text:
    Rita Mae WOODS, Plaintiff-Appellee, v. Gilbert AUSTIN, Jr., Defendant-Appellant.
    No. 6031.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Sandoz, Sandoz & Schiff by John H. Weinstein, Opelousas, for defendant-appellant.
    Donald Richard, Opelousas, for plaintiff-appellee.
    Before HOOD, FORET and HEARD, JJ.
   HOOD, Judge.

Mrs. Rita Mae Woods instituted this suit against Gilbert Austin, Jr., to recover the amount she deposited with defendant in connection with an agreement to purchase immovable property. Judgment was rendered by the trial court in favor of plaintiff. Defendant appealed.

A determination of the issues presented involves an interpretation of the terms of the contract, and a decision as to whether plaintiff breached that agreement.

On December 30, 1974, the parties executed an instrument entitled “Agreement to Purchase or Sell,” under the terms of which plaintiff agreed to purchase two lots in the City of Opelousas for the sum of $7,000.00. The contract was executed on a printed form which contained several blank spaces, some of which were filled in and some of which were left blank. The document contains the following provision:

“This sale is conditioned upon the ability of purchaser to borrow upon this property as security the sum of $6.200.00 by a mortgage loan or loans at a rate of interest not to exceed _% per annum, interest and principal payable on or before_years in equal_ (monthly) (quarterly) (semi-annual) (annual) installments.
“Should purchaser, seller or agent be unable to obtain the loan stipulated above within 90 days from acceptance hereof, this contract shall then become null and void and the agent is hereby authorized to return the purchaser’s deposit in full. Commitment by lender to make loan subject to approval of title shall constitute obtaining of loan.”

The figure “$6,200.00” was inserted in a blank space in one of the above paragraphs, and “90” was inserted in a blank space appearing in the other paragraph. Nothing was written in any of the other blanks, but instead, lines were drawn with pen and ink through all other blank spaces in that part of the agreement. Austin testified that he prepared the form of contract which was used and that he had copies of it printed for his own use. He said that he personally drew lines through the above blanks at the time the agreement was executed by Mrs. Woods.

At or about the time the contract was signed, Mrs. Woods paid to or deposited with Austin the sum of $800.00, in cash. The printed form of contract which was used contains a provision to the effect that the purchaser was obligated to deposit a sum of money with the seller’s agent, but the agreement does not specify the amount of such a deposit. No figures were inserted in any of the blanks appearing in that part of the contract, but on the contrary lines were drawn through all of those blanks. There thus is no requirement in the contract for the purchaser to make any deposit in connection with that transaction.

Austin is a real estate broker, and in this instance he was acting as agent for the owner of the property, Norman Joseph Savoy. Austin testified that title to the property had been transferred to him temporarily, with the understanding that if he found a purchaser he would transfer the property back to Savoy who would then sell it to the purchaser. Austin would receive a commission for having negotiated the sale.

Immediately after the contract was signed, Austin accompanied Mrs. Woods to The First National Bank in Opelousas, and he assisted her in filling out and submitting to that institution an application for a loan. A few days later Mrs. Woods was notified by the bank that her application for the loan had been rejected. She promptly informed defendant of that fact.

Austin then contacted Percy LaFleur, who was the holder of a promissory note secured by a mortgage on the property which plaintiff had agreed to purchase, and LaFleur told Austin that he would make the loan to plaintiff “at the same interest rate as the bank.” LaFleur and Austin concede that they did not know the interest rate which the bank would have charged. LaFleur testified, however, that he intended for the loan to be made under the same terms as were stipulated in his original loan to Savoy, that is, he was to receive 9% per annum interest, and the loan was to be repaid at $40.00 per month.

About one or two weeks later, Austin informed plaintiff that LaFleur would loan her the money she needed, but he did not tell her how the loan was to be repaid, and there is some question as to whether he informed her of the rate of interest she would have to pay. Plaintiff declined the offer of the loan, and she asked Austin to return to her the $800.00 which she had deposited with him at the time the agreement was signed. Austin refused to return that deposit, and thereupon this suit was instituted.

The trial judge held, in effect, that the contract was vague and indefinite as to the interest rate which was to be paid on the loan, that the vagueness or ambiguity in that instrument was to be construed against the defendant, since he prepared the document, and that the evidence failed to show a breach of contract on the part of plaintiff. He thereupon rendered judgment condemning defendant to pay plaintiff the sum of $800.00, that being the amount of the deposit.

A stipulation in a contract to sell, which makes the sale conditioned upon the purchaser’s ability to obtain a stipulated loan to finance the purchase, is a contract subject to a suspensive condition. It imposes upon the purchaser the duty to make a good faith effort to obtain the loan. Whether he has acted in good faith depends on the facts and circumstances in each case. If the purchaser, through no fault of his own, is unable to obtain the loan, he is released from his obligation to purchase and is entitled to the return of his deposit. Treadaway v. Piazza, 156 So.2d 328 (La. App. 4 Cir. 1963); Liuzza v. Panzer, 333 So.2d 689 (La.App. 4 Cir. 1976); Morrison v. Mioton, 163 La. 1065, 113 So. 456 (1927).

We agree with the trial judge that the contract involved here is vague, and that its provisions must be construed against the seller, since it was prepared by him. Assuming, however, that Mrs. Woods was obligated to make a good faith effort to obtain a loan of $6,200.00 in order to complete this purchase, we have concluded that she discharged that obligation in this instance.

Immediately after the contract was executed plaintiff submitted an application for a loan to a bank, and she apparently was willing to complete the loan in accordance with the terms set out in that application if it had been approved. Austin had suggested to her that she apply to that particular bank, and as already noted he accompanied her and assisted her in filling out the application. The bank rejected her application for the loan a few days later, assigning as reasons for doing so that her recently deceased husband had had “bad credit references.” We think Mrs. Woods made a good faith effort to obtain the loan, and we gather from defendant’s brief that he does not question her good faith on that occasion.

Defendant contends, however, that after plaintiff’s application for a bank loan was rejected, she then became obliged to accept the offer of a loan which was made by LaFleur, through defendant Austin. It is argued that her refusal to accept that offer of a loan was inconsistent with her duty to make a good faith effort to obtain the financing she needed. We are unable to agree with that argument.

The parties obviously contemplated that plaintiff would apply to a financial institution for a loan, since Austin suggested a particular bank to her, and he accompanied her to that bank for that purpose. When it developed that she was not able to obtain the loan from that bank, we do not believe that she then became obligated to accept any loan which thereafter might have been offered to her, even though the offer was from an individual rather than a financial institution. There was no stipulation in the contract as to the type of loan plaintiff must endeavor to obtain to ratify the condition of the sale, and since the agreement must be construed favorably to plaintiff, we believe she had the right to refuse to accept the loan which was offered to her in this instance. See Katz v. Chatelain, 321 So.2d 802 (La.App. 4 Cir. 1975).

Defendant does not contend that plaintiff should have attempted to obtain a loan from another financial institution. We nevertheless considered that question, and have decided that she was justified in making no such effort. Considering the reasons given by the bank for rejecting her application for a loan, we cannot say that she had reasonable grounds to believe that she could obtain a loan from some other similar institution.

Our conclusion is that there is no error in the judgment of the trial court condemning defendant to return to plaintiff the deposit which she made in connection with this agreement.

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to defendant-appellant.

AFFIRMED.


source: Caselaw Access Project

author: HEARD, Judge.

license: Public Domain

text:
    Van M. RHAME, Plaintiff-Appellee, v. MARY GREGG FARMS CORPORATION et al., Defendants-Appellants.
    No. 6032.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Campbell, Campbell & Johnson by James M. Johnson, Minden, for defendants-appellants.
    Lloyd G. Teekell, Alexandria, for plaintiff-appellee.
    Before HOOD, FORET and HEARD, JJ.
   HEARD, Judge.

This appeal was brought by defendant, Mary Gregg Farms Corporation, to contest the judgment of the district court in canceling a lease existing between it and plaintiff, Van M. Rhame.

The gravel lease came into existence on January 9, 1966. This suit was brought by plaintiff to cancel the lease on the following grounds:

1) Lack of diligent performance by defendant to mine and produce gravel;

2) Failure of defendant to tender or pay the minimum annual rental by January 1, 1975;

3) Failure of defendant to furnish plaintiff with written notice of its intention to exercise the option to renew the lease for an additional five years, beginning January 1, 1976.

4) Failure of defendant, if the option was somehow exercised, to pay the minimum rent due by January 1, 1976.

The pertinent provisions of the lease in question read as follows:

“The term of this lease shall be for a period of five (5) years and shall be retroactive until January 1, 1966 and shall end on December 31, 1970. A minimum annual rental for each year is hereby fixed at the sum and amount of One Hundred ($100.00) Dollars. The minimum annual rental for the first year has been paid, receipt of which is hereby acknowledged, and the minimum annual rental of One Hundred ($100.00) Dollars per year for each subsequent year shall be due and payable in advance on January 1 of each year, the next payment being due and payable January 1, 1967.
4.
“Lessee shall have the right, privilege and option of renewing this lease for the same terms and conditions as herein set forth for two (2) additional periods of five (5) years each, the first period to begin on the first day of January, 1971, and ending on the 31st day of December, 1975. The second of which periods shall begin on the first day of January, 1976, and ending on the 31st day of December, 1980. It is understood and agreed between the parties hereto to exercise the options as above set forth, lessee shall give Lessor written notice of his intention to exercise said options at his last known address at least thirty (30) days prior to the expiration of the primary term or any renewal thereof.”

Testimony at trial showed that the defendant had last tendered the minimum annual rent in December, 1973. The date the check was actually mailed to or received by the plaintiff was not shown. However, plaintiff, through his attorney, returned the check to defendant in February, 1974. At that time, plaintiff, informed the defendant that he considered the lease to be at an end.

Defendant did not tender payment of the rent due in 1975 and 1976, nor did it tender written notice of its intention to exercise its option to renew the lease for another five years.

Defendant argues that plaintiff’s action in returning the check tendered for the 1974 rent, and coupled with the statement that he considered the lease at an end, made it permissible for it to not tender the rent due and owing under the lease. Defendant further defended its actions by introducing testimony that equipment on the lease was damaged, i. e., a barge was sunk, and testing rig damaged, but did not show that the plaintiff was in any way responsible for the damage.

