author: FORET, Judge.

text:
    Succession of Ethel R. SKYE.
    No. 6644.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.
    Gist, Methvin & Trimble by DeWitt T. Methvin, Jr., Alexandria, for plaintiff-appellant.

      William E. Skye, Garrett & Ryland by Donald M. Garrett and B. Dexter Ryland, Alexandria, for defendant-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   FORET, Judge.

Mrs. Ethel R. Skye died in Rapides Parish, Louisiana, May 16, 1974. Her succession was opened on May 30, 1974, and her will was probated and, in accordance with its terms, William Skye was appointed testamentary executor. On November 6, 1975, a petition for homologation of the final account was filed by the executor. On March 8, 1976, a judgment was entered homologating the executor’s final account, along with a judgment of possession. Mary Skye Maycock, daughter of the decedent, filed this suit in an attempt to annul the final account judgment and the judgment of possession alleging that the testamentary executor, William Skye, had committed “fraud or ill practices”. The trial court held that William Skye had not committed fraud or ill practices and refused to annul the final account or re-open the succession.

The facts show that on November 6,1975, William Skye, testamentary executor, filed a petition for homologation of the final account. All of the heirs were served -by certified mail with notice that if no opposition was filed within ten days there would be a judgment homologating the final account. Prior to the expiration of the ten-day period, Charles Yeager, an Alexandria attorney, contacted William Skye on behalf of Mary Skye Maycock, who was then residing in Virginia, and requested a delay in homologation of the final account in order to more fully investigate the succession proceeding. Mr. Skye not only agreed to this delay, but specifically requested that Yeager refrain from filing an opposition so that they could discuss the matter and possibly reach an amicable settlement. During the next four months there were several meetings between William Skye and Mr. Yeager.

On Friday, March 5, Yeager informed Skye that he could no longer represent Mrs. Maycock, because he may have to be a witness in the case because of certain conversations which he had with Skye, and that a letter was in the mail to Skye to this effect. He further informed Skye that Stephen W. Harris, attorney, would take over the representation of Mrs. Maycock. On the morning of March 8, 1976, Yeager’s letter was received by Skye. At 8:30 A.M. on March 8, Skye obtained a certificate of no opposition to the final account. That same morning, Skye had the judgment of homologation of the final account, and a judgment of possession signed. That same afternoon, at 4:19 P.M. Stephen W. Harris, as attorney for Mrs. Maycock, filed an opposition to the homologation of the final account. Later, a third attorney representing Mrs. Maycock filed this suit to nullify the judgment homologating the final account, and to re-open the succession.

On October 28, 1976, the defendants filed peremptory exceptions of res judicata and no cause and no right of action. These exceptions were argued and briefed, and the trial court, for reasons assigned, overruled the exceptions, and a judgment in accordance with this ruling was signed on January 7,1977. On February 23, 1977, the defendants filed an answer to the petition of the plaintiff and a reconventional demand for collation; plaintiff filed answer to the reconventional demand.

In due course this matter was consolidated for trial with the Succession of Samuel Van Skye, 364 So.2d 1361, No. 6643 on the docket of this Court, and was tried before a different trial court judge. On October 24, 1977, the trial court, for written reasons assigned, held that the judgment homolo-gating the final account was res judicata and rejected plaintiff’s petition to re-open the succession without discussing any of the objections raised by the plaintiff to the final account. Judgment in accordance with the court’s opinion was signed on October 31, 1977. The plaintiff made timely application for devolutive appeal.

Applicable statutes, or portions thereof, involving the dispute herein are as follows:

Code of Civil Procedure Article 2001 provides:

“The nullity of a final judgment may be demanded for vices of either form or substance, as provided in Articles 2002 through 2006.”

Code of Civil Procedure Article 2004 provides:

“A final judgment obtained by fraud or ill practices may be annulled . .

Code of Civil Procedure Article 3337 provides:

“A judgment homologating any account other than a final account shall be prima facie evidence of the correctness of the account.
“A judgment homologating a final account has the same effect as a final judgment in an ordinary action.”

Code of Civil Procedure Article 3191 provides in pertinent part:

“A succession representative is a fiduciary with respect to the succession, and shall have the duty of collecting, preserving, and managing the property of the succession in accordance with law. He shall act at all times as a prudent administrator, and shall be personally responsible for all damages resulting from his failure so to act.”

The trial court in this matter concluded that William Skye had not committed “fraud or ill practices”. We agree with the trial court that no fraud was practiced. However, we cannot agree that he did not engage in “ill practices” as that term has been defined by the Louisiana jurisprudence. In the case of Leidig v. Leidig, 187 So.2d 201 (La.App. 3 Cir. 1966), the Court considered the action of nullity by a wife to set aside the judgment of divorce on the grounds of fraud and ill practices where a curator had been appointed to represent her, but the curator had not been given an up-to-date address by the husband who filed the divorce suit. In annulling the judgment of divorce, the court said:

“Under LSA-C.C.P. Article 2004, an ill practice justifying annulment of a judgment encompasses situations where the circumstances under which the judgment is rendered show the deprivation of the legal rights of the litigant who seeks relief, if the enforcement of the judgment would be uneonscientious and inequitable, even though no actual fraud or intentional wrong is shown in the procurement of the judgment. Official Revision Comment (b); St. Mary v. St. Mary, La.App. 3rd Cir. 175 So.2d 893, and decisions therein discussed. The jurisprudence has considered conduct which unfairly prevents the opposing party from having his day in court to urge his defenses is an ill practice justifying annulment of a judgment so obtained. Alonzo v. Bowers, 222 La. 1093, 64 So.2d 443; Hall v. Hall La.App. 2nd Cir. 127 So.2d 347.”

In Alleman v. Guillot, 225 So.2d 607 (La.App. 1 Cir. 1969), the court stated:

The applicable rule is that fraud which justifies annulment of a judgment is not confined to conduct which is fraudulent in the strict sense of the term. The provisions of LSA-C.C.P. 2004 are not limited to cases of actual fraud or intentional wrongdoing but encompasses those situations wherein judgment is obtained through some improper practice or procedure which operates, even innocently, to deprive the party cast of some legal right, and where enforcement of the judgment would be uneonscientious and inequitable. St. Mary v. St. Mary, La.App., 175 So.2d 893, and authorities therein cited.
Each such case must be considered from the viewpoint of whether under its own peculiar circumstances, it would be inequitable or unconscionable to permit the judgment to stand considering the procedure or practice employed therein. Dare v. Myrick, La.App., 168 So.2d 845, and cases therein cited.[]

In Succession of Gilmore, 157 La. 130, 102 So. 94 (1924) the following language is found:

“It is true that said petition does not charge “fraud” or the ill practices specifically enumerated in the article of the Code of Practice above cited. The remedy given by said article to annul judgments, however, is not restrictive. The courts of this state will not hesitate to afford relief against judgments, irrespective of any issue of inattention or neglect, when the circumstances under which the judgment is rendered show the deprivation of legal rights of the litigant who seeks relief, and when the enforcement of the judgment would be unconscientious and inequitable. Our courts will follow the general principles of equity jurisprudence applied by the equity courts of the other states of this country in actions of this character. Lazarus v. McGuirk, 42 La.Ann. 194, 200, 8 So. 253; City of New Orleans v. LeBourgeois, 50 La.Ann. 591, 592, 23 So. 542.
Courts of equity will not permit one party to take advantage of and enjoy the gains of ignorance or mistake of law by the other, which he knew of and did not correct, especially when a confidential or fiduciary relation exists between them. Pomeroy, Equity Juris, volume 2, pars. 847, 848, 849, 956.”

The petition for annulment of the judgment of final accounting, and the judgment of possession, alleges nine instances of possible irregularities in the accounting filed by the executor, William Skye. Mrs. May-cock has not had an opportunity to prove these allegations because of the trial court’s holding that the judgment of final accounting was res judicata. Simply stated, Mrs. Maycock has not had her “day in court”. Under the jurisprudential observations quoted above, we feel that she has been the victim of an ill practice. It was the executor who requested of Mrs. Maycock’s original attorney, Charles Yeager, that Yeager refrain from filing an opposition to the final accounting until such time as Yeager and the executor could discuss possible negotiations of the matter.

Equity cries out that we reverse and set aside the judgment of final accounting, and the judgment of possession involved in this matter, and remand the entire matter to the district court for further proceedings in accordance with the views herein expressed. As was stated in the concurring opinion in Southern Builders, Inc. v. Carla Charcoal, Inc., 357 So.2d 638 (La.App. 3 Cir. 1978), quoting from Justice Frankfurter in Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954):

“ ‘Justice must satisfy the appearance of justice.’ ”

In passing, we mention the provisions of Code of Civil Procedure Article 3191 which state that a succession representative holds a fiduciary capacity to marshal all of the assets of the succession, and make proper distribution thereof, etc. If in truth and in fact Mrs. Maycock’s claims are correct concerning the several substantial items which were not included in the succession of Ethel Skye, and she can prove the other irregularities mentioned in her petition for annulment, then certainly it would appear that the succession representative may have violated his duties as a fiduciary of the Ethel Skye succession. In our view, the entire succession of Ethel Skye should be reopened.

All final judgments previously signed in this matter, in particular, but not limited to, the March 8, 1976 judgment homologating the executor’s final account, and the judgment of possession of the same date are vacated and set aside.

All costs of these proceedings, both in the trial court and on appeal are assessed against the mass of the Succession of Ethel R. Skye.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

      . Cf. Succession of Donellan, 262 So.2d 526 (La.App. 4 Cir. 1972); Johnston v. Smith, 284 So.2d 149 (La.App. 2 Cir. 1973); Succession of Gilmore, 157 La. 130, 102 So. 94 (1924); Spitzkeit v. Robinson, 289 So.2d 846 (La.App. 4 Cir. 1974).


source: Caselaw Access Project

license: Public Domain

text:
    Succession of Samuel VAN SKYE.
    No. 6643.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.
    Gist, Methvin & Trimble by DeWitt T. Methvin, Jr., Alexandria, for plaintiff-appellant.
    William E. Skye, Garrett & Ryland by Donald M. Garrett and B. Dexter Ryland, Alexandria, for defendant-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   FORET, Judge.

