author: BEER, Judge. LEMMON, Judge,

text:
    Edward A. BRILEY v. Frank S. FALATI et al.

      No. 9972.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 23, 1979.
    Rehearing Denied March 14, 1979.
    Olivier & Brinkhaus, Armand J. Brink-haus, Sunset, for plaintiff-appellant.
    Bruce J. Borrello, Metairie, for defendants-appellees.
    Before LEMMON, BOUTALL and BEER, JJ.
   BEER, Judge.

Edward A. Briley was injured in an automobile collision involving the 1974 Ford which he had leased through Bordelon Leasing, Inc. and the 1970 Chevrolet of Frank S. Falati. He filed suit for damages in the amount of $1,350,000 against Falati, Aetna Casualty (Falati’s auto liability insurer), Travelers Insurance Company (his own uninsured motorist insurer), and Liberty Mutual Insurance Company, who had issued a combination basic automobile policy — including uninsured motorist coverage — to Ford Motor Company, the owner of the 1974 Ford leased by Briley.

Travelers and Liberty Mutual separately moved for summary judgment, each contending that Aetna provided liability coverage in an amount which exceeded the uninsured motorist coverage of their respective policies.

The trial court granted summary judgment in favor of Travelers, relying upon Doucet v. Insurance Company of North America, 302 So.2d 731 (La.App. 3rd Cir. 1974), and also granted summary judgment in favor of Liberty Mutual, notwithstanding Briley’s contention that the multi-vehi-cle aspect of that policy provided coverage greater than Aetna’s liability limits.

The accident occurred on July 9, 1974, prior to the effective date of the 1974 amendment to LSA-R.S. 22:1406D(2)(b) entitled in part “Uninsured Motorist Coverage.” Thus, the applicable statutory authority dealing with the issue of whether Falati is an uninsured (or, more precisely, underinsured) motorist is LSA-R.S. 22:1406 (1972), since the 1974 amendment is not retroactive. Doucet, supra; accord, Butler v. MFA Mutual Insurance Company, 356 So.2d 1129 (La.App. 2nd Cir. 1978); Fonten-ot v. Guillory, 327 So.2d 578 (La.App. 3rd Cir. 1976). The 1972 statute provides that an “uninsured motor vehicle” is “an insured motor vehicle when the automobile liability insurance coverage on such vehicle is less than the uninsured motorist coverage carried by the insured.” (Emphasis ours.)

Even so, Briley’s able counsel further contends that Briley is entitled to cumulate, or stack, the separate uninsured motorist coverages (5,000/10,000, each) on the 66 ve-hieles included on Liberty Mutual’s multi-vehicle policy issued to Ford, the owner of the leased vehicle. However, we believe his reliance upon Barbin v. United States Fidelity & Guaranty Company, 315 So.2d 754 (La.1975), to support this contention is misplaced. Barbin states that:

“ * * * (T)he clear intent of Graham [v. American Casualty Co. of Reading, Penn., 261 La. 85, 259 So.2d 22], Deane, and the other cited cases is to the effect that if a plaintiff is issued insurance on two or more automobiles, pays premiums for two or more different uninsured motorist coverages, and sustains damages thereunder in excess of the mandatory minimal coverage, he can ‘stack’ coverages and recover his damages. This intent should not be circumvented merely because separate vehicle coverages are placed in one policy, rather than in multiple policies.” (Emphasis added.)

Against the background of who paid the premium for the uninsured motorist coverage, the able trial judge relied upon the rationale of Lambert v. Liberty Mutual Insurance Company, 331 So.2d 260 (Ala.1976), even though it is not a Louisiana case. In Lambert, an employee of the named insured-employer sought to stack uninsured motorist coverages on multiple vehicles insured under one policy purchased by his employer. The court reasoned that the status of a permissive user of an insured vehicle was distinguishable from the named insured “who is entitled to stack coverages by virtue of his personal payment of an additional premium for each vehicle insured under a multi-vehicle policy.” The Lambert court cited Cunningham v. Ins. Co. of North America, 213 Va. 72, 189 S.E.2d 832 (1972), which recognized that the privilege of stacking is afforded a “named insured” in exchange for his additional premium, observing:

“The named insured in a policy receives coverage, and a contract benefit, for which he has paid a consideration. He seeks indemnity based on the payment of that premium and where he has paid separate premiums he is entitled to the additional coverages. However, this argument and reasoning does not apply to a permissive user of a vehicle . . . .” Cunningham, 189 S.E.2d at 836.

The generally accepted rationale that ambiguities in insuring agreements are to be resolved against the drafting party (invariably, the insurance company) does not affect the issue here. What is at issue is the extent to which an underwriting agreement, or agreements, should be subjected to “interpretation” in order to increase coverage because a tragic injury is out of proportion with the coverage available.

Regardless of the seriousness of the injuries, we cannot permit a potentially fortuitous coincidence to form the basis for an otherwise unsupportable legal conclusion.

An insured who pays premiums on several accident and health policies has a right to collect from the underwriters of each of those policies on the basis of a single injury covered by each of the policies. Stated another way, one who has anticipated a particular need, and, in advance, contractually provided for same pays greater premiums and, in return, has greater coverage.

Thus, the driver of a borrowed automobile who has paid premiums for uninsured motorist coverage on his owned automobile is, and should be, in a different category (vis-a-vis uninsured motorist coverage) than a permissive user whose only uninsured motorist coverage is resulting from his permissive use of the vehicle. Though a permissive user is clearly entitled to be considered an omnibus insured as to the uninsured motorist coverage provided that vehicle, he has no other implicit or actual right. Louisiana drivers who, perceiving the need for uninsured motorist coverage in greater than the basic amounts, have the opportunity to purchase same and, in so doing, are entitled, under certain circumstances, to “stack” that coverage with the uninsured motorist coverage existent on an individually borrowed or leased vehicle, but that is only because the concerned individual anticipated his needs and, thereupon, contracted for and paid for additional coverage.

Therefore, even assuming, arguendo, that no problems of jurisdiction exist in this case, we conclude that the trial court was correct in granting summary judgment which is, accordingly, affirmed, at appellant’s cost.

AFFIRMED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Judge,

concurs and assigns reasons.

The determinative issue in this case is whether the tortfeasor’s automobile qualified as an uninsured motor vehicle under Louisiana’s uninsured motorist (U.M.) law as it existed in July, 1974.

The tortfeasor’s car was covered by a policy which provided liability coverage of $50,000.00. Plaintiff’s personal policy with Travelers provided U.M. coverage of $5,000.00, and Ford’s commercial fleet policy with Liberty Mutual provided U.M. coverage of $5,000.00 for each of the 66 cars insured under the policy.

When R.S. 22:1406 was amended in 1972 to require insurers to permit an insured to increase his U.M. coverage to any amount not in excess of the policy’s liability coverage, the definition of an uninsured motor vehicle was expanded to include an insured vehicle “when the automobile liability insurance coverage on such vehicle is less than the uninsured motorist coverage carried by the insured”. The threshold question in determining whether the tort-feasor’s car in this case qualified as an uninsured motor vehicle is whether stacking can be used to determine the total U.M. coverage “carried by the insured”, or whether there must first be a determination that the tortfeasor’s vehicle is uninsured (by comparison of the tortfeasor’s liability coverage to the single U.M. coverage “carried” by the insured on the vehicle involved in the accident) before stacking can be used to give the tort victim recovery on more than one U.M. coverage.

In Phillips v. Barraza, 320 So.2d 587 (La. App. 4th Cir. 1975), decided while the 1972 amendment to R.S. 22:1406 was in effect, another panel of this court decided under similar facts that:

“stacking is permitted ... in order to meet the statutory requirement that the uninsured motorist coverage of the tort victim be in excess of the liability coverage of the tort feasor’s vehicle”.

The court in effect decided that if “stacking” is permitted in this jurisdiction, then “stacking” should be permitted for all purposes. Accordingly, plaintiff is entitled to stack the total U.M. coverage properly available to him in order to determine whether the total U.M. coverage “carried by the insured” exceeds the $50,000.00 liability limits of the tortfeasor’s policy. See also Rascoe v. Wilburn, 295 So.2d 201 (La. App. 3rd Cir. 1974).

The next determination, therefore, is the amount of the total U.M. coverage available to plaintiff. In this respect plaintiff contends that since he was an insured under the U.M. coverage on all 66 vehicles listed in Liberty Mutual's fleet policy, he may stack all 66 coverages.

Plaintiff relies on Barbin v. United States Fid. and Guar. Co., 315 So.2d 754 (La.1975), in which non-owner passengers were granted recovery under U.M. coverage provided on each of two cars described in the owner-driver’s policy (although they were, of course, only occupying one car at the time of the accident). The Barbin decision was based on the reasoning that the term “insured” was defined under the U.M. coverage to include “any other person while occupying an insured automobile” and that the term “insured automobile” was defined as “an automobile described in the policy for which a specific premium charge indicates that coverage is afforded ”.

In Barbin, if the court overconstrued the term “occupying”, that position can best be justified on the basis that the named insured intended, in contracting for a family policy, to insure and to provide all possible coverage for his family members and his passengers, and that any reasonable construction favorable to an insured must prevail over a reasonable unfavorable construction. However, no such intention can reasonably be attributed to the insured under the commercial fleet policy in this case. It would not be reasonable to attribute to Ford Motor Company (or Ford Rent-a-Car) the intention to make its lessee an insured except as to the particular vehicle which was leased.

I would vote not to extend the Barbin decision to apply to commercial fleet policies covering numerous rental vehicles.

Accordingly, since the U.M. coverage on the other 65 cars described in Liberty Mutual’s policy is not available to plaintiff, the total U.M. coverage properly available to him does not exceed $50,000.00, and the tortfeasor’s vehicle does not qualify as an uninsured motor vehicle. Both Liberty Mutual and Travelers were properly dismissed by summary judgment.

      . It is uncontroverted that Aetna’s policy limit is $50,000; that Travelers’ is $5,000; and that Liberty Mutual’s per car limit is $5,000.

      . August 1, 1974.

