was stipulated subject to the homestead’s objection.
      On this record the issue argued simply is not before us for review.

      . Defendants introduced evidence that during the period of plaintiff’s financial dilemma, Agnes Marcotte and other family members loaned plaintiff several thousand dollars to help the plaintiff out; even paying his house note on occasion. They have alternatively pleaded offset of this amount.


author: STOULIG, Judge.

text:
    Karen REBOWE and Albert D. Raiford v. Willie M. HINES and Aetna Casualty and Surety Company.
    No. 7773.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.

      Daniel E. Becnel, Jr., Reserve, for plaintiff s-appellees.
    Wiedemann & Fransen, Perrin C. Butler, New Orleans, for Turpin Pontiac Co., Inc., third party defendant-appellee.
    Bernard, Micholet & Cassisa, Andrew M. Weir, Metairie, for General Motors Corp., third party defendant-appellee.
    Thomas L. Gaudry, Jr., Gretna, for Aetna Cas. & Surety Co., defendant-appellant.
    Before REDMANN, STOULIG and MORIAL, JJ.
   STOULIG, Judge.

Appellant, Aetna Casualty and Surety Company (Aetna), has appealed a judgment awarding Karen Rebowe Raiford $7,592.96 and Albert D. Raiford $5,000 for general and special damages they incurred in an automobile accident on U. S. Highway 61 near Laplace, Louisiana, on June 2, 1974. Aetna, the uninsured motorist carrier under the Raiford policy, was cast in judgment solidarily with Willie M. Hines, the uninsured driver of the vehicle that struck plaintiff’s car. Aetna’s third party demand for indemnification from Hines was not disposed of in the judgment and this omission is specified as one of the complaints of error. Third party actions against the seller and manufacturer of the vehicle Hines was operating were dismissed based on a finding Hines failed to prove an alleged defect in the manufacture of the car that he claimed caused him to collide with plaintiff’s vehicle. Hines did not appeal.

The salient facts in this matter are that the defendant had consumed “two or three 14 ounce beers,” that morning and was en route from Alexandria to New Orleans when he lost control of his vehicle on U. S. Highway 61, hit a 5-inch concrete median separating the eastbound from the westbound lanes and then traveled 205 feet before colliding with another car proceeding eastward. Hines’ vehicle cut diagonally across the eastbound lanes, jumped the median and collided with the Raiford car that was approaching in the westbound lanes at a speed of 55 miles per hour. Raiford was attempting to slow his automobile when the collision occurred. This defendant had attempted to absolve himself from negligence by claiming that the loss of control of his vehicle was caused by a defect in its manufacture. He maintained as a result he was confronted by a sudden emergency and despite his efforts to do so he was unable to avoid striking the plaintiff’s car. The trial court concluded that the defendant failed to sustain his contention.

At the outset of argument, counsel for Aetna acknowledged that the award of quantum was the primary issue on appeal. Aetna’s complaint is twofold: (1) the $7,592.96 award to Karen Rebowe Raiford exceeds the policy limit of $5,000 per person; and (2) the awards to both plaintiffs are excessive.

The validity of the first specification of error with respect to quantum is evident from a stipulation in a pretrial order that Aetna’s maximum exposure is $5,000 per person and insofar as the judgment affects the insurer, the award for Karen Rebowe Raiford must be reduced to the policy limits.

Considering the injuries incurred by both plaintiffs, we do not think an award of $5,000 each constitutes an abuse of discretion vested in the trial judge by C.C. art. 1934(3). We limit our inquiry quoad exces-siveness of award to the $5,000 figure for which the insurer is liable in view of the fact that the co-defendant driver Willie Hines has not appealed or answered the appeal and the judgment against him therefore cannot be modified. Karen Raiford incurred a cervical sprain for which she was treated approximately two months and the symptoms did not completely subside until some time thereafter. In addition, this plaintiff, who was 19 years old when the accident occurred, suffered facial lacerations. This collision occurred two months before her marriage to her co-plaintiff.

Albert Raiford suffered a back sprain that generated low back and left hip sprain that did not subside for several months. In addition he suffered a mild concussion. Accordingly we will amend the judgment to limit the insurer’s liability to the amount stipulated in its contract and affirm the judgment as amended.

Next, Aetna correctly points out it was entitled to a judgment of indemnification against the uninsured motorist, Willie Hines, and we will amend the judgment to correct this oversight.

Finally Aetna contends the trial judge erred in awarding two expert witnesses traveling expenses. The judgment is silent as to amount; however, two witnesses called by a third party litigant, General Motors, submitted affidavits at the judge’s instruction showing itemized expenses of $243.42. This included the cost of plane fare, lodging and food.

The rendition of judgment against Aetna for travel expenses is unauthorized by statute and therefore not recoverable. Kohlmeyer and Company v. Sobert, 273 So.2d 884 (La.App. 1st Cir. 1973). R.S. 13:3661, applicable to Louisiana residents, provides for travel expenses of five cents per mile for witnesses living more than 25 miles from the courthouse and for hotel and meal expenses at the rate of $5 per day. Last amended by Act 1961, No. 25 § 1, this anachronism is the only available statutory authority for fixing expert fees. Even were we to apply this authority to a nonresident of Louisiana, there is no evidence submitted to support a mileage award.