Suit No. 6643 was instituted by Mary E. Maycock, sister of decedent, to nullify the judgment of possession dated September 14, 1971, and to re-open her brother’s succession on the grounds that the will probated therein was not the last will and testament of her brother, Samuel Van Skye. In Suit No. 6644, 364 So.2d 1357 (La.App. 3 Cir. 1978), an action was brought by Mary E. Maycock to nullify the homologation of the final account and various provisional accounts in the succession of her mother, Ethel R. Skye, on the basis of alleged ill-practices of the executor, William E. Skye. Judgment was rendered in both suits in favor of the defendant, dismissing the plaintiff’s demands. The plaintiff has perfected this devolutive appeal from both judgments. We will render separate judgments in each case.

The sole issue presented in Suit No. 6643 is whether the judgment of possession of September 14, 1971, should be annulled on the grounds that it was based upon other than the last will and testament of the decedent, Samuel Van Skye. The succession of Samuel Van Skye was commenced on April 29, 1971, pursuant to a petition for authorization to enter a bank box. William E. Skye, an attorney, the decedent’s brother, was the testamentary executor of the estate. On September 14, 1971, the executor was discharged and the succession closed. On April 27, 1976, Mary Maycock instituted this suit to re-open the succession. The will that was probated in the succession of Samuel Van Skye was dated October 23, 1967. Mrs. Maycock testified that she had seen a will dated subsequent to this and that she gave it to her brother, William Skye, and never saw it again. William Skye denied that Mrs. Maycock ever turned any will of Samuel Van Skye over to him and testified that his brother had left numerous writings concerning his will which were not valid testaments.

The trial court found there was insufficient proof to nullify the previously probated will. In cases involving nullity of judgments under Code of Civil Procedure Article 2004, great discretion is given the trial court. Thomas v. Beasley, 295 So.2d 213 (La.App. 3 Cir. 1974); Succession of Davis, 347 So.2d 906 (La.App. 3 Cir. 1977). In this case, there is no showing that the trial court abused its discretion.

We affirm the judgment of the trial court.

Costs of this appeal are assessed against Mrs. Mary E. Maycock.

AFFIRMED.


author: FORET, Judge. GUIDRY, Judge,

text:
    Rose TOWNER, Plaintiff-Appellee, v. DEPARTMENT OF EMPLOYMENT SECURITY, State of Louisiana, and Rest Haven Nursing Center, Defendants-Appellants.
    No. 6667.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Robert W. Daigle, Lafayette, for defendants-appellants.
    Greg W. Belfour, Lake Charles, for plaintiff-appellee.
    James A. Piper and James A. McGraw, Baton Rouge, for defendant-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   FORET, Judge.

This is a suit for judicial review of the denial of the plaintiff, of unemployment compensation benefits, by the Department of Employment Security, State of Louisiana. The claimant applied for unemployment compensation benefits, and was initially determined eligible for benefits by the local agency of the Department of Employment Security. The agency found that the claimant had been discharged from her job while she was on a leave of absence, and therefore she had not been discharged for misconduct associated with her employment.

The ruling of the local agency was appealed to the appeals tribunal for the Department of Employment Security. The appeals referee, after a hearing on the matter, reversed the determination of the local agency. The decision of the appeals referee was then appealed by the claimant to the Board of Review for the Office of Employment Security. The Board of Review denied claimant’s appeal and ordered that the decision of the appeals referee be affirmed.

A petition for judicial review of the Board of Review’s decision was then filed by claimant in the Fourteenth Judicial District Court for the Parish of Calcasieu. Pursuant to LSA-R.S. 23:1634, answers were filed by the Rest Haven Nursing Center, claimant’s employer, and by the Administrator of the Office of Employment Security. The latter, in its answer, requested that the decision of the Board of Review be reversed.

A hearing was held on the matter in the district court on January 13, 1978. Counsel for the State and for Rest Haven made no appearance. The district judge rendered judgment in favor of claimant, reversing the decision of the Board of Review and decreeing claimant to be eligible for unemployment benefits. Rest Haven has perfected this devolutive appeal from the judgment of the district court.

In our opinion, the claimant is not chargeable with misconduct in connection with her employment such as would be required to deny her unemployment compensation benefits. Plaintiff requested, and was granted, a leave of absence from her employment as a cook with the Rest Haven Nursing Center. The purpose of the leave of absence was so that she could see about personal and family problems. The employer claims that claimant was granted a three-week leave of absence from January 24, 1977 to February 14, 1977. Claimant claims that she did not understand that the leave of absence was for a definite period of three weeks. She claims that she understood that she could come back to work when she had cleared up the matters for which she had taken said leave. At any rate, claimant did not return to work at the end of the three weeks, but rather, on February 20, she called her employer to inquire when she was supposed to return to work. She was then informed that she was supposed to return to work on the previous Monday, that is, February 14, and having failed to do so, she had been replaced.

The issue is whether claimant is guilty of any misconduct in connection with her employment such as to deny her unemployment compensation benefits.

LSA-R.S. 23:1601(2) provides in pertinent part as follows:

“An individual shall be disqualified for benefits:
(1) if the administrator finds that he left his employment without good cause connected with his employment; . . .
(2) if the administrator finds that he has been discharged for misconduct connected with his employment . . ”

Under the first paragraph of Section 1601, quoted above, we conclude that the claimant did not leave her employment voluntarily. Where there is a leave of absence mutually agreed on by the employer and employee, the employee does not voluntarily quit his job for purposes of determining eligibility for unemployment compensation benefits following failure of the employer to re-employ the employee at termination of the leave. LSA-R.S. 23:1601; Smith v. Gerace, 339 So.2d 410 (La.App. 1 Cir. 1976); South Central Bell Telephone Co. v. Administrator, Div. of E.S., 247 So.2d 615 (La.App. 3 Cir. 1971), writ refused, June 28, 1971.

Concerning the issue of whether the claimant was guilty of such misconduct in connection with her employment as to justify the denial of unemployment compensation benefits, we are of the opinion that she was not. Apparently the Administrator of the Office of Employment Security, State of Louisiana, is of the same opinion, for he requested, in his answer to this suit, that the holding of the Board of Review denying claimant’s demand for unemployment compensation benefits be reversed. Accordingly, is this Court bound by the findings of fact of the Board of Review? Under these circumstances, we conclude that we are not bound by the rule of law that administrative determinations of fact are conclusive unless wholly without evidential support, or wholly independent on the questions of law, or clearly arbitrary or capricious. In this case there is obviously a difference of opinion between the Administrator of the Office of Employment Security and the Board of Review. While the Board of Review and the appeals referee are of the opinion that claimant should be disqualified for benefits, the local agency which originally considered claimant’s application and now the Administrator of the Office of Employment Security are of different views.

The Louisiana Employment Act is within the class of social and economic legislation which should be interpreted so as to extend its benefits as far as possible within the bounds imposed by the expressed legislative restriction. We adhere to the principle that the Louisiana Employment Act is to be construed liberally in favor of the unemployed worker. A liberal construction in this case requires us to find that the claimant herein is entitled to unemployment benefits, as did the district court. Smith v. Gerace, supra; Hale v. Gerace, 324 So.2d 558 (La.App. 1 Cir. 1975), writ refused; Lambert v. Brown, 169 So.2d 4 (La.App. 2 Cir. 1964); Southern Hardware and Lumber Co. v. Vesich, 250 So.2d 780 (La.App. 4 Cir. 1971).

For the above reasons, the judgment of the trial court is affirmed.

Costs of this appeal are assessed against appellant, Rest Haven Nursing Center.

AFFIRMED.

GUIDRY, J., dissents and assigns written reasons.

GUIDRY, Judge,

dissenting.

In this case my brethren acknowledge that a genuine issue of fact exists as to whether or not claimant’s employment was terminated for misconduct associated with her employment. This factual controversy was resolved by the appeal tribunal for the Department of Employment Security in favor of the employer. The appeal tribunal, after hearing testimony in this matter, concluded as follows:

“From the facts and testimony presented, it is concluded that the claimant was granted a three week leave of absence to attend to personal business. The claimant was scheduled to return to work on 2/14/77. She was also requested that she keep in touch with the employer which she failed to do. It is further concluded that the claimant was not replaced while off on a leave of absence; however, she was replaced after the leave was over and the claimant failed to return to work. IT IS ORDERED THAT the determination of the Agency, assessing no disqualification be reversed and a disqualification be assessed as of 1/21/77, the claimant’s last day of actual work with this employer.”

The decision of the appeal tribunal denying unemployment benefits based upon the factual findings above set forth was then appealed to the board of review for the Office of Employment Security. The board of review denied claimant’s appeal and ordered that the decision of the appeal tribunal be affirmed. Under such circumstances the decision of the appeal tribunal is deemed to be a decision of the board of review for purposes of judicial review. LSA-R.S. 23:1630.

My brethren of the majority, like our trial brother, reverse, choosing not to accept the findings of fact made by the board of review. In substituting their own factual determination for that of the board of review, the majority concludes, as did the trial judge, that the provisions of LSA-R.S. 23:1634, regarding the scope of judicial review of a decision of the board of review, are rendered nugatory because the administrator of the Office of Employment Security requested in his answer to the petition for judicial review that the holding be reversed. In my opinion, this conclusion and the majority’s refusal to limit review pursuant to the provisions of LSA-R.S. 23:1634, is error.

To conclude that the administrator, who is deemed a party to a judicial review proceeding can, simply by filing answer requesting a reversal of the decision of the board of review, alter the scope of judicial review as statutorily provided is illogical. If this be so the function of the appeal tribunal and the board of review are useless and the language of LSA-R.S. 23:1634, limiting the scope of judicial review, is rendered meaningless, as the administrator can by his unilateral action bring about a de novo determination in the courts of the eligibility or non-eligibility of an unemployment compensation claimant. This is clearly not the intent of the Louisiana Employment Security Law.

My review of the record reflects the factual findings of the appeal tribunal to be amply supported by the record. This being so and considering that there is no contention that the decision resulted from fraud or ill practices, I would accept the foregoing findings of fact as conclusive with the only remaining issue concerning whether claimant’s actions constituted “misconduct connected with her employment” which disqualifies her as a matter of law from benefits under the act. LSA-R.S. 23:1634; Ware v. Doyal, 320 So.2d 212 (La.App. 3rd Cir. 1975).

