author: WICKER, Judge. PER CURIAM.

text:
    Judith Lawrence, wife of/and Edward L. LAWRENCE v. Wilburn C. MOORE and Pat O’Brien’s Bar, Inc.
    No. 8840.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Levy, Smith & Gennusa, Thomas A. Gen-nusa, II, Adolph J. Levy, New Orleans, for plaintiffs-appellants.
    Porteous, Toledano, Hainkel & Johnson, C. Gordon Johnson, Jr., New Orleans, for defendant-appellee.
    Before GULOTTA, SCHOTT and WICKER, JJ.
   WICKER, Judge.

Plaintiffs, Judith Lawrence and her husband, Edward L. Lawrence, filed suit against Wilburn C. Moore and Pat O’Brien’s Bar, Inc., together with their respective liability insurers, for damages suffered on October 18, 1973 when Moore struck plaintiff twice and caused Mr. Lawrence severe injury.

State Farm Fire and Casualty Company, the liability insurer of Moore, filed a motion for summary judgment based on an exclusion from its policy of coverage of the incident sued upon. State Farm supported its motion with a certified copy of its policy and Moore’s deposition. The trial judge took the matter under advisement and eventually rendered judgment in favor of the defendant insurer.

The exclusion from coverage upon which State Farm relies provides the policy does not apply:

“to bodily injury or property damage which is either expected or intended from the standpoint of the insured.”

Plaintiffs argue defendant Moore was so intoxicated that he could not form the necessary intent to bring him within the quoted policy exclusion and urge the trial court committed error by granting a summary judgment in favor of the defendant insurer.

On October 18, 1973 plaintiffs went to Pat O’Brien’s Bar in the New Orleans French Quarter and seated themselves in the piano lounge with two other persons. Mr. Lawrence then discovered a bag of green peppers on the floor under his table. Perhaps because of the alcohol Mr. Lawrence imbibed, and perhaps in part brought about by the normal unrestrained atmosphere of Pat O’Brien’s Bar, Mr. Lawrence began to throw the green peppers in the air, his primary target being the piano player performing at the time. Plaintiff threw a handful of peppers in an upward direction, and one struck defendant Moore in the eye. Moore punched Lawrence in the face, and punched him again after Lawrence regained his balance and turned toward Moore. Lawrence suffered a rather severe brain injury as a result of the blows.

Moore’s deposition reveals clearly he had been drinking for most of the day and he was intoxicated when he arrived at the bar and when he hit plaintiff twice. In the deposition Moore admitted earlier in the day he consumed approximately six twelve-ounce cans of beer over a period of three hours. In addition, he did not remember having eaten supper that night. At approximately 10:30 p. m., he left the place where he had consumed the beer and went to the New Orleans French Quarter. He visited other places in the French Quarter before arriving at Pat O’Brien’s, but he could not remember whether he had any additional drinks at those places. When he arrived at Pat O’Brien’s, he had between two and four additional drinks over a period of 45 minutes to an hour.

Moore further testified as follows:

“Q. How many times did you hit him all told?
A. Twice.
Q. What hand did you use again?
A. Left.
Q. Did you hit him as hard as you could?
A. That’s hard to say.
Q. Well—
A. I don’t know how hard I can hit.
Q. Right, I understand that. But when you decided you were going to strike him, was it your intention to hit him as hard as you could?
A. Perhaps, (emphasis added).
Q. On the evening of the incident before this occurred, were you able to speak intelligently, intelligibly?
A. Yes.
Q. Were you able to walk normally when you came into Pat O’Brien’s?
A. Yes.
Q. You weren’t staggering in any way, were you?
A. No.
Q. And at the time that you were in7 volved in the altercation with Mr. Lawrence you had control over your arms and legs; they functioned the way you wanted them to, didn’t theyl
A. Yes.” (emphasis added).

The law is clear that an insurer has the duty to prove the facts which it asserts exculpate it from liability under an exclusionary provision of its policy. Furthermore, if there is any doubt, no matter how slight, as to any material fact, a summary judgment must be denied and the matter resolved in favor of a trial on the merits. However, the law also provides that a motion for summary judgment must be granted if the pleadings, depositions, answers to interrogatories and other documents in the record show there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. In the present case the only evidence supplied the trial court was Moore’s deposition and, as pointed out earlier, he readily admitted that while intoxicated he nevertheless knew what he was doing when he intentionally struck plaintiff. After reviewing Moore’s deposition this court is of the opinion that the trial judge could reach no other conclusion than that Moore intended to strike the plaintiff. There exists not a scintilla of evidence in the record to the contrary. Indeed, if plaintiff possessed any evidence whatsoever to even infer that Moore did not intend to strike the plaintiff, it should have been presented by affidavit or otherwise to the trial judge. No such evidence was presented and the evidence of Moore’s intention stands uncontradicted.

The only Louisiana case cited by plaintiffs in which recovery was allowed under an exclusionary clause similar to the one in the present case is Nettles v. Evans. In the Nettles case plaintiff was attacked by the defendant, who struck her on the head. Plaintiff broke free and as she attempted to escape the defendant fired a pistol in her direction. Plaintiff filed suit against defendant and his homeowners liability insurance carrier, and judgment was rendered after a trial on the merits against the insurance carrier in spite of the exclusionary clause in question. However, in the Nettles ease the defendant had ingested both diet pills and alcoholic beverages on the day of the incident. The court held that the defendant insurer did not bear its burden of proving facts necessary to bring the situation within the exclusionary clause because the evidence that defendant was not so impaired as to destroy its conscious control of his actions was contradicted by evidence that defendant was in the grips of an hallucination at the time of the incident caused by a mixture of the alcohol and diet pills admittedly ingested by him.

The trial judge in this case could not go beyond the documents presented to him in connection with the motion for summary judgment. These documents, consisting primarily of Moore’s deposition, clearly indicated that while Moore was intoxicated he possessed the necessary intent to commit a battery on the plaintiff. Faced with this evidence, the trial judge had little alternative but to render summary judgment in favor of the defendant insurer based on its exclusionary clause.

A similar result was reached in Terito v. McAndrew in which plaintiff, after drinking heavily for the greater portion of the evening, became involved in a fight in a bar with a patron he alleged insulted him. In this case there was no exacerbation of the symptoms of drunkenness by other drugs, and the court found that while the defendant was intoxicated, he nevertheless was not so intoxicated as to prevent him forming the intent to commit a battery.

In view of the facts presented the trial judge in connection with the motion for summary judgment, we hold he was correct in ruling defendant’s actions in striking plaintiff twice in the face were intentional and consequently were excluded from coverage under defendant’s policy.

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

AFFIRMED.

ON REHEARING

PER CURIAM.

On rehearing we have considered our original opinion in the light of Rambin v. Wood, 355 So.2d 561 (La.App. 3 Cir. 1978). In this case, Rambin was riding on a small lawn tractor from which he was pushed by Wood with the result that he sustained three fractured ribs, muscle sprain, and pneumonia while he was hospitalized.

Charter Oak Fire Insurance Company had issued a homeowners insurance policy to Wood insuring him for liability for an “occurrence” which was defined as an accident resulting in bodily injury, “ ‘neither expected nor intended from the standpoint of the injured.’ ” The trial court held that Wood intentionally pushed Rambin off the tractor but the exclusion applied even though Wood might not have expected the resulting injuries to Rambin and Rambin’s suit against Charter was dismissed. The Court of Appeal reversed, reasoning as follows:

“The evidence reasonably supports the trial judge’s conclusion that the shoving or pushing of the plaintiff by defendant was intentional but that the resulting injuries were not expected or intended.
“Under these circumstances, the actions of the defendant can be described as negligent but do not constitute an intentional injury. Bourque v. Duplechin, 331 So.2d 40 (La.App. 3 Cir. 1976) writs denied, La., 334 So.2d 210 and 230.”

The court recognized that the decision was in conflict with Kipp v. Hurdle, 307 So.2d 125 (La.App. 1st Cir. 1975) writs refused, La., 310 So.2d 643. Significantly writs were not applied for in the Rambin case.