Appellant supports its argument that plaintiff’s actions relieved him of any duty to tender payment of the annual rent or to exercise its option to renew in writing by citing Civil Code Article 2040, to wit:

“The condition is considered as fulfilled, when the fulfillment of it has been prevented by the party to perform it.”

The Louisiana Supreme Court in Walls v. Smith, 3 La. 498 (1832), after reading the article in the original French, interpreted it to mean that a condition is considered as accomplished, when the debtor, whose obligation depends on this condition, prevents the accomplishment of it.

This court, in a suit for specific performance, held that the defendant could not urge non-fulfillment of a condition as a defense when the condition was unfulfilled through defendant’s fault. The court added that mere fault in preventing fulfillment of the condition is sufficient to invoke Article 2040, therefore, duress and/or fraud need not be proven. Briggs v. Siggio, 285 So.2d 324 (La.App. 3rd Cir. 1973).

In this case, it is apparent that plaintiff did not prevent defendant from tendering payment. Plaintiff’s action in returning the rent money in 1974 did not make it impossible for defendant to tender payment in following years, nor was it improbable that plaintiff might have accepted such payment. It would be inequitable to permit one who has not fulfilled an agreement to defend on the grounds that the other party might not perform. Bank of Louisiana in New Orleans v, Campbell, 329 So.2d 235 (La.App. 4th Cir. 1976).

For the foregoing reasons, the judgment of the trial court is affirmed. The costs of this appeal are assessed to defendants-appellants.

AFFIRMED.


author: WATSON, Judge.

text:
    Mary Jo SALTER et al., v. TRAVELERS INSURANCE COMPANY et al.
    No. 6034.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Davis & Simmons by James L. Davis, Many, for plaintiffs-appellants.
    Watson, Murchison, Crews & Arthur, William P. Crews, Jr., Natchitoches, for defendants-appellees.
    Before CULPEPPER, WATSON and STOKER, JJ.
   WATSON, Judge.

This is an appeal by plaintiff, Mary Jo Salter, contending that the amount of damages awarded her against defendants, Samuel D. Price, and his insurer, Travelers Insurance Company (Travelers Indemnity Company,) is inadequate and should be increased. As the result of a rear-end collision in which a vehicle driven by Price hit the rear of a school bus driven by Mrs. Salter, the trial court awarded damages of $22,714.60, which included $10,000 as loss of future wages and $10,000 for pain, suffering and disability.

The issue is whether the trial court abused its discretion in the awards for loss of future wages and general damages.

In a lengthy and detailed opinion, the trial judge reviewed the medical evidence concerning Mrs. Salter’s injuries, which consisted primarily of a severe blow to the abdominal region from being thrown into the steering wheel of the bus and a nervous condition super-imposed on the physical injuries. The evidence consisted of the testimony by Dr. Sauls, the family physician of Mrs. Salter, who testified in detail concerning her various ailments and his treatment of them; and the evidence of Dr. Jones, an orthopedic surgeon, and Dr. Teagle, a specialist in internal medicine, who expressed their opinions that there was no medical reason why Mrs. Salter could not return to her job of driving the school bus.

The trial court also considered the fact that Mrs. Salter was in poor health prior to the accident and that she had applied for retirement as a school bus driver after the accident. It was noted that her application was not based on the injuries sustained.

The trial court stated that loss of future earnings are not susceptible of computation with mathematical certainty, and that while the automobile-bus collision resulted in Mrs. Salter’s becoming disabled, the court must take into consideration the “repeatedly expressed . . . opinion . that she was unable to drive the said school bus for physical reasons unrelated to the accident, namely arthritis.” (TR. 323)

The trial court did not abuse its discretion in awarding $10,000 for loss of future earnings and $10,000 for pain, suffering and disability. Plaintiff is not entitled to an increase on appeal. The admonition of the Supreme Court against the reduction of awards which are within the discretion of the trial court applies equally to the increase of awards. Bitoun v. Landry, 302 So.2d 278 (La., 1974). See also Coco v. Winston Industries, Inc., 341 So.2d 332 (La., 1977).

For the above reasons, the judgment of the trial court is affirmed. Costs are taxed against appellant.

AFFIRMED.

      . Kile Salter, husband of Mary Jo, who was a plaintiff in the original petition, is now deceased.


author: HOOD, Judge.

text:
    Bertha HALEY, Plaintiff-Appellant, v. CITY OF OPELOUSAS et al., Defendants-Appellees.
    No. 6037.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Dwight D. Reed, Opelousas, for plaintiff-appellant.

      Devillier, Ardoin & Watson by J. Winston Ardoin, Eunice, Lewis & Lewis by Seth Lewis, Jr., Opelousas, for defendants-appel-lees.
    Before HOOD, FORET and HEARD, JJ.
   HOOD, Judge.

This is a damage suit instituted by Mrs. Bertha Haley against the City of Opelousas, the Louisiana Department of Highways and Planter’s Trust and Savings Bank of Opel-ousas, Inc. The trial court rendered a summary judgment dismissing the suit as to the Department of Highways. Plaintiff later amended her original petition praying that the summary judgment rendered in this suit be annulled on the ground that it was obtained by fraud and ill practices. The Highway Department filed exceptions of improper procedure, no right of action and no cause of action. Judgment was rendered by the trial court sustaining those exceptions and again dismissing the suit as to the Highway Department. Plaintiff appealed.

The determining issue presented is whether plaintiff has alleged a cause of action for annulling the summary judgment which dismissed the Department of Highways as a defendant in this suit.

Plaintiff alleges that she was injured when she stumbled and fell as she attempted to walk across Coleman Street, in the City of Opelousas, near the point where that street intersects U.S. Highway 167. She asserts that the City of Opelousas and the Department of Highways were negligent in allowing some pieces of concrete to become dislodged on a curb at that location, and that the accident resulted from that negligence.

The Department of Highways filed a motion for summary judgment praying that it be dismissed as a defendant on the ground that Coleman Street was not a part of the State Highway System. Attached to that motion was an affidavit executed by the Senior Statistician for the Department of Highways, the pertinent portion of which states:

“Coleman Street in Opelousas, Louisiana, was not included among the routes enumerated in Act 40 of 1955, nor has it since been added to the State Route System through action of the Louisiana Department of Highways.”

A hearing was held on that motion, and at that hearing the above affidavit was filed in evidence. Plaintiff filed no counter affidavits and no other documents or evidence of any kind in opposition to the motion of the Department of Highways. The trial court thereupon rendered a summary judgment on January 23, 1975, dismissing the suit as to the Department of Highways. No appeal was taken from that judgment.

More than a year later, on July 2, 1976, plaintiff filed an amended petition in this proceeding, alleging that the above summary judgment was obtained by fraud or ill practices, praying that that summary judgment be annulled, and demanding judgment on her principal demand for damages against the City of Opelousas and the Department of Highways. As grounds for annulling the summary judgment, plaintiff alleges that she learned on July 31, 1975, or about six months after the summary judgment was rendered, that portions of Coleman Street are “under the control and right-of-way of the Louisiana Department of Highways,” that the affidavit of the Statistician of that Department thus was incorrect, and that for that reason she is entitled to have the summary judgment annulled under LSA-C.C.P. art. 2004.

Plaintiff later amended her petition again to incorporate into her pleadings a plat of survey, prepared by a Registered Land Surveyor on June 6, 1975, which shows a “break” in the concrete curb at a point near the junction of Coleman Street and Highway 167. That plat also shows that the highway right-of-way is wider at the place where it intersects Coleman Street than it is on either side of that point, and that the break in the curb was on the highway right-of-way, rather than on the city-owned servitude for Coleman Street.

In response to the above amended pleadings filed by plaintiff, the Department of Highways filed an exception of improper procedure and exceptions of no right and no cause of action. After a hearing, the trial court rendered judgment sustaining those exceptions and again dismissing the suit as to the Department of Highways. Plaintiff appealed, and that appeal is before us now.

We have decided that plaintiff has failed to allege facts which, assuming those facts to be true, would be sufficient to support a judgment annulling the summary decree rendered by the trial court on January 23, 1975. We have concluded, therefore, that there is no error in that part of the trial court judgment which sustains the exception of no cause of action filed by the Department of Highways. In view of that conclusion, it is unnecessary for us to consider or determine the procedural questions raised by defendant.

No facts are alleged in the pleadings, and there is no evidence in the record, which purport to show that the statements contained in the affidavit executed by the Statistician of the Department of Highways is incorrect. The substance of his statement, insofar as it conceivably could be material here, is that Coleman Street was not included in the State Route System, either by Act 40 of 1955 or through any subsequent action of the Highway Department. We find nothing in any pleadings or in the evidence which contradicts that statement, and we do not understand that plaintiff even contends otherwise.

We concede, accepting the factual allegations in the pleadings as being true, that several months after the above summary judgment was rendered plaintiff discovered that the accident occurred on the right-of-way of the Highway Department, instead of on the right-of-way of a city street. Plaintiff does not allege or contend, however, that that circumstance was concealed from her, or that it could not have been discovered by her by the exercise of reasonable diligence prior to the rendering of the summary judgment.

On December 19, 1974, which was a few days before the Highway Department filed its motion for summary judgment, plaintiff filed an- amended petition in which she alleged that “as traffic cleared, she proceeded across Coleman Street, but as she stepped out her foot caught on a piece of concrete which was dislodged and sticking out into Coleman Street.’’ Plaintiff thus specifically alleged that the accident occurred on Coleman Street, a city thoroughfare. There is no showing that the Department of Highways knew or had any reason to know that the incident occurred on the state highway right-of-way instead of on a city street, and under the above allegations it clearly was justified in assuming that it occurred on Coleman Street. There was no deceit on the part of the Highway Department in pleading or proving that Coleman Street was not in the State Route System, and the judgment which plaintiff seeks to annul thus was not obtained by fraud or ill practices. The uncontradicted proof produced by the Highway Department was sufficient to support the judgment which was rendered by the trial court.