For the reasons assigned, the judgment appealed from is amended to decrease the award in favor of Karen Rebowe Raiford from $7,592.96 to $5,000 only insofar as it affects Aetna Casualty and Surety Company; and amended to award Aetna Casualty and Surety Company $10,000 against Willie M. Hines. It is further amended to delete the judgment for travel expenses to C. E. Becker and Robert A. Bailey only against Aetna Casualty and Surety Company. In all other respects the judgment appealed from is affirmed. Each litigant is to pay his own costs.

AMENDED AND AFFIRMED.


author: GULOTTA, Judge. LEMMON, Judge,

text:
    Vickey Ann ESTEVE v. ALLSTATE INSURANCE COMPANY et al.
    No. 7794.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Writ Granted May 6, 1977.

      Lazard Levy, Marrero, for plaintiff-appellant.
    Francipane, Regan & St. Peé Chester Francipane, G. T. Breedlove, Metairie, for defendant-third party plaintiff-appellant, Maryland Cas. Co.
    Murphy & Simon, E. Kelleher Simon, New Orleans, for defendant-third party defendant-appellee, Allstate Ins. Co.
    Before SAMUEL, LEMMON and GU-LOTTA, JJ. .
   GULOTTA, Judge.

We are confronted with the question whether LSA-R.S. 22:655, the “direct action” statute, is applicable in a personal injury suit filed by a Louisiana resident in a Louisiana court against an insurer (Allstate Insurance Company) of a nonresident driver when the automobile accident giving rise to the damages occurred in Florida and the insurer issued the policy to the nonresident driver in that state.

The facts are that plaintiff sustained injuries as a result of a two-car collision in the State of Florida. Plaintiff was a guest passenger in a vehicle owned by a Louisiana resident. The host-driver was also a Louisiana resident. The other vehicle involved in the accident was owned and driven by a Florida resident.

Plaintiff filed suit in Jefferson Parish against the host-vehicle owner and her insurer, the host-driver and her insurer, and the insurer of the Florida resident-driver. Subsequently, Maryland Casualty (host-owner’s insurer) filed a third party demand against Allstate (Florida resident’s insurer) and State Farm (host driver’s insurer).

The trial court maintained Allstate’s exceptions of no right of action and dismissed plaintiff’s demand and the third party demand against the nonresident’s insurer on the ground that the direct action statute was not applicable. Plaintiff and Maryland Casualty appeal. We affirm.

LSA-R.S. 22:655, as amended, provides for a right of direct action against an insurer when the accident or injury occurred within the State of Louisiana, whether or not the insurance policy was written or delivered in this state. The Louisiana Supreme Court in Webb v. Zurich Insurance Company, 251 La. 558, 205 So.2d 398 (1967) extended the application of this statute to suits filed in Louisiana arising out of accidents which occurred outside of the state, provided the insurance policy was issued in the State of Louisiana. In our case, plaintiff seeks to further extend the applicability of the statute to a suit arising out of an accident occurring outside of Louisiana, when the policy was issued outside of the state.

We have not found, nor have we been cited, any cases from this circuit on this question. However, in Morse v. Hartford Casualty Insurance Company, 301 So .2d 741 (La.App. 3d Cir. 1974), the Third Circuit, citing the Webb case, stated that the “direct action” statute was inapplicable when both: 1) the accident or injury had occurred outside of Louisiana and 2) the policy sued upon had been written or delivered outside Louisiana. The court in Morse concluded that the Louisiana resident-plaintiff had no right of action against the nonresident’s insurer even though the insurer was doing business in Louisiana. See also Kirchman v. Mikula, 258 So.2d 701 (La.App. 3d Cir. 1972). We are in accord with the holding of the Third Circuit in Morse and conclude that the sécuring of the policy within Louisiana is a sine qua non of the right of direct action in those cases where the accident occurred outside of Louisiana.

However, we are presented with plaintiff’s and Maryland Casualty’s interesting argument based on Smith v. Globe Indemnity Co., 243 So.2d 882 (La.App. 1st Cir. 1971), in which the First Circuit held that a Louisiana court had jurisdiction over a New York workmen’s compensation insurer in a suit arising from a work-related injury in Tennessee to a Louisiana resident where the employment contract had been written in Tennessee. The Smith holding rests on the decision of the U.S. Supreme Court in Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952), which determined that no due process prohibition exists to a suit filed in the state of the plaintiff resident against a nonresident defendant if that nonresident is authorized to do and is doing business in the state where the suit is filed, although the cause of action arose outside of that state. Citing a Florida case, Shingleton v. Bussey, 223 So.2d 713 (Fla.1969), third party plaintiff, Maryland Casualty argues that the Florida case holds that a contract of liability insurance is a contract for the benefit of a third party and an injured plaintiff has a direct cause of action against the alleged tort feasor’s insurer. Applying the holding of the First Circuit in the Smith case, which cited the holding of the U.S. Supreme Court in Perkins, and following the rationale of the Florida court in Shingleton, plaintiff and Maryland Casualty contend that in addition to the rights conferred by the direct action statute against the insurer of the nonresident defendant, an additional right of action exists where a Louisiana resident files suit in Louisiana against a nonresident defendant when the accident occurred outside of the state if the nonresident defendant does business or is authorized to do business in Louisiana. We do not agree.

