author: LOTTINGER, Judge. BLANCHE, Judge

text:
    Kenneth W. HUGHES v. SOUTHEASTERN FIDELITY INSURANCE COMPANY et al.
    No. 10465.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Rehearing Denied April 12, 1976.
    Writ Granted June 4, 1976.

      R. Bradly Lewis and John S. Anthony, Bogalusa, for appellant.
    Donald M. Fendlason, Bogalusa, for ap-pellees.
    Before LANDRY, ELLIS, BLANCHE, LOTTINGER and EDWARDS, JJ.
   LOTTINGER, Judge.

This is a suit by Kenneth W. Hughes to recover property damages sustained when his automobile was rear-ended. Named defendants are Southeastern Fidelity Insurance Company, Jimmie Coleman and Albert D. Andrews. From a judgment in favor of the plaintiff, the defendant, Southeastern Fidelity Insurance Company, has perfected this appeal.

The record points out that on the day of the accident, Green Andrews borrowed Tom Cates’ truck in order to go fishing and let Cates use his car while he was using the truck. This was a common practice between the two parties; Green Andrews would utilize the pickup truck to make fishing trips and at other times Tom Cates and Green Andrews would borrow each other’s vehicle for the purpose of running errands.

It was during this particular swap of vehicles that Cates, without first obtaining permission of Andrews and while remaining a passenger therein, permitted Jimmie Coleman to drive the automobile. Coleman struck the Hughes vehicle which was parked on the shoulder of U. S. Highway 90 in St. Charles Parish, Louisiana, while Hughes was attempting to change a flat tire. There is no question but that Coleman was intoxicated at the time of the accident and his drivers license was expired.

The subject insurance policy was originally procured by Leonea Andrews’ son, Albert, for a 1960 Chevrolet owned by him. Later, Albert Andrews gave this car to his father, Green Andrews, for his use. Thereafter, the automobile became nonfunctional and Leonea Andrews bought Green Andrews a 1961 Chevrolet, and the insurance coverage on this 1960 model was then transferred to the 1961 Chevrolet. It is uncontested that even though the title to the insured automobile was in the name of Leonea Andrews, it was within the exclusive control of her husband, Green Andrews. Southeastern acknowledges coverage of the Andrews’ automobile and concedes that Green Andrews is the named insured for the purposes of this litigation, but denies liability on the grounds that Jimmie Coleman was driving the car without the permission of the named insurer and was, therefore, not an insured under the omnibus clause of the policy.

The Trial Judge, without stating reasons, cast Southeastern in judgment for $1,000.-00, obviously holding that Coleman had Andrews’ permission to drive the subject car. Neither Andrews nor Coleman was made subject to the judgment.

Southeastern contends that the Trial Judge erred in (1) finding that Jimmie Coleman was driving the Andrews’ vehicle with the permission of the named insured, and (2) failing to require plaintiff to establish his damages by a preponderance of the evidence.

The insurance policy in part provides:
“HI. Definition of Insured. With respect to the insurance for bodily injury liability and for property damage liability the unqualified word ‘insured’ includes the named insured and, if the named insured is an individual, his spouse if a resident of the same household, and also includes any person while operating the automobile and any other person or organization legally responsible for the operation thereof, provided the actual operation of the automobile is by the named insured or such spouse or with the permission of either. * * * ”

In order for the plaintiff to recover from Southeastern, it must be shown that the insured’s automobile was driven by Coleman with the permission of Andrews.

The record points out that Coleman did not have specific permission from Andrews. However, the Trial Judge obviously found that there was implied permission for Coleman to drive Andrews’ automobile, as plaintiff was allowed to recover under the policy. If permission is to be implied in the instant case, it is dependent upon whether or not, in considering all of the facts and circumstances surrounding the use of the insured’s automobile by the first permittee, it was foreseeable that the first permittee had authority to let another (second permittee) drive or use the insured automobile.

We conclude from reading the record that these two friends, Andrews and Cates, swapped vehicles quite often, and without necessarily seeking permission each time. Andrews testified that he did not give instructions to Cates as to the use of the car, nor did he tell him not to let someone else drive it. In fact, Andrews did not know Coleman at the time of the accident.

As Mr. Justice Summers said in American Home Assurance Company v. Czar-niecki, 255 La. 251, 230 So.2d 253, 257 (1969), rehearing denied (1970) :

“Where a general permission is granted or implied, a deviation from the contemplated route or distances to be traveled is more readily foreseeable than the act of a permittee in lending the automobile to another driver. We say this because ordinarily it may be understood that a person is more apt to exercise care in the selection of the driver of his car than in the selection of the route over which it is to be used by a .permittee. This is a human equation based upon the inference that, generally, a delegation of authority to drive a car imposes a more onerous responsibility than an understanding concerning use or the route to be traveled by one who borrows the car of another.” (Emphasis added.)

We feel it important to note that in Czarniecki, supra, when permission was sought by the first permittee, the owner was informed by the first permittee that he was double dating. Even with this knowledge our Supreme Court held that it was not foreseeable that the first permittee would allow another to drive the car. There is no indication in this record that Andrews knew anyone else would be with Cates and have the possibility of driving the car. Further, this record gives no indication that Andrews gave Cates even implied permission to allow someone else to drive the car, much less an intoxicated person to drive the car. Yes, Cates used the car frequently, without specifically asking permission, and without being instructed by Andrews as to the use of the car and who could or could not drive it, but we do not find that Andrews could foresee Cates allowing someone who was drunk to drive the car. If there would have been some 'showing-as to how.Cates used the car in the past, whether he ever used the car on double dates, whether he partied with the car, whether he ever allowed someone else to drive it, the plaintiff may have proven implied permission, but this he did not do, and it is not for this Court to grant him something he has not proven. We are of the opinion that the Trial Court was in error in finding for the plaintiff. Having reached this conclusion, there is no need to discuss the specification of error as to damages.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is reversed, and it is ordered that there be judgment in favor of the defendant-appellant, Southeastern Fidelity Insurance Company. All costs of this appeal are to be paid by plaintiff-appellee.

Reversed and rendered.

BLANCHE, J., dissents for reasons assigned.

EDWARDS, J., dissents for reasons assigned by BLANCHE, J.

BLANCHE, Judge

(dissenting).

I am unable to agree with the conclusion that considering all of the facts and circumstances surrounding the use of the insured’s automobile by first permittee (Cates) that it was not foreseeable that the first permittee had authority to let another (Coleman) drive or use the insured automobile.

Green Andrews and Tom Cates worked together and were friends. They often swapped vehicles for their own purposes such as running errands. There was no restriction placed by either on the use of the borrowed vehicle, and on this particular occasion it was Andrews who wanted Cates’ truck in order to go fishing. Andrews did not even know when Cates took his car or when he would bring it back. Under these circumstances, the conclusion is inescapable that he gave Cates his car to use as his own, for his own purpose, while he used Cates’ truck for his own purpose.

At some time during the afternoon in question and under the circumstances of the foregoing swap of the vehicles, Cates and his friend Jimmie Coleman went out visiting certain bars in the area. At which bar Coleman became drunk is not known by the majority, and for that matter may not even have been known by Cates, who also had been drinking and was riding on the back seat with Viola Williams at the time of the ill-fated accident. Nevertheless, the majority would deny coverage because it was not foreseeable that Cates would permit Coleman to drive Andrews’ automobile since Coleman was drunk. The converse of this position is that it would have been foreseeable for Cates to permit Coleman to drive the automobile had Coleman been sober.

However, it really does not matter whether Coleman was drunk or not or when he became drunk or even whether Cates knew he was drunk, because the initial permission given Cates implied he could use Andrews’ car as his own. Certainly this should include letting his friend Coleman drive while he was in the automobile and on the back seat with Viola Williams. The foreseeability of Coleman’s driving the borrowed vehicle under the foregoing circumstances should have been easily found.

Furthermore, the evidence relied upon by the majority to hold the use of the automobile by the second permittee was not with permission is all negative. For example, they say there was no indication in this record that Andrews knew anybody else would be with Cates and thus have the possibility of driving the car, and there was no indication that Andrews gave Cates even implied permission to allow someone else to drive the car, much less an intoxicated person.

Additionally, to find implied permission, they would require some evidence as to how Cates used the car in the past, i. e., whether he partied, allowed someone else to drive it, or used the car on double dates. Why should this type of evidence be necessary when the positive evidence shows that Andrews, after taking Cates’ truck to go fishing, left his car for Cates to use while he was using the truck? Under these circumstances, it would seem that Cates ought to be able to use Andrews’ car as his own since Andrews had taken his truck.

In the Second Circuit case of Hurdle v. State Farm Mutual Automobile Insurance Company, 135 So.2d 63 (La.App.2nd Cir. 1961), the named insured and a close friend frequently traded and gave each other the general and unrestricted use of their respective automobiles without limitation against the delegation of their use by others. At the time of the accident, one friend had borrowed the other friend’s car and left his own for his friend to use that night. As in the case before us, the friends in the Hurdle case swapped cars frequently for their own purposes. The Court held that this evidence established that the original permittee had the automobile owner’s permission to make whatever use he desired of the automobile, which included the right to let others use the same.

Unquestionably, it is well established in our jurisprudence that the named insured’s grant to an original permittee of more or less general discretion and continuous control over the insured vehicle carries with it the implied consent of the named insured for the original permittee to allow third persons to use it, and that a third person so using the car is considered as having the indirect and implied permission of the named insured to do so and thus becomes the insured under the omnibus clause. See 4 A.L.R.3rd 10, § 13, and a host of cases cited therein to this same effect.