Our jurisprudence is settled that if the mover at the trial of a motion for summary judgment produces convincing proof by affidavits or other receivable evidence of the facts upon which the motion is based, and no counter affidavits or other receivable evidence are offered by the opposing party to contradict that proof, then the conclusion may be justified that there is no genuine issue as to the facts so proved, even though allegations to the contrary might be contained in the pleadings. See LSA-G.C.P. arts. 966 and 967; Joiner v. Lenee, 213 So.2d 136 (La.App. 3 Cir. 1968), and cases cited therein.

In the instant suit, the Highway Department, which filed the motion for summary judgment, produced convincing proof of the facts on which that motion was based. No counter affidavits or other receivable evidence to contradict that proof was filed by plaintiff. The trial judge thus was justified in concluding that there was no genuine issue as to any material fact. On the basis of the uncontradicted evidence produced by the mover, he correctly rendered a summary judgment dismissing the Department of Highways as a defendant. Plaintiff did not appeal, and that judgment has become final. Plaintiff has alleged no fraud or ill practices which would warrant the annulling of that judgment. We hold that plaintiff is not entitled to have the summary judgment annulled under LSA-C.C.P. art. 2004, simply because she recently discovered some new evidence, especially since it appears that that evidence was available to and was never concealed from her prior to the rendering of the above judgment.

We conclude that there is no error in the judgment of the trial court which sustains the exception of no cause of action filed by the Department of Highways and dismisses plaintiff’s action as to that defendant.

The judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


text:
    Succession of Manuel DAVIS. Essie GRAY et al., Plaintiffs-Appellees, v. Willie DAVIS et al., Defendants-Appellants.
    No. 6038.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Gravel, Roy & Burnes by Robert L. Roy-er, Alexandria, for defendants-appellants.
    Raymond L. Simmons, Baton Rouge, for plaintiffs-appellees.
    Before HOOD, FORET and HEARD, JJ.
   HEARD, Judge.

This suit was instituted by Bertha McWil-liams and Essie Gray, heirs of Bertha Preston, to nullify and set aside a judgment of possession sending Willie Davis and Jewel Davis into possession of the estate of Manuel Davis.

From a judgment nullifying the judgment of possession, the defendants have appealed.

On July 2, 1974, a “Judgment of Possession” was signed, placing defendants, Willie Davis and Jewel Davis, in possession of the estate of their father, Manuel Davis. The judgment was rendered on the basis of an affidavit made by Cleveland Ford, and Walter Rhodes, Jr., swearing, among other things, that the decedent Manuel Davis had left no will.

Defendants claim that the decedent had had a valid statutory will drawn up by his attorney, Hunter Pierson, now deceased. The will was seen by P. David Gray, the day after the will was made in 1958. However, the will could not be found after the death of the decedent. At the time of the present suit, a diligent search was made by J. Marc Lampert, Notary Public, among the effects of Pierson’s estate, but no will was found.

At trial, several of the plaintiffs testified as to the existence of the will and its contents. While there is some contradictory testimony, the trial court found as a matter of fact that the testimony proved the following:

1) That Manual Davis executed a statutory will, valid in form.
2) That Hunter Pierson acted as his attorney and drew up the will.
3) That Davis bequeathed ten (10) acres and his house to his second wife, Bertha, mother of the plaintiffs.
4) That he bequeathed five (5) acres to each of his sons, Willie Davis and Jewel Davis.
5) That at the time Jewel Davis signed the affidavit sending him and Willie Davis into possession, he and his attorneys had sufficient notice that there had been a will.

On the basis of the evidence, the trial court annulled the previous judgment of possession, as it was obtained on an affidavit containing false information. (The trial court noted that all evidence had been admitted over the objection of defendants, who claimed parol evidence could not be used to prove the existence of a missing will.) From this judgment, defendants appealed.

Appellants contend that the court committed an error of law in admitting parol testimony to prove the contents and validity of a non-existent statutory will and in nullifying a judgment of a possession on that evidence.

The Louisiana Supreme Court held that in Louisiana, if the will is lost, the entire will can be proved by extrinsic evidence. Succession of Boyd, 306 So.2d 687 (La.1975). Boyd involved proving the date of an olo-graphic will by extrinsic evidence but the court in its opinion talked of Succession of Nunley, 224 La. 251, 69 So.2d 33 (1954), in which the entire contents of the will were proven by extrinsic evidence when the original was lost. However, in that case, a duplicate of decedent’s olographic will was found in her attorney’s records.

In 1860, the United States Supreme Court recognized that under Louisiana (and French) law, when a will has been destroyed or lost, secondary evidence is admissible to prove its contents and to carry it to probate. Such evidence must be presented by the party urging that the will existed. Gaines v. Hennen, 65 U.S. 553, 16 L.Ed. 770 (1860).

If extrinsic evidence is allowed to probate a missing will, then surely it is permissible to admit it in order to determine whether a judgment of possession should be annulled. In cases involving nullity of judgments under Code of Civil Procedure Article 2004, great discretion is given to the trial court. Thomas v. Beasley, 295 So.2d 213 (La.App. 3rd Cir. 1974). In this case, there is no showing that the trial court abused its discretion.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of the appeal to be paid by defendants-appellants.

AFFIRMED.

HOOD, Judge, dissents, being of the opinion that plaintiffs do not have a right of action to maintain this suit, since the alleged will has not been judicially recognized and probated.


author: FORET, Judge.

text:
    GRIMES, AUSTIN & STARK, INC., Plaintiff-Appellant, v. L. STARK, INC., Defendant-Appellee.
    No. 6040.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Plauché, Smith, Hebert & Nieset by Reid K. Hebert, Lake Charles, for plaintiff-appellant.
    Gold, Hall, Hammill & Little by F. A. Little, Jr., Alexandria, for defendant-appel-lee.
    Before HOOD, FORET and HEARD, JJ.
   FORET, Judge.

This is an appeal by Grimes, Austin & Stark, Inc. from a judgment dismissing its rule to evict lessee (defendant L. Stark, Inc.) from its premises situated in Alexandria, Louisiana. As errors of the trial court, plaintiff-appellant assigns:

1. The trial court erred in refusing to permit plaintiff to introduce parol evidence as to an increase in monthly rentals;
2. The trial court erred in not making a finding that defendant did not timely make its rental payment.

I

PAROL EVIDENCE

In the April 22, 1976, sub-lease agreement between Sub-Lessor Grimes, Austin & Stark, Inc., and Sub-Lessee, L. Stark, Inc. was the following provision:

Sub-Lessee shall pay to Sub-Lessor for rent for the Sub-Leased premises the sum of ONE THOUSAND TWO HUNDRED SEVENTY-FIVE AND NO/100 ($1,275.00) DOLLARS, per month, monthly in advance, the first such payment being due and payable on the first day of January, 1976, and a like sum being due and payable on or before the first day of each and every month thereafter, or such other rental payments as the parties hereto may from time to time agree upon, all the rental payments shall be due and payable at the offices of the Sub-Lessor in Jacksonville, Cherokee County, Texas. (Emphasis added.)

At trial, plaintiff-appellant contended that the above lease provision was unclear and ambiguous and, based upon that contention, sought to introduce parol evidence as to the intention of the contracting parties. The trial court was not of that opinion. As a proffer of proof, J. N. Grimes and Jeff Austin, Jr., officers and members of the board of directors of plaintiff-appellant corporation, testified that at the December 19, 1975, meeting of the directors and shareholders of Grimes, Austin & Stark, Inc., an agreement was reached as to provisions of the prospective lease contracts that were to be executed with defendant, L. Stark, Inc., and that it was understood that at the end of each calendar year, plaintiff-appellant would hold a meeting and decide upon the monthly rental to be paid by defendant for the following calendar year. Grimes and Austin also testified that at the December 21, 1976, shareholder and board of director meeting of plaintiff, a resolution was adopted whereby the monthly rental to be paid by defendant in the calendar year 1977 was increased to $1,675.00; that defendant was so notified; and that defendant failed to pay the new January monthly rental.

The trial court found that the rental provision of the lease was clear and concise. With that ruling, we agree. The amount of the monthly rental, the date upon which it was to be paid, and the place where it was to be paid, were specifically set out.

Any change in the monthly rental to be paid, as provided for in the rental provision —“or such other rental payments as the parties hereto may from time to time agree upon” — would have required a subsequent agreement to that effect. C.C. Art. 2276; Lakeshore, Inc. v. Sarafyan, 225 So.2d 15 (La.App. 4 Cir. 1969).

II

TIMELY PAYMENT OF RENT

A sub-lease agreement between the parties to this suit detailed those instances and conditions under which the sub-lease could be terminated.

“Sub-Lessor may terminate this lease and the term demised upon the happening of any one or more of the following events: . (5) The failure of Sub-Lessee to pay any installment of rent or any other charge or money obligation herein required to be paid by Sub-Lessee within ten (10) days after written notice, or to perform any other of its covenants under this Sub-Lease within thirty (30) days after written notice.” [Emphasis provided]

According to the very language of that provision, where the sub-lessee does not pay its monthly rent on the first of the month, the sub-lease can be cancelled only after ten (10) days have elapsed after the sub-lessee has been notified of its delinquency in payment of rent.

In this case, plaintiff never sent, and defendant never received, any notice of delinquency in payment of rent and of the ten-day grace period within which rent could be paid. The first notice of the nonpayment of rent was the notice to vacate, which was delivered to defendant, L. Stark, Inc., on January 4, 1977. Some eight days later, plaintiff received from defendant a check in payment of rent, which check was not endorsed, negotiated, cancelled, or dishonored, but which was mailed back to defendant.

In the sub-lease contract, there was no provision as to the manner in which rent was to be paid. Thus, the receipt of the check by plaintiff was a conditional payment of rent. Seliga v. American Mutual Liability Ins. Co., 174 So.2d 878 (La.App. 4 Cir., 1965). We quote from Seliga:

“ . . . And in the absence of a specific agreement to the contrary, a check or draft is a conditional payment; when the instrument is honored on presentation, it constitutes payment as of the date it was received. Ray v. Canal Bank & Trust Co., 186 La. 547, 173 So. 101; Langridge v. Dauenhauer, 120 La. 450, 45 So. 387; Mancuso v. Equitable Life Assurance Soc. of U. S., La.App., 151 So.2d 511.

