text:
    Mark S. MATTHEWS v. SNO’S SEAFOOD & STEAK HOUSE, INC.
    No. 11714.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.

      Michael J. Matthews, Gonzales, for plaintiff and appellant.
    A. Michael Dufilho, Baton Rouge, for defendant and appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is an action ex delicto by Mark S. Matthews against Sno’s Seafood & Steak House, Inc. (Sno’s) and its insurer, Charter Oak Fire Insurance Company, James N. Sheets, Neil Sheets and Blaine Sheets. Plaintiff contends that Neil Sheets was the aggressor in an altercation, that occurred at Sno’s, whereas defendant, Neil Sheets, argues that his actions were justified based on the provocations of the plaintiff. The Trial Judge found that plaintiff provoked the fight, and that Neil Sheets did not use excessive force. Plaintiff has appealed.

The facts relating to the events preceding the fight are undisputed. On the night of April 12, 1975, .plaintiff attended a private party at Sno’s. During the party plaintiff purchased two drinks, and feeling the prices to be expensive left Sno’s to purchase a bottle of liquor from a package liquor store. Upon reentering Sno’s, plaintiff, carrying a pint bottle, was informed by Neil Sheets that only alcohol purchased on the premises could be consumed there. He was requested to remove the bottle from the building, at which time he turned and left. Due to the fact that the plaintiff’s car was a great distance from the restaurant, he decided to conceal the bottle in his coat and reentered the restaurant, placing the unopened liquor bottle on the table at the party in open view. Defendant, learning that the liquor bottle was at the table, removed it and placed it under the counter at the front of the building.

From this point on two different versions of the facts were related to the Trial Judge. First, the plaintiff contends that upon learning of the confiscation of the liquor bottle, he requested that the defendant, Neil Sheets, return the bottle, and he would leave the premises. He states that the defendant refused to return the bottle claiming that it now belonged to him. Upon learning that he would not receive the bottle the plaintiff requested the defendant to step outside so that they could discuss the matter in private. Plaintiff states that his conversation with Sheets was neither loud nor abusive. While proceeding out of the establishment the plaintiff claims to have been hit from behind on the left side of his head by Neil Sheets. He states that the fight which ensued was one of Sheets hitting him repeatedly with hard blows until he was dazed and shoved head first into the locked glass door. Upon his head hitting the door, the glass broke and he suffered severe lacerations to his scalp.

The conflicting version of the facts is related to the Trial Court by Neil Sheets. Sheets stated that he was informed that a liquor bottle was present at plaintiff’s table at which time he removed a pint bottle which was three-fourths empty. The conversation which ensued between the plaintiff and the defendant according to Sheets was rather loud and included vulgarity. Sheets informed plaintiff that it was his intention to return the liquor bottle only upon the plaintiffs leaving the premises. At this time, plaintiff invited Sheets to step outside in order to settle the trouble. The defendant stated he would not go outside to conduct any business with the plaintiff.

The plaintiff again asked him to go outside, and Sheets testified that he started walking to the door with the plaintiff perhaps a step to his rear and to his right. As they got to the door, defendant grabbed plaintiff by the arm and attempted to push him out the door to evict him. The plaintiff turned toward Sheets, grabbing his shirt, tearing it, and a scuffle ensued. The plaintiff was never knocked to the floor, but the plaintiff went back toward the door during the scuffle with the glass breaking.

In his written reasons for judgment the Trial Judge said:

“While plaintiff presented his case well, the Court was convinced that, all factors considered, more credence should be given to the defendants’ version of the incident.”

The Trial Judge reasoned that the defendant was merely protecting his business and that it was the plaintiff who provoked the affray. Under the circumstances, the Trial Judge felt the actions of the defendant were justified and that there was no use of excessive force in evicting the plaintiff.

In appealing, plaintiff-appellant assigns three specifications of error in that the Trial Judge (1) found that the plaintiff provoked the argument, (2) that the defendant did not use excessive force, and (3) that the Trial Judge relied on incorrect and overruled jurisprudence in making his decision.

ERRORS NOS. 1 & 2

It is well settled that a plaintiff cannot recover damages for a battery if it is established that he provoked the difficulty in which he received the injuries, and that if the person retaliating uses more force than is necessary to repel the attack, he is liable for damages. Tripoli v. Gurry, 253 La. 473, 218 So.2d 563 (1969).

The Louisiana Rule is that “mere words, even though designed to excite or irritate, cannot excuse a battery.” Morneau v. American Oil Co., 272 So.2d 313, 316 (La.1973).

The conflicting versions of the altercation having been resolved in favor of the defendants will not be disturbed by this Court absent a showing of manifest error. Canter v. Koehring, 283 So.2d 716 (La.1973). None has been shown, nor do we find any.

The plaintiff was creating a disturbance in Sno’s, and thus we hold that the defendant, Neil Sheets, was justified in evicting plaintiff from the establishment, and that the minimal amount of force Sheets was going to use was reasonable. However, when plaintiff grabbed at Sheets, tearing his shirt, he became the aggressor, thus voiding any recovery he may receive for injuries, unless excessive force was used by defendant. Additionally, we hold that there was no excessive force used. It is apparent to this Court, as it was to the Trial Judge, that when plaintiff grabbed at Sheets’ shirt and a scuffle ensued, defendant was merely protecting himself. The unforeseen falling of the plaintiff into the glass door was not caused by the use of excessive force.

ERROR NO. 3

Irrespective of the fact that the Trial Judge relied on the cases of Gross v. Great Atlantic & Pacific Tea Co., 25 So.2d 837 (La.App. Orl. Cir. 1946) and Davis v. Maddox, 100 So.2d 905 (La.App. 1st Cir. 1958) which were both overruled by Morneau v. American Oil Co., supra, the result reached by the Trial Judge is correct.

Therefore, for the above and foregoing reasons the judgment of the Trial Court is affirmed. Plaintiff-appellant is to pay all costs of this appeal.

AFFIRMED.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    STATE of Louisiana in the Interest of Katina MASON and Jerry Lee Mason.
    No. 11716.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.

      Calvin C. Fayard, Jr., Denham Springs, for plaintiff.
    J. Donald Cascio, Denham Springs, for defendant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is an appeal from a judicial determination that the custody of the minor children, Katina and Jerry Lee Mason should be removed from their parents, Jerry and Jeanitta Mason, and placed with the Division of Family Services of the State of Louisiana. The parents have appealed.

The factual determination that the minors, though loved by their parents, were abused and/or neglected by the appellants has not been raised as an issue on appeal.

Appellants contend that the Trial Judge erred (1) in failing to maintain exceptions of nonconformity of the pleadings and a lack of subject matter jurisdiction, (2) in failing to sequester witnesses who were neither parties, officers of the court nor experts, and (3) in relying on a pretrial investigation report which contained hearsay evidence.

ERROR NO. 1

The basis of appellants’ argument under this assignment of error is that the formalities of the petition as required by LSA-R.S. 13:1574 were not met, and thus the Trial Court did not have jurisdiction. The state argued it was proceeding under the authority of LSA-R.S. 14:403. Appellants argue that LSA-R.S. 14:403 is not applicable because it is found in the criminal area of the law, and the parents of these minors have never been charged with a crime. Secondly, since LSA-R.S. 13:1574 and LSA-R.S. 14:403 are in conflict as to procedural requirements, it is obvious the legislature intended that LSA-R.S. 13:1574, which has a well defined procedure, be used for extended custody changes.

We disagree. It is the express purpose of LSA-R.S. 14:403 to protect children who are being physically and mentally abused and/or neglected, and to do so as promptly as possible. LSA-R.S. 14:403 A. Thus, even before investigations can be completed, instanter orders for the immediate removal to protect the child are authorized. LSA-R.S. 14:403 G(6). We find, as did the Trial Judge, that this proceeding was pursuant to LSA-R.S. 14:403, thus the procedural requirements of LSA-R.S. 13:1574 need not be met, and no error was committed.

ERROR NO. 2

It is argued that the Trial Judge refused to sequester two employees of the Division of Family Services and a deputy sheriff, and thus abused the discretion granted by LSA-C.C.P. art. 1631.

Considering the Trial Court in its written reasons for judgment said:

“Accordingly, it is the conclusion of this Court that, without considering any testimony which may have been brought forth by the welfare investigators of the Division of Family Services, * * * ”,

We find no abuse of discretion.

ERROR NO. 3

The record indicates that the Trial Judge “looked over” various pretrial reports but these reports were never admitted into evidence. The testimony of Mrs. Carol Hel-mers, the author of the reports, alleviated the need for introduction of the reports. Her testimony was based on her own personal knowledge of the environment of the children at the Masons’ home. The reports never being introduced into evidence, the court’s review prior to trial did not prejudice the defendants-appellants.

Subsequent to oral arguments the appellants filed a motion requesting that this Court not consider the written reasons for judgment which were signed after the final judgment from which their appeal is taken. An appeal is taken from a final judgment, not from the written reasons for judgment. LSA-C.C.P. art. 2083. The written reasons for judgment are merely an explication of the Trial Court’s determinations. They do not alter, amend, or affect the final judgment being appealed and we find no procedural bar to this Court considering them, whether they are signed before, with or even after the final judgment.

Therefore, for the above and foregoing reasons the judgment of the Trial Court is affirmed at appellants’ cost.

AFFIRMED.


author: EDWARDS, Judge.

text:
    Thomas U. NECK v. COLEMAN OLDSMOBILE, INC., et al.
    No. 11709.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.

