author: COVINGTON, Judge.

text:
    Oleus TEMPLET, Jr., et al. v. GOODYEAR TIRE AND RUBBER COMPANY, INC., et al.
    No. 11042.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writ Refused March 31, 1977.

      Falterman & Joffrion, Steven Joffrion, Anthony G. Falterman, Pierre Part, for plaintiff s-appellants.
    Charles J. LeBlanc, Thibodaux, for American Employers Ins. Co., defendants-appel-lees.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge.

Plaintiffs, Oleus Templet, Jr. and Dorothy T. Templet, individually and as the Administrators of the Estate of their minor son, Chris Paul Templet, deceased, seek damages for the death of their son, who was allegedly fatally injured when a tire, which he was mounting, blew off the rim. Suit was brought against the manufacturer of the tire, Goodyear Tire and Rubber Company, Inc.; the seller of the tire, Gaubert’s Great Southern Tire Company, Inc.; the manufacturer of the rim, Southern Wheel and Rim, Inc.; the seller of the rim, Laba-dieville Machinery Company, Inc.; the liability insurer of Labadieville Machinery, American Employers’ Insurance Company; and the liability insurer of Gaubert, Ranger Insurance Company of New York. Other parties were made alternative defendants and third-party defendants by subsequent pleadings; however, a discussion of their roles is not pertinent at this stage of the proceedings.

Labadieville Machinery’s insurer, American Employers’ Insurance Company, filed a motion for summary judgment on the grounds that it afforded no coverage since its insurance policy excludes products liability and completed operations hazards. From a judgment granting this motion and dismissing plaintiffs’ suit against American Employers, the plaintiffs appealed.

Plaintiffs’ petition alleges the following facts: The deceased, 16 years old, was engaged in mounting a Goodyear tire on a deep-well rim sold by Labadieville Machinery when the tire blew off the rim, fatally injuring him. The alleged acts of negligence of Labadieville Machinery are the improper mounting of the rim on the hub of the rim, improperly covering the stem hole of the rim and making a hole on the wrong side of the rim, and failing to warn of the dangers involved in the mounting of a tire.

The defendant insurer, American Employers’ Insurance Company, filed a motion for summary judgment on the ground that its insurance policy excludes products liability and completed operations hazards, and therefore excludes coverage of the damages sought.

A copy of the insurance policy attached to the motion for summary judgment contains an endorsement which states:

“This endorsement modifies such insurance as is afforded by the provisions of the policy relating to the following: COMPREHENSIVE GENERAL LIABILITY INSURANCE
“It is agreed that such insurance as is afforded by the Bodily Injury Liability Coverage and the Property Damage Liability Coverage does not apply to bodily injury or property damage included within the COMPLETED OPERATIONS HAZARD or the PRODUCTS HAZARD.”

The policy defines “completed operations hazard” as including “bodily injury and property damage arising out of operations or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the named insured. ‘Operations’ include materials, parts or equipment furnished in connection therewith.”

The policy defines “products hazard” as including “bodily injury and property damage arising out of the named insured's products or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs away from premises owned by or rented to the named insured and after physical possession of such products has been relinquished to others.”

We do not agree entirely with the Trial Judge that summary judgment should have been granted. As to the allegations of negligence concerning the improper mounting of the rim on the hub and improperly covering the stem hole of the rim, we do agree that these alleged acts of negligence fall within the exclusionary language of the insurance policy, and thus there is no coverage and summary judgment should have been granted. However, we conclude that the allegation of negligence of failing to warn of the danger involved in mounting a tire from the wrong side of the rim does not fall within the exclusionary language, but rather is covered by the general liability portion of the policy, and thus there is coverage.

We are of the opinion that this situation is most similar and controlled by the case of Cooling v. United States Fidelity and Guaranty Co., 269 So.2d 294 (La.App. 3rd Cir. 1972), writ refused 272 So.2d 373 (1973).

In Cooling the seller had sold diesel engines to the employer of the injured employee and was familiar with the uses and conditions under which the engines were to be operated. The seller knew the particular engine was to be used in oil field operations and should have warned the buyer-employer to install a flame-arresting muffler and other safety devices to protect against igniting fumes. A fire occurred when gas fumes which had accumulated in the area were ignited by the diesel engine. The seller’s insurer refused to defend on the grounds that this was a completed operations hazard, which was excluded under the policy.

In affirming the Trial Court’s holding that there was coverage, and thus the insurer owed a defense, the Court in part said:

“The policy coverage language and particularly the products hazard and completed operations hazard exclusions form the basis of defendant’s justification for its refusal to assume Cooling’s legal defense. The policy contains no express exclusion of coverage for injuries arising out of a failure to warn where there is no affirmative duty to warn.
“The question is whether plaintiff’s alleged negligence is included within the exclusions. U. S. F. & G. contends that Cooling’s failure to warn was part of his sale of a product and the exclusion applies. Defendant acknowledges that the products hazard and the completed operations hazard have been interpreted by the courts to apply only to injuries arising out of the sale or manufacture of products as opposed to those arising out of the performance of services. This distinction has resulted, says defendant, in holding that an insured with a policy containing the exclusionary clauses mentioned, who is sued for alleged negligence in performing a service is covered under the policy, notwithstanding the exclusions; whereas one sued for negligence resulting from the sale of products is not covered. Swillie v. General Motors Corporation, 133 So.2d 813 (La.App. 3 Cir. 1961); American Insurance Co. v. Hartford Accident and Indemnity Company, 198 So.2d 757 (La.App. 1 Cir. 1967).
“We agree with the stated proposition, but we differ with the conclusion that because Cooling has been sued and because he has sold a product, it necessarily follows that the alleged negligence is part of the sale. The syllogism merely begs the question of coverage vel non.
“We find as did the trial court, that the alleged negligence under the peculiar facts of this case wherein there is neither a defective product sold nor faulty workmanship involved, is of a nature other than either sale or service as characterized by defendant. It is rather in the nature of a general risk of doing business which is the sort of risk which motivated Cooling to buy comprehensive liability insurance.
“Because the insurer has the duty to clearly define its obligation and because it is an established rule of law that ambiguities in an insurance policy are construed against the insurer, we hold that the exclusions do not specifically exclude coverage to Cooling under the peculiar factual situation presented.
* * * * * *
“The parties intended that the exclusions would apply to coverage for injuries received as a result of the sale of defective products or as a result of negligence in positive representations or warranties. This construction is supported by the cases cited by U. S. P. & G. for the proposition that the exclusions apply to Cooling because his alleged negligence was a part of a sale of products. All but one of the cited cases are distinguished from the case at bar either on the basis of the presence of defects in the products sold or by tortious positive representations or warranties, neither of which is present in this case.
“The definitions of products hazard and completed operations hazard do not mention omissions or failure to warn when there is no affirmative duty to do so. The definitions of products hazard and completed operations hazard do include injuries arising out of representations or warranties. Buf the converse, the failure to represent is not included in these definitions. If the parties intended to limit the liability of the insurer by excluding coverage for omissions and failure to warn when there is no affirmative duty to warn, the insurer could have so provided.
“Inasmuch as the insurer has the duty to express clearly his obligation, Kendrick, supra, [Kendrick v. Mason, 234 La. 271, 99 So.2d 108 (1958)], and also because ambiguities are to be construed against the insurer, Albritton, supra [Albritton v. Fireman’s Fund Ins. Co., 224 La. 522, 70 So.2d 111 (1953)], we hold that the intent of the parties as evidenced by the language of the exclusions as well as by the failure of insurer to expressly limit its liability to exclude coverage for torts of omission or failure to warn is to include such coverage. LSA-C.C. Arts. 1947, 1957; Seguin v. Continental Service Life & Health Ins. Co., 230 La. 533, 89 So.2d 113 (1956), 55 A.L.R. 1014; Conner v. Motors Insurance Corporation, 216 So.2d 555 (La.App. 3 Cir. 1968).
* * * * * *
“Insurer suggests that groundless claims however tenuous should result in non-coverage if they can be tied in, however indirectly with the sale of a product. This contention crystalizes the insured’s dilemma. His intent in purchasing a comprehensive liability policy was to protect himself against both substantial lawsuits and the harassment of lawsuits based on obviously groundless claims. The policy provides for a defense and the exclusions do not specifically delete the alleged negligence for which Cooling needed a defense.”

Appellee-insurer argues that Cooling is not controlling because it dealt with attorney fees and the duty to defend, and has been distinguished as such in Mut v. Newark Insurance Co., 289 So.2d 237 (La.App. 1st Cir. 1974), writ refused, 290 So.2d 910 (1974); Meier v. Hardware Mutual Casualty Co., 281 So.2d 793 (La.App. 3rd Cir. 1973); and Oceanonics, Inc. v. Petroleum Distributing Co., 280 So.2d 874 (La.App. 3rd Cir. 1973), affirmed 292 So.2d 190 (La.1974).

We disagree for in each of these three cases cited by appellee, Mut, a defective wall, Meier, a defective gin pole, and Oceanonics, a defective weld on a boom, a defect existed which caused the injury, and thus, these cases are not controlling.

Limiting ourselves only to the question of whether there is insurance coverage, and conceding arguendo that there is no defect in the rim, then the only way that there could be liability on the part of the defendant-insured is for its failure to warn. As noted in Cooling, the policy in question does not exclude the failure to warn of a danger. Therefore, as did our brethren on the Third Circuit, we must conclude that as to the allegation of negligence as to the failure to warn, there is insurance coverage.

Lastly, we cannot say nor agree that simply because plaintiff has cumulated various allegations of negligence on the part of the defendant-insured that these various allegations cannot be separated and looked at individually. In two of the allegations it is alleged that the defendant either improperly mounted the rim on the hub or that it improperly covered a valve stem hole, whereas the third allegation of negligence contends that the defendant failed to warn of a danger in mounting a tire from the wrong side of the rim.

