author: BOUTALL, Judge. LEMMON, Judge,

text:
    Ruby Thaxton Rond, wife of/and Samuel ROND and Samuel Rond, Individually and for and on behalf of his minor daughter, Shawn Rond and Tina Johnson v. William H. SIMS, Sr., Warehouse Corporation of American and Security Insurance Group.
    No. 8555.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.
    Rehearing Denied March 14, 1978.
    Writ Refused May 5, 1978.

      Darleen M. Jacobs, New Orleans, for plaintiffs-appellees.
    Rudolph R. Schoemann, New Orleans, for defendants-appellants.
    Before LEMMON, GULOTTA and BOU-TALL, JJ.
   BOUTALL, Judge.

Plaintiffs, Ruby Thaxton Rond and her husband Samuel Rond, were awarded judgment for personal injuries to Mrs. Rond and for property and other special damages arising out of an automobile-truck collision ' against the truck driver, William H. Sims, Sr., his employer, Warehouse Corporation of American, and their insurer, Security Insurance Group. The defendants have appealed and Mrs. Rond has answered their appeal seeking an increase in quantum.

Sims was driving his employer’s large truck, heavily loaded with cotton bales, on Elysian Fields Avenue, New Orleans, attempting to make a “U” turn. During this maneuver he collided with the automobile driven by Mrs. Rond, dragging it along for a short distance and pushing it up onto the neutral ground at the intersection. Sims testified that he did not see the Rond vehicle and that he was attempting his turn from the middle lane of the lake-bound roadway of Elysian Fields because he needed plenty of room in which to turn this large tractor-trailer combination. His testimony alone convinces us of his negligence. A left turning motorist is held to a high degree of care in executing his maneuver, and when he makes a left turn from a lane other than the normal left turn lane in front of a vehicle in the left lane, without making sure that lane is clear, his negligence is so apparent as not to require a discussion.

It is contended however that Mrs. Rond was also negligent. Mrs. Rond was also proceeding on Elysian Fields with the purpose of making a “U” turn at that same intersection. She was in her proper lane, the left hand lane, and there is no evidence that she was speeding or disregarding any traffic rules. Instead, it is contended that she is somehow negligent because her testimony does not coincide with the testimony of Sims, but conflicts in some ways, particularly as to how each arrived at the intersection. It is obvious that the trial judge resolved these conflicts in favor of Mrs. Rond and disbelieved at least those conflicting portions of Sims’ testimony. We agree with this determination. The testimony of Mrs. Rond corresponds to the physical facts of the accident, and except for some conflict with Sims, there is no apparent reason to disbelieve her. Defendants contend that, because she did not produce as witnesses two 12-year old children who were passengers in her car, and who at the time of trial lived in Florien, Louisiana, 236 miles away, she should be assessed with the presumption that these witnesses would testify adversely to her cause. There is nothing in the record to indicate that these children would possess some peculiar knowledge not possessed by any of the other witnesses, and there is not even a suggestion that they actually observed the initial facts of the accident. We find no basis upon which to impose such a presumption.

The trial court awarded Mrs. Rond $12,-000.00 general damages for her injuries, and the propriety of this award is questioned by appellants as being too high and by Mrs. Rond as being too low. The accident happened on July 25, 1974, and on the next day Mrs. Rond went to the emergency room of the St. Bernard Medical Center because of the severe pain she suffered generally in her back and neck area. She was treated with drugs and diathermy, and not obtaining relief from her symptoms, she placed herself under the care of Dr. Lucas DiLeo on August 6, 1974. He noted that she was suffering pain throughout the lumbar and cervical spine areas and occipital headaches. He determined that she had bilateral muscle spasm in the cervical area and in the lumbosacral area, which he classified as moderate on the right and moderate to severe on the left. Dr. DiLeo saw her weekly, gave her injections of Decadron and muscle relaxants, and referred her for physical therapy treatments. Despite his treatment she was not improving, and he referred her to Dr. Kenneth Vogel, a neurosurgeon, on October 1, 1974. Dr. Vogel confirmed that she did indeed have severe problems in the cervical and lumbosacral areas. Dr. DiLeo continued to treat her in consultation with Dr. Vogel, through November 15, 1974, at which time Mrs. Rond’s husband was transferred to Florien, Louisiana, and she accompanied him.

She continued to receive treatment for her ailments in Florien, but they were unsuccessful, and Mrs. Rond came to the New Orleans area to receive treatment from Dr. John E. Lindner, who hospitalized her at Montelepre Hospital in July, 1975. Dr. Vo-gel was called in for consultation again at that time and a myelogram was done on her lower back. Despite a negative myelogram she continued to exhibit objective symptoms and the doctors concluded that she should undergo a cervical discogram to assist diagnosing the problem. However, Mrs. Rond refused that due to the pain and was subsequently discharged from the hospital. Nevertheless, the doctors concluded that Mrs. Rond still had severe problems and would continue to have them for some time undetermined.

The trial judge awarded $12,000.00 for Mrs. Rond’s injuries, pain and suffering and we cannot say that the award is excessive or inadequate. The trial judge is vested with much discretion in making an award of this type, and the degree of pain and suffering, together with the exhibition of objective symptoms, forms a basis for the award which we do not feel we should disturb.

The last issues in this case involve the award of special damages to Mr. Rond. Mr. Rond was paid the sum of $2,363.13 for property damage to his automobile by his own insurance company, Hartford Insurance Company. His judgment included this sum. It is defendant’s contention that since Rond subrogated his property claim to the Hartford Insurance Company he could not bring this suit for those damages and stand in judgment.

Ordinarily, a subrogor has no right of action for the right or that portion of the right which has been subrogated away, Code of Civil Procedure, Article 697, the subrogee being the only one who could sue for the subrogated right. Smith v. Foueha, 172 So.2d 318 (La.App. 4th Cir. 1965). But our case goes beyond this. After the subro-gation, Hartford had assigned the subrogation claim back to Rond, and Rond testified that he was bringing this suit for the subro-gated amount on behalf of Hartford as assignor. This was substantiated by an agent of Hartford.

An assignment is a valid transfer of rights, L.R.S. 9:3051, L.C.C. Article 2642, and may be done orally, Dale, Inc. v. Killi- lea, 94 So.2d 146 (Orl.La.App.1957); L.R.S. 9:3101. Such a transfer of the subrogated right back to Rond would enable him to recover as he is then the owner of the cause or right of action. Forcum-James Company, Inc. v. Duke Transportation Company, 231 La. 953, 93 So.2d 228 (1957). An oral assignment must be proved like any other fact, and the positive testimony of both Rond and the Hartford agent that this assignment was in fact made is not contradicted. As the trial judge awarded the full amount of property damages to Rond, he must have taken the assignment as proven. We find no error in this determination.

Finally, defendants complain of the award of two gasoline purchases, one-night motel expenses, and $122.00 in hospital charges which they conclude were unnecessary to Mrs. Rond’s treatment. These charges are occasioned as a result of the Fourth of July occurring during Mrs. Rond’s stay in the hospital at New Orleans during July, 1975, when she lived in Florien. We think the charges to be proper, and affirm.

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

AFFIRMED.

LEMMON, Judge,

dissents in part and assigns reasons.

I disagree that Mr. Rond can recover the amount of property damage he was paid by his collision insurer.

The collision insurer’s claims supervisor testified that she authorized Rond to sue for the amount of property damage to which the insurer was subrogated (p. 64), but did not state the date the agency was authorized. Rond’s attorney, while examining him on this point (p. 204), indicated that she had relayed this authorization to him. And a letter from the collision insurer to Rond’s attorney (Exhibit D-8) indicates this authorization occurred on June 9, 1976, over a year after the July 25, 1974 accident and also well after the April 2,1975 petition claiming the entire amount of property damage.

Rond has no cause of action to recover this item. Defendant insurer’s representative testified that it belonged to the same arbitration group as Rond’s collision insurer and that the companies in that group had contracted to submit to arbitration all automobile property damage subrogation claims of less than $2,500.00. The collision insurer did not deny this testimony. Since Rond’s rights under the belated agency authorization (if valid) are subject to defenses applicable to the collision insurer, the exception of no cause of action should be maintained.

      . This was an agency, not an assignment. Rond testified that he did not purchase the insurer’s rights, but that the insurer authorized him to sue for its claim.

      . The collision insurer paid Rond for the property damage in August and November, 1974.

      . Rond did not allege any agency to sue for the insurer’s subrogation payment, and defendant filed exceptions of no cause of action, no right of action, and failure to include an indispensable party-plaintiff. Subsequently, another exception of no right of action was filed, superficially alleging Rond had no right to sue for this item. The record contains no judgment on the exceptions.
      Therefore, when Rond filed this suit, he had no right of action for the subrogated property damage and was not then authorized to assert the collision insurer’s right. By belatedly authorizing Rond, the collision insurer obviously tried to avoid the effect of prescription and did not allow defendant insurer an opportunity to assert that exception, which specifically is not before us. However, the exception of no right of action should, in my opinion, also be maintained under these circumstances, or at the very least this part of the claim should be remanded to allow defendant insurer to assert prescription against the real party at interest.


source: Caselaw Access Project

author: LEMMON, Judge.

license: Public Domain

text:
    Peter C. AGNELLY v. LIBERTY MUTUAL INSURANCE CO., et al.
    No. 8586.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.
    Rehearing Denied March 14, 1978.
    Adelaide Baudier, Metairie, for plaintiff-appellee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John C. Combe, Jr., New Orleans, for defendants-appellants.
    Before LEMMON, GULOTTA and BEER, JJ.
   LEMMON, Judge.

In this appeal from a judgment awarding plaintiff workmen’s compensation benefits for total and permanent disability, defendants question the sufficiency of proof as to (1) whether plaintiff’s allegedly disabling headaches are causally connected to the work-related accident and (2) whether the headaches are in fact disabling.

On October 3, 1974 plaintiff, who had worked for defendant-employer as a printing press operator for fourteen years, sustained a fractured ankle in a company softball game and underwent surgery. The morning after surgery he began suffering headaches caused by the spinal anesthesia.

