text:
    Russell CUCCIA v. KENT WELDING & MACHINE, INC., et al.
    No. 11154.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearing Denied March 21, 1977.
    Writ Refused May 10, 1977.

      Charles B. W. Palmer, for Russell Cuccia, plaintiff-appellant.
    France Watts, III, Franklinton, for Kent Welding & Machine, Inc., et ah, appellee.
    Before ELLIS, CHIASSON knd PONDER, JJ.
   PONDER, Judge.

This is a suit for workmen’s compensation benefits. The trial court rendered judgment in favor of plaintiff for 20 weeks of compensation, subject to a credit of 13 weeks already paid. The court ordered defendants to pay for corrective surgery for the plaintiff, provided such surgery was performed within 90 days, and awarded six weeks additional compensation for recuperation from the operation. Plaintiff has appealed.

Essentially, plaintiff claims the trial court committed the following errors:

1. Failure to find total and permanent disability;

2. Ordering the plaintiff to submit to surgery within 90 days as a condition of defendants’ paying for the operation;

3. Finding that plaintiff had been paid 13 weeks of compensation benefits;

4. Failure to award plaintiff penalties and attorney’s fees.

We amend and affirm.

Plaintiff was employed by defendant as a welder and burner. While in the course and scope of his employment, plaintiff sustained a traumatic amputation of the distal phalanx of his left ring finger. He was operated on that day and was off from work for approximately a month. He went back to work with a protective guard on his finger.

Two months later, plaintiff had another operation on the finger. He was absent from work for another three weeks. In a letter to Aetna Insurance Company dated March 2, 1974, he indicated his finger was not then causing him any problems. He requested that he be sent all compensation benefits to which he was entitled including medical payments. He continued to perform the same tasks he had been performing before the accident, until he quit some six months later.

TOTAL AND PERMANENT DISABILITY

Plaintiff claims total and permanent disability under the Workmen’s Compensation Act, because he has to work with substantial pain.

A worker may be totally disabled under the Act if he suffers substantial pain in attempting to perform the tasks required in his work. Welch v. Clemons Brothers Lumber Company, Inc., 262 So.2d 79 (La. App. 1st Cir. 1972).

However, we agree with the trial court that the plaintiff has not proved by a preponderance of the evidence that he was working in substantial pain. He returned to work within a month after the accident, performing the same work he had done prior to the accident. A medical report by Dr. Carlton S. Faller, plaintiff’s treating physician, does indicate that the first surgery was not successful and a second operation was required. But the record is devoid of any substantial medical evidence that plaintiff was working with any significant pain after the accident.

After the operation of January 11, 1974, plaintiff was evidently feeling considerably better. His letter to Aetna on March 2 indicates that his finger was progressing satisfactorily. His work record, which was introduced into evidence, indicates that he was working many overtime hours. The trial court could reasonably conclude that plaintiff could not have achieved such a work record if the pain was as substantial as he claims.

Dr. I. I. Rosen, called by plaintiff to verify the claim of substantial pain, testified that the plaintiff did have severe pain which got progressively worse after the second operation.

Dr. Rosen’s testimony that he saw the plaintiff the day of the accident, and monthly thereafter for the following year, however, was contradicted by plaintiff who said that it was late 1974 or early 1975 before he ever saw Dr. Rosen. All the office cards for plaintiff’s visits to Dr. Ro-sen in 1973 and 1974 were lost. The court was not manifestly erroneous in failing to give credence to this testimony.

Neither is there sufficient credible lay testimony to require a finding of substantial pain. Mrs. Betty Cuccia, plaintiff’s wife, testified that her husband quit work because his hand was in pain; but she did not supply any details to corroborate this. Mr. Forrest Collette, a co-worker of plaintiffs at Kent Welding and Machine, testified he would not want to work with a man who did not have two good hands; but he said nothing to indicate that plaintiff was working in substantial pain. Mr. Wilson Cutrer, another one of plaintiff’s co-workers, testified that Cuccia would protest of pain at times when he hit the end of his finger. But his testimony as a whole does not support a finding of substantial pain.

Our courts have held that substantial pain sufficient to support a finding of total and permanent disability must be more than minor discomfort. Lavergne v. Southern Farm Bureau Casualty Insurance Co., 171 So.2d 751 (La.App. 3rd Cir. 1965). The record must clearly show that the plaintiff did in fact work in substantial pain. Tillman v. Hartford Accident & Indemnity Co., 314 So.2d 507 (La.App. 1st Cir. 1975), writ denied La., 320 So.2d 548. The trial court found that Mr. Cuccia had not carried his burden. We agree.

SUBMITTING TO SURGERY

Plaintiff claims that the trial court committed manifest error in ordering him to submit to corrective surgery on his finger within 90 days as a condition of defendants’ paying for the operation. Where the surgical procedure is relatively minor, the chances of success good and the risk to the patient minimal, the claimant is not reasonable in refusing the surgery. Thibodeaux v. Associated Distributing Company, Inc., 260 So.2d 46 (La.App. 3rd Cir. 1972), writ denied 262 La. 131, 262 So.2d 395.

Plaintiff claims that no firm offer of an operation was ever made by defendant. However, plaintiff has misinterpreted the court’s action. It has not ordered plaintiff to submit to an operation as a condition of receiving compensation for permanent disability. Instead it has ordered defendants to pay medical benefits and compensation payments for a recovery period of six weeks, if plaintiff chooses to have an operation performed within 90 days. While this procedure may be irregular, the burden imposed by the court is on the defendants, who have neither appealed nor answer the appeal. Under the judgment, plaintiff may elect not to have the operation performed; if he so elects the only benefits he foregoes is the medical expenses for the operation and benefits for six weeks of temporary disability for recuperation. Under the court’s reasoning he will not have been disabled and will not incur any medical expenses. We therefore find no merit in this argument.

AMOUNT OF COMPENSATION PAID

Plaintiff complains that the trial court erred in finding he had been paid 13 weeks of compensation. The record reflects that defendants mailed checks for 13 weeks of benefits, but the plaintiff only cashed the checks for three weeks. Plaintiff contends that since compensation for only three weeks was paid to him prior to filing suit, the judgment should be subject to a credit of three weeks and not 13 weeks.

The fact that these checks were not offered to Mr. Cuccia until after suit was filed has no effect on the credit defendant is to be allowed. Plaintiff has received no advantage from failing to cash these checks. Cheeks for thirteen weeks of benefits were sent to plaintiff, and the judgment will be subject to a credit of this amount.

PENALTIES AND ATTORNEY’S FEES

Plaintiff claims that he is entitled to penalties and attorney’s fees for defendants’ arbitrary refusal to pay benefits. LSA-R.S. 22:658 provides that an insurer (including Workmen’s Compensation Insurer) shall be subject to penalties of 12% for failure to pay any claim due within 60 days after satisfactory proof of loss. The statute also provides that the insured shall pay reasonable attorney’s fees for the prosecution of the suit.

Our examination of the record convinces us that Aetna Insurance Company was arbitrary and capricious in failing to pay four weeks compensation within 60 days of proof that this award was due. On March 2, 1974, the plaintiff wrote a letter to Aetna requesting that he be paid his benefits for the time he was off due to the second operation. Aetna immediately replied, asking him to have the doctors fill out medical report forms. Dr. Faller filled out a medical form, which showed surgery had been performed on January 11; he further stated that plaintiff was not able to return to work until February 2, 1974.

Although the record does not show when Aetna received Dr. Faller’s report, it was dated March 26. No compensation payments were made, excluding the initial three payments in 1973, until October of 1974. We believe the failure of Aetna to pay plaintiff until October the three weeks’ compensation due for recuperation from the second operation, plus benefits for the first week after the injury under LSA-R.S. 23:1224, was arbitrary and capricious. Aetna should have known by the first of April that plaintiff was due an extra four weeks worth of benefits. For failure to pay these benefits, they are therefore liable for 12% penalties.

Plaintiff is also entitled to reasonable attorney’s fees under the statute. We believe $600.00 is reasonable for the services rendered. See Landry v. State Farm Mutual Automobile Insurance Company, 298 So.2d 291 (La.App. 1st Cir. 1974), writ refused, La., 302 So.2d 25.

We further note that the trial court awarded plaintiff 20 weeks worth of benefits, apparently using the schedule for loss of an entire finger. Since the defendant has neither appealed nor answered the plaintiff’s appeal, we may not consider a reduction in benefits.

The judgment of the trial court is therefore amended to award plaintiff 12% penalties on $260.00 worth of benefits and $600.00 in attorney’s fees. In all other respects the judgment is affirmed. Defendants are cast with all costs.

AMENDED AND AFFIRMED.

      . LSA-R.S. 23:1224. Payments not recoverable for the first week; exceptions
      “No compensation shall be paid for the first week after the injury is received; provided, that in cases where disability from injury continues for six weeks or longer after date of the accident, compensation for the first week shall be paid after the first six weeks have elapsed.”


source: Caselaw Access Project

author: PONDER, Judge.

license: Public Domain

text:
    Robert J. BLOUIN v. Bonnie Ann Allison BLOUIN.
    No. 11163.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearing Denied March 21, 1977.
    Writ Refused May 26, 1977.
    James A. Wood, Baton Rouge, for plaintiff and defendant in reconvention, Robert J. Blouin, appellant.
    Robert W. Smith, Baton Rouge, for defendant and plaintiff in reconvention, Bonnie Ann Allison Blouin, appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This appeal is from a judgment of the Family Court for the Parish of East Baton Rouge granting a divorce, child support and permanent alimony. This court, ex proprio motu, noted an apparent defect in that the appeal bond was not timely filed, and issued a show cause order.