Therefore, for the above and foregoing reasons the judgment of the Trial Court is affirmed insofar as same holds that there is no insurance coverage afforded by American Employers’ Insurance Company for and on behalf of Labadieville Machinery Company as to the first two allegations of negligence, and the judgment of the Trial Court is reversed in holding that there is no insurance coverage by American Employers’ Insurance Company for and on behalf of La-badieville Machinery Company as to the allegation of negligence of the failure to warn of the danger of mounting the tire from the wrong side. This matter is remanded for further proceedings in accordance with the views expressed herein. All costs of this appeal are to be paid by defendant-appellee.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    Charles William JAMES v. SAFECO INSURANCE COMPANY OF AMERICA et al.
    No. 11043.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writ Refused March 25, 1977.
    Anthony J. Clesi, Jr., Baton Rouge, for plaintiff-appellant.
    James E. Moore, Charles W. Franklin, Baton Rouge, for defendants-appellees.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is a slip and fall suit instituted by Charles William James against Safeco Insurance Company of America and its insured, Edgarde Rabel. From a judgment in favor of the defendants, plaintiff has appealed.

The record points out that David Nettles, III, rented an office suite in Dr. Edgarde Rabel’s building on Groom Road in Baton Rouge. On the day of the accident, March 14, 1974, plaintiff and Nettles happened to meet in a convenience store next to the office building. Nettles invited plaintiff over to see his new office but left the store ahead of plaintiff.

A drainage problem existed in the parking lot which was in front of the building. Water would constantly stand in the parking lot directly in front of the entrance to Nettles’ office, as well as in the corner of the parking lot nearest Nettles’ office. Dr. Rabel had on several occasions attempted to remedy and correct the situation. Because water was always in the parking lot, algae would form in the puddles of water.

Plaintiff contends that as he left the convenience store he had to walk around a retaining wall which separated the store from the office building and parking lot. As he crossed the parking lot he noticed a large puddle of water in the corner of the lot near Nettles’ office and in which Nettles’ truck was parked. Instead of going between the truck and the retaining wall, and thus walking through this puddle of water, he walked around the truck and attempted to cross a smaller puddle of water directly in front of the door to Nettles’ office. In attempting to cross this puddle, plaintiff stated that he placed one foot in the puddle and attempted to step across, but the algae at the bottom of the puddle created a slimy-slippery condition, and plaintiff’s foot slipped from under him, causing him to fall and sustain injuries. Plaintiff testified that the puddle he slipped in was from 3 to 4 feet in diameter, and that he did not notice the algae at the bottom of the puddle.

After plaintiff slipped and fell he went to Nettles’ office and told him what had happened. They both went out to view the puddle and observed what appeared to be a slip mark at the bottom of the puddle.

The Trial Judge found that the defendant was negligent in permitting this particular puddle to remain on his premises for such a period of time that algae formed. However, the Trial Judge also found that the plaintiff was contributorily negligent in failing to maintain a reasonable lookout, and in failing to see an obvious danger. In so holding, the Trial Judge said:

“The court was convinced by the photographs introduced into evidence that the puddle and the algae formation therein was open to view, was not a trap, and could have been observed by one maintaining a reasonable lookout for his own safety.
“Even assuming for the purposes of argument only that the puddle did extend throughout the entire length of the parking lot, the court must then conclude that plaintiff was negligent in the careless manner in which he attempted to traverse the puddle.”

From the evidence in the record it is obvious that there was an ample area to allow plaintiff to avoid this puddle, and thus injury to himself. We find no error on the part of the Trial Judge.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is affirmed. All costs of this appeal are to be paid by plaintiff-appellant.

AFFIRMED.


author: COVINGTON, Judge:

text:
    Carroll MATHERNE v. ESTATE of Lee J. MATHERNE, etc., et al. Carroll MATHERNE v. Joyce Dupre MATHERNE, etc., et al.
    Nos. 11045 and 11046.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writ Refused March 25, 1977.

      Joseph L. Waitz, Houma, for plaintiff and appellant.
    Jerry H. Schwab, Houma, for defendants and appellees.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge:

This is an appeal from a judgment in two consolidated actions which maintained the defendants’ exceptions, dismissed the plaintiff’s suits, and also dissolved the writs of sequestration previously issued.

The plaintiff-appellant, Carroll Matherne, brought an action for restitution of movables against the estate of his deceased brother, Lee J. Matherne, and the widow, Joyce Dupre Matherne, individually. An action on a promissory note was also brought against the estate and the surviving spouse, individually, by the plaintiff-appellant. The widow had previously qualified as executrix of the estate of Lee J. Matherne. In each action a writ of sequestration was issued. In the first action, certain horse-racing equipment was seized; in the second, certain thoroughbred horses were seized.

The equipment was allegedly loaned gratuitously to the decedent. The horses were allegedly sold to the decedent, the price being represented by the promissory note sued upon. The defendants bonded out the seized property.

Thereafter, in each action, exceptions and a rule to dissolve the sequestration were filed, together with a claim for damages. The main bases of the exceptions and rules to dissolve were that there had been no proper demand upon the executrix prior to the institution of the actions and that the surviving spouse was not a proper party defendant. The actions were consolidated for the purpose of the disposition of the exceptions and the rules. After hearing, the trial court rendered the judgment complained of, finding that proper demand had not been made and that the widow, individually, was not a proper defendant. The court reserved to the defendants their rights to seek damages for the wrongful issuance of the writs of sequestration. We amend and affirm.

It is settled that where a creditor, such as the appellant in the instant case, has a claim against an estate under administration, he is required to present a written claim for acknowledgment and payment in due course to the succession representative. LSA-C.C.P. arts. 3241 and 3242; Guaranty Bank & Trust Company v. Quad Drilling Corporation, 284 So.2d 351, 354 (La.App. 1 Cir. 1973), writ den., La., 284 So.2d 767.

In the Guaranty Bank case, the court observed:

“The requirement is necessary for the orderly administration of the estate and for the preservation of as much of the estate as possible for payment of debts or for the payment of heirs or legatees. The procedure is designed to prevent the succession representatives from encountering unnecessary expense such as creditor’s claims for attorney’s fees for obligations of which they are unaware or for which no demand for payment has been made.”

In the suit involving the promissory note, it is alleged that the appellant submitted his claim to the executrix on November 10, 1975, by a letter written on November 7, 1975, and which was sent by certified mail. It is further alleged that the executrix has failed to acknowledge or reject the claim. In the suit involving the equipment, the petition does not give a date on which a claim or demand was made on either of the two named defendants. On December 2, 1975, the suit for restitution of the equipment was filed; and on December 10, 1975, the suit on the note was filed.

It is apparent that the latter petition was filed within thirty days of the written notice of the claim to the executrix. The law states unequivocally that the succession representative has thirty days in which to acknowledge or reject the claim; LSA-C.C.P. art. 3242. If the succession representative fails to acknowledge or reject the claim within the thirty-day period, he is presumed to have rejected the claim. It is only after rejection that the creditor may sue the estate on his claim; LSA-C. C.P. art. 3246.

LSA-C.C.P. 3246 provides, in part:

“A creditor of a succession may not sue a succession representative to enforce a claim against the succession until the succession representative has rejected the claim.”

The appellant did not show that the requisite thirty day demand was made on the Estate, through the executrix, prior to the institution of either suit. In the first, the petition does not give any specific date on which a demand was made; in the second, the full thirty day period did not elapse between the claim and the filing of the action in court. Consequently, he acted prematurely in that at the time when the suits were filed he did not have a cause of action against the Estate.

Appellant’s primary contention on this point is a technical one to the effect that an exception of no cause or right of action is not the proper objection to raise the issue of prematurity. This contention is without merit, because the objection specifically states:

“That plaintiff’s petition fails to state a right or cause of action with respect to appearer for the following reasons, to-wit:
“a. Petitioner herein did not submit his claim to the succession representative in accordance with the provisions of Code of Civil Procedure Article 3241;
“b. Alternatively, and should this Court find that the claim was properly presented, then the petition was filed prematurely since the thirty day period for ac-knowledgement or rejection of the claim had not passed pursuant to the provisions of Code of Civil Procedure Article 3242 and Code of Civil Procedure Article 5059; “c. The petition fails to allege sufficient facts to support a vendor’s lien, and accordingly sets forth no cause of action sufficient to support or justify a writ of sequestration.”

The appellant also submits that the written promissory note was presented to the executrix on September 26, 1975, and that this constitutes sufficient notice under LSA-C.C.P. art. 3242. This argument is contrary to the allegations contained in the petition and is not supported by the record herein. The petition sets out that the submission of the claim was made “by letter sent certified mail and was received by the said Joyce Dupre Matherne on November 10, 1975.” This allegation affirmatively shows that this action was filed prematurely-

We turn now to a consideration of the action against the surviving spouse individually. The petitions in the two suits do not allege a cause of action against her in her individual capacity; only an indebtedness of the community or the estate of Lee J. Matherne is alleged. The gratuitous loan was allegedly made to Lee J. Matherne and the promissory note was allegedly executed by him. The widow, Joyce Dupre Math-erne, was not a party to either transaction. Pursuant to LSA-C.C.P. art. 734, the succession representative is the proper defendant in an action to enforce an obligation of the deceased, or of his succession when it is under administration. See Gibbs v. Succ. of Scott, 265 So.2d 249 (La.App. 3 Cir. 1972).

In addition, the widow is not personally liable for a community obligation. It was held in the ease of Cook-Douglas Co. v. Prudhomme, 13 La.App. 37, 127 So. 104 (2 Cir. 1930), that a wife is not liable for community debts during the lifetime of her husband, nor after his death, unless she has made herself personally liable.

This court, in the case of Brock Furniture Company v. Carroll, 86 So.2d 715 (La.App. 1 Cir. 1956), stated:

“Under the provisions of Article 2403 of the LSA-Civil Code, it is well established that the debts contracted during marriage are community debts for which the wife is not individually responsible.”