We have resolved to follow the Kipp case and recognize that there is a conflict between our circuit and the First Circuit on the one hand, and the Third Circuit on the other.

We reinstate our original opinion.

AFFIRMED.

      . Mrs. Lawrence’s case has not yet been tried.

      .See, for example, Denies v. First National Life Insurance Company, La.App., 144 So.2d 570.

      . Morgan v. Matlack, La., 342 So.2d 167.

      . LSA-C.C.P. Art. 966.

      . La.App., 303 So.2d 306.

      . La.App., 246 So.2d 235.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    Dathyl T. BERTEAU v. The WIENER CORPORATION.
    No. 9308.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1978.
    Rehearings Denied Oct. 12, 1978.

      Dan R. Dorsey, River Ridge, for Dathyl T. Berteau, plaintiff-appellant.
    John J. Brennan, III, Hurley, McNulty & Stakelum, New Orleans, for The Wiener Corp., defendant-appellee.
    Before REDMANN, LEMMON and BOUTALL, JJ.
   BOUTALL, Judge.

Plaintiff, Dathyl T. Berteau, instituted suit against defendant, The Wiener Corporation, for recovery of vacation pay allegedly due her, as well as for statutory penalties and attorney’s fees. The trial court awarded judgment in favor of defendant, dismissing plaintiff’s suit. From this finding, plaintiff herein appeals.

This litigation arises from a dispute between plaintiff-appellant and an office manager of the appellee. Appellant was employed by The Wiener Corporation from August 25,1975 to September 9,1976. Employees of the Corporation were, according to the company handbook, entitled to a one week vacation with pay upon completion of one year of service. Appellant was eligible for her vacation on August 25, 1976.

Mrs. Berteau requested that her vacation begin on September 13, 1976. She also requested an extra week off, without pay, to join her husband in a trip to Canada. The handbook provides that such a request will be granted for any reasonable cause provided the leave of absence will not seriously disrupt business operations. Mrs. Berteau’s request, however, was denied because of a pending inventory scheduled to begin September 24,1976. She was advised however, that if the trip could be scheduled in such a way as to avoid conflict with the inventory, her request would be granted.

Finding that she would be unable to switch the trip to other dates, appellant decided that she would take the trip in violation of company orders. There is some dispute as to the nature of Mrs. Berteau’s termination, but suffice it to say that she was no longer employed by The Wiener Corporation as of September 9, 1976. She thereupon requested her vacation pay, but was denied it.

Appellant contends that she was entitled to her vacation pay as of the time at which she became eligible for the vacation upon completion of one year of service. She argues that this vacation benefit is included in the “amount due under terms of employment” in La.R.S. 23:631. She further contends that due to appellee’s refusal to pay these benefits, she is entitled to penalty wages and attorney’s fees under La.R.S. 23:632.

Appellee, on the other hand, argues that company policy prohibits payment of any benefit to one who is not an employee and that, therefore, no additional payment is due. In the alternative, appellee argues that no penalties or attorney’s fees are due since the action of The Wiener Corporation in refusing to pay appellant her vacation pay was not “arbitrary or unreasonable”.

The issues on appeal are as follows: 1.) Is vacation pay included in the amount due under 23:631? 2.) Are penalties appropriate under 23:632 only when the employer has acted arbitrarily or in an unreasonable manner? 3.) Are attorney’s fees awarded in all cases in which recovery is granted under 23:632?

VACATION BENEFITS

There is jurisprudence in Louisiana to the effect that vacation benefits are included in the definition of the “amount due under the terms of employment”. The Second and Third Circuits have held that vacation benefits are additional wages and are, therefore, to be included in the amount paid to the employee upon discharge. See Stell v. Caylor, 223 So.2d 423 (La.App. 3rd Cir. 1969) and Sewell v. Sharp, 102 So.2d 259 (La.App. 2d Cir. 1958).

This circuit, in Bailey v. American Sugar Refinery, 342 So.2d 1268 (La.App. 4th Cir. 1977) has stated that vacation benefits are to be treated as wages for the purpose of the statute citing R.S. 23:640. Section 640 limits itself by its terms to those situations in which the parties’ relationship is governed by a collective bargaining agreement. We do not feel, however, that appellee is correct in arguing that by negative implication vacation benefits are not to be included in the amount due under 23:631.

In Morse v. J. Ray McDermott & Co., Inc., 344 So.2d 1353 (1976), the Louisiana Supreme Court held that a forfeiture clause in the employer’s profit-sharing plan was manifestly unjust where the unilateral act of the employer prevented fulfillment of the condition to his receipt of benefits. In the course of the opinion, Justice Tate discusses the contention urged by appellee here and rejects it. We quote footnote 10, p. 1359, on first hearing:

“The courts of this state have noted that forfeitures of wages are not favored under our law. See Knight v. Oden, 282 So.2d 612 (La.App. 1st Cir. 1973); United Shoe Stores Co. Inc. v. Dryer, 16 La.App. 605, 135 So. 50 (2nd Cir. 1931). We do not believe adoption in 1966 of Act 536 (LSA-R.S. 23:640) expressly including pensions and other fringe benefits payable under collective bargaining agreements was intended to have the effect of excluding other fringe benefits from the definition of ‘wages.’ Passage of the act is indicative merely of the legislature’s responsiveness to the concerns of labor interests that fringe benefits might not be considered ‘wages.’ If anything, it indicates that the legislature does consider fringe benefits wages within the meaning of La.R.S. 23:634.”

We apply that principle here. We deal, in this case, with a non-union situation and have no collective bargaining agreement. The employee handbook is the only written agreement in existence. The handbook does specify that it was not to be a complete statement of Wiener’s policy and this we acknowledge. The handbook does grant an employee the right to a one week vacation with pay, however, upon completion of one year of service. We cannot allow an unwritten policy to amend this when the policy was so vague that the employee in question and many others (such as those in appellee’s personnel department) were unaware of it.

Appellant’s right to her vacation had vested under the handbook and her request for its approval, and the company cannot force forfeiture of that right. A vested right is defined as that case when “the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest. The right must be absolute, complete and unconditional, independent of a contingency, and a mere expectancy of future benefit does not constitute a vested right.” Tennant v. Russell, 214 La. 1046, 39 So.2d 726 (1949). Mrs. Berteau clearly had a present interest in a vacation benefit and divesting her of this is a forfeiture. Wage forfeitures are not allowed in our law. Pender, et al. v. Power Structures, Inc., 359 So.2d 1321 (La.App. 4th Cir., Docket No. 8790, June 18, 1978) and La.R.S. 23:634. We therefore hold that appellant is entitled to her vacation pay in the amount of $149.32.

PENALTY WAGES

La.R.S. 23:632 outlines certain penalties to be paid to discharged employees of employers who refuse to comply with the provisions of R.S. 23:631. The jurisprudence of this state is to the effect that statutes which are expressly penal in nature are to be strictly construed. Mitchell v. First Nat. Life Ins. Co., 236 La. 696, 109 So.2d 61 (1959). Clevy v. O’Meara, 236 La. 640, 108 So.2d 538 (1959). If it is determined then, that a bona fide dispute as to wages due existed at the time of the refusal to pay, no penalties will be awarded. Sifers v. Exxon Corp., 338 So.2d 763 (La.App. 4th Cir. 1976). For the employee to recover, the employer must have been motivated by bad faith or must be found to have acted in an “arbitrary or unreasonable” manner. Pittman v. Eyrand, 290 So.2d 800 (La.App. 4th Cir. 1974).

It does not appear that the requisite bad faith is present in this case. The testimony of all parties indicates that this policy, while not in writing and not well settled, had been applied to others previously. This indicates to us that the action of appellee in denying the vacation benefits was not arbitrary or unreasonable. No bad faith can be imputed to the employer. Our finding that the contract between the employer and employee did not, as a matter of law, require that one continue to be an employee to receive benefits does not preclude the possibility of a good faith refusal. We therefore find that no penalty wages are due in this case.