The only question is whether an appeal bond on an appeal from a divorce judgment also awarding alimony and child support must be furnished within thirty days.

The chronology of events is that a judgment was signed on July 15, 1976. No motion for a new trial was made. An order of appeal was signed on August 18, 1976, but the appeal bond was not executed until September 20, 1976.

. We believe this appeal must be dismissed.

LSA-C.C.P. Articles 3942 and 3943 read as follows:

Art. 3942. Appeal from judgment granting or refusing annulment, separation, or divorce
“An appeal from a judgment granting or refusing an annulment of marriage, a separation from bed and board, or a divorce can be taken only within thirty days from the applicable date provided in Article 2087(l)-(3).
“Such an appeal shall suspend the execution of the judgment in so far as the judgment relates to the annulment, separation, or divorce.”
Art. 3943. Appeal from judgment awarding custody or alimony
“An appeal from a judgment awarding custody of a person or alimony can be taken only within the delay provided in Article 3942. Such an appeal shall not suspend the execution of the judgment in so far as the judgment relates to custody or alimony.”

Plaintiff contends that LSA-C.C.P. Article 2087 allows security to be furnished on all devolutive appeals within 90 days. However, the article begins “Except as otherwise provided in this Article or by other law, . . .” Article 3943 is an exception to Article 2087, and security must be furnished within thirty days. See Bowden v. Bowden, 203 So.2d 879 (1st Cir. 1967); Vignes v. Vignes, 236 So.2d 582 (1st Cir. 1970), writ denied 256 La. 865, 239 So.2d 362; Kinnaird v. Kinnaird, 260 So.2d 802 (2nd Cir. 1972) writ denied 261 La. 1065, 262 So.2d 44.

This court is- without jurisdiction. See LSA-C.C.P. Article 2088. The appeal is therefore dismissed at appellant’s cost.

APPEAL DISMISSED.

      . Art. 2087. Delay for taking devolutive appeal
      “Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, within ninety days of:
      (1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;

        (2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
      (3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.
      When a devolutive appeal has been taken timely, an appellee who seeks to have the judgment appealed from modified, revised or reversed as to any other appellee, may take a devolutive appeal therefrom, and furnish the security therefor, within the delays allowed in the first Paragraph of this Article, or within ten days of the granting of the first devolu-tive appeal in the case, whichever is later.”


author: ELLIS, Judge. PONDER, Judge, LOTTINGER, Judge,

text:
    In re Investigation of Possible Violation of the Civil Service Law and Rules by Officials and/or Employees of the DIVISION OF ADMINISTRATION.
    No. 11059.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearing Denied March 21, 1977.
    Phil E. Miley, Baton Rouge, for Division of Administration.
    R. Gray Sexton, Baton Rouge, for appel-lee.
    Before ELLIS, LOTTINGER, CHIAS-SON, EDWARDS and PONDER, JJ.
   ELLIS, Judge.

On September 11, 1975, the State Civil Service Commission adopted the following resolution:

“WHEREAS The Commission is in receipt of the Director’s report of certain activities transpiring at the Division of Administration and the ‘Department of Contractual Review’ which report in-eludes a review by the Personnel Management Division of the Department of Civil Service of the payroll records of the Division of Administration and the ‘Department of Contractual Review’ for the period ending February 23, 1975; and whereas the report indicates additionally that the Division of Administration presently has on its payroll a number of employees whose appointments have not been approved by the Director and who otherwise may be illegally employed in violation of pertinent Civil Service Rules and provisions of the Civil Service Article; and whereas the report also indicates a section of the Division of Administration, known as the ‘Department of Contractual Review’, has engaged employees whose appointments have not been approved by the Director and who otherwise may be illegally employed in violation of the Civil Service Rules and provisions of the Civil Service Article.
“NOW THEREFORE BE IT RESOLVED that an investigation by public hearing be held pursuant to the authority of Section 10(B) of Article X of the Louisiana Constitution to inquire into and determine whether or not the Division of Administration and the ‘Department of Contractual Review’ presently have in their employ individuals whose appointments have not been approved by the Director as required by Rules of the Commission or who otherwise are illegally engaged in violation of the Civil Service Article and Rules of the Commission.
“IT IS FURTHER RESOLVED that the Director set a date, time and place for the hearing and to present testimony and evidence pertinent to said investigation.”

Pursuant thereto, notice of a public hearing for the purpose of conducting the investigation, to be held on October 8, 1975, was sent to 23 unclassified employees of the Division of Administration, including Charles E. Roemer, II, its Commissioner.

The Division of Administration filed a motion for summary disposition of the investigation, alleging a lack of authority on the part of the Commission to investigate a Department; and a lack of jurisdiction over the Division of Administration, because it is part of the Office of the Governor.

Evidentiary hearings were held by the Commission on October 8, 1975, January 6, 1976, and February 11, 1976. On July 8, 1976, the Commission rendered its opinion, in which it found the Division of Administration to be subject to the Civil Service Law, and directing it to take action to bring into the classified service all of its employees except its appointed head, and those occupying the two unclassified positions permitted by the Civil Service Law. From that opinion the Division of Administration has appealed.

The sole issue for our determination is whether or not the Division of Administration is part of the “Office of the Governor” within the meaning of Article 10, § 2, of the Constitution of 1974, which provides, in part, as follows:

“(A) Classified Service. The state and city civil service is divided into the unclassified and the classified service. Persons not included in the unclassified service are in the classified service.
“(B) Unclassified Service. The unclassified service shall include the following officers and employees in the state and city civil service:
. “(10) employees, deputies, and officers of the legislature and of the offices of the governor, lieutenant governor, attorney general, each mayor and city attorney, of police juries, school boards, assessors, and of all offices provided for in Article V of this constitution except the offices of clerk of the municipal and traffic courts in New Orleans.”

The Commission determined that the phrase “Office of the Governor” included only the immediate staff of the governor, and not the entire Division of Administration. It based its finding on the case of State ex rel Murtagh v. Dept. of City Civil Service, 215 La. 1007, 42 So.2d 65 (1949), and on the fact that, since the inception of the present Civil Service System, the employees of the Division of Administration have been part of the classified service, with the exceptions permitted by the law.

The Murtagh case dealt with an employee of the Permit Division of the City of New Orleans, who was discharged without cause. At that time, the City Civil Service Law provided that the unclassified service included “Officers, Secretaries and employees of the offices of the Mayor and City Attorney . . . ”. The power to issue permits was vested in the Mayor, who had the authority to designate “such inspectors, clerks, and other assistants as may be necessary for the proper conduct of the Permit Division.”

Murtagh appealed his discharge, claiming to be a member of the classified service. The Mayor claimed that the Permit Division was part of his office and that Murtagh was therefore an unclassified employee. In finding that the Permit Division was not part of the Office of the Mayor, the court quoted with approval the following language from Friedman v. Finegan, 268 N.Y. 93, 196 N.E. 755 (1935):

“These exemptions which may be made by the Legislature or by the Civil Service Commission appointed under its authority must have relation to the duties of the office and not simply to the title which is used. In other words, there must be a reasonable exercise of the power given under the Constitution. With liberality in application, it must be that competitive examinations are not practicable for the position or office. There must be something * * * in the nature of the duties which makes the service either one of confidence or else of such importance that personal selection instead of competitive examination is for the best interests of the public and the fulfillment of the particular duties. In other words, the Legislature cannot act arbitrarily and exempt places from competitive examination at will. The duties must have some relationship to the exemption and the classification must be reasonable.”

At that time, the Constitutional authority for the Civil Service System was Article XIV, § 15 of the Constitution of 1921, which provided:

“The Legislature shall provide for civil service in municipalities having a population of one hundred thousand (100,000) or more, and for the recognition and adoption of the merit system in the employment or appointment of all applicants; and shall provide against the discharge of employees or appointees without good and sufficient cause.”

There was, therefore, a substantial question as to whether any employee could be placed in the unclassified service.

The Division of Administration was created by Act 133 of 1948. Section 1 of Title I thereof read as follows:

“Division of Administration: Be it enacted by the Legislature of Louisiana, that a Division of Administration whose employees shall be employees of the Office of the Governor is hereby constituted and created as a Division of the Office of the Governor, and shall hereafter exercise those powers and functions as hereinafter set forth and as may be further provided by law.”

The foregoing provision became R.S. 39:1, and, in 1952, was amended to add a budget office. The relevant wording as to employee status was not changed.

' Act 42 of 1956 once again amended the above section to read:

“A. A Division of Administration is hereby created as a division of the Office of the Governor, and shall exercise those powers and functions as hereinafter set forth and as may be further provided by law.”