As to the remaining issue the record reflects that it was against the policy of Rest Haven for an employee to take a leave of absence without previously securing the express approval of its administrator. The granting of such a leave was, therefore, purely within the discretion of the administrator. When claimant was granted a leave of absence, it was for a three week period, with the understanding that she would keep in touch with her employer. During the period of claimant’s absence, her duties were assumed by her supervisor, who had to perform her own supervisory duties as well.

I would find that claimant’s actions in failing to contact her employer during her leave of absence as well as taking an additional unauthorized six-day leave, without notification as to when she would return, if ever, constituted an intentional and substantial disregard of her obligations to her employer. When Rest Haven accommodated claimant’s request for a leave of absence, it had the right to expect her to be absent only those days expressly agreed upon, and to make periodic contact with its administrator or supervisor. I would conclude that the appeals tribunal correctly found these actions to be misconduct connected with claimant’s employment, which disqualify her for unemployment benefits as of January 21, 1977.

For these reasons I respectfully dissent.

      . Although the district judge did not assign written reasons for judgment, the formal judgment rendered and signed on January 13, 1978, contains the following explanation for the judgment of the court:
      “In view of the answer filed by the Administrator, and no appearance being made by opposing counsel, and it appearing from the record that the evidence is favorable as to the plaintiff, Rose Towner: . . . ”

      . “In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law” (Emphasis ours.)


author: WATSON, Judge.

text:
    TRUNKLINE GAS COMPANY, Plaintiff-Appellant, v. ADMINISTRATOR, DEPARTMENT OF EMPLOYMENT SECURITY of the State of Louisiana, et al., Defendants-Appellees.
    No. 6674.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.

      Oliver & Wilson, J. Michael Rhymes, Monroe, for plaintiff-appellant.
    James A. McGraw, Baton Rouge, for defendant-appellee.
    Edith C. McKay, in pro per.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

Plaintiff, Trunkline Gas Company brought this suit against defendants, the Administrator of the Department of Employment Security of the State of Louisiana and Edith C. McKay, asking judicial review of the Board of Review’s decision that Ms. McKay is entitled to unemployment compensation benefits. The trial court judgment affirmed the Board of Review of the Department of Employment Security and plaintiff Trunkline has appealed.

At the hearing, claimant McKay testified that she worked for Trunkline Gas Company in Pollock, La., from March, 1974, until October, 1976, or about two and one-half years. She had a maintenance job and earned $6.02 per hour, working from 8:00 a.m. until 4:30 p.m., five days per week, Monday through Friday. She was advised that she would have to change to shift work or quit. Ms. McKay testified that she had not understood that shift work would ever be required of her and she was unable to do it because of her small child. She therefore advised her immediate supervisor, Bob Otis, that she had to quit the job.

The Louisiana Department of Employment Security determined that the claimant quit her job after her working agreement with the employer was changed to require her to do shift work and that her leaving was with good cause connected with her employment. The appeals referee found no disqualification for benefits under LSA-R.S. 23:1601, and the referee’s decision was affirmed by the Board of Review.

Trunkline Gas contends that it received no notice of the hearing. The Houston supervisor of employment of Trunkline Gas Company, Alta R. McCrehan, advised the Department, by letter, that the notice to appear for hearing was received in the Houston office, but, although the notice indicated a carbon copy was sent to the Pollock office, it was not received in Pollock. A second letter from Ms. McCrehan to the Board of Review states as follows:

“At the time that the first hearing on Thursday, February 10, 1977 was can-celled, your Alexandria, Louisiana office notified our Pollock, Louisiana office by phone that the hearing had been reset for February 16, 1977 and that they would receive a ‘Notice to Appear for Hearing.’ This notice was received in this office, but was not received at Pollock. The notice we received showed that a carbon copy was sent to our Pollock location, but unbeknownst to us, it was never received.”

Trunkline Gas contended in the trial court and here that it did not receive proper notice of the hearing; and that there was insufficient evidence for the findings of the Board of Review. Trunkline seeks a remand for receipt of further evidence. .

The trial court denied remand for additional evidence, as allowed by LSA-R.S. 23:1634, because the direct sworn testimony of Ms. McKay was found to constitute sufficient evidence for the decision of the Board of Review, thereby meeting the test of Hall v. Doyal, 191 So.2d 349 (La.App. 3 Cir. 1966).

The claimant’s sworn testimony alone is sufficient evidence to meet the requirements of LSA-R.S. 23:1634. See Hall v. Doyal, supra. Sufficient evidence is analogous to “. . . proof of the demand sufficient to establish a prima facie case.” as set forth in LSA-C.C.P. art. 1702. Hearsay evidence does not suffice. See Blackwell v. Daigle, 317 So.2d 18 (La.App. 3 Cir. 1975), writ denied, 320 So.2d 563. Here, however, Ms. McKay’s testimony was sworn and is sufficient to constitute sufficient evidence for the decision of the Board of Review.

The notice to appear for hearing indicates that the employer was advised both at its Houston and Pollock offices that a hearing would be held February 16, 1977. There is a rebuttable presumption that the information on the face of such a notice is correct. Houston v. Administrator of Division of Emp. Sec., 191 So.2d 167 (La.App. 3 Cir. 1966). The only evidence presented to rebut this presumption were the letters from Ms. McCrehan. These letters convey only secondhand, hearsay information. No direct evidence was offered to rebut the presumption of notice. Oral notice to the Pollock office was admitted and should have been sufficient to produce further inquiry if the written notice was in fact not received. Review was sought solely on the basis of the two letters from Ms. McCrehan. No other evidence was proffered to the Board of Review. The letters are not competent evidence and show no ground to remand for additional evidence by the Board of Review.

For the foregoing reasons, the judgment of the trial court herein is affirmed at the cost of plaintiff-appellant, Trunkline Gas Company.

AFFIRMED.


author: DOMENGEAUX, Judge. WATSON, Judge,

text:
    Julia LINGO, Plaintiff-Appellant, v. STATE of Louisiana, DEPARTMENT OF EMPLOYMENT SECURITY, et al., Defendants-Appellees.
    No. 6670.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.

      Knoll & Knoll, Jerold E. Knoll, Marks-ville, for plaintiff-appellant.
    Donald J. Wall, Baton Rouge, James A. Piper, James A. McGraw, Willie D. Maynor, Baton Rouge, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX, and WATSON, JJ.
   DOMENGEAUX, Judge.

Plaintiff-appellant, Julia Lingo, filed this suit under the provisions of the Louisiana Employment Security Law, La.R.S. 23:1471, et seq. She was denied unemployment benefits by the Louisiana Department of Employment Security. In due course that denial was affirmed by the Appeals Referee and finally by the Louisiana Board of Review. Ultimately the action of the Board of Review was affirmed by the District Court.

In unemployment compensation cases the jurisdiction of our courts is confined to questions of law, and the findings of the Board of Review as to the facts, if supported by sufficient evidence, and in the essence of fraud, is conclusive.

The following issues are presented in this appeal:

(1) Did the Appeals Tribunal for the office of Employment Security deny plaintiff an opportunity to a fair hearing, namely, to present testimony and evidence in her behalf?
(2) Was plaintiff subjected to discriminatory and unfair treatment sufficient to constitute good cause for her resignation?

Plaintiff and her husband were employed at the Angola Penitentiary on the 5:00 A. M. to 1:00 P. M. shift. She was a nurse and he was a dietitian. Approximately two months before her resignation, Mrs. Lingo’s working hours were changed to the 6:00 A. M. to 2:00 P. M. shift. When prison authorities denied plaintiff’s request to return to the 5:00 A. M. to 1:00 P. M. shift, so that her schedule would coincide with her husband’s, plaintiff resigned. The agency determination stated: “You quit your job after you were not allowed to transfer to the same shift as your husband. Your leaving was for a personal reason and without good cause connected with this employment.”

Plaintiff’s claim that the Referee denied her an opportunity to a fair hearing is without merit. Although the rules of evidence at administrative hearings of this type are more relaxed than rules of evidence in court proceedings, they are not so relaxed as to allow into evidence non-expert opinions and hearsay evidence. We do find that the Referee disallowed plaintiff’s testimony when it consisted of hearsay and surmises.. However, our review of the record indicates that the Referee did allow plaintiff and her witnesses to testify to all competent evidence. Our review of the record indicates that the Referee may have been rather punctilious in his conduct of the hearing, however, we cannot say that plaintiff was not provided a fair and impartial hearing.

The appellant further contends that she was subject to discriminatory and unfair treatment. She has failed to prove this. • It is an employer’s prerogative to revise work schedules. This option is limited only by contractual limitations on his freedom and by legal guarantees of equal treatment. These limitations do not proscribe legitimate changes which the employer feels benefits the organization, although simultaneously creating an inconvenience to the employee when, as here, no contractual limits have been proven.

Mrs. Lingo argues that it would be very “inconsiderate” to make her come to work one hour early with her husband and to make him wait one hour on her in the afternoon before they could return home together. Under the facts presented, we cannot say that this amounts to discrimination on the part of her employer.

For the above reasons, the judgment of the District Court is affirmed. Costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

WATSON, J., concurs and assigns written reasons.

WATSON, Judge,

concurring:

I concur because the mere changing of one hour in a shift assignment did not, in my opinion, justify plaintiff in resigning her job. Under some circumstances, the changing of a work schedule may constitute good cause for leaving employment. See, for example, Trunkline Gas Company v. Administrator, Department of Employment Security of the State of Louisiana, et al., 364 So.2d 1365 (La.App. 3 Cir. 1978), which is distinguishable from the present case.


author: CUTRER, Judge.

text:
    Irene THIBODEAUX, Plaintiff-Appellee, v. MEAUX’S AUTO SALES, INC., Defendant-Appellant.
    No. 6686.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.
    Devillier & Ardoin, Kenneth Pitre, Eunice, for defendant-appellant.
    Pucheu & Pucheu, Jacque B. Pucheu, Jr., Eunice, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON and CUTRER, JJ.
   CUTRER, Judge.

