text:
    Louis LEGER, Jr., Plaintiff-Appellant, v. DELANO PLANTATION, INC., Defendant-Appellee.
    No. 6163.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.
    Rehearing Denied Dec. 14, 1977.
    Writ Refused Jan. 30, 1978.
    See also: La.App., 350 So.2d 377.
    Edwards, Stefanski & Barousse, Homer E. Barousse, Jr., Crowley, for plaintiff-appellant.
    G. Frederick Seemann, Dean & Lomenick by Otis E. Lomenick, Jr., Opelousas, for defendant-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   WATSON, Judge.

Plaintiff, Louis Leger, Jr. has appealed from a trial court judgment rejecting his suit for property damage and personal injuries received in a collision between his automobile and a cow allegedly owned by defendant, Delano Plantation, Inc. The accident occurred around 10:00 p. m. September 26, 1972, on Louisiana Highway 105, in St. Landry Parish, Louisiana.

The trial court dismissed plaintiffs suit on the basis of Harrington v. Upchurch, 331 So.2d 506 (La.App. 3 Cir. 1976), writ denied, 337 So.2d 222, because Highway 105 is not listed in LSA-R.S. 3:2803. Harrington holds that there is no presumption of fault on the part of the owner when cattle are loose in open range areas where no state statute or local ordinance prohibits them from roaming. Justice Dixon dissented from the writ denial in Harrington, stating that the apparent result was a different law for dogs [Holland v. Buckley, 305 So.2d 113 (La., 1974)] and for cows.

The instant case is largely factual; we will briefly review the testimony as follows:

James B. Lowery

The manager and president of Delano Plantation, Inc. testified that the plantation had between 64 and 67 head of black angus cattle. He did not hear of the accident until the following morning between 7:00 and 7:30 a. m., when his foreman, Isiah Thomas, showed him a calf at one of his gates. . The gate was closed. The calf was similar to those owned by the plantation but had no distinguishing markings. It was around 6 months old and weighed between 250 and 300 pounds. Isiah Thomas was instructed to move the calf. The plantation owns 1600 acres with a mile and a half of highway frontage. Lowery and three employees inspected the fences that day. There were no breaks; the gates were all closed; and the cattle were in their pasture. Lowery said the dead calf was a suckling calf and its mother should have been calling it. None of his cows were bellowing about the loss of a calf. J. T. Walton leases the land on the other side of the highway from Delano, where he has a levee pasture with black angus and mixed cattle. Adjoining the plantation are other landowners with black cattle, including Fred Harmon, Roland Sylvester, Maurice Harvey and Miss Grayson.

Isiah Thomas

He testified that he found the dead calf that morning. He and Mchingly Thomas disposed of it in a wooded area because it was in the way. He found no cattle missing. The cattle pasture for the plantation was half a mile from the gate where the calf was found. There were two fences between that pasture and the highway. The fences were checked regularly and were intact. Thomas did not know from observing the animal what had killed her. Other property owners in the area had black cattle, and Thomas could not identify the calf as belonging to the plantation.

James Kimble

This witness testified that he was with Preston Nations on the night of the accident. They had been to Bayou Current to coon hunt and came upon the scene on their way home. The only animal he observed was the dead one. Kimble went to get the rescue unit in Melville.

Dan Mougeot

Mougeot worked with the Melville rescue unit. He went to the scene of the accident and took Leger in the ambulance back to Melville. The dead animal in the road was described by Mougeot as located about 100 yards from “Mr. Larry’s driveway” (Tr. 50). Mougeot observed some animals on the adjacent levee and a small black calf which was loose. Leger was able to help himself onto the stretcher. Mougeot said it was very foggy that night.

Louis Leger

Plaintiff testified that he came upon some cattle and could not avoid the one he hit, which was lying in the middle of the roadway. Leger said the weather was clear.

Sam Gerace

He arrived at the scene of the accident after it happened and saw Louis Leger in the ditch. He observed the black heifer near a driveway. Plaintiff Leger had had three drinks at Gerace’s house earlier in the evening. Gerace saw no other cattle on the highway and testified that there was spotty fog.

J. T. Walton and James White

These neighbors testified that they were not missing any cattle.

Preston Nations

The only direct evidence as to the origin of the calf was that of Preston Nations, a disinterested witness. Although his testimony was unpolished and the details sketchy, his account of the scene indicates the calf came from the Delano pasture where “The fence was down a little bit.” (Tr. 27) Nations observed three other animals get out in the same way. No one else was present except plaintiff Leger, who was badly injured. Nations’ companion had gone to get the Melville rescue unit.

Although the animal might have belonged to a neighboring rancher, it is more probable than not that it belonged to Delano. The trial court apparently reached the same conclusion as a necessary prerequisite to its disposition of the case.

This is not a closed range highway like that in Quarles v. Tolar, 312 So.2d 350 (La. App. 2 Cir. 1975). Such highways are governed by LSA-R.S. 3:2803, which provides:

“No person owning livestock shall knowingly, willfully or negligently permit his livestock to go at large upon the following public highways of this state:
* * *11

The highway here, 105, is not included in the listing.

LSA-R.S. 3:3001-3003 provide that each ward of every parish has the right to prohibit livestock on its roads by local option election. It is contended in brief that a stock law was adopted by the St. Landry Parish Police Jury in 1967, but this ordinance, even if enacted pursuant to the statute, was not introduced in evidence in the four years in which this case awaited trial in the lower court. The evidence could have been produced at trial on the merits. A motion to remand has been denied. The ordinance referred to in brief cannot be considered by this court. Appellate courts do not receive original evidence.

Both Harrington, supra, and Flores v. Commercial Union Insurance Company, 337 So.2d 264 (La.App. 2 Cir. 1976), hold that Holland v. Buckley, supra, is not applicable to cattle on an open range. The owner of cattle in an open range area can permit his animals to run at large. No negligence or fault on the part of Delano Plantation, Inc. has been proven. Therefore, the trial court was correct in denying recovery to plaintiff.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of appeal are taxed against plaintiff-appellant, Louis Leger, Jr.

AFFIRMED.

      . The name must have been intended to read as “Lowery”.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Stevie BUTTS et al., Plaintiffs-Appellants, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant-Appellee.
    No. 6169.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.
    Rehearing Denied Dec. 14, 1977.
    Writ Refused Jan. 30, 1978.

      William Henry Sanders, Jena, for plaintiffs-appellants.
    Stafford, Randow, O’Neal & Smith by Hodge O’Neal, III, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   DOMENGEAUX, Judge.

This is a workmen’s compensation case arising out of an alleged accident on February 19, 1972, occurring at Garan, Inc., a clothing manufacturer. The suit was against Garan, Inc. and its compensation carrier, Insurance Company of North America. Mrs. Stevie Butts, plaintiff, was standing in line waiting to punch in her time card when someone allegedly pushed her. She stepped on a zipper on the floor and began to fall. In the process of catching herself from falling she claimed to have injured her back.

Mrs. Butts alleges that as a result of this injury she experiences great pain and is unable to lift or pull anything. She states that she cannot even perform normal household chores, let alone engage in gainful employment. Consequently she avers that she is totally and permanently disabled.

Defendant insurer, Insurance Company of North America, paid weekly disability benefits to Mrs. Butts from the time of the accident to the beginning of the.trial, as well as certain medical expenses. The weekly payments were based on a 40-hour work week at an hourly rate of $1.60. Mrs. Butts claims that she normally worked overtime and received a slightly higher hourly wage. Therefore, she avers that the weekly benefits were less than required.

Mrs. Butts and her husband brought this suit in forma pauperis demanding the increase in weekly benefits and the maximum amount of $12,500.00 allowable for medical treatment under the compensation act. Trial on the merits was held on April 3, 1975. The trial court determined that Mrs. Butts was not disabled and dismissed her suit, and she has appealed.

The major issue presented to us is whether the trial judge erred in finding that Mrs. Butts was not disabled.

The Supreme Court has issued the test to be used by an appellate court when evaluating factual conclusions of a trial court. In Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973), the court stated that:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.”

This applies to workmen’s compensation cases. Dowden v. Liberty Mutual Insurance Co., 346 So.2d 1311 (La.App. 3rd Cir. 1977). See also Broussard v. Acadia Industries, Inc., 339 So.2d 48 (La.App. 3rd Cir. 1976); Alfred v. Travelers Insurance Company, 322 So.2d 872 (La.App. 3rd Cir. 1975); Cooper v. Harris, 315 So.2d 331 (La. App. 3rd Cir. 1975).

After reviewing the record we have determined that there was a reasonable factual basis from which the trial court could infer that there was no disability. Dr. Daniel M. Kingsley, an orthopedic surgeon, stated that plaintiff complained about numbness on the whole left side of her back in the buttock area going to the pelvis and in the left hip. However, the doctor could find no atrophy of the muscle. Furthermore, he testified that plaintiff walked with a limp but that she limped pushing on the left extremity rather than the right and this was inconsistent with plaintiff’s complaints. The doctor stated that he asked her to walk across his examining room with long strides. When plaintiff took long strides there was no limp. Had the limp been genuine it would not have disappeared; it would have been exaggerated. Doctor Kingsley said he marked the area in which plaintiff says there was pain and, when examined later, the areas marked were painless. The doctor finally concluded that there was no orthopedic disability at all and found that plaintiff could work.

Doctor John T. Weiss, another orthopedic surgeon, testified that the areas plaintiff claimed were numb did not correspond to any recognized pattern and, therefore, there was probably no damage to the nerves. He had an electromylogram and bone scan performed on the plaintiff and these tests indicated that there was nothing significantly wrong. He, likewise could find no orthopedic abnormality.