For the above reasons, I would have found coverage and affirmed the judgment of the trial court.


source: Caselaw Access Project

author: LANDRY, Judge.

license: Public Domain

text:
    Clarence and Inez PRESTENBACH v. SENTRY INSURANCE COMPANY.
    No. 10594.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Rehearing Denied April 12, 1976.
    Writ Granted June 4, 1976.

      Daniel R. Atkinson, Baton Rouge, and E. Robert Sternfels, Napoleonville, for appellant.
    Wm. D. Hunter and Dale P. Martin, Morgan City, for appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Sentry Insurance Company (Appellant), appeals from judgment awarding Plaintiffs Clarence and Inez Prestenbach (Appellees) $40,000 each for the alleged wrongful death of Appellee’s son, Michael James Prestenbach, who was killed in a one vehicle automobile accident. The mishap occurred when a 1969 Ford Mustang, owned and driven by Appellant’s insured, Harley Blanco, Jr. (Blanco), left the highway at high speed and overturned in an adjacent borrow pit filled with water. We reverse and render judgment in favor of Appellant upon finding Decedent guilty of assumption of risk in riding with a driver whose driving ability was known to be impaired by consumption of alcohol.

The accident occurred at approximately 2:30 A.M., June 16, 1973, on U.S. Highway 90, in the vicinity of Morgan City, St. Mary Parish. Blanco, then approximately 19 or 20 years of age, was proceeding from Houma to Morgan City, Louisiana, accompanied by four friends in conclusion of a night of partying which commenced at approximately 8:00 P.M. Miss Juanita Kay Green, then approximately 16 years of age was seated in the right front bucket seat of the vehicle. Mark Joseph Banks, also 16 years of age at the time, was seated on the right of the rear seat. The left rear seat was occupied by Joe Marino, 18 years of age. Decedent, 18 years old, sat in the center of the rear seat.

The automobile left the highway and came to rest upside down in the water filled borrow pit. Blanco and Decedent drowned before they could be extricated from the vehicle. The remaining occupants escaped and survived to testify at trial. It is conceded that Blanco was negligent in driving at approximately 100 miles per hour and in losing control of his vehicle, apparently after striking a “hump” in the highway. Appellant’s coverage of the Blanco automobile is also conceded. The defense of this action rests solely on the contention that Decedent was contribu-torily negligent and/or assumed the risk of riding with Blanco whom Decedent knew or should have known to have been intoxicated to the extent that he could not safely operate a motor vehicle. Alternatively, Appellant maintains the awards of damages were excessive.

This appeal presents factual determinations which must be made in the light of well-established principles governing applicability of the assumption of risk doctrine (often referred to as contributory negligence) in instances where a guest passenger rides with a host driver whose mental and physical faculties are impaired because of alcoholic consumption. Our jurisprudence is well established to the effect that a person, who voluntarily rides with a driver who is intoxicated to the extent that the driver has lost control of his normal physical and mental faculties, may not recover for injuries sustained in an ensuing accident where the injured plaintiff knows or has reason to know of the driver’s intoxication and where the alcohol induced impairment of the host driver’s driving ability contributes substantially to the occurrence of the accident. Marcotte v. Travelers Insurance Company, 258 La. 989, 249 So.2d 105; Jones v. Continental Casualty Company of Chicago, Illinois, 246 La. 921, 169 So.2d 50; Magee v. McCree, La.App., 278 So.2d 587; Church v. Allstate Insurance Co., La.App., 242 So. 2d 646.

The record discloses that at about 8:00 P.M. on June 15, 1973, Blanco and Banks left work at a Morgan City supermarket in Blanco’s automobile. The two young friends went directly to a nearby liquor store and each purchased a fifth of strawberry wine containing 9% alcohol. Blanco then drove around town for a while during which interval Blanco drank half of his fifth of wine and Banks drank the remaining half of Blanco’s bottle as well as all of Banks’ own bottle. Blanco then drove to his home where he changed clothes and telephoned two other friends, namely, Decedent and Joe Marino, both of whom Blanco picked up in his car. Banks testified that the group of four purchased three additional bottles of wine which the friends consumed in more or less equal portions. Marino denied any wine was purchased after he was picked up. Apparently, Marino was the last to be picked up because he testified that the group had two or three bottles of wine in the car when they came to his house. Marino also testified that most of the wine had been consumed before he joined the group. At approximately 10:00 P.M. Blanco drove to a roadside hamburger stand where the group ordered and consumed some food, presumably a large hamburger, soft drink and french fried potatoes. While eating, the group met another acquaintance, Mike Dragna, who agreed to go along to a party held at a private home in nearby Bayou Vista. Dragna joined the group after disposing of his own car at his grandmother’s home nearby.

Blanco then drove to Bayou Vista and arrived at the party at approximately 10:30-11:00 P.M. Banks testified that no alcoholic beverages were served at the party, except the remains of the wine which his own group brought along. However, Dragna contradicted Banks by testifying that alcoholic drinks were readily available at the party, including wine and whiskey. No witness saw Blanco partake of alcohol at the party although it is conceded that no witness was in Blanco’s presence during Blanco’s entire stay at the party. After a short time at the party, Dragna expressed the desire to go home. Banks and Marino borrowed Blanco’s car to take Dragna to the home of Dragna’s grandmother where Dragna was to spend the night. When Dragna got out of the car at his grandmother’s home, he cautioned Banks and Marino to watch Blanco because Dragna thought Blanco was “tense” or “up tight” about something or other. Dragna explained at trial that he did not at this time consider Blanco to be drunk but merely felt Blanco had some problem which Drag-na believed to be personal.

About midnight Blanco, Marino, Banks and Decedent decided to leave the party to return to their respective homes. At this time they were joined by Miss Green who wished a ride home. After leaving the party, Blanco stopped in-Berwick, Louisiana, where the group purchased two six-packs of beer. Apparently the friends shared the beer in more or less equal portions, except for Miss Green who drank at most one beer. After purchasing the beer the group decided to go to the Lighthouse Lounge in Houma, Louisiana. After reaching Houma, Blanco stopped at a service station and obtained directions to the Lighthouse Lounge. Instead, however, the group went to Mickey’s Lounge in the same city, apparently because fraternity brothers of Decedent worked there as bartenders. At Mickey’s the four young men purchased a beer each. Miss Green, who had become ill, did not enter the lounge. After about 10 minutes in Mickey’s, Blanco went outside and remained in the car with Miss Green. Approximately 20 minutes later Banks and Marino joined Blanco and Miss Green in the car.

The group then elected to return to their respective homes in Morgan City. Blanco proceeded toward Morgan City without undue incident until shortly after passing the Avondale Shipyard situated between Hou-ma and Morgan City. Marino, seated on the left of the rear seat, testified that he observed the speedometer reach 100 or 110 miles per hour. According to Marino, Decedent was seated in the center of the rear seat leaning forward between the front bucket seats talking with Blanco and thus also could see the speedometer. Marino recalled that after Blanco began to speed up, Decedent warned Blanco of a bump in the road ahead and that Decedent also told Blanco that Decedent had once struck the bump at high speed and almost lost control of his car. Additionally, Marino recalled that about four or five seconds before the accident Decedent told Blanco something to the effect, “Slow down, the engine can’t take the strain”.

Marino, Banks, Miss Green and Dragna, all testified that in their opinion Blanco at no time exhibited overt signs of intoxication. All stated that Blanco’s speech was not slurred, that he was not staggering and that he displayed no signs of lack of coordination or mental confusion. Lester Harold Wilde, Jr., Manager, Mickey’s Lounge, testified that when Blanco came into that establishment, Blanco was in a good mood, a party mood, but was not drunk. Wilde considered that Blanco was in a normal mood for a person in a bar who had had a few drinks.

At approximately 6:30 A.M., four hours after the accident, autopsies on the bodies of Decedent and Blanco were performed by Dr. Henry H. Sykes, Jr., Pathologist, Coroner, St. Mary Parish. The examination disclosed that Blanco had a blood alcohol content of .124 milligrams per cent and that Decedent had a blood alcohol content of .044 milligrams per cent.

Dr. Sykes, called on behalf of Appellees, testified that the alcoholic content of one twelve ounce can of beer is the equivalent of one ounce of 85 proof alcohol. He stated that a reading of .124 could be attained by an average person (one weighing 150 to 175 pounds) consuming six to eight 12-ounce cans of beer or an equal number of ounces of 85 proof whiskey. He noted that the amount of alcohol required to produce the same level in a larger person would increase proportionately with the person’s weight and size. In this regard we note that Decedent was approximately 6 feet tall and weighed 185 pounds. Dr. Sykes also noted that three or four twelve ounce cans of beer would produce a reading of .05 in the average individual and result in a state of euphoria not noticeable by an ordinary person. Dr. Sykes was of the view that a person having drunk three or four cans .of, beer was capable of safe operation of a motor vehicle. He also stated that the average person burns up approximately .015 milligrams of alcohol per hour and explained that a person with a reading of .150 would, have a zero reading after ten hours, provided he consumed no additional alcohol. Dr. Sykes was of the opinion a person with a .124 reading would not necessarily be incapable of safe operation of a motor vehicle. He testified that the effect of such a reading would depend upon the individual’s drinking habits and tolerance of alcohol. While Dr. Sykes was of the view a person with a .124 reading would not exhibit signs of instability or impaired mental or physical faculties to an untrained layman, he acknowedged that such impairment would be revealed if the individual were required to perform specific tasks.