This is a suit in redhibition against Meaux’s Auto Sales, Inc., in which the plaintiff seeks a voidance of the sale and the restitution of the price of a 1974 Toyota. The trial court found that the waiver of warranty incorporated in the sale agreement was ineffective. He further found that the vehicle contained a redhibitory vice (defective frame and steering assembly) which was present at the time of sale, and was such that the purchase price should be returned to plaintiff. The trial court ordered a credit of 8 cents per mile for the use of the vehicle by the plaintiff. From a judgment accordingly defendant appeals. We affirm.

The defendant-appellant raises the following specifications of error:

“1. The Trial Court erred in holding the waiver was not effective;
“2. The Trial Court erred in holding that the vice existed at the time of the sale;
“3. The Trial Court erred in granted full restitution of the purchase price, instead of merely granting a reduction in price;
“4. The Trial Court erred in allowing only half credit for the use of the automobile.”

I.

WAS THE WAIVER OF WARRANTY EFFECTIVE?

The bill of sale which was signed by the plaintiff and a salesman for defendant (Kenneth Lejeune) contained the following provisions that pertain to the alleged waiver of warranty:

“. . . Purchaser, (signed) Irene D. Thibodeaux, does hereby waive the warranty of fitness or guarantee against the redhibitory vices applied in Louisiana by operation of law, more specifically, that warranty imposed by Civil Code Article 2476, or other applicable law. . Additionally, I forfeit any right I may have in redhibition pursuant to Civil Code Article 2520 and following Articles, subject to the above described restricted warranty. . . . ”

The law pertaining to warranty and waiver thereof is as follows:

Article 2475 of the Civil Code sets forth the two principal obligations of the seller by providing that:

“Art. 2475. The seller is bound to two principal obligations, that of delivering and that of warranting the thing which he sells.”

One of the objects of this warranty by the seller is hidden defects of the thing sold or its redhibitory vices. Article 2476.

“Every sale in this state carries with it the legal warranty set out in Art. 2476, in that the thing sold is free of hidden defects or redhibitory vices. This warranty of fitness applies by operation of law, but it may be waived by the buyer.” Guillory v. Morein Motor Company, Inc,, 322 So.2d 375 (La.App. 3rd Cir. 1975).

It is well established that, for a waiver of warranty to be effective, three requirements must be met:

“(1) The waiver must be written in clear and unambiguous terms;
“(2) The waiver must be contained in the sale and chattel mortgage document; and
“(3) The waiver must either be brought to the attention of the buyer or explained to him.” Hendricks v. Horseless Carriage, Inc., 332 So.2d 892 (La.App. 2nd Cir. 1976).

An examination of the purported waiver and testimony surrounding the execution of same reflects that this waiver is ineffective as it does not meet the requirements of Numbers (1) and (3) above.

The language of this purported waiver is couched in legal terms, and not in terms which may be read and understood by a layman. The requirement “clear and unambiguous” means that the language used must be comprehendible by the average buyer. The plaintiff, a woman with a sixth grade education, stated that she did not know the meaning of the words “redhibito-ry vices,” “redhibition,” nor was she acquainted with the provisions of the Civil Code cited in the instrument. The plaintiff cannot be expected to be acquainted with these legal terms or their implications. This instrument did not contain “clear and unambiguous” language. Guillory v. Morein Motor Company, Inc., supra.

The instrument also fails to meet the requirement that it must be explained to the buyer or brought to her attention. The testimony of the salesman, Kenneth Le-jeune, reflects that he did not explain nor did he point out the waiver to the plaintiff. He stated he did not know what the waiver provisions meant. He only explained the “restricted warranty” provisions.

We hold that, having failed to meet the requirements of law, the purported waiver is of no effect.

The defendant relies on the case of Foy v. Ed Taussig, Inc., 220 So.2d 229 (La.App. 3rd Cir. 1969), which held a waiver valid. That waiver is distinguishable from the instrument here, in that, in Foy, the waiver was more explicit and understandable by an ordinary buyer.

II.

DID THE VICE EXIST AT THE TIME OF PURCHASE?

The undisputed facts reflect that plaintiff purchased the 1974 Toyota from defendant on May 14, 1977, for a purchase price of $2,277.50. Shortly after purchase, she noticed that it developed a wobbling effect, and steering problems developed as the speed of approximately 35 miles per hour was reached. Vernon Johnson, an expert, testified that he examined the vehicle on May 23, 1977 (9 days after purchase) and found the frame and cross member on the right side were rusted out. Harry Lafleur, an expert, testified that his examination of the vehicle on June 15, 1977 reflected that the rusting condition existed before the purchase of the automobile on May 14, 1977. She took it to Hueit Guillory, a qualified expert, for examination on June 15, 1977. He found a serious rust problem or an eating away of the frame on the right side including the cross member which affected the steering mechanism.

Our examination of the record convinces us that the trial judge committed no manifest error in his conclusion that the defect existed at the time of the sale from defendant to plaintiff.

III.

REDHIBITION OR REDUCTION IN PRICE.

The law on this issue is set out in the case of Perrin v. Read Imports, Inc., 359 So.2d 738 (La.App. 4th Cir. 1978), which held:

“The basic test of whether a defect is a redhibitory one is whether it so affects the use of the thing sold that ‘it must be supposed that the buyer would not have purchased it, had he known of the vice.’ C.C. 2520. To this test, however, the 1974 amendment of C.C. 2531 adds, as to the good-faith seller, that ‘if he be unable or fails to repair, remedy or correct the vice, then he must restore the purchase price . ’ ” [Emphasis supplied]

The undisputed evidence reflects that the rust-eaten frame and cross member adversely and seriously affected the steering mechanism of the vehicle. The car when driven above approximately 35 miles per hour would “wobble” or “float,” presenting control problems. The frame and cross member thereof were eaten away by rust in the area of the steering mechanism, which presented a serious vice and was such that it can be presumed that the plaintiff would not have purchased the car had she known of the vice.

After obtaining the estimate of $813.63 for repair she discussed the situation with Mr. Meaux, the owner of the defendant company. She brought the car to defendant’s car lot and Mr. Meaux refused to repair it and told the plaintiff not to leave the vehicle at the lot. Mr. Meaux admitted that he refused to repair the defective area.

Having concluded that the vice was of such a nature that it can be presumed that the plaintiff would not have purchased the vehicle if she had been aware of such vice and also the fact that defendant refused to repair same, the plaintiff is entitled to full restitution for the purchase price, subject to any credit allowable.

IV.

CREDIT FOR USE.

The trial court in its reasons for judgment allowed credit for use at the rate of 8 cents per mile for 9,561 miles or $764.88. The court reasoned that: “The Court would normally allow 16 cents per mile, but the Court finds there has been only a limited or ‘half-use’ because of the defects.”

In the recent case of Alexander v. Burroughs Corporation, 359 So.2d 607 (La.1978), the court observed as follows:

“A credit for a purchaser’s use of a product may be proper in certain instances, even in favor of a bad faith seller Compensation for the buyer’s use, however, ought not be granted automatically by the courts; even the value of an extensive use may be overridden by great inconveniences incurred because of the defective nature of the thing and constant interruptions in service caused by the seller’s attempts to repair. .

The fact that the defect in plaintiff’s vehicle limited its use and caused inconveniences can be considered by the court in its calculation of credit for use. We find no abuse in the trial court’s discretion in this regard.

Our affirmation of the method used by the trial judge in calculating a credit for use is not meant to infer that this method would be the correct one in each and every case. We merely find that it is proper and equitable in this case.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the defendant-appellant.

AFFIRMED.

      . “Q. You read her everything on this sale?
      “A. I read her that Meaux’s Auto Sales was selling her a car of that particular number, so and so, — and that the car was warranted for 50%, or 30 days, or a thousand miles for motor transmission problem.
      “Q. Anything else?
      “A. No, sir.
      “Q. That’s what you told her?
      “A. Yes, sir.”
      * * * * * *
      “Q. Do you know what a rehibitory vice is?
      “A. No — I
      “Q. Do you know anything about Civil Code Article 2476?
      “A. No, sir.
      “Q. You didn’t explain anything like that to Mrs. Thibodeaux? You didn’t explain to her that she was waiving any rights or anything?
      “A. No, sir. I explained to her the warranty she had.
      “Q. You didn’t explain any waiver of any rights?
      “A. Waiver of any rights?
      “Q. Yes.
      “A. No.”
      The “50% ” warranty referred to by the salesman provided that defendant agreed to pay 50% of any charges to repair or replace the motor and/or transmission for a period of 30 days or 1000 miles. The “50%” warranty did not apply to the defect herein as the defect in this case did not concern the motor or transmission.


author: DOMENGEAUX, Judge.

text:
    Robert SANDERS, Plaintiff-Appellee, v. GENERAL AMERICAN LIFE INSURANCE COMPANY, Defendant-Appellant.
    No. 6691.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.

      Stafford, Randow, O’Neal & Smith, Larry Stewart, Alexandria, for defendant-appellant.
    Ralph W. Kennedy, Jr., Alexandria, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   DOMENGEAUX, Judge.

This is a suit to recover benefits from a group health policy issued by defendant, General American Life Insurance Company.

Plaintiff began working for the Orkin Exterminating Company in Alexandria, Louisiana, in March of 1974. Although he had chronic diverticulitis prior to his employment with Orkin, he had no difficulty with this condition at the time he commenced work. After working for several months, he began to have problems with his pre-existing condition and also developed headaches, dizziness, and nausea. He was admitted to a hospital in Alexandria for treatment on October 14, 1974. He was discharged on October 17, 1974.

Appropriate forms for benefits were submitted to the insurance and claims department of Rollins, Inc. Rollins, Inc. is a related company to Orkin, however, the record does make clear the nature of the relationship. Plaintiff felt that his health problems were related to the exposure to insecticides and chemicals necessitated by his job, and, therefore, one of the forms submitted indicated that his illness was work related. Rollins, Inc. sent the claim to Continental Casualty Company, the workmen’s compensation insurer. Since benefits were not forthcoming from Continental, suit for workmen’s compensation benefits were filed against it and Orkin on February 18, 1975. A compromise agreement was entered into before trial by which plaintiff received $1,000.00 in settlement of his claim. The suit was dismissed with prejudice.

On August 18, 1975, after the compromise, plaintiff’s attorney sent an inquiry to Orkin concerning the collection of benefits under the group health insurance policy. On September 24, 1975, Rollins, Inc. sent a letter in reply in which it stated that, since workmen’s compensation benefits had been paid by the compromise, benefits under the group health insurance policy could not be paid. Nevertheless, on November 26, 1975, new claim forms were sent to Rollins, Inc., with instructions to forward them to the group health insurer, General American Life Insurance Company, defendant herein. The claim was received by General American on December 12, 1975, but the insurer refused to pay.