The functions of the Division of Administration are given as follows in R.S. 39:4:

“A. The functions of the division of administration shall comprise all administrative functions of the state, except as otherwise expressly provided by this Chapter, in relation to:
“(1) General management and supervision of the finances and financial operations and affairs of the state and all state agencies including allotment of expenditures based on work program and preparation of the executive budget of the state.
“(2) Coordination of all the procedures for financial administration and financial supervision so as to integrate them into an adequate and unified system, including the devising, prescribing and installing of accounting procedures for all state agencies.
“(3) Formulation of financial plans and programs for approval and adoption by the governor and the legislature and exercising such supervision as is necessary to provide for carrying out such financial plans and programs as are adopted by the legislature.
“(4) Accounting supervision and fiscal reporting for all state agencies and the state as a whole.
“(5) Investigating the financial affairs and operations of the state and its agencies, as hereinabove defined.
“(6) Purchasing for state agencies when directed by executive order by the governor.
“(7) Controlling surplus property and assigning such property for use as required and prescribing and enforcing regulations governing the condemnation and disposition of movable properties of no further use to the state or its agencies.
“(8) The rental, purchase, erection or construction of any building, structure, or space to be used by state administrative agency for housing its personnel or facilities or carrying on its business. The commissioner, however, shall at all times utilize property owned by the state to house state agencies insofar as this is practicable and shall, to the best of his ability and consistent with their functions, house all state departments in a single building.
“B. The provisions of this Chapter shall not apply to the judiciary of the state, except the office of the Attorney General to which they shall apply, nor to the Legislature.
“C. The division of administration shall exercise such other duties and functions germane to its primary functions as may be prescribed by law or as directed by the governor by executive order.”

}Ne note that most of the foregoing functions are duties which have been conferred on the Governor, either by the Constitution or by Legislative Act. Article 4, §§ 1 and 5, Constitution of 1974; R.S. 39:7, 8, 9, 41, 61, 91. The Division of Administration also has duties relative to purchasing, accounting and data processing, travel regulations and property control which have been bestowed on it by the Legislature, but which are not specifically within the duties of the Governor. R.S. 39:100 et seq.; R.S. 39:171 et seq.; R.S. 39:231 et seq.; R.S. 39:321 et seq.

The Division contends that the legislature had intended for it to be part of the Office of the Governor, and its employees to be in the unclassified service. House Concurrent Resolution 264, adopted at the 1976 regular session, states that:

“WHEREAS, it is recognized that a ruling of the State Civil Service Commission did not recognize that the division is an integral part of the office of the Governor, that the division is entirely under the supervision, control, and direction of the Governor, that the division performs essential governmental duties imposed directly upon the governor and delegated by him to the division, and that the ruling by the State Civil Service Commission placing the employees of the division in the classified service has incorrectly interpreted the intent of the legislature evidenced by the wording of the statutes and the constitutional provisions from the time the division was created up to the present.
“THEREFORE, BE IT RESOLVED by the House of Representatives of the Legislature of Louisiana, the Senate thereof concurring, that the Legislature hereby goes on record that the intent and purpose of the Legislature is and always has been that the Division of Administration is a division of the office of the Governor, and as such is an integral part of his staff, performing essential constitutional and statutory functions for the Governor as the chief executive officer of the state, under his control, and that officers and employees of the Division of Administration are officers and employees of the office of the Governor.”

As further evidence of legislative intent, the Division cites the Executive Reorganization Act, Act 513 of 1976, R.S. 36:1 et seq. Pursuant to Article 4, § 1 and Article 14, § 6 of the Constitution of 1974, the act forms the Executive branch of the State Government, exclusive of the offices of the Governor and Lieutenant Governor, into 20 departments. It transfers functions of various boards, departments and divisions into the newly created departments. The Division of Administration is nowhere mentioned in the act, and it is argued that the only slot into which it can be placed is the Office of the Governor.

It is argued that, in this day of expanded governmental functions and increased executive authority, it is unrealistic to restrict the “Office of the Governor” to the personnel who form his immediate retinue, and that the departments which assist in carrying out the constitutional and statutory duties of the Governor should be included therein.

The Commission argues that the issue has been settled by the Murtagh case, supra, and by the doctrine of contemporaneous construction, pointing out that, for over 20 years, the employees of the Division of Administration have been in the classified service. It is also argued that if we hold the Division is part of the unclassified service because it is part of the Office of the Governor, then any department of State government could be transferred to the Office of the Governor by the Legislature, and its employees would fall into unclassified service. The Commission alleges that this could destroy the Civil Service System and bring back the spoils system to State government.

Various provisions of the law creating the Division of Administration seem to make it unique among the departments of government in Louisiana. R.S. 39:3, for instance, provides:

“The division of administration shall consist of the position of commissioner of administration, and such other subdivisions or sections as are deemed necessary, in the opinion of the governor, to carry out budgeting, accounting controls, central purchasing, and purchasing supervision as provided for in this Chapter. These subdivisions and sections shall be established by executive order of the governor.”

R.S. 39:5 assigns to the Governor the responsibility of creating whatever positions he deems necessary to carry out the functions of the Division. This provision is in direct conflict with the Civil Service Law relative to the classified service, in which positions can be created only under a classification plan made by the Commission.

After weighing the various factors involved, we have concluded that the Legislature intended that the Division be part of the Office of the Governor within the meaning of Article 10, § 2(B)(10), and that its employees fall into the unclassified service. In so deciding, we found the following considerations to be decisive: the classification of the Division as part of the Office of the Governor; the fact that the principal duties of the Division lie in areas which are the personal responsibility of the Governor under the Constitution; the discretionary authority of the Governor to create positions therein, and to form subdivisions and sections; the intention of the Legislature, as expressed in its concurrent resolution; and the desirability of the chief executive of the State having his fiscal recommendations formulated by those in whom he can repose trust and confidence.

The testimony of W. W. McDougall, the first Director of Personnel of the Department of Civil Service, makes it clear that no particular point was raised relative to the original inclusion of the Division in the classified service. We also note that the Attorney General’s office has no classified employees whatsoever, that it has the same Constitutional exemption as the Office of the governor, and no question has been raised as to that office by the Commission, although there were 180 employees in that office in fiscal 1975.

We recognize the compelling nature of the arguments advanced by the Commission, and the historical validity of its fears of a return to the spoils system. However, we do not believe that the restrictions placed on the Legislature by the Murtagh case are in any way diminished by our opinion herein. In this case, the Division of Administration was created as part of the Office of the Governor to assist him in carrying out his personal duties and never should have formed part of the classified service. We believe that the transfer of other departments of government to the Office of the Governor would not result in its employees being transferred to the unclassified service, for the reasons expressed in the Murtagh case, supra.

For the foregoing reasons, we are of the opinion that the Civil Service Commission is without jurisdiction to review the employment practices of the Division of Administration, and its order of July 8, 1976, is therefore reversed and set aside. The Commission shall bear whatever costs it may be liable for under the law.

REVERSED.

PONDER, Judge,

dissenting.

I would affirm the decision of the Civil Service Commission.

The case of State ex rel Murtagh v. Department of City Civil Service, 215 La. 1007, 42 So.2d 65 (1949), held that the words “officers, secretaries and employees of the Mayor’s office,” exempted from the civil service laws applying to New Orleans only those employees “generally accepted as the office force of a Mayor and not employees of other departments placed under his supervision.”

The Civil Service Amendment, adopted in 1952, listed among others, the following as part of the unclassified service: “officers and employees of the Legislature and of the offices of the Governor, Lieutenant Governor, Attorney General_” The present Constitution lists in the unclassified service “employees, deputies and officers of the Legislature and of the offices of the governor, lieutenant governor, attorney general

On May 11, 1953, the State Civil Service Commission ruled that the employees of the Division of Administration, the Budget Office and the Division of State Buildings were not in the office of the Governor within the meaning of the Constitutional Amendment and therefore were governed by the Civil Service Amendment. This ruling, unchanged and unappealed, has been acquiesced in by every Commissioner of Administration until the current one.

Even the present Commissioner secured the approval of the Civil Service Commission to hire some high and low echelon employees outside the Civil Service lists.

The legislative intent to abide by the Murtagh decision seems clear to me, at least until 1976. The statute adopted in 1948 originally read:

“A division of Administration whose employees shall be employees of the office of the governor is hereby created as a division of the office of the governor, and shall exercise those powers and functions as hereinafter set forth and as may be further provided by law.” (Emphasis mine)

The Commission’s decision that the Division of Administration, though administratively a part of the Governor’s office, was not in the office of the governor within the meaning of the Civil Service Amendment was adopted in 1953, in the face of the above wording. The amendment to the statute in 1956 deleted the words underlined above and thereby removed the possible conflict between the statute and the Commission’s ruling. The legislature’s inaction on this point thereafter until 1976, speaks much louder to me than does House Concurrent Resolution 264, cited in the majority opinion. The impropriety of relying on such a Johnny-come-lately expression has been most forcefully expressed by the Supreme Court in State Licensing Board for Contractors v. State Civil Service Commission, 240 La. 331, 123 So.2d 76 (1960).

I cannot find any clear expression of legislative intent in the Executive Reorganization Act. Such an intent, to my mind, would be violative of the Constitution and so invalid.

Perhaps, the basic difference between the majority and me lies in the fact that I do not find any legal impediment to the Division of Administration being in the “Office of the Governor” administratively and its employees not being “employees, deputies, and officers ... of the office(s) of the governor” so far as the State Civil Service is concerned.

The argument made by the Division that it should be exempt from the Constitutional requirement so as to afford incoming governors with philosophically compatible support has two difficulties: First, logically extended, the argument is against the Merit or Civil Service system at all. Each incoming elected official can make the same plea that he needs the assistance so as to carry out the mandate given. Second, it is based upon the false premise that employees in the classified service are deficient in ability, loyalty or some other desirable trait. The contrary was proved by witnesses questioned at the hearing. The requirements of the governor have been met admirably by employees of the Division of Administration who thus far have been classified.

I am unimpressed, too, by the argument that there are other departments who have all their employees in the unclassified service. The question before the Commission and before us is that of the Division of Administration. At the worst, two wrongs do not make a right.