When plaintiff’s complaints of headaches continued for several weeks, the orthopedic surgeon referred plaintiff to a neurosurgeon, who examined plaintiff twice in November. The neurosurgeon concluded that the headaches, as of that time, were not spinal headaches, because they did not follow the characteristic pattern of pain upon standing or sitting and relief upon lying down and because spinal headaches always abate after a few days or at most a few weeks. He also ruled out tension headaches of psychological origin, because these occur under pressure which builds up during the day and not upon arising in the morning, which was the time plaintiff stated his headaches were the worst. The doctor opined at trial that headaches experienced after waking up in the morning or after sudden movement such as extension of the neck are suggestive of upper cervical arthritis or of entrapment of suboccipital nerves. When neurological testing yielded normal results, he referred plaintiff to Dr. Gregory Ferris, a neurologist who specialized in treating headaches of non-surgical origin.

In the meantime plaintiff had recovered completely and uneventfully from the ankle injury and returned to work on January 2, 1975, first on light duty and then to his regular duties.

In February, 1975 Dr. Ferris examined plaintiff and found limitation of neck motion and muscular tightness, which he attributed to cervical arthritis revealed by X-rays. He opined that spasm, indicated by spine curvature on the X-rays, caused the headaches, particularly in view of plaintiff’s statements to him that the headaches occurred mainly after sudden movements or after periods of work in awkward positions. The doctor theorized that when the spinal anesthesia headaches subsided, plaintiff was wary of minor symptoms, and upon his return to work paid unusual attention to otherwise unnoteworthy aches and pains. Upon cross-examination Dr. Ferris conceded the difficulty of distinguishing arthritic headaches from tension headaches, because of the common factor of muscle spasm, and stated he would accept a conclusion based on psychological testing that plaintiff had tension headaches. He noted, however, that both types of headaches could exist at the same time.

In July, 1975 plaintiff consulted Dr. Patricia Cook, a neurologist, who opined that the headaches were not of organic origin, but were due to chronic tension and anxiety with pain caused by muscle contraction in the neck. However, she had not taken or examined X-rays and was unaware of any evidence of arthritis, and she admitted headaches upon awaking in the morning were more likely attributable to cervical arthritis. At trial she related the headaches to the accident, postulating that as the spinal headaches subsided plaintiff became more anxious about his physical condition and his future, causing tension and continuing headaches. Asked about disability, Dr. Cook observed that plaintiff had been working and should continue to do so. She referred plaintiff to a psychologist for testing and treatment.

The psychologist, after testing and therapy which began in October, 1975, concluded that plaintiff’s “personality picture was very compatible with the symptomatology of the tension headaches plus a variety of other symptoms in terms of agitation and depression that were concurrent with it and weren’t part of the main referring concern of the neurologist”. The psychologist observed that plaintiff’s longstanding concern with being dominated and treated unfairly and his resulting anxiety, tenseness and nervousness were not primarily neurotic (of a functional disorder), but were more in the nature of character disorders.

With the therapy plaintiff’s complaints to the psychologist went from chronic daily intense headaches to very infrequent mild headaches by January, 1976, although plaintiff began to complain again of intense headaches just before the October, 1976 trial. However, at trial plaintiff testified that he had not gotten up in the morning without a headache since surgery, and his wife stated that he had not had one day without headaches in the two years between the accident and the trial.

As to causation, plaintiff initially developed disabling headaches which were caused by the anesthesia necessitated by the accident. However, this suit is not based on the headaches immediately following surgery (all experts agreed that the spinal anesthesia headache subsided in a few weeks), but on headaches of disputed origin which apparently began as the spinal headaches were subsiding.

Every wage earner who is injured and temporarily disabled for employment because anxious about his future as family provider. Especially if he is predisposed, he may develop tension headaches or other forms of stress or compensation anxiety in some degree.

In the present case plaintiff presented evidence supporting the psychological origin of these headaches. Moreover, arthritic headaches are not relieved by psychotherapy. Since reasonable men could have drawn different conclusions from this evidence, we cannot say that the trial judge erred in concluding these headaches resulted at least in part from anxiety brought on by the accident.

Nevertheless, while plaintiff’s anxiety was perhaps proved to be causally related to the accident (in the sense that any accident causes anxiety, which may be the basis for damages in tort), anxiety and related headaches, as such, are not a basis for an award of compensation benefits unless there is proof of disability produced by the anxiety.

Not one doctor described plaintiffs headaches as disabling. Dr. Cook and the psychologist both recommended continuation of work, even overtime if available. And plaintiff did in fact continue working from his January, 1975 discharge after surgery until the November, 1976 trial. Since loss of earning capacity underlies all definitions of legal disability, this evidence indicates the headaches were non-disabling.

As to loss of earning capacity considered in terms of a person’s being obliged to work in pain, plaintiff presented lay testimony that he complained of headaches at work, but presented no medical evidence to support a conclusion that the headaches would cause such substantial pain as to be deemed disabling. Moreover, the lay testimony by plaintiff, his wife, and his co-workers was contradicted by plaintiff’s own statements to the psychologist.

We conclude that this record does not support the conclusion that the headaches prevent plaintiff from performing substantially all of the duties required of him before the injury or that the performance of these duties because of economic necessity required him to work in such substantial pain as to be considered totally disabled.

For these reasons the judgment of the trial court is reversed, and it is now ordered that plaintiff’s suit be dismissed.

REVERSED AND RENDERED.

      . The parties stipulated that plaintiff had a 15% permanent partial disability of the ankle as a result of the accident.
      Defendant paid $2,635.00 in compensation benefits and $2,080.25 in medical expenses.

      . We express doubt about the causal relationship. We note that the psychologist attributed the unusual anxiety more to personality disorder than to traumatic neurosis, but we concede that predisposition is one of the most difficult conceptual issues in the usual traumatic neurosis case.


author: BOUTALL, Judge.

text:
    LOUISIANA POWER & LIGHT COMPANY v. Clyde V. BOURGEOIS, Jr.
    No. 8660.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.

      Monroe & Lemann, Andrew P. Carter, Eugene G. Taggart, New Orleans, J. Wayne Anderson, Metairie, for Louisiana Power & Light Co., plaintiff-appellant.
    White, Fray & White, Robert H. Fray, Gretna, for Clyde V. Bourgeois, Jr., defendant-appellee.
    Before BOUTALL, SCHOTT and GAR-SAUD, JJ.
   BOUTALL, Judge.

Louisiana Power & Light Company sued a residential customer, Clyde V. Bourgeois, Jr. for additional electric service furnished, but not billed and paid for, allegedly as a result of certain meter tampering devices on the customer’s meter. The customer reconvened for damages as a result of termination of his electrical service. The trial court dismissed both the original demand and the reconventional demand, and only Louisiana Power & Light has appealed.

In a routine area check, employees of Louisiana Power & Light examined the meter installation at the Bourgeois home and found two devices installed within the meter box, both of which enabled the customer to use electricity without paying for the entire amount used. There is no proof that Bourgeois installed, or caused the installation of, these devices although the meter is located on the wall of his residence in a fence-enclosed area and he is the sole beneficiary of the electrical service. The suit is couched in the terms that the service contract between the parties provided that the consumer should pay for all the electricity used, and the consumer only paid for a portion of the electricity used, this demand being for the balance due.

The facts in this case show unquestionably that Louisiana Power & Light is entitled to recover, and that only the amount of the recovery is in dispute. The facts are that the house was a new house built by Bourgeois and that the meter was installed in July, 1973 at the end of construction. The employee who installed the meter testified that at that time.it was free of any tampering devices. The house was occupied by Bourgeois and has been occupied by him ever since down through the discovery of the devices on April 1, 1975. As noted above, the meter is in a place not freely accessible to any casual passerby, and indeed the devices are such that they must have been intentionally placed therein. The only beneficiary of the diverted electricity was Mr. Bourgeois. The service agreement entered into evidence provides that the consumer is required to pay for all of the electricity used.

It is apparent in this case that he did not pay for what electricity was used and he cannot disclaim responsibility for the unme-tered electricity being used in his premises where he was the sole beneficiary of the unmetered current.

The problem in this case is the establishment of the amount of unmetered electricity used. The trial judge recognized this problem in his detailed written reasons for judgment and summed it up as follows:

“Therefore, the Court is unable, from the evidence adduced, to arrive at any reasonable amount that may be due said utility company. The reasons are obvious. The plaintiff, through its own admissions, cannot by any reasonable degree of certainty determine when said tampering devices were installed. As far as the Court is concerned they could have been installed as early as July, 1973, prior thereto, or as late as April, 1976. Further, the Court is not impressed with the basis upon which plaintiff seeks to prove that said tampering devices were installed one year prior to discovery, i. e., by fluctuations in billing history, particularly in view of the fact that Mr. Bennet testified, upon cross-examination, that he has viewed billing histories of customers of plaintiff on numerous occasions and that fluctuations such as those of Bourgeois has been noticed in those particular accounts in the absence of meter tampering.”

While we agree in general with the observations of the trial judge, we are of the opinion that he imposed too strict a burden of proof upon plaintiff. The evidence presented does not prove conclusively entitlement to the amount of damages sought, but in this type of case it is only required that the damages be proven with a legal certainty dependent upon the facts in each individual case as it arises. Jolley Elevator Company v. Schwegmann Bros. Giant Supermarkets, 230 So.2d 640 (La.App. 4th Cir. 1970). Louisiana Civil Code Article 1934 which provides the measure of damages for breach of contract recognizes in sub-section 3 that there are cases in which the damages may not be able to be precisely measured and has granted to the judge discretion for the fixing of such damages. Certainly it was contemplated by the parties at the time of entrance into the electric service agreement that the customer would pay for all of the electricity used.