The present suit was filed on February 28, 1977, against General American, seeking to recover medical expenses, penalties, and attorney’s fees. After trial on the merits, judgment was rendered against the defendants for $393.56 for medical expenses, $393.56 for penalties, and $1,500.00 for attorney’s fees. Defendant appeals.

On appeal, defendant contends that the trial judge erred in the following four respects:

1. By failing to conclude that insurance benefits were not due since plaintiff received from his employer’s workmen’s compensation insurer a sum in settlement of a workmen’s compensation suit;

2. By concluding that plaintiff should not be bound by his judicial confession in the prior workmen’s compensation suit;

3. By failing to apply principles of es-toppel; and

4. By awarding statutory penalties and attorney’s fees.

I.

The policy in question contains a broad exclusionary provision for occupational related accidents and illnesses.

In the limitations section of the policy, the following language is found:

“Benefits shall not be payable under the Major Medical Expense Insurance provisions of this policy for or in connection with A) any medical care, services and supplies which do not come within the definition of covered expenses, or B) any of the following:
12) sickness covered by Workmen’s Compensation law, occupational disease law, or laws of a similar character; or injury arising out of or in the course of any occupation or employment for compensation, profit or gain;

The insurer argues on appeal that this exclusionary provision applies in two circumstances. It maintains that the phrase “sickness covered by Workmen’s Compensation law, occupational disease law, or laws of a similar character” applies to situations where benefits are received under the guise of a workmen’s compensation statute, without regard to whether recovery is proper under those statutes; and that the phrase “injury arising out of or in the course of any occupation or employment for compensation, profit or gain” applies only where benefits are properly recoverable under the compensation statutes, i. e. whether a plaintiff would ultimately prevail in a workmen’s compensation suit.

It contends that plaintiff in the instant case is automatically precluded from benefits by virtue of the first exclusion because he received a compensation settlement, and that it makes no difference whether his benefits were properly payable under our compensation statutes. We disagree and find that the insurer has placed a strained interpretation on its policy.

The exclusion refers to “sickness” on the one hand, and “injury” on the other. “Sickness” is coupled with terms referring to workmen’s compensation statutes. “Injury” is coupled with the standard formula “arising out of or in the course of.” The reason for this seems clear. “Sickness” and “injury” are generally understood to have different meanings. Our compensation statutes provide for benefits for an employee for a “personal injury by accident arising out of and in the course of his employment.” La. R.S. 23:1031 (emphasis supplied). On the other hand, our compensation statutes provide for benefits for an employee for an occupational disease, which we feel can be equated with “sickness,” only under the conditions provided for in La. R.S. 23:1031.1. By using the term “sickness” and “injury” the insurer attempted to cover all situations where recovery might be had by an employee under the workmen’s compensation statute, whether the malady be considered a personal injury or occupational disease.

Defendant also maintains that the multiple coverage limitations would prevent plaintiff from collecting under the policy. This provision states:

“If any person covered under this policy is also covered under any other Plan (as defined below) and is entitled to benefits or services as to medical care, services or supplies for which benefits are payable under this policy, the benefits otherwise payable under this policy shall be adjusted to the extent hereinafter provided if required by the terms of this provision so as to take account of the benefits or services under such other Plan.
As used in this Multiple Coverage Limitation and Coordination provision,
1) ‘Plan’ means any plan providing benefits or services for or by reason of medical or dental care or treatment which benefits or services are paid for, payable, or furnished under any group, franchise, or blanket insurance, group Blue Cross, group Blue Shield, or other group service or prepayment plan participated in by payroll deduction, contribution, or otherwise by an employer, trustee, union, or employee benefit association, or any federal, state or other governmental plan or law, as reported to the Company by the Policyholder or otherwise, to the extent so paid for, payable or furnished.

The insurer maintains that a workmen’s compensation settlement would fall into the definition of “plan” as being a “state or other government plan or law.”

We feel that under both the exclusionary provision and the multiple coverage limitations the essential inquiry remains: Is the “sickness” or “injury” suffered by the claimant properly compensable under our workmen’s compensation statutes. Turning to the instant case, we find that plaintiff’s illness could not be compensated under our workmen’s compensation law.

The only medical evidence contained in the record bearing on the cause of plaintiff’s illness is a letter from Dr. G. L. Hov-natanian, who treated plaintiff in October of 1974, entered into the record without objection. This letter states, in part:

“As for his diarrhea and proctitis, I should state that while there is a possibility that Mr. Sanders’ work could be related to this condition, there is no clinical way to prove or rule this out. I should also state that this possibility is rather remote.”

The only other evidence bearing on this point is the testimony of plaintiff, who stated that he thought that the chemicals which he was using aggravated his previous condition and that the chemicals caused dizziness.

We feel, as did the trial judge, that this evidence is insufficient to establish that plaintiff’s illness was related to his work and compensable in workmen’s compensation. We consider the cause of plaintiff’s illness a fact question, and will not reverse a factual determination in the absence of manifest error.

II.

In his prior workmen’s compensation suit, plaintiff alleged, inter alia, the following:

“5.
Plaintiff then and there sustained an accidental injury in substantially the following Manner: He contacted [sic] an occupational disease while inhaling various insecticides in association with his work.
6.
a. poisioning from various chemicals, and
b. traumatic neurosis, conversion hysteria, and other functional disorders.
7.
In addition to the injuries hereinabove referred to, and as a direct result of the accident, plaintiff sustained traumatic aggravation, acceleration and precipitation of pre-existing dormant and underlying conditions, which, prior to the accident, did not adversely affect his ability to work.”

Defendant contends that the plaintiff should be bound by these allegations by virtue of Article 2291 of the Louisiana Civil Code.

Article 2291 provides:

“The judicial confession is the declaration which the party, or his special attorney in fact, makes in a judicial proceeding.
It amounts to a full proof against him who has made it.
It can not be divided against him.
It can not be revoked, unless it be proved to have been made through an error in fact.
It can not be revoked on a pretense of an error in law.”

We find that the concept of judicial confession is not applicable to this controversy. The workmen’s compensation proceedings were completely separate from the proceedings presently before us. The defendant was also completely different. As such, the unrelated petition did not bind plaintiff in the present suit.

III.

Defendant also maintains that plaintiff should be equitably estopped from taking a position contrary to his prior pleadings and the subsequent compromise.

The Louisiana Supreme Court discussed the doctrine of equitable estoppel in American Bank and Trust Company v. Trinity Universal Insurance Company, 251 La. 445, 205 So.2d 35 (1967). It stated:

“Equitable estoppel may be defined as the effect of the voluntary conduct of a party whereby he is precluded from asserting rights against another who has justifiably relied upon such conduct and changed his position so that he will suffer injury if the former is allowed to repudiate the conduct. Pounded upon good faith, the doctrine is designed to prevent injustice by barring a party, under special circumstances, from taking a position contrary to his prior acts, admissions, representations, or silence. .
Since estoppel bars the normal assertion of rights, courts apply the doctrine cautiously. .
To raise an equitable estoppel, the record must establish not only that the pleader relied upon a representation or other conduct, but also that he was justified in so doing. Justifiable reliance is fundamental.” [Citations omitted]

See also, Holleyman v. Garbarino, 358 So.2d 365 (La.App. 3rd Cir. 1978), writ denied, 359 So.2d 1304 (La.1978).

Crucial to the argument is the showing of detrimental reliance. The insurer here has shown no such reliance, and, therefore, this argument is rejected.

IV.

La. R.S. 22:657 provides for a penalty payable to the insured at double the amount of health and accident benefits due and for attorney’s fees, where the insurer unreasonably and imprudently withholds benefits. Defendant argues that it had a reasonable basis for withholding benefits.

We find that the insurer did not have a reasonable basis for withholding benefits in this case. Although an insurer has a right to test its liability on an insurance contract and demand a judicial interpretation of its policy provisions, the company must do so at its own expense and not at the expense of the insured. Rushing v. American Income Insurance Company, 274 So.2d 458 (La.App. 3rd Cir. 1973); Albert v. Cuna Mutual Insurance Society, 255 So.2d 170 (La.App. 3rd Cir. 1971); Niles v. American Bankers Insurance Company, 229 So.2d 435 (La.App. 3rd Cir. 1969), writ denied 255 La. 479, 231 So.2d 394 (1970).

The trial court awarded attorney’s fees in the amount of $1,500.00, which defendant contends is excessive. The amount awarded rests largely within the discretion of the trial judge. Humphries v. Puritan Life Insurance Company, 311 So.2d 534 (La.App. 3rd Cir. 1975); Niles v. American Bankers Insurance Company, supra. Considering the services rendered by plaintiff’s counsel, we think that the amount of attorney’s fees is fair.

For the above reasons the judgment of the District Court is affirmed at appellant’s costs.

AFFIRMED.


text:
    Adam DEVILLE, Plaintiff-Appellee, v. TOWN OF BUNKIE et al. (Bobby Higden & American Home Assurance Co.), Defendants-Appellants.
    No. 6701.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.
    Writ Refused Jan. 12, 1979.

      Gold, Hall, Simon, Weems & Bruser, John F. Simon, Alexandria, for defendants-appellants.
    Carol J. Aymond, Jr., Bunkie, for plaintiff-appellee.
    Ben C. Bennett, Jr., Marksville, for defendant-appellee.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   FORET, Judge.

Adam Deville sued two Bunkie City Police officers, Andrew Wells and Bobby Higden, the Town of Bunkie, and its insurance carrier, American Home Assurance Company, alleging mistreatment and resulting injuries during his arrest and imprisonment. The plaintiff requested a jury trial in the matter. However, as the Town of Bunkie, a political subdivision of the State, was a defendant, a bifurcated trial was ordered, with the judge to determine the facts as to the town, and the jury to determine the facts as to the other defendants. After a trial on the merits, the jury found:

(1) In favor of defendant, Andrew Wells and against the plaintiff;
(2) In favor of the plaintiff and against the defendant, Bobby Higden, and American Home Assurance Company, and
(3) Awarded plaintiff $15,000 in damages.