Dr. Evariste J. Trahan, Pathologist, called by Appellees, agreed with Dr. Sykes concerning the amount of alcohol required to attain certain blood level alcoholic content and also as to the amount of alcohol dissipated hourly by the average individual’s bodily processes. According to Dr. Trahan, a person with a .124 reading would not display symptoms of instability evident to an untrained individual. He readily conceded, however, that changes occur in the average person at readings between .100 and .150. He explained that these changes commence with impairment of judgment, which effects are not measurable by visual observation. He also agreed that the amount of alcohol required to reach a reading of .124 would vary depending upon the individual’s size, weight, drinking habits and condition of the thyroid glands which control the metabolic processes. In Dr. Trahan’s opinion, a person with a .100 reading is capable of operating a motor vehicle, but not safely so. He also stated that a person with a reading of .05 may be mentally impaired as regards safe driving of an automobile. He acknowledged, however, that the effect of alcohol upon any given individual will vary depending upon drinking habits. According to Dr. Trahan, the effects of alcohol would not become noticeable to an untrained observer until a reading of .150 is reached and that usually signs of intoxication will become evident to an untrained observer at readings between .150 and .2.

Appearing on behalf of Appellant, Dr. Albert L. McQuown, Pathologist, testifying by deposition, agreed in essence with Drs. Sykes and Trahan in their general observations regarding the amount of alcohol required to attain specific blood levels in the average person and also as to the amount of alcohol metabolized by the average person in an hour. Dr. Mc-Quown also stated that in general a reading of .05 will produce some euphoria with basically no potential behavior changes. At a level of .085 an imbiber will show some signs of inability to coordinate well but not necessarily show effects of true intoxication. In Dr. McQuown’s opinion, a person with a reading of .100 will exhibit definite signs of poor coordination, especially to perform specific tasks. Dr. Mc-Quown also testified that a person with a reading of .100 is incapable of safe driving and would be even more so with a reading of .124 because instability would be more evident and coordination poorer. According to Dr. McQuown, at .150 gradual confusion of the senses commences although at this stage a person is not considered socially intoxicated, only happy, notwithstanding a marked inability for performance of specific tasks. At .25, according to Dr. McQuown a person reaches the stupor area and may be said to be drunk.

All of the experts agreed that, in the criminal field, the majority of jurisdictions set a reading of no more than .100 as the level at which intoxication is presumed. We add, however, that the presumption of intoxication at a level of .100, as provided by our own criminal statute, La.R.S. 32:662, is inapplicable in civil cases. We are in agreement with the jurisprudence established in Brown v. Collins, La.App., 223 So.2d 453, that in a civil case, the party alleging intoxication must establish by a preponderance of evidence that the normal mental and physical faculties of the party involved were impaired to the extent that the individual was incapable of safe driving. We find that in this instance Appellant has established this salient fact to the degree of certainty required by law.

We next determine whether Decedent knew or should have known of Blanco’s condition. In this regard Appellees contend that a guest passenger is not required to test a driver’s condition prior to entering a vehicle but merely to make reasonable observations as to the driver’s condition and to react reasonably to such observations. Appellees rely considerably upon the pronouncement in Galmiche v. Smith, La.App., 269 So.2d 490, to the effect that a guest passenger is under a duty to decline a ride only if the intended driver is so obviously intoxicated that it would be patently unsafe to ride with him. On this premise, Appellees contend that even if Blanco were intoxicated, Decedent did not assume the risk of riding with an intoxicated driver because the evidence is to the effect that Blanco at no time showed visible evidence of intoxication or instability.

We note that the mentioned holding in Galmiche, above, is not supported by citation of authority. We believe the rule thus announced is contrary to the weight of our jurisprudence on the subject. We understand our jurisprudence to hold that where the attending circumstances are such that a person knows, or has reason to' know, that his host driver has imbibed to the extent the host’s mental and physical faculties are impaired to a degree that renders the host an unsafe driver, such a guest passenger assumes the risk of riding with an unsafe driver. Jones v. Continental Casualty Company of Chicago, Illinois, above; Magee v. McCree, above; Church v. Allstate Insurance Co., above.

In this instance the record shows that prior to 10:00 P.M., Decedent and his host driver, were members of a group of three or four young friends who purchased three fifths of wine and shared the beverages, consuming virtually all thereof by 10:00 P.M., at which time all partook of food. After eating, the group attended a party where alcoholic beverages were available. Upon leaving the party at about midnight the group, which had increased to five, purchased two six packs of beer which were presumably consumed in equal portions save for one who drank only one beer. At somewhere around 1:30 or 2:00 A.M., Decedent and his host driver had one additional beer. The accident occurred at 2:30 A.M., and at 6:30 A.M. Decedent’s host driver was found to have a blood alcohol content of .124 which the record shows to be intoxicating to the average person. The record establishes that such a blood level requires ingestion of the equivalent of six to eight 12-ounce cans of beer, the alcohol from which is still in one’s system. Since the average individual dissipates .015 milligrams of alcohol hourly, the conclusion is inescapable that Blanco either drank the equivalent of at least two beers hourly commencing at approximately 9:00 P.M. or else drank six or eight cans of beer within a relatively short time of the accident.

While the record does not show that Decedent saw Blanco take every drink Blanco consumed, Decedent was in Blanco’s presence most of the time and had ample reason to know the extent to which Blanco was imbibing. In this respect we note Banks’ testimony that when the group left Houma he was “feeling pretty good” and everyone in the party was having a good time. We also note Wilder’s testimony that when Blanco left Mickey’s Lounge, Blanco was in a normal mood for a person who had taken a few drinks.

Although the record indicates Blan-co showed no overt signs of intoxication, we nevertheless conclude Decedent should have known of Blanco’s true condition. According to the expert testimony, there is no question but that Blanco had drunk to excess and that his mental and physical faculties were impaired, notwithstanding such impairment may not have been visible to an untrained observer. The record also establishes by a preponderance of evidence that Decedent’s association and contact with Blanco during the period in question was of such intimacy that Decedent had every reason to know the extent of Blan-co’s alcoholic consumption. Although Decedent did not see Blanco take every drink Blanco consumed, Decedent did in fact see Blanco take numerous drinks during the interval in question. Decedent was on an evening out with Blanco and other friends. Drinking appeared the order of the day and the group apparently purchased or had other access to drinks as their desires dictated. Decedent had every reason to know that Blanco probably took additional drinks out of Decedent’s actual presence. We find such circumstances sufficient to charge a reasonably normal and intelligent individual with notice that a host driver, having so imbibed, is incapable of safe operation of a motor vehicle.

We also find that the record estab-i lishes that Blanco’s condition was a substantial contributing cause of the accident. The record shows there was no compelling reason why the group should return to Morgan City at other than a legal and reasonable rate of speed. Nevertheless, Miss Green testified that Blanco left Houma driving at a high rate of speed and that at some point before the accident she had requested that he slow down. Under cross-examination Banks admitted having given a prior statement to the effect that Blanco began driving at a speed of 85 to 90 miles per hour shortly after leaving Houma whereas at trial he testified that Blanco began speeding only a few moments before the accident. Dr. McQuown, given a resume of the circumstances and events attending the accident, expressed the opinion that Blanco’s impaired driving ability was a substantial contributing cause of the accident. We agree with this conclusion inasmuch as impaired driving ability appears the only logical explanation for the highly irrational conduct of Blanco which caused the tragedy.

We are mindful that this case primarily involves factual findings and that such determinations by triers of fact should not be disturbed on appeal except in case of manifest error. Canter v. Koehring, La., 283 So.2d 716; Veazey v. Nassar, La. App., 285 So.2d 263. Nevertheless, in view of our constitutional mandate to review facts as well as law on civil appeals, it is our duty to reverse on factual findings where the conclusions of the trier of fact appear to be patently erroneous. In this instance we find such error. La.Const. of 1974 Art. V, Sec. 10(B).

The judgment of the trial court is reversed and judgment rendered herein rejecting the claims of Plaintiffs Clarence and Inez Prestenbach and dismissing said Plaintiffs’ claims, at Plaintiffs’ cost.

Reversed and rendered.


author: COVINGTON, Judge: PONDER, Judge

text:
    CAMELOT CITIZENS ASSOCIATION et al. v. Michael L. STEVENS.
    No. 10592.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Rehearing Denied April 12, 1976.
    Writ Refused June 11, 1976.

      Walton J. Barnes and George L. Clauer, III, Baton Rouge, for appellant.
    E. Drew McKinnis, Baton Rouge, for appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge:

This is a devolutive appeal from a judgment dismissing the plaintiffs’ suit for in-junctive relief from alleged violations of building restrictions within the Camelot Subdivision in the Parish of East Baton Rouge, Louisiana.

The suit was brought by the Camelot Citizens Association, and fifteen property owners who are members of the Association, against the defendant, Michael L. Stevens, the owner of and builder upon Lot 30 in said subdivision, to require him to comply .with the subdivision restrictions and to correct any violation thereof. The basis for the plaintiffs’ complaint is that the defendant has built a residential building set back a distance of approximately 25 feet from the front property line in violation of the subdivision restrictions which provide that no building shall be located on any lot nearer to the front line than 30 feet.