In assessing the amount of electricity used and not paid for in this case, the utility offered proof that the meter did not have any diversion devices on it when installed in July 1973, and that two devices were found in the meter assembly on April 1, 1975. The devices were removed April 16, 1975. There can be no question as to the operation of the devices from April 1 to April 16, but when prior to April 1, 1975, and after July, 1973 were they installed? In answer to this question plaintiff offered the testimony of district representative Eugene Bennett, who examined the billing history of Mr. Bourgeois and, based upon his general knowledge and the particular fluctuations in the Bourgeois bills, concluded that one device, the screw type by-pass, was installed in the October-November period for service billed to November 13,1973. He concluded the other device, the wire “jumpers”, was installed during the October-November period for service billed to November 14, 1974. We would agree with the trial judge that this evidence standing alone does not constitute sufficient proof to show installation. However we think the testimony of Mr. Bourgeois furnishes the necessary proof. His explanation of the devices was that he knew nothing of their installation except that at the completion of his building he was aware that some problem had arisen with the acceptance of the electrical service with the Parish Inspectors and there were jumpers installed in the meter at that time. The inference from his testimony is that those devices were never removed from the meter.

We conclude that there is sufficient evidence to show the defendant did breach his contract to pay for all electrical service furnished. In this case the measure of damages is the amount of electricity unpaid. As stated in the case of North American Contracting Corp. v. Gibson, 327 So.2d 444 (La.App. 3rd Cir. 1975):

“In general then, the measure of damages for breach of a contract is the sum that will place plaintiff in the same position as if the obligation had been fulfilled. Harelson v. Parish of East Baton Rouge, 272 So.2d 382 (La.App. 1st Cir. 1972). The amount of damages must, however, be determined in relation to the contract and the circumstances which surround it. Jolley Elevator Company v. Schwegmann Bros. Giant Supermarkets, 230 So.2d 640 (La.App. 4th Cir. 1970).”

Plaintiff however, does not seek compensation for the diverted electricity from the time that it concluded the devices were installed. Instead it seeks an amount equivalent to the amount that defendant was actually billed during the one year period prior to April, 1975. It explained that the purpose in so billing was because the screw device had diverted 44.35% of the current used from the time of its installation and that the wire jumper device diverted all of the current used by any appliances hooked upon that line. It concluded that with the length of time involved and the amount of diversion, this compromise would be fair to the customer. We cannot approve this assessment of the amount of electricity used.

We note that the only appliance shown to be drawing current on the wire jumper line which did not register in the meter was the air-conditioner. Plaintiff concludes that that was installed in the period October-November, 1974. The billing period ended April 1975. Defendant testified that during this period he spent only a part of his time at home, ordinarily being away at his camp three or four days a week. This is the cold part of the year and a simple statement that an air conditioner would use $10 to $15 electricity per ton per month is not probative. There is no evidence as to how much the air conditioner was used during this period. We agree with the trial judge that to attempt to fix this amount would be speculation.

However, the screw type tampering device is another matter. This type of meter is so constructed that, to facilitate service on the meter, and to continue to provide electricity to the customer while the meter is being serviced, screws may be inserted into the meter in such a way as to provide a continuous circuit while the meter itself is being dismantled. The diversion of current in this fashion on this type of meter is precisely measured at 44.35% of the amount that would ordinarily pass completely through the meter itself. The billing during this period was $412.30, which represents 55.65% of the total amount of electricity used. By mathematical equation, 44.35% of the total used amounts to $328.58.

For the above reasons, we reverse the judgment appealed and now render judgment in favor of plaintiff, Louisiana Power and Light Company, and against defendant, Clyde V. Bourgeois, Jr., in the sum of J5328.58 with legal interest from date of this judgment until paid. Each party to bear his own costs.

REVERSED AND RENDERED.

      . To install either device requires opening a sealed meter cover and fixing the device with tools and equipment. The jumper cables are attached in the meter box and run through conduit into the building to service electrical equipment.


text:
    Emily Louise CASE, Administratrix of the Succession of Joseph Rodney Morvant, v. RELIANCE INSURANCE COMPANIES. Mrs. Jeanette SANCHEZ v. RELIANCE INSURANCE COMPANY.
    Nos. 8698 and 8699.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.
    Rehearings Denied March 14, 1978.
    Writ Refused May 5, 1978.
    Martzell & Montero, Charles W. Dittmer, Jr., New Orleans, for Jeanette Sanchez, plaintiff s-appellees.
    Francis G. Weller of Deutsch, Kerrigan & Stiles, New Orleans, for Reliance Ins. Co., defendant-appellant.
    E. Gordon Schaefer, Jr. of Windhorst, Heisler, De Laup & Wysocki, New Orleans, for Emily Louise Case, plaintiff-appellee.
    Before BOUTALL, SCHOTT and GAR-SAUD, JJ.
   BOUTALL, Judge.

These are suits by beneficiaries of decedents Floyd Sanchez and Joseph Morvant on a policy of group accident insurance issued by Reliance Insurance Co. for benefits due them. The trial court rendered judgment for the plaintiffs, granting them the benefits plus statutory penalties and attorney’s fees for arbitrary failure of the insurance company to remit. The insurance company appeals.

The facts were all stipulated prior to trial, and the questions presented to us consist of (1) coverage under the terms of the policy and (2) the award of statutory penalties and attorney’s fees.

On April 3, 1975 Avondale Shipyards had occasion to inspect one of their floating dry docks in the Mississippi River which had been damaged by collision the previous day. The inspection party of six men, including decedents Floyd Sanchez and Joseph Mor-vant, boarded the MV BESTA LOU at Avondale’s dock with Mr. Sanchez piloting. They travelled 1000 feet upstream to the upriver end of the dry dock. The boat was allowed to drift downstream slowly with power on against the current, so that the boat could hold its position in the river as inspections were made. The plan was to inspect the dry dock and thereafter inspect the barge RICHMOND moored at Avon-dale’s dock some 300 yards downstream, and then tie up directly downstream to the portside of the barge UM-906, which was the outboard of a two-barge tier lashed to the S.S. PACIFIC BEAR, also moored at Avondale’s dock. Several other barges were also lashed alongside the S.S. PACIFIC BEAR behind the UM-906.

As Mr. Sanchez allowed the boat to drift around to the side of the barge, the wind and current pushed the MV BESTA LOU towards the raked bow of the UM-906. Despite the evasive maneuvers of Mr. Sanchez, MV BESTA LOU’s stern struck under the bow rake of the UM-906 and the strong current then pivoted the boat downwards. The starboard gunwale submerged and the MV BESTA LOU capsized.

Mr. Sanchez shouted for everyone to jump clear as the boat went under. One man, Round, jumped to safety onto the bow of the UM-906. The other five men were swept along with the boat under the UM-906, came up, and were then swept under the second tier of moored barges. Four men emerged, only to be swept beneath a third tier of barges. Only one survived, Mr. Robert Oehmichem. Mr. Morvant’s body was recovered from the river along with the bodies of two others. Mr. Sanchez’s body was recovered downriver some 52 days later. The MV BESTA LOU was seen being swept downriver but has never been found.

The policy in question was issued by Reliance Insurance Co. to Avondale Shipyards, insuring Avondale’s employees against specified losses, including accidental bodily injury and death arising from certain hazards described therein. The operative clause in the present case provides benefits for loss of life as follows:

“The hazards against which insurance is granted under this Policy are all those to which an Insured may be exposed during travel and sojourn on the business of the Policyholder, provided such travel is to a point or points located away from the premises of the Policyholder in the city of permanent assignment. The following shall specifically qualify the above:
“(a) Coverage begins at the actual start of an anticipated trip whether it be from an Insured’s place of employment, his home or other location. Coverages terminate upon his return to his home or place of employment, whichever shall first occur.
“(b) Commutation travel is excluded from coverage, except for interplant travel not part of the Insured’s normal daily routine;”********

Appellants argue that at all times the decedents were on the premises of their employer, Avondale Shipyards, citing many workmen’s compensation cases which expand the limitations of employer’s “premises”. Appellees argue with equal fervor that at the time of the casualty, they were in the Mississippi River which is not part of Avondale’s premises.

The language of the policy is clear. Coverage only occurs when an Avondale employee is (1) on travel and sojourn; (2) on Avondale’s business; (3) to a point located away from Avondale’s premises. Once this threefold condition is met, then under subsection (a) coverage would begin as soon as the employee crosses Avondale’s threshold.

Both parties stipulated that the second condition was met.

In order to apply the facts of this case to the terms of the policy, we turn to Webster’s Third New International Dictionary, 1971 Ed. for definitions of the words used in the policy clause:

“Travel” on page 2432 is defined as “to go or proceed on or as if on a trip or tour” and as a noun on page 2433 is defined as “the act of travelling . . ” and “a journey esp. to a distant or unfamiliar place”.
“Sojourn” has only one meaning. On page 2166 we find as a noun it is “a temporary stay” and on page 2167 as a verb it is “to stay as a temporary resident”.

These two words are joined by the conjunctive “and”.

The testimony of the two survivors at the U.S. Coast Guard investigation is in the record by joint stipulation and gives us the purpose of the trip. This was to travel alongside the dry dock and the barge “RICHMOND” in order to inspect them, and to return to or near the point of embarkation at Avondale. There is no evidence of any intended “stay” of any duration at any place.

“Away” is defined, again in Webster’s New Third International, on page 152 as an adverb indicating “from this or that place”, “from contact of close association”, and again “at a little distance”.

From this it can be seen that under the policy terms, the “travel and sojourn” to a point “away from the premises” does not contemplate movement within or alongside of these premises. The point travelled to must be away from, or a distance from, these premises. It cannot be contiguous with the premises for coverage to apply.

Without deciding whether parts of the Mississippi River form part of Avon-dale’s premises, it is obvious that the dry dock, as well as the barges, such as the “RICHMOND” and “UM-906” moored to Avondale’s dock, are definitely so, forming part of Avondale’s work area and jobs to be worked on. This is necessary from the nature of Avondale’s business as a shipyard.