The trial court judge ruled in favor of the Town of Bunkie and against the plaintiff. As the judge and jury reached opposite and incompatible results in deciding the case, this Court must resolve the differences and render a single decision based on the record as a whole. Thornton v. Moran, 348 So.2d 79 (La.App. 1 Cir. 1977); Bunkie Bank and Trust v. Avoyelles Parish Police Jury, 347 So.2d 1305 (La.App. 1 Cir. 1977). In such a situation the manifest error rule is inapplicable and the Court of Appeals must decide which decision is more reasonable after a careful examination of the entire record. Aubert v. Charity Hospital of Louisiana, 363 So.2d 1223 (La.App. 4 Cir. 1978).

The right to a trial by jury in most situations is granted by Code of Civil Procedure Article 1731:

Art. 1731. Issues triable by jury
Except as limited by Article 1733, the right of trial by jury is recognized.
The nature and amount of the principal demand shall determine whether any issue in the principal or incidental demand is triable by jury.

Article 1733 of the La.Code of Civil Procedure provides as follows:

Art. 1733. Limitation upon jury trials
A trial by jury shall not be available in:
* * * * * *
(5) All cases where a jury trial is specifically denied by law.
LSA-R.Si 13:5105 provides as follows:
§ 5105. Jury trial prohibited
Amended by Acts 1975, No. 434, § 1.

Thus, in a situation such as the one presently before the Court, a plaintiff is entitled to a jury trial only against the nongovernmental defendants, and the Town of Bunkie is entitled to have its liability determined by the trial court judge. When combined in one lawsuit, this results in a bifurcated trial. Jones v. City of Kenner, 338 So.2d 606 (La.1976); Duplantis v. United States Fidelity & Guaranty Ins. Corp., 342 So.2d 1142 (La.App. 1 Cir. 1977); Champagne v. American Southern Ins. Co., 295 So.2d 437 (La.1974).

A problem unique to the bifurcated trial is the possibility that the judge and jury may reach mutually irreconcilable verdicts. In the case of Thornton v. Moran, supra, the First Circuit Court of Appeals in its original hearing, 341 So.2d 1136, held that there was no manifest error in either the conclusion of the judge or of the jury and affirmed both verdicts. The Louisiana Supreme Court, at 343 So.2d 1065, remanded the case to the court of appeal with instructions to resolve the differences between the two verdicts:

“Writ granted. Judgment of court of appeal reversed; case remanded to court of appeal to resolve the difference in the factual findings between the jury and the judge in these consolidated cases and to render a single opinion based upon the record. La.Const. art. 5, § 10(B). Rights of parties to reapply for writs in accordance with law after court of appeal renders decision in accordance with views herein expressed are reserved.”

Upon rehearing, the First Circuit, at 348 So.2d 79, (1977), reconciled the contradictory verdicts by making a decision as to which conclusion was more reasonable. We quote from page 82:

“We now assume that the review-functional rule now requires us, as an intermediate appellate court, in bifurcated cases, to reconcile or resolve any differences in the factual findings between the trial judge and the jury by determining which witnesses are more credible, to ascertain which of the triers of fact accorded a more reasonable measurement to the evidence in reaching a decision, and to decide which of the said triers of fact gave a more reasonable evaluation and drew a more reasonable inference from the facts, all in order that we might harmonize the judgment(s).”

In the case of Bunkie Bank and Trust v. Avoyelles Parish Police Jury, supra, we reached the same conclusion from the order of Louisiana Supreme Court in the Thornton case stating, at page 1307:

“The above quoted order by our Supreme Court in Thornton clearly contemplates that where, in a bifurcated trial, the jury and the judge reach opposite conclusions of fact and there is an appeal, the Court of Appeal should resolve these differences and render a single decision based upon the record us a whole. As noted by the Court of Appeal decision on remand, our Supreme Court did not expressly rule on the question of whether the trial judge is also required to resolve conflicting decisions by the jury and the judge, but we think it must be inferred from the Supreme Court ruling in Thornton that the trial judge is not required to harmonize conflicting judgments in a bifurcated trial. We say this because in Thornton the Supreme Court did not remand the case to the trial court with instructions to harmonize. Instead, it remanded the case to the Court of Appeal with instructions to harmonize. Thus, in the present case, if the judge and the jury reach conflicting decisions it would not be necessary for the trial judge to grant a new trial in an effort to seek a jury verdict which would be in harmony with the judge’s view of the case. The preferable procedure, under Thornton, is that the court of appeal harmonize any conflict in decisions by the jury and the judge.”

FACTS

On the night of October 15, 1977, the Bunkie City Police received a report of a drunk on the Evergreen Highway (La. Highway 29). Two city police officers, Bobby Higden and Leroy Howard, went to investigate the report. They found the plaintiff and his wife arguing in a horseshoe-shaped gravel driveway off of the highway. At this point the testimony of the plaintiff and his witnesses diverges sharply from the testimony of the two officers. Adam De-ville and his wife claim that they were standing in the driveway, well off of the highway, that Mrs. Deville was attempting to get her husband to return home, that he was firmly but calmly refusing her request; and that any loud or boisterous talk was that of Mrs. Deville. They further testified that the two Bunkie policemen drove up, jumped out of their patrol car, grabbed Adam Deville, ripped off the jump suit he was wearing, sprayed teargas in his face, threw him to the ground, pulled a gun and threatened to kill him, sat on him while handcuffing him, and then dragged him on his bare back to the car and threw him in. Plaintiff also claims that after arrival at the Bunkie City Police station, teargas was sprayed in his face twice, and that he was beaten on three occasions by the two named defendants and by other police officers while incarcerated. Additionally, he claims he was refused food and medical attention and was left in the cell handcuffed, without a shirt or blanket for the night and the next day until his brother-in-law brought these items to him.

The two police officers testified that upon arriving at the “horseshoe driveway” Adam Deville appeared to be in an intoxicated state, was loud and belligerent, and attempted to start a fight with them. In order to more safely take Adam Deville into custody, Officer Higden used mace to subdue the plaintiff, and then, with the assistance of his fellow officer, handcuffed and placed him in a patrol car, all the while plaintiff was resisting forcibly. They and other Bunkie police officers on duty Saturday, October 15 and Sunday, October 16, testified that Adam Deville was placed in a cell, the handcuffs taken off, and not molested in any way by members of the Bunk-ie Police Department. Deville claimed to have suffered numerous injuries as a result of the aforementioned alleged incident, consisting mostly of scratches and bruises, recurrence of a back injury, a black-eye, and a worsening of his already unstable mental condition.

The defendants contend that if any injuries to Deville occurred while he was being placed under arrest or while he was in custody, the injuries were due to his own struggles. Two additional points are important to be mentioned at this time. Although Adam Deville claimed that the two officers who arrested him and allegedly beat him were Bobby Higden and Andrew Wells and identified Wells at the trial as one of the molesters, all other testimony and police department records prove that in fact Leroy Howard was Higden’s partner the night of the incident (Andrew Wells not coming on duty until later that night). The jury found in favor of Andrew Wells, and as this was not appealed by the plaintiff, this decision is final.

As a result of this arrest, Adam Deville was charged with “simple assault on a police officer, simple battery on a police officer, disturbing the peace by fighting with a police officer, disturbing the peace, and resisting arrest”. At trial in Bunkie City Court, Adam Deville plead guilty to disturbing the peace and was found guilty of resisting arrest.

In the present suit, witnesses for the plaintiff were his wife, Joyce Deville, his wife’s brother, Leo Ferguson, and his wife, Mary Joe Ferguson, and the plaintiff himself. Both of the Devilles’ testimony at trial were contradicted by prior statements they had made in depositions and at the Bunkie City Court trial. Additionally, Adam Deville has had serious mental problems for much of his life and is at present considered totally disabled and draws Social Security benefits as such. The record of his mental treatments and history was filed in evidence. Also in evidence was his long record of arrests and convictions, some of which he would not admit even when confronted with on the witness stand. Mrs. Deville’s testimony at trial was similarly contradicted by her prior testimony at the city court trial in which she admitted that Adam Deville was acting in a loud and boisterous manner on the night in question, apparently at least partially caused by a combination of alcohol and medication he was required to take for his mental condition. Mr. and Mrs. Ferguson were not present for much of the confrontation. Leo Ferguson’s testimony as to what happened to Adam Deville while in jail appears to be mostly conjecture on his part. The two arresting officers, Bobby Higden and Leroy Howard, as well as various other members of the Bunkie City Police Department all testified that Adam Deville was not molested and that any physical injuries that he suffered were the result of his own conduct in resisting his arrest. Both arresting officers testified that they only used such force as was reasonable and necessary to effect the arrest.

The only two independent witnesses in this case, Patricia Juneau and Ellis John Armand who live just off of Highway 29 close to the horseshoe drive where this incident took place, were unable to give a full account of the incident; however, their testimony does support the conclusion that Adam Deville was acting in a loud and boisterous manner prior to the arrival of the two police officers.

In considering the entirety of the record, this Court agrees with the trial judge, and finds that the more reasonable conclusion in the light of all of the evidence is that Officers Higden and Howard employed reasonable force to effect a lawful arrest of the uncooperative plaintiff. Accordingly, the judgment of the trial judge in dismissing plaintiff’s demand against the Town of Bunkie is correct, and the decision of the jury holding Bobby Higden and American Home Assurance Company liable to plaintiff is manifestly erroneous and should be reversed.

The judgment in favor of plaintiff, Adam Deville, and against Bobby Higden and American Home Assurance Company, liability insurer of the Town of Bunkie, is hereby reversed, and plaintiff’s suit is dismissed.

All costs, both on the trial level and on appeal are assessed against plaintiff-appel-lee, Adam Deville.

REVERSED.

      . The plaintiff has not appealed the judgment of the trial judge dismissing his suit against the Town of Bunkie, nor has he appealed the finding of the jury dismissing his suit against co-defendant, Andrew Wells.

      . La.Code of Criminal Procedure, article 220:
      Art. 220. Submission to arrest; use of force
      A person shall submit peaceably to a lawful arrest. The 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.


author: GUIDRY, Judge.

text:
    Nathan HENTON, Plaintiff, v. SOUTHEASTERN FIDELITY INSURANCE COMPANY, Defendant and Third-Party Plaintiff, Appellant, Eddie B. JONES, Defendant and Third-Party Defendant, Appellee.
    No. 6709.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.