      . La.R.S. 22:1406D(l)(c)

      . Pretermitted, among other issues, is Liberty’s substantial [but probably incorrect — see concurring opinion in Deane v. McGee, 261 La. 686, 260 So.2d 669 (1972)] contention that the applicable law is that of Michigan, where its policy was issued.

      . The statute was again amended by Act No. 154 of 1974 to “clarify the definition of an uninsured motor vehicle” to include an insured vehicle whose liability coverage is less than the amount of damages suffered by an insured.

      .The Barbin decision was criticized as “holding under a strained interpretation of the policy that occupancy of any insured vehicle activated coverage for all vehicles”. Work of the Louisiana Appellate Courts for the 1976-1977 Term —Insurance, 38 La.L.Rev. 313, 449 (1978).

      . In the fleet policy the definition of “insured” is the same as in the policy in the Barbin case, but “insured automobile” is defined as “an automobile . . described in the schedule as an insured automobile to which the bodily injury liability coverage of the policy applies”.


source: Caselaw Access Project

author: WATSON, Judge.

license: Public Domain

text:
    MID-STATE HOMES, INC., Plaintiff-Appellant, v. Clement LERTRGE (Lartigue) et ux., Defendants-Appellees.
    No. 6843.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.

      Joseph E. Anzalone, Jr., Amite, for plaintiff-appellant.
    Preston N. Aucoin, Ville Platte, for defendants-appellees.
    Before WATSON, SWIFT and DOUCET, JJ.
   WATSON, Judge.

This is an appeal by Mid-State Homes, Inc., plaintiff from judgment rendered in favor of Clement Lertrge (Lartigue) and his wife, Roselle B. Lertrge (Lartigue), defendants which sustained an exception of no cause and no right of action, dismissed plaintiffs’ petition for executory process, and issued a preliminary injunction against the sale of the Lartigues’ home.

MOTION TO DISMISS APPEAL

Defendants have moved to dismiss the appeal on the basis of LSA-C.C.P. art. 2642, contending that plaintiff is not entitled to a devolutive appeal. This article is not applicable to an appeal from the granting of a preliminary injunction; the right to a devolutive appeal from an order issuing a preliminary injunction is granted by LSA-C.C.P. art. 3612. Therefore, the motion to dismiss the appeal is denied.

ON THE MERITS

Mid-State filed a petition under executo-ry process against the Lartigues demanding that their home be seized and sold. While the petition alleges that an installment due November 5, 1971 was delinquent (an incorrect assertion), the principal claim of Mid-State concerns an amount alleged to have been paid for insurance.

The allegation, having to do with insurance, numbered “Va.”, reads as follows:

“In said Act of Mortgage, mortgagors agreed and bound themselves to pay all taxes and assessments and to keep the improvements insured against loss by fire or other hazards and upon failure to do so, the mortgagee, at its discretion, has the privilege to pay same and to collect interest at the rate of six per cent (6%) per annum on said payment, and mortgagee hereby avers that in exercise of said privilege, it has paid fire and hazard insurance premiums in the amount of SIX HUNDRED NINETY SIX & NO/100.DOLLARS ($696.00), which it is entitled to recover with interest in this proceeding.” (TR. 4).

The Lartigues filed various pleadings in the trial court including an exception of no cause and no right of action and a demand for a preliminary injunction against the seizure and sale of their home. In this court, the Lartigues have answered the appeal asking for an increase in the attorney’s fee.

A hearing was held by the trial court and while no written reasons were assigned, judgment was entered in favor of the Lar-tigues and against Mid-State sustaining the exception of no cause and no right of action, dismissing the petition for executo-ry process and issuing a preliminary injunction against the sale of the property. An award of $300 was made to the Lartigues’ attorney as a fee for dissolving the writ of seizure and sale.

The resolutory issue on appeal is whether the legal requirements for executory process were met by Mid-State.

Our examination of the record answers this question in the negative. While a claim for repayment of insurance premiums may be made through executory proceedings and while it is not required that evidence of such payments be in authentic form, the requirements of LSA-C.C.P. art. 2637 are quite precise. They read in pertinent part as follows:

“Evidence as to the proper party defendant, or as to the necessity for appointing an attorney at law to represent an unrepresented defendant, or of the breach or occurrence of a condition of the act of mortgage or privilege maturing the obligation, need not be submitted in authentic form. These facts may be proved by the verified petition, or supplemental petition, or by affidavits submitted therewith.
“If a mortgage sought to be enforced secures the repayment of any advances made by the holder of the mortgage note for the payment of taxes, insurance premiums, or special assessments on, or repairs to, or maintenance of, the property affected by the mortgage, the existence, date, and amount of these advances may be proved by the verified petition, or supplemental petition, or by affidavits submitted therewith.”
******

The specific requirement of the second paragraph is that the “existence, date, and amount” of the premiums may be proved (meaning that they must be proved but not necessarily by authentic act) by the filing of a verified petition, supplemental petition or affidavit. The only allegation by Mid-State is paragraph “Va.” quoted above. The paragraph does not particularize the existence, date or amount of the alleged payment of insurance premiums on behalf of the Lartigues, and, as a consequence, the requirements of Article 2637 for the use of executory process are not satisfied.

Therefore, the judgment of the trial court was correct in enjoining the seizure and sale of the Lartigues’ property. However, the trial court erred in dismissing the suit; the exception was incorrectly considered and the issuance of the preliminary injunction is only interlocutory. The case must be remanded for further proceedings according to law.

ATTORNEY’S FEE

The trial court awarded $300 to the Lartigues’ attorney for obtaining dissolution of the seizure and sale. An allowance of attorney's fees in such cases is proper. Phillips v. Great So. Mortg. & Loan Corp., 350 So.2d 1279 (La.App. 3 Cir. 1977); Walker v. J. J. Ellis Lake Providence Furniture Corp., 107 So.2d 550 (La.App. 2 Cir. 1958). An increase for services on appeal is appropriate since the appeal has been answered. An additional $300 is allowed.

Therefore, the judgment of the trial court is affirmed as to the issuance of the preliminary injunction; the sustaining of the exception of no cause and no right of action and the dismissal of the petition are reversed; and the judgment is amended to increase the attorney’s fee awarded to Preston N. Aucoin, counsel for defendants, to the total sum of $600. The suit is remanded for further proceedings according to law.

All costs are taxed against Mid-State Homes, Inc.

AMENDED AND AFFIRMED in part; REVERSED in part and REMANDED.

      . The name is spelled “Lertrge” in the caption of the suit, but the correct spelling is apparently “Lartigue”, and the latter spelling will be used in this opinion.

      . The Lartigues also sued for damages and Mid-State reconvened for damages, but these , matters are not before the court and will not be considered further.

      . The trial court was incorrect in sustaining the exception of no cause and no right of action; it is not an available procedural device in a suit for executory process. Defenses may be asserted only through an injunction proceeding or a suspensive appeal. LSA-C.C.P. art. 2642.


author: DOMENGEAUX, Judge.

text:
    Frances NELSON, Plaintiff-Appellant, v. Calvin ARDOIN et al., Defendants-Appellees.
    No. 6764.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.
    Dubuisson, Brinkhaus & Dauzat, William Brinkhaus, Opelousas, for plaintiff-appellant.
    Gist & Methvin, DeWitt T. Methvin, Jr., Alexandria, for defendants-appellees.
    Calvin Ardoin, in pro. per.
    Before DOMENGEAUX, FORET and STOKER, JJ.
   DOMENGEAUX, Judge.

The sole issue involved in this appeal is concerned with the award of penalties and attorney’s fees from an insurer under La. R.S. 22:658.

Plaintiff, Frances Nelson, was involved in an automobile accident with Calvin Ardoin on August 11, 1975, in Evangeline Parish, near the City of Yille Platte. Ardoin was insured by the Sentry Insurance Company. Plaintiff, Mrs. Nelson, had a policy with State Farm Mutual Automobile Insurance Company. One of the provisions of State Farm’s policy provided coverage for medical payments for an injury arising out of an accident, up to a limit of $1,000.00

Mrs. Nelson filed suit against Ardoin and his insurer, Sentry, on June 24, 1976, in order to recover damages resulting from the accident. She also named her insurer, State Farm, as a defendant in the suit in order to collect under the medical payment provision of her policy, and in order to recover penalties and attorney’s fees. State Farm made a third party demand against Ardoin and Sentry for reimbursement of any medical expenses that it would be required to pay and for reimbursement for the property damage expense they had already paid to plaintiff under her policy.

Ardoin and Sentry compromised with plaintiff, and her claim against them was dismissed accordingly.

Before the matter went to trial on the remaining demands, State Farm paid plaintiff the full amount claimed by plaintiff to be due under its policy. State Farm retained its third party demand against Ar-doin and Sentry, and plaintiff retained her demands for penalties and attorney’s fees against State Farm. After trial, judgment was rendered in favor of State Farm and against Ardoin and Sentry for $1,626.42, which was the amount State Farm had paid plaintiff for her medical expenses and property damage. The demand of plaintiff against State Farm for penalties and attorney’s fees was rejected. Plaintiff appeals.

The only specification of error is whether the claim for penalties and attorney’s fees was properly denied under La.R.S. 22:658.

The chronology of events relevant to the claim for penalties and attorney’s fees may be stated as follows: The accident occurred on August 11, 1975, and plaintiff was treated in the Ville Platte General Hospital. On August 26, 1975, plaintiff’s attorney submitted a bill from the hospital to State Farm in the amount of $520.25. The hospital bill was stamped with the following words:

NOTICE TO INSURERS
A portion of this bill has been paid by the Louisiana Division of Family Services. Under R.S. 46:446, the Division may have a claim against the patient’s medical or hospitalization insurer for reimbursement of such payments. Before disbursing proceeds to the insured, you are requested to obtain clearance from: Division of Family Services Baton Rouge, Louisiana 70804 P.O. Box 44065 Attn: Finance Section (Medicaid)

On September 4,1975, State Farm sent a letter to plaintiff’s attorney acknowledging receipt of the bill of August 26, 1975, and questioning the effect of La.R.S. 46:446 on their obligation to pay under the policy. Also on this date, the insurer sent a letter to the Division of Family Services requesting an explanation of their interest in the claim.