The route of the MV BESTA LOU was at all times alongside these premises. Although not physically in contact with the dry dock and various barges, it cannot logically be said to have been travelling to a point away from them, since the very purpose of the episode was to go alongside in order to inspect them. Reading the policy clauses together as a whole, it seems clear that the hazards to be covered are those in the nature of a business trip away from the premises or at least travel of some extent to a point some distance removed, contemplating a stay of some duration. Under the facts herein, a trip of some 1000 feet which, considering Avondale’s “premises”, arguen-do, in its most restricted limits, was at all times immediately adjacent to those premises, does not meet the first and third conditions of policy coverage.

We can find no ambiguities in the policy terms as relating to the present facts, and we have no authority to alter the unambiguous terms of a policy, which is a contract between the parties. Monteleone v. American Employers Insurance, 239 La. 773, 120 So.2d 70 (1960).

One additional argument raised by appel-lees’ counsel in their supplemental brief arises under subsection (b) of the quoted policy provisions as “interplant travel”.

Appellees contend that the effect of the inclusion of the interplant travel provision is to cause an ambiguity because inter-plant travel is not a sojourn. However, interplant travel is to be considered in connection with the exclusion of commutation travel and both together specifically qualify the general hazards coverage. Primarily, we do not see any ambiguity in the provisions referred to. Additionally the travel herein is not interplant travel.

The stipulation entered into by all parties is “That Avondale Shipyards operates a plant in Avondale, one in Westwego, one in Waggaman, three in Harvey, and one in Morgan City”. There is no indication in the record that the MC BESTA LOU was engaged in interplant travel, but on the contrary the decedents embarked and were to disembark from the Avondale La. plant which extends some distance along the bank of the Mississippi River in both directions from these points.

Accordingly, we find no policy coverage entitling plaintiffs to the benefits awarded. For this reason, it is unnecessary for us to discuss the second question presented to us, that of award of the statutory penalties and attorneys’ fees.

Accordingly, the judgments are reversed and plaintiff’s claims are dismissed.

REVERSED.


author: STOULIG, Judge. REDMANN, Judge, LEMMON, Judge,

text:
    TANO CORPORATION, Melvin Goldstein and Fran Goldstein v. LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY, formerly d/b/a Louisiana Hospital Service, Inc., d/b/a Blue Cross of Louisiana, and Phil J. Muscarello.
    No. 8720.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.
    Rehearing Denied March 14, 1978.
    Stahl & Berke, Alan L. Offner, New Orleans, for plaintiffs-appellees.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Harry S. Hardin, III, G. Bruce Kuehne, New Orleans, for defendants-appellees.
    Before REDMANN, LEMMON and STOULIG, JJ.
   STOULIG, Judge.

Plaintiffs, Tano Corporation (Tano); Melvin Goldstein; and Fran Goldstein, have appealed a judgment dismissing the tort aspect of their claim against defendant Louisiana Health Service & Indemnity Company, formerly doing business as Louisiana Hospital Service, Inc., doing business as Blue Cross of Louisiana (Blue Cross), on an exception of no cause of action.

In their petition plaintiffs seek payment of medical benefits under a group health insurance policy issued by Blue Cross to cover employees of Taño and their dependents. Coverage was denied because the insured Fran Goldstein had been hospitalized and was being treated for mental illness when the insurance became effective.

Although the contract excludes coverage under such circumstance, plaintiffs alleged the insurer’s agent Muscarello sold coverage based on assurances that all “pre-existing conditions and waiting periods were waived.” In addition to the demand on the contract the claim for $25,000 deleted by the trial court’s judgment on the exception is set forth in the following allegations:

“XIII
“In addition to the contractual liability set forth hereinabove, the defendants, BLUE CROSS and MUSCARELLO, are liable for their false representations and/or negligence in making representations which they knew or should have known were incorrect, that is, in representing that there was no exclusion for employees or their dependents notwithstanding the existence of pre-existing conditions whether or not requiring hospitalization.
“XIV
“The measure of damages for the negligence of the said defendant is the amount which GOLDSTEIN and FRAN would have recovered had the policy been issued as represented together with damages for inconvenience, embarrassment and mental suffering of $25,000.00.”

The issue before us is whether the quoted allegations set forth a claim, which, if proven, would entitle the Goldsteins to a judgment as a matter of law.

Essentially we are concerned with a suit of a contract where plaintiffs seek to enforce an obligation on the part of the insurer and/or its agent to pay money. Were they to prove alleged fraud or misrepresentations, the net effect would be a judgment reforming the contract to delete the exclusion and to award whatever benefits the policy might provide plus interest. C.C. art. 1935 limits damages due for delay in performance to interest on the unpaid balance when the object of the contract is the payment of money. Bye v. American Income Life Insurance Company, 316 So.2d 164 (La.App. 4th Cir. 1975); Caswell v. Reserve National Insurance Company, 272 So.2d 37 (La.App. 4th Cir. 1973).

Plaintiffs’ argument that an independent C.C. art. 2315 action should be sustained because fraud and misrepresentation are jurisprudentially recognized torts is merit-less. While the general proposition is correct, it must yield to an express stipulation in the code limiting damages to interest where the object of the contract is the payment of money.

Appellants contend in the alternative that the $25,000 might be awarded under C.C. art. 1934(3) in this case because in addition to the payment of money the contract has for its object “intellectual gratification.” We quote the language upon which this argument is advanced:

“Although the general rule is, that damages are the amount of the loss the creditor has sustained, or of the gain of which he has been deprived, yet there are cases in which damages may be assessed without calculating altogether on the pecuniary loss, or the privation of pecuniary gain to the party. Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are due for their breach; a contract for a religious or charitable foundation, a promise of marriage, or an engagement for a work of some of the fine arts, are objects and examples of this rule.” C.C. art. 1934(3).

Plaintiffs reason that the purchase of medical insurance also has for its object “intellectual gratification” as well as the payment of money, because knowledge that high medical costs are covered by insurance produces “mental tranquility.” The examples set forth in the quoted language demonstrate the article is inapplicable to this case. Plaintiffs’ argument could apply to almost any contract situation because the purpose of entering into an agreement is generally to fulfill a need or desire. As to the insurance company, the obligation is simply a duty to pay money if the conditions of the policy are met.

Plaintiffs rely on Jiles v. Venus Community Center Benev. Mut. Aid Ass’n, 191 La. 803, 186 So. 342 (1939), wherein the Court awarded the parents of a deceased child money for mental anguish because the defendant failed to meet its obligation to render medical service although properly notified. The case does not discuss under what statutory authority the damages were imposed, but it is distinguishable because the breached obligations was for furnishing medical service and not the payment of money.

For the reasons assigned the judgment appealed from is affirmed.

AFFIRMED.

REDMANN, J., dissents with written reasons.

LEMMON, J., concurs with written reasons.

REDMANN, Judge,

dissenting.

If there were no Supreme Court, efficiency in the administration of justice would be little more disserved by our affirming a judgment procedurally incorrect but substantively unharmful than by voting two-to-one to reverse it and therefore having to convoke a five-judge court for reargument of this appeal. Given the trial judge’s ruling, affirming would be a matter of convenience, not of conscience: we would deny plaintiff no substantive right.

However, by approving the trial judge’s having inadvertently made more work for himself, we probably also make work for ourselves and for the already-overburdened Supreme Court as well. The ruling appealed from required an extra appeal, and similar rulings in the future will require other extra appeals.

The trial judge and we depart from established procedural concepts by holding that non-entitlement to one element of damages means, in some way, that plaintiff has no cause of action. Presumably an application for writs is more likely after a decision expressly in conflict with the Supreme Court's own decisions. And presumably the Supreme Court feels obliged to consider at greater length an application from a decision expressly conflicting with its own decisions.

Our decision should therefore be to reverse the judgment appealed from.

LEMMON, Judge,

concurs and assigns reasons.

I concur in the result. A party cannot recover damages for humiliation and mental anguish incurred when an insurance company denies benefits under a contract, even if the denial resulted from fraud or misrepresentation at the inception of the contract, unless there are allegations or evidence of intentional infliction of mental anguish, as in the Jiles case. There is a penalty statute in the insurance code for failing without justification to pay a claim on an insurance policy.

However, I would prefer to apply a long-established, court-adopted rule of procedure and not reach this issue, except that application of the procedural rule would require reversal of the judgment and would result in sending this'matter to a five-judge panel when the members of the three-judge panel are unanimous as to the merits of the legal issue. I therefore limit my vote to the merits of the case and state my observations as to the procedural rule in a concurring opinion.

The appellate courts of this state have long adhered to the rule that when a petition states a cause of action as to any ground or portion of the demand on a cause of action based on a particular set of facts, the exception of no cause of action should be overruled in order to prevent a multiplicity of appeals based on that set of facts. Sifers v. Exxon Corp., 338 So.2d 763 (La. App. 4th Cir. 1976); Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La.1975); Louisiana & Ark. Ry. v. Goslin, 258 La. 530, 246 So.2d 852 (1971); Burns v. Genovese, 254 La. 237, 223 So.2d 160 (1969); Little v. Haik, 246 La. 121, 163 So.2d 558 (1964); Elliott v. Dupuy, 242 La. 173, 135 So.2d 54 (1961); and United Mine Workers v. Arkansas Oak Flooring Co., 238 La. 108, 113 So.2d 899 (1959).

The ruling of the trial court by final judgment creates appellate jurisdiction as to only part of plaintiffs’ cause of action and forces this court to consider the merits of the present case in a piecemeal fashion. Significantly, the ruling has not ended the litigation in the trial court and has possibly delayed that litigation.

The preferable procedure would have been to overrule the exception and to admit evidence of humiliation and mental anguish only by means of a proffer. Then, after completion of the trial on the merits, the appeal, if any appeal is ever taken, would present all issues at one time.

The procedure used here requires at least one extra appeal and accomplishes nothing at the trial level except possible delay. Such procedure should be discouraged.

      . The exception of no cause of action and alternatively motion to strike filed on behalf of the defendant Phil J. Muscarello were overruled.