ATTORNEY’S FEES

The rule of this circuit as to attorney’s fees is stated in Rubenstein Bros. v. LaForte, 320 So.2d 303 (La.App. 4th Cir. 1975). In that case the court found that the phrase “well-founded suit” in the statute refers to a suit in which recovery of wages is granted. Thus, where back wages are awarded, reasonable attorney’s fees must also be granted.

We therefore hold that the appellant is entitled to reasonable attorney’s fees under 23:632, which we fix at $300.00.

It is ORDERED, ADJUDGED AND DECREED that the judgment appealed is reversed and there is now judgment in favor of plaintiff Dathyl T. Berteau and against defendant, The Wiener Corporation, in the full sum of $149.32, together with attorney’s fees of $300.00 with interest from September 13, 1976, until paid, and for all costs of these proceedings.

REVERSED AND RENDERED.

ON THE MOTION FOR REHEARING

Both appellant and appellee have filed motions for a rehearing. The appellee, The Wiener Corporation, requests rehearing before this panel, or alternatively a rehearing before the entire court, contending that our judgment is directly contrary to the holding in the case of Bondio v. Binder, Inc., 24 So.2d 398 (La.App.Orl.1946). We have examined our decision in that case and see no conflict between these two decisions.

The Bondio case was a suit to recover vacation pay allegedly due under a union contract agreement. That agreement was construed to provide that an employee “shall have worked a total of 2000 straight time hours in the year preceding — that is, for the year preceding the date fixed by the employer for the commencement of the vacation.” The court determined that an employee who took time off in June without authorization and was fired as a result was not entitled to vacation pay in June because the employer had the right to fix the vacation schedule and would not be entitled to a paid vacation at a later date because he would not have worked 2000 straight time hours (interpreted to mean without interruption) in the year preceding the time his vacation would otherwise begin.

Our case is a suit to seek wages and penalties under R.S. 23:631 et seq. It involves the interpretation of the provisions of an employee’s handbook setting out in general the employer-employee relationship. We found that the handbook does grant an employee the right to one week’s vacation with pay upon the completion of one year of service. This employee had fulfilled that requirement and indeed her request for vacation had been approved. The dispute arose because the employee desired to take the following week as an unpaid vacation, and that was refused by the company. As a result, the manager fired the employee one week prior to the beginning of her paid vacation. By that time the employee’s right to a vacation had accrued and the employer could not, by use of the summary power of discharge, defeat the right to receive a vacation with pay or its equivalent. This difference is pointed out in the Bondio case, and it applies in our case.

The applications for rehearing of both appellant and appellee are denied.

REHEARING DENIED.

LEMMON, J., concurs in denial of application for rehearing and assigns reasons.

LEMMON, Judge,

concurring in the denial of Application for Rehearing and assigning reasons.

I disagree completely with the reasoning of an earlier panel of this court in the Bondio case and would have reached the opposite result. Nevertheless, this case is distinguishable on its facts (as the contract was interpreted by the earlier panel), and it is not necessary that we overrule the Bon-dio case in order to reach our decision in the present case.


author: GUIDRY, Judge.

text:
    Gus STACY, Jr., et al., Plaintiffs-Appellees, v. H. D. PETTY et al., Defendants-Appellants, George W. Cline, III, et al., Third-Party Defendants-Appellants.
    No. 6614.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 4, 1978.

      Brame, Bergstedt & Brame, David A. Fraser, Lake Charles, for third party defendant and third party plaintiffs-appellants.
    Plauche, Smith, Hebert & Nieset, Reid K. Hebert, Lake Charles, for defendant-appel-lees.
    Burton & Nichols by James K. Nichols, DeRidder, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

The above numbered and entitled matter was consolidated for trial in the district court with Bituminous Insurance Company, et al v. H. D. Petty, et a1, 362 So.2d 815 (La.App. 3rd Cir. 1978), our Docket No. 6613. These cases remain consolidated on appeal and we decide both of these cases today. The facts and law are common to each case.

These consolidated cases arise out of a three-vehicle accident which occurred at approximately 11:00 A.M., January 8, 1974 on Louisiana Highway 27 at its intersection with Newlin Cemetery Road in Beauregard Parish. The vehicles involved in the accident were:

(1) a 1966 International tractor-trailer log truck owned by H. D. Petty and which was being operated by him in a northerly direction on Highway 27;

(2) a 1972 Ford tractor-trailer log truck owned by McLeod Brothers General Contractors which was being driven in a southerly direction on Highway 27 by its employee, Ocie Pharris; and

(3) a 1973 Plymouth automobile owned and operated by Gus Stacy, Jr., that was in the process of exiting from Highway 27 at the time of the accident.

The instant suit was originally brought by Gus Stacy, Jr. and his collision insurer, United States Fidelity & Guaranty Company, against H. D. Petty and his public liability insurer, Southeastern Fidelity Insurance Company (Southeastern), seeking recovery for personal injuries and property damage occasioned as a result of the accident.

In Suit No. 6613, McLeod Brothers General Contractors and its collision insurer, Bituminous Insurance Company seek recovery of property damage sustained in the accident from H. D. Petty, Gus Stacy, Jr., and their respective insurers, Southeastern and United States Fidelity & Guaranty Company.

Defendants in both suits filed answers generally denying liability to plaintiffs and alternatively alleging contributory negligence as a bar to plaintiffs’ recovery. Southeastern further answered, admitting the issuance of a policy of insurance in favor of H. D. Petty, but specifically denied coverage for the accident under the terms of said policy on the basis of an exclusionary provision contained therein which purported to exclude coverage while the Petty vehicle was being used for towing a trailer that was not also insured by Southeastern.

Petty then filed a third party demand against the Cecil R. Middleton Insurance Agency, Inc. (Middleton), the insurance agency from which he had acquired the Southeastern policy, and its errors and omissions insurer, California Union Insurance Company (California Union). In this demand, Petty sought recovery of all damages which he might incur as a result of suits filed against him, alleging negligent omission on the part of Middleton in its failure to procure the desired type of insurance on his vehicle.

Southeastern was also made an additional third party defendant by way of a supplemental and amending third party petition in which Petty alternatively sought reformation of the policy of insurance to provide coverage for the claims asserted against him.

Middleton and California Union, by way of third party demand, sought indemnity and/or contribution along with costs, expenses and attorney’s fees from Southeastern and its agent, Mid-South Underwriters, Inc. (Mid-South), the company that actually issued the Southeastern policy.

Southeastern filed a motion for summary judgment which was subsequently denied by the district court.

Prior to trial, a compromise agreement was reached resulting in the dismissal, with prejudice, of all claims of the original plaintiffs in both suits, reserving, however, all incidental demands. Southeastern and California Union contributed the sums of $7,583.98 and $7,583.97, respectively to the settlement. It was stipulated that the accident was caused solely by the negligence of H. D. Petty.

The parties further stipulated:

“(1) If Southeastern is found to have coverage in favor of Mr. Petty by final judgment, it will reimburse California the sum paid by California toward settlement;
(2) If, by final judgment, Southeastern if found to have no coverage, and H. D. Petty is entitled to his third party demand against Middleton and California, California will reimburse Southeastern the sum paid by Southeastern toward settlement, unless it is found to be entitled to indemnification or contribution from either or both Mid-South and Southeastern, in which event the final judgment will dictate the result; and
(3) If, by final judgment, Southeastern has no coverage, and H. D. Petty is not entitled to his third party demand against Middleton and California, H. D. Petty will reimburse both Southeastern and California the sums advanced by them to accomplish the settlement.”

The remaining parties then proceeded to trial which was limited to the issue of coverage under the Southeastern policy and the issues raised in the various third party demands.

The record reflects no genuine dispute as to the following facts:

In September of 1972, H. D. Petty desired to obtain liability insurance which would provide coverage for vehicular equipment to be used for hauling logs. Petty, either personally or through his wife, contacted the Middleton agency in DeRidder, Louisiana for this purpose. The Pettys had previously dealt with the Middleton agency concerning insurance on their private passenger vehicles. However, the Pettys were informed that the particular type of insurance which was now desired was not available through the company which had previously insured their vehicles. They were advised by a representative of Middleton that a company would be found that would provide the insurance.