Plaintiff’s attorney sent a letter to the insurer on September 8, 1975, suggesting that, in order to protect itself under La.R.S. 46:446, it should send a check made payable to both Mrs. Nelson and the Division of Family Services. Receipt of this letter was acknowledged by the insurer on September 8, 1975.

On October 27, 1975, plaintiff’s attorney sent a revised hospital bill to State Farm for the amount of $1,089.25, which reflected additional services rendered in connection with the accident. Payment of the $1,000.00 policy limit was requested.

On December 15, 1975, the insurer received a letter from the Division of Family Services advising it that the state’s claim in the matter was in the amount of $655.00.

State Farm sent a cheek to plaintiff’s attorney on December 19, 1975. This check was in the amount of $655.00 and was made payable to the Division of Family Services, plaintiff, and plaintiff’s attorney.

On January 5, 1976, this check was returned by plaintiff’s attorney. The accompanying letter stated that payment should be made to Frances Nelson only. The letter reiterated its demand against State Farm for payment of the full $1,000.00 policy limit, less $55.00 previously paid by the insurer for ambulance services, leaving a net sum due of $945.00.

On February 6, 1976, an additional bill was submitted to the insurer by plaintiff’s attorney in the amount of $155.00, from the Opelousas Orthopedic Clinic.

On April 8, 1976, the insurer sent a check to plaintiff’s attorney in the amount of $945.00 made payable to the Division of Family Services, plaintiff, and plaintiff’s attorney. This check was returned to the insurer on April 12, 1976, with a letter protesting the inclusion of the Division of Family Services as a payee on the check, and requesting that the check be made payable to plaintiff alone.

Between this date and June 17, 1976, additional correspondence took place; however, this correspondence is not relevant insofar as penalties and attorney’s fees are concerned. On June 17, 1976, the insurer sent a letter to plaintiff’s attorney stating that it would be willing to resubmit its draft of April 6,1976, if it was so requested.

After the filing of suit on June 24, 1976, the insurer, on August 9, 1976, sent the draft of April 6, 1976, to plaintiff’s attorney, pursuant to a request made by plaintiff’s attorney by letter dated August 5, 1976. As previously stated, this check was made payable to the Division of Family Services, plaintiff and plaintiff’s attorney. This check was accepted by plaintiff and her demand against State Farm proceeded to trial only on the issue of penalties and attorney’s fees.

At the outset we note that the basis of the claim for penalties and attorney’s fees is La.R.S. 22:658. That statute provides for penalties and attorney’s fees from an insurer who issues a policy not covered by La. R.S. 22:656 (Life policies) and La.R.S. 22:657 (Health and Accident policies), if the insurer’s failure to make payment of a claim within sixty days is found to be arbitrary, capricious, or without just cause. The amount of penalties is computed at 12% of the amount due, or if partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due.

We also note that La.R.S. 46:446 provides a method whereby the Division of Family Services can be reimbursed for assistance payments and medical expenses paid on behalf of a qualified recipient, in some circumstances. Part (A) of that statute provides:

“When an injury has been sustained or an illness or death incurred by any person under circumstances creating in some third person or legal entity a legal liability or obligation to pay damages or compensation to that person or to his spouse or dependent, the Division of Family Services, Health and Social and Rehabilitation Services Administration shall have a cause of action against such third party and/or may intervene in a suit filed by the injured, ill or deceased person or his spouse or dependent against such third party to recover the assistance payments and medical expenses the Division of Family Services, Health and Social and Rehabilitation Services Administration has paid or is obligated to pay on behalf of the injured, ill or deceased person in connection with said injury, illness or death.”

Turning to the facts of the instant case, State Farm tendered two checks. The first tender came on December 19, 1975, in the amount of $655.00. This amount coincided exactly with the figure given to State Farm a few days earlier by the Division of Family Services as the amount of their claim, despite the fact that, as of December 19, 1975, the insurer had before it two claims previously submitted by plaintiff’s attorney: One on August 26, 1975, for $520.25, and one on October 27, 1975, for $1,089.29. The second tender from the insurer did not come until April 8, 1976, when the insurer sent a check for $945.00, which, since it had already paid a $55.00 ambulance bill, amounted to the remainder of the policy limits. Obviously, the insurer did not attempt to discharge its obligation to pay the $520.25 claim made on August 26th within sixty days, nor its obligation to pay the policy limit within sixty days, when the $1,089.25 bill was sent in October, even though there was no dispute as to these expenses. Under these circumstances we think that the insurer should be cast for penalties and attorney’s fees within the context of La.R.S. 22:658.

As justification for its refusal to pay, the insurer argues that it acted in a reasonable fashion under the circumstances involved in this case. It maintains that there was never any failure to make payment under the provisions of its policy, nor any dispute as to what payments were allowable. The only dispute was with regard to whether the insurer could make payment safely directly to the insured, without including the name of the Division of Family Services on the draft, inasmuch as the Division of Family Services could be granted rights against the insurer under La.R.S. 46:446.

We feel that the insurer’s argument is untenable. The issue involved in this case is not whether the insurer was arbitrary, capricious, or without probable cause in including the name of the Division of Family Services on the check, but rather whether the insurer was arbitrary, capricious, or without probable cause in failing to make any attempt at tender of the amount due within the sixty day period specified by La.R.S. 22:658.

Although there is no reported decisions under La.R.S. 46:446, and no statutory guidance as to what the responsibilities of the insurer are with regard to its obligation to its insured under its policy and the Division of Family Services under the statute, State Farm should have made some attempt to discharge its obligation to its insured timely. In other words, the insurer would have avoided penalties and attorney’s fees under La.R.S. 22:658 had it tendered a check made payable to the insured and the Division of Family Services timely, whether or not such procedure was proper under La.R.S. 46:446. However, having failed to make any attempt at discharging its obligation within the sixty day period, we have no choice other than to conclude that penalties and attorney’s fees should be awarded.

We are somewhat perplexed at arriving at a figure upon which to base the 12% calculation of penalties, in light of the provision in the statute which provides that, when a partial tender has been made, the penalty is 12% of the difference between the amount tendered and the amount found to be due. State Farm tendered a check on December 19, 1975, for $655.00, which, although coming more than sixty days after the claim of August 26, 1975, for $520.25, came within sixty days of the claim of October 27, 1975, for the remainder due under its policy, specifically, $945.00.

We think that the proper way to handle this situation is to view the facts as follows: The August claim of $520.25 went without a tender within sixty days. Therefore, the $520.25 figure should be used in calculating the penalty. Furthermore, the $520.25 claim remained extant until satisfied. Therefore, the submission of the $1,089.25 bill on October 27th was actually an additional claim for the difference between the existing claim for $520.25 and the maximum liability left under the policy of $945.00, or a claim for $424.75 ($945.00 minus $520.25). Within sixty days, the insurer tendered payment of $655.00. Therefore, the claim of $424.75 was not without a tender within the sixty day period. Consequently, that figure should not be used in the computation of penalties. Thus, the only figure to be used in the calculation of penalties is $520.25. Twelve percent of $520.25 yields $62.43, which should be the amount of penalties assessed.

With regard to attorney’s fees, the claim for medical expenses against State Farm was intertwined with and coincidental to plaintiff’s main demand in tort against Ardoin and Sentry. State Farm is not responsible for attorney’s fees incurred in connection with the prosecution of plaintiff’s tort suit. Considering the totality of circumstances presented in this case, we feel that the sum of $750.00 for attorney’s fees is reasonable for the work involved both at trial and on appeal.

We wish to emphasize that we give no interpretation or construction to La.R.S. 46:446. The Division of Family Services was never a party to this litigation, their claim having been satisfied out of Court. We also reach no decision as to whether tender of a draft made payable to both the insured and the Division of Family Services is the proper method to discharge any obligations arising as a result of La.R.S. 46:446. This problem can be resolved if and when it is presented to us. We simply hold that, with regard to penalties and attorney’s fees due an insured under La.R.S. 22:658, an insurer must make some meaningful attempt to make payment to its insured within the time specified by this statute, unless the insurer can justify its failure to pay with reasons which are not arbitrary, capricious, or without probable cause.

For the above reasons, the judgment of the District Court is reversed insofar as it rejects the demands of plaintiff-appellee, Frances Nelson, against defendant-appellant, State Farm Mutual Automobile Insurance Company, for penalties and attorney’s fees, and it is hereby ordered that judgment be entered herein in favor of Frances Nelson and against State Farm Mutual Automobile Insurance Company for the sum of $812.43, together with legal interest thereon from date of judicial demand until paid. Costs on appeal are assessed against State Farm Mutual Automobile Insurance Company.

REVERSED AND RENDERED.

      . Ardoin and Sentry are not involved in this appeal.

      . A 25% penalty is provided for in some cases involving losses resulting from fire and theft; however, the 12% figure is used for medical payments provisions in automobile policies. Leger v. Allstate Insurance Company, 252 So.2d 186 (La.App. 3rd Cir. 1971). See Cren-welge v. State Farm Mutual Automobile Insurance Company, 277 So.2d 155 (La.App. 3rd Cir. 1973); Mattox v. American Indemnity Co., 259 So.2d 79 (La.App. 4th Cir. 1972).


author: SWIFT, Judge.

text:
    Cleveland LAW, Plaintiff-Appellee, v. Christine King BLACKSHIRE, Defendant-Appellant.
    No. 6784.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.

      Gamm, Greenburg & Kaplan, Alex Ru-benstein, Shreveport, for defendant-appellant.
    Andrew Vallien, Natchitoches, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and SWIFT, JJ.
   SWIFT, Judge.

The plaintiff, Cleveland Law, acting through his sister and agent, Mrs. Rosalie Sprawls, negotiated the purchase of certain residential property in Powhatan, Louisiana, from the defendant, Mrs. Christine K. Blackshire. At the time Mr. Law was residing in Los Angeles, California, Mrs. Sprawls lived in Powhatan and Mrs. Black-shire was a resident of Shreveport.