We affirm this ruling of the trial court.

All costs of this appeal are to be borne by Grimes, Austin & Stark, Inc., plaintiff-appellant.

AFFIRMED.


text:
    John WHEAT, Plaintiff-Appellant, v. William David HUNT, Defendant-Appellee.
    No. 6050.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Thomas & Dunahoe by Edwin Dunahoe, Natchitoches, for plaintiff-appellant.
    Kelly, Seaman & Ware by Richard N. Ware, Natchitoches, for defendant-appellee.
    Before HOOD, FORET and HEARD, JJ.
   HEARD, Judge.

This is an action for damages for an unprovoked assault and battery which is alleged to have been committed on the person of the plaintiff by the defendant, William David Hunt. After trial judgment was rendered rejecting the demands of the plaintiff and plaintiff has appealed.

The incident which gave rise to this suit occurred at approximately one o’clock A.M. on March 30,1975, in a pool room in connection with a Horn Street bar in Natchitoch-es, Louisiana. Plaintiff, accompanied by John E. Prudhomme, Donnie Moran and Mary Jean Soloman, arrived at the pool room shortly after midnight and there met the defendant, William David Hunt, and, his friend, Danny Meyers. Plaintiff and David Hunt engaged in a game of pool and according to the conflicting testimony, one word led to another and the end result was plaintiff sustained injuries to his face by being struck with a beer bottle and defendant, David Hunt, suffered a broken nose. Assault and battery charges were filed in district court against David Hunt, to which charge he pled guilty.

The trial judge in his opinion found there was a conflict in the testimony as to how the incident started and that it was unnecessary to relate the different versions as he rejected the testimony of the plaintiff and his witnesses 'entirely, totally and without reservation as being unreliable, unbelievable, untrustworthy and not capable of serious consideration.

Plaintiff contends that the court committed error in totally rejecting the plaintiff’s demand where the question presented was one of sufficiency and preponderance of the evidence rather than credibility of witnesses and asserts that the case of Blue Streak Enterprises v. Cherrie, 263 So.2d 734 (La.App. 4th Cir. 1972) is applicable on this point. In that case, the suit was on an open account for repairs to a boat. Introduced into evidence was a document signed by the defendant authorizing the work done. The court stated, “However, the written document in the record before us supporting the testimony of one witness over the other by its plain terms, makes the question one of preponderance of the evidence rather than credibility of witnesses.” The plea of guilty by the defendant in this case is not analogous to the authorization by the defendant in the case cited to perform work on a boat. The plea of guilty to the assault and battery charges is an admission against interest which may be given some weight; however, it is not conclusive. Moore v. Skidmore, 301 So.2d 428 (La.App. 4th Cir. 1974).

The court stated in Blue Streak Enterprises v. Cherrie, supra:

“A trial judge is in the best position to determine the credibility of witnesses by observing demeanor, etc., and when two equally opposing witnesses testify contrary to each other on a matter of fact, he may properly believe one and disbelieve the other, and this finding of fact will not be disturbed on appeal.”

The court stated in Gulf States Utilities Company v. Robin, 237 So.2d 422 (La.App. 3rd Cir. 1970):

“The trial court, however, has discretion to evaluate contradictory testimony and is not bound to accept one version over the other merely because the number of witnesses is greater on one side.”

Plaintiff contends that the trial court erred in not considering the unexplained failure of the defendant to call Danny Meyers as a corroborating witness. This contention by the plaintiff has no merit for the reason that the witness was present outside the courtroom at time of trial and was available to either side.

In the case of Veillon v. Sylvester, 174 So.2d 189 (La.App. 4th Cir. 1965), the court stated:

“In an action for damages for assault and battery the burden is upon the plaintiff to establish by a preponderance of the evidence that such an assault occurred and that he was not at fault in provoking the difficulty which led to the assault.”

In the instant suit, the trial court found that the plaintiff failed to sustain the burden of proof required by him.

We find no manifest error in his findings.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


author: GUIDRY, Judge.

text:
    Theodore Henry FORMAN, III, Plaintiff-Appellant, v. DEATON, INC., Defendant-Appellee.
    No. 6056.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.

      Kramer & Davis by James D. Davis, Alexandria, for plaintiff-appellant.
    Falkenheiner, Calhoun & Murray by George C. Murray, Jr., Vidalia, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   GUIDRY, Judge.

This is a suit for workmen’s compensation benefits wherein plaintiff seeks a judgment under the Louisiana Workmen’s Compensation Act. Plaintiff, a resident of Concordia Parish, seeks compensation for injuries he allegedly sustained as a result of a vehicular accident near Cullman, Alabama. Plaintiff alleges he was employed by the defendant, an Alabama corporation, as a contract driver and was at the time of the accident working within the course and scope of his employment. Defendant filed several declinatory exceptions objecting to the (1) insufficiency of service of process; (2) improper venue; (3) lack of jurisdiction over the defendant; and (4) lack of jurisdiction over the subject matter. Defendant also filed a dilatory exception of vagueness. After a trial of the exceptions the trial court, without assigning reasons, rendered judgment sustaining the exceptions of lack of jurisdiction and dismissed the plaintiff’s suit. The formal judgment rendered and signed by the trial court makes no order or decree in reference to the other exceptions. Consequently, the issues presented by these exceptions are not before us and we will express no opinion in regard thereto. Plaintiff appeals.

At the trial of the exceptions the parties entered into the following stipulations of fact:

“1. That plaintiff, THEODORE HENRY FOREMAN, III, is a resident of and domiciled in Concordia Parish, Louisiana, both now and at all times material to this suit.
2. That DEATON, INC. does business in the State of Louisiana.
3. That, at all times material to this suit, the CT Corporation System, 1300 Hibernia Building, New Orleans, Louisiana, was the registered agent for service of process on DEATON, INC. and that both the registered Louisiana Office and the principal Louisiana Office of DEA-TON, INC. was situated in New Orleans, all as shown from the letter from the Louisiana Secretary of State, dated November 23, 1976, attached as Exhibit ‘A’.
4. That plaintiff has brought this suit under the Louisiana Workmen’s Compensation Law.
5. That the complained of accident occurred in the State of Alabama.
6. That, at all times material to this suit, the agreement between DEATON, INC. and THEODORE FOREMAN, with addendums nos. 1-3, all dated 11 March 1976, was the only contract or agreement by and between plaintiff and defendant, a copy of which agreement is attached as Exhibit ‘B’.
7. That the agreement described in paragraph 6 above, and attached as Exhibit ‘B’, was made and signed in the State of Alabama.”

The only other evidence introduced was plaintiff’s exhibits A and B. Exhibit A is a letter from the Louisiana Secretary of State showing that the defendant has appointed a registered agent' for service of process. Exhibit B, which is the alleged employment contract between plaintiff and defendant, is designated as a lease agreement. Pursuant to this agreement the defendant leased to the plaintiff a diesel tandem and trailer in consideration for which the plaintiff agreed to furnish all labor to operate the diesel truck and to perform all services necessary in the transportation of such commodities as the defendant may provide.

Plaintiff’s principal contention is that the trial court erred in sustaining the defendant’s exception of lack of jurisdiction over the subject matter.

It is well settled in the jurisprudence of this state that recovery cannot be allowed under the Louisiana Workmen’s Compensation Act in cases where the contract of employment- was not entered into in this State and where the accident did not occur in this State. Gray v. Decker, 229 So.2d 156 (La.App. 2nd Cir. 1969); Woodham v. Travelers Insurance Company, 161 So.2d 368 (La.App. 3rd Cir. 1964), writs refused May 4, 1964; Sparks v. Pyburn Drilling Co., 276 So.2d 406 (La.App. 2nd Cir. 1973).

In the instant suit plaintiff admits that his alleged contract of employment was entered into in Alabama and that the accident occurred in Alabama. Accordingly, we agree with the trial court’s determination that the plaintiff is not entitled to recovery under the provisions of the Louisiana Workmen’s Compensation Act. Obviously, the plaintiff’s remedy or right to recovery, if any such rights exist, is governed exclusively by the laws of the State of Alabama.

Plaintiff, in arguing that the trial court erred in sustaining the defendant’s exception to the jurisdiction of the court relies on the case of Smith v. Glove Indemnity Company, 243 So.2d 882 (La.App. 1st Cir. 1971).

In Smith, supra, the question presented was whether a Louisiana court had jurisdiction over the subject matter to apply a foreign workmen’s compensation statute in a suit by a Louisiana resident against a non-resident workmen’s compensation insurer. The accident and employment occurred in another state. Having determined that it could exercise jurisdiction over the person since the insurer was authorized to do and was doing business in Louisiana, the court in Smith, supra, further determined it could exercise jurisdiction over the subject matter. The court found in Smith, supra, that it had jurisdiction to apply the foreign workmen’s compensation statute, wherein the plaintiff had sought benefits under the foreign state’s workmen’s compensation law. In so concluding the court in Smith, supra, stated at page 891:

“Fundamental reasons of practicality prompt our assumption of jurisdiction of claims for workmen’s compensation predicated on accidents arising in foreign jurisdictions. We are aware that a vast number of both highly skilled and semiskilled workers are employed in industrial, scientific, technological and other construction projects in our now complex society. Mobility of such employees is as vital to the employees’ ability to earn a livelihood as it is to the employer who must depend upon the availability of such workmen to fulfill construction contracts. It is common knowledge that construction workmen must move upon the completion of each project. We can readily see that in many instances considerable financial hardship would be imposed upon an injured employee to require that, in every case, recovery of compensation be restricted to the state in which the accident occurred. The economic factors involved weigh heavily in favor of the injured employee. The employee has neither the funds, resources nor facilities normally possessed by and available to the insurer.”