An application for insurance on behalf of H. D. Petty, dated September 14, 1972, was completed by an employee of Middleton and submitted to Mid-South, which is an agent for certain surplus line companies including Southeastern. At the time of this application, Petty owned a 1966 International truck to which he had attached a 1969 Frost trailer. This trailer is what is commonly known in the logging industry as a “pole trailer”. The trailer had been welded and bolted to the 1966 International truck.

The record reflects that Petty was desirous of obtaining coverage for the entire tractor-trailer combination. However, the application which was submitted by Middleton to Mid-South only listed the 1966 truck. No mention was made in the application of the 1969 trailer.

In response to the foregoing application, a policy of insurance, having an effective date of September 14, 1972, was issued in favor of Petty by Southeastern, the policy being issued out of Mid-South’s office. The only vehicle described in the policy was the 1966 “International Log Truck”. In a space designated for “Optional Equipment Declared at Time of Application” the notation “Std. Eqpt.” appeared. In a space provided for “purpose for which the automobile is to be used”, the entry “Hauls Logs” was made.

The Southeastern policy was subsequently renewed for a period of one year effective September 14, 1973 and was in full force and effect at the time of the accident giving rise to these suits. At the time of the accident, the 1969 Frost trailer was still attached to Petty’s 1966 truck. The policy contained the following exclusionary provision:

“This part does not apply:
******
(c) under coverages A and B, while the automobile is used for the towing of any trailer owned or hired by the insured and not covered by like insurance in the company; or while any trailer covered by this policy is used with any automobile owned or hired by the insured and not covered by like insurance in the company;. . . "

After trial on the merits, the trial judge, in written reasons, concluded that no coverage was provided by the Southeastern policy because of exclusion “(c)”, supra. The trial judge, however, determined that Petty was entitled to judgment on his third party demand against Middleton and California Union. In this latter regard, the trial judge found that the Pettys had sufficiently informed the Middleton agency concerning his intended logging operations, and that Middleton had breached its contractual obligation to Petty in that it failed to describe both the tractor and trailer in the application which was originally submitted to Mid-South.

Accordingly, judgment was rendered by the district court in favor of Petty and against Middleton and California Union in the amount of $15,167.95, subject to a $1,000.00 deductible under the California Union policy and to a credit of $15,167.95 previously paid by California Union and Southeastern to plaintiffs. Pursuant to the stipulation previously entered into between the litigants, judgment was rendered in favor of Southeastern and against California Union in the sum of $7,583.98. The various third party demands against Mid-South and Southeastern were dismissed. Middleton and California Union were cast for all costs.

Middleton and California Union have appealed from the judgment of the district court, contending (1) that the Southeastern policy provided coverage to Petty; or, (2) the policy should be reformed to provide coverage for Petty; or, (3) that Southeastern is now estopped from denying knowledge that a trailer was used with Petty’s truck because of an “investigation charge” of $15.00 which was received by its agent, Mid-South. Further, appellants contend that, if there is determined to be no coverage under the Southeastern policy and if the policy is not reformed to provide coverage, that Middleton was not guilty of any negligence. Petty has not appealed from that portion of the judgment rejecting his third party demand against Southeastern for reformation of the policy.

We initially consider appellants’ contention that the Southeastern policy provided liability coverage to Petty.

It is well settled that an insurance policy is a contract between the insured and insurer, and as such has the effect of law on the parties. LSA-C.C. art. 1901; Fontenot v. New York Life Insurance Co., 357 So.2d 1185 (La.App. 3rd Cir. 1978, writ refused); Southern States Masonry Company, Inc. v. Mission Insurance Company, 353 So.2d 307 (La.App. 1st Cir. 1977, writ refused); Cormack v. Prudential Insurance Company of America, 259 So.2d 340 (La.App. 4th Cir. 1972, writ refused). It is equally well settled that in the absence of a conflict with statutory law or public policy, insurers may by unambiguous and clearly noticeable provisions limit their liability and impose reasonable conditions upon their obligations. Such provisions must be given effect as written. Oceanonics, Inc. v. Petroleum Distributing Company, 292 So.2d 190 (La.1974); Fontenot v. New York Life Insurance Co., supra.

A review of Louisiana jurisprudence indicates that a clause in an insurance contract excluding coverage when the insured vehicle is towing any trailer owned or hired by the insured is a valid and enforceable clause. Alphonse v. W. M. Kinner Transport Co., 452 F.2d 700, certiorari denied 406 U.S. 958, 92 S.Ct. 2061, 32 L.Ed.2d 344. See also Brady v. American Insurance Company, 198 So.2d 907 (La.App. 4th Cir. 1967) and cases therein cited.

The record clearly shows that at the time of the accident, Petty’s tractor-truck was being used for the towing of a trailer which was owned by him and not covered by like insurance in the company. Under the facts presented, the clause in question clearly excluded any coverage under the Southeastern policy.

We find appellants’ second contention that the Southeastern policy should be reformed to provide coverage equally without merit. Although an insurance contract is subject to reformation if because of mutual error or mistake the policy fails to reflect the intent of the parties, MFA Life Insurance Company v. Huey, 347 So.2d 63 (La.App. 2nd Cir. 1977), the evidence adduced at trial fails to disclose mutual error or mistake between Petty and Southeastern or its agent, Mid-South. Although Petty intended to acquire liability insurance covering his entire tractor-trailer combination, the record clearly reflects that neither Mid-South nor Southeastern intended to issue such a policy. Mid-South was never informed of the fact that the 1969 Frost trailer was attached to Petty’s 1966 International truck, or that it would be necessary for some sort of trailer to be utilized with the truck in order to haul logs. Both Southeastern policies were issued in response to the applications which were submitted by Middleton to Mid-South and provided only the coverage requested therein, i. e., coverage on a 1966 International log truck. The record clearly reveals that neither Southeastern nor its agent, Mid-South, intended to issue a policy covering Petty’s 1969 Frost trailer.

Appellants next contend that Southeastern is now estopped from denying knowledge that a trailer was to be used with Petty’s truck because of a $15.00 “investigation charge” which was collected by Mid-South in connection with the issuance of the policies. The trial judge, in rejecting this contention, stated in written reasons:

“Counsel’s argument relative to the $15 inspection fee charged by the broker for Southeastern is also not persuasive. It was shown that this fee is charged for various things such as credit inquiry, the physical preparation and issuance of the policy, and the like. Mr. Reid testified, moreover, that no physical inspection was made which would have placed Southeastern or its broker, Mid-South, on notice of the inherent necessity of the use of a trailer.”

Evidence adduced at trial amply supports the trial judge’s conclusions in regard to this matter.

Appellants finally contend that the trial court erred in rendering judgment in favor of Petty because of the negligent failure of Middleton to secure the desired coverage.

Our careful review of the record discloses no manifest error in the trial judge’s factual finding that Middleton had been sufficiently informed of the circumstances surrounding Petty’s intended logging operations. The record reflects that the 1966 truck and 1969 trailer were considered to be two separate vehicles, and that it was the customary, practice, in making application to a surplus line company, to designate both the tractor-truck and the trailer. It is well settled that an insurance agent who undertakes to procure insurance for another owes an obligation to his client to use reasonable diligence in attempting to place the desired insurance, and to notify the client if he is unable to do so. Karam v. St. Paul Fire & Marine Insurance Company, 281 So.2d 728 (La.1973); Arceneaux v. Bellard, 149 So.2d 444 (La.App. 3rd Cir. 1963, writ refused).

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

AFFIRMED.

      . At trial, the pleadings were orally amended to reflect that this is the correct name of the Middleton agency.

      . The extent of this attachment is not fully revealed by the record. However, it does appear that considerable effort would be required to remove the trailer from the tractor-truck.

      . Our resolution of this issue renders it unnecessary for us to consider appellees’ contention that Middleton and California Union do not have standing to seek reformation of the Southeastern policy.


text:
    BITUMINOUS INSURANCE COMPANY et al., Plaintiffs-Appellees, v. H. D. PETTY et al., Defendants-Appellants, George W. Cline, III, et al., Third-Party Defendants-Appellants.
    No. 6613.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 4, 1978.