Doctor J. C. Passman, an orthopedic surgeon in Mississippi, also examined Mrs. Butts. He also concluded that from an orthopedic standpoint plaintiff was not disabled and could return to work.

Plaintiff in her brief calls our attention to the deposition of Dr. John McCutchen, a neurologist who examined plaintiff after the trial. It is unclear whether the deposition properly forms a part of the record, but in any event we have reviewed this deposition and feel that it does not alter our ultimate determination. Doctor McCutchen testified that there were two possibilities of organic disease: (1) a bone spur due to traumatic arthritis which could cause pain by irritating the nerve root, or (2) a small intervertebral disc which could cause pain by impinging on the nerve root. He admitted, however, that his diagnosis was merely clinical and required more precise diagnostic tests in terms of further evaluation. He recommended that plaintiff undergo mylog-raphy and discography in order to definitely find out what was wrong. Although discography has not been performed on plaintiff, Doctor Weiss ordered an electromylo-graph and he concluded that plaintiff was not disabled.

We find that the preponderance of the evidence shows that Mrs. Butts was not disabled. The trial court did not err in his evaluation of the evidence.

Plaintiff argues that the weekly benefits she received were lower than they should have been. She received benefits of $41.60 from the time of the accident, February 19, 1972, until a week before the trial, March, 1975. Mr. Joe E. Johns, the representative of the insurer, testified that his company’s records stated that plaintiff received an hourly wage of $1.60 and worked a 40-hour week, thus receiving a weekly wage of $64.00. The company paid 65% of the weekly wage in accordance with La.R.S. 23:1221. Plaintiff testified that she made approximately $1.65 per hour and that she worked thirty minutes overtime every day. She also stated that she worked two or three Saturdays out of every month at an overtime rate.

We are unable to grant plaintiff any relief on this point. Although she may have been entitled to increased compensation benefits for a period of time following the accident, we have no way of knowing the point at which she was no longer entitled to benefits. Doctor Weiss stated that he determined from an examination on March 25, 1974, that plaintiff was not disabled. Doctor Kingsley stated that he examined plaintiff on September 21, 1972, and could find no orthopedic disability. Doctor Passman stated he examined plaintiff on March 10, 1972, and he could find no clinical evidence of any injury of a muscle, nerve, or bone nature. He thought that plaintiff may have sustained an acute muscle strain or soft tissue injury at the time of the accident, but that from an orthopedic standpoint she could have worked on the day of his examination.

We have also searched the record for evidence to support the proposition that plaintiff did in fact work overtime and receive a higher rate of pay. The only support we found was the testimony of Mrs. Butts and the fact that the accident occurred on a Saturday. Her testimony can be considered vague on this subject. The company’s records, cancelled checks, or Mrs. Butts’ check stubs were not introduced. Accordingly, we cannot say that the trial court erred by refusing to grant Mrs. Butts additional compensation for the period in which she received weekly benefits.

Plaintiff argues that the trial court erred in not ordering defendant to pay the medical bills of Doctor John Weiss, Doctor John Jackson, and Doctor Davidson Texada. La. R.S. 23:1203 requires an employer to furnish all necessary medical treatment. At the time of the accident the maximum amount which could be required was $12,-500.00.

The right to medical expenses is separate and distinct from the right to compensation. Therefore an employee may recover medical expenses even though there is no recovery for compensation. Mitchell v. K-Mart Enterprises of Louisiana, Inc., 319 So.2d 826 (La.App. 1st Cir. 1975); Welch v. Clemons Brothers Lumber Company, 262 So.2d 79 (La.App. 1st Cir. 1972). However, in order to require an employer or insurer to pay the medical expenses, some form of treatment must occur. Ducote v. Roy O. Martin Industries, Inc., 338 So.2d 1221 (La. App. 3rd Cir. 1976). Employers and their insurers are not liable for medical expenses incurred for purposes of litigation. Caldwell v. Exxon Corporation, 320 So.2d 319 (La.App. 4th Cir. 1975); Langley v. Travelers Insurance Company, 159 So.2d 553 (La. App. 3rd Cir. 1964). We therefore must determine the nature of the medical expenses incurred.

Doctor John Weiss saw the plaintiff on three occasions. The first time was on January 24, 1973, at the request of plaintiff’s attorney. This was after suit had been filed. The second visit was on the advice of the doctor. The third visit was at the request of the defendant. Because of the absence of a bill for the last visit, we assume it was paid by defendant. We have been unable to find a bill for the second visit and are unable to determine the amount or nature of the second visit. The bill for the first visit was apparently offered under a proffer of proof. We cannot determine from the record on what basis it was excluded, but we have determined, nevertheless, that the trial court was not in error by failing to order defendant to pay the bill. Doctor Weiss stated that he did not undertake a course of treatment for Mrs. Butts. Furthermore, plaintiff was sent to Doctor Weiss on the recommendation of her attorney after suit was filed. Although this is not conclusive evidence that plaintiff is not entitled to have this medical bill paid, she has failed to show that the expense was for treatment rather than in preparation for litigation.

Plaintiff went to Doctor Jackson on the recommendation of Doctor Weiss at the last visit to Doctor Weiss. Doctor Jackson’s report was not filed into the record nor was his deposition taken. A bill from Doctor Jackson for an “office visit” without further specification was offered under a proffer. It appears from Doctor Weiss’ testimony that the purpose of the visit was to obtain a neurological opinion of Mrs. Butts’ injuries. We do not know if the diagnosis of Doctor Jackson was for treatment or in preparation for litigation. Absent a more complete showing, we similarly cannot find error on the part of the trial judge in not requiring the defendants to pay this expense.

-Doctor Texada is a psychiatrist. He examined plaintiff on September 30, 1974. His deposition was offered into evidence and states that plaintiff’s pain appeared to be real and that plaintiff appeared to have no psychotic condition. The nature of his testimony indicates that the sole purpose of the examination was to determine if there was a mental basis for plaintiff’s complaints or whether there was a traumatic neurosis. Doctor Texada was consulted only once. Plaintiff has failed to show that Doctor Texada's bill was for treatment. The trial court, therefore, did not err in refusing to order defendants to pay this expense.

Finally, appellant suggests that certain medical depositions are not properly in the record. Our review of the record satisfies us that there is no merit to this contention.

For the above reasons we affirm the judgment of the district court. All costs are to be paid by the plaintiff-appellant.

AFFIRMED.

      . The petition avers that the husband joined his wife for the purpose of authorizing her to appear as party plaintiff.

      . There obviously must have been some disability immediately after the accident. We have been unable to determine, however, why the payments continued for this long a period of time.


author: GUIDRY, Judge.

text:
    James Herbert LABEUVE, Plaintiff-Appellant, v. Betty Lou LABEUVE, Defendant-Appellee.
    No. 6172.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.
    Rehearing Denied Dec. 14, 1977.

      Young & Jackson by I. Jackson Burson, Jr., Eunice, for plaintiff-defendant in recon-vention-appellant.
    Cline, Miller, Richard & Miller by Jack Derrick Miller, Rayne, for defendant-plaintiff in reconvention-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

James Herbert Labeuve brings this appeal from a judgment which compels him to pay alimony in the amount of $150.00 per month to his former wife, Betty Lou La-beuve. He contends that the trial court’s award was excessive under the circumstances of this case and that the court erred in refusing to take into account Mrs. La-beuve’s ability to work in fixing the amount of the alimony award.

On January 14, 1976, Mr. Labeuve brought suit against his wife, seeking a judicial separation on the grounds of cruel treatment. Mrs. Labeuve reconvened and sought a divorce on the grounds of adultery. On July 19, 1976, a judgment granting a divorce in favor of Mrs. Labeuve was rendered and signed. The judgment awarded her the sum of $250.00 per month as child support for the care of two minor children born of the marriage. No provision was made in the judgment for alimony. Although the divorce judgment does not •state the grounds upon which it was rendered, the record in this case indicates that the divorce was granted on the basis of adultery on the part of Mr. Labeuve.

On February 24, 1977, Mrs. Labeuve brought a rule to fix permanent alimony. In this rule the relator sought $244.70 per month. After trial, the rule was made absolute ordering Mr. Labeuve to pay alimony in the amount of $150.00 per month. Mr. Labeuve prosecutes this appeal from that judgment.

In his brief to this court, counsel for Mr. Labeuve seeks to collaterally attack the validity of the divorce decree, insofar as it purports to show that Mr. Labeuve was at “fault”, urging that there was a lack of proper supporting evidence for rendition of said judgment. Counsel for Mrs. Labeuve, on the other hand, contends that the divorce judgment of July 19, 1976 was rendered on sufficient evidence.

The validity of the previous judgment of divorce is not at issue in this proceeding. One cannot attack the validity of a judgment valid on its face collaterally or otherwise by reference thereto in brief on appeal. In any event, the recitals in a judgment are presumed correct and the judgment is assumed to have been rendered upon sufficient evidence. American Supply Company of Morgan City, Inc. v. Petrolane Offshore Construction Services, Inc., 289 So.2d 356 (La.App.1st Cir. 1973) and cases therein cited. The judgment of divorce which dissolved the marriage between plaintiff and defendant was rendered and signed on July 19, 1976. This judgment is now final, the delays for appealing having long expired. This judgment and the record supporting same reveal that the marriage was dissolved as a result of fault on the part of Mr. Labeuve, i.e., adultery. There is no showing whatever of fault on the part of Mrs. Labeuve.