Considering the facts of the instant matter it is clear that the trial court has jurisdiction over the person of the defendant. The defendant qualified to do and was doing business in Louisiana, and had appointed a registered agent for service of process. However, it is just as clear that the trial court correctly found that it could not exercise jurisdiction over the subject matter. The jurisprudence is to the effect that Louisiana courts, when the plaintiff seeks workmen’s compensation under the laws of a foreign state, may apply the foreign workmen’s compensation statute, even though the contract of employment was not entered into in Louisiana and the accident did not take place in this state. Smith v. Globe Indemnity Company, supra. Such is not the situation in the case at bar. Plaintiff’s petition seeks recovery exclusively under the Louisiana Workmen’s Compensation Act, and accordingly the trial court correctly concluded it was without jurisdiction to hear and determine the case applying Alabama law.

Able counsel for appellant further argues that the trial court erred because he contends the issue as to which law applies and whether a Louisiana court can adjudge this matter must be decided pursuant to an exception of no cause of action or after trial on the merits and cannot be considered on an exception to jurisdiction. This very same contention was presented to this court in Woodham v. Travelers Insurance Company, 161 So.2d 368 (La.App. 3rd Cir. 1964), writ refused, 246 La. 88, 163 So.2d 360. In finding no merit in such contention, Judge Hood, speaking for the court stated:

“Plaintiff contends, however, that the issue of ‘which law applies’ and whether the Louisiana court can adjudge a. case governed by the Mississippi law has not been raised by the exceptions to the jurisdiction filed in this proceeding. He contends that the issues raised here are matters which should be determined on the trial of the case on its merits or pursuant to some other type of pleading, citing McKane v. New Amsterdam Casualty Co., supra, La.App., 199 So. 175, as authority for that argument.
In the McKane case, which involved a claim for compensation benefits, the foreign corporation defendant filed an exception to the jurisdiction of the court based on its assertion that the Louisiana law did not apply, and it also apparently filed an answer. The case was tried on its merits and judgment was rendered in favor of plaintiff. There was no occasion for the court to rule on the exception to the jurisdiction, since the same issue was raised in the trial of the Case on its merits. In its opinion, however, the court observed by way of dicta that the question of whether the Illinois or the Louisiana workmen’s compensation law should apply has no bearing on the question of jurisdiction but that such a defense should be considered ‘on the exception of no right of action or upon the merits of the case.’ We agree that such a defense can be urged in the answer and can be disposed of in the trial of the case on its merits. We do not think the issue properly can be raised by an exception of no right of action, but we are convinced that it is presented squarely by an exception based on allegations that the court does not have jurisdiction over the subject matter, such as the exception which was filed in this case. The First and Second Circuit Courts apparently felt that this question was one which properly could be raised by an exception to the jurisdiction, because in the later cases of Cobb v. International Paper Company [La.App. 2 Cir., 76 So.2d 460], supra, and Reed v. Zurich General Accident § Liability Insurance Co. [La.App. 1 Cir., 83 So.2d 660], supra, where the identical issue presented here was raised, the court disposed of each case by maintaining the exception to the jurisdiction filed therein and dismissing the suit.
Article 925 of the LSA-Code of Civil Procedure provides that one of the objections which may be raised through the declinatory exception is:
‘(6) The court’s lack of jurisdiction over the subject matter of the action.’ In Article 2 of that Code the term ‘jurisdiction over the subject matter’ is defined as ‘the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the thing asserted.’
In this case we have determined that the Louisiana court does not have the legal power and authority to hear and determine cases governed exclusively by the Mississippi workmen’s compensation law. We think this issue is properly raised by the declinatory exception filed by the defendants herein, in which they urge the court’s lack of jurisdiction over the subject matter of the action. In our opinion the trial court correctly maintained the exception to the jurisdiction of the court and dismissed the suit.”

Accordingly, we conclude, as in Wood-ham, supra, that the exception to jurisdiction filed in the instant case is the proper procedural vehicle to put at issue the question as to whether the courts of Louisiana have the legal power and authority to hear and determine this cause.

Although we have determined that the trial court was without jurisdiction, we observe that the judgment sustaining the exception to jurisdiction should have allowed plaintiff leave to amend his petition so as to remove the objection if possible. As set forth in LSA-C.C.P. Articles 932 and 933, when the grounds of the objections pleaded in either the declinatory or dilatory exception may be removed by amendment of the petition or other action of the plaintiff, “. . . the judgment, sustaining the exception shall order the plaintiff to remove them within the delay allowed by the court.” If the grounds of the objection cannot be removed or, if the plaintiff fails to comply with an order requiring such removal within the delay allowed by the court, the suit will be dismissed. LSA-C. C.P. Articles 932 and 933.

In the instant matter the district court, after a hearing on the exceptions rendered judgment dismissing plaintiff’s suit at his costs. In our opinion the trial court erred in dismissing the suit without first affording the plaintiff an opportunity to cure the objection to jurisdiction, if he can, by an amendment to the petition. In particular, in not allowing him to amend his petition to seek workmen’s compensation benefits under Alabama law. See Louisiana Power and Light Company v. Ursin, 334 So.2d 559 (La.App. 4th Cir. 1976).

For the above and foregoing reasons the judgment of the trial court sustaining the exceptions to the court’s jurisdiction and dismissing plaintiff’s suit is reversed and this matter is remanded to the trial court with instructions to enter an order sustaining the exception of jurisdiction subject however to plaintiff being allowed a delay to be fixed by the trial court within which to amend his petition so as to remove the objection to jurisdiction if he can. All costs of this appeal to be assessed one-half to plaintiff-appellant and one-half to defendant-appellee. All other costs to await the final disposition of this matter.

REVERSED AND REMANDED.


author: DOMENGEAUX, Judge.

text:
    The MAY COMPANY, INC., Plaintiff-Defendant-in-Reconvention-Appellant, v. HEIRS OF Dessie SUMAGE, Defendant-Plaintiff-in-Reconvention-Appellee.
    No. 6058.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Amended and affirmed.

      Gahagan & Gahagan, by M. F. Gahagan, and J. M. “Pat” Henry, Natchitoches, for plaintiff-appellant.
    Lowther & Boone, by Robert C. Lowther, Jr., Many, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   DOMENGEAUX, Judge.

This was a suit for executory process brought by The May Company, Inc., against the Heirs of Dessie Sumage. The suit concerned a loan made to decedent and secured by a mortgage on her home. Defendant Exie Palmer reconvened, asking that the sale of the property be enjoined and that damages for wrongful seizure and attorney’s fees be awarded to her. Trial was had before the district judge, who granted the injunction and awarded plaintiff-in-re-convention the sum of $1,000.00 in damages and $750.00 as attorney’s fees. Defendant-in-reconvention took this appeal. We affirm the decision of the district judge, but feel constrained to make a reduction in the award of damages.

On July 5, 1968, Dessie Sumage, then 76 years old, granted a collateral mortgage on her home to the Friendly Finance Company in the amount of $3,697.00 in connection with a loan made to her that same day. She refinanced the loan on June 28,1974, at which time a new promissory note was executed. The principal amount of the loan was $2,550.00, payable in 120 monthly installments of $45.95. The mortgage contained the usual confession of judgment, pact de non alienando, waiver of appraisement, notice, etc.

For the first six months she paid the exact amount due, all in advance. Then she began to pay erratically, in varying amounts, sometimes more and sometimes less than the installment amount of $45.95. This pattern continued until her death on November 1, 1976.

Before her death Mrs. Sumage had paid her November installment, and the next payment was due on November 28, 1976. Her sole legatee, Exie Palmer, made a visit to the President and Manager of The May Company (which is the holder in due course of the note) to make arrangements to continue paying the obligation. However, he was not available at that time.

On November 8, 1976, The May Company filed this suit, praying for seizure and sale of the property. Service of the notice of seizure was made on a curator ad hoc and seizure was effected November 27, 1976.

The petition of The May Company alleged the following:

“ . . . That there is a balance due on said note of $2,403.23 with 18% per an-num interest from October 7, 1976 to October 7, 1977, and thence with 8% per annum interest from October 7, 1977, until paid .
. . . That the said Heirs of Dessie Sumage have refused to pay the note in spite of amicable demand, and petitioner desires to treat said note as entirely due and exigible . .

Executory process is a harsh remedy, and the party using it must strictly comply with the letter of the law governing this severe remedy. First National Bank of Lafayette v. Gaddis, 250 So.2d 504 (La.App. 3rd Cir. 1971), and Slidell Building Supply, Inc. v. I.D.S. Mortgage Corporation, 273 So.2d 343 (La.App. 1st Cir. 1972).

Article 2637 of the Louisiana Code of Civil Procedure (hereinafter the Code) states that the proof of breach of the mortgage need not be submitted in authentic form. It may be proved by verified petition or affidavit. According to Article 2634 of the Code, the petition must be in compliance with Article 891, which states in part:

“Art. 891. Form of petition

. It shall set forth the name, surname, and domicile of the parties; shall contain a short, clear, and concise statement of the object of the demand and of the material facts upon which the cause of action is based; and shall conclude with a prayer for judgment for the relief sought. Relief may be prayed for in the alternative.”

The petition in the instant suit does not satisfy these requirements. Nowhere do we find an allegation that the obligation is in default and that it is due. Therefore, the defendant-in-reconvention has failed to offer the requisite proof of his demand under the Code.

The district judge awarded to plaintiff-in-reconvention $1,000.00 for humiliation, mental anguish, inconvenience, and trespass. She is entitled to such damages, but only if proven. See Moses v. American Security Bank of Ville Platte, 222 So.2d 899 (La.App. 3rd Cir. 1969). Upon review of the minimal evidence introduced in the record, we find that damages to the extent awarded were not adequately proven. Mrs. Palmer testified in effect that she was surprised that the proceedings were filed and that she was upset thereby.

This was the only substantial evidence offered, and while it does show Mrs. Palmer suffered humiliation, we do not feel that it warrants an award of $1,000.00 in damages. Therefore, we reduce that award to the sum of $200.00.

Attorney’s fees are allowable in wrongful seizure cases. See Smith v. Atkins, 218 La. 1, 48 So.2d 101 (1950). We find no abuse of discretion in the award of $750.00 as attorney fees.

For the assigned reasons the judgment of the district court awarding plaintiff $1,000.00 in damages for humiliation, trespass, inconvenience, and mental anguish, is reduced to the amount of $200.00. In all other respects, the judgment appealed from is affirmed. Costs are cast against appellant.