The facts alleged in the instant case show that the transactions were made for the community of acquets and gains existing between Lee J. Matherne and Joyce Dupre Matherne. Therefore, Joyce Dupre Math-erne is not individually responsible for the instant indebtedness and the trial judge correctly held that she, individually, was not a proper party defendant.

A writ of sequestration can only be sustained when the formalities of the law have been strictly complied with by the party seeking the writ, Hancock Bank v. Alexander, 256 La. 643, 237 So.2d 669, 672 (1970); LSA-C.C.P. arts. 3501 and 3571. It is a prerequisite to the issuance of the writ of sequestration that the proper grounds be alleged in the petition.

In the Hancock Bank case the Supreme Court ruled:

“Strict application of the rules established for the issuance of conservatory writs has been uniformly required by Courts in the past. It is implicit in those remedies that they should not be availed of unless the conditions which permit them exist; that is to say, it is a prerequisite of their issuance that the proper grounds be alleged and sworn to.”

The succession of Lee J. Matherne, deceased, was under administration when the suits were filed.

In Terzia v. Grand Leader, 176 La. 151, 145 So. 363, 367 (1932), the Supreme Court said:

“A conservatory writ is valid only in case the cause for which it is issued is valid, and that cause must of necessity be set out in the petition or complaint under which it is issued. The petition and the affidavit supporting it are the foundation of the writ. In order that a complainant may obtain a conservatory writ, he must allege and swear that those facts, circumstances, and conditions exist which the law requires for the issuance of such writs. If the facts alleged and sworn to do not, as a matter of law, warrant the issuance of such writ, then the writ must fall and no subsequent allegations setting out a different cause of action can save it.”

From the codal authorities and the jurisprudence it is established that it is only when no succession representative has been appointed that it is unnecessary to present a proper claim to the succession representative prior to suing to sequester succession property. See Succession of Mahoney, 167 La. 255, 119 So. 40 (1928).

The dismissal of the Estate and Succession of Lee J. Matherne should have been without prejudice and the trial court judgment is amended to so provide. It is otherwise affirmed at appellant’s costs.

AMENDED AND AFFIRMED.


text:
    Hazel Carr HARTLEY v. John A. HARTLEY.
    No. 11050.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Rehearing Denied Feb. 14, 1977.
    Writ Granted March 25, 1977.

      Walton J. Barnes, Baton Rouge, for plaintiff-appellee.
    James D. Thomas, II, Baton Rouge, for defendant-appellant.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is a rule for contempt for the failure to pay alimony and for a judgment making past due alimony executory. From a judgment in favor of plaintiff fixing the amount of unpaid alimony in the sum of $22,783.20, making same executory, and dismissing the contempt rule, the defendant has appealed.

On October 28, 1974, judgment was rendered by the Trial Court in favor of plaintiff and against the defendant awarding the plaintiff alimony pendente lite in the amount of $1,070.00 per month plus the sum of $148.80 for the payment of the mortgage on the family home and the additional sum of $300.00 for payment of debts incurred before the judgment. In December, 1975, plaintiff filed this rule for contempt as well as asking for an executory judgment for past due alimony contending that the defendant had paid nothing under the October 28th judgment.

In appealing the defendant-appellant contends the Trial Judge erred in:

(1) Refusing to allow defendant to cross-examine plaintiff in rule concerning her testimony relative to the salary of defendant at the hearing on October 28, 1974, and to offer into evidence copies of defendant’s wage statement (W-2 form) for 1974 showing his total income to be $28,915.45;
(2) Refusing to allow defendant to cross-examine plaintiff with reference to the $16,323.08 which Mrs. Hartley withdrew from a community account and which Mrs. Hartley may or may not have had within her control and possession on January 23, 1976;
(3) Making executory a judgment between husband and wife where there has been no judicial separation or divorce between the parties; and
(4) Failing to nullify the judgment rendered against John A. Hartley on October 28, 1974, because of fraud and ill-practice of plaintiff, Hazel Carr Hartley.

The October 28, 1974, judgment fixing alimony pendente lite was appealed to this Court and at 336 So.2d 291 this judgment was reduced to $545.00 per month with the provision that the defendant make the mortgage payments on the family home. Writs were applied for by the wife and have been refused by the Supreme Court.

In support of his first specification of error, defendant-appellant cites Johnson v. Jones-Journet, 320 So.2d 533 (La.1975). Here the plaintiff had obtained a judgment against several defendants on a promissory note. When the plaintiff attempted to examine one of the defendants, as judgment debtor in aid of the execution of the judgment, the judgment debtor filed a motion to annul and in the alternative modify the judgment on the grounds that the judgment was in solido when it should have been joint. The Supreme Court determined that liability should have been joint rather than in solido, but then proceeded to determine whether this was fraud or ill-practice. Defendant-appellant contends that since the Supreme Court determined whether it was fraud or ill-practice, it is only logical to reason that the defense by the judgment debtor was proper rather than been required to institute a separate proceeding to annul the judgment.

We do not agree that Johnson v. Jones-Journet, supra, is controlling. The basis of defendant-appellant’s argument is that his wife gave false information as to his salary. Defendant had the opportunity in the Trial Court to counter any testimony his wife gave. His failure to do so cannot now be used in an attempt to have that judgment annulled.

Further, it was apparent to this Court that defendant-appellant had apparently abandoned this specification of error inasmuch as this Court had already reduced the alimony awarded his wife by our earlier decision at 336 So.2d 291, though writs by the wife were still pending at the time of oral argument. Therefore, we find no error on the part of the Trial Judge.

Under the authority of LSA-C.C.P. Art. 2164, because of the judgment of this Court in reducing the alimony award to $545.00 per month with the defendant making the monthly payments on the home, the judgment of the Trial Court awarding ar-rearages must be reduced. The Trial Court judgment was for 15 months at $1,518.88 per month or a total of $22,783.20. This award, therefore, must be reduced to 15 months at $545.00 per month or a total of $8,175.00.

The defendant-appellant next contends that the Trial Judge was in error in disallowing cross-examination as to community funds the plaintiff wife withdrew from a joint bank account. The Trial Judge was in error, for we so held in Nelson v. Nelson, 311 So.2d 268 (La.App. 1st Cir. 1974) that the husband is entitled to a credit of one-half of the community funds in the control of the wife at or near the time of the separation. There is testimony in the record that convinces us that the plaintiff wife removed $16,000.00 from a community account and placed it in an account her husband had no access to. There is no contention that this was not community funds. Therefore, the defendant-appellant is entitled to a credit of one-half of these funds or $8,000.00.

Thirdly, defendant-appellant contends that a wife cannot sue her husband to make past due alimony executory prior to a judgment of separation, citing LSA-R.S. 9:291 which provides:

“As long as the marriage continues and the spouses are not separated judicially a married woman may not sue her husband except for:
(1) A separation of property;
(2) The restitution and enjoyment of her paraphernal property;
(3) A separation from bed and board; or
(4) A divorce.”

Defendant-appellant has cited no jurisprudence for this novel theory, and neither have we found any. We know of no rule that would stop a wife from suing her husband for alimony arrearages and having same made executory. She is specifically authorized to sue for a separation or divorce and an award of alimony is an incident to such a suit, and therefore, we now hold that the same would be true for a suit to make past due alimony executory. Otherwise, an award of alimony would have no meaning, and could not be enforced until after a judgment of separation.

Appellant’s fourth specification of error being so similar to his first specification of error is disposed of for the same reasons as assigned above.

For the above and foregoing reasons the judgment of the Trial Court is amended by reducing the award for unpaid alimony to the amount of $8,176.00 and granting to defendant-appellant a credit against said award of $8,000.00; therefore, IT IS ORDERED, ADJUDGED and DECREED that there be judgment herein in favor of plaintiff-appellee and against defendant-appellant in the amount of $175.00, and that all costs of these proceedings be paid by plaintiff-appellee.

AMENDED, AND AS AMENDED AFFIRMED.


author: LEMMON, Judge.

text:
    SOUTH CENTRAL BELL TELEPHONE COMPANY v. Maurice N. WESTRIDGE, Mainline Fleets and Fast Insurance Company.
    No. 8274.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 22, 1976.
    Rehearing Denied Feb. 15, 1977.
    Writ Granted March 25, 1977.
    Ogden & Ogden, Timothy L. McCune, New Orleans, for plaintiff-appellee.
    Maurice Westridge, in pro. per.
    Before REDMANN, LEMMON and BEER, JJ.
   LEMMON, Judge.

On our own motion we issued a rule to show cause why appellant’s devolutive appeal should not be dismissed because of the absence of a surety on the appeal bond filed in the record. Appellant, appearing in proper person, responded that (1) he has tried every listed bonding company but has not been able to obtain a bond because he is not an attorney and (2) that he is capable of furnishing “collateral”, but does not feel “he should be requested to do so.”

An appeal bond without a surety is no security. C.C.P. art. 2087 requires that an appeal must be taken and security therefor furnished within the prescribed delay. Accordingly, when the time elapsed without security being furnished, the. judgment of the trial court became definitive. C.C. art. 3556(31); C.C.P. art. 1842.

The appeal is dismissed.

APPEAL DISMISSED.


author: MARVIN, Judge.

text:
    Donald E. McLEOD et ux. Plaintiffs-Appellants, v. Eugene A. WOODEL et al., Defendants-Appellees.
    No. 13089.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 1977.
    En Banc. Rehearing Denied, Feb. 14, 1977.
    Writ Refused March 25, 1977.
    Eatman & Hunter by Robert E. Eatman, Henley Hunter, Shreveport, for Donald E. McLeod, Jr., et ux., plaintiffs-appellants.
    Blanchard, Walker, O’Quinn & Roberts by J. Edgerton Pierson, Shreveport, for Duggan Machine Co., defendant-appellee.
    Cook, Clark, Egan, Yancey & King by Steven H. Beadles, Shreveport, for Eugene A. Woodel, R. A. Fowler and American Employers Ins. Co., defendants-appellees.

      Before BOLIN, MARVIN and JONES, JJ.
   MARVIN, Judge.