We now turn to plaintiff-appellant’s contention that the trial court erred in awarding Mrs. Labeuve alimony in the amount of $150.00 per month.

Appellant’s primary argument, as we understand it, is that a 31 year old woman who does not have custody of the children born of the marriage should be compelled to prove that she is unable to work before she is entitled to an award of permanent alimony. In support of this contention, able counsel for plaintiff-appellant relies on the existence of a duty on the part of a mother as well as the father to support the children of the marriage. He also contends that the effect of the trial court’s judgment is to impose the entire obligation of child support upon the ex-husband, as well as the obligation to support a purposely indolent ex-wife. He argues that this result constitutes a denial of equal protection of the laws guaranteed under the United States Constitution, Article XIV, Section 1 and the Louisiana Constitution, Article I, Section 3 and Article I, Section 22.

The contentions of plaintiff-appellant have been resolved against him in two recent Supreme Court cases which specifically hold that the earning capacity of an unemployed, divorced wife does not bar her from alimony under Article 160 of the Louisiana Civil Code. Ward v. Ward, 339 So.2d 839 (La.1976); Favrot v. Barnes, 339 So.2d 843 (La.1976).

Considering the very explicit holding of the Ward and Favrot cases, supra, we reject the contentions of plaintiff-appellant that the above expressed rule does not apply because of certain factual distinctions present in the instant case. As we interpret the jurisprudence of this state, the earning capacity of a divorced wife does not bar her from alimony notwithstanding the fact that she is relatively young, does not have custody of the children, and has not sought employment. We note that in the recent case of La Hood v. La Hood, 340 So.2d 624 (La.App.2nd Cir. 1976), our brethren of the Second Circuit made the following observation in a footnote to that opinion:

“Stated briefly, that holding (Ward v. Ward, supra) does not allow a trial court to compel a divorced wife to seek employment as a prerequisite to obtaining alimony under C.C. Article 160 under any circumstances.” (emphasis added)

Plaintiff-appellant’s equal protection argument, while accepted by the Fourth Circuit in Favrot v. Barnes, 332 So.2d 873 (La.App.4th Cir. 1976), was apparently rejected by the Supreme Court in its reversal of the Appellate Court. Favrot v. Barnes, 339 So.2d 843 (La.1976).

As aforesaid, the record indicates that the divorce was granted to Mrs. Labeuve on the basis of adultery by Mr. Labeuve. We view the record in this case and the divorce judgment as establishing a lack of “fault” on the part of Mrs. Labeuve. LSA-C.C. Article 160. Mrs. Labeuve’s testimony clearly establishes that she is without sufficient means for her support.

It is axiomatic that the trial court has great discretion in fixing the amount of alimony. The award will not be disturbed on appeal in the absence of a clear showing of an abuse of discretion. Nicolle v. Nicolle, 308 So.2d 377 (La.App.4th Cir. 1975); Broussard v. Broussard, 320 So.2d 236 (La. App.3rd Cir. 1975); Cormier v. Cormier, 345 So.2d 228 (La.App.3rd Cir. 1977). In the instant case, we find no abuse of the trial court’s discretion. The judgment of the District Court is affirmed.

AFFIRMED.

      . Although Mrs. Labeuve was originally awarded custody of the two children born of the marriage their custody was subsequently changed to Mr. Labeuve on February 7, 1977. Simultaneously, Mr. Labeuve was relieved of his obligation to pay child support as fixed in the original divorce judgment.


author: WATSON, Judge.

text:
    S. L. WINSTON, Jr., et al., v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS.
    No. 6174.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.
    Rehearing Denied Dec. 14, 1977.
    Norman L. Sisson, Robert J. Jones, Jonathan C. Harris, Ronald R. Thompson, David K. Balfour, Richard M. Sandifer, by Richard M. Sandifer, Asst, to Gen. Counsel, La. Dept, of Transp., Baton Rouge, for defendant-appellant.
    Smith, Taliaferro, Seibert & Boothe, by Leo Boothe, Jonesville, for plaintiffs-appel-lees.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   WATSON, Judge.

Plaintiffs, S. L. Winston, Jr. and S. L. Winston, III, filed this suit against the Louisiana Department of Highways, defendant, to recover the value of four Hereford bulls which died June 26, 1973. The deaths allegedly occurred as a result of the bulls ingesting arsenic sprayed by the Department on a concrete underpass. The trial court rendered judgment in favor of plaintiff, S. L. Winston, III, the owner of the animals, and against the Department for $2,800 and the Department has appealed.

The evidence was as follows:

The Department, in answers to interrogatories, admitted spraying the highway on six occasions in a three-year period: September 13, 1971; October 8, 1971; June 2, 1972; August 8, 1972; July 10, 1973; and August 21, 1973. The chemical used was monosodium acid methanearsonate (MSA); 4.40 pounds were used for each acre.

S. L. Winston, Jr. described his plantation and the location where the cattle were thought to have consumed the poison: He testified that he lives south of Vidalia, Louisiana, in Concordia Parish, on Lucerna Plantation. His son, S. L. Winston, III, operates a cattle ranch on the plantation with approximately 101 cows, two herd bulls and 11 registered, horned, two-year-old Hereford bulls, the latter being grown as commercial breeders. Louisiana Highway 15 cuts the Winston property in half and there is an underpass to allow the cattle to pass back and forth. The passageway is a large culvert or concrete tunnel with a concrete bottom. The area of the underpass is low. The Highway Department required a culvert there for drainage. When the right-of-way was secured, Winston asked that the underpass be built to accommodate cattle and it was constructed for that purpose. Winston testified that the Highway Department does not have proper drainage to divert water from the area of the underpass and allowed a reservoir of water to accumulate there. Until the Highway Department drained it after the accident, Winston said there was water in the underpass year around, because the bottom was 18" lower than the adjacent drainage ditch. Winston said he observed the Highway Department spraying the highway two or three times and was told by the crew it was an MSMA solution. Winston asked for a label on August 29, 1973, after the death of the bulls, and the crew gave him an empty bottle. Winston said the truck sprayed the underpass on this occasion. The bottle is in evidence as P — 1, dated August 29.

Winston grows cotton and soybeans and used a weak solution of MSMA in 1973 as a detergent on his cotton. However, the T & P railroad bed cuts off direct drainage between the cotton and the underpass which the cattle used. The water well where Winston mixed the MSMA solution is located on the old railroad right of way. It is contained inside a 75 by 50 foot hurricane fence. Winston testified that he has continued using MSMA on his cotton with no ill effects on his cattle.

Dr. Joe Price Lancaster testified as an expert in veterinary medicine; 95% of his twenty year practice has been with large animals. He was called by Winston in 1973 about four bulls, two already dead. The two sick bulls later died. Each weighed about a thousand pounds. Lancaster suspected arsenic poisoning. Examination of one of the first to die showed inflammation and kidney damage consistent with this diagnosis. Laboratory reports on the four from the Central Diagnostic Laboratory in LeCompte confirmed that they died of arsenic poisoning. Lancaster testified that he was taught in school that the compound solution known as MSMA contains arsenic, which is a heavy metal or metalloid that is indestructible. According to Dr. Lancaster, arsenic does not ever dissipate but will always be present where it has been disseminated. Lancaster testified that he was familiar with the underpass area; water stood there and arsenic could accumulate. Dr. Lancaster’s opinion was that the concrete underpass would tend to preserve the arsenic over a period of time. Dr. Lancaster, after finding arsenic, began to look for the source and observed that the bulls had been going down to the underpass to drink. Besides the four animals that died, some of the other bulls had diarrhea, which is a symptom of arsenic poisoning. According to Dr. Lancaster, they were quarantined from the underpass area and recovered.

Odis E. Randall, an employee of the LSU Agricultural Extension Service, serves as livestock agent for Concordia and two other parishes. Randall has held his present job for three years and was previously assistant county agent for eight years. He has a master’s degree in agricultural economics from LSU and is knowledgeable about the pricing of cattle. Randall testified that he was familiar with the Winston cattle operations and the two-year-old bulls in question, which were of above average quality. Randall testified that a number of bulls of the same age sold at various sales for an average of $1,000.

Dennis Berry, an employee of the Louisiana Department of Transportation, is in charge of herbicide spraying operations in the northern part of the state. He testified that spraying is cheaper than mowing to control Johnson grass and unwanted weeds. The problem is worse in late spring, in June and July. His department sprays approximately 3,000 acres a year or 1,000 linear miles. Berry personally instructs all of the crews about safety precautions at an annual school; they are instructed not to spray underpasses with streams or cattle in them. Fifty yards are supposed to be left on each side of such underpasses. Berry did not know whether the instructions were ever violated. Berry said that the last time Louisiana 15 was sprayed prior to the death of the bulls was September 8, 1972, nine months before. Berry testified that his records indicate Highway 15 was not sprayed on August 29 when Winston said he secured the bottle from the Highway crew. Berry admitted that a stronger solution is used to spray the right-of-way than is used to spray cotton.

Henry Day, who was the operator of a spraying truck at the time of the accident, said he was familiar with the Winston property; his crew sprayed Louisiana Highway 15 on September 8, 1972. Day said the spray was cut off 50 yards in advance of the Winston underpass and not turned back on until 50 yards past it. Day had never been on a crew which failed to turn off the spray when going over this underpass.

Ben F. Dilly testified that he was spraying for the- Department of Louisiana Highway 15 on September 8, 1972. There is a valve which controls the spray on the back of each truck. His particular job is to operate the boom and control the quantity of the spray. Dilly said the truck driver stops and blows his horn when the herbicide is to be cut off; and Dilly never paid much attention to which underpasses were sprayed and which were not. Dilly never stops the spray unless the driver stops the truck first.