      V. James Stewart, III, Baton Rouge, of counsel for plaintiff-appellee, Thomas U. Neck.
    Robert L. Kleinpeter, Baton Rouge, of counsel for defendant-appellant, Coleman Oldsmobile, Inc.
    J. David Forsyth and John T. Nesser, III, New Orleans, of counsel for third party defendant-appellee, BMW of North America, Inc., and Bavarian Motor Works, Munich, Germany, Inc.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

This is a redhibitory action in which plaintiff, Thomas U. Neck, sued Coleman Oldsmobile, Inc., BMW of North America, Inc., and Bayerische Motoren Werke Ag, to rescind the sale of a BMW Bavaria automobile and to recover damages and attorney’s fees. Various third party demands were filed by and against Coleman and BMW seeking indemnity. After trial on the merits, judgment was rendered in favor of plaintiff, rescinding the sale, returning the $15,670.20 purchase price less a credit of $2,187.50 for mileage and unusual body damage, awarding additional damages in the amounts of $500.00 for inconvenience and annoyance and $360.00 for a substitute vehicle, and allowing attorney’s fees of $1,000.00. Judgment on the third party demands was rendered for Coleman in the amount of $13,482.70. From this judgment, BMW and Coleman have appealed. Plaintiff answered the appeals seeking an increase of damages and attorney’s fees.

On October 30,1974, plaintiff purchased a 1974 BMW 4 door sedan 3.0, body style SA from Coleman in Baton Rouge. The purchase price including taxes and finance charges was $15,670.20.

Plaintiff used this car for a period of ten months, during which he experienced numerous mechanical failures requiring the car to be brought into the shop for repairs on nine occasions. Among the difficulties encountered were: numerous wiring and electrical deficiencies; starting in any gear; the hood would not open; squealing brakes; and a total transmission failure. Additionally, plaintiff encountered engine hesitation when accelerating from a slow speed or from a stop. As a result of these problems, plaintiff tendered the car to Coleman and instituted this suit on October 28, 1975.

The trial court noted that all the problems with the car had been satisfactorily repaired by the dealer with the exception of the engine hesitation difficulties. This engine hesitation problem was held by the trial court to constitute a redhibitory defect sufficient for the rescission of the sale of the car.

The defendants contend that the trial court erred in holding: (1) that the engine on the car suffered from a hesitation problem and that this problem was a redhibitory defect; and (2) that plaintiff was entitled to damages.

Initially, defendants contend, relying on the testimony of their experts, that there was no engine hesitation problem. They urge that the trial court erred in accepting plaintiff’s testimony, which was not substantiated by an expert witness, on this point.

We note at the outset that we are not aware of any rule of law which requires a plaintiff in a redhibition action to prove his claim through the use of expert testimony. On the contrary, the rule has consistently been stated that a buyer need only show that the automobile has failed to perform properly in the manner it was intended to perform under conditions of normal use. Mid City Finance Co., Inc. v. Coleman, 232 So.2d 918 (La.App. 4th Cir. 1970). See also Stumpf v. Metairie Motor Sales, Inc., 212 So.2d 705 (La.App. 4th Cir. 1968) and cases therein cited.

Plaintiff testified unequivocally that the engine would hesitate or stall when he accelerated at low speed or from a stop. In connection with this testimony, the trial judge noted in his Written Reasons for Judgment:

“* * * The plaintiff’s complaints concerning the improper functioning of this engine began immediately and were made throughout his possession of it. The repair invoices show that on six visits to the shop the problem was noted. Carter (Coleman’s mechanic) confirmed that the carburetors on these vehicles are so sophisticated that he could have an engine properly tuned and an owner could drive it fifty miles and it would again be out of tune. Although much of this is attributed to the required emission control devices, the owner should not be subjected to constant malfunctions. This engine required frequent tune-ups and numerous visits to the repair shop to operate smoothly and, under normal use, consistently got out of tune. Had the buyer known of this latent defect, the purchase would not have been made.

“The Court is impressed with the service efforts of BMW, which obviously went to considerable expense to please the customer. It has also carefully considered the testimony of their factory representatives, Messrs. Logan and Cresky, who stated that they had driven the vehicle and that its engine performed normally. Admittedly, these were test drives of short duration. However, the history of this particular car is that while it may run correctly for a few hundred miles, that it again invariably requires the attention of a mechanic as previously outlined herein. * * * ”

We find that the evidence in the record amply supports the trial court’s conclusion that this car suffered from an engine hesitation problem which rendered its use so inconvenient that the buyer would not have purchased it, had he known of the defect. LSA-C.C. article 2520. Accordingly the trial court correctly ordered the rescission of the sale.

On the issue of damages, we find that defendants’ contention has merit.

We find that the trial court’s award of $360.00 for a substitute vehicle was proper. However, the award of $500.00 for inconvenience and annoyance was error, because plaintiff failed to prove these damages as required by law. DiGiovanni v. April, 261 So.2d 360 (La.App. 1st Cir. 1972); Aiken v. Moran Motor Co. Inc., 165 So.2d 662 (La. App. 1st Cir. 1964).

Plaintiff, in answering this appeal, questions the credit allowed defendants for “unusual body damage,” and seeks an increase in damages and attorney’s fees.

We find that the credit allowed by the trial court is supported by the evidence in the record and is proper. Additionally, we find that there is insufficient proof in the record to support the additional damages claimed by plaintiff.

Plaintiff was awarded $1,000.00 as attorney’s fees by the trial court. We feel that this award should be increased to $1,500.00 to include services performed on this appeal.

For the reasons assigned, the judgment appealed is amended to deny plaintiff damages for inconvenience and annoyance, and to increase attorney’s fees to $1,500.00; and as amended is affirmed at appellants’ cost.

AMENDED AND AFFIRMED.

      . Bayerische Motoren Werke Ag is the manufacturer of the BMW Bavaria Automobile. BMW of North America, Inc., is the distributor in the United States for these automobiles.
      References herein to BMW includes collectively both Bayerische Motoren Werke Ag and BMW of North America, Inc.


text:
    Robert LAIRD v. H. E. WIESE, INC. and Niagara Fire Insurance Company.
    No. 11719.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Roy A. Maughan, Ltd., P. C., Baton Rouge, of counsel for plaintiff-appellee, Robert Laird.
    Peter T. Dazzio, Baton Rouge, of counsel for defendant-appellant, H. E. Wiese, et al.
    Before LOTTINGER, EDWARDS, and PONDER, JJ.
   EDWARDS, Judge.

Plaintiff, Robert Laird, brought this suit against his former employer, H. E. Wiese, Inc., and its insurer, Niagara Fire Insurance Company, for workmen’s compensation benefits. The trial court found that plaintiff was permanently and totally disabled and awarded maximum benefits. From this award, the defendants have appealed.

On December 10,1974, Laird sustained an injury to his right elbow while working near Laplace, Louisiana, within the course and scope of his employment with Wiese. He was initially treated by a local doctor and returned to work.

Evidence in the record indicates that plaintiff injured this same elbow on three other occasions, twice prior to December 10, 1974 and once thereafter. The two earlier incidents occurred while Laird was employed by Diamond Service Pipeline Company and are not included in this suit. The third incident occurred on February 18, 1975, allegedly while plaintiff was working for Wiese. A claim based on this incident was included in this suit by an amended petition offered during trial.

Laird continued to experience pain in his right elbow and arm following the Decern-ber 10, 1974 accident. He consulted Dr. Freeman in Plaquemine, Louisiana and was referred to Dr. Campanella, an orthopedic surgeon.

Dr. Campanella saw plaintiff on January 30, 1975 and noted swelling and complaints of pain in the elbow region, indicative of a radiohumeral bursitis. The bursa was aspirated and injected with cortisone. Laird returned to Dr. Campanella on February 6, February 20, and February 25, 1975 with persistent complaints of pain. On March 4, 1975, Dr. Campanella operated on plaintiff’s arm at Baton Rouge General Hospital and excised the bursa. Laird was released from the hospital two days after surgery, but returned to Dr. Campanella at frequent intervals complaining of swelling and pain.

Laird was discharged by Dr. Campanella to return to work on June 12, 1975. On July 25,1975, he returned to Dr. Campanella again complaining of pain and swelling. Dr. Campanella at that time concluded that plaintiff had sustained a 20% disability of the right elbow, but felt that with time the elbow would improve. On November 19, 1975 after subsequent examinations, Dr. Campanella concluded that this 20% impairment was a permanent disability.

Laird was paid workmen’s compensation benefits based on this 20% permanent partial disability of his right elbow through February 25, 1976.

This suit was instituted on February 2, 1976 seeking benefits for permanent and total disability.

The trial court found that the December 10, 1974 injury caused plaintiff’s disability. It also found plaintiff permanently and totally disabled, relying on the 20% permanent partial disability conclusion of Dr. Campanella and the evidence that plaintiff could not work except in pain.

Defendants list the following three specifications of error:

(1) The trial court erred in failing to sustain the peremptory exception of prescription as it pertained to the February, 1975 accident;
(2) The trial court erred in failing to determine the effects of the two accidents sustained prior to plaintiff’s employment with Wiese; and
(3) The trial court erred in holding plaintiff permanently and totally disabled based on pain and suffering when there was insufficient evidence to show disability based upon pain.

Initially, defendants contend that any claim arising out of the accident in February, 1975 is prescribed under LSA-R.S. 23:1209 because the claim, which was contained in the amended petition, was not filed until February 8, 1977.

Our examination of the record leads us to conclude that the incident in February, 1975 was in reality a manifestation of symptoms which had continued since the accident on December 10, 1974.

Secondly, defendants contend that the trial court did not determine the effect of the two earlier accidents on plaintiff’s disability. Defendants argue that the earlier accidents were the cause of plaintiff’s disability. In support of this argument, they cite the testimony of Dr. Campanella to the effect that he could not say with certainty which accident caused the disability.