On May 28,1977, Mrs. Blackshire went to Mrs. Sprawls’ home and on receipt of $1,000.00 handed her a written document that had been prepared by a friend of the defendant which reads as follows:

“May 28, 1977
To Whom It May Concern
This is to state that I Christine King
Blackshire is selling lot # 11 & 12 block
35 Powthan, La to Cleveland Law of Los
Angeles, California.
Sale price being $2,500.00 dollars, having received $1,000 on 5-28-77 leaving a balance of $1,500.00
Signed by:
Mrs. Christine King Blackshire Witness by:
1. Newmon Lockett
2. Rosie Lee Lockett”

There is a dispute between the parties as to when the $1,500.00 balance of the purchase price was to be paid and the deed executed. Mrs. Blackshire testified she was told by Mrs. Sprawls that Mr. Law “would pay it the last day of May or first of June”. However, Mrs. Sprawls said they agreed that the sale would be closed “in sixty to ninety days, Whenever school was out .” According to Mr. Law, school was out in California on June 21, but he left there for Louisiana about eight days earlier.

About June 10, 1977, Mrs. Sprawls was told by the defendant over the telephone the latter had to sell the property and wanted the balance of her money. Mrs. Sprawls informed her the bank was closed at that time of day, but she would get it just as soon as she could. At this point there is another dispute between these two persons as to what took place. Mrs. Black-shire said Mrs. Sprawls was going to call her back when she got the money from the bank. Having heard nothing further from her, she sold the property to another person on June 14, sending Mrs. Sprawls a cashier’s check for $1,000.00 made payable to Mr. Law. Mrs. Sprawls testified that Mrs. Blackshire agreed to call her later in the day of their telephone conversation. If she had gotten the money the defendant was going to drive to Powhatan and pick it up. Mrs. Sprawls withdrew $1500.00 from her savings account that day, but said she heard nothing from Mrs. Blackshire until she saw her in town several days later and was told the property had been sold to another.

Mr. Law deposited the $1,000.00 cashier’s check to his account in a local bank and subsequently brought this suit against Mrs. Blackshire for specific performance. Alternatively, he seeks to recover certain damages allegedly incurred by him as a result of the breach of contract.

The defendant filed a plea of estoppel and peremptory exceptions of no cause or right of action, which were overruled by the trial court. After a trial on the merits the court concluded that the document of May 28, 1977, was a valid earnest money contract and that the balance of the purchase price “was to be paid as understood by Mrs. Sprawls, that is, in June, 1977.” Consequently, the defendant owed the plaintiff an additional $1,000.00, plus interest from judicial demand. Judgment was rendered accordingly and the defendant perfected this suspensive appeal.

We will first consider whether or not there was a valid earnest money contract between the parties to this suit. The defendant contends there was not, because the instrument signed by her on May 28, 1977, contains no provision as to when the balance of the purchase price is to be paid, citing Bland v. Conner, 25 So.2d 815 (La. App. 2 Cir. 1946); McMickle v. O’Neal, 207 So.2d 922 (La.App. 2 Cir. 1968) and Young v. Cistac, 157 La. 771,103 So. 100 (La.1925). Each of these cases involved a credit sale or, at least, the option to purchase or sell on credit and there was no binding agreement between the parties as to the terms of the credit portion of the purchase price. Although there was mutual consent as to the thing and the price, the third essential for a valid promise to sell enforceable by specific performance under LSA-C.C. Article 2462, i. e. the “terms” of credit, was lacking. For this reason, such agreements were held to be invalid.

In Yarborough v. Anderson, 242 So.2d 11, 13 and 14 (La.App. 3 Cir. 1971), writ refused, 257 La. 613, 243 So.2d 276 (1971), this court distinguished Bland, saying:

“. . . However, that case is inapplicable here because in that case the language of the contract contemplated that the purchaser would have an option to purchase on credit rather than for cash. That rendered the contract indefinite. The terms for the credit payment was not spelled out. In this case there is no language in the contract indicating that the price might be paid by the purchaser on credit terms. The amount as stated is adequate and need not be stated that payment is to be paid in ‘cash’.”

The written instrument in Yarborough was rather similar to the one now before this court, except that it contained a specific closing date. We held it was a valid earnest money contract.

There is no indication in Mrs. Black-shire’s promise to sell of May 28, 1977, that the rest of the price could be paid on credit terms. Therefore, in our opinion the omission of the closing date, or the time for payment of the balance of the cash purchase price and delivery of the deed, does not render the subject contract fatality defective. In Richard v. Foods and Services, Inc., 162 So.2d 213, 219 (La.App. 1 Cir. 1964), writ refused, 246 La. 347, 164 So.2d 351 (La.1964), a case involving an agreement to purchase stock, the court said:

“That the time of payment was not specifically set is of no moment. When no time for the performance of the contract is stipulated, a reasonable time is implied. What constitutes reasonable time under such circumstances is determined in the light of the circumstances of each particular case. LSA-C.C. Article 2050, Dairy Specialities, Inc. v. Verbene, La.App., 117 So.2d 632.”

The same rule was applied by the Supreme Court in Fox v. Doll, 221 La. 427, 59 So.2d 443 (La.1952) in regard to an agreement to purchase real estate.

There being no declaration to the contrary in the promise to sell in this case, the deposit made on the purchase price was unquestionably earnest money. Miller v. Smith, 151 So.2d 83 (La.App. 1 Cir. 1963).

We conclude that this was a valid promise to sell by Mrs. Blackshire to Mr. Law on the giving of earnest money wherein the balance of the purchase price was to be paid within a reasonable time. We further conclude, as did the trial judge, that Mrs. Sprawls was ready, willing and able to pay the balance of the purchase price when Mrs. Blackshire made her first request or demand for its payment despite her understanding that the sale would not be consummated until Mr. Law arrived from California later in the month. Also, the sale could have been closed that day had the defendant contacted Mrs. Sprawls as she said she would. The period from May 28 to June 10, 1977, being a reasonable time under the circumstances of this case, the seller could not withdraw from the contract without returning double the amount of the earnest money.

The defendant also contends the trial judge erred in not sustaining her exception of no cause of action, because an earnest money promise to sell cannot be specifically enforced and the damages alleged in this case did not specifically include a sum equal to the earnest money deposit, citing Lastie v. Cortinas, 39 So.2d 463 (La.App.Orl. 1949). Since that decision was rendered, of course, we have adopted a new Code of Civil Procedure. Article 862 thereof provides that a final judgment shall grant the relief to which the successful party is entitled even if this has not been demanded in his pleading and it contains no prayer for general and equitable relief. The allegations of the petition in this suit set forth a binding earnest money contract which the plaintiff has rescinded without complying with her legal obligation to return to the seller twice the deposit. Thus, a cause of action in this respect was asserted therein.

The defendant’s specification of error as to the trial judge having overruled her plea of estoppel was not argued orally or in brief and consequently appears to have been abandoned. In any event, the record does not disclose any legal basis for such a plea.

For the foregoing reasons, the judgment of the trial court is affirmed. The costs of this appeal are assessed to the appellant.

AFFIRMED.


author: FORET, Judge.

text:
    Lily Davies BODIN, Plaintiff-Appellee, v. Joan A. BODIN, Defendant-Appellee, United States of America, Defendant-Appellant.
    No. 6790.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.

      Frances 0 Allen, Asst. U. S. Atty., Shreveport, for defendant-appellant.
    Davidson, Meaux, Sonnier & Roy, J. J. Davidson, II, Shelton & Legendre, Thomas Robert Shelton and Thomas F. Porter, Lafayette, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and STOKER, JJ.
   FORET, Judge.

Lily Davies Bodin, widow of Camille Bo-din, as owner of an undivided one-third interest in certain described immovable property, filed suit September 8, 1977, for partition by licitation against Joan A. Bo-din, the divorced wife of Lawrence Kent Berry and divorced wife of Luther R. Doi-ron. By means of a “supplemental and amending petition”, plaintiff made the United States of America, through the Internal Revenue Service, a party to this suit due to outstanding Federal tax liens affecting the property.

Plaintiff’s petition sought (1) partition of the property by licitation, (2) that the property be sold free and clear of all mortgages, liens, claims and encumbrances and, (3) all such mortgages, liens, etc. be transferred to the proceeds of the sale allocated to the party who is the debtor of such claims (i. e. Joan Bodin), in accordance with Article 1338 of Louisiana Civil Code.

On December 21, 1977, Joan Bodin filed a document entitled “answer, original, first supplemental and second supplemental petition, affirmative defense and rule to show cause” wherein she argued that the various mortgages, etc. affecting her interest in the property should be cancelled as they reflected debts of the community regime previously existing between Joan Bodin and Luther Doiron but now dissolved by judgment of separation. Additionally, she stated that she had renounced the community and was no longer responsible for its debts and that as the property involved in this lawsuit was her separate and paraphernal property, the mortgages, etc. should be can-celled.

After a hearing on the rule to show cause, judgment was signed on February 28, 1978, ordering all mortgages, etc. can-celled as to the separate, paraphernal property of Joan Bodin except for one Federal tax lien for which the record was kept open.

Trial was had on the merits of the petition for partition by licitation and judgment was rendered on April 27, 1978. In that judgment, the trial court granted partition by licitation and ordered that all claims, liens and encumbrances against the property be transferred to the proceeds of the sale allocated to the party who is the debtor of such claims, etc. in accordance with Article 1338 of the Louisiana Civil Code. It was further ordered that there be judgment in favor of defendant Joan Bodin and against the United States of America cancelling the remaining Federal tax lien not previously adjudicated in the hearing on the rule to show cause.

It is from this portion of the judgment cancelling the Federal tax lien that the United States of America has brought this appeal; there is no dispute as to the judgment ordering a partition by licitation.

Tax assessment was made against the taxpayers, Luther R. and Jo Ann (Joan) Doiron (Joan A. Bodin), on June 25, 1973, for income taxes for the period ending December 1, 1967, in the amount of $5,107.02. The tax lien at that time attached to the property of the taxpayers. Notice of the Federal tax lien on the assessment was filed on September 19, 1974, in the mortgage records of Lafayette Parish. Joan Bodin does not herein dispute the validity of the filing of the tax lien; she objects to her payment of this tax as it being a debt of the community of acquets previously existing between her and Luther Doiron. Since she renounced the community after her separation, she argues that she should not be bound for any debts of the community.