      Brame, Bergstedt & Brame, David A. Fraser, Lake Charles, for third-party defendant, and third-party plaintiffs-appellants.
    Plauche, Smith, Hebert & Nieset, Reid K. Hebert, Lake Charles, for defendants-appel-lees. •
    Burton & Nichols by James K. Nichols, DeRidder, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

For the reasons assigned in the companion case of Gus Stacy, Jr., et al. v. H. D. Petty,. et al., 362 So.2d 810 (La.App.3rd Cir. 1978), our Docket No. 6614, we conclude that the judgment of the district court properly disposes of the issues presented. Accordingly, the judgment of the district court is affirmed at appellants’ cost.

AFFIRMED.


author: REDMANN, Judge.

text:
    Charles GUILYOT v. DEL-GULF SUPPLY, INC. and Aluminum Specialty Co., Inc.
    No. 9258.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 21, 1978.
    Rehearing Denied Oct. 12, 1978.

      George W. Reese, New Orleans, for plaintiff.
    Stanley E. Loeb, New Orleans, for Del-Gulf Supply, Inc.
    Jamie F. Veverica, New Orleans, for Aluminum Specialty Co., Inc.
    Thomas J. Wagner, New Orleans, for T. Smith & Son Inc. and Employers National Insurance Co.
    Rudolph R. Schoemann, New Orleans, for Oscar J. Autin Insurance Agency, Inc.
    Before SAMUEL, REDMANN and STOULIG, JJ.
   REDMANN, Judge.

Defendant pipe-hook manufacturer appeals from a judgment on jury verdict holding it liable for plaintiff’s serious injuries from a 7,000-pound pipe which rolled into him when mislaid by a crane diagonally rather that parallel atop other pipes in tiers on a barge. Defendant’s pipe-hooks did not break, slip out while carrying pipe, or otherwise perform contrary to their design. They merely did not detain the pipe after it was let down.

Plaintiff’s theory is that the pipe-hooks’ design was defective for lack of either a clamp or a long extension into the pipe to prevent the hook’s dislodgement upon release of the pressure from the weight of the pipe.

Lack of some retaining device is doubtless a “cause-in-fact” (a sine qua non, a “but for” factor) of the accident; Straley v. Calongne Drayage & S. Inc., La. 1977, 346 So.2d 171. And plaintiff shows that such devices are used on two other kinds of pipe-hooks, thus showing that the manufacturer could by different design have avoided the accident, as was shown in Gauthier v. Sperry Rand, Inc., La.App. 3 Cir. 1971, 252 So.2d 129, writ refused 259 La. 940, 253 La. 382, and in Leathem v. Moore, La.App. 1 Cir. 1972, 265 So.2d 270; see also Clark v. Sears, Roebuck & Co., La.App. 3 Cir. 1971, 254 So.2d 62. But, as in Gauthier and Leathem, plaintiff does not show that defendant’s “fault”, La.C.C. 2315, caused the accident by breach of some duty owed to plaintiff not to design the hook for easy rather than difficult removal. We therefore reverse.

Facts

Plaintiff was a member of a crew moving 36-inch diameter, 40-foot long, 7,000 pound pipes from a ship into a barge by use of a floating crane positioned between those two vessels. The pipes were placed in the barge so as to first cover its floor with three or four pipes end-to-end along its length by perhaps 20 pipes side-to-side across its width (a total of perhaps 60 or 80 pipes). Thereafter a second layer of pipes was to be placed atop that bottom layer, in a similar orientation except that each new row of side-by-side pipes would contain one less pipe than the row atop which it lay. Thus, after a first-layer row of 20 pipes, the rows in the succeeding layers would contain 19, then 18, then 17 pipes, with the pipes in each new layer resting side by side in the grooves constituted by the top halves of the pipes in the previous layer.

Each pipe was moved by the crane from ship to barge by means of two cables, each attached to a pipe-hook which held up one end of the pipe. The crane was using five pairs of cables and hooks to move five pipes at a time.

After one or two layers of pipe had been stacked in the barge, the crane brought other pipe to be stacked but aligned it at a 45-degree angle rather than parallel to the already-stacked pipe. When the crane operator let the new pipe down upon the stacked pipe, one hook holding one end of one pipe came out (as it is designed to do with ease on release from the weight of the pipe) and the pipe rolled at its 45-degree angle along the tops of the stacked pipe into plaintiff.

(That five pipes were brought by the crane when only four grooves remained in the layer being stacked seems irrelevant. As we appreciate the facts, even if a single pipe were so placed across the stacked pipe and the hooks, relieved of the weight, had come out, the single pipe would similarly have rolled catercorner across the stacked pipe: the pipe did not roll because there was no groove for it [each new layer of pipe forms new grooves, and if too many pipes are brought in a single load the load is “split” and the extra pipe stacked in the newly made grooves]. The pipe rolled because it was across rather than parallel to the grooves formed by the stacked pipe, and perhaps because the barge was not perfectly level because of the as yet uneven distribution of its very heavy load.)

Liability

Categorizations like “products liability”, “executive officer liability”, “medical malpractice” and so forth are helpful as catch-phrase aids to memory, as on burden of proof, but all tort liability in Louisiana arises exclusively from the delictual principles of the Louisiana Civil Code, Bk. 3, tit. 5, ch. 2, “Of Offenses and Quasi Offenses” (arts. 2315-2324); Ardoin v. Hartford Accident & Indem. Co., La.1978, 360 So.2d 1331. The basic principles are that one is liable for damage caused by his fault, C.C. 2315, [including negligence, imprudence and want of skill, art. 2316, and more, Langlois v. Allied Chem. Corp., 1971, 258 La. 1067, 249 So.2d 133] and “for that which is caused by the act of persons [including minor children, art. 2318, insane wards, art. 2319, and employees, art. 2320] for whom we are answerable, or of the thing [including animals, art. 2321, and buildings, art. 2322] which we have in our custody”, art. 2317.

Plaintiff thus describes the pipe- ' hook manufacturer’s employees’ fault:

due to the fact that the locations where these pipes eventually are stowed are not always level, the two [other] types of pipe hooks described had the additional safety factor of either a long extension arm into the pipe or a safety catch to prevent the hook from falling out when tension was relieved to keep the pipe from doing exactly what happened in this case, i. e. rolling out of control without a pipe hook still in the pipe to prevent this uncontrolled action. . Appellee [plaintiff] believes that the hook in question was designed for use by pipe line companies ... in their operations in oil fields and off-shore drilling situations and the appellant’s fault basically consists of manufacturing and putting into commerce this hook which was improperly designed for general use on water fronts .

We have agreed that absence of a retaining device was a “cause-in-fact”, but we disagree that that absence constitutes a design defect, an act of fault, or otherwise makes the manufacturer liable.

Also a “cause-in-fact” of the accident was the pipe’s being round: had it been square, it could not have rolled into plaintiff. Nevertheless we do not deem round pipe defectively designed, and the pipe manufacturer is not at fault because the pipe is round, and the manufacturer is not liable for injuries like plaintiff’s because the pipe is round. Roundness of pipe is a desirable quality for many reasons, one of which may be that it does facilitate rolling.

As in the case of roundness of pipe, we can not deem ease of removal of a pipe-hook a defect in its design: it is a desirable quality in some uses, especially for tier-stacking of pipes so high that workers would have to climb upon the pipes to release a hook that was not easy to remove. The easily-removed-hook design eliminates the risks of climbing on stacked pipes. (Could a worker injured in such a climb recover from a clamping-type hook manufacturer on the theory that that hook was defectively designed because it lacked the ease of removal which our hook has?)

Design choices are affected by many considerations. A design choice may be wholly faultless although it permits even obvious risks, if it does so to serve a legitimate purpose. A knife must be designed with a sharp edge precisely so that it will cut; despite the risk that sharpness presents to the user of the knife, sharpness is not a design defect in a knife and the manufacturer cannot be faulted for electing sharpness rather than the safety that dullness would promote.