We find this argument untenable. The evidence in the record, particularly the testimony of plaintiff, preponderates in favor of the conclusion reached by the trial court; that plaintiff’s disability did not arise until after the Wiese injury on December 10, 1974. This conclusion is additionally supported by the fact that plaintiff returned to his former job duties, performing the heavy labor of his occupation without difficulty or pain, following the earlier accidents. However, plaintiff was unable to work without pain following the December 10,1974 injury with Wiese. We believe that plaintiff has satisfied the burden of proving that the Wiese injury caused his disability. Crooks v. Belden Corp., 334 So.2d 725 (La.App. 3rd Cir. 1976).

In this regard, the general rule is that an employee is entitled to workmen’s compensation when an occupational accident aggravates or accelerates a pre-exist-ing physical condition and produces disability. See Chism v. Kaiser Aluminum & Chemical Corp., 332 So.2d 784 (La.1976). See also Johnson v. Travelers Ins. Co., 284 So.2d 888 (La.1973), and cases cited therein. Such is the case in this instance.

Finally, defendants contend that there is insufficient evidence to support the judgment of permanent and total disability based on pain.

Great weight is to be accorded a trial court’s determination of disability, as this is an issue of fact. Accordingly, a trial court’s determination will not be disturbed in the absence of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

We find no manifest error in this instance. Several of plaintiff’s co-workers testified that plaintiff could not carry his load after the Wiese accident and that plaintiff could not do the heavy work required of him. Plaintiff testified similarly and also recounted the pain he experienced when he tried to perform the heavy manual labor that he did prior to the accident. This evidence amply supports the trial court’s conclusion that plaintiff’s injury was of such degree as to prevent him from performing, without appreciable pain, the tasks of the nature and type he had become accustomed to performing. Plaintiff is therefore permanently and totally disabled. Carlisle v. Great American Ins. Co., 291 So.2d 449 (La.App. 2nd Cir. 1974).

For the reasons assigned, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.

      . LSA-R.S. 23:1209 provides:
      “In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of partial disability this limitation shall not take effect until three years from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.”


author: JOHNSON, Judge.

text:
    Theotis Fontenot LeJEUNE et al., Plaintiffs-Appellants, v. ALLSTATE INSURANCE CO. et al., Defendants-Appellees.
    No. 6252.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.
    Writ Granted May 19, 1978.

      Guillory, McGee & Mayeux by Robert K. Guillory, Eunice, for plaintiff-appellant-ap-pellee, Theotis F. LeJeune.

      C. Brent Coreil, Ville Platte, for defendant-appellant-appellee, Danny Glenn La-fleur.
    Brame, Bergstedt & Brame, Joe A. Brame, Lake Charles, for defendant-appellant, Zurich Ins. Co.
    Davidson, Meaux, Sonnier & Roy, Edward 0. Taulbee, IV, Lafayette, for defendants-appellees-appellants, Randall Molitar, et al.
    Raggio, Farrar, Cappel & Chozen by Stephen A. Berniard, Jr., Lake Charles, for defendant-appellant, Danny G. Lafleur.
    Young & Burson by Joe Ortego, Eunice, for plaintiff-appellee, Ivy Fruge Molitor.
    Fusilier, Pucheu & Soileau by L. 0. Fusilier, Ville Platte, for plaintiff-appellant-ap-pellee.
    John Larry Vidrine, Ville Platte, for defendant-appellee-appellant.
    Jack C. Fruge, Ville Platte, for defendants-appellees, Willie Smith and Dixie Auto. Ins. Co.
    Lewis & Lewis, James T. Guglielmos, Opelousas, for defendant-appellee.
    Voorhies & Labbe, Patrick A. Juneau, Jr., Lafayette, for defendant-appellee, Western World Ins. Co.
    Calvin E. Hardin, Jr., Baton Rouge, for defendant-appellee, Ins. Co. of North America.
    Allen, Gooch & Bourgeois, Ltd., Arthur I. Robison and Michael Harson, Lafayette, for intervenor-appellant, Insurance Co. of La.
    Before CULPEPPER, DOMENGEAUX and JOHNSON, JJ.
   JOHNSON, Judge.

This appeal is from cases arising out of an automobile accident. They arise from a collision which occurred at the intersection of two hard surfaced state highways. It occurred at 3:00 in the afternoon on a clear day, November 13,1974. One highway runs east and west; the other, north and south. Visibility is good for a considerable distance in all directions. Drivers of cars can see one another for a good distance before reaching the intersection. The east-west highway had the right of way; however, traffic traveling east or west was faced with a constantly blinking yellow caution light located some eighteen to twenty feet above the center of the intersection. This requires by law that traffic enter the intersection cautiously. Both highways were hard surfaced with two lanes for traffic. The traffic traveling the north-south highway from either direction was faced with a stop sign located on the right hand side of the driver’s vehicle in each instance. In addition, for traffic moving north and south there was over the center of the intersection a large flashing red light. This light required traffic to stop. It, along with the stop sign, was an admonition to traffic approaching from the north or south to stop before entering the intersection. These signs also required such traffic to give way to east-west traffic after stopping.

At the place and time involved, a funeral procession was proceeding northward with two or three vehicles of the procession having crossed the intersection. The hearse was approaching and about to enter the intersection. All vehicles in the funeral procession had their headlights burning. A number of vehicles were following the hearse.

At this time, some 300 to 500 feet away, the evidence discloses that a Mercury Marquis Sedan was being driven in a westerly direction toward the intersection at a speed probably in excess of a hundred miles per hour. The Cadillac hearse proceeded into the intersection without stopping. The driver of the Mercury automobile, apparently, at this instant about 300 feet away, realized the danger and was able to lay down skid marks of about 154 feet in length. Despite the skid marks, the Mercury automobile struck the Cadillac hearse approximately in the right hand center of the hearse. The actual impact was after the Cadillac hearse, headed North, had completely cleared the east-west-roadway (Hwy. 10) but was in close proximity thereto. The photographs in evidence show that the intersection is broad and flares out wider than the two highways. The impact resulted in the death of the funeral director who was a passenger in the hearse. It resulted in injuries to the driver of the hearse and injuries to the driver of the Mercury automobile. Both vehicles, heavily damaged, ended up in a field adjacent to the northwest corner of the intersection. The coffin was dislodged from the hearse and ended up in the intersection.

The above recited statement of facts seems not too complicated upon presentation. The various legal problems and issues arising from this accident are far from simple. The presentation of the various problems that have arisen has resulted in multitudinous pleadings, cross claims, third party claims, interventions, answers, amending and supplemental petitions, reconventional demands, exceptions, motions for summary judgment, etc.

In these three consolidated cases consisting of seven bound volumes of records, four of the volumes are devoted to pleadings alone. This has resulted in a legal guag-mire of monumental proportions. The powers that be in the legal profession in Louisiana concerned with simplification and streamlining of procedure could well use these cases and these records as an example to justify additional work in this area. If this record represents an example of what Louisiana third party practice is headed for, it is believed that we will rival or surpass the common law pleadings of yesteryear.

We find that the learned trial judge, with one exception, has properly disposed of the numerous issues which have arisen herein. We take the liberty of repeating his reasons for judgment with additional comment and quotation of authorities wherever we feel it is indicated.

We quote from his Reasons for Judgment:

These cases, consolidated for trial, arise from a hearse-automobile accident in the Parish of Evangeline, Louisiana. The facts are these:
Rolance LeJeune died instantly as a result of a hearse-automobile accident which occurred at the intersection of Louisiana Highways 10 and 13, on November 13, 1974, at approximately 2:58 P.M. Both highways, at the time of the accident were hard-surfaced, two-lane highways. The intersection was controlled by a stop sign and a semaphore light blinking red for traffic on Louisiana 13, and amber or yellow for traffic on Louisiana 10.
The hearse was being driven north on Louisiana 13, an inferior highway, by Danny Lafleur, an employee of Ardoin’s Funeral Home of Ville Platte, Inc., for Ardoin’s Funderal Home of Mamou, Inc. Having been assigned this task by the director of Ardoin’s Funeral Home of Ville Platte, Inc., pursuant to a request of Rolance LeJeune, the director of Ardoin’s Funeral Home of Mamou, Inc., Lafleur was under the supervision and control of LeJeune at the time of the accident. The automobile, the other vehicle in the collision, was being driven by Randall Molitor, and was the property of his widowed mother, Mrs. Ivy Molitor, with whom he resided.
When the accident occurred, the hearse, part of a cortege proceeding from Mamou to Pine Prairie for a funeral service and interment, was led by an Evangeline Parish sheriff’s car, which signalled with a flashing red light. The driver of this car, deputy Willie Smith, had never before led a funeral procession on this route, and was untrained in the manner in which such a procession was to be escorted and in the manner in which intersecting avenues of travel should be secured to allow unimpeded travel to a motorcade of this kind. As Smith reached the intersection where the accident subsequently occurred, he did not stop and secure the intersection with his automobile, nor did he get out of his car to direct traffic. Instead, he stopped in the intersection, looked both ways, saw no approaching traffic on Louisiana Highway 10, and proceeded across the intersection as he continued to escort the vehicles which followed.
■ Upon arriving at the intersection where the. accident occurred, Danny-La-fleur, the driver of the hearse, slowed down but did not stop. He knew and observed that the intersection had not been secured by the police escort and that no one was directing traffic at the intersection to allow traffic on Louisiana Highway 13 the right of way over the superior right of way of the intersecting Louisiana Highway 10. He could see that the intersection was controlled by a stop sign and a red-blinking semaphore light for traffic on Louisiana Highway 13, and being familiar with the intersection, he knew it to be dangerous. Too, although he had observed that the Molitor car was traveling towards the intersection on Louisiana 10 and that the driver did not give any indication that he was going to stop, Lafleur nevertheless attempted to cross the intersection.
Randy Molitor, driving an automobile at a grossly excessive rate of speed, failed to reduce his speed as he approached the intersection, and collided with the hearse near the northeast quadrant of the intersection close to or out of the extension of the west-bound lane of Louisiana 10 as it crosses Louisiana 13. As a result, Mr. LeJeune, a passenger in the right front seat of the hearse, was killed.
Considering the evidence, I therefore find:
1)That Danny Lafleur was negligent in causing the accident and the consequent death and damages. He saw or should have seen the Molitor car in too close proximity to the intersection to proceed across. He had a flashing red light, he knew he was on an inferior highway, and he knew that no officer was directing traffic at the intersection so as to take precedence over the posted stop sign and the flashing red light. Therefore he should not have proceeded until he was certain that he could negotiate the crossing in absolute safety and that the oncoming car had stopped or would stop to allow the funeral procession to move through the intersection.