As pointed out by our brothers on the Third Circuit, the Smith court was confronted with a jurisdiction question. The direct action statute was not before the Smith court, and Morse distinguishes the Smith case on the ground that the Morse court was confronted with a direct action statute and not merely a jurisdiction question. Our problem, as in Morse, is the application of the direct action statute. Absent the right conferred on the Louisiana, resident-plaintiff by the direct action statute, no right of action exists in Louisiana against the insurer directly. It is important to realize, at this point, that the Florida resident-driver, Allstate’s insured, is not a party defendant.

If we were to adopt the argument conferring the right upon the Louisiana resident against the insurer of the nonresident defendant by virtue of the combined holdings in the Louisiana Smith case, the Florida Shingleton case' and the U.S. Supreme Court Perkins case, no necessity would exist for the adoption of the direct action statute. If we follow plaintiff’s and Maryland Casualty’s logic, then in those cases where an insurer of a nonresident defendant does business in this state and the cause of action arises outside of Louisiana, any Louisiana resident can file a direct action suit (without the direct action statute) against the insurer without the necessity of joining the nonresident-tortfeasor-insured. We find no authority beyond plaintiff’s and Maryland Casualty’s argument based on Smith, Perkins and Shingleton.

The U.S. Supreme Court decision in Perkins might be applicable if suit were filed against the nonresident-tortfeasor-de-fendant who does business in Louisiana, but the direct action acquired against the insurer of the nonresident tortfeasor comes into existence by virtue of the insurance contract. Without the insurance contract, no cause of action exists against the insurer. The effect of the Louisiana Supreme Court decision in Webb is that if the contract were not written in Louisiana and the accident occurred outside of the state, the direct action statute does not apply. Under the circumstances of the instant case, since the accident occurred in Florida and the policy was secured in that state, we conclude, following the rationale of the Louisiana Supreme Court in Webb, plaintiff has no right of direct action against Allstate under LSA-R.S. 22:655. Accordingly, the judgments of the trial court, maintaining Allstate’s exceptions of no right of action and dismissing plaintiff’s, Vickey Ann Es-teve’s, and third party plaintiff’s, Maryland Casualty Company’s, claims against Allstate Insurance Company, are affirmed.

AFFIRMED.

LEMMON, J., dissents with written reasons.

LEMMON, Judge,

dissenting.

The issue in this case is , not whether R.S. 22:655 applies here to permit plaintiff to bring a direct action, but whether under the facts of this case plaintiff is prevented from bringing a direct action as a third party beneficiary under the insurance contract.

Tort victims are generally prevented from bringing a direct action because “no action” clauses usually contained in liability insurance contracts prohibit the bringing of an action by a third party until certain conditions precedent have been satisfied. Louisiana, viewing contracts of liability insurance as more than a private contract between two parties and realizing that such contracts are issued for the protection of the public and the benefit of injured persons as well as for the protection of the insured, enacted the direct action statute specifically to overcome the prohibition contained in “no action” clauses. See Webb v. Zurich Ins. Co., supra.

In the absence of a valid “no action” clause in this case, there is nothing to prevent plaintiff from bringing a direct action against Allstate in Louisiana under general contract law, as a third party beneficiary under the insurance contract. Because I conclude that any “no action” clause in Allstate’s policy is invalid, I deem it irrelevant whether R.S. 22:655 applies by its terms in this case.

Determination of the validity of a “no action” clause is usually a choice of laws problem. However, in the present case there is no conflict of laws, because both Louisiana and Florida consider “no action” clauses invalid.

Consequently, the choice of laws problem as to whether Louisiana can constitutionally, within due process limitations, apply R.S. 22:655 or its public policy against “no action” clauses to allow a right of direct action for injuries received outside of Louisiana, when the insurance contract was issued in another state, is not reached in this case. Whether Louisiana law or Florida law is applied, this plaintiff had the right to bring a direct action as a third party beneficiary under Allstate’s contract. Thus, it is immaterial whether Louisiana had sufficient contacts with the controversy or the parties to make it permissible within due process limitations to use Louisiana law in the adjudication.

Since under the law of Florida (where the policy was issued and the accident occurred), Allstate’s policy could not validly prohibit a direct action by a tort victim, this plaintiff undoubtedly could have brought a direct action in Florida. I fail to see any reason why this plaintiff cannot bring a direct action in Louisiana under the insurance contract, which (viewed under either Louisiana or Florida law) has no valid prohibition against direct actions, as long as Louisiana has jurisdiction over the person as to Allstate.

APPENDIX

In the determination of whether R.S. 22:655 applies to a given set of facts and whether due process limitations otherwise prevent the bringing of a direct action in Louisiana, the following four situations are possible relative to the place of occurrence of the accident and the place of issuance of the policy:

1. The accident occurred in Louisiana, and the policy was issued in Louisiana.
2. The accident occurred outside of the state, but the policy was issued in Louisiana.
3. The accident occurred in Louisiana, but the policy was issued outside of the state.
4. The accident occurred outside of the state, and the policy was issued outside of the state.