Wade, On the Nature of Strict Tort Liability for Products, 1973, 44 Miss. L.J. 825, 835, suggests that the test of whether a product’s design is “unreasonably dangerous” is “whether the magnitude of the risk created by the dangerous condition of the product was outweighed by the social utility attained by putting it out in this fashion.” Robinson, Manufacturers’ Liability for Defective Products in Louisiana Law, 1975, 50 Tulane L.Rev. 50, 65-66, deduces from Louisiana cases

that, like the common law states, the Louisiana courts will demand proof approaching a showing of negligence in eases involving allegations of defective design. Allegations of a defect in the design of a product, unlike claims that a product is defectively manufactured, involve indictment of conscious manufacturer choice, and it is not surprising that the courts are more reluctant to find liability on the basis of such choice.

Because ease of removal of pipe-hooks serves the legitimate purpose of avoiding risks inherent in freeing a pipe-hook with a retaining device, and (insofar as the record shows) that purpose cannot be accomplished by a design incorporating the retaining devices plaintiff contends it was fault to omit, and the risks permitted are not shown to be unreasonably disproportionate to the risks avoided (and other benefits attained) by the design, defendant manufacturer’s design (or manufacture or distribution) does not constitute fault, and breaches no duty, towards prospective users or third persons. Defendant — like the manufacturer of the round pipe which rolled into plaintiff — is therefore not liable to plaintiff.

Reversed at plaintiff’s cost.

      . See Henderson, Judicial Review of Manufacturers’ Conscious Design Choices: The Limits of Adjudication, 1973, 73 Columbia L.Rev. 1531, for the view that “Courts are inherently unsuited to the task of establishing product safety standards in cases involving the liability of manufacturers.” Henderson is criticized by Twerski, Weinstein, Donaher and Piehler, The Use and Abuse of Warnings in Products Liability — Design Defect Litigation Comes of Age, 1976, 61 Cornell L.Rev. 495; Henderson responds in Design Defect Litigation Revisited, 1976, 61 Cornell L.Rev. 541.


author: LEMMON, Judge.

text:
    Dale BELLARD v. WOODWARD WIGHT AND CO., LTD., et al.
    No. 9268.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 28, 1978.
    Writ Refused Oct. 20, 1978.

      O’Keefe, O’Keefe & Berrigan (Allen H. Danielson, Jr.), New Orleans, for plaintiff-appellee.
    Hammett, Leake, Hammett, Hulse & Nelson (Craig R. Nelson), New Orleans, for defendants-appellants.
    Before LEMMON, GULOTTA and BOU-TALL, JJ.
   LEMMON, Judge.

This automobile accident case, although tried in an unusual procedural posture, primarily involves the determination of the extent of plaintiff’s injuries attributable to the accident for which defendants admitted liability.

I

At the time of the accident plaintiff was in the course of his employment with Professional Roofing and General Contractors. Professional’s workmen’s compensation insurer paid weekly benefits and medical expenses, and when plaintiff filed this tort action against the third parties, Professional’s insurer intervened for all compensation and medical expenses paid or to be paid.

Just prior to trial plaintiff and defendants entered into a compromise, whereby defendants paid plaintiff a certain sum and agreed to hold plaintiff harmless for any sums due intervenor in this litigation. In-tervenor did not join in or consent to the compromise, and in fact had sought to set the compromise aside.

At trial defendants resisted intervenor’s claim on the basis that some of plaintiff’s injuries and medical expenses were not caused by the accident. The trial court, without specifically determining which injuries were caused by the accident, awarded the full amount paid and to be paid, stating in reasons for judgment that intervenor is entitled to “all sums paid to the plaintiff under the Workmen’s Compensation Act”. On appeal defendants contend intervenor should have additionally been required to prove the injuries forming the basis of the payments under the compensation act were caused by the accident.

II

R.S. 23:1103 provides that in a suit against a third person the employer’s claim for compensation actually paid takes precedence over the employee’s claim, so that if the tort damages are insufficient to reimburse the employer, damages are assessed only in favor of the employer, and only when damages are more than sufficient to reimburse the employer is the excess assessed in favor of the employee. Thus, the third person’s total liability is determined by application of the principles used in fixing quantum of tort damages, and R.S. 23:1103 provides the priority of payment (as between the employer and employee) of the damages thus determined.

In the present case plaintiff’s sole claim against defendants was for the excess over the amount to which intervenor was entitled to reimbursement, and plaintiff could only compromise with defendants his claim for that excess. That compromise did not affect intervenor’s entitlement to reimbursement, provided the tort damages sus-tamed by the plaintiff as a result of the accident are at least equal to such amount of reimbursement. Verbois v. Howard, 322 So.2d 110 (La.1975).

As does the plaintiff in any civil litigation, the employee and the employer seeking damages against a third person pursuant to R.S. 23:1101 have the burden jointly of proving the amount of tort damages attributable to the accident. If the employer is the only plaintiff (because the employee has not sued the third person, or has settled with the third person), the employer has the same burden of proof. Therefore, in the present case mere proof of payment of benefits and medical expenses does not establish intervenor’s right to reimbursement; intervenor also has to prove that the benefits and medical expenses it paid were due because of injuries caused by the accident.

Ill

The central issue on appeal, therefore, is the sufficiency of intervenor’s evidence of a causal relationship between plaintiff’s injuries, for which intervenor has paid and is paying compensation benefits and medical expenses, and the accident for which defendants were liable.

The accident at issue occurred on February 15, 1974. At the time plaintiff was 21 years old, had a seventh grade education, and had been employed primarily as a truck driver and oil field laborer.

In December, 1972 plaintiff had sustained a back injury in a barge accident and in May 1973 had undergone a laminectomy at the L 4-5 interspace in Opelousas. Plaintiff’s back healed uneventfully, and the orthopedic surgeon discharged him in October, 1973, advising him to avoid heavy labor because of predisposition to recurrence of back injury.

In January, 1974 plaintiff went to work for Professional and performed climbing, lifting and other duties of a roofer with no problems. In the February 15, 1974 accident in Jefferson Parish the vehicle in which plaintiff was riding was struck violently in the rear by a tractor trailer.

After the accident plaintiff was examined in a hospital emergency room, where a lumbosacral sprain was diagnosed, in addition to plaintiff’s complaints of head, chest and pelvic pain. Plaintiff was hospitalized through February 19, during which time he complained of back pain, numbness in the legs, and nausea. He was then transferred to Opelousas, to be treated by the orthopedic surgeon who had treated his previous back injury. During his hospitalization there through March 1, he complained mainly of back and leg pain, although his anxiety, nausea and vomiting prompted the treating physician to call in a specialist in internal medicine for consultation as to plaintiff’s stomach complaints.

In outpatient treatment following the hospitalization the orthopedic surgeon found no clinical evidence to support plaintiff’s continued complaints, but since the complaints were consistent with an aggravation of the previous back injury, he referred plaintiff to a neurosurgeon in May, 1974. Neurological examinations in May and July were essentially negative, but when plaintiff’s complaints persisted and a September examination revealed some neurological deterioration, the neurosurgeon performed a myelogram and ultimately removed a herniated disc on the right side at L 4-5.

Upon being informed at trial that plaintiff had fallen in the shower when his leg gave way in August, 1974, the neurosurgeon admitted that the fall could have caused the disc injury, but he was still inclined to attribute the injury to the February automobile accident, because plaintiff’s complaint had consistently been on the right side (the 1972 accident having caused injury on the left side at the same level) and because the complaints were compatible with disc injury although no objective symptomatology was produced. The orthopedic surgeon generally concurred in this analysis, although neither doctor could positively relate the disc injury to the accident.

On the issue of causation by the February, 1974 accident of plaintiff’s injuries for which intervenor paid benefits and medical expenses, we accord little weight to the trial court’s decision, because that court specifically did not rule on that factual issue. However, the evidence is in the record, and pursuant to Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975), we proceed to determine that factual issue on the basis of the record.