      . I would, of course, not shy away from an issue of substance in order to avoid a five-judge panel.


author: GARSAUD, Judge.

text:
    Roma and Joseph QUARTANA v. David W. JENKS, Mrs. Romayne Jenks, Mrs. Pat Farley and Progressive Arts, Inc.
    No. 8732.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.
    Rehearing Denied March 14, 1978.

      Hammett, Leake, Hammett, Hulse & Nelson, W. Paul Andersson, New Orleans, for plaintiffs-appellees.
    Tooley, Gardner & Waldmann, John F. Tooley, Jr., Gretna, for defendants-appellants.
    Before BOUTALL, SCHOTT and GAR-SAUD, JJ.
   GARSAUD, Judge.

This is an appeal from a summary judgment in favor of plaintiffs granted on their claim as holders of a promissory note. The note was executed by Progressive Arts, Inc. and all parties to this lawsuit as co-obligors. Plaintiffs and defendants were sole shareholders of Progressive Arts and their agreement to be bound as solidary debtors was a requirement of the lending institution. A loan of $26,000.00, for which this demand note was given secured by a collateral mortgage, was made to the parties by the First Metropolitan Bank of Metairie to provide funds for the operation of the Beef and Bottle Restaurant. For these purposes, it is sufficient to say that the restaurant did not succeed. Consequently, after making only a few payments, the parties defaulted on their obligation on the note. A formal demand letter was sent by Metropolitan to each of them. Subsequently the plaintiffs “purchased” the note from the Metropolitan under the following endorsement:

“For value received without recourse or warranty of any nature whatever, the undersigned transfers to Joseph and Roma Quartana all of its right, title and interest in and to the within note and any security held in connection therewith.
FIRST METROPOLITAN BANK,
Bv: /s/ [illegible! ”

The plaintiffs originally brought suit by executory process to enforce the note and collateral mortgage. The judicial sale was enjoined by the defendants and the petition was amended to proceed against the corporate defendant alone, reserving the right to proceed for a deficiency judgment against the individual defendants should the proceeds of the sale of the civil sheriff not be sufficient to satisfy the claim. The proceeds of the judicial sale totaled two thousand two hundred seventeen and 37/100 ($2,217.37) dollars, which served only as partial satisfaction of plaintiffs’ claim. Plaintiffs then sued to recover from the defendants the remaining indebtedness on the note.

The trial judge granted summary judgment in favor of plaintiffs in the amount of $15,006.49 against the defendants in solido. This amount represented 4/6 of the purchase price of the note ($24,698.00 X 4/e = $16,-465.33) plus 9/2% interest from October 1, 1974 to March 26, 1975, less a credit of $2,217.37 for the proceeds of the judicial sale. Inasmuch as the corporate defendant, Progressive Arts, Inc., was a co-obligor on the note, there were six solidary co-obligors, rather than five as contended by appellants. In addition to the above, the trial judge awarded 9V2% interest from March 26, 1975 until paid, all taxable costs of the proceedings, and 20% attorney’s fees on the aggregate sum of all costs, interest and the original principal indebtedness of $16,465.33.

The defendants/appellants urge the following specifications of error on the part of the trial court:

“(1) Entering summary judgment, in the amount, proportion and extent found, without regard to the issues of fact presented in opposition to the motion and the real defenses specially pleaded by defendants;
“(2) Prematurely entering summary judgment on the main demand when the issues presented by the answer and reconventional demands would reduce or defeat the main demand;
“(3) Refusing oral deposition discovery which could reasonably lead to the discovery of relevant facts essential to the defense of the main demand and the reconventional demand;

“(4) Denying trial by jury.”

Taking up the last point first, the issue of trial by jury has already been appealed by defendants to this court and the Louisiana Supreme Court, and in each of these appeals the ruling of the trial court was upheld. Quartans v. Jenks, 330 So.2d 315 (La.1976). This issue is no longer ap-pealable and is not properly before this court.

On the issue of discovery, the matters which were not allowed to be discovered on oral deposition of plaintiffs concerned what plaintiffs had done with various assets of the corporation that they had acquired at the public sale. The inference is that the Quartanas opened up a new restaurant on the same site and made use of some of the assets and inventory from the former restaurant. Defendants/appellants contend that discovery of these matters is essential to establish some valuation for the corporate assets which might explain the difference in the alleged value of the assets on October 31, 1974 ($32,837.35) and the $2,217.37 received at the judicial sale. The trial court found these matters to be irrelevant to the issue of the summary judgment based on the note alone. These questions may be material for issues presented by the reconventional demand, but not for the suit arising out of the Quartanas’ claim related to the note itself. The amount received at the public sale is relevant, but the use to which the assets are put after sale cannot affect the amount due and owing on the instrument between and among these soli-dary obligors.

The major issue concerns the propriety of the summary judgment. Although summary judgment should be used cautiously, its use is appropriate where there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. Where those factors obtain, it shall be rendered in favor of the moving party. C.C.P. Art. 966. The defendants here argue that their reconventional demand could reduce, defeat or exceed the main demand, thus precluding summary judgment. In order to defeat the motion for summary judgment, the defendants’ re-conventional demand must be directed to the material facts pleaded in support of the motion. Facts, which may incidentally arise in the same context of the facts pleaded in the motion and which fail to put at issue the facts pleaded in the motion are simply not enough to thwart the clear mandate in Article 966 of the Code of Civil Procedure. Although most of defendants’ assertions relate to their claim of conspiracy to defraud defendants on the part of plaintiffs in the operation of the corporate structure, there is, however, one disputed fact surrounding the note itself.

As part of the collateral for the note, Progressive Arts, Inc. assigned its lease to the First Metropolitan Bank on April 8, 1974. Roma Quartana, Pat Farley and Ro-mayne Jenks executed the assignment in their corporate as well as individual capacities. When Mr. and Mrs. Quartana “purchased” the note, however, the Bank re-assigned the lease to them individually and exclusively.

The value of this lease may be available to the other co-debtors of the note as a credit to reduce their liability to the Quar-tanas. This issue of material fact remains to be resolved. A summary judgment was inappropriate, then, in these circumstances. We believe there was a basic error made below, which must be corrected in order for a new trial to proceed on the proper legal principles. This difficulty stems from the award to the plaintiffs of not only the appropriate share of the balance due on the note, but also the award of 9Ví¡% interest for the period of time after the plaintiffs “purchased” the note, as well as the stated 20% attorney’s fees. These awards could have been given only on the presumption that the note was purchased by the plaintiffs rather than paid, and that the transfer of the instrument to them did not extinguish it. This position is contrary to the law. R.S. 7:119(1) and (5) state respectively:

“§ 119. Modes of discharging instrument
A negotiable instrument is discharged:
(1) By payment in due course by or on behalf of the principal debtor;
s(: ‡ * * *
(5) When the principal debtor becomes the holder of the instrument at or after maturity in his own right.”

See also, 11 Am.Jur.2d Bills and Notes § 911 (1963), which states: “[T]he endorsement and delivery of a negotiable promissory note by the payee to one of several joint and several makers after maturity and for valuable consideration completely extinguishes the obligation of the note . . .” (emphasis supplied); also, 10 C.J.S. Bills and Notes, § 449b(l)(a) (1938), wherein it is stated: “[Pjayment in due course of a promissory note by one of several joint makers to the payee or holder extinguishes the instrument and discharges the liability of the other makers thereon” (emphasis supplied), and (b):

“. . . Because payment by one joint maker discharges the instrument, . the joint maker who makes the payment cannot sue his comakers on the note, an assignment or indorsement of it to him by the payee not resuscitating it or vitalizing it in his hands as against his comaker. The remedy of the maker making the payment in such case is to sue for contribution . . . .” (Emphasis supplied.)

Whenever a co-debtor has paid the entire common debt, he has the right to demand contribution from his co-debtors for their virile share. C.C. Art. 2104. “. . . The solidary co-debtor may claim contribution from his co-debtors, only in proportion to the amount which each one of them must contribute to the common debt.”

1 Aubrey & Rau, Civil Law Translations, Obligations, § 298b(4) (1965).

On a new trial, if plaintiffs are found to be entitled to a judgment, then the judgment should be for % of the purchase price of the note ($24,698 X % = $16,-465.33), less a credit of $2,217.37 for the proceeds of the judicial sale and an appropriate credit for the value of the lease, with legal interest from April 10, 1975, the date of the judicial demand, until paid and for all costs. Each of the four co-debtors is only liable for his virile share. Since the note was discharged, the %xh% interest from the date of payment and 20% attorney’s fees provided therein are eliminated.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

      . The principal demand here cannot be tried by jury because it is a suit on an unconditional obligation to pay a specific sum of money. C.C.P. Art. 1733(2). According to C.C.P. Art. 1731 and the comments thereunder, a jury trial is not available on an incidental demand when the principal demand is not triable by jury.

      . R.S. 7:1 et seq. (Negotiable Instruments Law) is applicable, as the note was executed and paid prior to January 1, 1975.


author: REDMANN, Judge.

text:
    J. T. WHEAT v. BOUTTE AUTO SALES.
    No. 8751.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.
    Rehearings Denied March 14, 1978.
    Writ Refused May 5, 1978.

      William Henry Sanders, Jena, Morris G. Becnel, Boutte, for plaintiff-appellee.
    James P. Vial, Leon C. Vial, III, Hahn-ville, for defendant-appellant.
    Before REDMANN, BOUTALL and BEER, JJ.
   REDMANN, Judge.

Defendant used car dealer appeals from a judgment decreeing redhibition of the 1975 sale of a used 1971 Cadillac automobile and awarding to the purchaser $7,511.59 (composed of the $2,870.19 price, $2,500 in damages and $2,000 attorneys’ fees) with interest from judicial demand and an expert’s fee fixed at $100.

We affirm the redhibition but reduce damages to $511.21, attorneys’ fees to $1,000 (including an allowance for part of attorney’s fees for this appeal) and the expert’s fee to $57, and we allow interest on price and damages only, from date of return of the automobile to defendant; see Boudreaux v. Mazda Mtrs. of Am., Inc., La.App. 4 Cir. 1977, 347 So.2d 504.