AMENDED AND AFFIRMED.

      . Art. 2637. Evidence which need not be authentic
      Evidence as to the proper party defendant, or as to the necessity for appointing an attorney at law to represent an unrepresented defendant, or of the breach or occurrence of a condition of the act of mortgage or privilege maturing the obligation, need not be submitted in authentic form. These facts may be proved by the verified petition, or supplemental petition or by affidavits submitted therewith.
      If a mortgage sought to be enforced secures the repayment of any advances made by the holder of the mortgage note for the payment of taxes, insurance premiums, or special assessments on, or repairs to, or maintenance of, the property affected by the mortgage, the existence, date, and amount of these advances may be proved by the verified petition, or supplemental petition, or by affidavits submitted therewith.
      A presumption of the judicial acceptance of the succession of the debtor by his heirs or legatees is established by a certified copy of the judgment of possession, recognizing these heirs or legatees and sending them into possession of the property of the deceased.
      A presumption of the administration of the property by the legal representative of the debtor at the time of the institution of the executory proceeding is established by a certified copy of the letters issued by the court which has appointed or confirmed the legal representative. As amended Acts 1964, No. 4, § 1.

      . Art. 2634. Petition
      A person seeking to enforce a mortgage or privilege on property in an executory proceeding shall file a petition therefor, praying for the seizure and sale of the property affected by the mortgage or privilege. This petition shall comply with Article 891, and the plaintiff shall submit therewith the exhibits mentioned in Article 2635.


author: ROGERS, Judge.

text:
    GUARANTY BANK & TRUST COMPANY, Plaintiff-Appellee, v. Ronnie HOGGINS, Defendant-Appellant.
    No. 6059.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Logan & deLaunay by Keith States, Lafayette, for intervenor-appellant.
    Fontenot, Gautreaux & Andrus by Vance R. Andrus, Lafayette, for plaintiff-appellee.
    John P. Showers, Lafayette, for defendant-appellant.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   ROGERS, Judge.

Intervenor, Magnifique Volkswagen, Inc., appeals the summary judgment of the district court, dismissing the intervention of Magnifique Volkswagen, Inc. insofar as it seeks to dissolve the contract allegedly entered into between intervenor and the defendant, Ronnie Hoggins, for failure of Hoggins to pay the agreed upon contract. The judgment also reserves to the interve-nor any rights that he may have by virtue of privilege for work performed on the Volkswagen vehicle in question. The trial judge also denied the motion for summary judgment filed by intervenor.

The facts are uncontroverted. Ronnie Hoggins owned a 1973 Volkswagen which he mortgaged to plaintiff, Guaranty Bank and Trust Company on July 11, 1975, for $2,372.40.

In May of 1976, defendant brought the Volkswagen to intervenor to purchase an engine and have it installed. Intervenor sold defendant an engine and installed it in defendant’s Volkswagen for the price of $500.19.

Defendant did not pay intervenor for the engine and its installation, so intervenor retained physical possession of the vehicle until the same was seized under a writ of sequestration as a result óf a suit filed by plaintiff on October 4, 1976 against defendant.

On October 20, 1976, Magnifique Volkswagen, Inc. intervened seeking a judicial dissolution of the sale of the engine for failure to pay the purchase price.

We believe that the issue here is whether or not the intervenor has a superior right to dissolve the sale for the non-payment of the purchase price over the right of the plaintiff who is mortgagee of the chattel mortgage on the vehicle, executed by defendant prior to the installation of the engine in defendant’s vehicle by intervenor.

The intervenor urges it has a right of dissolution of the sale, and the right to a return of the engine under the provision of Louisiana LSA-C.C. Article 2561, which reads in pertinent part:

“If the buyer does not pay the price the seller may sue for the dissolution of the sale.”

We agree with the intervenor that the Civil Code under Article 2561 provides for a remedy for the dissolution of a sale for the non-payment of the price, however, the right in this instance is not available to him because of the right of accession granted plaintiff under Louisiana C.C. Article 498.

Plaintiff argues that the installation of the engine in the vehicle would be subject to the rule of accession because, once installed, it would lose its separate identity, and become part of the movable itself.

In Roberts v. Williams, 99 So.2d 392 (La.App. 2nd Cir. 1957), the holder of a vendor’s lien and chattel mortgage prayed for and procured the issuance of an order of execu-tory process under which the mortgaged automobile was seized by the sheriff. On the date of the seizure, the automobile was in the possession of the intervenor who had installed universal joints and gears, fixed to the automobile by the use of nuts and bolts, subsequent to the date of the note and chattel mortgage. The intervenor brought suit to enjoin the plaintiff’s seizure and sale of the mortgaged vehicle on the basis that it had not been paid for, the parts and labor, and that it was the owner and had retained possession of the joints, gears, nuts, bolts, et cetera. The court held that under Articles 498 and 522 of the Civil Code, the intervenor, by installing the parts in and affixing them to the mortgaged automobile forfeited its title and right as owner of those parts, and that the parts which had become attached to the automobile became a part of the automobile by virtue of the right of “accession”.

Similarly, in General Motors Acceptance Corporation v. Madden, 331 So.2d 882 (La.App. 2nd Cir. 1976), the defendant was an automobile repairman. The automobile had a prior recorded chattel mortgage. Repairs were necessary, and the defendant replaced the engine in the automobile. Subsequently, the plaintiff (holder of the prior recorded chattel mortgage) obtained a judgment due to the default of the debtor, and had the sheriff attempt to seize the automobile, which was at the defendant’s garage. Inasmuch as the defendant had not been paid, he removed the engine and other parts which he had placed into the automobile before allowing it to be taken from his possession. An action was brought by the plaintiff in tort to recover damages against the defendant. The Court stated that:

“Once Madden [the defendant] affixed or installed parts [the engine] on or in the Harris vehicle, these parts became an integral part of that automobile.”

As such, they lost their individual existence, and relegated the defendant to a lien and privilege against the automobile. This privilege, of course, was inferior to the pri- or recorded chattel mortgage. The Court ruled that the defendant’s actions were tor-tious because the parts had become integrated with and a part of the automobile, and no longer belonged to the defendant, regardless of whether or not the price was paid.

In a similar situation, in McVay v. McVay, 318 So.2d 660 (La.App. 3rd Cir. 1975), the Court held that the mere installation of tires onto an automobile made them become an integral part of the automobile, and they lost their individual flavor as separate parts of the automobile.

We agree with plaintiff that under the authorities cited supra, the interve-nor has lost his right to dissolve the sale of the engine because of accession. The action for dissolution of the sale can be maintained only if the object itself, and in this case the engine, remained a separate entity. Since the engine cannot be regarded a separate entity, the parties cannot be returned to their original position. However, holding to this belief, we further assert that interve-nor’s remedy is that of a lien or repairman’s privilege which is inferior to the chattel mortgage previously executed. (The record discloses that the vehicle was sold at sheriff’s sale.)

In the event plaintiff’s claim was fully satisfied as a result of the sheriff’s sale of the vehicle, then intervenor will be entitled to the balance of the sale price, if any, limited to that amount of its proven claim under LSA-C.C.P. Article 2373.

For the reasons assigned, this court affirms the judgment of the trial court and casts costs of the trial court to defendant and costs of this appeal to intervenor.

AFFIRMED.

      . LSA-C.C. Article 498.
      “The ownership of a thing, whether it be movable or immovable, carries with it the right to all that the thing produces, and to all that becomes united to it, either naturally or artificially.”
      “This is called the right of accession."

      . LSA-C.C.P. Article 2373 — Distribution of proceeds of sale.
      After deducting the costs, the sheriff shall first pay the amount due the seizing creditor, then the inferior mortgages, liens, and privileges on the property sold, and shall pay to the debtor whatever surplus may remain.


text:
    Mason QUINNEY, Plaintiff-Appellee, v. MARYLAND CASUALTY CO. et al., Defendants-Appellants.
    No. 6062.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    See also, La.App., 344 So.2d 1186.

      Gist, Methvin & Trimble by David A. Hughes, Alexandria, for defendants-appellants.
    William E. Skye, Antoon & Dalrymple by Thomas A. Antoon, Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   ROGERS, Judge.

This is an appeal from a judgment holding defendants, Lloyd N. Moreau, Inc. and Maryland Casualty Company, liable for total and permanent workmen’s compensation benefits to plaintiff, Mason Quinney, Jr., for injuries sustained on October 4, 1974.

This workmen’s compensation suit was consolidated with a tort suit filed by plaintiff against United States Fidelity & Guaranty Company and Lessie Brister relative to the same incident, however, the tort suit was dismissed.

The plaintiff, Mason Quinney, was employed by defendant, Lloyd N. Moreau, Inc. (hereinafter referred to as Moreau), as a plasterer and as such was working on October 4, 1974, on a job for Moreau. Moreau was the subcontractor of a general contractor performing major renovation and remodeling at the MacArthur Village Shopping Center located in Alexandria, Louisiana.

On this particular job, plaintiff was the foreman of a crew doing plastering work in one of the buildings in the shopping center.

On the day of the accident, Mrs. Lessie T. Brister drove her Cadillac El Dorado car into a hole in the parking lot near the job site at the shopping center.

The rear wheels of her vehicle rested in a place where flowers and/or shrubbery were to be planted. That place was bordered by cement curbing.

Because of this, Mrs. Brister was unable to remove her car under its own power. It is unclear whether plaintiff was compelled to the site of the accident by conscience upon viewing a lady in distress, or was removed by her specific request for assistance. In any event, plaintiff and his crew obliged, and with the help of a jack, extricated Mrs. Brister’s Cadillac from the hole. At some point following this maneuver, plaintiff’s right knee was struck by the vehicle. There is no dispute that plaintiff’s knee was injured by the vehicle.

The only issue is whether plaintiff’s accident arose out of and in the course of his employment under the provisions of LSA-R.S. 23:1031.

Defendants contend that plaintiff injured his knee on the rear bumper while trying to hold back the car, after the jack relieved the rear end of the Cadillac from the hole and lunged toward a building in the shopping center.

Plaintiff contends that after he jacked up the car and the car was removed from the hole, he completed his mission as a good Samaritan and began to walk back to work when the Cadillac he was passing alongside struck him on the knee and caused his injury.