After the accident plaintiff immediately complained of back pain (on the right side) and numbness in the leg. His complaints were compatible with disc injury and continued until (as the neurosurgeon stated) “his clinical picture (became) clear enough to justify operation”. We conclude the evidence adequately supports a finding of causation by the automobile accident of the back injury requiring the second surgery and resulting in permanent disability.

During the hospitalization following the February, 1974 automobile accident, plaintiff was nervous and emotionally upset and complained of stomach pain, nausea and vomiting, which he had never before experienced. He was examined by an internal specialist, who diagnosed a probable duodenal ulcer, a diagnosis consistent with X-ray findings during gastronintestinal testing.

In November, 1974 plaintiff again developed nausea, vomiting and severe abdominal pain and was hospitalized by a general surgeon in the internist’s absence. The doctor diagnosed a hiatal hernia, esophagitis, and a deformed pylorus secondary to peptic ulcer disease. In December, 1974 the doctor surgically repaired the hiatal hernia (which he stated is caused by increased interabdo-minal pressure and can be caused by trauma), cut the vagus nerve (which causes the stomach to produce acid), and removed 40% of plaintiff’s stomach.

In February, 1975 plaintiff returned with the same complaints. The doctor determined the problem was caused by bile reflux into the stomach and performed a surgical revision of the bile flow.

In July, 1975 plaintiff again returned with stomach pain. The surgeon diagnosed gall stones and surgically removed the gall bladder. He testified that gall stones sometimes form as a consequence of a vagotomy and related the stone formation to his first surgery. The surgeon further testified that ulcers are related to stress, noting that plaintiff was an extremely nervous, recently married, young man who had just undergone his second back surgery and whose future earning capacity was in serious doubt. He attributed all three surgeries to the automobile accident.

There was contrary opinion evidence presented by an internal specialist produced by defendants. This physician, having examined plaintiff and reviewed all of the medical records, opined that a whiplash injury does not cause a hiatal hernia, which is traumatically caused only by direct blow to the abdomen (plaintiff was thrown beneath the dashboard and complained of chest pain in the emergency room, and he was a thin, young man who had never suffered stomach pain prior to the accident); that an ulcer, if related to the accident, would have developed much earlier than ten months after the accident (he admitted that an ulcer can develop, heal, and then recur under continued stress); and that gall stones are not caused by stress (the surgeon attributed the gall stones to the vagotomy, admitting there is medical controversy as to this causation). Although we note that reasonable men could differ in drawing a conclusion from this record, we conclude the overall evidence is sufficient to establish the probability that plaintiff’s ulcer and hiatal hernia were caused by the accident and that the last two surgeries were also causally related.

As to disability, the surgeon opined that plaintiff could perform sedentary work, but had been disabled from lifting, bending and stooping throughout his treatment. The orthopedic surgeon and the neurosurgeon also testified it was inadvisable for plaintiff to ever attempt these activities or any heavy labor.

The overall evidence supports a finding that plaintiff was totally and permanently disabled within the contemplation of the compensation act and that his disability was causally related to defendant’s tort. The record further provides a basis for a tort judgment in excess of the total amount of compensation benefits and medical expenses paid or to be paid.

Accordingly, the judgment is affirmed.

AFFIRMED.

      . At time of the January, 1977 trial intervenor had paid $9,815.00 in compensation benefits and $13,477.25 in medical expenses, and was continuing to pay compensation at the rate of $65.00 per week.

      . To the extent of its claim for compensation and medical expenses actually paid, an employer is a plaintiff in a suit against a third person, whether or not the employee is also a party to that suit: The trial court’s reasons for judgment, reasoning that the intervenor should not have a greater burden after the compromise, concluded that the intervenor only had to prove “compensation benefits were paid to the plaintiff pursuant to the compensation act”. This stated burden of proof is correct only if the statement is clarified to declare that the inter-venor must prove the benefits were properly paid pursuant to the compensation act because of injuries resulting from a work-related accident.


text:
    John C. MATHERNE, Individually et al., Plaintiffs-Appellants, v. The PRUDENTIAL INSURANCE CO. et al., Defendants-Appellees.
    No. 6438.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 7, 1978.
    Gilbert Aucoin, for plaintiff-appellant and Donald J. Launey, Jr., Ville Platte, for plaintiffs-appellants.

      Provosty & Sadler, David P. Spence, Alexandria, for defendants-appellees.
    Before WATSON, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

John C. Matherne, individually and on behalf of his minor daughter, Jeanette M. Matherne, filed the instant suit against his former employer, Equifax, Inc. (Equifax), and its insurer, The Prudential Insurance Company of America (Prudential), seeking recovery of benefits allegedly due under the provisions of a group hospitalization insurance policy and for penalties and attorney’s fees. The trial court granted defendants’ motion for summary judgment and plaintiff has appealed.

The pleadings, affidavits and answers to interrogatories establish the following:

Plaintiff’s employment with Equifax commenced in October, 1967. A policy of group hospitalization insurance issued by Prudential to Equifax provided certain accident and health benefits to plaintiff and his dependents. Plaintiff’s daughter, Jeanette, was born July 14, 1973, and became an insured under the provisions of the policy issued by Prudential.

Jeanette became ill and was first seen by Dr. Carl F. Jory on December 9, 1974 for treatment of a Thyroglassal Duct Cyst. She was subsequently treated by either Dr. Jory or Dr. Donald E. Hines on the following dates: December 31, 1974, March 25, 1975, April 1, 1975, April 29, 1975, May 27, 1975 and June 26,1975. On the last four of these visits, Jeanette received Gamma Globulin injections.

Plaintiff terminated his employment with Equifax on July 30, 1975. Dr. Jory, on August 5, 1975, recommended that Jeanette be examined by Dr. Joseph Villard for possible surgery. On August 9, 1975, Dr. Vil-lard recommended surgical excision of the cyst. Surgery was subsequently performed on September 4th and November 15th, 1975 for removal of the cyst. Plaintiff thereafter made timely application with Prudential for payment of benefits under the aforesaid policy, however, payment was declined and this suit followed.

After a hearing on defendants’ motion for summary judgment, the trial judge, in written reasons, concluded that the Prudential policy only provides coverage and benefits to employees and dependents while the employee is employed, citing Cormack v. Prudential Insurance Company of America, 259 So.2d 340 (La.App. 4th Cir. 1972, writ refused). The trial judge determined that plaintiff’s claim for benefits arose after he terminated his employment with Equifax, and accordingly rendered summary judgment in favor of defendants, ordering that plaintiff’s suit be dismissed with prejudice.

Plaintiff has perfected an appeal, assigning the following as error:

(1) The trial court’s holding that the policy of insurance issued by Prudential only provided coverage for employees while they are employed and that plaintiff’s claim arose after his employment terminated.

(2) The trial court’s granting of defendants’ motion for summary judgment.

In seeking reversal of the trial court judgment appellant contends that since his daughter’s illness manifested itself prior to termination of his employment and while coverage under the Prudential policy was in full force and effect termination of his employment with Equifax which resulted in coverage under the Prudential policy being simultaneously terminated cannot preclude recovery of his claim for benefits. Stated another way plaintiff contends that his right to the payment of benefits under the Prudential policy vested at the time his daughter’s illness was diagnosed and that public policy demands that his vested right to uninterrupted receipt of benefits be unaffected by subsequent termination of the policy. In support of his contention appellant principally relies on Wharton v. Louisiana Hospital Service Inc., 183 So.2d 133 (La.App. 1st Cir. 1966, writ refused). As opposed to this appellee contends that under the plain provisions of the policy its obligation to pay benefits continues only so long as the policy remains in full force and effect, i. e., so long as a person is a covered individual. In support of its contention ap-pellee relies on Cormack v. Prudential Insurance Co. of America, 259 So.2d 340 (La.App. 4th Cir. 1972), writ refused 261 La. 824, 261 So.2d 230.

We ultimately conclude that the trial court judgment is correct and affirm.