In Situation No. 1 the terms of the direct action statute are clearly applicable, and such an action presents no problem of due process limitations on a state’s choice of law.

Situation No. 2 was presented in Webb v. Zurich Ins. Co., supra. In deciding the applicability of the statute in that case, the Supreme Court was troubled by the wording of the 1950 amendment, in that literal interpretation of the clause “provided the accident or injury occurred within the State of Louisiana” would have prevented application of R.S. 22:655 in cases where the accident occurred elsewhere. The court interpreted the “provided” clause as meaning that “when” the accident or injury occurs here, the right of direct action exists, regardless of where the policy was issued. Using converse reasoning, the court held that when the policy is issued here, R.S. 22:655 permits direct actions, even “when” the accident occurred out of state.

Situation No. 3 is one to which R.S. 22:655 clearly applies, but which presents a substantial choice of laws problem. The case of Watson v. Employers Liab. Assur. Corp., 348 U.S. 66, 75 S.Ct. 166, 99 L.Ed. 74 (1954) involved a direct action, by a Louisiana resident for injuries received in Louisiana, against a foreign insurer on a contract issued in Massachusetts (where “no action” clauses were binding and enforceable). The court held that Louisiana had a legitimate interest in safeguarding the rights of persons injured in the state which was not outweighed by Massachusetts’ interest in the policy sued upon.

Situation No. 4 materializes in the present case. If there were a conflict between the laws of Florida and Louisiana on the validity of “no action” clauses, then the court would be faced with the difficult determination of whether Louisiana has sufficient contacts with the parties or with the facts so as to make it reasonable for this state to apply its own policies and laws in adjudicating the controversy. Since there is no conflict of laws problem, this court may apply either Louisiana or Florida law and permit this plaintiff to bring a direct action.

      . The Florida holding is not inconsistent with Louisiana’s interpretation of automobile liability insurance contracts. Musmeci v. American Automobile Insurance Company, 146 So.2d 496 (La.App. 4th Cir. 1962); Churchman v. Ingram, 56 So.2d 297 (La.App. 2d Cir. 1951).

      . Actually, Allstate’s policy is not in the record (which alone is sufficient reason to overrule the exception), but for present purposes I assume the policy contains a “no action” clause.

      . Since the primary purpose of R.S. 22:655 is to nullify “no action” clauses, application of that statute is unnecessary in a direct action where the “no action” clause is otherwise invalid.

      . In Shingleton v. Bussey, supra, the Supreme Court of Florida declared violative of the state’s public policy any insurance contract provision which prohibited a direct action against the insurer, explaining:
      “The insured and the insurer cannot constitutionally contract away or postpone the speedy and adequate remedy the law affords a third party, nor impose unusual limitations upon the latter’s right to jointly sue adverse parties. Balanced, therefore, against the public policy of this state favoring the elimination of multiplicity of suits and unreasonable impediments to the remedial process of adjudication of adversary rights conferred by the operation of substantive principles of law, we think the ‘no joinder’ restriction in the subject policy goes much too far and therefore should be construed as securing for the insurer only the right to assert the nonlia-bility and not the nonjoinder of the insured with the insurer as a condition precedent to the liability of the insurer.
      * * * * * *
      “In any case, it seems anomalous to public policy to procedurally sanction and condone a situation where the ultimate beneficiary of policy proceeds is deprived by a provision in the policy of an open, speedy and realistic opportunity to pursue by due process his right of an adequate remedy at law jointly against the insured and insurer.”

      . See Appendix to this opinion for an analysis of that problem.

      . Jurisdiction of the Louisiana court over the person was the sole issue decided in Smith v. Globe Indem. Co., supra. That decision also discussed at length the doctrine of forum non conveniens, which has pertinence only after it is decided that the court has jurisdiction.
      The sole issue in this appeal is plaintiffs right to bring a direct action against Allstate under the insurance contract.

      . The court only commented upon legislative intent and did not pass upon the validity of legislative attempt to regulate insurance contracts issued outside of the state. That issue was not before the court under the facts of the Webb case.

      . Once the problem of the language in the “provided” clause was resolved, the court had no difficulty in determining that Louisiana can constitutionally regulate policies of insurance issued in the state and nullify policy stipulations contrary to the Louisiana law which permits direct actions.

      . For further discussion see Weintraub, Commentary on Conflicts of Laws, Ch. 9 II A (1971).


author: MORIAL, Judge.

text:
    Zelia Kammer, wife of/and Earl A. DIMITRY v. Stanley M. BRESSLER et al.
    No. 7822.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.

      Hartel, Kenny & Dimitry, Richard K. Dimitry, New Orleans, for plaintiff-appel-lee.
    Law Offices of James J. Morse, Jr., Julian G. Baudier, Jr., New Orleans, for defendants-appellants.
    Before GULOTTA, SCHOTT and MORIAL, JJ.
   MORIAL, Judge.