Plaintiffs, Mr. and Mrs. McLeod, appeal from a judgment rejecting their demands for damages arising out of a motor vehicle accident which occurred when Mrs. McLeod collided their family automobile into a truck-trailer rig which was being slowly backed across the street on which Mrs. McLeod was traveling. We find Mrs. McLeod to have been contributorily negligent under the circumstances and affirm the judgment.

The accident occurred about 6:30 a. m. during predawn twilight hours on a winter Saturday morning on Grimmett Drive, a four-lane street in an industrial area of Shreveport. Mrs. McLeod was driving southerly in the outside or westernmost lane of Grimmett Drive in the family automobile at a speed of about 25-30 mph. The speed limit is 35 mph. It was before sunup, but clear and dry, and the area was lighted with street lights. A Mrs. Stice was also proceeding southerly in her automobile in the inside of the two southbound lanes of Grimmett to the left, but slightly ahead, of Mrs. McLeod. The headlights of both automobiles were illuminated.

While these automobiles were proceeding southerly, defendant Woodel (employee of defendant R. A. Fowler Trucking Company) was backing the Fowler truck-trailer perpendicularly across the southbound lanes of Grimmett Drive towards the premises of Duggan Machine Company, Inc., on the west of Grimmett Drive, where the trailer was to be loaded with oil field equipment. Witnesses below included the truck driver and his swamper (a fellow employee), in addition to Duggan (the principal owner of the machine company) and its employee (Gardner), and an associate (Lars), all of whom were near the truck-trailer when the accident occurred. Each side of the truck-trailer was equipped with five lights and four reflectors (three reflectors and three lights being on each side of the trailer). The truck also had top clearance lights and a four-way flasher on its front and a four-way flasher on the rear of the trailer. These clearance lights and flashers could be seen from the side of the truck-trailer. The flashers were engaged and operating and the headlights and taillights of the truck-trailer were also illuminated during the backing maneuver.

Witnesses estimated the speed of the truck to have been two to five miles per hour. We shall assume arguendo, that the trucking company employees were negligent in obstructing the street for approximately 10 seconds during the backing maneuver without taking steps to warn traffic on Grimmett Drive of the obstruction.

Mrs. Stice, traveling to the left of Mrs. McLeod and about the same speed, noticed particularly the beams of the headlights of the truck and stopped her automobile approximately 100 feet from the truck. Mrs. McLeod, whose injuries prevented her remembering anything leading up to the accident, apparently did not see the tractor-trailer or any of its lights. Her automobile did not exhibit to the several witnesses any sounds or signs of its brakes being applied. It left no skid marks.

Mrs. McLeod had only minimal vision in one eye (able to distinguish light from dark) and had a bifocal lens for the other. She was not wearing her glasses at the time. She acknowledged that she has trouble seeing at night.

Mrs. Stice testified that she had noticed the McLeod vehicle following her in the adjacent lane for some distance before she recognized Mrs. McLeod as being a lady driver. Mrs. Stice made the recognition to alleviate her fear that a man was following her. About this time, their automobiles were negotiating a slight curve north of Duggan Machine Company. Southerly traffic can see “through” the curve for a minimum distance of 275 feet north of Dug-gan Machine Company. Other photographs and diagrams indicate that southerly traffic could see through the curve for a maximum distance of 640 feet. Coming out of the curve the view of southerly traffic is straight and entirely without obstruction for at least 195 feet north of Duggan Machine Company.

Mrs. McLeod was under a duty to see what an ordinarily prudent driver should have seen under the circumstances. Jackson v. Cook, 189 La. 860, 181 So. 195 (1938); Von Cannon v. State Department of Highways, 306 So.2d 437 (La.App. 3d Cir. 1975), Welch v. Mayhall, 325 So.2d 741 (La. App. 1st Cir. 1976). She could assume the street was generally safe for travel and did not have to guard against an unusual obstruction which she had no reason to anticipate and which would have been difficult to discover. Parker v. Continental Insurance Company, 341 So.2d 593 (La.App. 2d Cir. 1976); Vowell v. Manufacturers Casualty Insurance Company, 229 La. 798, 86 So.2d 909 (1956); Welch v. Mayhall, supra. Mrs. McLeod had traveled this street many times and was familiar with the industrial character of this area of Grimmett Drive. Trucks and trailers, slowly entering or leaving industrial premises off Grimmett Drive, are relatively commonplace in the area, according to this record. Additionally, we find as did the lower court, the truck-trailer to have been adequately equipped with illuminated lights and with reflectors, and in that sense, it was not difficult to discover.

Counsel for plaintiffs urges Mrs. McLeod was not negligent because Mrs. Stice testified (1) that she saw only the headlights of the truck; (2) that she did not see the side lights or reflectors, and (3) that her automobile (to the left of and slightly ahead of Mrs. McLeod) blocked Mrs. McLeod’s observing the headlights of the truck. Mrs. Stice’s testimony does not avail plaintiffs. The truck-trailer was equipped with illuminated side lights and with reflectors in addition to the other lights mentioned. It should have been seen by a reasonably prudent motorist as it was not difficult to see. We are not concerned with whether Mrs. Stice saw less than she should have seen. The issue for our determination is whether Mrs. McLeod saw what a reasonably prudent operator should have seen under the existing circumstances. This factual issue was resolved below (and here) against plaintiffs. The lower court’s findings are entitled to great weight. Canter v. Koehring Company, 283 So.2d 716 (La.1973). Mrs. McLeod’s failure in this respect bars plaintiffs’ recovery.

At appellants’ cost, judgment is

AFFIRMED.

      . R.S. 32:308 requires truck-trailers of this type to have four lights and two reflectors on each side. The truck-trailer here had five lights (illuminated) and four reflectors on each side. No mud or other film obscured the lights.

      . Our computations show it would have taken almost 14 seconds at two mph. and over seven seconds at five mph. for the truck to have traversed the 40 foot distance across the southbound lanes of Grimmett Drive. At 25 mph., Mrs. McLeod would have traveled 36.67 feet per second, or 256 feet in seven seconds. At 30 mph., she would have traveled 44 feet per second, or 308 feet in seven seconds.

      . Plaintiffs also sued Duggan Machine Company, Inc. because of its alleged failure to warn of the obstruction. This defendant did not “control” or have the right to control the backing maneuver in theory or in practice. Under these circumstances, we do not find or assume this defendant negligent in any respect.

      .The lower court said the record was “unclear” as to the distance separating Mrs. Stice and the truck-trailer when she stopped her car. The lower court also said it was not “at all satisfied” with Mrs. Stice’s testimony that she saw the beam of the headlights and stopped her vehicle in about “three feet.” One of the witnesses testified that 35 or 40 yards separated the two vehicles when Mrs. Stice came to a stop.


author: PRICE, Judge.

text:
    Donald W. WATKINS, Plaintiff-Appellant, v. WALLER OIL COMPANY, INC., Defendant-Appellee. WALLER OIL COMPANY, INC., Plaintiff-Appellee, v. Donald W. WATKINS, Defendant-Appellant.
    Nos. 13093 and 13094.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 1977.
    En Banc. Rehearings Denied Feb. 14, 1977.

    Writ Refused April 20, 1977.
    Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for plaintiff-appellant.
    Fish & Montgomery by John W. Montgomery, Minden, for defendant-appellee.
    Before PRICE, HALL and JONES, JJ.

       Bolin, J., took no part in en banc denial of rehearings.

   PRICE, Judge.

Donald Watkins has appealed the judgment awarding him $250 general damages resulting from Waller Oil Company’s illegal eviction of Watkins from a service station leased from Waller. The issue is the adequacy of the award to plaintiff.

Waller, a Shell distributor, leases a service station in Jonesboro from the Shell Oil Company. In August, 1973, Watkins became the operator of the station under an oral sub-lease from Waller at a rental price of 1.5 cents per gallon for gasoline delivered to him. Watkins was required to market only Shell products distributed by Waller. At the beginning of the lease, Watkins was required to pay for the cost of each load of gasoline, plus the rental charge of 1.5 cents at the time of delivery of gasoline. During January, 1974, Watkins was granted permission to pay for each load at the time of delivery of the succeeding load, which is called a “load to load payment” in the trade. This credit arrangement was made to assist Watkins in overcoming financial difficulties. After the return of several of Watkins’ checks due to insufficient funds, Watkins was required to pay for gasoline and rental in either cash, money orders, or credit card purchase invoices. In August, 1975, Watkins’ financial condition became worse, and he was unable to pay for purchases on the load to load arrangement. Waller offered to deliver partial loads of gasoline on a cash on delivery basis. During the last week of August, two partial loads of gasoline were delivered to Watkins for which payment was not received, and on August 28th, an employee of Waller was sent to Jonesboro to collect for the amount then due, or lock the gasoline pumps on the station. Watkins was unable to pay, and the pumps were locked in accord with Waller’s instructions.

Watkins filed this suit for damages on September 19th, and on November 4th, Waller filed suit to evict Watkins, and to collect the past due account for merchandise and rent.

The eases were consolidated for trial, and judgment was rendered awarding Watkins damages of $250 for an illegal eviction, and against Watkins for $820.75 for the amount owed to Waller.

The trial judge found Watkins had not suffered any loss of income because of the illegal acts of Waller. The evidence supports this conclusion.

The tax returns and other evidence show Watkins was operating an unprofitable business during 1974 and 1975. He could not pay for gasoline purchases, and probably would have been out of business within a day or two had Waller not locked the pumps. The day following the placing of locks on the pumps, Waller offered Watkins the opportunity to reopen, provided suitable arrangements would be made for payment of gas, and Watkins indicated he was not interested in continuing business.

Watkins contends that several items of equipment belonging to him were locked in the building by Waller, which constitutes a conversion for which he should also be compensated. The evidence shows the locks on the building were not changed for a period of three weeks after the locking of the pumps. During this time, Watkins had ample opportunity to remove his equipment. No attempt was made by Waller to prevent him from taking the equipment, and it was removed in early November. Therefore, no damage was shown for the alleged conversion of movable equipment.