      McLure & McLure, John G. McLure, Alexandria, for defendant-appellant.
    Antoon & Dalrymple by Joseph T. Dal-rymple, Alexandria, for defendant-appellee.
    Neblett, Führer & Flournoy by Robert B. Neblett, Jr., Alexandria, for plaintiff-appel-lee.
    Before GUIDRY, FORET and CUTRER, JJ.
   GUIDRY, Judge.

In this suit plaintiff, Nathan Henton, seeks to recover special and general damages sustained as a result of an automobile accident which occurred on November 2, 1976. Plaintiff alleged that the accident was caused solely and proximately by the negligence of defendant, Eddie Jones (hereafter Jones). Plaintiff also joined his own insurer, Southeastern Fidelity Insurance Company (hereafter Southeastern) as a defendant under allegation that at the time of accident, Eddie B. Jones was an uninsured motorist within the provisions of the insurance policy issued to him. Southeastern filed a third party demand seeking indemnity from Jones for the amount which it paid plaintiff under the collision coverage of the policy issued by Southeastern as well as for judgment for such amount as Southeastern might be cast under the uninsured motorist provisions of its policy.

The trial court in written reasons for judgment concluded that plaintiff, as a result of Jones’ negligence, was entitled to recover the total sum of $9500.00, which he itemized as follows: $1203.84 for lost wages; $1404.30 for medical expenses; and, $6891.86 in general damages. In addition the trial court found that plaintiff was entitled to recover the collision deductible under his insurance policy, i. e., the sum of $100.00. The trial judge next determined that Jones was impecunious and unable to pay full judgment value. Accordingly, on the principal demand he awarded plaintiff judgment against Jones for the amount of his collision deductible only, casting defendant, Southeastern, for the balance or $9500.00 and all costs. On the third party demand, the trial judge awarded Southeastern judgment against Jones in the amount of $3221.14, concluding that because of Jones’ impecuniosity Southeastern should not be indemnified for any part of the general damage award but was entitled to recover all special damages paid by Southeastern, including the collision loss on plaintiff’s automobile. In this latter connection the trial court concluded that special damages were not a proper subject for mitigation.

Southeastern has appealed and assigns as error the trial court’s refusal to award it judgment against Jones for any portion of the general damage award made to plaintiff. Neither plaintiff nor Jones have appealed or answered the appeal of Southeastern.

We determine that our learned trial brother erred in concluding that impecu-niosity may relieve a defendant of all liability for reparation of general damages. In Landry v. Martin, 353 So.2d 449 (La.App. 3rd Cir. 1977) we spoke to this very issue and stated the applicable law to be as follows:

“The ‘ability to pay’ doctrine is founded on the principle that courts will not grant vain and useless relief, or render a judgment which is incapable of execution. Williams v. Garner, 268 So.2d 56 (La.App. 1 Cir. 1972). That doctrine should not be applied, however, to completely relieve a defendant from liability for damages inflicted by his own negligence, or to reduce the award of damages to a bare minimum. Smith v. Freeman, 31 So.2d 524 (La.App. 2 Cir. 1947); Lacaze v. Hor ton, 100 So.2d 252, 255 (La.App. 2 Cir. 1958). See also Tabb v. Norred, supra. In Lacaze, supra, the court said:
‘. . . After consideration of all the facts bearing upon the opposed contentions of the parties litigant, we are impelled to the conclusion that the judgment in the instant case is an extreme and unwarranted application of the principle that, in fixing the quantum of damages allowed, consideration should be given to the ability of a defendant to pay. It must be borne in mind that this principle is not intended to completely relieve a defendant of liability for reparation of damages inflicted by his own negligence, nor should it be considered as justifying the reduction of the allowance of damages to a bare minimum. Either of these alternatives, in our opinion, would be an extreme application of the principle and would result in effecting a gross injustice toward a plaintiff, under the guise of the application of a humane consideration for the plight of an impecunious defendant.’ ”

The record reflects that our trial brother refused to allow third party plaintiff indemnification for any portion of the general damage award in favor of plaintiff. This was error.

We likewise find, however, that our trial brother erred in concluding that special damages are not subject to mitigation because of a defendant’s impecuniosity. In the recent case of State Farm Fire & Casualty Company v. Drost, 330 So.2d 393 (La.App. 3rd Cir. 1976) we expressed disagreement with the holding of our brethren of the Fourth Circuit in Becnel v. Ward, 286 So.2d 731 (La.App. 4th Cir. 1974), to the effect that special damages could not be mitigated, and stated:

“Plaintiff has not cited, nor have we found, any other case supporting its contention that special damages may not be reduced because of defendant’s inability to pay. Of course, the rule is well established in Louisiana jurisprudence that the financial ability of defendant to pay is a circumstance which may be considered in assessing an award for damages. Lambert v. Foy, La.App., 224 So.2d 11 (1st Cir. 1969); Urk v. Southern Farm Bureau Casualty Insurance Company, La.App., 181 So.2d 69 (2d Cir. 1965) and the authorities cited therein.
It is our view that defendants’ ability to pay is a factor which can be taken into consideration in awarding: either special or general damages. . . . ” (Emphasis ours)

The trial judge in his written reasons made reference to Drost, supra, but concluded that our later holding in Landry v. Martin, supra, held to the contrary. In Landry, supra, unlike Drost, supra, the precise issue was not made that special damages were not a proper subject for mitigation. Although in Landry, we did make the following statement:

“The law is settled that a defendant in a tort action may present evidence during the trial of the case on its merits to show his inability to pay general damages, and that the trial court may consider that evidence* in determining the amount of the award of such damages . .” (citations omitted)

We did not intend to imply that special damages were not also a proper subject for mitigation. With regard to mitigation of special damages we adhere to the views expressed by us in Drost, supra.

Although we find that our brother below erred in his refusal to mitigate special damages and in mitigating general damages down to zero, we ultimately conclude that the result reached is correct. The record leaves little doubt concerning Jones’ impecuniosity. In this regard the trial judge stated:

“Defendant, Eddie Jones, is a 55 year old laborer and truck driver who earns approximately $500.00 per month. This defendant still owes hospital bills for treatment he received for injuries sustained in this accident. In addition he is still paying á $56.00 monthly note for his truck which was destroyed in this accident. He also pays $125.00 a month for rent, plus utilities. He has no phone, and is making monthly payments to two finance compa nies. His wife is ill, and he must pay monthly medical bills of $51.00 for this illness. His wife is also in need of surgery which he cannot afford.
It is apparent to this court, that these facts warrant a mitigation due to defendant’s inability to pay full judgment value. . . ."

We agree with this finding of the trial court and ultimately conclude that when the awards for both special and general damages are mitigated in light of Jones’ circumstances an award to third party plaintiff in the amount of $3221.14 does substantial justice to both parties.

We find no merit in appellant’s contention that the “inability to pay” rule is inapplicable to a subrogation claim filed pursuant to the provisions of LSA-R.S. 22:1406 D (4). Under the cited statute appellant is subrogated to only such rights as held by plaintiff. Since the jurisprudential rule allowing mitigation of damages applies to plaintiff, it likewise applies to appellant’s claim in subrogation.

For the above and foregoing reasons the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

      . Even if the record in this case warranted an award to third party plaintiff less than that made by the trial court we would be powerless to reduce such award since third party defendant has neither appealed nor answered the appeal of third party plaintiff.


author: CULPEPPER, Judge. DOMENGEAUX, Judge,

text:
    Mrs. Jenny M. CARNEY, Plaintiff and Appellant, v. AMERICAN FIRE AND INDEMNITY COMPANY, Defendant and Appellee.
    No. 6700.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 22, 1978.
    Writ Granted Jan. 19, 1979.

      Daniel E. Broussard, Jr. and Frank R. Bolton, Jr., Alexandria, for plaintiff and appellant.
    Gold, Little, Simon, Weems & Bruser, Eugene J. Sues, Alexandria, for defendant and appellee.
    Before CULPEPPER, DOMENGEAUX, WATSON, GUIDRY and CUTRER, JJ.
   CULPEPPER, Judge.

This suit involves the construction of an insurance policy. The plaintiff’s spouse, Phillip Carney, was killed while driving a Ford Formula F race car in a racing event. The plaintiff claims death benefits of $5,000, as the beneficiary of. a “Family Combination Automobile Policy.” Subject to certain exclusions, the policy covers death caused by injuries sustained while in an “automobile”. The defendant insurer, American Fire and Indemnity Company, denied coverage on the basis that the vehicle in which the insured was killed was not an “automobile” within the meaning of the policy. The trial court found no coverage under the terms of the policy and entered judgment in favor of the defendant. From this judgment, the plaintiff has appealed.

The substantial issue is whether the language in the policy which defines “automobile” is ambiguous and should therefore be construed against the insurer and in favor of the insured.

At the outset, we recognize the established rule that any ambiguity in an insurance policy must be construed in favor of the insured and against the insurer. Craft v. Trahan, 351 So.2d 277 (La.App. 3rd Cir. 1977); Rushing v. American Insurance Company, 274 So.2d 458 (La.App. 3rd Cir. 1973). This rule is based on the general principles set forth in LSA-C.C. Articles 1945, 1946, 1957 and 1958 as to the construction of contracts.

The plaintiff seeks recovery under Part V of the policy captioned “Automobile Accidental Death Indemnity and Automobile Total Disability.” This part provides for payment to the beneficiary in the event of death resulting from bodily injury sustained by the insured while “in, or upon, or while entering into or alighting from, or through being struck by, an automobile.” Section 3 of Part V defines an automobile as follows:

“With respect to this insurance the word ‘automobile’ means a land motor vehicle, trailer, or semi-trailer not operated on rails or crawler-treaders, but does not mean: (1) a farm type tractor or other equipment designed for use principally off public roads, except while actually upon public roads, or (2) a land motor vehicle or trailer while located for use as a residence or premises and not as a vehicle.”

The parties stipulated that Phillip Carney, the husband of the plaintiff, was killed on March 19, 1977 while driving a Formula F racing vehicle in a racing event at the Texas World Speedway in Bryan, Texas.