Plaintiff, Earl A. Dimitry, was awarded $359.62 for damage to his Alfa Romeo automobile. The left rear of plaintiffs parked auto was struck by a vehicle operated by defendant’s minor son, Lee Bressler, Jr., on January 3, 1975.

Defendants admitted liability for the damages to the rear of plaintiffs vehicle, but appeal from that part of the judgment awarding plaintiff $186.53 for damages to the front bumper and gravel plate of his auto. We affirm.

Plaintiffs car was parked on Maple Street at the corner of Short Street in New Orleans. Plaintiff testified he had parked four to six inches behind a foreign car after returning from lunch that day.

Defendant’s son, Lee Bressler, Jr., was operating a 1975 Buick owned by his father Stanley M. Bressler and insured by The Travelers Insurance Companies. The Bres-sler vehicle, carrying three classmates of Lee Bressler, stopped for a stop sign on Short Street and then proceeded to turn left onto Maple Street. As Bressler turned the corner, his vehicle hit the left rear of plaintiff’s' Alfa Romeo, a small foreign ear. Bressler circled the block, parked and surveyed the damages. Bressler and his passengers noted that damage had been done to the left rear bumper, but after inspecting the front of the plaintiff’s vehicle and the back of a green Porsche parked in front of plaintiff’s vehicle, concluded that there had been no further damage. Bressler left a note with his name and telephone number taking responsibility for the rear end damage. Plaintiff, upon receiving the note from a co-employee went out and surveyed the damage to the rear end only. Plaintiff called Mr. Bressler, Lee’s father who advised him to get an estimate on the damage. Plaintiff took the car to the Auto Paint and Repair Shop that afternoon and was told of additional damage to the front bumper and gravel plate. That evening, plaintiff brought the car over to defendant’s home and pointed out certain previously sustained damages as well as the damage which he alleged resulted from his car being struck by the Bressler vehicle.

The Travelers Insurance Companies sent plaintiff a check for the damage to the rear of his car. Plaintiff refused it claiming the amount of the check was insufficient to cover all the damages he had sustained.

The trial judge concluded that the plaintiff presented sufficient evidence to establish a causal connection between the damaged front end of his car and the January 3, 1975 accident. In oral reasons the trial judge commented on the honesty and integrity of plaintiff. He obviously believed plaintiff’s testimony in which he denied the preexistence of the front end damage. We are bound to attribute great weight to the credibility evaluations and factual findings of the trial judge. See Canter v. Koehring Co., La., 283 So.2d 716 (1973).

In the tort case, a plaintiff must prove by a preponderance of the evidence both the negligence of the defendant and the damages caused by the latter’s fault, but proof need only be by a preponderance of the evidence, not by some artificially created greater standard. This burden of proof may be met by either direct or circumstantial evidence. Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971). We are dealing in this case with circumstantial evidence. Direct or circumstantial evidence is sufficient to constitute a preponderance, when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not. Jordan v. Travelers Insurance Co., supra.

Reviewing the testimony, we conclude that plaintiff takes very good care of his automobile and keeps it in good condition making frequent repairs. We find no evidence which leads us to believe that the front end damage alleged by plaintiff as having been caused by Bressler’s negligence preexisted the accident.

Plaintiff had parked his car four to six inches behind another foreign car on the day of the accident. There was testimony by one of the passengers in the Bressler car that, upon impact, plaintiff’s car rolled and moved the car in front of it, supporting a conclusion that there was some contact between the two vehicles.

Taking the evidence as a whole we conclude that it is more probable than not, that defendant caused the damage to the front end of plaintiff’s automobile.

For the foregoing reasons the judgment of the trial court is affirmed.

AFFIRMED.


text:
    FIRST NATIONAL BANK OF COMMERCE v. The WATERGATE, INC., & Williams Boulevard Land Company.
    No. 7853.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Rehearing Denied March 15, 1977.
    Writ Refused May 6, 1977.
    Shushan, Meyer, Jackson, McPherson & Herzog, Robert P. Chatelain, New Orleans, for plaintiff-appellee.
    Bridgeman & Conway, James R. Conway, III, Metairie, for intervenor-appellant.

      Before GULOTTA, SCHOTT and MORIAL, JJ.
   MORIAL, Judge.

Crescent Pile Driving Co., Inc. (Crescent) appeals from a judgment denying its motion to set aside a sheriff’s sale and holding its materialmen’s lien inferior to a mortgage of First National Bank of Commerce (FNBC) on certain property situated in Jefferson Parish. Crescent also appeals a ruling of the district court denying its exception of unauthorized use of summary proceedings.

On February 13, 1975 FNBC filed a petition for executory process seeking to have the sheriff seize and sell certain immovable property, designated as Plot A-3, located in Highway Park Subdivision in Jefferson Parish. On March 7, 1975 FNBC filed a motion to have the court judicially rank its mortgage along with any other privileges recorded against Plot A-3. Prior to becoming the mortgagee on November 7, 1973 FNBC obtained from a licensed surveyor an affidavit of “no work” on Plot A-3. See LSA-R.S. 9:4819. This affidavit stated that no building material or equipment had been delivered or deposited on the premises and that no work of any kind had been commenced. On March 25, 1975 Crescent filed an intervention alleging its material-men’s lien to be superior claiming it had done work on the premises prior to the recordation of FNBC’s mortgage.