However, this renunciation of the community is of “no comfort to the wife-taxpayer”. United States v. Mitchell, 403 U.S. 190,204, 91 S.Ct. 1763,1771,29 L.Ed.2d 406, 416 (1971). In Mitchell, the United States Supreme Court held that a married woman domiciled in Louisiana is personally liable for Federal income tax on her half interest in community income realized during the existence of the community notwithstanding her subsequent renunciation under state law of her community rights and obligations. Mr. and Mrs. Mitchell filed no income tax returns for several years (Mrs. Mitchell relied on her husband’s assurances of timely filing). After determining the deficiencies owed by Mrs. Mitchell, the Internal Revenue Service sought to collect such from property Mrs. Mitchell inherited from her mother after her divorce. The Court held that:

“. . .an exempt status under state law does not bind the federal collector. Federal law governs what is exempt from federal levy.” 403 U.S. 190, 204, 91 S.Ct. 1763, 1771, 29 L.Ed.2d 406, 416 (1971).

Finding that the United States Supreme Court has ruled on this issue in such a manner, leaves no room for Joan Bodin to urge her non-liability for the taxes due by virtue of her renunciation of the community as provided by Louisiana law.

The final issue in this case, which Joan Bodin argues most strenuously, is the use of a copy of the income tax return which forms the basis of the tax lien. Joan Bodin argues that when 26 U.S.C. § 7513 was amended in 1976, the section which authorized the use of copies of income tax returns as evidence in judicial proceedings (26 U.S.C. § 7513(c)) was deleted and that the United States of America has no right to use a copy in this trial.

This section of the tax code was amended during a wholesale revision in 1976 (the Tax Reform Act of 1976). A study of the United States Code Congressional and Administrative News reveals no purpose behind this specific deletion.

The United States argues that the use of copies is permitted by other Federal and state statutes in the title Judicial Procedure, 28 U.S.C. § 1733(b) which provides:

“Properly authenticated copies or transcripts of any books, records, papers, or documents of any department or agency of the United States shall be admitted in evidence equally with the originals thereof.”

La. R.S. 13:3733A and B allow the use of copies of business records the same as originals in court proceedings. The United States argues that the tax return in question falls within this business record doctrine.

Louisiana Code of Civil Procedure articles on proof of official records (Articles 1393— 1397) also allow the use of properly authenticated copies of government records (see especially the official revision comments following Article 1393). In Federal National Mortgage Association v. Roberts, 347 So.2d 321 (La.App. 4 Cir. 1977), copies of United States postal money orders were sought to be introduced under these provisions of the Code of Civil Procedure. Although for a reason not present here (they were not properly authenticated), the copies were denied admissibility. The court stated that:

“. . . such copies may be introduced in evidence if attested by the officer having legal custody of the record . . .” 347 So.2d at 322.

The copies in the present case were certified by the appropriate Internal Revenue officers in charge of such records and they are admissible.

We thus affirm the judgment of the trial court as to the demand for partition by licitation and reverse the judgment of the trial court in cancelling the Federal tax lien in question as to the proceeds of the sale accruing to defendant, Joan Bodin.

Costs of this appeal are assessed against Joan A. Bodin.

AFFIRMED IN PART, REVERSED IN PART.


author: STOKER, Judge.

text:
    Succession of Harold Rudolph POSEY. Lillie Louise KING, Plaintiff-Appellant, v. L. Diane Posey JOHNSON, Defendant-Appellee.
    No. 6791.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.
    Sanders & Castete, Herman A. Castete, Winnfield, for proponent-appellant.
    J. P. Mauffray, Jr., Jena, for administra-trix-appellee.
    Before DOMENGEAUX, FORET and STOKER, JJ.
   STOKER, Judge.

This is an appeal from a decision of the trial court refusing to admit to probate a purported olographic will offered by appellant Louise King Posey. The basis for the trial court’s decision was that the proponent of the will failed to prove that it was signed by the decedent because the signature was printed rather than written in longhand. The trial judge reasoned that if the decedent had intended for the document to have the effect of a will, then he would have written and signed the document in longhand.

Decedent, Harold Rudolph Posey, died on May 15, 1978. On May 26, 1978, L. Diane Posey Johnson qualified as administratrix of his succession. On June 6, 1978, appellant filed a document purported to be the olographic will of the decedent. The ad-ministratrix opposed the probate of this will and a hearing on this was held on June 27, 1978. At the close of this hearing, the trial judge rendered judgment in favor of the opponent and gave oral reasons therefor. While not necessarily agreeing with the reasons assigned by the trial court, we affirm.

The record reflects that proponent Louise King Posey lived with the decedent at the time of his death. Although she had taken the decedent’s name, appellant had never been married to the decedent. After decedent’s death, the appellant found the purported will in the decedent’s wallet. This document was handprinted as opposed to being handwritten in longhand. The purported will would make Louise King Posey the decedent’s sole legatee subject to the legitime of his daughter, the appellee in this case.

Appellant asserts that the sole issue on appeal is whether a purported olographic will can still be valid although printed by the testator rather than written in longhand. The court feels that it is unnecessary to reach that issue since proponent failed to establish that the purported will was printed by the hand of the decedent.

The requirement that an olographic will be written by the hand of the testator is spelled out in Article 1588 of the Louisiana Civil Code which reads as follows:

The olographic testament is that which is written by the testator himself.
In order to be valid, it must be entirely written, dated and signed by the hand of the testator. It is subject to no other form, and may be made anywhere, even out of the State.

Article 2903, of the Louisiana Code of Civil Procedure places the burden of proving that an olographic testament was “entirely written, dated and signed by the hand of the testator” on the proponent of the purported will. Article 2903 states:

At the contradictory trial to probate a testament, its proponent bears the burden of proving the authenticity of the testament, and its compliance with all of the formal requirements of law.

The requisites of meeting this burden are spelled out in Article 2883 of the Code of Civil Procedure which states:

The olographic testament must be proved by the testimony of two credible witnesses that the testament was entirely written, dated, and signed in the testator’s handwriting. The court must satisfy itself, through interrogation or from the depositions of the witnesses, that the handwriting and signature are those of the testator, and must mention these facts in its proces verbal.

In the present case, therefore, the burden of proving that the purported will was entirely written by the hand of the testator rested with Louise King Posey. In order to prove this, she would have needed to have produced two witnesses to testify as to the genuineness of the writing and the signature in the document purported to be the will of Harold Rudolph Posey. However, Ms. Posey herself was the only witness to testify that the printing and the signature in the purported will was that of the decedent. Thus, since proponent failed to meet the requirement of producing two witnesses found in Article 2883, she did not carry her burden of proving the validity of the purported will. See Succession of Sullivan, 178 La. 230,151 So. 190 (1933) and Succession of Lewis 174 La. 901, 142 So. 121 (1932).

For the reasons assigned, the judgment of the District Court is affirmed. All costs of this appeal are to be borne by appellant.

AFFIRMED.


text:
    Carole Calvert CREECH, Plaintiff-Appellant, v. Bob Newton CREECH, Defendant-Appellee.
    No. 6792.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.

      Patrick McDonough, III, Vidalia, for plaintiff-appellant.
    Philip Letard, Vidalia, for defendant-ap-pellee.
    Before DOMENGEAUX, FORET and STOKER, JJ.
   DOMENGEAUX, Judge.

Carole Calvert Creech was granted a legal separation and, ultimately, a divorce from Bob Newton Creech. She received the permanent custody of the couple’s two minor children, and Mr. Creech was allowed specific visitation privileges. Additionally, the mother was awarded $300.00 per month for child support.

Subsequently, Mr. Creech proceeded by rule for extended visitation rights, and Mrs. Creech reconvened for additional child support.

At hearing, the father’s visitation privileges were extended and child support was increased. Mrs. Creech now appeals contending that the increase in child support was inadequate and that the modified visitation privileges, if allowed to stand, would perpetuate “split or divided” custody.

CHILD SUPPORT

The child support was increased from $300.00 to $325.00 per month, and, additionally, Mr. Creech was ordered to maintain dental and medical insurance for the children. Although the father’s annual salary was found to be $28,000.00, with housing provided by his employer, we cannot say that the trial judge abused his discretion in view of the limited factual information before us. We also note that, at the time of the original child support decree, the mother was unemployed. She is now employed, having take home pay of approximately $350.00 per month. The obligation to support, maintain, and educate the children extends to the mother. La.C.C. Art. 227.

Additionally, the district judge noted that Mr. Creech now has certain obligations which he did not have when support was initially awarded. Appellant does not contend that the written narrative entitled “Statement of Facts” has inaccurately portrayed that fact. Without the benefit of a transcript of the parties’ testimony, we must accept this finding made by the trial court. McDonald v. McDonald, 357 So.2d 1293 (La.App. 3rd Cir. 1978). The $25.00 per month increase was an attempt by the trial court to, as he said: “balance present needs against present ability to pay.” On the basis of the record before us, we find the increase in the support award within the bounds of the trial judge’s discretion.

VISITATION PRIVILEGES

In the recent case of McDonald v. McDonald, supra, we held that an award of visitation rights totaling 81 days annually was not excessive. The true test is whether the frequency or length of visitation will be detrimental to the welfare of the child.

Mr. Creech is now working in Vera Cruz, Mexico. Because of the expense and difficulty involved in traveling to the States, he was virtually unable to visit his children one weekend each month, as was originally provided for in the judgment of divorce. The trial judge concluded: “Therefore, the Court felt that the best interest of the children would be served and fairness would prevail upon the part of all parties if a summer visitation period was increased from two weeks to five weeks . . . .” By enabling meaningful visitation with their father, this arrangement could be more beneficial to the children.

Under the original visitation decree, the defendant had visitation rights of one weekend per month, the last week in December, and two weeks in the summer. The essence of the judge’s present ruling was to grant three additional weeks of summer visitation in lieu of weekend visitation. As stated above, in the McDonald case, we let stand a visitation grant giving the father four weeks during the summer, five days at Christmas, and weekend visitation, which resulted in a total of 81 days. Under the circumstances presented in this case, the visitation award gives Mr. Creech approximately six weeks (45 days) with his children and does not amount to “split or divided” custody. Further, there has been no showing that the period allowed is of such duration as to cause confusion among the children as to parental authority. Poole v. Poole, 270 So.2d 215 (La.App. 1st Cir. 1972).