Additionally, we note in passing that the driver of the Guillory automobile, immediately following the hearse, did observe the rapid approach of the Molitor automobile. Out of an abundance of caution, he did stop his vehicle before entering the intersection. Of course, in all fairness, the Molitor vehicle was undoubtedly much closer to the Guillory vehicle than it was to the hearse. Nevertheless, all of the evidence, and particularly the photographs, shows that the intersection was absolutely open and clear in all directions and that one approaching the intersection had nothing to obstruct his view. The open fields had no impediments to one’s view. One approaching from the south, as the hearse was doing, had a building 150 feet south of the intersection on the right. After clearing that obstruction, there was nothing but clear unobstructed viewing.

The trial judge continues.

2) Randy Molitor was negligent, and his negligence was a cause of the resultant accident and death. He was driving too fast and did not have sufficient control of his vehicle. He failed to maintain a proper lookout; and, when confronted with an amber caution light, he should have ascertained prior to entering the intersection whether he could proceed into the crossing with safety.
3) Officer Smith may have been negligent in not stopping to secure the intersection by directing traffic or by stopping or blocking LA. 10, with his police car; however, under the factual situation of this case, I do not find that this conduct constituted a cause-in-fact of the accident.

Officer Willie Smith was sixth-two years of age, had very little education and had had no formal training in how to escort funeral processions. He had escorted a number estimated by him to be 35 or 40 in the past. He did stop. Seeing that the intersection was clear, he proceeded. He was several car lengths ahead of the hearse when the collision occurred. The weight of the evidence indicates that the automobile carrying the pallbearers was the only automobile between the deputy sheriff and the hearse. Other witnesses say that the car with the priest and alterboys was between the deputy’s car and the pallbearers.

Made defendants herein, were two insurance companies insuring the sheriff and his deputy. The first was a policy in the amount of $1,000,000.00, being a general liability policy covering the Sheriff’s Department and his deputies for bodily injury and property damage combined. This was written with Western World Insurance Company, Inc. The other policy was an automobile liability policy written by Dixie Auto Insurance Company covering the various automobiles used by the Sheriff’s Department. Limits of the Dixie policy were $10,000.00 per person and $20,000.00 per accident. The insurers of the Evangeline Parish Sheriff’s Department, as herein-above shown, were sued, alleging the negligence of Deputy Willie Smith. The allegations further set forth that the Sheriff is responsible for the torts of his deputy. They allege that, on the basis of respondeat superior, both of the insurance carriers are liable to those sustaining injuries and losses in this matter.

A recent judgment of our Louisiana Supreme Court decided November 14, 1977, answers, we find, the contentions of plaintiffs with respect to the claims against Western World Insurance Company, Inc., the general liability carrier of the Sheriff’s Department. The case is Foster v. Hampton et al., 352 So.2d 197 (La.1977). Foster v. Hampton, 343 So.2d 219 (La.App. 1 Cir. 1977). The Supreme Court interprets LSA-R.S. 33:1433, and the decision reads in pertinent part as follows:

“Foster is wrong in his contentions that a finding that Deputy Hampton was engaged in the performance of an official duty would subject the sheriff to liability under the provisions of R.S. 33:1433. R.S. 33:1433 specifically provides that no liability attaches to the sheriff beyond the bond or liability insurance furnished by the deputy unless the act or tort of the deputy was ‘in compliance with a direct order of, and in the personal presence of, the said sheriff, at the time the act or tort is committed.’ (Emphasis added). The statute contemplates personal liability of the sheriff for those acts he personally controls; for such acts the legislature has determined that the sheriff should be answerable. The sheriff is subject to liability up to the limits of the bond or liability insurance furnished by the deputy for the official acts of the deputy which he does not directly control. No allegation is made by Foster that Hampton was acting in compliance with a direct order of and in the personal presence of the sheriff. Therefore, the sheriff cannot be held liable under the provisions of R.S. 33:1433.”

The Supreme Court in its opinion enforces the above cited statute as written. Since the evidence herein shows that the sheriff was not present at the time of the accident complained of herein, and that Smith was not acting in compliance with a direct order of the sheriff, there is no liability for the sheriff nor for his general liability carrier under the facts as shown. This relieves Western World from liability and we affirm the judgment of the trial court in favor of Western World Insurance Company.

This leaves for consideration the liability of Dixie Auto Insurance Company on its automobile liability policy on the vehicle involved herein. It appears that this policy covering the car would apply. To be noted is that the sheriff and Willie Smith were not made defendants by any of the plaintiffs herein. Willie Smith was impleaded in some of the third party pleadings. It thus becomes necessary to consider further the trial court’s finding that Willie Smith’s possible negligence by not stopping to secure the intersection was not a “cause-in-fact” of the accident.

It may well have been that the trial judge considered that the obvious negligence of Randall Molitor and of Danny Lafleur were the only causes-in-fact of the accident. Lafleur was traveling slowly. He had no reason to enter the intersection. It would have been very simple to have stopped the hearse. Danny Lafleur traveled through this intersection having a width of some 40 to 60 feet at a speed of approximately 20 miles an hour. If the other vehicle was traveling at 100 miles per hour it would have traveled five times as far in the same time as Danny Lafleur traveled. This would have placed the Molitor vehicle some 200 or 300 feet from the intersection at the time Lafleur entered the intersection. If we vary these distances or these speeds just a slight bit, we still have the other vehicle approximately 300 feet away at the most when Danny Lafleur entered this intersection with his vehicle. The Molitor vehicle was certainly in plain view and any observer would have realized that it was coming at an excessive rate of speed.

Another question which arises is whether the presence of the sheriff’s vehicle with a revolving red light on top would have caused the Molitor vehicle to stop without injuring anyone. To be remembered is that Randall Molitor, the driver of the Molitor vehicle, had facing him a large yellow flashing light twenty feet above the highway requiring him to enter the intersection cautiously. In addition, he had strung out in front of him, and in clear view across his horizon ahead, a police car with a flashing red light, a second car with pallbearers, the hearse entering the intersection, and a number of ears behind the hearse up to a distance of 150 feet south of the intersection. These cars were in close proximity to one another and had headlights burning. They were traveling slowly. This is what Randy Molitor was looking at, had he been looking.

The question is whether the presence of the sheriff’s vehicle would have been enough to cause Molitor to slow his vehicle and avoid the accident. We must remember also, that there was only one sheriff’s vehicle. It could have been placed on the opposite side of the funeral cortege. That is, it could have been on the western side of the intersection and; because of the funeral procession, even less obvious to the view of Randall Molitor. To be kept in mind at all times is that Randall Molitor became aware of the situation ahead of him some 300 feet from the intersection and immediately made an effort to stop his vehicle. The result, as we know from the evidence, is that he still struck the hearse traveling at a speed of from 50 to 70 miles per hour, and this after 154 feet of skid marks.

Our Supreme Court admonishes us in Canter v. Koehring Co., 283 So.2d 716 (La.1973) on page 724, as follows:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

Taking these admonitions from Canter, we conclude that the trial judge had evidence furnishing it a reasonable factual basis upon which to determine that Deputy Willie Smith’s negligence, if any, was not a cause-in-fact of this accident. We affirm his findings in this respect, and his finding that Dixie Auto Insurance Company is not liable herein.

Counsel for the parties herein have favored the court with excellent briefs on the question of cause-in-fact. They cite numerous cases and authorities from the jurisprudence, including, Ruminations on Dixie Drive It Yourself v. American Beverage Co. by Wex S. Malone, 30 La. Review 363; Reasons v. Rule in Louisiana Tort Law 34 La.Law Review 1; “Proximate Cause in Louisiana”, 16 La.Review 391 (1956); Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962); Moore v. Edison Electric Illuminating Co., 43 La.Ann. 792, 9 So. 433 (1891); Atkins v. Bush, 141 La. 180, 74 So. 897 (1917); Allen v. La. Creamery Inc. et al., 184 So. 395 (La.App. 1 Cir. 1938); Lynch v. Fisher, 34 So.2d 513 (La.App. 2 Cir. 1947); Pierre v. Allstate Ins. Co., 257 La. 471, 242 So.2d 821 (1971); Hill v. Lundin & Assoc. Inc., 260 La. 542, 256 So.2d 620 (1972); Shelton v. Aetna Casualty & Surety Co., 334 So.2d 406 (La.1976); State Farm Mutual Ins. Co. v. South Central Bell, 343 So.2d 758 (La.App. 3 Cir. 1977).

These citations from the jurisprudence and the law reviews deal with proximate cause, duty-risk, cause-in-fact, necessary antecedent, and various other concepts considered in determining whether negligence is to be causally related to injury, or loss, and to result in responsibility therefor. We find nothing in this jurisprudence to alter our finding, in view of the foregoing, that the trial court should be affirmed in his holding that the deputy’s actions were not a cause-in-fact of this accident.