When Crescent originally worked on the property it was designated as Plot A — 1. Subsequently, the Plot A-l was divided into Plots A-2 and A-3 which plan of re-subdivision was approved by an ordinance of the Kenner City Council on November 13, 1972. FNBC is foreclosing on the property designated Plot A-3.

At the time of its intervention Crescent filed exceptions of prematurity and unauthorized use of summary proceedings. The prematurity exception was rendered moot by a subsequent judicial sale. In the other exception, Crescent argued that the legislature in Act 130 of 1974 deleted the words and privileges from Section 7 of LSA-C.C.P. Article 2592 thus eliminating the use of summary procedures for the purpose of ranking privileges. The district court held that the omission of the words and privileges from LSA-C.C.P. Article 2592(7) was a typographical error and that pursuant to LSA-R.S. 24:253 the Louisiana Law Institute had the authority to correct such an error. We affirm the district court on this point.

It is obvious from a reading of the purpose of House Bill No. 341 and the title of Act 130 of 1974 that the only deletion intended in Paragraph 7 of LSA-C.C.P. Article 2592 was of the final “and” which was the last word in former Paragraph 7. The footnote following the updated version of LSA-C.C.P. Article 2592 explains that the omission of the words and privileges was an error in the Legislative Bureau publication and did not reflect the intent of the Legislature.

On April 9, 1975 a judicial sale was held and FNBC as seizing creditor purchased the property for $90,500.00. The advertisement of the sale stated it was to be transacted on cash terms at the time of purchase. FNBC did not transfer any monies to the sheriff; however, at this time, title was not transferred pending a judicial ranking of the various claims on the property. Crescent opposed the non-payment at the time of sale and sought to have the sale declared null and void. The district court rendered judgment denying Crescent’s motion to set aside the sale and concluded that the FNBC mortgage was superior to Crescent’s lien.

There are three issues on appeal. We have hereinabove disposed of the first issue concerning the ranking of privileges by summary process. The second issue is whether or not the sheriff’s sale should be rescinded and another sale ordered because of the plaintiff’s failure to pay the full purchase price at the time of the sale and the third issue is whether or not the affidavit of “no work” firmly established the superiority of the FNBC mortgage.

Crescent argues that under LSA-C. C.P. Article 2375 FNBC was required to pay over to the sheriff the purchase price. LSA-C.C.P. Article 2375 provides only for the situation where there are other creditors with inferior liens. A different procedure is set up under LSA-C.C.P. Article 2374, where there are creditors with claims superior to that of a seizing creditor. In that instance, the purchaser pays to the sheriff only that portion of the sale price which exceeds the amount of superior claims. In the case herein, there had been no ranking of claims at the time of sale. At that point in time, the parties were unable to determine which article of the Code of Civil Procedure was applicable. Therefore, under those circumstances the most practical course was to suspend any transfer of the funds. Especially, is this true, in light of the fact that the seizing creditor was also the purchaser, and, if it was held to have the superior lien, it would not pay any amount to the sheriff since the purchase price did not exceed the amount of its mortgage. See LSA-C.C.P. Article 2374.

Crescent also argues that the provisions of LSA-R.S. 13:4360 B apply herein and that it has a right to demand a resale because plaintiff failed to pay the purchase price within thirty days of the sale. We find LSA-R.S. 13:4360 B inapplicable. That section provides for the remedy of an interested party in a situation where a purchaser at a judicial sale makes the required deposit and fails to pay the balance within thirty days: Crescent argues that in spite of the fact that no deposit was required herein the second part of Section B referring to a thirty day payment applies. We disagree. Section A provides for a procedure to be followed by a seizing creditor in the case of a sale where full payment is required at the time of sale and the purchaser fails to make the payment. Crescent is not the seizing creditor. Under no part of R.S. 13:4360 is Crescent allowed to demand a second sale.

Crescent’s final argument is that the trial court misinterpreted the provisions of LSA-R.S. 9:4819(A)(3) which provide:

* * * * * sis

“(3) In any event, if an affidavit, duly signed by an architect, a licensed civil engineer or registered land surveyor, before a notary public, has been filed in the office of the clerk and recorder of the parish in which the property is located or in the case of Orleans Parish, in the mortgage office thereof, which affidavit certifies that he has inspected the job site on a certain date and at a certain time and that no work has begun or material furnished to the building site, either on new construction or on the improvement, repair or reconstruction of existing construction; and such affidavit is filed immediately prior to the filing of a bona fide mortgage or bona fide vendor’s lien, or within two business days thereafter, then any lender, including banks, savings and loan associations, life insurance companies, credit unions or other institutional lenders, and other interested parties may rely on the facts recited in said affidavit and shall maintain any and all privileges to and priority over other liens and claims as conferred by Title 9, and particularly, 9:4801, 9:4812, and 9:4813. The filing of such an affidavit will in no wise prejudice the rights of the furnishers of labor or material to file and perfect liens to which they may be entitled, but if materials have been furnished after the affidavit of the engineer, architect or surveyor has been filed, then a materialmen’s lien, is-subordinated to the bona fide mortgage or vendor’s lien.”
# # * 4s * Sk

Crescent argues that the last sentence of paragraph (A)(3) states that a material-men’s lien is only subordinated to a bona fide mortgage where the materials have been delivered after the affidavit has been filed. Intervenor argues, therefore, that the trial court erred in not allowing him to present evidence to show that the work was begun and materials were delivered prior to the affidavit. There is a proffer to that effect in the record.. Crescent also denies that a right of action against the inspector for negligently or willfully filing a false affidavit is a meaningful remedy.