Mrs. Creech indicated concern over the possibility that Mr. Creech might not return the children once they were removed from the United States. Recognizing this potential problem, the district court mandated that Mr. Creech post a $5,000.00 bond before taking the children to Mexico. We appreciate the worries of the appellant, however, under the original visitation grant, Mr. Creech had the children for the last week of December and two weeks in the summer. This time would have been sufficient to remove the children to Mexico if appellee had intended to do so. Under the present decree, appellant is given more protection with the posting of a bond, which would be forfeited if the children are not returned timely.

There has been no showing of error or abuse of discretion on the part of the trial judge.

For the above reasons, the judgment is affirmed at appellant’s costs.

AFFIRMED.

      . The statement of facts was prepared and signed by the trial judge at appellant’s request, pursuant to La.C.C.P. Art. 2131.


text:
    Robert PELOQUIN, Indiv., etc., Plaintiffs-Appellants, v. CALCASIEU PARISH POLICE JURY et al., Defendants-Appellees.
    No. 6793.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.

      Steven Broussard, Lake Charles, for plaintiffs-appellants.
    Stockwell, Sievert, Viccellio, Clements & Shaddock, Fred H. Sievert, Raggio, Farrar, Cappel & Chozen, Richard B. Cappel, Lake Charles, for defendants-appellees.
    Before DOMENGEAUX, FORET and STOKER, JJ.
   FORET, Judge.

Plaintiff, Robert Peloquin, filed suit on behalf of himself, his wife and their two minor children against Mr. and Mrs. Joseph A. Linscomb and the Calcasieu Parish Police Jury for damages for conversion of their pet cat, “George”, for the value of the cat, and for mental anguish, inconvenience, and humiliation suffered due to the alleged actions of the defendants.

Mrs. Linscomb, a neighbor of the plaintiffs, borrowed an animal trap from the Calcasieu Parish Animal Control Center, an agency of the Calcasieu Parish Police Jury, placed it in her yard, and eventually succeeded in trapping a cat, allegedly “George”. After trapping the cat, Mr. and Mrs. Linscomb returned the trap with the enclosed cat to the Calcasieu Parish Animal Control Center where it was destroyed. The defendants deny that the cat disposed of was in fact, the plaintiffs’ cat.

Prior to trial on the merits, defendants filed exceptions of no right of action and no cause of action on the grounds that as the plaintiffs had no ownership interest in George they had no legal grounds to sue for damages for mental anguish, etc. occasioned by his alleged conversion at the hands of defendants. These exceptions were maintained by the trial court, leaving plaintiffs the right to sue for only the worth of the cat, which the court determined was less than the statutorily required amount necessary for a jury trial and thus also denied plaintiffs’ request for same. Plaintiffs have appealed dismissal of this part of their claim; the remainder has not been tried in the district court.

Defendants have objected to this appeal, arguing that the exceptions maintained by the trial court were interlocutory judgments from which no appeal lies. This Court disagrees with defendants’ contentions and holds that the judgment is a final judgment and plaintiffs are entitled to appeal. Article 2083 of the Code of Civil Procedure allows an appeal to be taken in cases where final judgment has been rendered and in cases where interlocutory judgment may cause irreparable injury. Article 1841 states (in part) that:

“A judgment that determines the merits in whole or in part is a final judgment”. See also Cary v. Richardson, 35 La.Ann. 505 (1883); Voisin v. Luke, 142 So.2d 815 (La.App. 1 Cir. 1962).

In the present case, by maintaining the exception, the trial court has pronounced the final judgment on all the plaintiffs’ claims save one. This clearly falls within the meaning of the above cited article:

“The final judgment need not dispose of all issues between the parties to be ap-pealable.” Talley v. Bradley, 177 So.2d 624 (La.App. 3 Cir. 1965); Devillier v. City of Opelousas, 243 So.2d 118 (La.App. 3 Cir. 1971).

Defendants also object to the granting of this appeal in that the trial judge signed an initial motion for appeal prior to his signing of the formal judgment. After signing the formal judgment on August 1, 1978, the trial court judge then signed another motion for appeal on August 8, 1978, which corrected the prior error in the record. Defendants’ circuitous argument on this issue urges that the first motion for appeal was invalid but after having so been made, it deprived the trial court of jurisdiction so that the later motion for appeal after the formal judgment was signed is also invalid in that the first attempted motion for appeal removed the case from the trial court’s jurisdiction. Obviously if the first purported motion for appeal was invalid as being signed before the formal judgment in the case, it would have no effect, and the motion for appeal signed on August 8, 1978, is valid.

Turning to the merits of the appeal, it is initially obvious that the exception of no cause of action maintained by the trial court must be overturned. The exception of no cause of action is to raise the question of whether any remedy is afforded by law. The exception of no right of action is to raise the question of whether a remedy afforded by law can be invoked by a particular plaintiff. Haskins v. Clary, 346 So.2d 193 (La.1977); Hero Lands v. Texaco, Inc., 310 So.2d 93 (La.1975); Taylor v. Castille, 318 So.2d 106 (La.App. 3 Cir. 1975), writ refused, 1975.

The plaintiffs allege their ownership of George and their subsequent dispossession of him by acts of the defendants. This in itself is sufficient to state a cause of action.The judgment of the trial court maintaining this exception is reversed.

“An exception of no cause of action must be determined in the light of the well pleaded averments of plaintiff’s petition, all of which must be accepted as true.” Barnett v. Develle, 289 So.2d 129 (La. 1974); Haskins v. Clary, supra.

We now turn to the exception of no right of action which was also maintained by the trial court. In addition to the facts herein-above recited, it is stipulated by the parties that:

(1) appellants did not purchase the cat'nor did they receive it as a gift;'
(2) the Peloquins had possessed the cat for more than seven years since Mrs. Peloquin found it as a kitten in or near her yard;
(3) the Peloquins did not advertise the finding of the kitten in the newspa- . per or make other attempts to locate the owner except to ask their neighbors.

The trial court, citing Civil Code Article 3422, held that the Peloquins were not the owners of the cat and as mere possessors, did not have the right to sue for mental anguish, etc. suffered as a result of George’s alleged demise at the hands of the defendants but could sue only for any actual damages (the worth of the cat).

Article 3422 is contained in the chapter of the Louisiana Civil Code entitled “Occupancy”, which is defined in Article 3412:

Art. 3412. Occupancy is a mode of acquiring property by which a thing which belongs to nobody, becomes the property of the person who took possession of it, with the intention of acquiring a right of ownership upon it.

Further examination of this chapter reveals that property, subject to occupancy, may be acquired by possession of it for different periods of time, depending on the prior ownership status of the property. Article 3421 allows a person who acquires a movable that has been abandoned to immediately become its “master”. Article 3415 allows the captor who reduces to possession a wild animal to immediately become the owner of the captured creature.

Mrs. Peloquin stated that approximately seven years prior to the disappearance of George, she had found him as a kitten while putting her children on a school bus. After first asking her neighbors if they had lost a kitten, the Peloquins raised George as a family pet. In applying Article 3422, the trial court must have determined that George was “lost” when taken in by the Peloquins; however, from the record this appears to be a factual determination that the jury should have had a chance to consider. It is at least as likely that George was either abandoned by his prior owner or perhaps never had an owner (a wild beast or animal?). Cursory observation of the streets of our cities reveals many “alley cats” which exist by their wiles without being owned by any person.

As an alternative argument, plaintiffs cite Louisiana Civil Code Article 3506, three year prescriptive period to acquire ownership of a movable. This Article is contained in the same Book III, Title XXIII of the Civil Code as the aforecited articles on occupancy; it is however contained in a different chapter than occupancy.

As defined by Article 3457:

Art. 3457. Prescription is a manner of acquiring the ownership of property, or discharging debts, by the effect of time, and under the conditions regulated by law.
Each of these prescriptions has its special and particular definition.

Article 3506 establishes the prescriptive period to acquire a movable possessed in good faith and with a just title as owner; while we are unsure what would suffice as a “just title” to such an animal as George, the mere taking possession of the creature is insufficient to constitute the required transfer of title. Such three-year prescriptive period might successfully be urged if the Peloquins had purchased or been given George by a person who claimed ownership of him but was not in fact such.

However, we do not decide this appeal on these grounds as we are persuaded by plaintiffs’ further alternative argument that they should be allowed to sue for all claimed damages because of their status as George’s possessor. Article 3450 of the Civil Code recognizes possession as a fact as well as a right and Civil Code Article 3454 provides:

“Art. 3454. Rights, which are common to all possessors in good or bad faith, are:
1. That they are considered provisionally as owners of the thing which they possess, so long as it is not reclaimed by the true owner or person entitled to reclaim it, and, even after such reclamation until the right of the person making it is established.
2. That every person who has possessed an estate for a year, or enjoys peaceably and without interruption a real right, and is disturbed in it, has an action against the disturber, either to be maintained in his possession, or to be restored to it, in case of eviction, whether by force or otherwise.
3.That such a possessor may, by prescription, acquire the property of the thing which he thus possesses, after a certain time, which is established by law according as he has possessed in good or bad faith.”
(Emphasis added.)

It would thus appear that even as possessor the plaintiffs have the right to maintain their action against any but the true owner (if there is one) of the cat.

We are supported in this holding by a study of the tort of conversion upon which the plaintiffs’ claims are based. Despite being a common law action, conversion has been recognized in Louisiana law under Civil Code Article 2315 for many years. Edward Levy Metals, Inc. v. New Orleans Public Belt RR, 243 La. 860, 148 So.2d 580 (1963); Importsales v. Lindeman, 231 La. 663, 92 So.2d 574 (1957); Bryant v. McCain, 297 So.2d 262 (La.App. 3 Cir. 1974); Lince-cum v. Smith, 287 So.2d 625 (La.App. 3 Cir. 1973), writ refused, 290 So.2d 904 (La.1974); Martinez v. Therma-King Sales & Service Division of Transport Refrigeration of La., Inc., 346 So.2d 798 (La.App. 1 Cir. 1977); Deshotels v. State Wide Trailer Sales, 333 So.2d 259 (La.App. 1 Cir. 1976); Bostwick v. Avis Rent-A-Car, 215 So.2d 854 (La.App. 1 Cir. 1968); Madden v. Madden, 353 So.2d 1079 (La.App. 2 Cir. 1977).