The defendant opposed the granting of injunctive relief on the grounds that the official subdivision map (which controls in the case of a conflict between the official map and the building restrictions) designates a 25-foot minimum set-back, and that the defendant is in compliance with the building restrictions, that the building restrictions are ambiguous and should be interpreted favorably to the defendant, and that, if there has been a violation, the Association and its 'members have acquiesced in the violation.

The petition in, this suit was filed on May 14, 1975, requesting that a preliminary injunction issue prohibiting the defendant, “ . . .or anyone acting on his behalf or in his interest or as his successor, from the violation, in any manner, of the subdivision restrictions for Camelot Subdivision.” The cause then came on promptly for a hearing on the rule nisi to have the defendant show cause why a preliminary injunction should not issue herein, prohibiting the defendant from further violation of the subject building restrictions. After a hearing, the trial court requested briefs on the question of law involved in the suit. Subsequently, the matter was re-opened for the receiving of additional evidence. Then the trial court rendered judgment recalling, vacating and setting aside the rule nisi and dismissing the plaintiffs’ suit at their costs. It is from this judgment that the appeal has been taken.

The subject building restrictions are of record in the office of the clerk and recorder for the Parish of East Baton Rouge. In a like manner, the official subdivision map is on file. The notarial act by which the defendant purchased the subject lot contains a reference to the building restrictions in the following language:

“Purchaser is aware of the fact that there are restrictions affecting this property recorded in Conveyance Book 2271, Folio 8, as amended in Conveyance Book 2329, Folio 491, Official Records of the Parish of East Baton Rouge, Louisiana. This reference to these restrictions is not intended to, nor does it hereby, reimpose said restrictions already recorded, but merely calls them to the attention of purchaser.”

The particular restriction which is the subject of these proceedings is the front set-back requirement. The building restrictions in pertinent part read as follows:

“No buildings (and this includes carport and detached covered structures) shall be located on any lot nearer to the front lot line than Thirty (30) feet . . . .”

The official subdivision map fixes the front set-back requirement at 25 feet. The building in question is at its nearest point 25.3 feet from the. front lot line. The concrete foundation or slab on which the subject building is erected is 26.4 feet at its nearest point from the front line.

It cannot be questioned that the owners of property in a subdivision have the right to impose building restrictions on their land in order to further a general plan of development. See Yiannopoulos, Civil Law of Property, sec. 104, page 310 (1966); Smith, Building Restrictions in Louisiana, 21 La.L.Rev. 468 (1961); Tag-gart, “Equitable Restrictions” in Louisiana, 33 Tul.L.Rev. 822 (1959). To ascertain the effect to be given to such building restrictions, we must first decide whether such a restraint on the use and disposition of property should be classified as a servitude, a real obligation, a covenant running with the land, or some other classification. Professor Yiannopoulos holds the opinion, and we agree with him, that due to the unique nature of building restrictions, they should be classified as “sui generis real rights akin to predial servitudes,” and they should be governed by the general rules applicable to predial servitudes, subject to any exceptions established by a special legislation or jurisprudence as to their creation, enforcement or termination. Yianno-poulos, Real Rights: Limits of Contractual and Testamentary Freedom, 30 La.L.Rev. 44, 63 (1969); also see Fitzwater v. Walker, 281 So.2d 790, 792 (La.App.3rd Cir. 1973).

We can thus say that building restrictions, such as those in question, are valid and enforceable where inserted in deeds in pursuance of a general plan devised by the ancestor to maintain certain building standards; such restrictions inure to the benefit of all other grantees under a general plan of development and are real rights running with the land, which the grantees or their successors in title may enforce by injunction proceedings. See Salerno v. De Lucca, 211 La. 659, 30 So.2d 678, 679 (1947); Edwards v. Wiseman, 198 La. 382, 3 So.2d 661, 663 (1941); Herzberg v. Harrison, 102 So.2d 554, 555 (La. App.lst Cir.1958).

However, restrictive convenants are strictly construed against the grantor and liberally in favor of the grantee, all doubt being resolved in favor of the free and unrestricted use of property and against restricted use. See Melrose Civic Ass’n v. Universal Builders, Inc., 306 So.2d 905, 906 (La.App.1st Cir. 1974), writ refused, 310 So.2d 638 (La.1974); Fuller v. Hill Properties, Inc., 259 So.2d 398, 400 (La.App.2nd Cir.1972).

In the instant case, the trial court held that there was no substantial violation of the building restrictions. In so holding, the trial judge said:

“ . . . (T)here are many equitable considerations here. You have the fact that the defendant bought the lot with the understanding that it had a twenty-five foot set back line. You have the fact that the map showed a twenty-five foot set back line. You have the fact that the defendant had progressed to the point of substantial construction prior to the time that this suit was brought. You have the ambiguity and confusion within the subdivision restrictions which certainly warrants a revision of them to spell out what is meant without any reference to A-l zoning. This has not been done and people that go out and buy lots under the attendant circumstances cannot help but be prejudiced when they go to that expense plus the expense of building only to find out that they are in violation by three and a half or four feet. We have to weigh the equities of the builder against the welfare of the owners in the subdivision. This is just not a substantial case of violation and, certainly, the attendant circumstances and the intent of the developers is such that it would be unwarranted to force the defendant to tear down this particular house.
“For all of these reasons, the injunctive relief is denied and plaintiffs’ suit is dismissed at plaintiffs’ cost.”

We have reviewed the evidence and the law in the instant case. We agree with the trial court that there has been no substantial violation of the building restrictions by the owner-builder of Lot 30 of Camelot Subdivision. Under the circumstances in this case, an encroachment over the minimum setback line of approximately five feet is minor and insignificant. There is no showing that this slight deviation will adversely affect the property values of other property in the subdivision.

We, therefore, hold that the set-back in the instant case, if it does constitute a technical violation of the building restrictions, is so minor and insignificant as not to justify the injunctive relief sought by the plaintiffs. See Fuller v. Hill Properties, Inc., supra, at 401. The principle involved here can be analogized to the one considered by the court in Guyton v. Yancey, 240 La. 794, 125 So.2d 365, 370 (1960), wherein the Supreme Court quoted with approval from the opinion of the Court of Appeal (115 So.2d 627) as follows:

“Such technical violations can in no wise, we think, add to or take from the objects and purposes of the general scheme of development and will, therefore, be disregarded as immaterial to the issue.”

We conclude that the building restrictions of the Camelot Subdivision have not been violated m any material respect. Accordingly, we affirm the judgment of the trial court at the appellants’cost.

Affirmed.

PONDER, Judge

(concurring in part and dissenting in part).

I concur in the result since I cannot agree that a 4.7 foot deviation from a building setback line is not a substantial violation. However, because of the discrepancy between the building setback line on the map with that in the written restrictions, I believe that only the lesser restrictive provision can be enforced.

It is my belief, too, that the lower court erred in dismissing plaintiff’s suit since it was tried and submitted only on the question of issuance of a preliminary injunction. I would therefore remand the case for further proceedings.


author: MARVIN, Judge.

text:
    Richard L. HANNA et al. v. Harris GREEN and Lois Tait Green.
    No. 12862.
    Court of Appeal of Louisiana, Second Circuit.
    March 15, 1976.

      Horton & Jones by William R. Jones, Coushatta, for plaintiffs-appellants.
    Wright, Dawkins, James, Hogg &. Bleich by Bert C. Hogg, Ruston, for defendants-appellees.
    Before BOLIN, HALL and MARVIN, JJ.
   MARVIN, Judge.

The several plaintiffs (hereafter called Hanna) appeal from a judgment decreeing defendants (Harris Green, et ux) to be owners of several tracts of real property in Lincoln Parish. We affirm.

Filed in 1973, the Hanna suit was styled as an action to remove a cloud from the Hanna title, under which title Hanna claimed ownership of the SW/4 of the SW/4 of Section 24, Township 20 North, Range 3 West, less excepted tracts. For simplicity, we refer to the property as the SW/4 of the SW/4. Defendants alleged their ownership of several tracts within the SW/4 of the SW/4 and pleaded the acquisitive prescription of 10 and 30 years.

In 1856, a patent issued to John Green for 240 acres of land including the subject property and adjacent lands in Sections 24 and 25. In 1877, D. L. Green acquired 470 acres including the SW/4 of SW/4 from John Green. •

During his lifetime, D. L. Green disposed of various tracts of land to several vendees, including W. R. Madden, Jim Brax Morrow, and the Hopewell Church. In 1931 in a foreclosure brought against the D. L. Green estate (through his widow and administratrix) R. B. Hanna (plaintiffs’ ancestor) purchased the property foreclosed at a sheriff’s sale. R. B. Hanna and his descendants have since corporeally and civilly possessed some portions of the property described in the sheriff’s deed.

An understanding of the issues and claims of acquisitive prescription as concerns the several tracts disputed between Hanna and defendants may be facilitated by referring to a detailed survey in the record which was prepared by C. L. Albrit-ton, an expert witness who testified below. A facsimile of the pertinent detail of this survey is reproduced here. Also reproduced here is the pertinent part of 1912 partition plat which is hereafter mentioned.

• Defendants claim or trace their titles (1) from the excepted tracts mentioned in the sheriff’s deed; (2) to deeds from persons other than successors in title to D. L. Green, primarily persons who derive title from the heirs of B. F. Stokes by virtue of a partition between these heirs in 1912; and (3) on the basis of open and uninterrupted possession as owner for more than 10 years and for more than 30 years under the law and codal articles relating to acquisitive prescription.