Dr. Walter Mason, chairman of the Department of Environmental Health Sciences at Tulane University Medical Center, testified as an expert in pesticides and herbicides, particularly MSMA. Mason said that a thousand pound bull would have to ingest 1.6 ounces of arsenic to die. Mason testified that arsenic tends to bind with clay soils after it comes in contact with them. If iron is present in the soil, the arsenic would become chemically bound to it and unavailable to the cattle. It was his opinion that, because of the diluting effect of the 63.68 inches of rain during the preceding nine months, and binding with the soil, there would not have been sufficient arsenic remaining to cause the deaths of plaintiffs bulls. MSMA is completely soluble in water. Dr. Mason did state that, if MSMA was sprayed by the Department in the recommended quantity, then:

“Had one bull been able to get all of the arsenic that was put down, which would have been contingent on him eating all of the clover or all of the grass, plus what went into the soil, then a sufficient amount did exist in the area, or could have existed in the area to be fatal.” (TR. 212)

The Department, after oral judgment was rendered, moved to file the deposition of Dr. P. J. Ehman in evidence and for an order of appeal. The motion to file the deposition and for appeal were granted the same day. We decline to consider the deposition, which was not available to the trial court. The filing of the Ehman deposition was not attended by proceedings seeking new trial or any other formalities which would allow its filing in evidence. The trial court apparently granted the motion out of an abundance of fairness to defendant, but this was in error.

The first issue is whether the trial court erred in finding the Department of Highways to have caused the death of the cattle.

Dr. Mason testified that the herbicide, MSMA, if sprayed in the recommended amounts, would not have killed Winston’s cattle because of dilution and binding with the soil. However, Dr. Lancaster testified that the four bulls died of arsenic poisoning. The trial court concluded factually that the most probable cause of that poisoning was the arsenic compound sprayed by the Department of Highways. Dr. Mason’s testimony about the tendency of arsenic to bind with clay soils is not in conflict with Dr. Lancaster’s testimony that the concrete bottom of the underpass would preserve the arsenic. Winston said that the water stayed year round. The arsenic on the concrete would thus have remained in solution. None of the questions to Dr. Mason considered the effect of the concrete in holding the arsenic. It is difficult to prove causation in a situation such as this. The trial court’s conclusion that the spraying caused the death of Winston’s bulls is not manifestly erroneous.

The Department was aware of the use of this underpass by Winston’s cattle and in fact had constructed it to serve that purpose. The Highway Department owned the underpass. LSA-C.C. arts. 667 and 669 provide:

The second issue is whether the Department of Highways should respond in damages for the harm to Winston’s cattle.

LSA-C.C. art. 667:

“Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”

LSA-C.C. art. 669:

“If the works or materials for any manu-factory or other operation, cause an inconvenience to those in the same or in the neighboring houses, by diffusing smoke or nauseous smell, and there be no servitude established by which they are regulated, their sufferance must be determined by the rules of the police, or the customs of the place.”

The combination of the low bottom of the culvert and the spraying, both attributable to the Department of Highways, killed the bulls and thereby damaged Winston. Regardless of the prudence with which the spraying was conducted, the defendant Highway Department is strictly liable for the damage caused. Gotreaux v. Gary, 232 La. 373, 94 So.2d 293 (1957); Joubert v. State Through State Park, etc., 345 So.2d 220 (La.App. 3 Cir. 1977). See the analysis by Professor Yiannopoulos, at 34 La.L.R. 475, of remedies available under LSA-C.C. arts. 667 and 669 for violations of the obligations of vicinage.

The amount awarded for the four bulls is not at issue.

For the foregoing reasons the judgment of the trial court is affirmed. All costs, insofar as allowed by law, are taxed against defendant-appellant, State of Louisiana through the Department of Highways.

AFFIRMED.

DOMENGEAUX, J., concurs.

      . It is significant that this date differs from the dates given by defendant in answers to interrogatories, casting some doubt on the accuracy of the department records. It will be recalled that Winston, Jr. testified that the underpass was sprayed on August 29, 1973, another date that does not appear in the Department records.

      . At common law, such interference with another’s rights is referred to as a nuisance, and the “sic utere” doctrine is often stated to be the basis of liability.


author: GUIDRY, Judge. WATSON, Judge,

text:
    Milton LOYDEN, Sr. and Liza Loyden, Plaintiffs-Appellants, v. J. C. PENNEY COMPANY et al., Defendants-Appellees-Appellants.
    No. 6175.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.
    Rehearings Denied Dec. 14, 1977.
    Writ Refused Jan. 30, 1978.

      Louis Berry, Alexandria, for plaintiff-appellant-appellee.
    Bolen, Halcomb & Erwin (Roy S. Hal-comb, Jr.), Alexandria, for defendant-appel-lee-appellant.
    Gist, Methvin & Trimble, by David A. Hughes, Alexandria, for defendant-appel-lee.
    Gold, Little, Simon, Weems & Bruser (John F. Simon), Alexandria, Vincent Ha-zleton, Alexandria, Brian P. Joffrion and George H. Mills, Jr., Asst. U. S. Attys., Shreveport, for defendant-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

Plaintiffs, Milton Loyden, Sr. and Liza Loyden, bring this action seeking recovery for the wrongful death of their son, Milton Loyden, Jr. This suit arises out of an incident in which the decedent was shot and killed by Captain Ancel Irby, an off-duty police officer, who was also employed at the time as a security guard for defendant, J. C. Penney Company, Inc. (hereafter referred to as Penney). Also made defendants are Maryland Casualty Company (hereafter referred to as Maryland) and American Home Assurance Company (hereafter referred to as American), the public liability insurer of the City of Alexandria and professional liability insurer of the Alexandria Police Department, respectively.

Penney filed answer, denying liability to plaintiffs, contending that Captain Irby was acting outside the course and scope of his employment with Penney while he was attempting to place the decedent under lawful arrest, and further alleging contributory negligence and/or assumption of risk on the part of the decedent. Penney also filed a third party demand against Maryland and American, seeking indemnification or contribution.

Defendants, Maryland and American, answered the' above demands, alleging the decedent’s contributory negligence and/or assumption of risk, and further denied coverage under their respective policies, contending that at the time of the accident, Captain Irby was acting in the course and scope of his employment as a security guard with Penney.

In addition, Maryland filed a third party demand against American seeking indemnification under the theory of respondeat superior.

Plaintiffs requested a trial by jury. After trial on the merits, the jury, through special interrogatories, returned a verdict finding that Captain Irby did not intentionally shoot and kill the decedent, nor was he guilty of negligence which was a proximate cause of the death of the decedent. Accordingly, judgment was rendered by the trial court in favor of all defendants and against plaintiffs, rejecting the plaintiffs’ demands at their costs. In accordance with the jury’s finding of no liability on the part of any of the defendants, the judgment also dismissed all third party demands.

Plaintiffs’ motion for a new trial was denied, and plaintiffs have appealed. Penney also perfected an appeal in order to preserve its rights in its third party demand against Maryland and American. Maryland answered plaintiffs’ appeal in order to protect its rights in its third party demand against American in the event of a reversal of the trial court’s judgment.

The issues presented are whether Captain Irby intentionally or negligently caused the death of plaintiffs’ decedent and, if so, which of the defendants are legally responsible for his acts.

The facts giving rise to this litigation may be summarized as follows:

Ancel Irby is a police officer, employed by the Alexandria Police Department at the rank of captain. In addition to his official duties with the City, Captain Irby also worked part-time during his off-duty hours as a security guard for the Penney retail outlet located in the Alexandria Mall. On the evening of December 11, 1975, Captain Irby was working at the Penney store, dressed in civilian clothing. He was working with Deputy Betty Seiver of the Rap-ides Parish Sheriff’s Department, who was also employed by Penney as a security guard. On that same evening, they observed a young lady, later identified as Sharon Newman, walking out of the store with a coat folded over her arms. Penney store policy required that all items be placed in a bag when purchased, so it appeared that she had taken the coat without paying for it. Deputy Seiver followed her while Captain Irby searched for an empty coat hanger remaining on the rack which would help verify that the coat had not been paid for. The empty hanger was found, and Deputy Seiver pointed out to Captain Irby the general area of the vehicle to which the young lady had gone upon leaving the store. Captain Irby located the car, which was then occupied by Sharon Newman and the decedent, and approached it with the intention of having Miss Newman accompany him back into the store.

Captain Irby noted the license number and then approached the car (a four-door sedan) from the left rear. Sharon Newman was seated in the rear seat on the driver’s side with the door closed. The decedent was seated in the front seat behind the steering wheel, with the front door open and his legs outside of the vehicle. Captain Irby identified himself as an officer of the Alexandria Police Department and also as being with J. C. Penney Security. He showed Miss Newman his police identification card and advised her that he wanted to speak to her in reference to the jacket she had on her lap.

After a short conversation between Captain Irby and Miss Newman, the decedent stepped out of the car and began arguing with Captain Irby. Captain Irby reached into the car between the door post and the front seat, retrieved the coat from the floorboard and flipped it onto the top of the car. Miss Newman then stepped out of the car and Captain Irby pulled his revolver from its concealed position underneath his clothing. The decedent took a step towards Captain Irby who advised him that he was under arrest for interfering with an officer. The decedent then told Miss Newman to run — “he can’t get us both,” and got back into his car, attempting to place his keys in the ignition switch. Captain Irby stepped alongside the decedent, preventing him from closing the door. He attempted to take the keys away from the decedent with his left hand, while holding his revolver in his right hand. The decedent, after unsuccessfully trying to insert the keys in the ignition, dropped the keys and grabbed Captain .Irby’s left wrist, pulling him into the car. It was at this time that Captain Irby’s revolver discharged, striking the decedent in the neck.