The Restatement of Torts, Second, explicitly recognizes that the person who converts the chattel may be liable to the possessor of the chattel. As stated in the comments to that section:

a. This Section states the rule as to liability to the possessor of a chattel for a conversion, committed as stated in § 223. The converter may also be liable to a person entitled to the immediate possession of the chattel as stated in § 225, or to one entitled to future possession of the chattel as stated in § 243.
b. It is immaterial that the one in possession of the chattel is not entitled to retain possession as against some third person, or that he has obtained possession wrongfully. See § 895.

In his discussion on conversion, Prosser states:

“. . . the man in possession recovers, the full value of the chattel, although he may not be the full owner or any owner at all.”

Prosser notes that the reason for this lies in “. . . the convenience of treating the possessor as the owner, in the encouragement to peace and security expected to result from the protection of any possession against a wrongdoer with no rights at all”.

Prosser also notes that in the common law, the procedural method used is to disallow the defendant in a conversion action to set up as a defense the claim of a third party to the chattel, superior to that of the plaintiff, unless the defendant can connect himself with that claim (the “jus tertii”).

In French law, Aubry & Rau Property state:

“The possession of corporeal things creates in favor of the possessor a presumption that he has legal title which the possession manifests. More precisely it has the following effects:
* * * * * *
(f) A simple possessor or even a precarious holder of a movable of whose possession he is deprived can recover it against a third party simple possessory in all cases in which the owner of the thing could do so.”

We conclude that a possessor has the same rights as an owner of a movable to sue for damages for conversion thereof by the defendant, and those damages may include awards for mental anguish, humiliation, etc. as well as special and/or actual damages. Lincecum, supra; Brown v. Crocker, 139 So.2d 779 (La.App. 2 Cir. 1962). Lincecum involved a puppy and Brown involved a mare. Both of these cases awarded damages for mental anguish, etc. as a result of injury to the animals involved. Admittedly these two cases involved owners of the animals, but we view the legal principle as the same. If plaintiffs can prove possession, and that they suffered provable and compensable damages as a result of the conversion of the cat involved, we are of the opinion that they are entitled to recover for these damages.

Whether plaintiffs in this case owned the cat in question, whether they possessed the cat in question as owner, and proving all other facets of their case, if they can prove damages, they are entitled to recover, unless defendant has a valid defense that would justify denial of recovery to the plaintiffs. All of these factors are properly questions for the trier of fact, be it judge or jury, and the case should be remanded for trial in accordance with the views above expressed.

Accordingly, we reverse the judgment of the trial court, and overrule the exceptions of no right of action and no cause of action, and remand the case for further proceedings.

Costs of this appeal are assessed against the defendants. Costs in the trial court must await final outcome of this matter.

REVERSED AND REMANDED.

      . “Art. 3422. If he, who has found a movable thing that was lost, having caused it to be published in newspapers, and having done all that was possible to find out the true owner, can not learn who he is, he remains master of it till he, who was the proper owner, appears and proves his right; but if it be not claimed within ten years, the thing becomes his property, and he may dispose of it at his will.”

      . “Art. 3421. He who finds a thing which is abandoned; that is, which its owner has let [left] with the intention not to keep it any longer, becomes master of it in the same manner as if it had never belonged to anybody.”

      . “Art. 3415. Wild beasts, birds and all the animals which are bred in the sea, the air, or upon the earth, do, as soon as they are taken, become instantly by the law of nations, the property of the captor; for it is agreeable to natural reason that those things which have no owner, shall become the property of the first occupant.
      And it is not material whether they are taken by a man upon his own ground or upon the ground of another. But the proprietor of a tract of land may forbid any person from entering it for the purpose of hunting thereon.
      Wild beasts are those which enjoy their natural liberty, and go wherever they please.”

      .“Art. 3506. If a person has possessed in good faith and by a just title, as owner, a movable thing, during three successive years without interruption, he shall acquire the ownership of it by prescription unless the thing was stolen or lost.”

      . “Art. 3450. Although possession results frequently from a fact, and not from right, it nevertheless confers on the possessor certain rights with regard to the thing possessed, some of which are peculiar to the possessor in good faith, and the others are common to all possessors.”

      . § 224 A. Liability to Person in Possession For a conversion the actor is subject to liability to another who was at the time in possession of the chattel.

      . Law of Torts, 4th Ed.

      . Ibid, pg. 95.

      . Ibid, pg. 95.

      . Ibid, pg. 94.

      . Droit Civil Francais, Vol. II, 7th Ed., Civil Law Translations 2 (1966).

      . Ibid, pg. 105.

      . See Stone, La. Civil Law Treatise, Vol. 12, Tort Doctrine, Section 249, et seq.


text:
    EVANGELINE BANK AND TRUST COMPANY, Plaintiff-Appellee, v. Frank Boward DEVILLE et ux., Defendants-Appellants.
    No. 6799.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.
    Caffery Duhe, Oubre & Gibbens, John M. Duhe, New Iberia, Fontenot & Mitchell, Guy 0. Mitchell, Ville Platte, for defendants-appellants.
    Preston N. Aucoin, Ville Platte, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and STOKER, JJ.
   STOKER, Judge.

This is an action by the holder of a crop pledge and privilege against the crop grower and a purchaser of a portion of the pledged crop. The primary issue in the case is whether the holder of the crop pledge gave proper notice to the purchaser where the crop pledge was given by the grower in the name of Boward Deville, and was recorded as such, although the purchaser dealt with the grower as, and knew him only as, Frank Deville.

Plaintiff-appellee, Evangeline Bank and Trust Company, is the crop pledge holder. It sued Frank Boward Deville and his wife and B. F. Trappey’s Sons, Inc. after Deville sold most of his crop to Trappey’s and failed to pay off his loan at the plaintiff bank which was secured by the crop pledge. The trial court found in favor of the plaintiff bank. The trial court also gave judgment to Trappey’s on a third-party petition it had brought against Deville. Deville and Trap-pey’s have appealed the trial court ruling.

FACTS

Frank Boward Deville was a grower of sweet potatoes. In order to finance a crop he borrowed $15,000.00 from the plaintiff bank. To secure the loan he gave a crop pledge on his expected crop in conformity with R.S. 9:4341 et seq. The pledge was duly recorded with the Evangeline Parish Clerk of Court. As the crop was harvested the sweet potatoes were sold to Trappey’s through a buyer, Lewis Savoy. Savoy had made a contract with Deville in the name of Frank Deville. In the previous year Savoy and Deville had dealt with one another without a contract in the name of Frank Deville. It appears that the bank officer-who dealt with Deville knew him only as Boward and Savoy, the only person at Trap-pey’s to deal with him, knew him only as Frank. The crop pledge was also signed by Deville’s wife, Anna Belle F. Deville. It was signed on behalf of the plaintiff bank by J. B. LaHaye, Vice President and was witnessed by two persons.

Frank Boward Deville harvested approximately $10,000.00 in potatoes which he sold as it was harvested to Trappey’s through Lewis Savoy. At this point Savoy discontinued purchases from Deville, and Deville abandoned the remainder of his crop. The bank harvested some additional portion of the crop. Deville then took bankruptcy and his debt to the bank was discharged in bankruptcy. Prior to trial Deville and his wife were eliminated as primary defendants on an exception based on the discharge in bankruptcy. This left Trappey’s as the sole defendant. The Devilles remained in the case as third-party defendants.

TRIAL COURT ACTION

The trial judgment awarded the Evangeline Bank and Trust Company the amount Trappey’s had paid to Deville which the court held was the sum of $10,823.00. The judgment also carried interest at the rate of 8% per annum from August 31, 1976, until paid plus attorney fees in the amount of twenty-five per cent on the amount due and cost of the suit. Judgment over against Deville was given in favor of Trappey’s for one-half of the amount it was obligated to pay to the bank by way of contribution.

The trial court’s reasoning, in part, was as follows:

The crop pledge contract was recorded on March 17, 1976, and the Court finds that it was properly recorded in accordance with R.S. 9:4341, Trappey had constructive notice of the crop pledge when it bought the potatoes from Mr. Deville. Mr. Savoy was clearly negligent in purchasing the potatoes without inquiring whether or not the crop was subject to a crop pledge.
******
Trappey and Frank Boward Deville are joint tort-feasors, and therefore, Trappey as third-party plaintiff, is entitled to recover from third-party defendant, Frank Boward Deville, one-half of the amount it is obligated to pay to the Evangeline Bank and Trust Company by the judgment rendered herein.

RESPECTIVE OBLIGATIONS OF CROP PLEDGE HOLDER AND BUYER

It will be noted from the portion of the judgment quoted above that the trial court regarded Trappey’s as negligent. It regarded Trappey’s and Deville as joint tort-feasors. Under appropriate findings of fact such a holding would be correct. Alexandria Production Credit Ass’n. v. Horn, 199 So. 430 (La.App. 2nd Cir. 1940), writ denied.

While it is true that Trappey’s made no inquiry to determine whether Deville’s crop was encumbered with a crop pledge, our view of the facts raises a substantial question as to whether the Evangeline Bank and Trust Company fulfilled its obligation to properly record the privilege so as to make effective the constructive notice provisions of the statute governing such privileges. With reference to that statute, R.S. 9:4341, this court made the following holding in City Bank and Trust Company v. Marksville Elevator Company, 221 So.2d 853 (La.App. 3rd Cir. 1969):

* * * When properly recorded, a crop pledge is effective against third persons, so that the immediate purchaser of a crop subject to it buys with constructive notice of the pledge, and is personally liable to the crop pledgee, or at least up to the value of the crop purchased by him..

Under the circumstances of this case the question arises: Is a crop pledge properly recorded where the pledge is given by the pledgor in his middle and surname or family name only, and which does not indicate his Christian or given name? Another way of stating the question is: Does a crop pledge in the name of Boward Deville, even recorded, give notice at all to anyone that it was given by Frank Deville?