The majority opinion seems to limit the Murtagh decision to the situation of the legislature transferring an existing state agency to the “office of the governor” after Civil Service has become law. While there is some language in the case that can be interpreted so as to lead to that conclusion, I believe that was a result of the facts of the case being adjudicated. The rationale and the protective effect of the Murtagh case and this interpretation of the constitutional provision should apply equally, I eon-ttend, to the situations of the transfers even before the effective date of the Civil Service law and the assignment to the governor’s office simultaneously with its creation. It is a matter of constitutional limitation, not just a 1949 case, that we are interpreting.

The majority opinion has made much of the long list of duties given to the Division and the close association with the governor required by the execution of some, not all, of those duties. Neither logic nor law inevitably requires, I believe, that all the employees of the Division of Administration be therefore unclassified as “employees of the governor.” And that is the result of this opinion: all employees of the Division of Administration, inclusive of the telephone operators, the building guards and other similar workers are without civil service protection, except by the license and permission of the Commissioner. It is good to say that no such wholesale change is contemplated. I hope so. At the best, however, there' is a world of difference between such protection being a matter of right rather than a matter of grace.

I agree with the majority that there are conflicts between the provisions of some of the statutory provisions in regard to the Division of Administration and the Civil Service Law. I resolve that conflict in favor of the Constitutional provisions.

The holding that the Civil Service Commission was without jurisdiction to review the employment practices of the Division leaves the Commission in the unenviable position of its jurisdiction over matters of classified versus unclassified service being unsettled until the courts have decided whether its allocation of an employee to classified or unclassified service is correct or not.

The power of the Executive Department or of the Legislature to declare employees of a state agency as unclassified by placing the agency in the “office of the governor,” should be very carefully and reluctantly granted, in view of the purpose of the Civil Service provisions. Otherwise, the means of defeating the entire desired effect of Civil Service are too readily available.

The Division makes some persuasive arguments that it should be allowed more unclassified employees. It is not my purpose or prerogative to quarrel with that position. Instead, I quarrel with the method employed, one proceeding in a manner contrary to the practices for the last 25 years, including the first part of the present administration, and one I believe to be contrary to the constitutional provisions.

I dissent.

LOTTINGER, Judge,

dissenting.

I respectfully dissent.

If called upon for a decision when the Division of Administration was originally created to determine whether it was within the office of the governor so as to designate all of its employees as unclassified vis-a-vis classified service, I would have been inclined to vote with the majority.

However, I am convinced that since employees of the Division of Administration have been considered as classified employees in civil service by the Civil Service Commission, the Department of Civil Service, and particularly the past and present Commissioners of Administration and the past and present Governors, for more than 20 years, that the doctrine of contemporaneous construction very persuasively mandates that this Court continue that classification. The majority opinion fails to dispute the argument of contemporaneous construction advanced by the Civil Service Commission.

I do not agree with the argument presented by the Division of Administration that an executive or administrative officer can change his interpretation of a statute after many years, and thus have a longstanding interpretation changed.

It is certainly correct that courts are not bound by interpretations placed on statutes by non-judicial branch officials and employees, and that these interpretations are only one of many factors used by courts in attempting to gather the true intent of legislation. However, an interpretation placed on the terminology “office of the governor” by the past and present Commissioners of Administration and Governors is very persuasive in concluding that the Division of Administration was not intended to be included within that term as it relates to classified vis-a-vis unclassified employees.

Therefore, I must respectfully dissent from the majority opinion.


author: LANDRY, Judge.

text:
    CAPITAL BANK & TRUST COMPANY v. G. Emitte CORE et al.
    No. 11093.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearing Denied March 21, 1977.
    Writ Refused May 11, 1977.

      Michael A. Patterson, Baton Rouge, of counsel for plaintiff-appellant, Capital Bank and Trust Co.
    Donald S. Zuber, Baton Rouge, of counsel for defendant-appellant, St. Paul Fire and Marine Insurance Co.
    Anthony J. Clesi, Jr., Baton Rouge, of counsel for defendant-appellee, G. Emitte Core, Donald Mills and Jack Roberts, Jr.
    George Clauer, III, Baton Rouge, of counsel for defendant-appellee, Big River Equipment Co., Inc. and Howard Carber.
    Lawrence R. Anderson, Jr., Baton Rouge, of counsel for defendant-appellee, Donald J. Mills and Jack Roberts, Jr.
    Before LANDRY, COLE and CLAIBORNE, JJ.
   LANDRY, Judge.

Capital Bank & Trust Company (Capital), appeals from judgment dismissing its legal malpractice claims against G. Emitte Core, Donald J. Mills and Jack Roberts, Jr., Attorneys-at-Law, individually; the partnership of Core, Mills and Roberts, Attorneys-at-Law, and St. Paul Fire & Marine Insurance Company (St. Paul), malpractice insurers of said attorneys, on exceptions of prematurity. St. Paul has also appealed requesting that this court pass upon its plea of exclusion of coverage based on alleged fraud, which issue was not determined by the trial court. We amend the judgment to decree St. Paul’s lack of coverage.

For a cause of action Capital alleges it is holder of a collateral mortgage note given by Big River Equipment Company, Inc. (Big River), executed by said corporation’s President, Harold Carber, to secure a $6,000 loan from Capital to Big River. Big River also executed a hand note, endorsed by Car-ber, which instrument is also held by Capital. Core is the Notary Public before whom the collateral note and mortgage were executed. Core also issued Capital a title opinion covering the property described in the collateral mortgage, knowing that Capital would rely thereon in making the loan to Big River and also knowing the loan would not be made unless Big River owned the mortgaged property in full ownership and free of all encumbrances except the collateral mortgage to Capital. After granting several extensions on the hand note, Capital attempted to foreclose its collateral mortgage by executory process. The foreclosure proceeding was dismissed when Capital was unable to produce a resolution authorizing Carber to execute the collateral mortgage and note, notwithstanding Core’s title opinion reciting that such a resolution was a matter of public record. Core’s title opinion certified his examination of title to a stated date and hour, as of which time Core found the mortgaged property was owned by Big River free of all encumbrances save the collateral mortgage to Capital. Notwithstanding Core’s title opinion, the mortgaged property was burdened with the following defects and encumbrances; (1) Big River’s corporate existence was not a matter of public record; (2) Big River owned only a one-half interest in the property; (3) a previously recorded and uncancelled future holders’ mortgage in the sum of $10,-000; (4) a previously recorded and uncan-celled future holders’ mortgage in the sum of $16,000; and, (5) there was no recorded resolution authorizing Carber to execute the mortgage and note on behalf of Big River.

Capital’s petition prays for judgment decreeing: (1) that defendants make valid and merchantable the title to the mortgaged property so that Capital be placed in the position of first mortgage holder, and as such, entitled to enforcement of its mortgage by executory process; and (2) alternatively, that capital have judgment against defendants in the sum of $6,000 plus 10% as attorney’s fees as provided for in the collateral mortgage and note.

All defendants filed exceptions of no right and no cause of action which are, in reality, exceptions of prematurity. All said exceptions are based on Capital’s failure to allege that an action has been brought against Big River, or Carber as endorser of the note, to collect the debt; or that Carber has refused to pay; or that the note is uncollectible from Big River. St. Paul asserted a policy exclusion which eliminates coverage for any dishonest, fraudulent, criminal or malicious act of its insured. Defendants also filed exceptions of lack of joinder of indispensable parties based on Capital’s failure to join Big River and Car-ber. An amended petition by Capital joined both Carber and Big River herein.

The trial court considered the exceptions of no cause of actions as exceptions of prematurity and received evidence concerning this issue, as well as St. Paul’s coverage question and the liability of Big River and Carber on the note. Judgment was rendered below in favor of Capital against Big River and Carber in the sum of $6,000 with interest and attorney’s fees as provided in the note. Judgment was also rendered sustaining the exceptions of prematurity and dismissing Capital’s action against defendant attorneys and St. Paul. The judgment was silent as to St. Paul’s coverage issue. Capital’s appeal reurges the same demands rejected by the trial court. St. Paul’s appeal requests that we pass upon its coverage question and find a lack of coverage herein because of fraud. Defendant attorneys contend on appeal that no fraud has been shown herein, consequently there should be judgment on appeal, decreeing that St. Paul’s policy covers the incident in question.

A full hearing was held below on the issue of prematurity and alleged fraud. The facts are undisputed, only the legal conclusions to be drawn therefrom are in contention.

Core was a member of defendant law partnership. Carber is Core’s uncle-in-law, being married to Core’s maternal aunt. Carber, whose relationship to Capital is not entirely clear, desired a loan of $6,000 for Big River, which corporation Carber controlled. Core, who had done considerable business with Capital, introduced Carber to Capital’s management and assisted Carber in arranging the desired loan. As a favor to Carber, Core offered to prepare, without charge, the collateral mortgage and note required by Capital as security for the proposed loan. Core was fully aware that Capital insisted upon a first mortgage on the property offered by Carber as security, and that said collateral mortgage constitute the only encumbrance against the property involved.

Core readily admitted his awareness of Capital’s requirements and his knowledge of the existence of the above enumerated encumbrances against the property, except that he did not know Big River owned only a half interest in the property, and neither did he know there was no recorded resolution authorizing Carber to execute the mortgage and note on behalf of Big River. His explanation: the uncancelled $10,000 mortgage was either paid in full or reduced to $3,000; the uncancelled $16,000 mortgage was a sham to shield the property from the claims of Carber’s creditors; the judgment against Carber had been paid in full but not cancelled; and, he believed a resolution had been recorded authorizing Carber to act on behalf of Big River in signing the collateral mortgage. Core conceded he did not examine the title to the property as certified in his title opinion. In essence Core testified he issued the title certificate, believing the property was owned by Big River and valued at approximately $40,000. He also believed Big River’s equity in the property was more than sufficient security for the loan to be advanced by Capital. Core concedes his negligence, but denies any attempt or design to defraud or derive any personal benefit from his action.