Plaintiffs contend that Captain Irby intentionally shot and killed the decedent without any legally justifiable cause, pointing out that his actions in drawing, aiming and firing his revolver were all intentional acts. Plaintiffs further point out that the gun used by Captain Irby was a 357 Magnum. They point to Captain Irby’s deposition in which he stated that it would have taken 9 to 15 pounds of pressure to fire the revolver in the “double action” mode as was the case here. In support of their contentions, plaintiffs refer to LSA-R.S. 14:20 and numerous cases as standing for the proposition that one may not take a human life in an attempt to prevent the commission of a misdemeanor. Further, plaintiffs contend that the decedent had not committed any culpable offense and was merely attempting to escape from the zone of danger and had not done anything to put Captain Irby under an apprehension of death or bodily harm.

While the action of Captain Irby in drawing his revolver was an intentional act, the record amply supports a finding that the actual discharge of the weapon was accidental.

Captain Irby testified that he was attempting to prevent the decedent from leaving the scene by grabbing for his keys as the decedent tried to place them in the ignition. Captain Irby’s testimony, that his pistol accidentally discharged when the decedent pulled him into the car, was corroborated by the testimony of Dr. Norman, the pathologist who performed an autopsy on the decedent. He described the entrance wound as being in the lower left neck, with the trajectory of the bullet going upward, severing the spinal column. The bullet was recovered just beneath the skin about two inches below the prominence on the back of the head. Dr. Norman carefully described this and demonstrated the entrance wound and the position in which the bullet rested to the jury by using his own torso as a model. He testified that the gun would have had to have been almost against the chest wall, with the barrel pointing upwards, in order to attain the trajectory presented here. Dr. Norman further testified that the trajectory of the bullet would be consistent with Captain Irby’s testimony.

Miss Waverly Hickman, an eyewitness who was seated in an automobile parked adjacent to the decedent’s car testified that she observed the decedent grab Captain Irby’s hand and pull him into the car, and heard the gun discharge at almost the same time.

Mrs. Gloria Schultz, another eye witness to the shooting, testified that she observed the decedent sitting in the car with the car door open and Captain Irby standing on the driver’s side facing in towards the car. As she passed near the car, she heard Captain Irby telling the decedent, “Look, I’m trying to do this in a nice way. Get out of the car, you are under arrest.” She testified that she heard Captain Irby repeat the statement several times in a soft tone of voice, while the decedent was swearing and using loud profanity. She continued walking beyond the car, but turned around and looked back at the car when the swearing and cursing got louder. Immediately after she turned, she observed Captain Irby jump back. She saw his hand come back and simultaneously heard the gun go off.

Several witnesses who were in the immediate area of the shooting testified that Captain Irby made exclamations to the effect that his gun had accidently discharged.

The evidence convinces us, as it apparently did the jury, that Captain Irby did not intentionally shoot the decedent. We thus find the cases cited by plaintiffs to be inapplicable to the case at bar as they involve circumstances where firearms were intentionally discharged.

We now turn to plaintiffs’ contentions that Captain Irby’s use or offer to use fatal force under the circumstances constituted negligence. Plaintiffs contend that Captain Irby did not use the care and prudence of a trained and experienced law enforcement officer, policeman and security guard under the circumstances. Plaintiffs argue that the use or the offer to use fatal force after Captain Irby had regained possession of the coat was negligence, in that Captain Irby, as a reasonable and prudent man, could foresee that the offer to use fatal force might result in death or great bodily harm.

Captain Irby testified that the decedent got out of the car as he was attempting to talk with Miss Newman about the coat which she then had on her lap. The decedent was cursing with the tone of his voice getting louder. Captain Irby advised the decedent that he didn’t want to talk to him, that he was only interested in Miss Newman and the coat. Captain Irby identified himself to the decedent as a police officer and security guard. As the decedent moved towards him, Miss Newman stepped from the back seat of the car. Captain Irby testified that it was at this point that he drew his revolver. He explained that there was a van parked to his immediate rear, with a suspect and a companion advancing on him. He testified that he had been in similar circumstances before and had received bodily injury. '

Whether or not Captain Irby acted reasonably under the circumstances is a question of fact. Accordingly, the findings of the trier of fact will not be disturbed in the absence of manifest error. Canter v. Koehring, 283 So.2d 716 (La.1973).

Captain Irby had probable cause to arrest Miss Newman in that he had observed her apparently shoplifting a coat from the Penney store. While attempting to apprehend Miss Newman, he suddenly found himself caught between the suspect and a male companion, with his freedom of movement severely restricted. We believe that Captain Irby was justified in drawing his revolver when confronted with these circumstances. A police officer is justified in drawing his weapon in order to protect himself from violence and to enforce an arrest. Greening v. Hill, 221 So.2d 261 (La. App. 2nd Cir. 1969, writ refused).

When the decedent took a step towards Captain Irby, he was advised he was under arrest for interfering with an officer. LSA-R.S. 14:108. Captain Irby felt that the decedent was interfering with his attempts to have Miss Newman accompany him back into the store. Plaintiffs contend that the decedent had not committed any offense, but had merely questioned the authority of Captain Irby to search his car without a warrant. We do not consider the issue of whether or not the decedent had actually committed a violation of R.S. 14:108. Suffice it to say, we find that Captain Irby did have probable cause at this time to arrest the decedent.

Plaintiffs correctly contend that Captain Irby would not have been justified in using deadly force to apprehend the decedent at this point. Sauls v. Hutto, D.C.1969, 304 F.Supp. 124. However, as pointed out above, the record reflects that the discharge of Captain Irby’s revolver was accidental and was not an intentional use of deadly force.

In attempting to effectuate the arrest of decedent, Captain Irby was entitled to use reasonable force to restrain the decedent from leaving the scene. LSA-C.Cr.P. Article 220; Malone v. Fields, 335 So.2d 538 (La.App. 2nd Cir. 1976); Greening v. Hill, supra. In the instant case, Captain Irby sought to restrain the decedent by grabbing for his keys as he was attempting to start his engine. This was a reasonable use of force under the circumstances.

The record in this case' clearly supports a finding that Captain Irby was attempting to enforce a lawful arrest; the decedent was resisting arrest; Captain Irby was justified in drawing his revolver when he did; the revolver accidentally discharged; and, the proximate cause of the weapon’s discharge was the decedent’s own actions in pulling Captain Irby into the car. Considering these findings plaintiffs are not entitled to recover civil damages. Greening v. Hill, supra; Bernstine v. City of Natchitoches, 335 So.2d 51 (La.App. 3rd Cir. 1976).

Finally, plaintiffs contend that the trial court committed reversible error in instructing the jury with the following charge:

“Resisting an officer is the intentional opposition or resistance to, or obstruction of an individual acting in his official capacity and authorized by law to make a lawful arrest when the offender knows or has reason to know that the person arresting is acting in his official capacity. A person shall submit peaceably to a lawful arrest. A person making a lawful arrest may use reasonable force to effect the arrest and detention and also to overcome any resistance or threatened resistance of the person being arrested or detained. Upon the suspect’s refusal to submit to a lawful arrest, a peace officer has a right to draw his revolver to protect himself from violence and to enforce the arrest.
In determining whether Captain Ancel Irby was or was not negligent, you are further instructed that where a person reasonably believes that he is threatened with bodily harm he may use whatever force appears to be reasonably necessary to protect against the threatened injury.”

We find no merit in this contention. The jury charge as set forth above is a correct statement of the statutory and jurisprudential law of this state. See LSA-R.S. 14:20; LSA-R.S. 14:108; LSA-C.Cr.P. Article 220; Greening v. Hill, supra; Bernstine v. City of Natchitoches, supra. Evidence adduced at trial warranted the reading of this instruction to the jury.

For the above and foregoing reasons, the judgment of the District Court is affirmed.

AFFIRMED.

WATSON, J., concurs and assigns written reasons.

WATSON, Judge,

concurring:

The disturbing issue in this case is that of negligence; the evidence does not establish an intentional tort. However, Captain Irby was negligent. The jury’s conclusion that he was not is manifestly erroneous. The basically undisputed facts are these: Captain Irby had drawn his .357 magnum pistol; he continued to hold it in his hand after the female suspect had fled; young Loyden had gotten back into his car, but Captain Irby continued to hold the gun as he reached into the vehicle and undertook to grasp the keys; Irby continued holding the gun while Loyden made two or three attempts to place a key in the switch of the automobile; Irby apparently pressed the revolver in a somewhat flat position against Loyden’s chest or neck while grasping for the key; and Irby exerted sufficient pressure on the trigger to activate the double action of the revolver. Failure to holster the gun, at some point, constitutes negligence by Irby. Irby’s actions created an unreasonable risk of harm to Loyden. One who carries and waves a loaded gun must be aware of the danger it presents to others. Compare Randall v. Ridgley, 185 So. 632 (La.App.Orl.1939).