Admittedly Trappey’s did not request a certificate from the Clerk of Court to determine if Frank Boward Deville had any crop pledges recorded in his name. Also it did not press Deville about his financial obligations to the point of actually asking him if he had given a crop pledge on the potatoes he sold to Trappey’s. Pertinent here is the observation of this court in Nunez v. Collins, 180 So.2d 553 (La.App. 3rd Cir. 1965). There this court approvingly cited Charrier v. Greenlaw Truck and Tractor Co., 2 La. App. 622 (1925) for the following language: “We think the force and effect of the records must depend on themselves and not on whether parties consult them or not. Without consultation they are binding for what they show. They should not be binding for what they do not show.” (Emphasis supplied.) While the factual situation in Nunez v. Collins, supra, was the reverse of that here, the reasoning equally applies.

Despite the constructive notice feature of the statute, it is manifest that a scrutiny and check of the Evangeline Parish crop pledge records would not have disclosed a crop pledge given by Frank Deville.

Plaintiff-appellee bank urges here that it was the duty of Trappey’s to have established the identity of Deville through a check of such identifying documents as his social security card or driver’s license. Further it is argued that since Deville’s wife signed the crop pledge, examination of the recorded crop pledge in the name of Frank Deville would have disclosed that Frank Deville, with whom Savoy was dealing, was in fact Boward Deville. We have concluded that when the relative obligations of the pledgee bank and the buyer of the pledge crop are analyzed, the obligation of the bank was greater than that of the buyer, or was at least of such a nature to constitute negligence on the part of the bank. Our considered view is that the plaintiff-appel-lee was solely at fault in not ascertaining the full name of Frank Boward Deville and so listing his name in the crop pledge contract.

According to some authorities, the middle name of a person’s middle initial is no part of a person's name. 65 C.J.S., Names, Section 4. See Wilty v. Jefferson Parish Democratic Executive Committee, 245 La. 145, 157 So.2d 718 (1963) quoting from the same authority to the effect that middle names and initials are held to be immaterial. Section 1 of 65 C.J.S. Names, page 3 states as follows:

By the common law, since very early times, a legal name has consisted of one Christian or given name, and one surname, patronymic, or family name, the given name being used first and the surname last.

On the other hand a full reading of Section 4 of the C.J.S. reference shows that a middle name may be a part of a person’s name, especially if it becomes important for identification purposes.

Other authority influencing our view are the requirements imposed on notaries in listing names of parties in documents and the obligations of recorders of mortgages in giving mortgage certificates where Christian names are not listed. The crop pledge in question here between the Evangeline Bank and Trust Company and Deville was not a notarial instrument. It was simply signed by the parties, including Mrs. De-ville, and witnessed by two persons. While the document on its face was not prepared by a Notary, nevertheless, R.S. 35:12 is indicative of the importance that the Legislature places on the inclusion of the full names of persons in legal documents.

R.S. 35:12 provides as follows:

Notaries shall insert in their acts the Christian names of the parties in full and not their initial letters alone, together with the permanent mailing addresses of the parties, and shall print or type the full names of the witnesses and of themselves under their respective signatures.

R.S. 9:5181 provides as follows:

Recorders of mortgages shall refuse their certificates to persons whose Christian names are not stated, or whose Christian names are designated by the initial letters alone.

We see no reason why a financial institution such as a banking house writing a contract of pledge to secure a loan of magnitude of $15,000.00 should not observe the same care as is prescribed for Notaries in confecting their acts. Thus plaintiff-appel-lee should have listed Deville in the crop pledge contract as Frank Boward Deville or at least as Frank Deville.

From the foregoing considerations we are of the opinion that the recorded crop pledge in question was not properly recorded in the sense that it did not give sufficient notice to third parties so as to be effective against them constructively or otherwise. Under the circumstances, we view the failure of Trappey’s to check the records, or to directly inquire of Deville as to whether there was a crop pledge affecting the purchased crop, to be immaterial.

With reference to the argument that since the crop pledge was signed by the wife of Deville, her name appearing as a party to the recorded contract, this should have constituted notice to Trappey’s and other third persons, our view is as follows. The contract itself does not categorically recite that Mrs. Deville was a primary party to the contract. The contract opens as follows: “THIS CONTRACT between The Evangeline Bank and Trust Company of the parish of Evangeline of the first part and Boward Deville of the same parish, as second part; WITNESSETH . . .”

After the essentials of the contract were stated, a final paragraph sets forth that Anna Belle F. Deville, wife of Boward De-ville also came and appeared, “who became a party to this act, and she, together with her husband, declared that they hereby waive as to this debt, and in favor of the said Evangeline Bank and Trust Company,” the homestead exemptions accorded them under certain laws. It would appear that Mrs. Deville’s joining in the contract was for the sole purpose of waiving the homestead exemption.

It is true that had Trappey’s examined the recorded contract in the name of Boward Deville, and had read it in its entirety, it would have been put on notice that the wife of the Deville who gave the pledge and privilege was the wife of the person it dealt with as Frank Deville. In view of the misleading action of the bank in listing the name of Deville as Boward rather than Frank, or Frank Boward, we are disinclined to impose upon the purchaser of the potatoes the burden of examining all crop pledges recorded in the surname of the pledgor to discover the names of the wives as might be listed in them.

For the foregoing reasons this court holds that the crop pledge in question was not properly recorded, and, under the circumstances, B. F. Trappey’s Son, Inc. was not given sufficient notice of the existence of the privilege and pledge of the Deville crop.

Accordingly the judgment appealed from is reversed both as to the principal demand and the third-party demand, and judgment is now rendered in favor of defendants, Frank Boward Deville and Anna Belle F. Deville, and against plaintiff, Evangeline Bank and Trust Company, rejecting plaintiff’s demands and dismissing its suit at its costs. The third-party demand of third-party plaintiff against third-party defendants is reversed and rejected and dismissed at the cost of the third-party plaintiff. The costs of this appeal are to be borne by plaintiff-appellee.

REVERSED AND RENDERED.


author: DOUCET, Judge.

text:
    Henry SPRAWLS, Plaintiff-Appellant, v. SENTRY INSURANCE COMPANY et al., Defendant-Appellee.
    No. 6800.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.
    Writ Refused March 23, 1979.
    Thomas & Dunahoe, Edwin Dunahoe, Natchitoches, Gravel, Roy & Burnes, Alfred Shapiro, Alexandria, for plaintiff-appellant.
    Gahagan & Gahagan, Russell E. Gahagan, Natchitoches, for defendant-appellee.
    Before WATSON, CUTRER and DOU-CET, JJ.
   DOUCET, Judge.

In this workmen’s compensation case, plaintiff appeals the holding of the trial court that he did not sustain personal injury “by accident arising out of and in the course of his employment”. LSA — R.S. 23:1031. The determinative issue is whether plaintiff’s present back condition resulted from a progressive pre-existing back problem or was caused by strain at work.

While employed by Coca Cola Bottling Company, Mr. Sprawls was working as a bottle sorter. This job entailed bending over, at times, taking beverage bottles from a mixed case, sorting or putting like brands together in another case and then stacking the sorted cases up to approximately shoulder height. Plaintiff alleges that on January 17, 1977, while bending over to sort bottles, he injured his back. He testified that as soon as possible he notified his supervisor and several co-employees of the accident.

Although the record reveals that Mr. Sprawls went to a physician for treatment of his back that same day, all witnesses except Noah Scott, plaintiff’s son-in-law, deny being told of any “accident”. The record of the attending physician, Dr. Charles E. Cook, does indicate, however, that plaintiff complained of back problems brought on by an injury sustained at work while picking up a case of bottles. After a few days of bed rest and taking muscle relaxers, plaintiff returned to work with a note from Dr. Cook stating that plaintiff was “ready for work”. This note was written only after Mr. Sprawls had told Dr. Cook that he felt better. Mr. Sprawls worked five full days but was discharged on February 2, 1977 for fighting with another employee the previous day.

In 1975, Mr. Sprawls had developed a similar muscle spasm which, according to the records of Dr. Cook, was not caused by any particular activity. (Tr. 21) Dr. Cook, the examining physician then as well, prescribed the same for convalescence; muscle relaxers and a few days bed rest. In addition, Dr. Cook referred Mr. Sprawls to Dr. W. M. Fox, an orthopedic surgeon, for further examination.

In a letter dated October 23, 1975, Dr. Fox made a diagnosis of “[pjrobable congenital abnormality of the back with chronic strain picture and also possible very early minimal osteoarthritic changes of the right hip.” (emphasis added) As treatment, Dr. Fox prescribed a back brace for plaintiff. Several co-employees testified that plaintiff was periodically seen wearing a back brace at least one year prior to his discharge.

In a letter to plaintiff’s attorney from Dr. Kenneth Gaddis, neurologist, it is stated that “the patient [Mr. Sprawls] has a very long history of back pain dating back to 1969. . . . The patient’s history then is one of intermittent back pain from that point forward.” Several co-employees testified that Mr. Sprawls had often complained about back problems (apparently without the mentioning of any accident).

From an examination of the record, it is clear that a reasonable basis exists to support the trial court’s dismissal of plaintiff’s workmen’s compensation suit. The medical history of Mr. Sprawls clearly shows that he had long suffered from back abnormalities. Instead of being exacerbated by an “accident”, it is probable that plaintiff’s present condition resulted from a naturally progressive pre-existing congenital disorder of his back. This conclusion is substantiated by both lay and medical testimony set forth above.

Conclusions of fact by the trial court in a workmen’s compensation case are entitled to great weight and are not to be reversed unless manifestly in error. Gadi-ere v. West Gibson Products Co., 364 So.2d 998 (La.1978); Cooper v. Harris, 315 So.2d 331 (La.App. 3rd Cir. 1975). Butts v. Insurance Co. of North America, 352 So.2d 745 (La.App. 3rd Cir. 1977). Here the trial court carefully analyzed the medical and lay testimony before rejecting plaintiff’s claim. Even if this court disagreed with the result, it could not reverse the lower court’s judgment without first finding manifest error. Having found no such error, we must affirm.

For the reasons delineated above, the judgment of the district court is affirmed. All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.