Under the circumstances presented, the sum awarded by the trial court for general damages for humiliation and embarrassment is within the discretion accorded the trier of facts in determining damages.

The only other persons who had knowledge of the locking of the pumps besides Watkins were his wife and two employees. The action took place after six o’clock in the evening, and the opportunity was extended to Watkins to reopen the following day if he could secure the necessary financing.

The evidence does not show plaintiff has sustained any damage to his credit standing.

Plaintiff also contends the trial court erred in not awarding him attorney’s fees. He contends Waller was in bad faith by evicting him without legal process, and that the breach of a contract in bad faith entitles the adverse party to attorney’s fees as an element of damages.

As a general rule, attorney’s fees are not allowed except where authorized by statute or contract. Maloney v. Oak Builders, Inc., 256 La. 85, 235 So.2d 386 (La.1970); Walters Air Conditioning Company, Inc. v. Firemen’s Fund Insurance Company, 252 So.2d 919 (La.App. 2nd Cir. 1971). We have found no authority to support plaintiff’s contention that the illegal eviction of a lessee renders the lessor liable for attorney’s fees as an element of damage for breach of contract.

The parties have stipulated the judgment in favor of Waller for $820.75 should be reduced to $541.01.

The judgment, as amended, is affirmed at appellant’s costs.


author: HALL, Judge.

text:
    BODCAW COMPANY, Plaintiff-Appellee, v. N. M. SPURLIN, Defendant-Appellant.
    No. 13091.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 1977.
    En Banc. Rehearing Denied Feb. 14, 1977.

    Writ Refused April 20, 1977.
    Campbell, Campbell & Johnson by John T. Campbell, Minden, for defendant-appellant.
    Fish & Montgomery by John W. Montgomery, Minden, for plaintiff-appellee.
    Before PRICE, HALL and JONES, JJ.

       Bolin and Marvin, JJ., took no part in en banc denial of rehearing.

   HALL, Judge.

This is an action to fix the western boundary of plaintiff’s property. A court-appointed surveyor surveyed the property and filed his proces verbal. Defendant objected to the survey, and after trial the survey of the court-appointed surveyor was approved by the trial judge. Defendant appeals. We affirm.

Defendant’s specifications of error attack the validity of the methods used by the court-appointed surveyor. There is a presumption of correctness in favor of surveys made pursuant to court order. Lo-Bar Development Company, Inc. v. Johnson, 340 So.2d 396 (La.App.2d Cir. 1976).

Defendant relies on Smith v. Almond, 157 La. 265, 102 So. 330 (1924), for the proposition that the surveyor’s duty is to reproduce the lines of the original government survey. He contends that the court-appointed surveyor must retrace the steps of the original government surveyor, beginning at the southeast corner of the township which was the required starting point for the original surveying of each township.

Smith is authority for the proposition that it is the duty of a surveyor to reproduce the lines as originally run as closely and accurately as possible. However, Smith does not require a surveyor to begin at the southeast corner of the township. The court in Smith only required the survey in that case to begin at the nearest recognized interior section corner.

The evidence discloses that the starting point of the survey in the instant case is established in relation to a recognized section corner. No witness criticized the methods used by the court-appointed surveyor as being at variance with accepted methods of surveying. Defendant’s survey- or agreed it would be impractical either to begin at the southeast corner of the township (the boundary in dispute is in the western part of the township) or to rely heavily on the field notes used by the original government surveyor, which could not be retraced. In this case, unlike Smith, the line established by the court-appointed surveyor agrees closely with other surveys and possession lines in the area. We find that defendant has failed to overcome the presumption of correctness.

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

Affirmed.


text:
    James L. HOLTZCLAW, Plaintiff-Appellant, v. FALCO, INC., et al., Defendants-Appellants.
    No. 13100.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 1977.
    En Banc. Rehearing Denied Feb. 14, 1977.

    Writ Granted April 22, 1977.

      Campbell, Campbell & Johnson by John T. Campbell, Minden, for plaintiff-appellant James L. Holtzclaw.
    Nelson & Achee, Ltd. by Roland J. Achee and Frank M. Dodson, Shreveport, for defendant-appellant Hartford Acc. & Indem. Co.
    Cook, Clark, Egan, Yancey & King by Steven H. Beadles, Shreveport, for defendants-appellees Falco, Inc., W. Doyle Millican and Commercial Union Ins. Co.
    McConnell & McConnell by Charles E. McConnell, Springhill, for defendant-appel-lee Garland Oiler.
    Before BOLIN, PRICE and HALL, JJ.

       Bolin, J., dissents from refusal to grant a rehearing on that portion of our decree rejecting plaintiff’s demands against Hartford.

   PRICE, Judge.

This is a suit by the operator of a service station for property damages resulting from an intersectional collision of an automobile and petroleum transport truck. James Holtzclaw was the lessee of an Exxon station located on the southwest corner of the intersection of Louisiana Highways 7 and 160 in Cotton Valley. Traffic at this intersection is controlled by a stop sign and overhead electric signals flashing red, or stop, for traffic approaching on Highway 160, and amber, or caution, for traffic on Highway 7. At approximately 8 a.m. on March 16, 1974, a petroleum transport owned by Falco, Inc., and driven by Doyle Millican, was approaching the intersection in a southerly direction on Highway 7 when a Ford Pinto, driven by Garland Oiler and heading west on Highway 160, attempted to cross the intersection. The Oiler vehicle, which was towing a boat trailer, was struck by the Falco transport causing the truck to leave the highway and do substantial damage to the service station. Hartford Accident and Indemnity Company, the liability insurer of Oiler, notified the known parties who sustained property damage of the $5,000 limits of its policy. On December 10, 1974, some nine months after the accident, Hartford paid the full amount of its coverage to the parties who submitted claims for property damage. (Fireman’s Fund Insurance Company, as insurer of the station building; Exxon, as owner of the gasoline pumps; and Falco, Inc., whose transport trailer was extensively damaged.)

On March 14, 1975, Holtzclaw filed this action seeking $20,000 in alleged damages to his movable property located in the service station building. He contends Oiler and Millican were both guilty of negligence in causing the damage to his property and seeks judgment in solido against both drivers, and Falco as the employer of Millican. Falco’s liability insurer, Commercial Union Insurance Company, and Hartford are also joined as defendants against whom judgment is sought to the extent of their policy limits.

At plaintiff’s request, the case was tried before a jury resulting in a verdict awarding him damages of $4,500 against Oiler and his insurer, Hartford, and rejecting plaintiff’s demand against Millican, Falco, and Commercial Union.

Plaintiff has appealed contending that the judgment is erroneous because:

1) The defendants, Milliean, Falco, and their insurer, were absolved from negligence or liability.
2) The amount awarded was inadequate.
3) The court erred in interpreting the jury verdict and in refusing to sign a judgment in accord with the jury’s award.

Hartford has appealed contending the jury committed error in failing to recognize its defense that it had previously exhausted its policy limits through good faith compromises of other claims against its insured arising out of the same accident.

Oiler’s negligence is conceded. The sole factual question presented is whether Milli-ean was also guilty of negligence which was a contributing cause of the damage to plaintiff’s property. Plaintiff contends the evidence shows Milliean saw the Oiler automobile proceeding into the intersection at such a distance that Milliean could have avoided the collision. The evidence does not support plaintiff’s position.

Milliean was an experienced truck driver who was familiar with this intersection. He testified as he entered Cotton Valley, he slowed to a speed of 40 m.p.h. as he knew the speed limit was 45 m.p.h. Before reaching the intersection, he down shifted to low fourth gear to provide power to pull his loaded transport over the grade of a swale a short distance north of the intersection. At a distance of around 600 feet, he saw the Oiler car stopping at the intersection. As he continued to decrease his speed, he noticed the Oiler vehicle move several feet into the intersection and suddenly stop. Milliean testified he assumed the driver saw his truck and was allowing him to pass. He further testified Oiler began pulling forward a second time. He contends he turned sharply to the left and applied his brakes in an unsuccessful effort to avoid the Oiler car. The right rear fender of the Oiler car was struck by the front of the Falco Transport.

The testimony of Oiler is irreconcilable with the version of Milliean. Oiler contends that after stopping at the stop sign and looking in both directions, he proceeded to cross the intersection. He denies seeing the truck driven by Milliean or having come to a second stop in the intersection.

Whether Milliean was guilty of negligence which was a cause of the accident by failing to use reasonable care in approaching and entering the intersection is a factual issue and the jury’s resolution of this question should not be disturbed unless it is manifestly erroneous. The evidence supports the conclusion reached by the jury that Milliean was free of negligence.

Plaintiff’s claim for damages falls into two categories — loss of profit and physical damage to equipment and inventory. Plaintiff’s sales tax reports and other records do not support his claim for loss of profits. The jury awarded plaintiff an amount which is substantially equal to his inventory of merchandise and equipment that is alleged to have been damaged. This sum is adequate to compensate plaintiff for any loss he sustained because of the accident.

Plaintiff contends that the trial judge erred by misconstruing the jury’s verdict. The jury rendered a separate verdict against Oiler and Hartford for $4,500. Plaintiff contends the jury intended he be awarded a total of $9,000. We find no merit to this argument. The verdict was in substantial accord with the court’s instructions, and clearly intended to cast Oiler and his insurer, Hartford, liable in solido for the sum of $4,500.

Hartford contends that having previously exhausted the policy limits, judgment should not have been rendered against it. In support of this position it relies on the decision in Richard v. Southern Farm Bureau Casualty Insurance Company, 254 La. 429, 223 So.2d 858 (1969). In affirming the decision of the court of appeal, the Supreme Court held:

The Court of Appeal in its well considered opinion readily recognizes that in a case like this, where there are multiple claims arising out of an accident, the liability insurer, in entering compromise settlements pursuant to the right accorded it under the provisions of the policy, may exhaust the entire fund and thus one or more of the injured parties may find that they have little or no recourse against such insurer. But the court correctly found that it should, nevertheless, follow the general rule when, as here, the settlements are made in good faith and are reasonable. For compromises are favored under the law and, by making such settlements, the amount for which the insured tortfeasor may be held liable is ultimately reduced where the policy limits are insufficient to cover the total damages, and this is in keeping with the responsibility of the insurer to its insured under the law. Cites omitted.