The expert only charged plaintiff $57 for his travel and time, and plaintiff cannot recover more. The only damages arguably shown were $129.81 expenses of sale (sales tax and license), $141.40 for a windshield and $240 for tires (plaintiff said he had to buy four “sets” in 26,000 miles, during which time we presume he might have expected to buy two sets; and he qualified sets by declaring that only three of the four tires would wear out prematurely: so we conclude he bought six tires, at $40 each, that he should not have had to buy but for the wrecked condition of the automobile). Damages for aggravation, distress and inconvenience are not recoverable; Meador v. Toyota of Jefferson, Inc., La.1976, 332 So.2d 433.

The testimony of plaintiff, corroborated by defendant’s salesman, is that he repeatedly expressed to the salesman that he did not want and would not buy a wrecked automobile, thus establishing that the acquisition of a non-wrecked automobile was his principal motive, communicated to the seller. The salesman told him that this ear had not been wrecked. An expert’s testimony establishes that the car had been badly wrecked, with evidence of damage in many areas of the car. Thus even if the seller’s declaration were made in good faith, redhibition is expressly available under C.C. 2529 (see also C.C. 1824-1826).

The expert’s testimony also supports the trial judge’s conclusion that the seller knew that the car had been badly wrecked. The expert testified that anyone who worked with and was reasonably familiar with automobiles and their condition after repairs would have known, from many evident signs he detailed, that this car had been badly wrecked, with severe damage in several areas. Despite defendant’s denial that he knew the car had been wrecked (he also denied that it had been wrecked), the expert’s .testimony and defendant’s presumed expertise as a dealer together support the factual inference that defendant knew that the car had been wrecked. We cannot reject the reasonably supported factual conclusions of the trial judge; Canter v. Koehring, La.1973, 283 So.2d 716. Nor can we reject his conclusion that the telltale defects, although obvious to a quasi-expert, were not obvious to a layman as proof of a prior wreck or wrecks. Thus C.C. 2547, the bad-faith analogue to C.C. 2529, applies to afford redhibition.

We reduce the $2,000 award for attorney’s fees because the case did not involve a large amount of money ($3,000) and was neither complex nor time-consuming. Fees for earlier proceedings in a parish of indisputably improper venue (which also thicken this record) are not recoverable because they are not “reasonable attorney’s fees” which alone are recoverable under C.C. 2547. Nor are full attorneys’ fees for this appeal, since defendant did not cause the necessity of appeal as to quantum of damages and attorney’s fees. We conclude that $1,000 is the maximum total for reasonable attorneys’ fees for this case.

Finally, on the question of a compensation for use of the automobile for 26,000 miles, we follow the rule that, in the absence of contrary evidence, value of use of the thing equals that of the use of the buyer’s price; Farmer v. Fisk, La.1844, 9 Rob. 351; Harvey v. Kendall, 1847, 2 La. Ann. 748. (C.C. 2531, as amended by Acts 1974 No. 673, applies by its terms to a good-faith seller and there is no contention that it applies to a bad-faith seller.)

The judgment is reduced to $3,381.40 with interest from return of the automobile, plus $1,000 attorneys’ fees; and the expert’s fee is reduced to $57. Costs of this appeal are to be divided between the parties.

      . A declaration made in good faith by the seller, that the thing sold has some quality which it is found not to have, gives rise to a redhibition, if this quality was the principal motive for making the purchase.

      . The reality of the cause is a kind of precedent condition to the contract, without which the consent would not have been given, because the motive being that which determines the will, if there be no such cause where one was supposed to exist, or if it be falsely represented, there can be no valid consent. The error in the cause of a contract to have the effect of invalidating it, must be on the principal cause, when there are several; this principal cause is called the motive, and means that consideration without which the contract would not have been made.
      No error in the motive can invalidate a contract, unless the other party was apprised that it was the principal cause of the agreement, or unless from the nature of the transaction it must be presumed that he knew it.

      . A declaration made by the seller, that the thing sold possesses some quality which he knows it does not possess, comes within the definition of fraud, and ought to be judged according to the rules laid down on the subject, under the title: Of Conventional Obligations. It may, according to circumstances, give rise to the redhibition, or to a reduction of the price, and to damages in favor of the buyer.


author: BEER, Judge.

text:
    Portia BRADFORD v. John DOE and New Orleans Public Service, Inc.
    No. 8771.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.
    Rehearing Denied March 14, 1978.

      James Maher, III, New Orleans, for defendant-appellant.
    Birdsall, Alvarez & Rodriguez, Benjamin J. Birdsall, Jr., New Orleans, for plaintiff-appellee.
    Before REDMANN, BOUTALL and BEER, JJ.
   BEER, Judge.

Tort action by plaintiff-appellee Bradford against New Orleans Public Service, Inc. for damages resulting from injuries allegedly sustained as she boarded the St. Charles streetcar.

Bradford contends that as she placed her left foot on the streetcar step, reaching for the vertical rail in the doorway of the car, the motorman prematurely closed the door and dragged her ten to fifteen feet before stopping.

At trial, appellant sought to present a demonstration of the mechanical process which regulates the closing of the streetcar door. The trial court remarked that very little weight would be given such demonstration since the condition of the streetcar could not possibly have remained the same from the time of the accident to the time of trial. Nevertheless, the court observed:

“Step or door, you’re not going to convince me. Let me tell you what you can do, you can come back and I’ll let you make a proffer, if I allowed you to go ahead and have me look at it and demonstrate, you would have proven the following and we will put that in the record in case the Court of Appeals disagrees with me.”

Upon reopening of the case for the purpose of permitting the proffer, appellant attempted to adduce the testimony of their equipment engineer, S. A. Mitchell. Refusing to permit such testimony, the judge required that the proffer be made by a statement from counsel covering what the witness would have stated under oath.

The following transpired:

“THE COURT:
This is a proffer.
MR. MAHER:
Exactly that the operation of the front doors of a streetcar, mechanical system that is involved with the operation and closing of the doors and step as in relation to this accident, how it was suppose to happen, couldn’t have taken place according to the way the plaintiff has alleged.
THE COURT:
Okay.
MR. BIRDSALL:
To which we object.
THE COURT:
Marked as a proffer.
MR. MAHER:
He can’t testify?
THE COURT:
That’s right, do you think I’m going to hear him testify when I’m not going to pay attention to his testimony.
MR. MAHER:
I thought I could proffer it.
THE COURT:
If you remember my position was the other day, that what I told you I thought I would do, now I have done to you what I told you I would do.” (Tr. pp. 5-6, second hearing.)

The Official Revision Comments regarding LSA-C.C.P. art. 1636 state:

“This article vests in the court discretion to determine whether evidence held inadmissible should be recorded verbatim or whether the record should contain only a statement as to the nature thereof.”

Therefore, the issue here is not the correctness of the form of the proffer insisted upon by the judge (as is suggested by appellant’s argument and brief), but, rather, the correctness of excluding the evidence sought to be adduced. See, e. g., McCauley v. Manda Brothers Provisions Co., 202 So.2d 492 (La.1967) (where the case was remanded because testimony proffered was admissible, not because the form of proffer was improper).

In our view, the expert evidence sought to be introduced by appellant was improperly excluded. The district court may have chosen to give it little weight for valid reasons, but the record fails to indicate a satisfactory basis upon which it should have been excluded. It is apparent that appellant’s counsel sought to demonstrate that the injury causing accident could not have taken place in the manner described by plaintiff. The court deprived him of this prerogative, apparently being of the view that the evidence already adduced had convinced the court that the accident had, indeed, happened in the manner described by the plaintiff.

Accordingly, we now consider this record as if evidence had been adduced by defendant in support of its contention with respect to the operation of the streetcar doorway and step. Specifically, we now consider the record as though it included affirmative testimony from defendant’s expert witness that the door could not close in the manner described by the plaintiff if the plaintiff’s weight were upon the bottom step of the streetcar.

Making the assumption noted above, the record would contain conflicting evidence as to the cause of the accident. Based upon this conflicting evidence, can we say that the trial court manifestly erred in its ultimate conclusion regarding the reason for the accident and was in error in accepting the version of the accident described by the plaintiff and, to some degree, confirmed by the testimony of the motorman? To do so would be to substitute our factual determinations for those of the trial judge even though there is support in the record for the trial judge’s conclusions. Nor do we perceive a useful purpose to be served by remanding the case for the purpose of permitting the introduction of that evidence which was improperly excluded. Indeed, judicial economy requires that we affirm, since the record supports the trial court’s ultimate conclusion with respect to liability or, at least, supports the proposition that such a conclusion is not manifestly erroneous.

Accordingly, the judgment is affirmed.

AFFIRMED.


text:
    Rene CHAPOTEL v. BAILEY LINCOLN/MERCURY, INC., et al.
    No. 8824.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.
    Writ Granted March 31, 1978.

      John A. E. Davidson, Anthony S. Taormi-na, Metairie, for plaintiff-appellant.
    John C. Werhan, Metairie, H. A. Rosenberg, New'Orleans, for defendants-appel-lees.
    Before REDMANN, BOUTALL and BEER, JJ.
   REDMANN, Judge.

From summary judgment against Dixieland Auto Sales, Inc. and its president George Vulevich, Jr. in solido for the minimum statutory penalty of $1,500 for reducing the mileage on an automobile odometer, 15 U.S.C. 1984, plaintiff appeals, seeking attorney’s fees and the full $1,500 from each of those two defendants. (Bailey Lincoln/Mercury is not here involved.) We affirm.

15 U.S.C. 1989(a) provides:

Any person who, with intent to defraud, violates any requirement imposed under this subchapter shall be liable in an amount equal to the sum of—
1. three times the amount of actual damages sustained or $1,500, whichever is the greater; and
2. in the ease of any successful action to enforce the foregoing liability, the costs of the action together with reasonable attorney fees as determined by the court. [Emphasis added.]