The question then becomes whether Milton Loyden, Jr.’s fault bars recovery for his death. The independent witness, Waverly Hickman, who observed the incident from a nearby vehicle, confirmed Captain Irby’s statement that young Loyden grabbed him by the arm and pulled him into the car. According to Irby, Loyden grabbed him by the left arm; according to Mrs. Hickman, he grabbed him by the right arm. Irby had the pistol in his right hand. Grabbing the arm of a person holding a large revolver in an attempt to pull him forcibly into an automobile can reasonably be said to be careless, substandard and negligent conduct. Loyden’s conduct fell below the standard of care which a reasonable man would use to protect his own safety. Therefore, the jury would have been justified in finding that Captain Irby was negligent but that Milton Loyden, Jr.’s contributory negligence precludes recovery for his death.

On the basis of this analysis of the negligence issue, I respectfully concur in the result.

      . At the time of the decedent’s death, LSA-R.S. 14:20 read as follows:
      “A homicide is justifiable:
      (1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger; or
      (2) When committed, for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm, by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to exite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.”


text:
    JOHN DEERE INDUSTRIAL EQUIPMENT COMPANY, Plaintiff-Appellant, v. Virgil LUTHER, Defendant-Appellee.
    No. 6184.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.
    Rehearing Denied Dec. 14, 1977.
    Writ Refused Feb. 17, 1978.
    Ledbetter, Percy & Stubbs, by J. Michael Percy, Alexandria, for plaintiff-appellant.
    McReynolds & Jantz (Wilbert E. McRey-nolds), DeRidder, for defendant-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   WATSON, Judge.

On March 1, 1976, plaintiff, John Deere Industrial Equipment Company, filed a petition for executory process against Virgil Luther, defendant. The petition alleged that Luther was indebted unto John Deere for $25,073.42, 10% as attorney’s fees, and legal interest. Attached to and filed with the petition was a “time sale agreement”, which by its terms constituted a promissory note and chattel mortgage, reflecting Luther’s purchase from Michel Machinery Corporation, of a logskidder, identified as John Deere model JD540A, bearing serial number 195144. In the agreement, Luther also mortgaged to Michel Machinery Corporation or its assigns, another logskidder which was identified as John Deere model JD440, bearing serial number 109759.

The petition alleged that the time sale agreement was duly assigned by Michel Machinery Corporation to John Deere; that it contained an acceleration clause; that Luther had failed to pay the installments due; and that the chattel mortgage contained a pact de non alienando and a confession of judgment.

Finally, the petition alleged that plaintiff was entitled to executory process, and a writ of seizure was issued to the sheriff of Vernon Parish commanding the sale with appraisement of the JD540A logskidder. The Sheriff of Vernon Parish seized the skidder. John Deere appointed John Vel-selka as its appraiser and the Sheriff, acting upon the failure of Luther to appoint an appraiser, appointed M. J. Patton as the second appraiser. The skidder was appraised at $500 and was sold at public sale to defendant Luther on June 2, 1976, for $500.

According to Luther’s testimony, he repaired the broken axle and axle housing and now has the machine at work.

Subsequent to the sale in Vernon Parish, plaintiff discovered that a clerical error had been made in the description of the JD440 skidder, the machine mortgaged as additional security, which was, at the time of the Vernon Parish sale, being held under seizure by the Beauregard Parish sheriff. An amended petition was filed on September 8, 1976, reciting discovery of the error and alleging that plaintiff desired to convert the executory proceeding into an ordinary proceeding and to proceed via ordina-ria.

Luther, in his answer, attacked the validity of the judicial sale of the JD540A skidder in Vernon Parish as being without valid appraisement. Luther alleged that the skidder was worth approximately $20,000 at the time of the sale but was erroneously appraised at $500; that the appraisers were patently unqualified; and that the skidder was not sold with benefit of appraisement. Luther asserted that the amended petition was an attempt to obtain a deficiency judgment following a judicial sale without ap-praisement, which plaintiff is not entitled to do.

On these pleadings, a hearing was held by the trial court. Plaintiff’s appraiser, John Velselka, testified that he is a supervisor of accounts for John Deere; that the correct contract balance was $25,073.42 and that he inspected the property prior to the appraisal. He testified that it was dismantled and that he evaluated it as scrap. Velselka admitted on cross-examination that he was not an expert on the mechanics of a skidder and that he did not know whether any parts were missing. His testimony apparently did not impress the trial court and we find no error in that court assigning it little weight.

Marshal Patton, the other appraiser, testified that he is the used car manager at the Ford dealership in Leesville. Patton inspected the equipment prior to sale and said that it was “tore up pretty bad”. (TR. 28) However, Patton admitted that he was not an expert concerning logskidders and did not claim to be qualified as an appraiser.

W. R. Brantley testified that he is the Massey Ferguson trailer dealer in DeRid-der. He had not seen this particular log-skidder but stated that the accepted publication giving values of used equipment would place"the retail value of a JD540A skidder at $26,948 and the wholesale value at $20,874. He testified that a broken rear axle housing did not make a skidder scrap material.

Defendant Luther testified that he bought in the logskidder at the sheriffs sale and thereafter repaired it. According to Luther, the only necessary repairs were the replacement of the rear axle housing and axle, the welding of the machine blade and the replacement of two tires; no engine or transmission work was required.

Cletus McCloud, who testified that he has been a logger and a logger supplier for some 17 years, qualified as an expert on the value of skidders. He had seen this particular skidder on more than one occasion, although he did not see it near the time of the sheriffs sale. His opinion was that the lowest value of the skidder would be $8,000 and the highest value would be $15,000.

After hearing the witnesses and considering the evidence, the trial court concluded that plaintiff was entitled only to a judgment “in rem” and a judgment was signed, dismissing John Deere’s demand for a money judgment against Luther, granting a judgment in rem against the JD440 skidder under seizure by the Beauregard Parish sheriff and casting John Deere for costs.

John Deere has appealed.

The issue is whether John Deere is entitled to a money judgment against Virgil Luther or whether there is some vice in the sale conducted by the Vernon Parish sheriff which prevents such a judgment.

There was a serious deficiency in the appraisal of the skidder prior to the sale. Even Velselka, the appraiser for John Deere, was not qualified to give a fair appraisal of the equipment. Marshal Patton, the appraiser appointed by the sheriff, was a used car expert but apparently knew nothing at all about logskidders. It is clear that the machinery appraised at $500 was worth at least several thousand. This court has recently declared that an appraisal must meet minimum standards of fairness to be valid. General Motors Acceptance Corp. v. Boutte, 338 So.2d 363 (La.App. 3 Cir. 1976). Also see: Ford Motor Credit Company v. Blackwell, 295 So.2d 522 (La. App. 4 Cir. 1974).

However, this particular sale presents the unusual circumstance that Luther, the defendant, was not only present at the sheriff’s sale but also bid in the skidder for the sum of $500. He now has and is using the skidder. Under his contentions as presented, he wants to set aside the validity of the appraisal while taking advantage of it to purchase the equipment at what he says was a low price. Long ago, our courts adopted the rule that one who is present or participates in a judicial sale cannot later complain of its defects. Bermudez v. Union Bank, 11 La.Ann. 64 (1856); Hayden v. Slaughter, 43 La.Ann. 385, 8 So. 919 (1891).

Having taken advantage of the low appraisal to buy in the property at a bargain price, Luther cannot now be heard to say that the appraisal was invalid. Absent a statutory provision which squarely controls this situation, equity demands that Luther not be allowed to buy the skidder for $500, several thousand dollars below its value, and also be relieved of his obligation on the note because of the low price. LSA-C.C. arts. 21 and 1965.

The plaintiff, John Deere, is entitled to a money judgment against Luther for the amount of the balance on the time sales agreement. There is no dispute as to the amount due. Plaintiff has converted the proceeding into an ordinary proceeding, and accordingly, the sale of the other skidder must take place according to law under ordinary proceedings.

Therefore, the judgment of the trial court dismissing plaintiff’s demand is reversed and it is ordered, adjudged and decreed that John Deere Industrial Equipment Company have judgment against defendant, Virgil Luther, in the full sum of $25,073.42, together with legal interest from date of judicial demand until paid, plus 10% as attorney’s fees, subject to a credit of the net amount realized on the sale of the model 540A skidder in Vernon Parish.

The chattel mortgage and vendor’s lien of John Deere Industrial Equipment Company is recognized on that certain John Deere model 440 skidder, bearing serial no. 123576, now under seizure by the Beauregard Parish sheriff.

Costs of all proceedings, both trial and on appeal, are taxed against Virgil Luther.

REVERSED IN PART; AFFIRMED IN PART AND RENDERED.

      . The parties agree that the skidder seized in Beauregard Parish should have been identified as serial No. 123576; there is no dispute that Deere is entitled to have the chattel mortgage and vendor’s lien recognized against that skid-der.

      . Much of Luther’s testimony was an offer of proof; we find it to be admissible.


author: FORET, Judge.

text:
    James DISCHLER, Plaintiff-Appellee, v. RED BALL MOTOR FREIGHT, INC., Defendant-Appellant.
    No. 6186.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.
    Rehearing Denied Dec. 14, 1977.
    J. W. Landry, Jr., Crowley, for defendant-appellant.
    Guillory, McGee & Mayeux by Robert K. Guillory, Eunice, for plaintiff-appellee.
    Before HOOD, CULPEPPER and FOR-ET, JJ.
   FORET, Judge.

Plaintiff, James Dischler, filed suit for damages against defendant, Red Ball Motor Freight, Inc., (hereinafter referred to as Red Ball) for allegedly damaged furniture shipped via Red Ball to him. From judgment in favor of plaintiff in the amount of $400.93, Red Ball appeals. Appellant alleges that the trial court erred in the following respects:

(1) In finding that plaintiff proved that the merchandise was received by Red Ball in good condition;
(2) In finding that plaintiff proved that the goods were received by him in damaged condition;
(3) In assessing damages against defendant.