Willie Annison, a Capital vice president, made the loan in question. He testified he made it clear to Core and Carber that the bank required a first mortgage as collateral, and that the property pledged be free of all other encumbrances. He also required that Core furnish a title certificate attesting the good and merchantable title to the property offered as security. Annison stated that Capital’s suit to foreclose by execu-tory process had been dismissed because there was no recorded resolution authorizing Carber to execute the note and mortgage on behalf of Big River, contrary to Core’s certification in the title opinion. An-nison conceded that no further effort was made to collect from Carber individually, as endorser, or to proceed against Big River by ordinary process.

We first consider whether Capital has the right to a direct action against Core and St. Paul. Capital concedes it did not directly engage Core as its attorney in this instance, and that it did not pay Core any remuneration for the title opinion. Capital also concedes there is no case in point in our own jurisprudence. In support of its position, Capital cites the following authorities from other jurisdictions which have held that a lender, who advances funds on the strength of a title opinion rendered to it by an attorney whom the lender did not directly retain, has the right to a direct action against the attorney, either in contract or as third party beneficiary: Brown v. Sims, 22 Ind.App. 317, 53 N.E. 779 (1899); Economy Building & Loan Assoc, v. West Jersey Title & Guarantee Co., 64 N.J.L. 27, 44 A. 854 (1899); Western Loan & Savings Co. v. Silber Bow Abstract Co., 31 Mont. 448, 78 P. 774 (1904); Anderson v. Spriestersbach, 69 Wash. 393, 125 P. 166 (1912); Scott v. Jordan, 55 Okl. 708, 155 P. 498 (1916); Shine v. Nash Abstract & Investment Co., 217 Ala. 498, 117 So. 47 (1928); Lawyers Title Insurance Corp. v. Pitre, 245 F.2d 334 (5th Cir. 1957); Slate v. Boone County Abstract Co., 432 S.W.2d 305 (Mo.1968); Williams v. Polgar, 391 Mich. 6, 215 N.W.2d 149 (1974).

The cited authorities deal with the liability of an abstractor to a third party who relies upon an abstract of title, not to a third party relying upon an attorney’s title opinion. We believe, however, the rationale of these cases is applicable in the instant case. In Williams v. Polgar, above, the Supreme Court of Michigan held that privity of contract was no longer required in Michigan for a third party to recover, from an abstractor, damages sustained because of a 'faulty abstract furnished with knowledge that the third party would rely thereon. In a most scholarly opinion, the Michigan court reviewed all authorities dealing with the question, and found the trend of the decisions is to extend liability in such instances. The court noted that various jurisdictions have extended the abstractor’s liability in such cases based on various theories including, among others, the third party beneficiary concept, the foreseeability of use rule, and cases involving fraud or collusion. In effect, the authorities tend to hold, on one concept or another, that an actual contract exists or at least there is privity of contract in these instances. See Western Loan & Savings, above. We find the reasoning of these authorities to be sound. We also find the principles involved bring about just results, and we endorse them as our own. Additionally, we equate a situation of this nature to our own codal provision which establishes liability for a stipulation pour autrui pursuant to which one may bind himself for the benefit of a third party. In such cases, privity of contract results and the agreement becomes binding and effective in favor of the third party upon his acceptance. LSA-C.C. Article 1890; People’s Bank of Mobile, Ala. v. Shreveport Ice & Brewing Co., 142 La. 802, 77 So. 636. In this instance, Capital accepted the benefit when it made the loan in reliance upon Core’s title opinion.

We reject, however, Capital’s claim for specific performance by Core in the form of either making good the title warranted or paying the borrower’s debt. Core’s opinion does not purport to personally guarantee payment of the loan. Core merely warranted good and merchantable title to the mortgaged property, and also warranted Capital’s position as first mortgagee of otherwise encumbered collateral. Specific performance in the form of Core furnishing good and merchantable title is impossible, because Core is not in position to demand the right to acquire the outstanding half interest in the mortgaged property.

In a malpractice action against an attorney, the client is entitled to such damages as result from the error, negligence, or dereliction involved. Marchand v. Miazza, La.App., 151 So.2d 372; Watkins v. Sheppard, La.App., 278 So.2d 890; Perkins v. Brown, La.App., 236 So.2d 579. In this instance, Capital has alleged and proven legal malpractice, but has not shown any monetary loss or other damages measurable in monetary terms. Until such damages are ascertainable, its action is premature.

Considering the procedural posture of this case, we are inclined to examine St. Paul’s claimed exclusion of coverage. This issue was fully tried below and, if determined in St. Paul’s favor, would remove said defendant from involvement in any future litigation which may result from this incident. We therefore consider this issue in the interest of justice and the speedy determination of legal proceedings.

St. Paul’s policy pertinently provides: “COVERAGE A (PROFESSIONAL LIABILITY COVERAGE) DOES NOT APPLY: (1) to any dishonest, fraudulent, criminal or malicious act or omission of the insured, any partner or employee;

Defendant attorneys contend no fraud was committed in this instance. They concede Core’s negligence, but argue his absence of intent to cause harm, injury or loss, or to gain any advantage to himself, cleanses his action of the stigma of fraud. In support of this position they cite and rely upon LSA-C.C. Article 1847; Strauss v. Insurance Company of North America, 157 La. 661, 102 So. 861 (1925); Buxton v. McKendrick, 223 La. 62, 64 So.2d 844 (1953); and other authorities.

Fraud, in contractual matters, is defined by LSA-C.C. Article 1847, as follows:

“Fraud, as applied to contracts, is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantages to the one party, or to cause an inconvenience or loss to the other.” (Emphasis supplied by the court.)

In Webster’s Third New International Dictionary, Unabridged, 1963 Edition, “Fraud” is defined as follows:

“2. Characterized by lack of truth, honesty, probity, or untrustworthiness or by an inclination to mislead, lie, cheat or defraud.”

Under our own definition of fraud as set forth in Article 1847, above, specific intent to harm or cause loss is not an indispensable element. LSA-C.C. Article 1847, above is couched in the disjunctive. Fraud may result from the intent to cause harm or loss or to cause an inconvenience to another.

Fraud is never presumed but must be established by clear and convincing evidence. Buxton v. McKendrick, above.

We find all the essential elements of fraud present in this instance. It is clear from the record that Core knew the salient representations concerning marketability of Big River’s title were false and untrue. Yet, with full knowledge of such falsity, he consciously and deliberately certified the truth and accuracy of his opinion. He also intentionally misrepresented the crucial statement that he had personally examined the records, and that his opinion was based on such examination. It is conceded that Core knew Capital would rely upon his opinion and advance a considerable sum of money on the strength of its accuracy, as security for which Capital expected to receive a first mortgage, capable of execution by executory process, on property otherwise unencumbered. The record also shows that Capital has sustained a gross inconvenience, namely, inability to foreclose its mortgage by executory process.

It is ordered, adjudged and decreed that the judgment of the trial court be amended, in that judgment is rendered herein in favor of St. Paul, and against Capital, Emitte Core, Donald J. Mills and Jack Roberts, Jr., individually, and the partnership of Core, Mills and Roberts, Attorneys-at-Law, declaring that St. Paul’s coverage of said attorneys and legal partnership involved herein, does not apply with respect to any further action Capital may institute against said attorneys and legal partnership predicated on the incident involved in this litigation.

In all other respects the judgment of the trial court is affirmed, all costs of these proceedings to be paid by defendants Big River, Harold Carber, Emitte Core, Donald J. Mills, Jack Roberts, Jr., and the partnership of Core, Mills and Roberts, Attorneys-at-Law, in solido.

Amended and affirmed.


text:
    Norman DEUMITE v. WEST BANK CONTRACTORS et al.
    No. 11104.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearing Denied March 21, 1977.

      William H. Cooper, Jr., of McKernan, Beychok, Cooper, Screen & Pierson, Baton Route, for plaintiff.
    Gerald L. Walter, Jr., of Kantrow, Spaht, Weaver & Walter, Baton Rouge, for defendants.
    Before LANDRY, COLE and CLAIBORNE, JJ.
   LANDRY, Judge.

Plaintiff (Appellant), appeals from judgment rejecting his demands for damages for personal injuries and property losses sustained in an automobile accident. The mishap occurred when Appellant drove his vehicle into the rear of a pick up truck belonging to defendant West Bank Contractors (Contractor), which vehicle was being operated by Contractor’s employee, Ann M. Guillory, within the scope of her employment. At the time of the accident, Contractor’s truck was parked in the outside lane (on the West Baton Rouge Parish side) of the three eastbound lanes of the 1-10 Mississippi River Bridge located at Baton Rouge. The trial court rejected Appellant’s claims upon finding Appellant contributorily negligent. We affirm.

The accident happened at approximately 4:00 P.M. November 13, 1974, a clear, cool and dry, but very windy day. Mrs. Guillory was traveling easterly across the bridge during extremely heavy rush hour traffic. The vehicle she was driving was heavily loaded with drums, tools and equipment belonging to Contractor, and also with clothing and household articles belonging to Mrs. Guillory. Mrs. Guillory was proceeding in the outside lane. When she neared the crest of the bridge a large 55 gallon drum was blown by the wind off the truck onto the roadway. Mrs. Guillory stopped the truck in the outside lane and attempted to retrieve the drum. A short time thereafter Appellant ran into the rear of the stopped truck.