In the 1912 partition, Ila Stokes acquired, with adjacent properties, a tract in the SW/4 of the SW/4 described as:

“5.88 acres in the shape of a ‘V’ in the nw in the SW/4 of SW/4 [sic] . . .”

The plat filed with and referred to in the partition instrument shows that the V-shaped tract is north and west of Brushy Branch, a creek running through the area.

In 1915 Ila Stokes and her sister, Alma Stokes Avery, entered into an exchange whereby Mrs. Avery acquired the V-shaped property by the same description and by reference to the partition as recorded at a specific conveyance book and page. The tract referred to as the V-shaped property is shown on the facsimile survey as Tract A, and as Tract B, bounded north and west by the forty lines and east and south by Brushy Branch. The trial court found that Alma Stokes Avery, and her later successors in title (and we note, by virtually the identical description), including the defendants, had enclosed Tract A by fences and other visible boundaries and had openly and without interruption possessed Tract A as owner, respectively, since about the year 1915 to the time of the trial. The record amply supports the lower court’s findings.

Tract B of the facsimile survey is that property between what was an old eastern boundary fence of Tract A and Brushy Branch erected by W. R. Madden. Tract C is the property lying south and east of Tracts A and B and lying north and west of the state highway. In 1917, W. R. Madden acquired what the trial court found was Tract B by a deed from Alma Stokes Avery, et vir, containing this description :

A strip of land containing 5 acres, more or less, in the West Side of SW/4 of Sec. 24, T. 20 N., R. 3 West, bounded on the East by Brushy Branch and surrounded on the North, West, and South by a wire fence built by W. R. Madden to determine the boundary lines on these three sides.

In 1915, W. R. Madden acquired from D. L. Green “one-half acre” described by metes and bounds beginning at the southeast corner of the Hopewell Church lot [Tract F] and property by this description :

“ . . . Also all of the land East of Brusby [sic] Branch and West of the Public Road, making the Public Road the East Line and Jim Brack’s Land the South Line, containing 5 acres more or less. All in SW 14 of SW 4 Sec. 24, Tp. 20, N. R. 3 West ...”

It is the above property said to contain five acres that is Tract C.

Jim Brack, as revealed by the testimony and as found by the trial court, was Jim Brax Morrow, who in 1904, under a deed from D. L. Green went into possession of land contiguous to the southwest corner of the SW/4 of SW/4. A son of Jim Brax Morrow testified that he was born on the property in 1907 and lived there for approximately 25 years. He testified as to the neighbors and as to a fence on the east of his father’s property, the west boundary of Tract A. Among the neighbors were W. R. Madden and Cal Moore. By mesne conveyances, defendants acquired Tract A from Mrs. Avery’s successors in 1964. The trial court found that fences, hedgerows or turnrows, enclosing these tracts (A, B and C), separately or with other property owned by a respective possessor, existed continuously since about the year 1915. While one owner-possessor might have removed interior fences when two or more tracts were acquired by the one owner, all of the SW/4 of the SW/4 lying north and west of the state highway had been adversely possessed within enclosures by defendants or their predecessors in title for more than 30 years. The trial court further found that D. L. Green did not possess or claim to possess any portion of the SW/4 of the SW/4 west and north of the highway after the year 1915 and that R. B. Hanna and the plaintiffs did not possess [we add corporeally] any portion of the SW/4 of the SW/4 north and west • of the highway before or after the 1931 sheriff’s sale. The trial court’s findings are fully supported by the record.

In the SW/4 of the SW/4 east of - the highway, defendants acquired by mesne conveyances the excepted [4-acre W. R. Madden tract (F) and the Hopewell School tract (E) which were excepted from the sheriff’s deed. The lower court found that the requisites of the 30-year acquisitive prescription had been met by defendants and defendants ancestors in title. The record supports these conclusions. Neither plaintiffs nor defendants claim ownership or possession of the Hopewell Cemetery lot of 1.9 acres, a small triangular portion of which lies in the SW/4 of the SW/4 immediately south of the north forty line and west of the highway.

The trial court also found the deeds to Tract A to be translative of title from the 1912 partition deed through conveyances to the deed by which defendants acquired and that defendant had proved the requisites of the 10-year prescription. In view of the finding below and here that the requisites of 30-year acquisitive prescription have been fulfilled, and while it was not necessary to the decision below, we approve of the trial court’s conclusions in this respect as to Tracts A, B and C in the SW/4 of SW/4, excepting the cemetery lot.

The character of possession exercised by defendants and their predecessors in title consisted primarily of grazing livestock, patch farming, planting grass and cutting and clearing wood. The acts of possession exercised by the several respective owners of Tracts A, B and C from about 1915 were not grossly different as between these owners. The description of each tract was in almost identical language from possessor to possessor, except for typographical errors of no consequence and except to add to some descriptions the book and page of the conveyance records by which the conveying possessor had acquired the property.

In Jowers v. Coats, cited supra, we had occasion to consider the issues emanating from a situation where record title apparently existed in two parties, both of which claimed the property. There Coats had title to 600 acres. Jowers had a title to a 20-acre tract within the 600 acres. Jowers and his predecessors had corporeally possessed the 20-acre tract for more than 30 years. Coats and his predecessors had apparently possessed civilly the 20 acres and had corporeally possessed the remainder of his title. There we recognized the “well-established principle” that possession of a portion of land under a deed is possession of the whole, but stated that the principle was not applicable against one who possessed corporeally and adverse to the possessor of part of the larger tract, citing La.C.C. Arts. 3478, 3499 and Ernest Realty Co. v. Hunter Co., Inc., 189 La. 379, 179 So. 460 (1938).

The lower court found sufficient acts of possession for more than 30 years to establish a 30-year acquisitive prescriptive title in defendants as to Tracts E and F in the SW/4 of SW/4. We agree. The Hopewell School and a home for the teacher at the school existed on these respective tracts for several years before defendants acquired the property in 1942 from the Lincoln Parish School Board. The School Board acquired the two tracts by deeds in 1919 and 1920 from the Trustees of the Hopewell School. One or more witnesses who attended school there testified that the school property was fenced on three sides not facing the road as shown on the facsimile survey. Harris Green built a fence along the road shortly after his purchase to graze cattle there and has since maintained the fences. Tract F was used during this time of the existence of the school by the teacher at the school and was later used by tenants of Harris Green. The SW/4 of SW/4 east of the highway, to the east and south of Tract F and Tract E were farmed by R. B. Hanna. Tract E was farmed by Harris Green and fences, turnrows or hedgerows bounding the property were recognized by the tenants or farm laborers of both Green and Hanna. The Hopewell Church and school and teacher residence had existed in the area for several years before defendant acquired in 1942 the acre described as beginning at the SE corner of the Hopewell Church lot and thereafter described by calls south, east, north and west.

In Snelling v. Adair, 196 La. 624, 199 So. 782 (1941), the Supreme Court had under consideration, as applied to a 10-year acquisitive prescription question, a description which did not describe the property by governmental subdivisions but as lying [in fact erroneously] west of a railroad, bounded by lands of T on the north, by lands of W on the south and east, and by lands of M on the west. The property was east of the railroad and was not contiguous on the south and east to the lands of W. W’s lands were 50 acres removed from the property there in question. The court emphasized that the record was replete with testimony of persons owning property or residing in the general area that the tract in question was owned by defendant’s ancestor. The court there upheld the description as being susceptible of location and translative of title and subject to the acquisitve prescription of 10 years.

“ . . . it suffices if the description be ‘such as to enable the court to determine with certainty, with the aid of such extrinsic evidence as is admissible under the rules of evidence, what property was intended by the parties to be covered thereby. The description need not be given with such particularity as to make a resort to extrinsic evidence unnecessary,’ ...” 199 So. 788.

As to Tract F, the i/^-acre lot sold by D. L. Green to W. R. Madden in 1915, and eventually to Harris Green, was sufficiently identified to support the plea of 10 years acquisitive prescription, considering the long existence of the school and continued corporeal possession adverse to Hanna. We cannot say the lower court was manifestly erroneous in these conclusions.

In summary, Hanna has shown an unbroken chain of title from the patentee through D. L. Green and the sheriff’s deed of 1931 to R. B. Hanna of a large quantity of acreage. Defendants have shown that they and their predecessors in title and adversely to Hanna, corporeally possessed as owner, portions of the SW/4 of SW/4 in such a manner and for such uninterrupted periods of time as to fulfill the requirements to establish a valid title by acquisitive prescription. Defendants have further shown that while Hanna corporeally possessed property east of the public road in the SW/4 of SW/4, Hanna did not corporeally possess property therein west of the public road.

At appellants’ cost, judgment below is

AFFIRMED.

      . The N/2 of the NW/4 and S/2 of the SW/4, Section 24, and W/2 of the NW/4, Section 25.