The Richard case, being the latest expression of the Supreme Court, should be followed if Hartford was in good faith in paying the entire proceeds to Exxon, Fireman’s Fund, and Falco. The insurer is presumed to be in good faith, and the claimant has the burden of proving otherwise. Jack v. Jack, 240 So.2d 435 (La.App.3rd Cir. 1970).

Plaintiff, in this instance, has not shown Hartford was in bad faith. Hartford ascertained through its own investigation that plaintiff was the occupant of the damaged building. It contacted plaintiff, and the other potential claimants by letter on July 3, 1974, and asked them to submit their claims or face a concursus proceeding. All other claimants contacted Hartford and negotiated a settlement which was of substantial benefit to Oiler. Three months later, and nine months after the accident, plaintiff filed this suit which was the first notification to Hartford that a claim was being made against it. Under these circumstances, there is no bad faith shown on the part of Hartford, and the jury was in error in rendering a verdict against this defendant.

The judgment awarding plaintiff damages against Hartford Accident and Indemnity Company is reversed and there is judgment rejecting plaintiff’s demands against Hartford. In all other respects, the judgment is affirmed. Costs of this appeal are assessed to plaintiff.


author: BOLIN, Judge.

text:
    Bonnie M. HATCH, Plaintiff-Appellee, v. Urzula Cloud HATCH, Defendant-Appellant.
    No. 13101.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 1977.
    En Banc. Rehearing Denied, Feb. 14, 1977.
    Writ Refused March 31, 1977.

      Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for defendant-appellant.
    Sanders & Hennigan by Martin Sanders, Winnfield, for plaintiff-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   BOLIN, Judge.

Plaintiff-husband obtained a judgment of divorce from his wife on the grounds of having lived separate and apart for two years under Louisiana Revised Statutes 9:301. The husband had previously obtained a legal separation from his wife on the grounds of abandonment. See 335 So.2d 707 (La.App. 2d Cir., 1976), writs refused La., 338 So.2d 113. The wife in her answer to the divorce petition admitted the two-year separation but appeals, contending the trial court erred in not permitting her to relitigate the question of fault and in sustaining exceptions of lis pendens and res adjudicata to her reconventional demand for alimony. We affirm.

The issue is whether the wife should be permitted to relitigate the question of fault in a divorce action based on two year separation where the alleged fault was previously litigated adversely to her in a separation suit between the same parties.

A large portion of appellant's brief is devoted to the argument that the lower court erred in sustaining the exceptions of lis pendens and res adjudicata since the requirements for these exceptions were not present. Since we conclude, for the reasons hereinafter expressed, that the judgment is correct, we may assume the exceptions were improperly sustained.

In Hatch v. Hatch, supra, the husband sued his wife for a separation on the grounds of abandonment. The wife reconvened seeking a separation on the grounds of abandonment and cruel treatment. The husband was granted the separation under his principal demand based on the wife’s abandonment. This judgment of separation was a judicial determination of the marital fault which caused the separation. It constituted a conclusive determination of pre-separation fault when the wife seeks alimony under Civil Code Article 160. This rule applies whether the action for divorce is based on R.S. 9:301 or 9:302. Fulmer v. Fulmer, 301 So.2d 622 (La.1976); Nethken v. Nethken, 307 So.2d 563 (La.1975).

Since the acts of fault of the husband, alleged by the wife in her reconventional demand, occurred before the separation judgment, the trial court was correct in refusing to relitigate this question. The judgment which did not grant the wife alimony under Civil Code Article 160 is, therefore, correct. Whether the trial judge refused to litigate this question because of his ruling on the exceptions is immaterial since the law and the evidence clearly support its correctness.

The judgment is affirmed.


text:
    Mrs. Sue Wilder SZMYD et al., Plaintiffs-Appellants, v. Raymond WINGATE et al., Defendants-Appellees.
    No. 13102.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 1977.
    En Banc. Rehearing Denied Feb. 14, 1977.
    Writ Not Considered April 6, 1977.

      Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for plaintiffs-appellants.
    Lunn, Irion, Switzer, Johnson & Salley by Charles W. Salley, Shreveport, for defendants-appellees.
    Before BOLIN, PRICE and HALL, JJ.
   BOLIN, Judge.

In 1934 Janie Wingate and several of her brothers and sisters purportedly executed an act under private signature conveying their inherited interest in land located in Jackson Parish to their brothers, Raymond and Ed Wingate. Plaintiffs sue Raymond Wingate and the heirs of Ed Wingate seeking to set aside the sale, as it affected the interest of Janie Wingate, on the ground that her signature was a forgery. In a written opinion the trial judge found plaintiffs had failed to prove the signature was a forgery. From judgment rejecting their demands plaintiffs appeal and we affirm.

The primary issue is factual, i. e., did plaintiffs prove the signature of Janie Win-gate was a forgery?

The 1934 deed, being an act under private signature duly acknowledged by one of the witnesses, is accorded the same credit between those who subscribed to it and their heirs as an authentic act. Louisiana Civil Code Article 2242; Louisiana Revised Statutes 13:3720; LeBoeuf v. Duplantis, 162 So. 592 (La.App. 1st Cir., 1935).

Civil Code Article 2236 provides an authentic act “is full proof of the agreement contained in it, . unless it be declared and proved a forgery.” Therefore, plaintiffs have the burden of proving by a preponderance of the evidence that Janie Wingate’s signature on the deed is a forgery. LeBoeuf, supra; Succession of Donellan, 310 So.2d 143 (La.App. 4th Cir., 1975).

Plaintiffs presented evidence that Janie had a broken arm on the date of the sale which would have prevented her from signing the deed, and that she never spelled her name with two “n’s” as it appeared on the document. Janie’s daughter testified that the signature was not her mother’s and that her mother had told her the signature was a forgery. Plaintiffs also produced a handwriting expert of limited experience who testified the signature was possibly a forgery.

The only living eye-witnesses to the signing of the deed were Raymond Wingate, one of the vendees, and Robbie Wingate, the wife of the other vendee. They both testified Janie had some type of splint or bandage on her writing hand but that she had signed the instrument. Raymond testified Janie had been one of the principal proponents of the sale and that he saw her after the sale and she never protested or indicated she was dissatisfied with the deed.

Defendants’ handwriting expert, who had previously testified in several hundred civil cases, stated there was not sufficient evidence to enable her to render an opinion as to whether or not the signature was a forgery.

We find the evidence supports the trial judge’s conclusion that plaintiffs failed to prove Janie’s signature on the deed was a forgery. We are particularly impressed by the fact that Janie herself never complained that the deed was in any way improper. Also, although Janie’s heirs contend Janie told them the signature was a forgery in 1940, they did not bring this action until nearly 35 years later, after the notary and witnesses to the deed were deceased.

Plaintiffs also complain of the trial judge’s refusal to grant a new trial on the basis of newly discovered samples of Janie’s signature which they obtained from the Social Security Administration. Plaintiffs have not shown they could not have obtained these samples with due diligence before or during the trial. La.Code of Civil Procedure Article 1972(2); Scarbrock v. Fowler, 317 So.2d 285 (La.App. 3rd Cir., 1975). The lower court was correct in overruling the motion for a new trial.

Judgment is affirmed at appellants’ cost.


text:
    Margarete ALEXANDER, Plaintiff-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY et al., Defendants-Appellees.
    No. 13105.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 1977.
    En Banc. Rehearing Denied, Feb. 14, 1977.

      Gamm, Greenberg & Kaplan by Jack H. Kaplan, Shreveport, for plaintiff-appellant.
    Mayer, Smith & Roberts by Alex P. Smith, Jr., Shreveport, for defendants-ap-pellees.
    Before BOLIN, PRICE and HALL, JJ.
   HALL, Judge.

Plaintiff was injured when her northbound car turned over as she was attempting to go around and behind a large transport truck which was making an illegal left turn from the right shoulder of the road and was blocking both northbound lanes of travel. The district court held the proximate cause of the accident was the failure of plaintiff to have her automobile under control and rejected plaintiff’s action for damages against the truck driver, the owner-lessor of the truck, the lessee of the truck and the insurer of the lessee. Plaintiff appealed.

After review of the evidence it is the conclusion of this court that the truck driver was negligent and that defendants failed to prove plaintiff was contributorily negligent. Accordingly, we reverse, hold for the plaintiff, and award damages.

The accident occurred on October 3, 1973, at approximately 11:00 a. m. on North Market Street in Shreveport. North Market is a north-south four lane thoroughfare with the two southbound and two northbound lanes divided by a wide median. At the scene of the accident there is a break or crossover in the median. To the east side of the highway there is an access street, which is also divided by a curbed median, leading to a service road. At the time of the accident the weather was clear and dry.

The defendant, Billy J. Mason, pulled his 52 foot long tractor-trailer, loaded with butane tanks, onto the east shoulder of the street, and stopped headed north, a few feet south of the intersection of the access street. Another truck driver, J. B. Wren, also pulled his similar vehicle onto the shoulder behind Mason’s unit. The two drivers were to meet for lunch at Sammy’s Restaurant, located on the west side of North Market, opposite the point at which they stopped.

Mason started forward, with the intention of pulling out onto the street and making a left turn through the crossover in the median in order to get to Sammy’s Restaurant. He testified he looked to the rear (testifying once that he looked in his rear view mirror and testifying another time that he looked out his window) and saw no traffic coming northbound. He pulled out onto the street, crossed both northbound lanes, and continued on across the southbound lanes without stopping, according to his and Wren’s testimony. When his cab was in the crossover of the median, he looked out of his window and saw plaintiff’s automobile coming northbound in the inside lane with its brakes applied and skidding.