The trial judge continues.

4) I am also convinced that no actionable negligence has been shown on the part of Mrs. Ivy Molitor, the mother of the driver of the Molitor automobile.

A number of the parties herein allege that Randy Molitor had such a bad record for driving violations, for the use of alcohol, and for the use of marijuana, that his mother, in permitting Randy to drive her automobile, is guilty of independent negligence. Randy was either eighteen or nineteen years old at the time of the collision; and, because of his age, he was no longer a minor. He did reside in his mother’s home.

The Court has made a brief resume of Randy’s driving record. Originally, the trial judge excluded this record for obvious reasons and it was introduced by means of a proffer. Subsequently, it is believed that counsel has agreed to its admissibility. The record as near as we can make out is as follows:

DATE CHARGE DISPOSITION
12/31/70 Left side parking forfeited $10.00 bond
1972 prior to June 15th disobeying stop sign $15.00 fine and court costs
5/10/73 following too closely plead guilty paid fine $25.00 and $17.50 court costs
5/14/73 speeding $10.00 fine and $17.50 court costs
9/16/73 careless operation of a vehicle with accident forfeited $25.00 bond
12/26/73 operating motor vehicle with no inspection sticker forfeited bond $10.00 and $22.50 costs
4/13/74 speeding 75 in 55 mile zone forfeited $10.00 fine and $22.50 court costs
7/28/74 speeding 70 in 55 mile zone driver’s license sent to Dept, of Public Safety bond for redemption $72.50
1974 prior to August 22nd disobeying stop sign $25.00 fine and court costs
11/10/74 Possession of Marijuana no disposition given

To be noted in the record is that most of these are minor traffic violations and occurred over a period from 1970 to 1974. The evidence does show, however, that Randy had at least two fairly serious accidents, It shows that for a period prior to August 22,1974, until after the accident complained of herein, on November 13, 1974, that Randy had no traffic violations.

Randy Molitor was the only driver in the household consisting of himself, his mother and his thirteen year old sister. He had to take his mother everywhere she went in the automobile. She apparently had confidence in his driving. The evidence shows that while she had knowledge of one or two accidents he had been in, apparently she had no knowledge of a number of the traffic violations as shown hereinabove. The question we are concerned with here is not whether Randy was such a reckless automobile driver that Mrs. Molitor should not have permitted him to drive. The question is whether or not Mrs. Ivy Molitor had knowledge of this situation and, therefore, is to be held negligent and liable to plaintiffs for permitting Randy to drive. Her testimony indicates the contrary. In line with Canter, we find that the trial judge had adequate evidence before it for a finding that Mrs. Molitor is not to be held liable under the circumstances and the evidence presented herein. The jurisprudence supports such a finding. Davis v. Shaw, 142 So. 301 (La.App. 2 Cir. 1932); Bailey v. Simon, 199 So. 185 (La.App.Orl.1940); Kemp v. Fourmy, 265 So.2d 651 (La.App. 2 Cir. 1972);

In Kemp, the Court states the law on page 653 and I quote:

“Our law is to the effect that the owner of a vehicle is not responsible to a third party for the negligence of the driver of that vehicle unless he knew or should have known that the driver was incompetent. Morton v. American Employers Insurance Company, La.App., 104 So.2d 189 (2nd Cir. 1958); Macaluso v. Watson, La. App., 188 So.2d 178 (4th Cir. 1966) writ refused, 249 La. 743, 190 So.2d 910 (1966); Asher v. Good, La.App., 198 So.2d 434 (4th Cir. 1966); Winzer v. Lewis, La.App., 251 So.2d 650 (2nd Cir. 1971) writ refused, 259 La. 934, 253 So.2d 379 (1971).”

The trial judge continues.

5) Mr. Lafleur was a borrowed servant of Ardoin’s Funeral Home of Mamou, having been borrowed by them from Ar-doin’s Funeral Home in Ville Platte. The rule is that the general servant of one person may be lent to and may become the servant of another by submitting himself to the direction and the control of the other with respect to a. particular transaction or piece of work, even though the general employer has an interest in the special work. The servant thus remains the general servant of the lender except as to the particular work done by the borrower. In this case, such a relation between borrower and servant has been established; and it has also been established clearly that the servant had expressly or at least by implication consented to the transfer of his services to the new master for this particular task, and that he did surrender to the borrower the assumed power of supervision and control. Also, even though both funeral homes are owned by the same person or persons or group of corporations, in law they are two separate corporations, and, hence, two separate legal entities.

The evidence discloses that Danny Glenn Lafleur was employed in Ville Platte. It also discloses that, corporations very closely allied and possibly owned by the same interests, and using the same name except for the city or town, operated in the general area. The two involved here were Ardoin’s Funeral Home of Ville Platte and Ardoin’s Funeral Home of Mamou. There was also one Ardoin’s of Eunice and a corporation having a similar name in Opelou-sas, as well as others. The evidence discloses that as the need arose, these corporations would shift their personnel from one, then to another funeral home, for short periods of time. This worked to the mutual benefit of the corporations, as the evidence shows. Mr. Landreneaux, manager of Ardoin’s of Ville Platte was asked for help by Mr. Rolance LeJeune, manager of Ardoin’s of Mamou. Danny Lafleur, an employee of the Ville Platte Funeral home, was instructed by Mr. Landreneaux to report to Mr. LeJeune at 1:00 on November 13,1974. He did so and his tour of duty with the Mamou Mortuary would have concluded around 4:30 or 5:00 that afternoon upon the termination of the funeral.

The evidence discloses that for that three and a half or four hour period Danny Glenn Lafleur was under the total direction and control of Rolance LeJeune, manager of the Mamou Mortuary. There is not any question whatsoever but what Mr. LeJeune had total authority to tell Danny Lafleur what to do, when to do it, and how to do it. Under these circumstances, there can be no question but what Danny Glenn Lafleur was a borrowed servant of Ardoin’s of Mamou.

The jurisprudence as we view it holds that whoever controls the employee during the period of time in question and whoever has the power and right to control and direct him in the performance of his work is a borrowing employer. McCutchen v. Fruge, 132 So.2d 917 (La.App. 3rd Cir. 1961); Kezerle v. Hardware Mutual Casualty Co., 198 So.2d 119 (La.App. 3 Cir. 1967); Universal Engineers and Buildings, Inc. v. Lafayette Steel Erector Corp., 235 So.2d 612 (La.App. 3 Cir. 1970); Highlands Ins. Co. v. L. J. Denny & Son, 328 So.2d 779 (La.App. 3 Cir. 1976); Vincent v. Ryder Enterprises Inc. et al., 352 So.2d 1061 (La.App. 3 Cir. 1977).

The trial court continues.

6) The Insurance Company of North America provided automobile liability coverage for Ardoin’s Funeral Home of Mamou, Inc., and for Ardoin’s Funeral Home of Ville Platte, Inc. Both businesses were covered under a common fleet policy; but since they are distinct corporations, their insurance coverage must be separately examined.
7) Ardoin’s of Ville Platte was Danny Lafleur’s general employer. It is presumed that the general employer retains control of and remains liable for the negligent acts of the employee. However, the general employer may avoid liability upon showing that the relationship of master and servant which previously existed between the general employer and employee has been suspended, that another such relationship has been created between a borrowing employer and that employee, and that such new relationship was in existence at the time the accident occurred. This was shown at the trial; therefore, Ardoin’s of Ville Platte was not responsible in damages for the torts committed by Lafleur, and there was no coverage by Insurance Company of North America as the insurer of Ardoin’s of Ville Platte. McCutchen v. Fruge, 132 So.2d 917, 925 (La.App. 3rd Cir. 1961)
8)Ardoin’s of Mamou had borrowed Lafleur from Ardoin’s of Ville Platte. When an employee, with his consent, has been borrowed from his general employer by another person, he is deemed to have become the employee of the borrower. Miller v. B. Lewis Contractors, 103 So.2d 592, 597 (La.App. 1st Cir. 1958). As a borrowed employee, Lafleur became a fellow employee of Rolance LeJeune, the deceased, and would be excluded from Insurance Company of North America’s coverage of Ardoin’s of Mamou by the following policy provision:
“None of the following is an insured: 1) Any person while engaged in the business of his employer with respect to bodily injury to any fellow employee of such person injured in the course of his employment;”
Thus, while Lafleur was acting for the benefit of Ardoin’s of Mamou, he would be excluded from coverage by their policy-

Plaintiffs herein argue that, even though there is a finding that Lafleur was a borrowed servant, he is not covered by the exclusion. They argue that Lafleur, as a borrowed employee, would not be excluded from liability coverage by reason of him being a co-employee. Counsel thus argues that a borrowed servant does not become a co-employee for the purpose of insurance coverage with the other regular employees of the borrowing employer. It seems that this is an attempt to make a distinction when there is no difference. Under the doctrine of respondeat superior, a borrowing employer is liable for the torts of the borrowed employee. B. & G. Crane Service v. Thomas W. Hooley & Sons, 227 La. 677, 80 So.2d 369. Conversely, under such circumstances, a lending employer is not liable. Miller v. B. Lewis Contractors, 103 So.2d 592 (La.App. 1 Cir. 1958). Also McCutchen v. Fruge, supra.

The trial judge continues.