The trial court found Mrs. Guillory negligent in stopping her vehicle on the heavily traveled bridge during a peak traffic hour. We concur in this determination. LSA-R.S. 32:141(A) provides that no motorist shall leave a vehicle parked, attended or unattended, outside a business or residential district, upon the traveled portion of a highway, when it is practical to stop or park off the traveled portion thereof. Violation of the cited statute is negligence per se and actionable if it bears causal relationship to an ensuing accident. Odom v. Texas Farm Products Company, 229 So.2d 118 (La.App. 2nd Cir. 1969).

A motorist who parks on the traveled portion of a highway bears the burden of establishing the necessity to stop, where his stopping results in damage to another. Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1970).

In this instance, Mrs. Guillory could not possibly stop off the traveled portion of the bridge since all lanes are for moving traffic. Her stopping under the circumstances was, nevertheless, unnecessary and dangerous. We deem her action imprudent and regard it as negligence.

Appellant’s claim is predicated on the sudden emergency doctrine. He contends the trial court erred in finding him guilty of contributory negligence barring his recovery. Appellant testified he was proceeding in the inside eastbound bridge lane at a speed of approximately 50 miles per hour. As he neared the crest of the bridge he observed a pedestrian, (Mrs. Guillory), dash across the roadway about 100 yards ahead and get on the median to Appellant’s immediate left. This unusual and unexpected development startled Appellant somewhat and he reacted by letting up on his accelerator and moving to his right into the center lane behind a van traveling ahead. Appellant then noted the pedestrian jump from the median back into the inside lane which Appellant had just vacated. Thinking the pedestrian was attempting to cross the bridge on foot, Appellant looked to his right, saw no overtaking traffic in the outside lane and immediately swerved into the outside lane on his right. He passed the van ahead and was then confronted with the parked pick up truck with which he collided before he could apply his brakes.

Mrs. Guillory denied that she was attempting to cross the bridge on foot just prior to the collision. She stated that just before the accident she was in the outside lane behind her parked truck waving a red flag or cloth as a warning to motorists. She also stated that the rear warning .lights on her truck were in operation and that she had to jump out of the way of Appellant’s vehicle to avoid being struck.

Appellant’s testimony infers that he was not aware just exactly what was happening ahead but that he believed an emergency was about to occur. He contends his reaction was reasonable and prudent under the circumstances and he should therefore be exonerated from fault under the sudden emergency rule.

In essence the sudden emergency doctrine holds that one confronted with an emergency not of his own making, is not negligent if he fails to adopt what subsequently and upon reflection may appear to have been a better method of avoiding an accident. If the motorist thus confronted acts reasonably and prudently under the circumstances presented, he is absolved from blame even though his action does not avoid an accident. Snodgrass v. Centanni, 229 La. 915, 87 So.2d 127 (1956).

The degree of care required of a motorist changing lanes is provided for by LSA-R.S. 32:79(1) which states in effect that a lane change shall not be made until the driver first ascertains the change can be made safely.

We agree with the interpretation of LSA-R.S. 32:79(1) announced in Canzoneri v. Connecticut Fire Insurance Company of Hartford, 163 So.2d 834 (La.App. 4th Cir. 1964), which held that on a multiple lane highway, a greater burden of care is required of a motorist changing lanes than is demanded of a driver proceeding at a lawful speed in a straight line in a marked lane.

The trial court found Appellant con-tributorily negligent in failing to exercise greater caution and keep his vehicle under better control in view of the circumstances encountered. Specifically, the trial court held that, despite an apprehension of danger ahead, Appellant did not sufficiently reduce his speed and also that Appellant imprudently swerved not one but two lanes to the right to avoid a danger which Appellant could not see and did not fully appreciate.

It is settled law that factual findings of the trier of fact will not be disturbed on appeal except in the event of a showing of manifest error. Appellate courts must give great weight to the factual findings of the trier of fact, and where there is conflict in testimony, evaluations of credibility and reasonable inferences of fact should not be disturbed, even though the appellate court feels its own evaluations and inferences are as reasonable. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

We find no manifest error and hence no reason to disturb the factual findings of the trial court.

The judgment is affirmed at Appellant’s cost.

Affirmed.


text:
    STRATTON-BALDWIN COMPANY, INC. v. Jim BROWN, d/b/a Jim Brown Carpets.
    No. 11107.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearing Denied March 21, 1977.

      Michael E. Nolan, Vance E. Ellefson, New Orleans, for plaintiff and defendant in reconvention Stratton-Baldwin Company, Inc., Appellee.
    Charest D. Thibaut, III, Baton Rouge, for defendant, third party plaintiff and plaintiff in reconvention Jim Brown, etc., appel-lee.
    H. Evans Scobee, Baton Rouge, for third party defendant Congoleum Corp., appellant.
    Before LANDRY, . COLE and CLAIBORNE, JJ.
   LANDRY, Judge.

Appeals have been taken herein by Strat-ton-Baldwin Company, Inc. (Stratton), a distributor of carpeting and floor covering, and Congoleum Industries, Inc. (Congole-um), a carpeting manufacturer, from judgment against Stratton on reconventional demand of defendant, Jim Brown (Brown), in Stratton’s suit against Brown on open account for carpeting and floor materials purchased by Brown, and judgment in favor of Stratton on its third party demand against Congoleum. Brown, although cast in judgment on Stratton’s main demand, did not appeal. Brown did, however, timely answer the appeal by Stratton, but failed to answer the appeal taken by Congoleum. We affirm the judgment rendered in Strat-ton’s main demand against Brown. We amend the judgment rendered on Brown’s reconventional demand against Stratton by reducing the amount thereof, and also amend the judgment on Stratton’s third party demand against Congoleum by reducing same correspondingly.

Stratton sued Brown for $38,171.14, representing the balance due on carpeting, hardware and flooring material sold Brown on open account during the period March 3, 1973, and July 11, 1974. Brown answered admitting the purchases and claiming failure of consideration due to the defective nature of the goods. Brown also reconvened against Stratton claiming $26,548.29 in expenses allegedly incurred in remedying defects in carpeting and floor covering which Brown sold to his retail customers. In addition, Brown third partied Congole-um, as manufacturer of the allegedly defective materials, asserting Congoleum’s soli-dary liability with Stratton. Besides his expenses, Brown seeks recovery of damages for loss of profits and business reputation, and mental anguish.

As defendant in reconvention, Stratton third partied Congoleum seeking judgment against Congoleum for whatever sum Strat-ton might be cast in Brown’s reconventional demand. Stratton also filed an exception of no cause of action to Brown’s reconven-tional demand for loss of profits, damage to business reputation and mental anguish. Lastly, Stratton filed an exception of prescription to all of Brown’s claims on the ground that Brown had knowledge of the defects more than one year prior to the filing of Brown’s reconventional demand. Congoleum filed an exception of no cause and no right of action to Stratton’s third party demand.

The trial court sustained Stratton’s exception of no cause of action to Brown’s claim for loss of profits, loss of business reputation, and mental anguish. The lower court did not pass upon either Stratton’s exception of prescription or Congoleum’s exception of no cause and no right of action.

Judgment was rendered below in favor of Stratton against Brown in the pre-trial stipulated sum of $37,306.04, and in favor of Brown, in redhibition, on his reconventional demand against Stratton, in the amount of $21,219.35, based on the finding that Brown established retail sales in the amount of $29,946.50, for which Brown was paid in full by his customers but concerning which Brown received complaints. From this sum the trial court deducted credits in the amount of $8,727.15 allowed Brown by Stratton and/or Congoleum. Judgment was rendered in favor of Stratton against Congoleum in the sum of $21,219.35 on Stratton’s third party demand. Brown’s demands against Stratton and Congoleum for alleged loss of profits, loss of business reputation and mental anguish, were rejected.

On appeal it is conceded by all concerned; (1) the trial court correctly found Brown made total retail sales in the sum of $29,-946.50 concerning which complaints were received from Brown’s customers; (2) Brown expended the sum of $12,685.55 in attempting to repair defects and satisfy his customers; and, (3) Brown was allowed credit in the aggregate of $8,727.15 by Stratton and/or Congoleum in offset of Brown’s expenditures to satisfy his customers.

The record establishes that Brown is experienced in the field of floor coverings and carpeting. Between 1969 and 1974, Brown purchased numerous floor covering items, including carpeting and hard surface floor coverings and products, from Stratton, a distributor of such items. The volume of Brown’s purchases made him one of Strat-ton’s preferred customers. In the period 1971-1973, approximately 10% of Brown’s purchases consisted of 2,824.8 square yards of a material known as “Monogram Cushion Vinyl”, a Vi" thick vinyl floor covering, and “New Dimension” floor covering, of which 2,203 yards were allegedly defective. Con-goleum manufactured all of the products in question and sold them through its distributor, Stratton. It is conceded that the items in question were defective in that the materials delaminated, the seams separated within a few months of installation and pulled away from the wall boards, and bubbles appeared under the hard flooring, all of which made the products unsightly and at times hazardous to Brown’s customers, the eventual purchasers and users.