FNBC’s position is that the provisions of La.R.S. 9:4819(A)(3) allow a lender to rely on the affidavit of “no work” to assure him of security in his lending position from the inception of the transaction. Plaintiff contends that the last sentence of the paragraph is merely directory and its purpose is to provide that liens may be filed and perfected even after an affidavit is filed.

LSA-R.S. 9:4819(A)(3) is a relatively new statute and there has not been a lot of interpretation of it. The implication from a recent case, Louisiana National Bank v. Triple R. Contractors, Inc., 334 So.2d 516 (La. App. 1 Cir. 1976) writ granted La., 338 So.2d 287 is that a lending institution may rely on the engineer’s affidavit unless they know or should have known of the insufficiency of the affidavit. In that case an apartment complex was being built in two phases. A licensed engineer surveyed only a portion of the land which was being mortgaged. In that case, the mortgagee was on notice that the entire mortgaged area had not been inspected and approved. In this case, the entire Plot A-3 was surveyed and approved by a licensed surveyor. Therefore, FNBC could rely on the affidavit. The district court was correct in not allowing Crescent to introduce evidence to contradict the “no work” affidavit. The language of LSA-R.S. 9:4819(A)(3) which provides for reliance by the lender on the “no work” affidavit would be meaningless, and, we think, the legislative intent and object of the statute frustrated if a materialman is permitted to controvert the “no work” affidavit and thereby subordinate the lender’s mortgage to his lien. Materialmen are, we think, adequately protected by LSA-R.S. 9:4819(C) which provides:

“(C) Any civil engineer, architect or registered land surveyor, who shall negligently or wilfully file a false affidavit under this section or who fails to record an affidavit when required to do so, shall be liable to any materialmen or laborers who may have otherwise been entitled to a lien or privilege hereunder.”

For the foregoing reasons the judgment of the district court is affirmed,

AFFIRMED


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    Grace B. Adams, wife of/and William ADAMS v. NEW ORLEANS BLOOD-BANK, INC. and Touro Infirmary.
    No. 7856.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Rehearing Denied March 15, 1977.

      Barranger, Barranger, Jones & Fussell, Garic Kenneth Barranger, Covington, for plaintiff-appellant.
    Henderson, Hanemann & Morris, Robert L. Morris, Houma, Adams & Reese, Harold A. Thomas, New Orleans, Joseph J. Wei-gand, Jr., Houma, Christopher B. Siegrist, Metairie, Lemle, Kelleher, Kohlmeyer & Matthews, William S. Penick, William J. Guste, Jr., Atty. Gen., Joseph W. Thomas, Staff Atty., New Orleans, for defendants-appellees.
    Before GULOTTA, SCHOTT and MORIAL, JJ.
   MORIAL, Judge.

This is an appeal from a judgment of the district court sustaining defendants’ motion to strike paragraph 6 of plaintiffs’ original petition and paragraph IV of plaintiffs’ supplemental petition insofar as they relate to any claims based upon express or implied warranty and striking paragraphs 8 and 9 of plaintiffs’ original petition.

Plaintiffs filed this suit for damages. They allege that Grace B. Adams contracted serum hepatitis as a result of post operative blood transfusions administered to her at the Touro Infirmary. Plaintiffs’ suit is couched in terms of warranty, strict liability and traditional negligence. The issue as to the latter ground as a cause of action is not before us. It is, therefore, unnecessary to set forth verbatim the portion of the allegations, of plaintiffs’ petitions ordered stricken which in effect relate to express or implied warranty and the allegations of paragraph 8 of plaintiffs’ original petition alleging strict liability as a cause of action and paragraph 9 which alleges the unconstitutionality of LSA-R.C.C. Article 1764 B.

A motion to strike is not an authorized or proper way to procure the dismissal of a complaint or a cause of action. See LSA-C.C.P. Article 964. The technical name given to a motion is, however, of little importance. See LSA-C.C.P. Article 962. We treat the motion to strike as an exception of no cause of action to a portion of plaintiffs’ petition.

Plaintiffs’ petition fails to state a cause of action in warranty or strict liability. The attack on the constitutionality of LSA-R.C.C. 1764 B is without merit. See Juneau v. Interstate Blood Bank of Louisiana, 333 So.2d 354 (La.App. 3 Cir. 1976), writ denied, 337 So.2d 220 (La.1976); Koppenol v. St. Tammany Parish Hospital, 341 So.2d 1242 (La.App. 1 Cir. 1976).

The judgment appealed is affirmed.