9) Danny Lafleur does have coverage as a named insured in an automobile liability policy issued by Zurich Insurance Company. The pertinent policy language follows:
“This policy does not apply under Part I:
a) to any automobile while used as a public or livery conveyance. . . . ”
The phrase “public or livery conveyance” means the indiscriminant holding out of the vehicle for public use where the operator uses the vehicle as a means of conveying members of the public who may call for such service. Spears v. Phoenix Insurance Company, 149 So.2d 118, 122 (La.App. 2 Cir. 1963) The vehicle which Lafleur operated was held out indiscriminately, but its use was as a hearse rather than for the transportation of passengers or members of the general public.
10) This coverage extended to La-fleur's use of the non-owned automobile provided that it was not furnished for his regular use. There was a regular driver employed by Ardoin’s of Mamou. Lafl-eur’s use was not regular because it was not steady or uniform in practice. He did not drive the hearse at regular and predictably certain intervals. Rather his use was at irregular intervals only when he was borrowed from Ardoin’s of Ville Platte. His use of the hearse was casual or infrequent and thus within the definition of a non-owned automobile under the policy. Wirick v. Wyble, 300 So.2d 571, 574 (La.App. 3rd Cir. 1974)

It is here that we disagree with the trial court. There is an additional exclusion which is found under exclusion “h (2)”. Our ruling on exclusion “h (2)” is that the Zurich Insurance Company policy is not applicable. We hold that it does not provide any coverage to Danny Glenn Lafleur. It does not cover the vehicle he was driving at the time of the collision. This makes it unnecessary for us to consider the rulings of the trial court herein with respect to whether or not the hearse was a “non-owned automobile” not furnished for the regular use of Danny Lafleur, and the trial court’s ruling that the hearse was not a public or livery conveyance. We pretermit any discussion of those rulings.

The exclusion we are concerned with here, as relevant herein, reads as follows:

“Exclusions. This policy does not apply under Part 1.”
“(a) .
“(b) .
“(c) .
“(d).
“(e).
“(f).
“(g) .
“(h) to a non-owned automobile while maintained or used by any person while such person is employed or otherwise engaged in
(1) the automobile business of the insured or of any other person or organization
(2) any other business or occupation of the insured, but this exclusion (h)(2) does not apply to a private passenger automobile operated or occupied by the named insured or by his private chauffeur or domestic servant or a trailer used therewith or with an owned automobile . . ”

Exclusion “h(2)” provides that a non-owned automobile is covered by Danny Lafleur’s insurance even though it is being used for a business use unless, 1, it is being used in the automobile business or, 2, unless it is not a “private passenger automobile”.

From the foregoing, if a hearse is a private passenger automobile, then it would be a covered vehicle under the Zurich Insurance policy. Thus Danny Glenn Lafleur would be covered herein. We do not find from the evidence and from the jurisprudence, that a funeral hearse is a “private passenger automobile”.

The Zurich Insurance policy involved herein defines a private passenger automobile as follows:

“Private passenger automobile” means a four wheel private passenger, station wagon, jeep type automobile;

It is clear that a funeral hearse is not a private passenger automobile. It is not designed for the carrying of passengers. It does not fit this definition. This vehicle was not used to carry passengers.

Our Appellate Courts apparently have not dealt directly with this precise point. In Riker v. Aetna Casualty Surety CompANy, 286 So.2d 493 (La.App. 1 Cir. 1973) the Court dealt with a similar exclusion with respect to a pickup truck. In that case the Court held that the pickup truck was “a private passenger automobile.” The Court reasoned that the pickup truck was used more for the carrying of passengers then it was for hauling purposes. It therefore held a pickup truck to be a private passenger automobile under the evidence in that case.

We cannot see how the same reasoning would apply to a funeral hearse. The Court has reviewed a number of authorities and several cases in the jurisprudence involving the definition of private passenger automobile. We hold that a funeral hearse does not fit such a category. The authorities are: Volume 33A Words and Phrases “Private Passenger Automobile” page 447; Ricker case, supra; Employer Mutual Liability Insurance Co. of Wis. v. Richards, 332 So.2d 588 (La.App. 4 Cir. 1976); Laraway v. Heart of America Life Insurance Co., 153 W.Va. 70, 167 S.E.2d 749 (1969); Commercial Insurance Co. of Newark, N. J. v. Gardner, 233 F.Supp. 884 (D.C.1964); Kern v. Liberty Mutual Insurance Co., 274 F.Supp. 360 (D.C.1967); Detmer v. United Security Insurance Co., 309 S.W.2d 713 (Mo.App. 1958); Senn’s Adm’x v. Michigan Mutual Liability Co., 267 S.W.2d 526 (Ky.1954); State Farm Mutual Auto. Insurance Co. v. Durrett, 472 S.W.2d 214 (Tex.Civ.App., 1971).

We find that the district court failed to consider exclusion “h(2)”. Our consideration of this exclusion causes us to hold that, because of this exclusion, Danny Glenn Lafleur was not covered by the Zurich Insurance Company policy. This policy was the insurance for his privately owned passenger automobile. We accordingly reverse the district court and hold that Zurich Insurance Company must be absolved from liability herein.

The trial court continues:

11) Randall Molitor was driving his mother’s automobile with her permission. The Allstate Insurance policy provided coverage for “any person while using the automobile . provided the actual use of the automobile is by the named insured or such spouse or with the permission of either.” Thus, this policy extends to Randall Molitor’s use of the car.
12) At the time of his death, Rolance LeJeune was forty-eight years of age. His family was very close-knit and spent much, if not most, of their leisure time together. In his capacity as funeral home director, Mr. LeJeune was provided with a home having a yearly use value of $3,379.40. With the extension of his salary through twelve months, he would have earned $6,876.00 in 1974. His work life expectancy at age 48 was 17.0 years. He was survived by his wife, age 46, three major children, and a minor child, aged 9.
I find the following awards are in order:
Theotis LeJeune
Loss of love, affection and companionship . $ 25,000.00
Loss of support . 77.941.14
TOTAL $102,941.14
David LeJeune
Loss of love, affection, and guidance. $ 12,500.00
Loss of support . 18.459.72
TOTAL $ 30,959.72
Joseph LeJeune
Loss of love, affection, and guidance.$ 7,500.00
Jerry LeJeune
Loss of love, affection, and guidance. $ 7,500.00
Terral LeJeune
Loss of love, affection, and guidance. $ 7,500.00
13) As provided in R.S. 23:1103, the claim of the employer, Ardoin’s Funeral Home of Mamou, Inc., for the workmen’s compensation actually paid shall take precedence over the claims of Theotis Le-Jeune and her children, David, Joseph, Jerry, and Terral.

Plaintiffs complain that the awards are inadequate. The widow received $102,-941.14. The minor child $30,959.72. The three major children $7,500.00 each. The only insurance available to pay these claims is in the amount of $5,000.00 being the amount of coverage on the vehicle being driven by Randy Molitor. The widow and minor child of Rolance LeJeune have and will receive compensation and burial expenses in excess of the $5,000.00 insurance available. The workman’s compensation carrier will have first claim to these insurance funds. The evidence shows that Randy Molitor has inherited property interests from his deceased father; however, the evidence did not indicate that these property interests have any particularly great value.

Ashley v. Nissan Motor Corporation in USA, 321 So.2d 868 (La.App. 1st Cir. 1975) holds that where the ability to pay is limited or where one is impecunious, these facts must be taken into consideration in making an award. Also see Domingeaux v. Continental Insurance Company et al., 348 So.2d 209 (La.App. 3 Cir. 1977).

The recent Supreme Court case of Coco v. Winston Industries, 341 So.2d 332 (La.1976) points out that the trier of fact has a wide latitude in the assessment of damages. It further holds that the trial court’s assessment of damages will not be disturbed so long as the award is within reasonable limits allowed to the trier of fact. We hold that the damages awarded herein, when considering all of the evidence and the jurisprudence, falls within the general range available to the trial court herein. We therefore affirm the damage awards herein.

DECREE

For the above and foregoing reasons, we amend the judgment of the district court insofar as the district court held Zurich Insurance Company liable for damages and court costs herein.

The district court ordered costs assessed against Randy Molitor, Allstate Insurance Company and Zurich Insurance Company in solido. We amend that cost judgment to provide that costs in the district court be assessed only to Randy Molitor, Allstate Insurance Company, and Danny Glenn La-fleur, in solido.

We further order that the judgment of the trial court, insofar as it gives Danny Glenn Lafleur a credit for any amount which Zurich Insurance Company was liable or may be held liable to the plaintiffs in the principle demand, be amended to delete said provision of the district court judgment awarding any such credit.

It is further ordered that the costs of this appeal be assessed in equal portions against all appellants herein with the one exception that Zurich Insurance Company be relieved from the payment of any costs of this appeal.

As thus amended, the judgment of the district court is affirmed.

AFFIRMED, AS AMENDED.


text:
    SOUTHEASTERN FIDELITY INSURANCE COMPANY, Plaintiff-Appellants, v. INSURANCE COMPANY OF NORTH AMERICA, Defendants-Appellees.
    No. 6253.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.
    Rehearing Denied March 29, 1978.

      Guillory, McGee & Mayeux by Robert K. Guillory, Eunice, for plaintiff-appellant-ap-pellee, Theotis F. LeJeune.
    C. Brent Coreil, Ville Platte, for defendant-appellant-appellee, Danny Glenn La-fleur.
    Brame, Bergstedt & Brame, Joe A. Brame, Lake Charles, for defendant-appellant, Zurich Ins. Co.
    Davidson, Meaux, Sonnier & Roy, Edward O. Taulbee, IV, Lafayette, for defendants-appellees-appellants, Randall Molitar, et al.
    Raggio, Farrar, Cappel & Chozen by Stephen A. Berniard, Jr., Lake Charles, for defendant-appellant, Danny G. Lafleur.
    Young & Burson by Joe Ortego, Eunice, for plaintiff-appellee, Ivy Fruge Molitor.
    Fusilier, Pucheu & Soileau by L. 0. Fusilier, Ville Platte, for plaintiff-appellant-ap-pellee.
    John Larry Vidrine, Ville Platte, for defendant-appellee-appellant.
    Jack C. Fruge, Ville Platte, for defendants-appellees, Willie Smith and Dixie Auto. Ins. Co.
    Lewis & Lewis, James T. Guglielmo, Opelousas, for defendant-appellee.
    Voorhies & Labbe, Patrick A. Juneau, Jr., Lafayette, for defendant-appellee, Western World Ins. Co.
    Calvin E. Hardin, Jr., Baton Rouge, for defendant-appellee, Ins. Co. of North America.
    Allen, Gooch & Bourgeois, Ltd., Arthur I. Robison and Michael Harson, Lafayette, for intervenor-appellant, Insurance Co. of La.
    Before CULPEPPER, DOMENGEAUX and JOHNSON, JJ.
   JOHNSON, Judge.