The basis for liability of a common carrier for any loss, damage or injury to property caused by the common carrier in an interstate shipment is the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C.A. Section 20(11). In order to maintain a successful action as against the carrier, the plaintiff, whether he be a shipper or consignee, must prove by a preponderance of the evidence (1) receipt by the carrier of the items in good condition; (2) arrival of the items in damaged condition to the plaintiff, and (3) the amount of the loss sustained thereby. Proof of all three is prerequisite to a judgment in favor of plaintiff. The absence of proof as to any one of the three leads to judgment in favor of the defendant carrier. Frischhertz Electric Co. v. Strickland Transp. Co., 262 La. 791, 264 So.2d 646 (1972); Home Furniture & App. v. Red Bail Motor Freight, Inc., 343 So.2d 319 (La.App. 2 Cir. 1977), writ refused 345 So.2d 1193 (La.); Caillier v. Texas & Pacific Railway Co., 303 So.2d 871 (La.App. 1 Cir. 1974), writ refused 307 So.2d 628.

In this case, plaintiff Dischler, in December, 1973, or January, 1974, purchased seven items of furniture (one sofa; one loveseat; two overstuffed chairs, and three living room tables comprising a set) from Star Furniture Company, Houston, Texas. On February 14, 1974, the purchased furniture was delivered in a truck of defendant, Red Ball, to the home of plaintiff, Dischler. The driver of defendant’s truck, Ray Pitre, unloaded the cardboard boxes in which the furniture was enclosed, on the driveway adjacent to plaintiff’s home. Plaintiff’s wife acknowledged receipt thereof. As to the condition of the boxes, Mrs. Dischler testified:

“The cardboard boxes looked like they had been handled quite a bit. Other than that, there was no mashed-in area, if that is what you mean. . . . The boxes were not damaged sufficiently that I would think that there was damage within.” (Tr., pg. 13)

Mrs. Dischler acknowledged receipt of the furniture by signing a delivery receipt handed to her by Pitre. (In the space immediately above her signature was a space provided for the notation of damages to the items delivered. That space was not marked.) Mrs. Dischler did not, at that time, inspect the furniture. However, Mrs. Dis-chler was concerned about the glass top insets of the tables being damaged, and she did open the crates and inspect the glass insets, and, finding them to be undamaged, she removed them from the packing crates and stored them separately. She testified that Pitre told her that she could inspect remaining merchandise at a later time and report any damages that were found. Pitre stated that he did not tell her so. However, he stated that it was not Red Ball’s or his policy to request that the person to whom items were delivered make an immediate inspection, and that, if asked if an immediate inspection were required, he would answer in the negative.

By plaintiff’s son and others, the cardboard boxes were removed to a cabana in the rear of plaintiff’s home. According to Mrs. Dischler, no boxes were dropped and/or damaged during the removal process. The boxes were placed side by side in the middle of the floor of the cabana, where they remained until April. In that month, plaintiff and his wife removed the furniture from the cardboard cartons. At that time, they discovered that the four legs of one table, and one leg of another table, were split lengthwise. Red Ball was thereafter notified. Defendant did not reimburse plaintiff for the damages, and this suit was accordingly instituted.

Plaintiff Dischler presented absolutely no evidence as to Red Ball’s receiving the furniture in good condition from Star Furniture. No testimony was elicited as to that element of plaintiff’s cause of action, and plaintiff’s exhibits were not pertinent thereto. P-1 provided the cost of the three tables; P-2 was a purchase contract between Star Furniture and plaintiff; P-3 was the claim form filled in by Mrs. Dis-chler; P — 4 was the freight bill of Red Ball; P-5 was the damaged merchandise inspection form, and P-6 was a letter from Red Ball to Dischler, in which it was stated that Red Ball would not pay plaintiff’s claim.

In addition to total lack of proof of the goods being in good condition when received by Red Ball, we are also impressed by the fact that neither the packing cases enclosing the furniture, nor the glass insets, were damaged. It is inconceivable to us that a blow or blows sufficiently severe to split these 4" by 4" wooden table legs, would not also have severely damaged the packing crates and/or broken the glass top insets, which were also inside the crates.

Accordingly, the judgment of the trial court is reversed.

Plaintiffs suit is dismissed with prejudice, and all costs incurred in this matter are assessed against the plaintiff.

REVERSED.


author: CULPEPPER, Judge.

text:
    Martha H. ROBICHEAUX and Martha’s Jewelry & Gifts, Inc., Plaintiffs and Appellants, v. J. Arthur ROY, the New Gordon Hotel Company, Inc., and Eastern Development & Investment Corporation and Sandra Ballard, Defendants and Appellees.
    No. 6191.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.
    Rehearing Denied Dec. 14, 1977.
    Writ Refused Jan. 30, 1978.
    Voorhies & Labbé by John Nickerson Chappuis, Lafayette, for plaintiffs-appellants.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell by Robert L. Cabes, John Rixie Mouton, Lafayette, for defendants-appellees.
    Before HOOD, CULPEPPER and FOR-ET, JJ.
   CULPEPPER, Judge.

Plaintiffs-lessees sue for damages resulting from the burglary of their jewelry and gift shop in Lafayette. Defendants are the present and the former lessors and their employees. The trial judge granted a summary judgment in favor of J. Arthur Roy, an employee of the former owner, The New Gordon Hotel Company, Inc. He sustained an exception of no cause of action as to Eastern Development & Investment Corporation, the present lessor, and its employee, Sandra Ballard. Plaintiffs appeal only the judgment as to Eastern and its employee.

The issue is whether the defendant-lessor is liable to the plaintiffs-lessees for damages resulting from the burglary of the leased premises by some unknown person.

Since this is an appeal from a judgment sustaining an exception of no cause of action, we consider only the facts alleged in plaintiffs petition. These facts are that in 1973, the plaintiff, Ms. Robicheaux, leased certain ground-floor premises in a building owned at the time by the New Gordon Hotel Company, Inc. In May of 1975, New Gordon sold the building to Eastern Development & Investment Corporation, which employed Sandra Ballard as resident manager. The new owner assumed the obligations of plaintiff’s lease. In June of 1975, Eastern rented the premises immediately adjacent to plaintiffs shop to a man referred to throughout plaintiffs petition as “Mr. X”, whose identity is unknown. Shortly thereafter, plaintiffs shop was burglarized. The burglars entered the shop through a hole cut through the common wall between plaintiffs shop and the premises rented to Mr. X.

Plaintiffs contend the lessor was negligent by:

(1) Renting the above described premises to Mr. X, a person previously unknown without checking his background or the background of his business;
(2) Renting the above described adjacent premises to an unknown person when he knew or should have known there was valuable merchandise on the premises of petitioners and access could be gained to this merchandise through the leased premises;
(3) Failing to warn the petitioners of the circumstances of the lease;
(4) Failing to notify petitioner of the presence of Mr. X under the circumstances then existing;
(5) Failing to exercise reasonable and prudent care under the circumstances then existing;
(6) In general, failing to do what he should have done and could have done to avoid the burglary.”

Appellants’ brief suggests two bases for liability of the lessor: (1) Failure to meet the contractual obligations imposed on the lessor by LSA-C.C. Articles 2692, 2695 and 2703; (2) Failure to exercise reasonable care under LSA-C.C. Articles 2315, 2316 and 2317.

Concerning the first argument, appellants point to the lessor’s duty to maintain his lessee in peaceful possession of the leased premises as well as the lessor’s obligation to indemnify the lessee for loss sustained because of vices or defects of the thing leased.

Appellants contend that their peaceable possession of the leased premises was breached “as a result of the lessor’s failure to provide for the safety of the leased premises from destruction by other tenants.” (Emphasis added) Assuming such a duty is owed by a lessor, we find this argument without merit since there is no allegation in the petition that Mr. X was the burglar. We make this finding fully aware of the statement by the trial judge in his reasons for judgment (Tr. p. 23) that there was such an allegation.

LSA-C.C. Article 2703 provides:

“The lessor is not bound to guarantee the lessee against disturbances caused by persons not claiming any right to the premises; but in that case the lessee has a right of action for damages sustained against the person occasioning such disturbance.”

This article and cases interpreting it relieve the lessor of any duty to protect the lessee against disturbance by a third person with no right to enter the premises. See Gulf Coal & Coke Company v. Bingaman, 6 La. App. 107 (La.App.Orl.1927); Reynolds v. Egan, 123 La. 294, 48 So. 940 (1909); Keenan v. Flanigan, 157 La. 749, 103 So. 30 (La.1925); and 29 La.Law Review at pp. 113 and 114. Under these authorities, the present lessor is not liable for disturbance by the unknown burglars.

In their brief, plaintiffs argue further that the broad provisions of LSA-C.C. Article 2695 protect a lessee against any “vice or defect” in a co-tenant. Appellants cite no case applying this article to a co-tenant. We find this is not the kind of vice or defect contemplated by LSA-C.C. Article 2695. Moreover, plaintiffs do not allege that “Mr. X” had a “vice or defect”. They allege only that defendant did not investigate “his background” to determine whether he had a vice.

Appellant next asks that we find tort liability on the part of the lessor, based on the acts of negligence alleged in the petition. Clearly, defendant owed no general duty under LSA-C.C. Articles 2315, 2316 or 2317 to protect plaintiffs from harm by investigating the backgrounds of prospective tenants.

For the reasons assigned, the judgment appealed is affirmed. Costs of this appeal are assessed against plaintiffs-appellants.