All costs relating to the instant proceedings are assessed against plaintiffs. All other costs are to await a final determination on the merits.

AFFIRMED.


author: SCHOTT, Judge.

text:
    Neila LeBlanc, wife of Dr. Eugene J. LOYACANO v. Dr. Eugene J. LOYACANO.
    No. 7862.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Rehearing Denied March 15, 1977.
    Writ Granted May 6, 1977.
    Wiedemann & Fransen, Lawrence D. Wiedemann and Coleman, Dutry, Thomson, Meyer & Jurisich, Jacob J. Meyer, New Orleans, for, defendant-appellant.
    Satterlee, Mestayer & Freeman, A. D. Freeman, New Orleans, for plaintiff-appel-lee.
    Before GULOTTA, SCHOTT and MORIAL, JJ.
   SCHOTT, Judge.

This case is before us after a trial on remand pursuant to our opinion in Loyacano v. Loyacano, 311 So.2d 910 (La.App. 4th Cir. 1975). Mrs. Loyacano had originally secured a judgment in November, 1971, providing her with $1,000 per month alimony' and $1,000 per month for the support of two minor children born on January 10, 1959, and May 3, 1960. Both parties have now appealed from the judgment which reduced the alimony to $300 per month and dismissed the rules to increase and reduce child support.

Mrs. Loyacano produced a schedule of expenses which would tend to support an award of $740 per month per child. On the other hand, Dr. Loyacano produced a schedule of expenses which would tend to support an award of $432 per month per child. The differences between the figures result from different amounts being allocated for such items as entertainment, allowances, summer camp, vacations and Christmas presents. The record does not indicate that Mrs. Loyacano has exaggerated or that Dr. Loyacano has underestimated these various expenses but the respective figures represent an honest effort on the part of each party to estimate a fair amount for the support of these almost grown children. Nevertheless the nature of an adversary proceeding in which human emotions are so deeply involved invariably results in the parties both shading their estimates to support their respective positions. Furthermore, the problem at arriving at a proper figure for child support cannot be solved by the precise science of mathematics. Invariably the amount fixed by the trial judge is vulnerable to arguments on both sides that it should have been more or less. It is for these reasons, among others, that our jurisprudence is to the effect that alimony and child support are within the sound discretion of the trial court and will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. Nicolle v. Nicolle, 308 So.2d 377 (La.App. 4th Cir. 1975). We are not persuaded that such a showing has been made in the instant case.

Mrs. Loyacano has relied heavily on evidence that until February, 1974, when Dr. Loyacano remarried, he gave to her and/or his children sums of money over and above that which he was required to pay under the November, 1971, judgment for such items as school tuition, salary of a maid, summer camp and vacation and dental work for the children. She argues that his discontinuation of these extra payments resulted in a change in circumstances and a corresponding change in the needs of the children. However, most of the items for which these extra payments were made were included in the schedules of needs for the children which have already been discussed. The largest item among these extra payments, some $1700 for maid service, was paid at a time when Mrs. Loyacano was employed; that is, before she resigned from her $500 a month position in July, 1974. That she is no longer working and has custody of her children offsets any increase in need she may have by the elimination of these extra payments for maid service.

As to entitlement of alimony under LSA-C.C. Art. 160, she is not entitled to such if she has sufficient means for her maintenance, and in determining such means her assets must be considered along with her income. Frederic v. Frederic, 302 So.2d 903 (La.1974). The evidence shows that Mrs. Loyacano became the owner of General Motors common stock in 1972 and 1974 which had a market value of $5,625 at the time of the trial. She had $20,000 in certificates of deposit in a savings and loan association, $1,200 on deposit in savings and checking accounts, and $2,500 accumulated in a pension fund with her former employer, the Clerk of the First City Court for the City of New Orleans. These total $29,325. There is a stock pledge of $6,000 against the savings and loan certificates which was made for the purchase of an automobile in 1975 for $5,500. In 1973 Dr. Loyacano gave her $25,000 for the down payment on the home she occupies with her children. This was purchased for $41,500 and currently has a mortgage balance outstanding of approximately $28,500, leaving an equity of almost $13,000. She also owns a 1964 automobile.

We have considered these assets as an established change in circumstances because the stock certificates were purchased in 1972 and 1974 and the savings and loan certificates are all dated 1973. The equity in the Clerk’s fund has gone up some $750 since 1971.

When Mrs. Loyacano’s circumstances are considered in the light of the discussions by the Supreme Court in Frederic v. Frederic, supra, and Smith v. Smith, 217 La. 646, 47 So.2d 32 (1950), we are required to reverse the trial judge’s award of this item.

Accordingly, that portion of the judgment appealed from in favor of Neila Le-Blanc Loyacano and against Eugene James Loyacano, condemning him to pay alimony in the sum of $300 per month, is reversed and set aside and there is judgment in favor of Eugene James Loyacano and against Neila LeBlanc Loyacano making absolute his rule to discontinue alimony payments.

That portion of the judgment in favor of Neila LeBlanc Loyacano and against Eugene James Loyacano dismissing his rule to reduce child support and maintaining such at $1,000 per month is affirmed.

Each party is to pay his or her own costs.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.