      . The sheriff’s deed contains this description: “NE/4 of NW/4, W/2 of SE/4 of NW/4, W/2 of E/2 of SW/4 and all that part of W/2 of NW/4 lying East of Brushy Branch and SW/4 of SW/4 Section 24 (less lot sold to Hopewell Church, described as a . parcel of land commencing at the SE comer of SW/4 of SW/4 Section 24, T 20, N., R. 3 West and run North 20 chains; thence West 5 chains; thence West to Brushy Branch 26% rods; thence East 7 rods, making triangle plat; thence West to the said corner; thence 26% rods to the said Brushy Branch, containing 3% acres; [This corresponds to Tract E on the facsimile survey reproduced with this opinion] and lot sold to W. R. Madden, described as follows: One half acre beginning at the SE corner of the Hopewell Church lot and running south 70 yards; thence East 35 yards; thence North 70 yards ; thence West 35 yards to starting point [This corresponds to Tract F on the facsimile survey reproduced with this opinion]. Also all the land East of Brushy Branch and West of the public road, making the public road the East line and Jim Brack’s land the South line, containing 5 acres, more or less, all in SW/4 of SW/4, Section 24, T. 20 N., R. 3 West [This corresponds to Tract 0 on the facsimile survey reproduced with this opinion] * * * Ten acres off of the East side of the NW/4 of NW/4; E/2 of NW/4 and W/2 of NE/4, Section 25, all in T. 20, N. R. 3 W. LESS AND EXCEPT, the following described property: * * * Six acres in NW corner of SE/4 of NW/4, * * * and 8% acres in NW/4 of NW/4, and East of Brushy Branch, described as follows: * * * LESS AND EXCEPT the following described property : All of that part in SW/4 of NW/4 of Sec. 24, lying East of Brushy Branch, and South of Mrs. J. M. Brewster containing 25 acres, more or less. Also all of that part in W/2 of SE/4 of NW/4 Sec. 24 lying South of Mrs. J. M. Brewster and West of Mrs. J. E. Hammons, containing 15 acres, more or less. Also the NW/4 of NE/4 of SW/4 Sec. 24, all the above in T. 20 N. R. 3 W., containing in all 50 acres. (This being the same land that D. L. Green sold to J. M. Lindsey as recorded in Book TT page 408). Material in brackets supplied.

      .Plaintiffs corporeally possessed the SW/4 of SW/4 east and south of the highway (excluding the school property and residence on the north), but did not corporeally possess property therein north and west of the state highway. Plaintiffs apparently possessed corporeally other properties described in the sheriff’s deed and claimed to possess civilly all of the property described in the sheriff’s deed. Possession of a part of a tract as being possession of the whole of the tract does not apply to defeat the adverse corporeal possession by defendants and their ancestors in title for a sufficient period of time to establish prescriptive title. See Jowers v. Coats, 76 So.2d 99 (La.App.2d Gir. 1954), discussed infra.

      . A partition deed has been held translative of title or just title under La.C.C. Art. 3483. See Pitre v. Peltier, 122 So.2d 867 (La.App. 1st Cir. 1960). The civil code provides that an exchange also may be translative of title. La.C.C. Art. 3485. Also the fact that property is described in a conveyance as being bounded by the estates of other persons does not fatally affect the description of the property. If the property intended to be conveyed can be ascertained with certainty by the aid of legally admissible extrinsic evidence, the description is sufficient to support a plea of 10 years acquisitive prescription and to permit tacking of possession under a plea of either 10 or 30 year acquisitive prescription. See Bruce v. Cheramie, 231 La. 881, 93 So.2d 202 (1957) ; Authement v. Theriot, 292 So.2d 319 (La.App. 1st Cir. 1974) ; La.C.C. Arts. 3493, 3495.

      . When reference is made to the plat filed with the 1912 partition instrument which describes the disputed Tract A as 5.88 acres in the shape of a “V” in the northwest corner of the SW/4 of SW/4, it is with certainty that this description intended to convey all that part of the SW/4 of SW/4 lying north and west of Brushy Branch.
      Tract C, by the 1915 deed from D. L. Green to W. R. Madden, was described in part as “ . . . all of the land east of Brushy Branch and West of the public road making the public road the east line and Jim Brack’s land the south line ... in the SW/4 of SW/4 . . . ” This description is sufficient to uphold the deed as being translative of title.
      The 1917 deed from Alma Stokes Avery to W. R. Madden is also translative of title, the description contained in which is reasonably ascertainable by reference to the 1915 deed to W. R. Madden and the exchange deed to Alma Stokes Avery, both of which are of record. This is Tract B of the disputed property. The 1917 deed describes this property as bounded on the east by Brushy Branch and on the north, south and west by lands (or fences) of W. R. Madden.
      The fact that Tracts A and C, respectively, contain more acreage than the deeds specify is of no moment. A sale by fixed boundaries is a sale by aversionem even though quantities are also given. La.G.C. Art. 854; Passera v. City, 167 La. 199, 118 So. 887 (1928) ; Schexnayder v. Duhon, 163 So.2d 393 (La. App.3d Oir. 1964).

      . Tract F description in the deed to the School Board in 1920 and to Harris Green in 1942 reads as follows:
      “ . . . and % acre, beginning at the SE corner of the Hopewell Church lot and running South 70 yards, thence East 35 yds., thence North 70 yards, and thence West 75 yards to starting point ...”
      Tract E description in the deeds reads as follows :
      “Beginning 300 ft. West of the S.E. comer of N.W. !4 of S.W. % of section 24 T. 20N. It. 3 West and running North 65 yds., thence N. 30° E. 67 yds., thence West 234 yds., thence in a Southeasterly direction to a point 72 yds. West of starting point, thence East 72 yds. to starting point ...”

      . See Pure Oil v. Skinner, 294 So.2d 797 (La. 1974).


text:
    Herbert Reeves WOODELL et al. v. Virl ROBERTS (two cases).
    Nos. 12850 and 12851.
    Court of Appeal of Louisiana, Second Circuit.
    March 15, 1976.
    En Bane. Rehearing Denied April 19, 1976.
    Writ Refused June 15, 1976.

      Mecom, Scott & Woods by B. J. Woods, Goodwin & Lee by John D. Goodwin, Shreveport, for plaintiffs-appellants.
    R. Clyde Lawton, Jr., Vivian, for defendant-appellee and intervenors-appellees.
    Before BOLIN, PRICE and MARVIN, JJ-
   MARVIN, Judge.

These consolidated cases began as pos-sessory actions and were converted into petitory actions. After remand from this court [304 So.2d 853] and from judgments dismissing demands of plaintiffs and recognizing intervenors as owners of the property in dispute, Herbert Reeves Wood-ell appeals. We affirm the judgment of the lower court.

This case was previously before this court on an appeal from summary judgments recognizing intervenors’ ownership of the disputed property. We reversed and remanded for further proceedings because the case presented genuine issues of material fact. See Woodell v. Roberts, 304 So. 2d 853 (La.App.2d Civ. 1974). There we stated the posture of the case in this language :

“Herbert Reeves Woodell, Herbert Reeves Woodell, Jr., Robert Woodell and W. B. Woodell, filed a possessory action against defendant, Virl Roberts, alleging their possession as owners of a tract of land in Caddo Parish for more than a year prior to a disturbance of their peaceful possession by Roberts’ filing of an eviction suit against them. Subsequently, Herbert Reeves Woodell and Herbert Reeves Woodell, Jr. filed a similar possessory action.
“William M. Rudersdorf, Miss Stella Rudersdorf and Mrs. Lena Rudersdorf Oualline intervened, joining the defendant Roberts in resisting the demands of the original plaintiffs, and converting the action into a petitory action in accordance with LSA-C.C.P. Art. 3657. The Rudersdorfs alleged their ownership of the property by a regular chain of title originating with a patent from the United States of America and prayed for recognition of their ownership of the property.”

The Woodells alternatively pleaded the acquisitive prescription of thirty years based on their adverse possession of the property for a period in excess of thirty years.

When intervenors converted plaintiffs’ possessory action to a petitory action, plaintiffs’ possession of the property was judicially confessed. LSA-C.C.P. Art. 3657. It became incumbent upon interve-nors to prove valid record title good as against the world without regard to the title of the plaintiffs. See LSA-C.C.P. Arts. 3653, 3654 and Pure Oil Co. v. Skinner, 294 So.2d 797 (La.1974).

On October 21, 1898, William Ruders-dorf, father of intervenors, was the paten-tee under a homestead grant of property described as:

NE/4 of NW/4; S/2 of NW/4 and fractional SW/4 of Section 11, T. 20 North, Range 16 West.

The patent was recorded on February 4, 1904.

William Rudersdorf died on December 30, 1907, survived by a widow, Mrs. Annie Rudersdorf, and three children, William M. Rudersdorf, Stella Rudersdorf, and Mrs. Lena Rudersdorf Oualline, intervenors herein. William Rudersdorf executed in Harris County, Texas, a last will and testament bequeathing “all real estate” to his wife, Annie Rudersdorf, and naming her executrix of his estate. As executrix, Mrs. Rudersdorf listed the patented property which is now. in dispute as community property acquired during her marriage.

William Rudersdorf’s widow married James Barry in 1910 . Following probate in Texas of William Rudersdorf’s will, the First District Court of Caddo Parish, on the widow’s petition, ordered the will approved, registered, and executed on July 5, 1911.

Expressly recognizing that the disposition in William Rudersdorf’s will of all real estate to his widow was subject to reduction under Louisiana law of forced heirship, the widow and forced heirs entered into a partition agreement whereby the widow received an undivided one-half interest in the property and the three forced heirs each received an undivided one-sixth interest. The partition in authentic form was recorded in Caddo Parish on October 25, 1924.