The statute’s provision is that any violator “shall be liable in an amount equal to the sum of” (1) the $1,500 minimum plus (2) in the event of a successful action, costs and reasonable attorney’s fees. We first reason that the words “shall be liable” do not exclude solidary, or joint and several, liability. A judgment decreeing solidary liability for $1,500 is a judgment decreeing liability for the full $1,500. We second observe that the same imposition of liability applies to costs and attorney’s fees, and no reason is suggested by plaintiff or by our own imagination for a federal statute to impose multiple recovery of out-of-pocket court costs, varying from state to state, as an added penalty to each of multiple defendants, and as an added enrichment to a plaintiff beyond treble damages. Third, we agree with the observations of Duval v. Midwest Auto City, Inc., D.C.Neb.1977, 425 F.Supp. 1381, that the further elements of the statutory scheme of control of the evil, including $1,000 civil penalties to the United States for each violation, criminal penalties, administrative proceedings and injunc-tive relief, speak against a construction of § 1989 inconsistent with the basic tort damage theory that joint tortfeasors’ liability is joint and several (or solidary, La. C.C. 2324) and a payment by one decreases the other’s liability (see La. C.C. 2091). We therefore affirm the trial court’s imposition of liability in solido.

Attorney’s fees are expressly provided by the statute “in the case of any successful action”. But this action was not “successful” within the meaning of the statute. This action was fruitless and the attorney’s fees for it were unnecessarily incurred. Before the action was filed, Vule-vich conceded liability and offered to pay the full $1,500 penalty for which he is held liable. Plaintiff’s counsel wrote to defendant’s counsel:

I do not see how you arrive at $1,500 being the maximum liability ... I don’t know how you can determine what your client’s liability might be in the absence of litigation. ... In addition, your client would have to pay attorney’s fees and court costs, considerably increasing the award. Furthermore, my client considers $1,500 as being merely a bribe to release your client from criminal liability, which he rejects completely and totally.

We conclude that an automobile buyer who is tendered the full statutory penalty of the greater of triple actual damages or $1,500 before an action for those damages is filed may not insist on filing an action in order to obtain attorney’s fees and costs. At the time of the tender the attorney’s fees are not owed under the statute because at that time there has been no action and thus no “successful action”. Accordingly the tender is of payment in full of all that defendant owes. If, after accepting the tender, a plaintiff sues only for the attorney’s fees he should fail because he was not owed fees prior to his action and in any case his action would not be an “action to enforce the foregoing [triple damage or $1,500] liability”. If after rejecting the tender in full because plaintiff believes himself entitled to a greater penalty or to multiple penalties, a plaintiff sues and obtains a judgment for the amount previously offered, his action has not been “successful” within the meaning of the statute because he has gained nothing by it. The statute cannot reasonably be interpreted to deem “successful”, and thus foster by obliging a violator to pay attorney’s fees and costs of, unnecessary and fruitless civil actions in court systems already clogged nationwide.

Affirmed.


text:
    Frank REED v. Harold RAMSAY, d/b/a Ramsay Television Sales & Service, Leon Touzet and Maryland Casualty Company.
    No. 8825.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.
    Rehearing Denied March 14, 1978.
    Robert J. Neal, New Orleans, for defendants-appellants.
    Tapper & Schuler, Elmer R. Tapper, Chalmette, for plaintiff-appellee.
    Before REDMANN, BOUTALL and BEER, JJ.
   BEER, Judge.

Plaintiff-appellee Frank Reed slipped and fell on an algae-like substance which had accumulated on the sidewalk in front of Ramsay’s Television Sales & Service. Drippings from an air conditioner Ramsay had installed above the entrance to his shop was found to be the source. Reed injured his back, requiring treatment by his physician from July 15, 1975 until November 5, 1975. He was unable to work from June 14, 1975 until September 5, 1975, and his lost wages amounted to $2,330 plus $120 overtime. He suffered considerable pain and stiffness and, at time of trial was still somewhat restricted.

Reed filed suit against Harold Ramsay, d/b/a Ramsay Television Sales & Service, who was cited and served but did not answer, and against Leon Touzet, Ramsay’s lessor and owner of the premises, and his insurer, Maryland Casualty Company.

From a trial court judgment against all defendants in solido in the amount of $5,219, plus legal interest ($2,200 for lost wages, $519 for medical bills and $2,500 for pain and suffering). Touzet and Maryland appeal, contending that the trial court erred:

(a) In finding from the evidence presented that Mr. Touzet visited the premises in question a sufficient number of times to have seen the air conditioning unit in its location above the doorway.
(b) In finding that Civil Code Article 2695 would be applicable to hold a landlord liable for an injury to a third party-
(c) In not finding from the evidence that Mr. Reed, plaintiff, could or should have seen the “green slime” or algae on the sidewalk in front of the television shop, and not finding Mr. Reed contrib-utorily negligent.

Appellee has answered the appeal, seeking an increase in quantum.

We first consider appellant’s contention concerning the applicability of La.Civ.Code art. 2695.

The strict liability of the lessor as provided by Article 2695 for damages resulting from hazardous conditions on the premises is restricted to the lessor-lessee relationship, and does not apply to third parties. Their rights are protected by La. Civ.Code art. 670 and La.Civ.Code arts. 2315 and 2316. See, e. g., Weiland v. King, 281 So.2d 688 (La.1973); Davis v. Royal-Globe Ins. Companies, 257 La. 523, 242 So.2d 839 (1971); Jarvis v. Prout, 247 So.2d 244 (La. App. 4th Cir. 1971); and Hebert v. Valenti, 235 So.2d 193 (La.App. 4th Cir. 1970).

Article 2695 is clearly inapplicable and since the drip of condensation from an air conditioner is not the fault of a substantial component of a building, Article 670 is also inapplicable. Thus, the correct test of the landlord’s liability is that of the “fault” articles, 2315 and 2316.

The record does not support the finding that Touzet knew or should have known of the presence of any substance on the sidewalk. The air conditioner was installed by Ramsay in May, 1975, without Touzet’s knowledge or permission. Touzet testified that he was not aware of its presence before the accident. The rent was collected by Touzet on the first of the month; therefore, it is likely that the only opportunity which Touzet might have had to observe the unit was on June 1. Reed and two of his companions who witnessed the accident testified that they had walked in front of Ramsay’s on several prior occasions, and had not observed the slippery substance. We conclude that it is equally plausible that, as he testified, Touzet, also, had not seen the slippery substance. Indeed, the record indicates that plaintiff’s activities preceding the incident which resulted in his injury would have given him considerably greater opportunity to discover (and, thus, take action to avoid) the peril which he claims should have been noted by Touzet. On this record, one would be very hard put not to conclude that any substance which should have been seen by Touzet in the course of his single visit to the premises would not also have been as reasonably apparent to Reed, whose contributory negligence has been alleged.

In any event, we are convinced that the record will not support a finding of negligence on the part of Touzet, and, in that respect, the judgment against him and his insurer must be reversed.

Turning to appellee’s contention that the award should be increased, we observe that the total amount awarded was well within the trial court’s wide range of discretion.

Accordingly, the judgment against Leon Touzet and Maryland Casualty Company is reversed, and Frank Reed’s suit against them is dismissed, at his costs. All parties shall bear their own costs' of this appeal.

REVERSED AND RENDERED.


text:
    Everett Wendell GRANDERSON, Jr. v. The NEW ORLEANS BOARD OF TRADE.
    No. 8828.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.
    Rehearing Denied March 14, 1978.
    Everett Wendell Granderson, Jr., in pro per.
    Baldwin & Haspel, H. Sloan McCloskey, • New Orleans, for defendant-appellee.
    Before LEMMON, STOULIG and GAR-SAUD, JJ.
   LEMMON, Judge.

In this suit for unpaid wages which his employer allegedly failed to pay upon termination of his employment and for penalty wages under R.S. 23:632, plaintiff has appealed from the judgment which awarded his unpaid wages but limited penalty wages to two weeks.

Plaintiff, a grain sampler for defendant’s grain elevator inspection service, was terminated on January 2, 1976 and immediately requested payment from his supervisor at the place where he was usually paid. He made additional requests the following day at two separate grain elevators and again two days later, but on each occasion was told the check wasn’t there. Defendant’s payroll clerk, unaware of the penalty statute and apparently not informed of plaintiff’s requests, simply followed standard payroll procedure in which the check for that pay period was printed out by computer on January 8, 1976 and mailed to plaintiff on January 9, 1976.

Plaintiff denied receiving the check, although the envelope was never returned to defendant. Furthermore, plaintiff made no further demands nor inquiries about these wages, although he appeared at defendant’s business office about two weeks after his termination for the purpose of obtaining payroll information for an unemployment compensation application.

After 90 days plaintiff filed this suit, seeking his unpaid wages, as well as penalty wages for the entire statutory period.

The trial court found that defendant had mailed the check and limited penalty wages to two weeks, which was the time plaintiff appeared at the business office without mentioning that he had not yet received his unpaid wages.

R.S. 23:632 is a penal statute that must be strictly construed. Since the employer was tardy in responding to plaintiff’s demand for his wages, the penalty provisions of the statute are applicable. The key question is whether defendant’s mailing of the check constituted sufficient tender of the wages within the meaning of R.S. 23:631 so as to stop the running of penalty wages.

Plaintiff had previously made a similar claim against a previous employer under almost identical circumstances, contending he had not received a check for the wages which had been mailed. And in litigation against another previous employer he contended he had not received a reprimand mailed to him. These circumstances cast doubt upon plaintiff’s assertion in this case that he did not receive the properly addressed check.

Furthermore, even if plaintiff did not receive the check for unpaid wages, penalty wages are not to be absolutely imposed irrespective of the surrounding circumstances. A court may appropriately consider equitable circumstances surrounding the non-receipt of payment of wages and the employer’s responsibility for non-receipt.

In this case defendant reasonably assumed that the check for the wages had been received, because it was unlikely that a terminated employee in financial need would initially demand his unpaid wages and then make no further request until the end of 90 days, especially when plaintiff had visited defendant’s business office to obtain information related to payroll wages without registering a complaint of non-receipt.