Defendants deny that the accident arose out of or occurred within the course and scope of plaintiff’s employment and further allege that at the time of this accident, he had abandoned and/or deviated from his employment. The exception of no right or cause of action alleging this was referred to the trial on the merits.

At this point in our opinion, we incorporate and adopt a part of the district judge’s reasons for judgment as follows:

“The serious question of law presented by the circumstances of this case is the determination of whether this injury arose out of and during the course of Mason Quinney’s employment. The Louisiana Supreme Court in Kern v. Southport Mill, 174 La. 432, 141 So. 19 (1932) held that “an accident occurs in the course of employment when it takes place during the time of such employment”. It is not disputed that the injury in question here occurred during the time of Mr. Quinney’s employment. The critical issue is whether Mr. Quinney’s departure from the work area to go to the aid of Mrs. Brister removed him from the protection of the workmen’s compensation act.
Deviation from normal duties in order to assist third persons does not automatically resolve the “arising out of” issue adversely to a claimant. See Edwards v. Louisiana Forestry Commission, 221 La. 818, 60 So.2d 449 (1952), Lewis v. Bellow, 212 So.2d 540 (La.App. 3rd Cir. 1968), Malone v. Plaisance Wholesale Grocery, 146 So.2d 853 (La.App. 3rd Cir. 1962). An analysis of these cases reveals that in addition to a humanitarian intent a good Samaritan’s aid to a third party must at least partially benefit his employer in order for an injury to be considered incidental to or arising out of employment. In the instant case, while it is true that the plaintiff was acting as a good Samaritan he was also acting as a part of the overall construction project which was responsible for the existence of a dangerous unmarked hole in the parking lot. Admittedly his employer was not involved in the parking lot portion of this project. The construction trade is a highly specialized industry and specialists of every genre are required to combine their efforts to complete a project. Where a business guest of the owner is placed in distress by the fault of one contractor working on a project, it would be unreasonable to expect a debate over which contractor’s employee should go to her aid.
The claimant was the foreman of the plastering crew. Although he was unable to read plans, his employer entrusted projects to his supervision when they were close enough to the home office for Mr. Moreau to conveniently explain the blueprints. In Mr. Moreau’s absence Mr. Quinney was in charge because he had demonstrated his ability to use his discretion in a manner pleasing to his employer. Had Mr. Moreau directed Mr. Quinney and the other employees to assist Mrs. Brister the injury would clearly be com-pensable. Baugh v. Scotland Lumber Company, 5 La.App. 348 (1st Cir. 1926). In the opinion of the Court the result should not be otherwise when a foreman either directs others or goes himself to do what he reasonably expects his employer would have directed him to do had he been present.
For the above reasons, this Court finds that plaintiff’s injuries arose from his employment as he had not deviated therefrom.
In any case, at the time plaintiff was injured he was either walking toward the building where he was working, which was only a few feet away, or attempting to prevent damage to that building by the rolling car. Therefore, even if Mr. Quinney’s mission were considered a temporary deviation from the course of his employment, he is entitled to workmen’s compensation under the doctrine of a reentry because he had completed his mission and begun to return to his normal duties. Castille v. Traders & General Insurance Company, 137 So.2d 396 (La.App. 3rd Cir. 1962), Stubbefield [Stubblefield] v. Fidelity & Casualty Company of New York, 157 So.2d 583 (2nd Cir. 1963).
In view of the close questions presented by this case, plaintiffs claim for statutory penalties and attorney’s fees is denied.”

Although the trial judge did not make specific findings of fact, his conclusion in finding that the plaintiff’s claim was compensable makes it apparent that he believed that the accident occurred as was testified to by the plaintiff and his witnesses. We are mindful of the great weight to be placed on the factual findings and conclusions of the district judge, which includes a determination of the credibility of the witnesses who testified.

Our review of the record shows that there is a reasonable evidentiary basis that the plaintiff’s action in aiding Mrs. Brister was a temporary deviation from the course of his employment, and that the temporary deviation was completed; and further that plaintiff had begun to return to his normal duties under the doctrine of re-entry as elucidated upon in Stubblefield v. Fidelity and Casualty Company of New York, supra.

As was stated in Castille v. Traders & General Insurance Company, supra, an appellate court should not reverse the trial court in a workmen’s compensation case where no manifest error exists. In the instant case we find that the trial judge’s analysis was well reasoned and certainly is not manifestly erroneous. See also Canter v. Koehring Company, 283 So.2d 716 (La.1973).

No issue is made concerning the severity of plaintiff’s injury. Suffice it to say that his injury was such that he is totally and permanently disabled within the meaning and context of the workmen’s compensation law as it existed at the time of the accident.

For the reasons assigned, the judgment of the district court is affirmed. Costs are assessed against defendants in equal proportions.

AFFIRMED.


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    AETNA INSURANCE COMPANY et al., Plaintiffs-Appellees, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY et al., Defendants-Appellants.
    No. 6065.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.

      Edwards, Stefanski and Barousse by James M. Cunningham and J. Michael Ste-fanski, Crowley, for defendants-appellants.
    Pugh, Buatt, Landry & Pugh by John F. Craton, Crowley, for plaintiffs-appellees.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   GUIDRY, Judge.

This suit arises out of an automobile accident which occurred on December 3, 1975, at approximately 1:30 P.M., in the Parish of Lafayette on Louisiana Highway 35. Plaintiff, Aetna Insurance Company (hereinafter referred to as “Aetna”), the subrogated collision insurer, seeks to recover reimbursement for the amount it paid to its insured, Sidney Hayes, as a result of damage sustained by the insured’s vehicle in the accident. Sidney Hayes, also joined in the petition seeking to recover the $100.00 deductible portion under the collision policy. Plaintiffs allege that the accident between Sidney Hayes, a left turning motorist, and Benita Thibodeaux, an overtaking motorist, was caused solely and proximately by the negligence of the latter. Made defendants are Sidney Thibodeaux, husband of Benita Thibodeaux, and Southern Farm Bureau Casualty Company (hereinafter referred to as “Southern Farm”), liability insurer of the Thibodeaux vehicle. The defendants filed an answer generally denying the allegations of plaintiffs’ petition and pleaded the contributory negligence of Sidney Hayes as a bar to recovery. Southern Farm, the subrogated collision insurer of the Thibodeaux vehicle, and Sidney Thibo-deaux, Southern Farm’s insured, reconvened. In reconvention Southern Farm seeks to recover reimbursement for the amount of property damage suffered by the Thibodeaux vehicle and Sidney Thibodeaux seeks to recover the $50.00 deductible under the Southern Farm policy. Defendants (plaintiffs in reconvention) claim that the negligence of Sidney Hayes was the sole and proximate cause of the accident. Plaintiffs (defendants in reconvention) answered generally denying the allegations of fact set forth in the reconventional demand.

At the time of trial it was stipulated by the parties that repairs to Sidney Hayes’ 1973 Chevrolet Pickup Truck amount to $701.10 and that plaintiff, Aetna, was the holder of a subrogation receipt from Sidney Hayes in the amount of $601.10. It was further stipulated that repairs to Sidney Thibodeaux’s 1970 Chevrolet amount to $467.00 and that defendant, Southern Farm, was the holder of a subrogation receipt from Sidney Thibodeaux in the amount of $417.00. After trial the district court rendered judgment in favor of Aetna in the sum of $601.10 and in favor of Sidney Hayes in the sum of $100.00 and against the defendants, Sidney Thibodeaux and Southern Farm. The trial court dismissed the defendants’ reconventional demand. Defendants appeal.

Sidney Hayes, the only witness called on behalf of the plaintiffs, testified that just prior to the accident he was traveling in a northerly direction on Louisiana Highway 35, in between Rayne and Kaplan. His testimony reveals that on the date of the accident the blacktop surface of the highway was under repair. Also the highway shoulders had been graded leaving a mound of dirt running parallel along the highway. Hayes stated that this mound or levee of dirt was, approximately two or three feet off the blacktop surface. Hayes’ testimony reveals that he was traveling at near 45 miles per hour when he crossed a small bridge about 500 feet from the intersection where he intended to turn left. As he crossed the bridge he prepared to turn onto a shell road to his left. He slowed down, engaged his left turn signal and later applied his brakes. He stated that he had previously noted the Thibodeaux vehicle was a distance behind him. When about 50 feet from his turn he again looked in his rear view mirror and saw that the Thibo-deaux vehicle was just crossing the bridge. At that point Hayes estimated that the Thibodeaux vehicle was approximately 400 feet behind him. Just prior to the execution of his left turning maneuver Hayes again looked to his rear and saw that the Thibodeaux vehicle was some 200 feet behind him. Hayes stated that he was constantly aware of the presence of the Thibo-deaux vehicle and could see no reason why he would not have been able to safely make his turn. Hayes began his left turn and as his front wheels entered the highway’s shoulder he came to a near stop in order to cross over the ridge of dirt. Immediately thereupon the Thibodeaux vehicle collided into the left front fender and bumper. Hayes stated that he noticed the Thibo-deaux vehicle was traveling very fast.

Mrs. Benita Thibodeaux was the only witness called on behalf of the defendants. She stated that as she went to pass the Hayes vehicle it suddenly turned into her. She saw no operating lights on the Hayes automobile. Mrs. Thibodeaux admitted however, that when she crossed the bridge the Hayes vehicle was approximately 400 feet in front of her. She further admitted that the position of the vehicles at the time of the accident was as testified to by Sidney Hayes, and that she had collided with the left front of the Hayes’ vehicle.

Appellants contend that the trial court erred in concluding that the sole and proximate cause of the accident was the negligence of Mrs. Thibodeaux. More particularly, appellants contend that the trial court erred in finding that Mrs. Thibodeaux was traveling too fast during her passing maneuver and in finding that Mrs. Thibodeaux passed at a time when it was unsafe to do so. Secondly, appellants contend Sidney Hayes had a duty to ascertain in advance that he could safely make his left turn without endangering the overtaking motorist and that the trial court erred in not finding Sidney Hayes had breached this duty.