Brown became aware of the defects in 1971, when he began receiving complaints from his customers. Nevertheless, Brown continued to purchase the same materials in reliance upon Stratton’s assurances the products were sound and that the difficulties reported were probably due to faulty installation. Brown felt that, because he had in his employ two capable and experienced installation men, he would not experience the same degree of difficulties then being encountered by other floor covering retailers handling these same products. From 1971 to early 1973, the complaints received by Brown were minimal.

When a complaint was received Brown made diligent efforts to remedy the defect encountered. He then reported each incident to Stratton, accompanied by an explanation of the items of expense incurred in effecting the required repairs. Stratton re-fered each instance to Congoleum and upon approval, Congoleum issued Stratton a credit memo for the goods involved. Strat-ton then credited Brown’s account for the same merchandise. In some instances, Stratton gave Brown credit for merchandise before obtaining Congoleum’s approval, because of Brown’s preferred customer status. To maintain his business reputation Brown, in many instances, took corrective measures before receiving assurance from Stratton that he would be credited with the expense thus incurred.

Of the 2,824.8 square yards of Monogram Cushion Vinyl involved, Brown received complaints concerning 2,203 yards, or 80% of the sales of this product, as compared to 12% complaints received by retailers of this same product in Brown’s trade area. In an effort to solve the problem for the mutual benefit of all concerned, several meetings were held between Brown and representatives of Stratton and Congoleum. On three occasions Congoleum changed the consistency of the adhesive which it recommended be used in installation, which new product Congoleum believed would minimize fabric shrinkage and consequent separation of seams. Despite all attempts at corrective measures, continued and increasing complaints were received concerning Monogram Cushion Vinyl. As a result, Congoleum ceased marketing this product in 1974.

In 1973, Brown began experiencing financial difficulties and became delinquent in his account with Stratton. Stratton pressed for payment and Brown countered with a demand that Stratton and Congole-um provide additional assistance in making repairs and reimburse Brown further for expenses. On April 11,1974, a meeting was held to discuss the matter, at which time Congoleum’s representative informed Brown that no credit, refund or assistance was due Brown for such repairs or replacement as Brown then complained about. Brown discontinued payment on his account with Stratton, and this suit ensued.

Congoleum and Stratton argue: (1) Brown’s reconventional demand is not in redhibition because Brown’s customers, the ultimate purchasers and users of the goods involved, are in possession of the merchandise, which Brown cannot return, and none of these individuals have sought rescission of Brown’s sales to them; (2) Brown’s claim is in contract or tort and, in either event he may not recover for loss of profits, damage to business reputation or mental anguish; (3) Brown’s judgment in reconvention against Stratton should be reduced to $3,958.40 because Brown incurred stipulated expenses of $12,685.55 repairing defective flooring and carpeting sold to customers from whom complaints were’received and against which Brown has received credit in the sum of $8,727.15; and, (4) alternatively, if Brown’s recovery is in redhibition the award to him is excessive because under the doctrine of redhibition Brown is entitled only to be made whole.

Stratton and Congoleum suggest that since Brown has been paid in full, including his profit, on all sales made concerning which complaints were received, Brown is entitled to recover, under any theory, only the sums expended in making these sales good, which recovery will place him in the same position he occupied before any complaints were lodged. In this regard, it is pointed out that if the judgments are allowed to stand, Brown will receive the profits on all sales concerning which he received complaints, plus a windfall recovery of $17,-260.95.

Brown maintains that whether his recovery be in tort, contract or redhibition, he is entitled to expenses incurred with respect to sales concerning which complaints were received, and also to loss of profits, damage to business reputation and mental anguish. He urges that the excess of $17,260.95 allowed by the trial court over and above his net expenses of $3,958.40 represents partial compensation for his loss of profits, loss of business reputation and mental anguish, which amount he considers inadequate and therefore should be increased on appeal.

Sale is a special form of contract expressly defined by law and concerning which the rights and obligations of vendor and purchaser are specifically prescribed. The following codal provisions are pertinent herein:

LSA-C.C. Article 2439.
“The contract of sale is an agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself.
Three circumstances concur to the perfection of the contract, to wit: the thing sold, the price and the consent.”
LSA-C.C. Article 2456.
“The sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller, as soon as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered, nor the price paid.”
LSA-C.C. Article 2475.
“The seller is bound to two principal obligations, that of delivering and that of warranting the thing which he sells.”
LSA-C.C. Article 2510.
“If the seller, knowingly and dishonestly, has sold the property of another person, he shall be obliged to reimburse to the buyer all expenses, even of embellishments of luxury, that the buyer has been at improving the premises.”
LSA-C.C. Article 2520.
“Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”
LSA-C.C. Article 2531.
“The seller who knew not the vices of the thing is only bound to repair, remedy or correct the vices as provided in Article 2521, or if he be unable or fails to repair, remedy or correct the vice, then he must restore the purchase price, and reimburse the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, subject to credit for the value of any fruits or use which the purchaser has drawn from it.”
LSA-C.C. Article 2545.
“The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of the price and repayment of the expenses, is answerable to the buyer in damages.”
LSA-C.C. Article 2547.
“A declaration made by the seller, that the thing sold possesses some quality which he knows it does not possess, comes within the definition of fraud, and ought to be judged according to the rules laid down on the subject, under the title: Of Conventional Obligations.
It may, according to the circumstances, give rise to the redhibition, or to a reduction of price, and to damages, including reasonable attorneys’ fees, in favor of the buyer.”

Brown cites numerous authorities in support of his contention that economic losses, loss of business reputation and mental anguish are compensable elements in a breach of contract action. We note, however, that none of the cited cases involve breach of a contract of sale. For example: Tidwell v. Meyer Brothers, 160 La. 778, 107 So. 571 (1926), involved an action against a landlord for loss of profits resulting from the municipality’s subsequent condemnation of the building leased; Holmes Brick & Salvage Co., Inc. v. Reo Construction, Inc., 253 So.2d 562 (La.App. 1st Cir. 1971), concerned a demolition contract; Preston v. Chrysler Motors Corp., 334 So.2d 486 (La.App. 1st Cir. 1976), was a suit in tort for damages sustained in an automobile accident; Jolley Elevator Co. v. Schwegmann Bros. Giant Supermarkets, 230 So.2d 640 (La.App. 4th Cir. 1970), involved a claim for damages for alleged failure to timely install an elevator; Transportation Equipment Co. v. Younger Brothers, 34 So.2d 347 (La.App.1948), was an action for an amount due for trailer repair; Harper v. Metairie Country Club, 258 La. 264, 246 So.2d 8 (1971), involved a construction contract; Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976), involved a claim for alleged defective repair of an automobile.

In Meador, above, the Supreme Court, declined to apply LSA-C.C. Article 1934(3), which allows recovery of damages for mental anguish, for breach of a contract having as its purpose the gratification of intellectual enjoyment or some convenience or other legal gratification. The Court in Meador, above, held that a plaintiff suing on a contract to repair an automobile could not recover damages for mental anguish resulting from breach of the contract. The Court also noted that while such damages are recoverable in tort they are not recoverable under a contract.

LSA-C.C. Article 1934, prescribes the general rules applicable to recovery in contract. It recites that in a case of breach of contract, damages are the loss sustained or the profits of which the offended party had been deprived. Section (3) of Article 1934, above, provides that where th'e contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality or taste, or some convenience or other legal gratification, not measurable in monetary terms, damages are nevertheless due for its breach. In Meador, above, the Supreme Court declined to apply Article 1934(3), above, to a contract to repair an automobile. The Court reasoned that Article 1934(3), above, applies only where the principal or exclusive object of a contract is some form of intellectual enjoyment.

We find in this instance that Brown’s claim is not founded in tort or upon a contract in which the principal or exclusive object is some form of intellectual gratification or enjoyment. Rather, we find that Brown’s claim is predicated upon a contract of sale as defined in LSA-C.C. Article 2439. Consequently, we hold that the rights and obligations of Brown as purchaser and Stratton as vendor must be determined in the light of the hereinabove cited articles governing the contract of sale.

Since the goods sold were admittedly defective, Brown is entitled to relief under the laws governing redhibition. Brown was not aware of the defective nature of the merchandise at the time of purchase. We find the defects such that if Brown had known of their existence he would not have made the purchases.

In an action in redhibition, the purchaser is not entitled to rescission of the sale and recovery of the full purchase price unless he is in a position to return the purchased item. J. B. Beaird Co., Inc. v. Burris Bros. Limited, 216 La. 655, 44 So.2d 693 (1950). In such an instance the purchaser is entitled only to a reduction in price and recovery of his expenses, if any. J. B. Beaird Co., Inc. v. Burris Bros. Limited, above.

Pursuant to LSA-C.C. Article 2531, above, Brown is entitled to recover only his expenses if Stratton and Congole-um were unaware of the defects at the time of sale. Damages for loss of profits and loss of business reputation are not recoverable unless the .seller is in bad faith, meaning that the seller had knowledge of the defect at the time of sale. LSA-C.C. Articles 2545, 2547. Brown may not recover damages for mental anguish either under general contract law or the laws peculiarly applicable to a sale, because the sale in question did not have some form of intellectual gratification as its principal or exclusive object. Meador v. Toyota of Jefferson, Inc., above.

The authorities cited by Brown allowing recovery for mental anguish in tort cases are inapplicable because this action is not in tort.