The plaintiff contends that the policy language, “a farm type tractor or other equipment designed for use principally off public roads”, is ambiguous and therefore should be construed against the insurer. Although this wording is standard in a 1955 “Family Automobile Policy”, the issue of whether this language is ambiguous has not been resolved in an appellate opinion in this state. The Supreme Courts of four of our sister states, Kansas, Oregon, Nebraska and Texas, as well as an appellate court of Ohio, have held that this exact language in a policy is not ambiguous. Beck v. Unigard Insurance Company, 271 Or. 261, 531 P.2d 907 (1975); Walcott v. Hawkeye-Security Insurance Company, 189 Neb. 161, 201 N.W.2d 817 (1972); Kansas Farm Bureau Insurance Company v. Cool, 205 Kan. 567, 471 P.2d 352 (1970); Williams v. Cimarron Insurance Company, 406 S.W.2d 173 (Tex.1966); Beagle v. Automobile Club Insurance Company, 1976, N.E.2d 542 (Court of Common Pleas of Ohio, 1960). We find no cases to the contrary.

These decisions all agree that the language in question excludes two distinct classifications: (1) farm type tractors and (2) any other type of equipment which was not designed for use on public highways. Several of these decisions specifically reject the “ejusdem generis” argument that the words “any other type of equipment” should be construed as an enumeration or modifier of the phrase “farm type tractor.” Under this construction, the “equipment” would have to be of a farm or agricultural nature in order to be excluded. Beagle, supra; Williams, supra; Beck, supra; Kansas Farm Bureau, supra. Although we are not bound by these cases, we find their reasoning to be correct. We find especially compelling the reasoning used in Beagle, supra, as follows:

“Plaintiff, however, says the words ‘other equipment’ refers to farm equipment under the rule of construction known as ejusdem generis and also that such exception is ambiguous and such ambiguity should be liberally construed in favor of the policy holder.
“[3, 4] The rule ejusdem generis is that when general words follow an enumeration of particular cases, such general words are held to apply to cases of the same kind as those which are expressly mentioned. In the first place if the exception was just the words ‘a farm type tractor or other equipment’ there would be some substance to this claim, but the language is not general but specifies that such equipment be designed for use principally off public roads. That, in effect is true also of farm tractors — they are designed for use principally on the farm and not on the highways. The Court feels this exception is not ambiguous and means just what it says. This auto racer was designed principally for use off the public roads, and therefore is not an automobile within the meaning of the definition in the policy.”

In the present case, the defendant makes an additional argument that the policy is ambiguous because the word “equipment” as commonly understood in the English language does not mean a “vehicle”. Defendant quotes from Webster’s New World Dictionary of the English Language, Second College Edition, the following definition of equipment:

“EQUIPMENT — (1) an equipping or being equipped (2) whatever a person, group, or thing is equipped with; the special things needed for some purpose; supplies, furnishings, apparatus, etc. (3) goods used in providing service, esp. in transportation, as the rolling stock of a railroad (4) one’s abilities, knowledge, etc.”

From the above definition it appears that the word “equipment” is a broad term, the meaning of which depends on the context in which it is used. In Black’s Law Dictionary, Deluxe, Fourth Edition, we find the following definition of equipment:

“EQUIPMENT. Furnishings, or outfit for the required purposes. An exceedingly elastic term, the meaning of which depends on context. Elliott v. Payne, 293 Mo. 581, 239 S.W. 851, 852, 23 A.L.R. 706; . . ."

In Webster’s New World Dictionary, College Edition, copyrighted in 1955, we find the following definition of equipment:

“equipment (i-kwip’ment), n. 1. an equipping or being equipped. 2. whatever a person, group, or thing is equipped with; furnishings, outfit. 3. in transportation, cars, trucks, etc.; rolling stock, as distinguished from stationary property.”

From these definitions it is apparent that the word “equipment” is indeed an elastic term whose meaning depends upon the context in which it is used. In the present case, the word “equipment’ is used in the context: “or other equipment designed for use principally off public roads.” In this context, the word “equipment” can mean only some type of vehicle. We find no ambiguity in the present policy by reason of the use of the word “equipment”. In this connection, we note that none of the other courts which considered the policy language in question found the word “equipment” ambiguous in the context used.

With this issue aside, we must determine whether the Formula F racing vehicle in which Phillip Carney was killed is excluded from policy coverage by the language “other equipment not designed for use on public highways.” A jointly filed photograph of the vehicle depicts it to be a long, low, needle-nosed one-seater, without a windshield or roof of any kind. The parties stipulated that the vehicle was untitled, unlicensed, and equipped with no safety equipment such as a horn, or tail or brake lights. These facts, coupled with the photograph in evidence, clearly reveal that the vehicle was not designed for use on public roads but was only designed and used for the purpose of racing on a race track.

In the cases of Beagle, supra, Williams, supra, Walcott, supra and Beck, supra, these courts found that even stock cars, originally designed for use on public roads but later modified for use exclusively as racing cars, were excluded by this same provision. These cases support our holding, even though the car here was originally designed exclusively for racing off public roads.

The most similar Louisiana case we find is Posey v. Commercial Union Insurance Company, 332 So.2d 909 (La.App. 2d Cir. 1976), which involved the issue of whether a motorcycle converted into a trail bike was excluded from uninsured motorist coverage by the identical definition of an automobile as is used in the present case. In that case, it appears to have been a foregone conclusion that the language of the policy was unambiguous. The court did not discuss the issue of ambiguity. It held that the “trail bike” at issue was not originally “designed” for use principally off public roads, and that its current condition of not being licensed or suitable for use on the public roads was due to deterioration and lack of maintenance. The court concluded the “trail bike” was covered by the policy.

Having so held, it becomes unnecessary to decide the second issue of whether the defendant was arbitrary and capricious in refusing payment of the claim.

For the above reasons, the judgment appealed is affirmed. All costs of this appeal are assessed to the plaintiff.

AFFIRMED.

DOMENGEAUX, J., dissents and assigns written reasons.

WATSON, J., dissents for the reasons assigned by DOMENGEAUX, J.

DOMENGEAUX, Judge,

dissenting.

I respectfully submit that the majority opinion relies too heavily upon the common law jurisprudence of our sister states. Our Supreme Court in the case of Leonard v. Lavigne, 245 La. 1004, 162 So.2d 341 (1964), when reversing an appellate court in its reliance upon the law universally applied in common law states, stated that rules of common law jurisprudence, although sometimes persuasive, are not controlling when there are Civil Code provisions which are applicable.

Our Civil Code, I submit, sets forth the legal principles which should be applied to the facts of this case, as follows:

“Art. 1945 — Legal agreements having the effects of law upon the parties, none but the parties can abrogate or modify them. Upon this principle are established the following rules:
First —. . .;
Second —. .;
Third — That the intent is to be determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences;
Fourth —. . . . ”
“Art. 1946 — The words of a contract are to be understood, like those of a law, in the common and usual signification, without attending so much to grammatical rules, as to general and popular use.” “Art. 1957 — In a doubtful case the agreement is interpreted against him who has contracted the obligation.”
“Art. 1958 — But if the doubt or obscurity arise for the want of necessary explanation which one of the parties ought to have given, or from any other negligence or fault of his, the construction most favorable to the other party shall be adopted, whether he be obligor or obligee.”

In the instant case, other provisions of the insurance policy in question define “automobile” as a “land motor vehicle, trailer, or semi-trailer not operated on rails or crawler-treads . . . Under that definition, the vehicle in question fits the policy definition of “automobile.”

The defendant-insurer, which drafted the policy in question, attempts to limit or exclude the vehicle in question from coverage by using exclusionary language which states that an automobile does not mean “a farm type tractor or other equipment designed for use principally off public roads . .” I will admit that the vehicle in question is designed for use principally off public roads, but I do not subscribe to the proposition that the vehicle in question is “equipment,” as that word is commonly understood in the English language.

In the field of insurance coverage interpretation, words and phrases employed in a contract of insurance are to be construed, interpreted, and defined in their ordinary and popular sense, rather than in a technical, philosophical, or limited sense. The majority opinion quotes a definition of the word “equipment” found in Webster’s New World Dictionary of the English Language, Second Collegiate Edition. The third part of that definition refers to “equipment” as “goods used in providing service” and, in the field of transportation, gives as an example, the rolling stock of a railroad. It is not tenable to conclude that the racing car in question is “goods used in providing service.” In common parlance it is difficult to conceive that a racing car can logically be designated as “equipment.”

If the drafters of the insurance policy in question desired to exclude coverage of a racing car, this could have easily been accomplished by using a “racing exclusion” as is found in some policies. A racing exclusion usually denotes that the policy does not apply to any automobile while being operated in any pre-arranged race or speed test.

Moreover, Section 3, Part V (2) of the policy in question specifically and affirmatively excludes a land motor vehicle or trailer while located for use as a residence on premises and not as a vehicle when defining “automobile.” It would seem that the specificity utilized by the drafters of the policy concerning a land motor vehicle or trailer prevents them from attempting to exclude a racing car from coverage under the general definition of “farm type tractor or other equipment.”

I must conclude that the word “equipment,” as it is commonly understood, does not include the racing car in question. The language in the policy which the insurer seizes upon in order to exclude the racing car from coverage is ambiguous. In keeping with the established rule that any ambiguity in an insurance policy must be construed in favor of the insured and against the insurer, I respectfully submit that we should reverse the District Court’s judgment, and find coverage in favor of the plaintiff.

In so concluding, and based upon the jurisprudence, I would also find that the defendant was arbitrary in refusing payment of this claim, and, accordingly would award penalties and attorney’s fees as provided by law. Although an insurer has a right to test its liability on an insurance contract and demand a judicial interpretation of its policy provisions, the company must do so at its own expense and not at the expense of the insured. Rushing v. American Income Insurance Company, 274 So.2d 458 (La.App. 3rd Cir. 1973); Albert v. Cuna Mutual Insurance Society, 255 So.2d 170 (La.App. 3rd Cir. 1971); Niles v. American Bankers Insurance Company, 229 So.2d 435 (La.App. 3rd Cir. 1969), writ denied 255 La. 479, 231 So.2d 394 (1970). See also, Sanders v. General American Life Insurance Company, No. 6691, 3rd Circuit La. Court of Appeal, 364 So.2d 1373 (1978).