We consider the appellants’ contentions in reverse order. The jurisprudence of this state is well settled that a motorist who attempts to make a left turn from a public highway is required to ascertain in advance that the way is clear and that the turn can be made safely and without endangering overtaking or oncoming traffic. The failure of a left turning motorist to make such a determination and to exercise the required degree of caution before undertaking to make such a turn constitutes negligence. Sonnier v. Hardware Mutual, 242 So.2d 900 (La.App. 3rd Cir. 1971). The duty of the left turning motorist is two-fold, first to give a proper signal, and secondly to make proper observation that the turn can be made without endangering oncoming or overtaking vehicles. Bamburg v. Nelson, 313 So.2d 872 (La.App. 2nd Cir. 1975).

However, it is likewise well established that a motorist in judging whether a left turn can be made in safety has the right to assume that the following traffic will observe all the duties imposed upon it by law and common sense and is keeping a proper lookout. Faulkner v. Ryder Tank Lines, Inc., 135 So.2d 494 (La.App. 2nd Cir. 1961) writs denied February 2, 1962; Worley v. Heinen, 280 So.2d 301 (La.App. 1st Cir. 1973), writs refused September 14, 1973.

After examination of the record, in light of these well established jurisprudential rules, we are of the opinion that the evidence clearly shows that Sidney Hayes took every precaution in executing his left turn. He made close observation of the Thibodeaux vehicle 200 feet to his rear, gave a proper and timely left turn signal, applied his brakes and only then did he begin to carefully negotiate his turn to the left, where he momentarily stopped to cross over the ridge of dirt. In this regard the conclusion of the trial court that Sidney Hayes had begun his turning maneuver at a substantially great distance before the vehicle being driven by Mrs. Thibodeaux had began her passing maneuver is reasonably supported by the evidence. We find no merit in appellants’ contention that the plaintiff, Sidney Hayes breached his duty in failing to ascertain in advance that the way was clear and that the turn could be made safely without endangering overtaking traffic. The trial court correctly found that Sidney Hayes was not guilty of any negligence.

We next consider appellants’ contention that the trial court erred in concluding that the sole and proximate cause of the accident was the negligence of Mrs. Thibo-deaux. We find no merit in this contention.

The evidence supports the finding of the trial judge that Mrs. Thibodeaux was operating her vehicle at an excessive rate of speed and in an unsafe manner. She was inattentive. The physical facts bear this out. Mrs. Thibodeaux admitted being 400 feet behind the Hayes vehicle when it was only 50 feet from its turn. She was then 200 feet to its rear when Hayes began his turning maneuver. Thereafter, as Mrs. Thibodeaux admitted, she hit the left front of the Hayes vehicle at a point some two or three feet off the highway’s surface. Quite obviously Mrs. Thibodeaux failed in her duty to keep proper control of her vehicle and to maintain a proper lookout. The facts clearly show as mentioned herein-above that Hayes had begun his turning maneuver at a time when Mrs. Thibodeaux, who had not yet begun her passing maneuver, was still some 200 feet to the rear.

We agree with the trial court’s conclusion that Mrs. Thibodeaux was not only attempting a passing maneuver at a time when it was unsafe but was also traveling at an excessive rate of speed considering the prevailing conditions. Accordingly, we find, as did the trial court, that the sole and proximate cause of the accident was the negligence of Mrs. Benita Thibodeaux.

For the above and foregoing reasons the judgment appealed from is affirmed. All costs of this appeal are to be borne by Southern Farm Bureau & Casualty Company and Sidney Thibodeaux.

AFFIRMED.


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    Leisa Miller GEORGE, Plaintiff and Appellant, v. Dr. Joseph A. GEORGE, Defendant and Appellee.
    No. 6066.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.

      Clement Story, III, Lafayette, for plaintiff and appellant.
    Deshotels & Deshotels by O. H. Deshotels, Jr., Kaplan, for defendant and appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   DOMENGEAUX, Judge.

The chronology of events between the parties to this appeal, formerly husband and wife, is as follows:

1. Mrs. George filed a suit for legal separation against Dr. George in the 15th Judicial District Court of Louisiana, in and for Acadia Parish, Louisiana, on August 16, 1972, under Civil Docket No. 35,455 of that court. On September 7, 1972, judgment was entered in her favor decreeing a legal separation between the parties and further ordering Dr. George to make alimony payments in the amount of $600.00 per month. He was further ordered to pay certain mortgage payments on the community home and on a 1970 Cadillac automobile. Further he was ordered to pay monthly utility bills for a period of two years, after which time his alimony payments would increase to the sum of $800.00 per month; further, after two years, he was to continue making the aforementioned mortgage payments and monthly utility bills. (The record is devoid of any evidence which tends to show the unpaid balance on the home and on the automobile.)

2. On June 7, 1973, the parties entered into a “partition and settlement” in Acadia Parish, Louisiana, which, among other provisions, declared that in order to equalize the division and partition, Dr. George obligated himself to pay to Mrs. George a specified amount of cash, plus $600.00 per month and certain utility and telephone bills for a thirty-month period after which time the amount would increase to $800.00 per month with a continuation of the payment of the utility bills by Dr. George.

Dr. George further obligated himself to pay the mortgage payments on the former community residence.

3. After the passage of one year and two months, Dr. George filed suit for a divorce against Mrs. George in the 14th Judicial District Court of Louisiana, in and for Calcasieu Parish, based on the prior judgment of separation which was granted in the 15th Judicial District Court. Personal service was made on Mrs. George. On December 13,1973, Dr. George obtained the judgment of divorce by default against Mrs. George. The divorce proceedings including the judgment was silent as to alimony, support, or maintenance.

4. On April 5, 1976, Mrs. George filed a petition for declaratory judgment in the 15th Judicial District Court of Louisiana (in Docket No. 35,455 which was the original docket number in the separation suit previously referred to) praying for a declaration of her rights emanating from the monthly obligations which Dr. George had undertaken in the aforementioned partition and settlement of June 7,1973, and averred that she should be entitled to the sum of $800.00 per month. Dr. George answered the suit, denying obligation or responsibility thereunder, and filed a reconventional demand and a third party action. Mrs. George answered the reconventional demand. (In view of our decision herein, it is unnecessary to elaborate upon the nature of the reconventional demand and third party action.)

5. During the pendency of the aforementioned declaratory judgment proceedings, Mrs. George proceeded by rule under the same docket number 35,455 of the 15th Judicial District Court in and for Acadia Parish, Louisiana, alleging that Dr. George was in arrears by some $7,800.00 from the alimony award judgment of September 7, 1972, praying that he be cited for contempt and that the amount in arrears be made executory.

The rule was tried on September 17,1976, in the Acadia Parish Court and judgment was granted in accordance with the following stipulation between the parties:

STIPULATION
BY MR. STORY: [attorney for Mrs. George]
Joseph A. George is to pay the sum of $650.00 a month, beginning September, 1976, until such time as we relitigate the question of alimony.
Joseph A. George is to bring up to date from the day of the last payment, from June until today, bring up to date the money owed to her at $650.00 per month, and he shall continue to pay the house note.
The action, petition for declaratory judgment, is dismissed as a non-suit, and either party will within a reasonable time file the question of alimony owed now and in. the future.
BY MR. DESHOTELS: [attorney for Dr. George]
This agreement is subject to a suit for alimony being filed by Mrs. George within the next thirty days.”

6.Mrs. George then filed a rule for recognition of the alimony granted her in the aforementioned separation suit to which rule Dr. George filed exceptions of no cause and no right of action. The court maintained Dr. George’s exceptions on the basis that whatever alimony payments awarded her under the separation suit terminated as of the time of the divorce between the parties, citing the cases of Kennedy v. Kennedy, 261 So.2d 657 (La.App. 4th Cir. 1972), and Vetter v. Vetter, 299 So.2d 899 (La.App. 2nd Cir. 1974).

Mrs. George has appealed, alleging that the district judge erred:

A. In ruling that her alimony award from the separation suit terminated with the subsequent divorce;

B. In not taking into consideration the so-called ratification by Dr. George of the alimony award in the partition and settlement agreement.

Although the appellant contends that the alimony award granted her in the separation proceedings was of a permanent nature, it was not. It was alimony penden-te lite under the provisions of Article 148 of the Louisiana Civil Code. It is well settled in our jurisprudence that alimony pendente lite, both for the wife and any minor children, terminates with a judgment of divorce. Therefore, Mrs. George’s support award contained in the separation judgment terminated when the judgment of divorce was signed. Worley v. Worley, 247 So.2d 254 (La.App. 3rd Cir. 1971); Fellows v. Fellows, 267 So.2d 572 (La.App. 3rd Cir. 1972); Kennedy v. Kennedy, supra, Vetter v. Vetter, supra, and the numerous cases cited therein.

Under the above referred to jurisprudence, inasmuch as the divorce judgment in this case abated the entire separation suit, including the incidental alimony award therein, following the divorce, Mrs. George may no longer proceed under the separation judgment which granted her alimony. She could have made an alimony claim under Article 160 of the Louisiana Civil Code as an incident to the divorce suit prior to rendition of the judgment of divorce. This she failed to do. Her only remedy now is a separate action against her former husband under the provisions of Article 160 of the Louisiana Civil Code.

Appellant in oral argument to this court expressed concern that the judgment of the trial court appears to adjudicate the rights of the parties under the agreement of ‘partition and settlement’ dated June 7, 1973, and specifically that portion thereof which purportedly grants to plaintiff alimony in the sum of $800.00 per month. As aforestated, the rule filed by plaintiff-appellant only sought arrearages in alimony allegedly due under the separation judgment of September 7, 1972, no reference in said rule being made to any obligation of defendant-appellee under the settlement agreement. At the time said rule was filed the action seeking a declaratory judgment regarding the rights of the parties under the settlement agreement had been dismissed as of non-suit pursuant to stipulation of the parties. Under these circumstances, although some reference is made to the settlement agreement in the trial court’s reasons for judgment and in the formal judgment appealed from, clearly an adjudication of the rights of the parties under this agreement was neither intended nor decreed and is not now before us. Whatever rights Mrs. George may have under the so-called partition and settlement must of necessity be adjudicated in a separate action.

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

AFFIRMED.