The Rudersdorfs, beginning in 1907, leased the property from time to time for oil and gas purposes and in 1928 executed a five acre surface lease to the mineral lessee. In 1948, they granted a pipeline right of way and in 1949 they granted a surface lease, hereafter discussed, to Oliver Wood-ell and Herbert Reeves Woodell. In 1951, the Rudersdorfs granted another oil and gas lease on 80 acres of the property and in 1972 they granted a surface lease to one Virl Roberts, a production superindent of a company engaged in the drilling and operating of oil and gas wells. Ad valorem taxes on the property have been paid through the years by the Rudersdorfs, to whom the property is assessed.

Roberts, the production superintendent, testified that he had lived on the land since 1951 and that his company erected in 1949, and has since maintained, buildings and storage facilities on the property in connection with oil and gas wells which the company has drilled and operated on the property over the years. This occupancy, ás well as that of others, was known to the Woodells. Oil and gas have been produced from the property in various quantities since discovery of the resource in this area (Caddo Lake) and royalties have been paid to the Rudersdorfs and not to the Wood-ells.

The Rudersdorfs have proved record’ title good as against the world, corporeal possession of parts of the property and civil possession of the whole. Pure Oil v. Skinner, supra. Possession of part of a larger tract is considered as possession of the whole unless adverse claimants prove adverse corporeal possession in themselves in a sufficient manner and for a sufficient period of time to establish prescriptive title. See our opinion of this date, Hanna v. Green, 329 So.2d 850 (La. App.2d Cir. 1976). Art. 3500, La.C.C., requires :

“The possession on which this prescription is founded must be continuous and uninterrupted during all the time; it must be public and unequivocal, and under the title of owner.”

La.C.C. Art. 3503, provides:

“How favorable soever prescription may be, it shall be restricted within just limits. Thus, in the prescription of thirty years, which is acquired without title, it extends only to that which has been actually possessed by the person pleading it.”

La.C.C. Art. 3510, states:

“Those who possess for others and not in their own name, can not prescribe, whatever may be the time of their possession.
“Thus, farmers, tenants, depositaries', usufructuaries and all those generally who hold by a precarious tenure and in the name of the owner, can not prescribe on the thing thus held.”

The burden of proof is on the claimant in a particular case who relies on the plea of 30-year acquisitive prescription.

In 1949, the Rudersdorfs hired a Shreveport attorney with respect to the occupancy of various portions of the property by several persons and companies engaged in oil field work. Herbert Reeves Woodell admitted that he signed a lease instrument prepared by this attorney and would not deny [or acknowledge for that matter] that his father, Oliver Woodell had signed the instrument. This instrument affected not only 32 acres of the 161 acres, but the entirety of the property insofar as the claims of the signers as to possessory claims. The instrument was a 20-year lease for an annual rental of $10.00 per year. It provided in part:

“Lessors being owners of a tract of land in Caddo Parish, Louisiana containing about 161 acres, being more fully described as follows: NE/4 of NW/4, S/2 of NW/4, and fractional SW/4 of Sec. 11-T20N-R16W, Caddo Parish, Louisiana, do hereby lease for surface and fishing rights only to lessees approximately 32 acres in the Southwest portion of said tract this part to be leased more fully described as follows:
* * * * * *
“No claim in being made by lessees to this or any other portion of said 161 acre tract except under this lease, nor shall any future action by lessees such as fencing or using this or any part of said 161 acre tract be made the basis of any claim, except under this lease.” [sic]

The Shreveport attorney testified that he personally talked to both Herbert Reeves Woodell and Oliver Woodell and they specifically stated they did not own or claim to own the property. A copy of the lease instrument was given or sent to both Woodells by the attorney, Oliver Woodell’s copy being sent by registered or certified mail with return receipt signed by Oliver Woodell. The Woodells did not request Roberts or Roberts’ employer to remove themselves from any of the property when they moved on it in 1949-51.

Notwithstanding that the Woodells lived on a portion of the property since about 1914, the trial court found that the Woodells did not “hold themselves out” as owner of the property or possess in the capacity of owner. The record fully supports the trial court’s findings.

The burden of proving facts essential to support a plea of 30-year acquisitive prescription was appellants’ burden. The intent to possess as owner should not be, and in this case is not, inferred where the circumstances are insufficient to reasonably apprise the public and the record title owner that the possessor is unequivocably possessing under the intent of possessing as owner. La.C.C. Art. 3500. See also La.C.C. Arts. 3436, 3499 and 3503.

At appellants’ cost, judgment below is

AFFIRMED.

      . A child of this union, Mrs. Ruth Barry Herring, by authentic act dated Febuary 5, 1944, renounced her interest in the property after the death of her mother.

      . We note that had the partition been executed in accordance with the codal authority governing reduction, Mrs. Barry would have been entitled to two-thirds of the property in question. The three forced heirs would have each been entitled to a one-ninth interest.


text:
    Succession of Walter P. ROCK, Jr. v. ALLSTATE LIFE INSURANCE COMPANY.
    No. 10585.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Rehearing Denied April 12, 1976.
    Writ Granted June 4, 1976.

      Christopher E. Lawler, New Orleans, for appellant.
    Allen A. McElroy, Jr., Berwick, for ap-pellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Allstate Life Insurance Company (Appellant), a foreign insurance company licensed and registered to do business in this state, appeals from a default judgment rendered against it in the sum of $10,000, in favor of plaintiff Martha C. Rock (Appel-lee), Administratrix of the Estate of Walter P. Rock, Jr. (Decedent), for accidental death insurance benefits allegedly due on a policy issued on the life of Decedent. Ap-pellee has answered the appeal seeking damages for frivolous appeal. We reverse and dismiss Appellee’s suit without prejudice and deny Appellee’s claim for damages for frivolous appeal.

The issues on appeal are (1) the adequacy of service upon Appellant through the Secretary of State; (2) the degree and nature of proof required to sustain a judgment by default, and (3) the effect of Appellant’s failure to answer certain requests for admissions posed by Appellee.

The present record consists solely of Ap-pellee’s verified petition with accompanying interrogatories, Decedent’s death certificate, an affidavit by Appellee and Ap-pellee’s request for admissions. The petition recites that Decedent was employed by Petrolane, Inc. at the time of his death and was covered by a group life and accidental death policy issued by Appellant on Petro-lane’s employees. The death certificate lists inhalation of butane gas as the cause of Decedent’s demise and notes that Decedent was found dead at his home beside an empty butane gas cylinder, and that Decedent had a history of butane gas inhalation. All other facts necessary to establish Appellee’s right to default judgment are established by virtue of Appellant’s failure to answer Appellee’s request for admissions.

Appellee’s petition with attached death certificate and interrogatories, was filed March 10, 1975. Upon defendant’s failure to answer, Appellee entered a preliminary default on April 1, 1975. On April 10, 1975, Appellee filed a request for admissions of fact. The preliminary default previously taken was confirmed on May 1, 1975. No pleadings were filed by Appellant until July 14, 1975 when Appellant devolutively appealed.

In effect Appellant challenges the jurisdiction of the court over Appellant’s person on the ground the record contains no proof of notification to Appellant of the pendency of the action. Pertinent to this issue, we cite LA-R.S. 22:985, which states:

“Every foreign or alien insurer shall appoint the secretary of state to be its true and lawful attorney in this state upon whom, or some other person in his office during his absence he may designate, all lawful process in any action or proceeding against such insurer may be served, which shall constitute service on such insurer. Such appointment shall continue in force so long as any contract or other liability of such insurer in this state shall remain outstanding. Whenever such process shall be served upon the secretary of state he shall forthwith forward a copy of the process by prepaid registered mail to the person designated for the purpose by the insurer.”

Appellant contends that although the record shows service upon the Secretary of State in accordance with Section 985, above, there is no evidence of record that the Secretary of State actually forwarded a copy of the process as required. It is significant, however, that Appellant does not allege either failure of the Secretary of State to forward process to Appellant, or Appellant’s failure to receive such notice, but suggests only that such proof does not appear of record.

Appellant argues that Section 985, above, is synonymous with R.S. 13 :3474, 3475 (the nonresident motorist statute), which in general provides for appointment of the Secretary of State as agent for service of process upon all nonresident motorists operating motor vehicles within the state and who become involved in an accident on the public highways of the state. In this regard, Appellant notes that Section 3475, above, provides such service is sufficient to vest the courts of this state with personal jurisdiction over nonresident defendants :

“provided that notice of such service, together with a copy of the petition and citation are forthwith sent by registered mail by the plaintiff to the defendant, or are actually delivered to the defendant and defendant’s returned receipt, in case notice is sent by registered mail, or affidavit of the party delivering the petition and citation in case notice is made by actual delivery, is filed in the proceedings before judgment can be entered against said defendant.”

It is Appellant’s position that the requirement of proof of actual notice required to vest the courts of this state with personal jurisdiction over nonresident motorists should also apply with respect to nonresident insurers. We note that LAR.S. 22:1253(B), providing for service of process on foreign insurers transacting business in this state without a certificate of authorization, contains substantially the same provisions as Section 3475, above.

We find no Louisiana authority dealing directly with the question of necessity of proof of actual notice as an indispensable prerequisite to personal jurisdiction over a foreign insurer authorized to transact business in this state. We find that no such requirement is mandated either by LA-R.S. 22:985 or the jurisprudence dealing with sufficiency of service to fulfill the due process requirements of state and federal constitutions.