AFFIRMED.


text:
    Perry ANTOINE, Plaintiff and Appellee, v. SENTRY LIFE INSURANCE COMPANY et al., Defendants and Appellants.
    No. 6192.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.
    Voorhies & Labbé by W. Gerald Gaudet, Lafayette, Durrett, Hardin, Hunter, Dam-eron & Fritchie, L. Michael Cooper, Baton Rouge, for defendants and appellants.
    Domengeaux & Wright, Bennett B. Anderson, Jr., Lafayette, for plaintiff and ap-pellee.

      Before HOOD, CULPEPPER and FOR-ET, JJ.
   CULPEPPER, Judge.

Plaintiff, Perry W. Antoine, sued defendants, Charles A. Dorsey, d/b/a Dorsey Insurance Agency (an independent insurance agency), and Sentry Life Insurance Company for the damages for their failure to act within a reasonable time upon plaintiff’s application for disability income insurance. Sentry filed a third party demand against Dorsey. The trial court rendered judgment against only Sentry for the benefits of $600 per month for five years which plaintiff would have received had the policy issued. Sentry’s third party demand against Dorsey was rejected. Sentry appealed. Plaintiff did not appeal, nor answer the appeal, so the issue of Dorsey’s liability is not before us except as to Sentry’s third party demand.

The issues presented are: (1) Did Sentry have an obligation to notify plaintiff within a reasonable time that it rejected his application because of his occupation? (2) If there was such an obligation, did Sentry breach it? (3) If there was such a breach, did this cause plaintiff damage? (4) Is plaintiff’s cause of action in tort or in quasi contract? (If it is tort, it is prescribed since suit was filed more than one year after plaintiff learned his application was rejected by Sentry).

In 1974, Mr. Antoine worked offshore as a roustabout for an oil company. Having recently borrowed money to buy a car and some furniture, he sought to obtain insurance to protect his family in the event he was killed or injured. Working through Dorsey, an independent insurance agency, he applied to Hartford Insurance Company for both life and disability policies in April of 1974. Hartford accepted the life policy, at an increased premium, but it rejected the disability application because of plaintiff’s occupation. Dorsey continued to seek an insurer who would issue the disability policy-

On September 19, 1974, Mr. George Griffin, a field representative of Sentry, happened to visit the Dorsey office while Mr. Antoine was there inquiring as to progress made by the agency. At Mr. Griffin’s suggestion, an application for a disability policy with Sentry was filled out by Dorsey for Mr. Antoine. The application reached Sentry’s home office in Wisconsin on September 30, 1974, but because some questions had been left unanswered, Sentry returned the application to the Dorsey Agency on October 18, 1974.

Although the application had not yet been returned by Dorsey, a Sentry underwriter in Wisconsin reviewed the file for the first time on November 4, 1974 and wrote the Dorsey Agency informing them that the policy could not be issued because of plaintiff’s occupation. On November 22, 1974, the Dorsey Agency returned the completed application to the Sentry home office in Wisconsin. The testimony is in conflict as to when the Dorsey Agency learned of the rejection of the Antoine application by Sentry. However, this fact does not affect our decision.

Mr. Antoine was seriously injured and permanently disabled in an automobile accident on January 12,1975. In April of 1975, he learned that his application had been rejected by Sentry five months earlier. This suit was filed in May of 1976.

At no time was any premium paid to Sentry by plaintiff or by Dorsey.

We first address the issue of whether an insurance company is obligated to accept or reject within a reasonable time an application for insurance. Harding v. Metropolitan Life Insurance Company, 188 So. 177 (Orl.La.App.1939) is the first case in which a Louisiana appellate court allowed recovery on this theory. In Thomas v. Life Insurance Company of Georgia, 219 La. 1099, 55 So.2d 705, 706-707 (1951) our Supreme Court approved the theory with the following comment on the Harding case:

“The doctrine approved by the Court in that case was as announced in Strand v. Bankers’ Life Insurance Co., 115 Neb. 357, 213 N.W. 349, i. e., that since an unreasonable delay and the retention of an unearned premium might deprive an insurable applicant of an opportunity to apply elsewhere for and to procure life insurance, there is a remedy in the form of an action in tort for an unnecessary and negligent delay in performing the duty of acting on the application within a reasonable time if, by such delay, an insurable applicant is prevented from procuring insurance, thus causing a loss.”

See also Wyble v. Preferred Life Assurance Society, 83 So.2d 785 (1st Cir. 1955), Locke v. Prudence Mutual Casualty Company, 172 So.2d 351 (4th Cir. 1965) and Brunt v. Standard Life Insurance Company, 259 So.2d 575 (1st Cir. 1972) in which the Courts of Appeal followed the rule previously enunciated in Thomas.

At this point we note that in all of the above cited cases the plaintiff not only filed an application, but he also paid a premium to the insurer. However, in Brunt the court states a broad rule which does not mention payment of a premium as a prerequisite to recovery. The Court of Appeal notes that this goes beyond the holding of the Supreme Court in Thomas. This statement in Brunt is dicta, since a premium was paid there, and, also, the court ultimately denied plaintiff recovery on other grounds.

We do not extend the holding in Thomas, as the First Circuit indicated in Brunt it would, to this factual situation where no premium was paid. We construe Thomas as requiring payment of a premium.

The second issue presented in whether Sentry, within a reasonable time, notified either plaintiff or Dorsey of its rejection of the application. While not expressly stated in his reasons for judgment it is apparent that the trial judge found Sentry did delay more than a reasonable time to notify the Dorsey Agency and Mr. Antoine of its rejection. He found the application reached Sentry’s office in Wisconsin on September 24, 1974 and that plaintiff did not receive notice of the rejection until April 23,1975, which was after the accident on January 12, 1975. The court chose not to believe Mr. Griffin, the Sentry field representative, who said he told someone in the Dorsey Agency in November of 1974 about the rejection of the Antoine application. We will accept the trial judge’s finding, as it was based on an evaluation of the credibility of the various witnesses. Under this finding of fact, the delay was unreasonable if the plaintiff is otherwise entitled to recovery under the Thomas case.

The third issue is whether Sentry’s failure to communicate the rejection to Mr. Antoine within a reasonable time caused him any damage. As stated above, neither plaintiff nor Dorsey paid any premium to Sentry, so there was no retention of unearned premiums by Sentry which prevented plaintiff from seeking insurance elsewhere. Plaintiff testified that after his application was filed with Sentry in September of 1974, he inquired at Dorsey’s several times and Dorsey assured him he would get the insurance. However, he said that after about the third visit to Dorseys, he began to doubt that Sentry would insure him. Plaintiff admitted he knew he would not be covered until Sentry sent him the policy. He admitted Sentry never indicated to him that he was covered. There is no testimony by plaintiff that he failed to apply elsewhere because he thought Sentry would issue the policy.

Hartford rejected plaintiff’s application because he was a roustabout. Sentry rejected him for the same reason. There was no proof that Mr. Antoine tried to secure disability coverage through any other insurer between September, 1974 and January 12, 1975. There was no showing that any other insurer would have provided the insurance sought by Mr. Antoine, had he applied. In summary, there is no evidence that the failure of Sentry to communicate to plaintiff the rejection of his application prevented him from procuring insurance from Sentry or from any other source.

The First Circuit treated the issue in Brunt v. Standard Life Insurance Company, 259 So.2d 575, 578 (La.App. 1st Cir. 1972):

“We are of the opinion that an insurance company is under a duty to act upon an application for insurance within a reasonable time and that a violation of that duty with resultant damages will subject the company to liability for negligence. The burden of proof in such case is on the plaintiff to show that but for such delay the application would have been approved and the insurance issued in time to have protected the applicant against the loss which occurred to his damage during such period of unreasonable delay.”

In Thomas v. Life Insurance Company of Georgia, supra, our Supreme Court stated:

“On the other hand, even if it be conceded that the company delayed unduly in rejecting Thomas’ application (April 16 to June 12), since the record fails to show that he would have applied elsewhere for insurance or that any company would have issued a policy to him in the condition in which he found himself on and after April 22, it cannot be said that Thomas suffered any loss due to the defendant’s negligence. Nor can recovery be sustained on a theory of estoppel, since the applicant was not misled to his prejudice by the actions of the defendant.”

Also see the cases of Locke v. Prudence Mutual Casualty Company, 172 So.2d 351 (La.App. 4th Cir. 1965) and Wyble v. Preferred Life Assurance Society, 83 So.2d 785 (La.App. 1st Cir. 1955) which state the same rule as to causation. We conclude that, even assuming Sentry was negligent, plaintiff has failed to prove that he suffered a loss due to such negligence.

We pretermit the issue of prescription ably argued by counsel in their briefs. If this is an action ex delicto, then defense counsel correctly notes the action has prescribed. If this is an action arising from a quasi contract, the ten year prescriptive period is applicable, and the plaintiff’s suit is timely. This question we do not answer, as it is clear that plaintiff must lose on the merits.

Since we reject plaintiff’s demand against Sentry, and since plaintiff did not appeal as to Dorsey, both the principal demand and the third party demand against Dorsey must be rejected.

For the reasons assigned, the judgment appealed is reversed and set aside insofar as it casts Sentry Life Insurance Company, and judgment is now rendered rejecting plaintiff’s demands against Sentry. Otherwise, the judgment is affirmed. All costs in the district court, as well as the costs of this appeal, are assessed against plaintiff-appel-lee, Perry Antoine.

REVERSED IN PART, AFFIRMED IN PART.