Wren, testifying by deposition, stated he was out of his truck and saw plaintiff coming at an excessive rate of speed, estimated by him to be 70 miles per hour. She applied her brakes, skidded to the right, hit the curbed median of the access street to the right, and the car turned over on its left side.

Plaintiff testified she had stopped for a red light at the intersection of North Market and Hearne Avenue, several hundred yards south of the scene of the accident. She proceeded northbound in the inside lane at a speed of about 40 miles per hour, aware of the two trucks parked on the shoulder. She noticed the lead truck begin to move and assumed it was going to pull into the outside lane and proceed northbound. It was not until the truck started crossing the inside lane that she realized what the truck was doing. Plaintiff elected to attempt to go around behind the truck to the right, turning to the right and applying her brakes, but not forcefully. She testified the truck stopped when it got to the median, which made her maneuver more difficult. Plaintiff denied applying her brakes forcefully enough or skidding to the extent that she would have left skid marks.

The investigating police officer had no independent recollection of the location of the skid marks but testified he noted on the accident report 185 feet of skid marks for plaintiff’s vehicle.

The defendant truck driver was clearly and grossly negligent in attempting to execute the left turn from the right shoulder of a heavily traveled city thoroughfare thereby blocking both lanes of northbound travel. See LSA-R.S. 32:101(3). Although he testified he looked before starting the maneuver and saw no northbound traffic behind him, it is doubtful because of the street curving to the east and the location of the other large truck behind him, that he could see far enough to the south to be assured his exceedingly dangerous maneuver could be executed in safety.

Finding the defendant driver negligent, the burden of proof was on defendants to prove plaintiff’s alleged contributory negligence as a bar to her recovery.

There was no reason for plaintiff to be aware of any danger at the time the truck started moving on the shoulder. Even as it entered the street, plaintiff was reasonable in her assumption that the truck would stay in the outside lane and proceed north, presenting no danger or need for evasive action on her part. It was only when the truck started crossing the inside lane that the danger presented itself. At this point, plaintiff was confronted with a sudden emergency.

When confronted with a sudden emergency not of one’s own making, a driver is not held to making the best decision. Plaintiff’s decision to try to go around the truck to the right was reasonable evasive action. She avoided striking the truck and apparently would have escaped without serious mishap if the auto had not hit the median in the access street.

The real issue or question in this case is whether plaintiff contributed to the creation of the sudden emergency. More specifically, the question is whether plaintiff was driving at an excessive rate of speed which contributed to the emergency and was a contributing cause of the accident. The evidence is that plaintiff was keeping a proper lookout and that she took reasonable evasive action when confronted with the emergency. If plaintiff was contributorily negligent, it was because she was traveling at an excessive rate of speed and such excessive speed was a contributing cause of the accident.

The primary evidence as to excessive speed is the 185 feet of skid marks and Wren’s estimate of speed at 70 miles per hour. Plaintiff testified she was going 40 miles per hour and the speed limit was 50 miles per hour.

The evidence on skid marks is vague and sketchy. The officer had no independent recollection in this regard. He could not testify as to location or nature of the marks, but only that he had noted the skid marks on his report made after the investigation. The skid marks, if they were made by plaintiff’s auto, indicate significant speed — but there is no evidence in the record correlating the skid marks with any particular speed. Fifty miles per hour, the legal speed limit, is a significant speed and there is nothing in the evidence to show that the skid marks could not have been made with plaintiff traveling within the speed limit at the time she applied her brakes and began to turn right to avoid the truck.

The testimony of Wren, the defendant driver’s friend and an employee of the defendant company, is entitled to no greater weight than that of plaintiff. His brief observation of the developing situation was hardly adequate for a dependable estimate of plaintiff’s speed.

Even if plaintiff was exceeding the speed limit to some extent, the evidence does not establish that she could have extricated herself from the perilous situation created by the defendant driver’s dangerous maneuver had she been driving within the speed limit. It is not clearly established that the accident would not have happened but for her excessive speed.

Our conclusion is that defendants have failed to establish by a preponderance of the evidence that plaintiff was contributorily negligent. She is not barred from recovery and is entitled to damages for the injuries sustained as the result of the defendant truck driver’s negligence.

Plaintiff’s principal injury from the October, 1973 accident was a compression fracture of the first lumbar vertebra. She was hospitalized for twelve days and placed in a back brace, which she wore for about two months. The fracture healed normally, but the low back pain and partial disability continued up until March 7, 1974. On March 7, plaintiff had another auto accident and injured her neck. Her lower back apparently got worse again following this second accident. She was discharged by the doctor in May, 1974, and went back to work for another employer in July, 1974. She still complains of low back pain, and her present employer and her sister-in-law confirm that her activity has been at least slightly restricted.

Plaintiff incurred medical expenses of $1,065.79 for which she is entitled to recover.

Mrs. Alexander had been working for Western Electric for two days at the time of the accident. Her rate of pay was approximately $120 per week. She is entitled to recover $480 per month during her disability which continued for approximately six months, or a total of $2,880 for loss of wages.

Plaintiff’s automobile was a total loss, for which she was paid by her collision insurer, less $100 deductible, which she is entitled to recover.

Plaintiff rented a car from November 20, 1973, to February 19, 1974, at a cost of $764.40. She is entitled to recover the cost due to loss of use of her automobile for the period of time reasonably necessary to determine that the automobile was a total loss. There is evidence plaintiff and her insurance company were unable to make the determination for a considerable period of time, but under the circumstances about two months should have been adequate. The automobile was not rented until near the end of the 60 day period and recovery of 20 days rental at $8 per day, or $160, will be allowed. See Desselle v. Wilson, 200 So.2d 693 (La.App.3d Cir. 1967).

Plaintiff’s injury was serious, painful, and there is evidence that plaintiff continues to suffer some pain. However, she is not disabled, and the doctors found that the healing was normal and without complication. The award for general damages— pain, suffering and disability — is fixed at $10,000.

Accordingly, and for the reasons assigned, the judgment of the district court is reversed and judgment is rendered in favor of plaintiff, Margarete Alexander, and against defendants, Billy J. Mason, Riley Beaird, Inc., and Liberty Mutual Insurance Company, in solido, in the sum of $14,-205.79, together with legal interest thereon from date of judicial demand until paid, and all costs of this proceeding, including the cost of appeal.

Reversed and rendered.


author: JONES, Judge.

text:
    Rosita Medellin TANNER, Plaintiff-Appellee, v. Darrell Dewayne TANNER, Defendant-Appellant.
    No. 13116.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 1977.
    En Banc. Rehearing Denied Feb. 14, 1977.
    Freeman & Hall by J. Stacey Freeman, Shreveport, for defendant-appellant.
    Thomas, Prestridge & Burchett by Rogers M. Prestridge, Bossier City, for plaintiff-appellee.
    Before HALL, MARVIN and JONES, JJ.
   JONES, Judge.

The plaintiff and defendant in this action were divorced in 1963. Mrs. Tanner was granted custody of the three children and awarded child support in that proceeding.

On February 10,1976, Mrs. Tanner filed a “Rule to Show Cause Why Child Support Should Not Be Increased”, alleging a change of circumstances based upon increased need of the children and a greater ability of the defendant to pay. The hearing was set for February 24, 1976.

On February 17, an order was signed resetting the Rule for March 2. On March 2 the case was called but neither the Plaintiff-in-Rule nor her attorney were present. No action was requested by defendant, and none was taken by the court. On May 25, 1976, an order was signed setting a hearing for June 8, 1976. On June 8, the case was continued. Another motion and order was filed on June 10, setting a hearing for June 26. On June 25, the case could not be heard, and was reset for July 2, 1976.

On July 2, Defendant-in-Rule filed an Exception of No Cause of Action, which was overruled. After a hearing, the trial court increased the amount of child support to $300 per month. Defendant appeals.

Defendant’s argument is the Rule had no legal effect past the March 2 hearing date, at which plaintiff failed to appear. Because of this he urges the Motion and orders filed subsequent to March 2 cannot relate back to the original rule, and since these motions and orders contain no allegations of a change in circumstances, they state no cause of action. Defendant argues no other grounds to show the proceedings under this Rule were terminated. The motions and orders resetting the Rule for hearing were all filed under the same docket number as the original Rule to Show Cause.

A Rule to Show Cause is one method to commence a summary proceeding. See LSA-C.C.P. Art. 2593. As with an ordinary proceeding, once a summary proceeding is commenced, it continues until terminated, whether by decision on the merits, judgment of dismissal, or some other action of the trial court.

LSA-C.C.P. Art. 1672 provides:

“A judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial. In such case the court shall determine whether the judgment of dismissal shall be with or without prejudice.” (Emphasis added)

Although Art. 1672 is found in “Book II — Ordinary Proceedings” of the Code of Civil Procedure, Art. 2596 states the rules governing ordinary proceedings are applicable to summary proceedings, except as otherwise provided by law.

Under Article 1672, plaintiff’s failure to appear at the assigned hearing has no effect on her action unless defendant applies for and the court grants a dismissal of the suit. Here the defendant took no action, and therefore plaintiff’s failure to appear has no effect. Since we find no merit in defendant’s contention that the Rule had “expired”, the action of the trial judge in dismissing his exception was proper.

For the foregoing reasons, the judgment of the trial court is affirmed, appellant to pay all costs of this appeal.


author: DOMENGEAUX, Judge.

text:
    Jeannine Jones BEAVERS, Plaintiff-Appellee, v. M. C. STEPHENS, Defendant-Appellant.
    No. 5719.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.

      J. Michael Small, of Gravel, Roy & Burnes, Alexandria, for defendant-appellant.
    Michael M. Wahlder, Alexandria, for plaintiff-appellee.
    Before HOOD, DOMENGEAUX and HUMPHRIES, JJ.
   DOMENGEAUX, Judge.