This is an appeal from a companion case consolidated for trial with LeJeune v. Allstate Insurance Company, 356 So.2d 537, our Docket # 6252, decided this date.

This is a suit for property damages by Southeastern Fidelity Insurance Company, the collision carrier of the automobile owned by Ivy Molitor. As the evidence reveals, Randy Molitor, who has heretofore been held negligent in the causing of the damages, losses and injuries herein, was over the age of eighteen years at the time of this accident. The evidence also shows that he had borrowed this car to run some errands of his own. The Court has already held herein that his mother, with whom he resides, Ivy Molitor, was not responsible for the negligence of Randy Molitor. Under these circumstances, she is entitled to recover from Danny Glenn Lafleur, the driver of the other vehicle who was also held to be negligent herein. Ivy Molitor is also entitled to recover under the doctrine of re-spondeat superior from the corporation, Ar-doin’s of Mamou, Inc. and from the automobile liability insurer of the hearse Lafleur was driving, Insurance Company of North America.

For the above and foregoing reasons, and for the reasons assigned in the LeJeune v. Allstate Insurance Company case, 356 So.2d 537, our Docket No. 2652, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.


text:
    Danny Glenn LAFLEUR, Plaintiff-Appellant, v. Randall MOLITAR et al., Defendants-Appellees.
    No. 6254.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.

      Guillory, McGee & Mayeux by Robert K. Guillory, Eunice, for plaintiff-appellant-ap-pellee, Theotis F. LeJeune.
    C. Brent Coreil, Ville Platte, for defendant-appellant-appellee, Danny Glenn La-fleur. ■
    Brame, Bergstedt & Brame, Joe A. Brame, Lake Charles, for defendant-appellant, Zurich Ins. Co.
    Davidson, Meaux, Sonnier & Roy, Edward O. Taulbee, IV, Lafayette, for defendants-appellees-appellants, Randall Molitar, et al.
    Raggio, Farrar, Cappel & Chozen by Stephen A. Berniard, Jr., Lake Charles, for defendant-appellant, Danny G. Lafleur.
    Young & Burson by Joe Ortego, Eunice, for plaintiff-appellee, Ivy Fruge Molitor.
    Fusilier, Pucheu & Soileau by L. 0. Fusilier, Ville Platte, for plaintiff-appellant-ap-pellee.
    John Larry Vidrine, Ville Platte, for defendant-appellee-appellant.
    Jack C. Fruge, Ville Platte, for defendants-appellees, Willie Smith and Dixie Auto. Ins. Co.
    Lewis & Lewis, James T. Guglielmo, Opelousas, for defendant-appellee.
    Voorhies & Labbe, Patrick A. Juneau, Jr., Lafayette, for defendant-appellee, Western World Ins. Co.
    Calvin E. Hardin, Jr., Baton Rouge, for defendant-appellee, Ins. Co. of North America.
    Allen, Gooch & Bourgeois, Ltd., Arthur I. Robison and Michael Harson, Lafayette, for intervenor-appellant Insurance Co. of La.
    Before CULPEPPER, DOMENGEAUX and JOHNSON, JJ.
   JOHNSON, Judge.

This is an appeal from a companion case consolidated for trial with LeJeune v. Allstate Insurance Company, 356 So.2d 537, our Docket # 6252, decided this date.

This is a suit by Danny Glenn Lafleur the driver of the ambulance belonging to Ar-doin’s of Mamou, Inc. Lafleur sues for injuries and losses sustained by him in this accident. Numerous interventions, cross claims, and third party demands are made involving most of the parties in the LeJeune v. Allstate Insurance Company case. There was judgment by the trial court denying Lafleur’s demands as well as denying all interventions and third party plaintiff demands. The trial court denies all demands made in this proceeding and rules that numerous other cross claims were dismissed as moot.

For the reasons assigned in the LeJeune v. Allstate Insurance Company case, 356 So.2d 537, our Docket No. 6252, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    VERMILION CORPORATION, Plaintiff-Appellee, v. Norman VAUGHN, Defendant-Appellant.
    No. 6258.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.

      Mouton, Roy, Carmouche, Hill, Bivens & McNamara by John K. Hill, Jr., Lafayette, for defendant-appellant.
    Cooper & Sonnier by Charles R. Sonnier, Abbeville, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX, and WATSON, JJ.
   DOMENGEAUX, Judge.

This suit involves the right of the public to use man-made navigable canals on private property constructed and maintained with private funds.

This case was consolidated for trial and appeal with Vermilion Corporation v. Freddie Broussard, 356 So.2d 556, No. 6259 (La.App. 3rd Cir. 1978), and Vermilion Corporation v. Larry J. Broussard, 356 So.2d 557, No. 6260 (La.App. 3rd Cir. 1978).

The issues are the same in these three cases, and will be discussed herein, although separate opinions in each case are being rendered on this day.

Vermilion Corporation, plain tiff-appellee, leases 125,000 acres of land in Vermilion Parish owned by the Exxon Company. The land is traversed by a system of man-made canals. The canals are approximately 60 feet wide and 8 feet deep, are subject to tidal fluctuations, and are navigable in fact. They were constructed with private funds and have been under the continuous control, possession, and supervision of Vermilion Corporation, Exxon Company, and all prior owners since the 1900s.

The canal system enters other naturally navigable waterways and lies between the Intracoastal Canal on the north, the Gulf of Mexico on the south, West Cheniere Au Tigre Canal on the east, and Rollover Bayou on the west. The canals are used to facilitate hunting, trapping, and fishing activities, and are also used by the Exxon Company for hydrocarbon exploration and development activities. Vermilion Corporation subleases portions of the land to hunters, trappers, and fishers. The right to use the canals is a part of the lease arrangement.

In order to control access to the land and the canals, over 400 “No Trespassing” signs are posted in various locations. In addition persons have been continuously employed to supervise activities in the canals and on the land. On numerous occasions Vermilion Corporation has prohibited persons from entering and using the property.

The present controversy arose when the defendants-appellants, Norman Vaughn, Freddie Broussard, and Larry J. Broussard, continued to enter the property and travel the canals in order to engage in commercial fishing and shrimping activities without obtaining plaintiffs permission. These individuals disregarded several written warnings issued by plaintiff. Consequently, these suits were filed seeking permanent injunctions enjoining the three defendants from trespassing on the property and in the canals and damages.

After affidavits and a deposition were filed into the record, the corporation moved for summary judgments, which were granted by the trial court. Permanent injunctions against Vaughn and the Broussards were issued. They have perfected devolu-tive appeals.

Defendants contend on appeal that the trial court erred in two respects:

1. In finding that there was no issue of material fact and, therefore, in granting the motions for summary judgment, and

2. In finding that the canal could be controlled by the plaintiff and, therefore, in granting the permanent injunctions.

I. SUMMARY JUDGMENTS

Article 966 of the La.Code of Civil Procedure provides:

“The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff’s motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the day of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

In the present case the parties are in agreement on all relevant facts that are genuinely material to this case and upon which a judgment can be rendered. There is no question that the canals are navigable and were built and maintained with private funds on private property. It is not contested that defendants did engage in fishing and shrimping activities in the canals without permission.

Defendants contend, however, that there is a fact in dispute which is genuinely material to this litigation and that summary judgment was improper. They claim that plaintiff’s system of artificial waterways destroyed the navigability of surrounding natural waterways. They argue that this is material because, if true, the court could conclude that the system of artificial waterways was substituted for the pre-existing natural system of navigable waterways. If such a conclusion were reached, the canals would not be private and could not be privately controlled under state and federal law.

We do not agree. A similar argument was raised in Ilhenny v. Broussard, 172 La. 895, 135 So. 669 (1931), the facts of which are almost the same as in the present case. The plaintiff in that case, E. A. Mcllhenny, constructed a private canal on his property. The defendant, Broussard, continued to use this canal without Mcllhenny’s permission. Mcllhenny sought to enjoin Broussard from using his private waterway. The contention was made that the waters from a natural canal were diverted by the man-made waterway and that therefore the man-made waterway was substituted for the natural waterway. The Louisiana Supreme Court rejected the argument stating that the diversion of water from a natural channel by a private man-made waterway does not give rise to a right of the public to use the man-made waterway.

Defendants also contend that this litigation is too important to be disposed of by summary judgment. We fail to see the validity of this argument. Simply because there is no issue of material fact does not mean that the courts will not give a case full and complete treatment. Summary judgment merely avoids a full trial where the need does not exist. The effect of a case on Louisiana law is not a valid reason for denying a party’s right to summary judgment.

We therefore find no error on the part of the trial court in granting summary judgment in favor of plaintiff.

II. THE INJUNCTIONS

Defendants contend that the injunctions should not have been granted as a matter of state and federal law. They argue that under La.R.S. 14:97 and under 33 U.S.C.A. Sec. 403 (§ 10 of the Rivers and Harbors Act) a private individual may not exert dominion over a navigable waterway.