The pertinent law clearly states that service upon the Secretary of State constitutes service on the insurer. Unlike R.S. 13:3475, 13:3480 and 22:1253(B), LA-R.S. 22:985 does not condition efficacy of service on further acts of notification by plaintiff in suit. Under Section 985, above, service is complete when made on the Secretary of State irrespective of whether that official performs the ministerial task of forwarding notice to the insurer concerned.

It appears that the distinction between LA-R.S. 22:985 and the other above mentioned statutes rests upon conceptual and practical differences between the nature of the defendants involved in each instance. Subject statute applies exclusively to foreign insurers duly certified, upon their own voluntary action, to transact business in this state. Before such an insurer can be so certified and licensed, it must appoint the Secretary of State as its agent for service of process. The authority of a state to impose such a condition upon a foreign insurer is clearly supported by both federal and state jurisprudence. See St. Clair v. Cox, 106 U.S. 350, 1 S.Ct. 354, 27 L.Ed. 222; Morrison v. New Hampshire Insurance Company, 249 La. 546, 187 So.2d 729. In this regard, the foreign insurer knows beyond doubt that the Secretary of State is its agent for service of legal process and the Secretary of State has the insurer’s registration records which at least presumably contain information sufficient to enable actual notification.

The case of the nonresident motorist or uncertified insurer is vastly different. In these instances the Secretary of State is no more capable than plaintiff to give actual notice to the defendant. While a nonresident motorist and unregistered foreign insurer may be presumed by law to know the Secretary of State is their agent, neither has factual notice as does the registered foreign insurer. Because of this difference, we believe constitutional due process requirements do not demand more than service on the Secretary of State as regards defendants of the latter category.

It appears the legislature had this distinction in mind in enacting LA-R.S. 22:985. We see no reason to impose the further condition urged by Appellant. Our conclusion is amply supported by the law on the subject as set forth in 20 A.L.R.2d 1181, and the authorities therein cited, from which we quote from pages 1182 and 1185 as follows:

“A statute, applicable to a foreign corporation, providing for alternative service of process on a state officer, need not provide expressly for communication by the officer to the corporation of the fact of service, and even though it does so provide the officer, if the statute, reasonably construed, so contemplates, may be regarded as the representative of the defendant, rather than of the plaintiff, so that the defendant is not prejudiced, and the service is not invalidated, by the neglect or mistake of the officer in performing his duty under the statute. In any event, in such a case, a duty of the officer to notify the corporation will be presumed to have been properly performed, in the absence of evidence to the contrary. 23 Amjur. 530, Foreign Corporations § 506; annotation in 89 A.L.R. 668-670.”
“A statute which permits service of process upon a designated agent of a nonresident or foreign corporation by delivery alone to that agent, without conditioning service upon actual notification of the defendant, even though it contains language which assumes that the agent, in the complete performance of his duties, will make such notification, cannot be construed to afford relief against a default judgment based upon delivery of process to the agent upon the sole ground that the defendant was not actually notified, but relief, if obtainable, must be predicated upon a special showing.”

One who seeks reversal of a default judgment on appeal must allege and prove good reason for his nonappearance and failure to assert an available defense. De Frances v. Gauthier, 220 La. 145, 55 So.2d 896; Young v. Warner, La.App., 283 So.2d 547. As noted above, Appellant does not allege its failure to receive actual notice from the Secretary of State. Neither does Appellant advance any other reason for its failure to answer Appellee’s suit.

To confirm a judgment by default plaintiff must prove the essential elements of his claim by competent evidence and with legal certainty, as fully as though each allegation has been specifically denied. Wall v. Sun Insurance Co. of New York, La.App., 189 So.2d 713.

A judgment of default is presumed to have been rendered upon sufficient evidence unless the contrary appears of record. Ascension Builders, Inc. v. Jumonville, 262 La. 519, 263 So.2d 875; Baker Finance Co. v. Hines, 255 La. 971, 233 So. 2d 902.

The presumption that a default judgment is founded on sufficient evidence is merely a prima facie presumption and thus may be overcome by evidence to the contrary. Baker Finance Co. v. Hines, above.

In this instance, we find the presumption of sufficiency of proof has been rebutted by the concession of counsel for plaintiff (contained in counsel’s brief), that the record contains all of the evidence introduced upon confirmation of the default. In this regard, counsel’s brief recites:

“The undersigned specifically refers this Court to the evidence produced at trial which shows that the judgment was not based solely on unanswered request for admissions of fact but in fact was based, upon three different modes of fact: 1. The testimony of Martha C. Rock, Ad-ministratrix of the Succession of Walter P. Rock, Jr. and sister of the decedent; 2. The certified copy of the Death Certificate ; and 3. Unanswered request for admissions of fact.”

Appellant challenges the sufficiency of plaintiff’s evidence on the ground that proof was necessarily inadequate, inasmuch as the insurance contract was not introduced of record. This contention is based on the “best evidence rule” which requires a claimant suing on a written document to produce the document in evidence.

We must, therefore, determine whether the evidence offered below was competent. LA-R.S. 15:436 recites that the best evidence of a party’s claim which is in a party’s control must be produced. The foregoing rule is extended by LA-R.S. 15:437 which provides that matters which can be proved only by written evidence may not be established by parol, except where it is shown that the document has been lost, destroyed or is in the hands of the adverse party who has failed to produce it after reasonable notice. Also pertinent are the provisions of LA-C.C. Article 2276, which recite that parol evidence is inadmissible to vary, contradict or otherwise alter a written instrument.

In this instance, competent evidence (the “best evidence”) of plaintiff’s claim under an insurance policy is the policy itself. Parol or secondary evidence to establish policy provisions was admissible herein only upon plaintiff’s first showing the policy was either lost, destroyed or unavailable from defendant. Breaux v. Laird, 230 La. 221, 88 So.2d 33; Succession of Hilton, La.App., 165 So.2d 332; Clay v. Liberty Industrial Life Insurance Co., La.App., 157 So. 838.

The record shows Appellee failed to lay the foundation necessary to permit parol evidence to establish the existence and vital content of the insurance contract sued upon. There is no contention that the policy has been lost. Appellee explains the absence of the policy from the record merely by noting Decedent was never supplied with a copy, and that Decedent’s employer, who is not a party to this action, refused to furnish a copy on request of counsel. It is not contended that Appellee sought production of the policy by Appellant by available discovery devices. We find that Appellee failed to adequately establish need for reliance upon secondary evidence to prove the existence or content of the policy. Since the record shows Ap-pellee’s failure to establish an essential element of his case, the default judgment cannot stand. Ascension Builders, Inc. v. Jumonville, above.

Appellee cites LA-C.C.P. Article 1496 in support of the contention that the best evidence rule is inapplicable herein because of Appellant’s failure to answer Appellee’s request for admissions concerning the insurance contract. The cited codal authority pertinently provides as follows:

“Art. 1496. Admission of facts and of genuineness of documents
After commencement of an action a party may serve without leave of court upon any other party a written request for the admission by the latter of the genuineness of any relevant documents described in and exhibited with the request or of the truth of any relevant matters of fact set forth in the request. Copies of the documents shall be served with the request unless copies have already been furnished. Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request, not less than fifteen days after service thereof or within such shorter or longer time as the court may allow on motion and notice, the party to whom the request is directed serves upon the party requesting the admission either:
(1) An affidavit denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters, or
(2) Written objections on the ground that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper in whole or in part. ...”

Article 1496, above, has bee'n interpreted by our Supreme Court as comparable to the federal rule from which it derived. In Voisin v. Luke, 249 La. 796, 191 So.2d 503, the Supreme Court noted that the purpose of the statute is to require admission of matters which ought to be admitted, or which will not be disputed at trial in order to avoid the unnecessary utilization of time and expenditure of funds to establish such issues. The statute may not, however, be invoked to establish a controversial issue which constitutes the crux of the matter in litigation.

In this instance several crucial issues are directly related to the alleged policy existence and content, namely: (1) whether Appellant had a group life and accidental death policy in effect and covering Petro-lane employees at the time of Decedent’s demise; (2) whether Decedent was covered by such a policy; (3) the scope of coverage of such a policy, and (4) the monetary extent of coverage provided. The only evidence offered to establish these vital issues was the affidavit of the Appellee and the unanswered request for admissions.

We have herein previously shown that Appellee’s verbal testimony and affidavit was inadmissible to prove policy existence and content because the proper foundation was not laid for receipt of such evidence. Voisin v. Luke, above, makes it crystal clear that the unanswered request for admissions does not constitute proof of the questions of policy existence and content because such issues address themselves to the very heart of Appellee’s claim. See also Trane Company v. Bellevue Baptist Church of Metairie, La.App., 233 So.2d 13; Champagne v. Marmande, La.App., 162 So.2d 220.

Inasmuch as the record before us establishes a lack of competent evidence to sustain Appellee’s preliminary default, the judgment appealed must be reversed and set aside. Ascension Builders, Inc. v. Jumonville, above.

In view of the conclusion reached, it is unnecessary that we consider Appellee’s answer to this appeal claiming damages for frivolous appeal.

It is ordered, adjudged and decreed that the judgment rendered below be and the same is hereby annulled, reversed and set aside, and judgment rendered herein in favor of Defendant, Allstate Life Insurance Company, and against Plaintiff, Martha C. Rock, Administratrix, Succession of Walter P. Rock, Jr., dismissing said plaintiff’s demand, without prejudice, all costs of these proceedings to be paid by plaintiff, Appellee.

Reversed and rendered.