Moreover, the trial court implicitly found that plaintiff consciously refused to notify defendant that the check for wages had not been received, especially by purposeful silence at the time of the visit to the business office. Although a claimant normally has no duty to make additional demands for unpaid wages after the demand which starts the running of the penalty period, the circumstances of this particular case dictate the plaintiff’s recovery of penalty wages should be limited to the period outlined by the trial court.

Under the overall circumstances of this case we conclude it is inappropriate to impose penalty wages on an employer who acted in good faith at all times after the end of the two-week period for which penalty wages were assessed by the trial court.

The judgment is affirmed.

AFFIRMED.

      .In the normal payroll procedure the computer printed the employee’s name and address on the check. A supervisor from each elevator generally picked up the checks and distributed them to the employees at the elevators (this was the method by which plaintiff received his checks), but some were mailed. When employees resigned or were terminated, the checks were routinely processed at the end of the pay period and mailed to the payroll address.

      . The 1977 amendment to R.S. 23:631 and 632, in addition to changing the time period for tendering unpaid wages to “three days following the date of discharge or resignation”, specifically authorizes payment by mail.

      . Plaintiff admitted he had “hoped that they would take as much time as possible, you see, because I was aware of these statutes”.


author: STOULIG, Judge.

text:
    Charles DiGEROLAMO et al. v. LIBERTY MUTUAL INSURANCE COMPANY et al.
    No. 8842.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.
    Rehearing Denied March 14, 1978.
    Writ Granted May 5, 1978.
    Louis A. DiRosa, New Orleans, for plaintiffs-appellants.
    George J. Richaud, Bruce J. Borrello, Me-tairie, for Liberty Mutual Ins. Co., defendant-appellee.
    LEMMON, STOULIG and GARSAUD, JJ.
   STOULIG, Judge.

This is an appeal from a judgment dismissing plaintiffs’ damage claims against Liberty Mutual Insurance Company under the uninsured motorist provision of an automobile liability policy issued to Charles DiGerolamo on a 1967 Pontiac Lemans. This result is based on an affirmative defense that the policy was void because the named insured had no insurable interest in the automobile at the time the policy was issued.

We affirm. The record reflects that the car was owned by Nicholas DiGerolamo although the insurance was purchased in his father’s name. On August 15, 1967, seven days before Nicholas’ twenty-first birthday, Paretti Pontiac accepted a $1,000 deposit toward the purchase of this car and issued a receipt in the name of Nicholas. Two days later, Nicholas signed and filed an application for a certificate of title and passenger car registration for this vehicle, listing his address as 1021 Royal Street, New Orleans, Louisiana.

The record discloses that the 1967 Pontiac Lemans was purchased on August 15, 1967. Immediately thereafter Charles DiGerola-mo applied for insurance as owner. On August 22, 1967 Nicholas DiGerolamo reached the age of majority. A policy of insurance covering the vehicle was issued by the defendant to Charles DiGerolamo for the period commencing September 7, 1967. The accident from which plaintiffs’ UMI claims stem occurred October 8, 1967.

Based upon the foregoing, together with the receipt of Paretti Pontiac and the application for registration and title, it must be concluded that Nicholas purchased the automobile on August 15, 1967. Further, while his father’s application for insurance on this car was still pending and prior to the issuance of the insurance policy Nicholas reached the age of majority. All of these activities predated the occurrence of the accident.

The issue presented by this appeal is whether or not Charles DiGerolamo had an insurable interest in the automobile owned by his major son. R.S. 22:614(A) and (B) provide:

“A. No contract of insurance on property or of any interest therein or arising therefrom shall be enforceable except for the benefit of persons having an insurable interest in the things insured.
“B. ‘Insurable interest’ as used in this Section means any lawful and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage.”

The controlling jurisprudence construing this statute is exhaustively treated in the case of Rube v. Pacific Insurance Company of New York, 181 So.2d 240 (La.App. 1st Cir. 1961).

Appellants’ argument that the named insured Charles had an insurable interest to the extent that he could protect himself against liability he might incur vicariously through the torts of his minor son may have had merit if the policy was effective in a period when Nicholas was a minor. But this was not the case. Once Nicholas attained majority, which he did almost immediately after buying the car, his father had no more exposure for the negligent acts of this son.

Appellants’ second argument again rests on a premise of minority. Therefore we need not discuss their sole contention that an insurable interest accrues to the father if the purpose for purchasing the insurance is to protect the minor’s estate from insolvency in the event of his death.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

LEMMON, J., dissents with written reasons.

LEMMON, Judge, dissents and assigns reasons.

On August 15,1967 Nicholas DiGerolamo, who was then 20 years old, single, and residing with his parents, purchased a Pontiac automobile on credit, and his father co-signed the note. Around the same time the father’s liability insurance on a Nash automobile was about to expire, and he completed a standard form application for the assigned risk plan. In the section requesting “Description of ALL motor vehicles owned by applicant or any member of the same household” the father listed both cars and indicated the applicant was the owner of each. However, the son was listed in the application as a customary operator. The policy was subsequently issued on September 7, after the son had attained majority.

When a casualty occurred and Nicholas and two passengers attempted to recover damages for bodily injury under the uninsured motorist coverage, the insurer resisted enforcement of the policy on the basis that Nicholas’ father had no insurable interest, claiming the representation concerning ownership was willfully false, was material to the risk and was relied upon in issuing the policy, but not explaining any detriment from such reliance.

Insurable Interest

The legislative concept of prohibiting enforceability of insurance contracts to persons not having an insurable interest had its beginnings in the public policy against enforcement of a wagering contract. The Louisiana statute was written in terms of “interest in the things insured” and “economic interest in the safety or preservation of the subject of the insurance”, indicating a primary concern for interest in the property named in the policy.

I doubt that an insurable interest is required by R.S. 22:614 for enforcement of a contract of liability insurance, since there is no possibility of wagering involved in that type of contract. See 1 ALR 3d 1193 (1965). Since the statute can reasonably be construed as inapplicable to liability insur-anee, the construction which gives validity to the contract should be applied. Nevertheless, if an insurable interest is required to enforce a liability policy, it cannot reasonably be argued that insurable interest depends upon title. Rather, a key inquiry must be whether there is any possibility the insured might incur liability because of the operation or use of the automobile. See 7 Am.Jur.2d Automobile Insurance § 13. Another pertinent consideration is whether the insured may suffer a loss or disadvantage arising from imposition of liability on a close family member because of operation or loss of the automobile.

At the time Nicholas’ father applied for insurance he certainly had an economic interest in insuring his potential liability for his son’s torts arising out of use of the Pontiac. And at the time of the accident the father, as a potential forced heir of his son’s estate, had an economic interest in preserving that estate against tort claims arising from the son’s use of that automobile, and thus he had an economic interest in insuring his son’s liability.

Inasmuch as the insurable interest requirement is primarily to prohibit wagering contracts, I would (in the absence of a showing of prejudice to the insurer) liberally interpret any indicia of insurable interest among close family members residing in the same household, where the overall evidence indicates that the policy was obtained in good faith.

Prejudice to the Insurer

The more critical question in this case is whether Nicholas or his father should be estopped from enforcing the policy because of misrepresentations relied upon by the insurer in issuing the policy. Indeed, the insurer in its amended answer pleaded lack of insurable interest in estoppel terms of willful false statements, material to the risk, and reliance thereon.

I have difficulty in concluding on this record that any statements in the application were willfully falsified or made with intent to deceive. See R.S. 22:619, which requires intent to deceive in order to prevent enforcement of the contract. There is no suggestion in the record or in argument of any advantage to the insured or prejudice to the insurer from the incorrect statement as to ownership.

The insurer argues only that, if it had known the true ownership, it would not have included the Pontiac in the father’s policy. It does not state any detriment suffering in doing so, and the fact that Nicholas was listed as a customary driver of both cars also militates against a conclusion of intent to deceive. Moreover, the insurer does not argue that it would not have issued separate policies to each owner of the two cars, nor does it contend that the premium structure would have been different had two policies been issued rather than one.

The burden of proving the facts to establish an estoppel is on the party relying on estoppel as a defense. Here, the insurer failed to show how it relied to its detriment on any misrepresentation and further failed to show that the incorrect statement was made with the intent to deceive.

      . In his testimony Nicholas stated that the $1,000 deposit was advanced by his aunt. He denied that Paretti Pontiac had issued to him a receipt in this amount. Upon being shown the receipt in his name he persisted in his denial of having paid the money or receiving a receipt for it. Obviously either Nicholas or his father told Paretti in whose name to issue the receipt.

      . Nicholas DiGerolamo testified that he did not have the title to the car nor did he make any attempt to get the title from Baton Rouge. In a subsequent hearing, his attorney voiced no objection to the introduction of the application for a certificate of title admittedly bearing the signature of Nicholas DiGerolamo. The application was made on August 17, 1967, two days after the purchase of the automobile and reflects its acquisition from Paretti Pontiac with the owner being Nicholas DiGerolamo.

      . The application was completed by the insurance agent, presumably using information furnished by the applicant who signed the form. The applicant, Nicholas’ father, died prior to trial.

      . See Dugas v. Rogers, 285 So.2d 876 (La.App. 1st Cir. 1973), in which the court found insurable interest when Jesse Rogers purchased an automobile in his name to be used exclusively by his brother, James, and Jesse also purchased liability insurance. The court noted that Jesse had an interest in protecting his parents from vicarious liability for the torts of their minor son, because Jesse thereby was protecting an estate to which he was a forced heir. Compare 43 Am.Jur.2d Insurance § 475, concerning property insurance.

      . Perhaps the insurer would have a complaint against the Assigned Risk Plan for covering two risks with credit for only one.

      . See Christo v. Eagle Star Ins. Co., 232 La. 28, 93 So. 682 (1957), in which Christo permitted his minor cousin to purchase a car in his name, and Christo also purchased the collision insurance required by the mortgagee. The court held there was no showing of intent to deceive the insurer as to the driver of the car.