With regard to state law, this court discussed the application of La.R.S. 14:97 to a private canal in National Audubon Society v. White, 302 So.2d 660 (La.App. 3rd Cir. 1974), writ denied 305 So.2d 542 (La.1975), a case which defendants contend was erroneous and should be overruled.

The facts of Audubon mirror those in the present controversy. In that case a private canal was constructed in 1912 by E. A. Mcllhenny on his property in Vermilion Parish. The canal, which was the same canal involved in Ilhenny v. Broussard, supra, was navigable and connected with Vermilion Bay. In 1924 a portion of the land, including a part of the canal, was donated to the National Aubudon Society. That organization used the property to operate the Paul J. Rainey Wildlife Sanctuary. The Audubon Society maintained their portion of the Mcllhenny canal with its own funds. Access to the canal was restricted by the Audubon Society as it was restricted prior to the donation. The defendant in that case, Joseph White, used the canal without permission for fifty years to haul cattle, cotton, vegetables, and fruit to the market. In 1971 and 1972 he was notified by the Audubon Society that he could no longer use the canal. These notices were disregarded and suit for a permanent injunction to enjoin him from using the canal followed.

This court granted the injunction and held that a canal built entirely on private property with private funds for private purposes is a private thing. White contended that a landowner was prohibited from obstructing any navigable waterway, regardless- of whether it was constructed with private funds, by virtue of La.R.S. 14:97, as applied by the Supreme Court in Discon v. Saray, Inc., 262 La. 997, 265 So.2d 765 (1972), and the Fourth Circuit in D’Albora v. Garcia, 144 So.2d 911 (La.App. 4th Cir. 1962).

In Discon, landowners whose property bordered on a navigable canal dedicated for the use of the property owners, sought to enjoin another landowner from obstructing a portion of the canal. The Supreme Court concluded that plaintiffs were entitled to injunctive relief under La.R.S. 14:97. In DAlbora an injunction was sought to enjoin the owner of land from restricting passage on a navigable canal running through his property. The canal was dug by the State of Louisiana to obtain-dirt for the construction of a highway. The Fourth Circuit affirmed the action of the trial court in granting the injunction on the basis of La.R.S. 14:97.

We distinguished Discon and DAlbora in Audubon on the basis that the canals in those cases were either built with public funds or involved a dedicated right of way. We held that La.R.S. 14:97 was inapplicable to a private canal which was not part of the public domain or was not dedicated to the public use, stating the following: ing the case of Discon v. Saray, Inc., supra, where he stated:

“We distinguish the DAlbora and Dis-con cases from the instant suit, because in each of those cases the canal was either a part of the public domain or it had been dedicated for use by the owners of property in the subdivision in which the canal was located.
We have concluded that LSA-R.S. 14:97 does not apply to a privately owned canal, even though it may be navigable. We agree with the views expressed by Professor A. N. Yiannopoulos, in discuss-
‘The majority opinion necessarily rests on the assumption that the canal in question was burdened with a servitude of public use. Indeed, it would be inconceivable to apply article 97 of the Criminal Code to a strictly private waterway. The majority proceeded on the idea that this article was applicable because the canal was navigable, and, therefore, was burdened with a servitude of public use; in the alternative, that the canal was burdened with a servitude of public use by virtue of dedication. No one, however, should be prepared to accept the proposition that all navigable waterways in Louisiana are subject to public use merely by virtue of the fact they are navigable. A privately owned canal, though navigable in fact, may not be subject to public use, for the same reasons that a private road, though used by commercial traffic, may not be subject to public use. Thus, the disposition of the case would be correct only if the canal in question had been dedicated to public use.’ (Emphasis added)”

302 So.2d 660, 667-668.

We are convinced that the decision of National Audubon Society v. White was correct and apply it to this case. We hold that a canal on private property constructed and maintained with private funds and used for private purposes is a private canal subject to private control.

With regard to federal law, defendants have cited several federal cases for the proposition that under 33 U.S.C.A. Section 403, private individuals cannot control navigable waterways.

We have examined all of the federal cases and found them completely distinguishable from the present litigation. The cited cases involved situations where the United States was either seeking to expropriate private property or seeking to prevent the impairment of naturally navigable waterways.

In any event, we fail to see how 33 U.S. C.A. Section 403 would forbid a landowner from prohibiting the general public from using his private canal. The statute grants authority to the Chief of Engineers and the Secretary of the Army to control waterways, but it does not grant individuals the unrestricted right to use a privately owned navigable canal. Our research has revealed the case of United States v. Kaiser-Aetna, 408 F.Supp. 42 (D.Hawaii 1976), in which the United States attempted to use the same legislation to force Kaiser-Aetna to open a private marina in Hawaii to the public. The marina was originally a lagoon, Kuapá Pond, which was used as a fishing spot by the Hawaiian natives. The lagoon connected with Maunalua Bay, a navigable waterway. Under Hawaiian property law there was no question that the fish pond was private property. Kaiser-Aetna acquired interests in the pond and surrounding land. It developed a subdivision and transformed the fish pond into a marina. Use of the marina was restricted, and all commercial vessels were excluded.

The federal court recognized the regulatory power of the federal government under its admiralty powers, but it refused to find that the United States could appropriate the waterway to public use without reasonable compensation. The Court stated:

“. . . . [PJrivate ‘fast’ lands and waters when made navigable by improvements or which could be made navigable are subject to Congressional regulation. Nevertheless while Congress may provide for the improvement and regulation of navigation, and take necessary action to prevent interference or obstruction to navigation, it cannot impose a public navigation servitude upon such a privately constructed waterway without paying a reasonable compensation for the use thereof.
Here then, since Kuapá Pond had been transformed into navigable waters used in commerce, the marina has therefore become subject to regulation by Congress and within admiralty jurisdiction. It does not follow, however, that the United States can, without payment, appropriate those waters for public use and deprive the defendants of their investment or any return on it.” [Footnote omitted]

408 F.Supp. 42, 54.

If the public has no right of use on a natural waterway made navigable by private funds under federal law, then a fortio-ri it has no right of use on an artificial navigable waterway constructed with private funds.

Thus, under state and federal law a canal on private property constructed and maintained with private funds for private purposes is a private canal, the use of which can be restricted by the landowner or his assigns. The injunctions in these cases in favor of the landowner’s lessee was proper.

For the above reasons we affirm the judgment of the District Court. All costs are to be assessed against the defendant-appellant.

AFFIRMED.

      . No proof of damages was introduced in the District Court and no mention of damages is made on appeal. We, therefore, will not discuss the issue.

      . See also, National Audubon Society v. White, 302 So.2d 660 (La.App. 3rd Cir. 1974), writ denied 305 So.2d 542 (La.1975) (No error of law), discussed infra.

      . § 97. Simple obstruction of a highway of commerce
      Simple obstruction of a highway of commerce is the international or criminally negligent placing of anything or performance of any act on any railway, railroad, navigable waterway, road, highway, thoroughfare, or runway of an airport, which will render movement thereon more difficult.
      Whoever commits the crime of simple obstruction of a highway of commerce shall be fined not more than two hundred dollars, or imprisoned for not more than six months, or both.

      . § 403. Obstruction of navigable waters generally: wharves; piers, etc.; excavations and filling in
      The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, road-stead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.

      . United States v. Republic Steel Corp., 362 U.S. 482 , 80 S.Ct. 884, 4 L.Ed.2d 903 (1960); United States v. Twin City Power Company, 350 U.S. 222, 76 S.Ct. 259, 100 L.Ed. 240 (1956); United States v. Willow River Power Company, 324 U.S. 499, 65 S.Ct. 761, 89 L.Ed. 1101 (1945); United States v. Appalachian Electric Power Company, 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243 (1940); United States v. Sexton Cove Estates, Inc., 389 F.Supp. 602 (S.D.Fla.1975), affirmed in part, reversed in part, 526 F.2d 1293 (5th Cir. 1976); United States v. Cannon, 363 F.Supp. 1045 (D.Del.1973); United States v. Pot-Nets, Inc., 363 F.Supp. 812 (D.Del.1973); United States v. Underwood, 344 F.Supp. 486 (M.D.Fla.1972); United States v. 412.715 Acres, 53 F.Supp. 143 (N.D.Cal.1943).


text:
    VERMILION CORPORATION, Plaintiff-Appellee, v. Freddie BROUSSARD, Defendant-Appellant.
    No. 6259.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.

      Mouton, Roy, Carmuche, Hill, Bivens & McNamara by John K. Hill, Jr, Lafayette, for defendant-appellant.
    Cooper & Sonnier by Charles R. Sonnier, Abbeville, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   DOMENGEAUX, Judge.

This is a companion case to the matter entitled “Vermilion Corporation v. Norman Vaughn”, No. 6258 on the docket of this court, 356 So.2d 551.

For the reasons assigned therein the judgment of the district court enjoining the defendant from using plaintiff’s property without permission is affirmed at appellant’s costs.

AFFIRMED.


text:
    VERMILION CORPORATION, Plaintiff-Appellee, v. Larry J. BROUSSARD, Defendant-Appellant.
    No. 6260.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.
    Mouton, Roy, Carmpuche, Hill, Bivens & NcNamara by John K. Hill, Jr, Lafayette, for defendant-appellant.
    Cooper & Sonnier by Charles R. Sonnier, Abbeville, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   DOMENGEAUX, Judge.

This ig a companion ease to the matter entitled “Vermilion Corporation v. Norman Vaughn”, No. 6258 on the docket of this court, 356 So.2d 551.

For the reasons assigned therein the judgment of the district court enjoining the defendant from using plaintiff’s property without permission is affirmed at appellant’s costs.

AFFIRMED.