The trial court rejected Brown’s claims against Stratton and Congoleum for loss of business profits and damage to Brown’s business reputation. Under the procedural posture of this case we must affirm rejection of these demands. Although knowledge of defects is attributable to Congoleum as manufacturer of the admittedly defective goods, such circumstance is a matter of no moment. Brown neither appealed nor answered Congoleum’s appeal. Consequently, no relief can be afforded Brown as against Congoleum on appeal. LSA-C.C.P. Art. 2133; Morgavi v. Mumme et al., 270 So.2d 540 (1972).

Stratton, however, as a distributor, is not presumed to have knowledge of defects. Gordon v. Bates Crumley Chevrolet Co., 158 So. 223 (La.App. 2d Cir. 1935). The trial court concluded Stratton was in good faith. We find no error whatsoever in this determination.

The record discloses that Brown made saies to numerous customers who have not lodged complaints notwithstanding the defective nature of the goods sold them. Stratton and Congoleum urge that these claims have prescribed. We are unable to make such a determination considering that parties foreign to this cause may be affected thereby. We decline, under the circumstances, to consider this issue. We find, however, that Brown is entitled to recover agáinst Stratton and Congoleum on any additional claims incident to the defective goods sold to customers, subject to all legal defenses available to Stratton and Congoleum.

We conclude that Brown is entitled to recover the expenses incurred in attempting to repair defects in materials sold to customers from whom complaints were received. Breaux v. Winnebago Industries, Inc., 282 So .2d 763 (La.App. 1st Cir. 1973). Since it is conceded Brown spent $12,727.55 in repairs and was allowed credits by Strat-ton in the sum of $8,727.15, we find Brown entitled to judgment in reconvention . against Stratton in the sum of $3,958.40. It follows that Stratton is entitled to judgment on its third party demand against Congoleum in the sum of only $3,958.40.

IT IS ORDERED, ADJUDGED AND DECREED that:

(1) the judgment in favor of Stratton against Brown in the sum of $37,306.04 be affirmed; (2) the judgment in reconvention in favor of Brown against Stratton be amended and reduced from the sum of $21,-219.35 to the sum of $3,958.40; (3) the judgment in favor of Stratton on its third party demand against Congoleum be amended and reduced from $21,219.35 to the sum of $3,958.40; and, (4) Brown’s rights against Stratton and Congoleum to recover on any additional claims incident to the defective goods sold to customers are recognized and preserved, subject' to all legal defenses available to Stratton and Congoleum; all expense of this entire litigation to be paid by Stratton and Congoleum.

Affirmed in part, amended in part and rendered.


author: COLE, Judge.

text:
    COMMERCIAL UNION INSURANCE COMPANY v. ADVANCE COATING COMPANY et al.
    No. 11084.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearing Denied March 21, 1977.
    Writ Granted May 26, 1977.
    Dan E. West, New Orleans, Emile C. Rolfs, III, Baton Rouge, of counsel for plaintiff-appellant Commercial Union Ins. Co.
    Peter T. Dazzio, Baton Rouge, of counsel for defendant-appellee Reliance Ins. Co.
    Edward W. Gray, Baton Rouge, of counsel for defendant-appellee Hartford Ins. Co.
    Tom P. Phillips, Baton Rouge, of counsel for defendant-appellee Advanced Coatings, Inc.
    Before LANDRY, COLE and CLAIBORNE, JJ.
   COLE, Judge.

This appeal by plaintiff-appellant, Commercial Union Insurance Company, is from a judgment of the trial court couched in language as one maintaining an exception of no right or cause of action by the defendant-appellee, Reliance Insurance Company. Although postured as such an appeal, it was urged by counsel in argument before this Court that the trial court treated the exception as a motion for summary judgment. Aside from any such consideration, counsel has explicitly submitted the matter to us on the basis of an appeal from a judgment granting a motion for summary judgment, and, accordingly, we proceed. In so doing, we are aware that the question of law before us will have been decided, thereby possibly avoiding further delay and the unwise use of time by our judicial system.

The facts of the case as provided by the appellant’s petition disclose that Advanced Coatings, Inc., entered into a lease with Barouco, Inc., appellant’s insured, for sandblasting machinery and equipment. Pursuant to the lease agreement, Advanced Coatings agreed to indemnify Barouco for any loss or damage to the leased equipment while in Advanced’s possession.

On August 16, 1974, while Advanced Coatings was in possession of the leased equipment, the barge on which the equipment had been placed sank in the Mississippi River adjacent to a dock. As a result of damage caused by the accident, the leased equipment was allegedly rendered a total loss.

The appellant, Commercial Union Insurance Company, paid its insured, Barouco, for the loss sustained and thereby became subrogated to its rights against Advanced Coatings under the indemnity agreement in the lease. The appellant sued Advanced Coatings (erroneously named as “Advance Coatings Company”) and its insurer, Reliance Insurance Company, for damages resulting from the loss of the leased equipment.

Appellee, Reliance Insurance Company, filed a peremptory exception of no right or cause of action, attaching to the exception a copy of the insurance policy issued to Advanced Coatings and cited the following policy exclusion as a basis for the exception:

“6. THIS POLICY DOES NOT INSURE AGAINST:
* * * * * *
“(h) Loss or damage caused while the property is water-borne except while being transported on any regular ferry; * $ if*

The trial court granted judgment in favor of the appellee, purportedly based on the language of the policy exclusion.

The issue presented by this appeal is whether the policy exclusion relieves Reliance from any liability to the appellant.

The appellee asserts that the above-quoted policy exclusion relieves it of liability because the property was allegedly damaged while located on a barge in the river. Appellee contends that the word “waterborne” used to describe the property in the policy exclusion means supported on water, and thereby relieves the insurer of liability for all water risks.

The appellant, on the other hand, contends that the word “water-borne” means transported by water. To augment this contention, the appellant notes the use of the word “water-borne” in the context of the entire phrase. Appellant points out that the remainder of the contested clause states “except while being transported on any regular ferry” to indicate that “waterborne” is used to mean transported rather than merely supported.

In the alternative, the appellant asserts that, at best, the clause in question is ambiguous and should be interpreted so as to effectuate coverage rather than defeat it.

Insurers may limit their liability or impose conditions upon their liability; unambiguous provisions to this end must be given effect. Snell v. Stein, 261 La. 358, 259 So.2d 876 (1972); Breaux v. St. Paul Fire and Marine Insurance Company, 326 So.2d 891 (La.App. 3rd Cir. 1976).

However, the general rule is well established that when insurers seek to limit their liability by means of policy exclusions, the insurer has a duty to express clearly the limitations of its obligations. Consequently, ambiguities in exclusionary clauses are to be construed against the insurer and in favor of coverage. Snell v. Stein, supra; Bushing v. Protective National Insurance Company of Omaha, 315 So.2d 876 (La.App. 3rd Cir. 1975); Smith v. Ranger Insurance Company, 301 So.2d 673 (La.App. 3rd Cir. 1974); Hendrix Electric Company, Inc. v. Casualty Reciprocal Exchange, 297 So.2d 470 (La.App. 2nd Cir. 1974).

It is equally well established that any ambiguities in policy provisions are given a construction which is most favorable to the insured and which effectuates coverage rather than defeats it. Lea v. St Paul Fire and Marine Insurance Company, 306 So.2d 740 (La.1975); Levy v. Duclaux, 324 So.2d 1 (La.App. 4th Cir. 1975); Vinet v. Hano, 281 So.2d 183 (La.App. 4th Cir. 1973).

The word “waterborne” has been defined to mean:

“1: floated or floating upon the water: supported by water so as not to sink or to touch bottom 2a: conveyed by water and esp. by boat (traffic)” (Webster’s Third New International Unabridged Dictionary, 1966)

This Court is cognizant of no other case in Louisiana jurisprudence which has considered the meaning of this word in the context of a similar policy exclusion. Counsel for appellant in argument before this Court elicited a federal case in which the same word in a similar insurance policy exclusionary clause was determined to be ambiguous. Thus, in that case the Court attributed to it the construction most favorable to the insured. Nichols & Thompson Core Drilling Company, Inc. v. Homeland Insurance Company, 148 F.Supp. 260 (D.Idaho, S.D.1957). The trial court was not favored with this citation of authority.

It is apparent to this Court that the use of the word “water-borne,” when considered in the context of the entire clause, connotes transportation by water. However, the most that can be said of the word is that it can be understood in either of two possible meanings and, therefore, is ambiguous. In such a situation the language should be construed in favor of effectuating coverage. When given such a construction, the exclusionary clause, except where a regular ferry is the mode, precludes recovery only for losses caused while the property is being transported by water.

The record before us does not demonstrate whether the barge was being used to transport the equipment from one place to another at the time it sank or whether it was in a stationary position being used solely to support the equipment for operational purposes. We cannot speculate as to the factual basis upon which the matter may have been submitted to the trial court, nor is it fair to the trial judge for this Court to consider affirmation or reversal on a procedural basis different from that presented him. A different result may obtain because of the varying rules of evidence with respect to a peremptory exception of no cause of action as contra-distinguished from a motion for summary judgment. Because of the peculiar development of these proceedings, we cannot determine whether the judgment of the trial court is correct.

We deem it in the interest of justice to vacate and set aside the judgment which dismissed plaintiff’s suit as to Reliance Insurance Company, and to remand this case for further proceedings in accordance with the views herein expressed. This allows a more orthodox summary judgment procedure to be employed by counsel, enabling the trier of fact to determine if there is a genuine issue as to the pivotal material fact above discussed and, accordingly, whether mover is entitled to judgment as a matter of the law expressed herein. Louisiana Code of Civil Procedure art. 966.

The costs of this appeal are to be borne equally by appellant and appellee.

VACATED AND REMANDED.