On October 11, 1971, Lodima Trotti Stephens died, being survived by her spouse, M. C. Stephens, defendant-appellant, and her daughter by a prior marriage, Jeannine Jones Beavers, plain tiff-appellee. Mr. and Mrs. Stephens owned, among other things, several parcels of real property, numerous pieces of farm and construction equipment, and a profitable business known as “Steve’s Package Liquor Store”. After his wife’s death Mr. Stephens continued to operate the liquor store and derive the profit therefrom. Apparently, there was no agreement between Mr. Stephens and Mrs. Beavers as to the operation of this business, and the latter took little or no part in the management of same.

On March 29, 1973, plaintiff and defendant herein entered into several transactions. Mrs. Beavers conveyed her interest in certain pieces of real estate (including the liquor store) to Mr. Stephens for the sum of $25,722.75. The recitation in the deed indicates that the sale was for cash paid on that date. Additionally, the parties entered into an agreement containing approximately ten provisions whereby they attempted to partially settle the estate of the decedent.

The agreement provided, in part:

“It is agreed that Mr. Stephens will owe Mrs. Beavers for one-half of store profits from date of death of Mrs. Stephens until date of deed from Mrs. Beavers to Mr. Stephens. An accounting will be rendered within six months from date hereof.”

Other portions of the agreement dealt with disputed and undisputed claims which will be discussed briefly hereinafter.

As evidence of the obligations owed to Mrs. Beavers as set forth in the agreement, defendant executed a promissory note in the amount of $50,000.00 payable “as per agreement” and paraphed “Ne Varietur” for identification with an act of mortgage given as security for said obligations. The mortgage, in the amount of $50,000.00, encompassed all of the immovable property transferred from plaintiff to defendant on that same date. It appears that the amount of the note was intended to represent defendant’s maximum potential obligation, to be determined after the accounting.

Apparently dissatisfied with the manner in which defendant attempted to comply with the agreement, plaintiff filed suit No. 26,305 (our Docket No. 5719 on appeal) on June 8, 1973, captioned “Suit for Money Owed”, alleging, inter alia, that defendant’s accounting of the profits from Steve’s Package Liquor Store was incorrect and further that defendant was in possession of certain movable property to which plaintiff was entitled one-half. On September 12, 1973, plaintiff instituted suit number 26,494 (our Docket No. 5720 on appeal, 341 So.2d 1282), to enforce the obligation evidenced by the promissory note, for recognition of her security rights under the mortgage, and to foreclose on same. The two suits were consolidated for trial and remain as such on appeal. The trial judge rendered one judgment for both suits, in plaintiff’s behalf in the amount of $52,438.50, and defendant has appealed.

We note at this point, that while the primary issues with which these lawsuits are concerned is the amount owed plaintiff by defendant for the liquor store profits, several other incidental issues were decided by the trial judge. These matters concern a government contract owned by defendant and a portion of the decedent’s funeral expenses. Since none of these incidental issues have been raised on appeal we restrict ourselves to the matter of the liquor store profits.

The record contains the following profit .md loss data for Steve’s Package Liquor Store:

1970
Gross Receipts. $ 228,234.00
Cost of Goods Sold . $ 188,537.00
Gross Profit. $ 39,697.00
Net Profit . $ 24,711.00
1971
Gross Receipts. $ 280,426.00
Cost of Goods Sold . $ 224,688.00
Gross Profit. $ 55,738.00
Net Profit . $ 27,270.00
1972
Gross Receipts. $ 260,925.00
Cost of Goods Sold . $ 218,143.00
Gross Profit. $ 42,782.00
Net Profit . $ 8,799.00
1973
(First Quarter)
Gross Receipts. $ 49,089.00
Cost of Goods Sold . $ 41,732.00
Gross Profit. $ 7,357.00
Net Profit (Loss). $ - 1,178.00

Our calculations reveal the following net profit percentages: 1970: 10.8%; 1971: 9.7%; 1972: 3.3%; and 1973 (First Quarter): minus 2.3%. Neither the defendant nor two accountants who testified at trial were able to sufficiently account for the market decline in net profit percentages for the years in question.

The trial judge found that there was a form of partnership existing between plaintiff and defendant after the death of decedent and that Stephens owed Mrs. Beavers a fiduciary duty to properly manage the affairs of the business.

We feel that the fiduciary obligation owed by defendant to plaintiff was not founded upon the existence of a partnership but rather upon the principle of negotiorum gestio. The record does not indicate that plaintiff and defendant ever entered into an agreement whereby the latter was to manage Steve’s Package Liquor Store on behalf of both parties. Rather, it appears that Mr. Stephens merely continued to operate the business as he had in the past, with the tacit approval of Mrs. Beavers. Of course, in so acting, Mr. Stephens necessarily managed the one-half interest which Mrs. Beavers owned in the business.

LSA-C.C. Article 2295 provides:

“When a man undertakes, of his own accord, to manage the affairs of another, whether the owner be acquainted with the undertaking or ignorant of it, the person assuming the agency contracts the tacit engagement to continue it and to complete it, until the owner shall be in a condition to attend to it himself; he assumes also the payment of the expenses attending the business.
He incurs all the obligations which would result from an express agency with which he might have been invested by the proprietors.” (Emphasis added)

LSA-C.C. Article 2298 sets forth the duty owed by the negotiorum gestor:

“Art. 2298. Degree of care required of manager; prudent administrator
Art. 2298. In managing the business, he is obligated to use all the care of a prudent administrator.
Yet, where circumstances of friendship or of necessity have induced a person to undertake the management, that consideration may authorize the judge to mitigate the damages which may arise from the faults or the negligence of the manager.”

We are of the opinion that although plaintiff and defendant were in essence co-owners of Steve’s Package Liquor Store, a going concern, the defendant nonetheless undertook the task of managing “the affairs of another” when he continued to operate the business which included Mrs. Beaver’s one-half interest therein. We take cognizance of the article at 7 Tul.Law Review 253 and several old cases cited therein for the proposition that the relationship of negotiorum gestio cannot exist between co-owners. Those cases are factually distinguishable from the present litigation and are thus inapplicable to this situation.

Based upon the provisions of LSA-C.C. Article 2298, we find that defendant was possessed of a fiduciary duty to properly and efficiently manage the affairs of Steve’s Package Liquor Store. The serious decline in profits of the business under his management, absent a sufficient explanation of the causation thereof, indicates a breach of that fiduciary duty, and the trial judge so found. Thus defendant must account to and compensate plaintiff for losses which the business incurred due to his mismanagement or negligence.

The trial judge used a formula by which he added the gross profits for the years 1971, 1972, and 1973 (First Quarter), and awarded plaintiff one-half that sum. We feel that the district judge erred in using the figure of $55,738.00 as the gross profits for the entire year of 1971 since Mrs. Beavers’ interest in the business vested only as of the date of her mother’s death on October 11, 1971. Furthermore, had Mrs. Beavers been an actual practicing partner in the business she would not have received the gross profits from same, but rather her income would have been limited to net profits. For these reasons, we choose to apply a different formula in calculating the amount due plaintiff by defendant.

We find that the figures for 1971 reflect those of a typical year in the operation of Steve’s Package Liquor Store. Mr. Stephens operated the business in 1971 with the assistance of decedent for several months but finished out the year without her help. Under this operation Steve’s Package Liquor Store showed a net profit percentage of 9.7%, and we choose that figure as a reasonable income percentage for the business. Applying said percentage to the gross receipts for the period from October 11, 1971, through March 29, 1973, we arrive at the following net profit figures:

October 11, 1971—
December 31, 1971.$ 7,127.00
January 1, 1972—
December 81, 1972 .$ 25,310.00
January 1, 1973—
March 29,1973 . $ 4.762.00
Total. $ 37,199.00
Amount Due Plaintiff (one-half interest) .$ 18,599.50

Defendant claims that he is entitled to compensation for his services rendered in managing the affairs of Steve’s Package Liquor Store for the period in question. The trial judge rejected this claim, and we agree. Absent an agreement, a co-owner cannot claim such compensation for managing jointly owned property. See Murphy v. Murphy, 136 La. 17, 66 So. 382 (La.1914); Sharp v. Zeller, 114 La. 549, 38 So. 449 (La.1905); and Conrad v. Burbank, 25 La.Ann. 112 (La.1873).

For the above and foregoing reasons the judgment of the district court is amended so as to reduce the amount awarded plaintiff from $52,438.50 to $18,599.50, and as so amended is affirmed. Costs on appeal are assessed in the proportions of one-half to each party.

AFFIRMED, AS AMENDED.

      . The judgment is silent upon the matter of the recognition of the mortgage and enforcement of same.


text:
    Jeannine Jones BEAVERS, Plaintiff-Appellee, v. M. C. STEPHENS, Defendant-Appellant.
    No. 5720.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.
    J. Michael Small, of Gravel, Roy and Burnes, Alexandria, for defendant-appellant.
    Michael M. Wahlder, Alexandria, for plaintiff-appellee.
    Before HOOD, DOMENGEAUX and HUMPHRIES, JJ.
   DOMENGEAUX, Judge.

This is a companion case to No. 5719 captioned “Jeannine Jones Beavers v. M. C. Stephens", 341 So.2d 1278 (La.App.3rd Cir. 1976), rendered this date. Plaintiff brought this action to enforce an obligation owed on a promissory note and to have a mortgage securing same recognized and given effect.

As noted in the companion case, the trial judge rendered one judgment for both suits in the amount shown therein. The judgment is silent upon the matter of the recognition of the mortgage sued upon herein and the enforcement of same. Plaintiff, Mrs. Beavers, has neither appealed nor answered this appeal, and consequently we are powerless at this time to order the recognition of her security rights under the mortgage as she prayed for.

For the reasons assigned in the companion case No. 5719 the judgment of the district court is amended so as to reduce the amount awarded plaintiff from $52,438.50 to $18,599.50, and as so amended is affirmed. The judgment rendered herein is not an additional judgment, but is the same as contained in the companion suit. Costs on appeal are assessed in the proportions of one-half to each party.

AFFIRMED, AS AMENDED.