The policy of insurance at issue contains the following pertinent provisions:

“MAJOR MEDICAL EXPENSE INSURANCE BENEFITS
Benefits will be payable under this Rider with respect to the eligible charges incurred during each calendar year in connection with the illnesses of an Employee or qualified dependent and while such person is a covered individual, in accordance with the following table, but subject to the provisions of the sub-section ‘Individual Maximum’ and to the other provisions of this Rider:
* * * * * *
A charge shall be deemed to be incurred as of the date of the service, treatment, or purchase of the supply giving rise to the charge.
******
All insurance under this Rider with respect to an Employee and his qualified dependents shall automatically terminate if the Employee’s employment terminates (except as provided in the second following paragraph), or if he ceases to be a member of the classes of Employees eligible for insurance under the provisions of this Rider, or if this Rider terminates, or if he fails to make, when due, any required contribution.”

The language employed in the above provisions of the insurance contract is clear and unambiguous. The quoted provisions succinctly provide that “charges incurred” in connection with the illness of an employee or qualified dependent are payable only so long as such person is a covered individual, which latter status automatically terminates at the termination of employment. Further, the term “charges incurred” is specifically defined as follows:

“A charge shall be deemed to be incurred as of the date of service, treatment, or purchase of the supply giving rise to the charge.”

We find this policy definition of the term “charges incurred” to be of particular significance.

Considering the undisputed facts of this case it is clear that the “charges incurred” for which appellant seeks recovery were incurred while plaintiff and his dependent were no longer “covered individuals”. The defendant’s policy was no longer in effect at the time such charges were incurred and if the policy in question is to be enforced as written then it is axiomatic that appellant must be denied recovery. The aforesaid policy provisions being clear, unambiguous, and, in our opinion, not viola-tive of public policy, we discern no reason why such provisions should not be given effect as intended.

In Cormack v. Prudential Insurance Co. of America, supra, somewhat similar provisions, limiting coverage, were given effect in denying recovery of benefits for “charges incurred” following the time limitation provided for in the policy. We find it significant that in the cited case the term “charges incurred” was specifically defined and defined exactly as set forth in the instant policy. Writ was refused in the Cormack case, our Supreme Court finding no error of law in the Court of Appeal judgment.

In the recent case of Tabb v. Louisiana Health Services & Indemnity Co., 352 So.2d 771 (La.App. 3rd Cir. 1977) we considered issues identical to those presented in the instant case. In Tabb, supra, plaintiff was severely injured while a designated beneficiary under an accident and health insurance policy issued by Blue Cross. The Blue Cross policy was issued to Tabb’s employer, the Lafayette Parish Sheriff’s Department. The Sheriff’s department itself terminated the policy some two years following plaintiff’s accident. Upon policy termination Blue Cross refused to pay for any hospital services rendered after that date. The Blue Cross policy under which Tabb was insured contained the following provision:

“No subscriber shall be entitled to benefits for any services received after termination of individual coverage or of this contract regardless of the cause of termination.”

In affirming the trial court judgment, which denied Tabb recovery for services rendered after termination of coverage, we did so on the basis that the limitation of coverage was unambiguous, susceptible to a clear understanding and not violative of public policy. Our Supreme Court granted a writ in Tabb, supra. Although the judgment of this Court was reversed on other grounds, that portion of our decision holding that the policy provision limiting coverage was not violative of public policy was affirmed. Tabb v. Louisiana Health Services & Indemnity Company, 361 So.2d 862 (La.1978).

Appellant relies with much emphasis on Wharton v. Louisiana Hospital Service, Inc., supra, for support of his contention that the provisions in the Prudential policy which permit cessation of payment upon termination of insurance coverage are violative of public policy. We find Wharton, supra, in-apposite factually and appellant’s reliance thereon misplaced. In Wharton the policy provided for the payment of benefits for expenses incurred during a three-year period immediately following diagnosis of a “dread disease.” The policy also contained a provision for automatic termination of coverage and payment of benefits for nonpayment of premiums. While the policy was in effect plaintiff was diagnosed as having a “dread disease” however, subsequent to this diagnosis coverage under the policy terminated for non-payment of premiums. Although conceding that plaintiff’s illness fell within the terms of the endorsement the insurer contended that it was liable only for such expenses as were incurred during the period of time that the premiums due under the terms of the policy continued to be paid. The court rejected the insurer’s argument, finding that upon plaintiff being diagnosed as having a “dread disease” while the policy was in effect plaintiff under the explicit terms of the policy became vested with the right to recover all expenses incurred in connection therewith during the three-year period immediately following diagnosis. Public policy demanded that such right of recovery be unaffected by subsequent termination of the policy. We agree with the result and reasoning in Wharton, however, as aforesaid, we find it inapplicable under the facts of this case. The policy under consideration here does not provide for the payment of benefits during a specific term for expenses incurred in connection with an illness diagnosed during the policy period. In other words, under the terms of the policy here in question appellant acquired no vested right to the payment of benefits for any specific period. Quite to the contrary, the Prudential policy specifically and in unambiguous terms provides that benefits are payable only in connection with “charges incurred”, as this term is defined in the policy, while the policy is in effect.

We likewise find inapplicable and distinguish the cases of Valladares v. Monarch Insurance Co., 282 So.2d 569 (La.App. 4th Cir. 1973), writ refused, and Humphries v. Puritan Life Insurance Co., 311 So.2d 534 (La.App. 3rd Cir. 1975), writ refused, in both of which cases recovery of benefits was allowed for services actually rendered following termination of coverage on the basis that such expenses were “expenses incurred” during policy coverage. In each of the cited cases the term “expenses incurred” was not specifically defined in the policy and the court in construing the policy provisions most favorable to the insured concluded that all charges in connection with the illness or injury there involved were incurred when the injury or illness manifested itself. As previously noted in the instant case the Prudential policy contains a specific definition of the term “charges incurred” limiting same to being those “incurred as of the date of the service, treatment, or purchase of the supply giving rise to the charge.”

In the instant case it is without doubt that plaintiff-appellant seeks recovery for “charges incurred” following termination of coverage. Under the plain, clear and unambiguous provisions of the policy plaintiff is not entitled to recovery for these expenses.

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

AFFIRMED.

      . In Tabb, supra, the Supreme Court, in reversing our decision, concluded that the insurer, under a group hospitalization policy providing coverage to employees and qualified dependents, was required to give written notice to the employee of changes (including cancellation of coverage) which could affect coverage, at least when the employee contributes to the payment of premiums and is issued a certificate of insurance by the insurer. In the instant case, unlike Tabb, supra, plaintiff does not raise as an issue the failure of defendant to provide written notice of cancellation and there is no evidence in the record indicating that the insurer did not comply with the provisions of LSA-R.S. 22:636.


author: LEE, Justice,

text:
    Floy Estelle Davis BURNETT, by and through Eugene L. Fair, guardian ad litem v. Rubin Joseph BURNETT et al.
    No. 50335.
    Supreme Court of Mississippi.
    July 26, 1978.
    Rogers, Morris & Fair, Eugene L. Fair, Robert A. Biggs, III, Hattiesburg, for appellant.
    Jeffrey T. Hollimon, Ovett, for appellees.
    Before ROBERTSON, LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

Appellees, Rubin Joseph Burnett, Doris Yvonne Burnett Dougall and Floy Kathryn Burnett Chapman, filed suit in the Chancery Court of Perry County to cancel as a cloud on their title the provision of a divorce decree which granted to Floy Estelle Davis Burnett (their mother) the right to inherit from her then husband (their father) at his death. The chancellor entered a decree in favor of appellees cancelling the said provision and Mrs. Burnett appeals. The sole question is whether or not the chancellor erred in so doing.

Mrs. Burnett was adjudged non compos mentis October 27, 1949. From that time until March 16, 1977, the date of the rendition of the decree in this cause, she was confined continuously at Mississippi State Hospital for the Insane.

Appellant and Rubin Joseph Burnett were married September 2, 1922, and three children (adult appellees) were born of the marriage. Mr. Burnett filed suit for divorce against her on the ground of incurable insanity and decree divorcing them was entered June 6,1962. On June 7, 1962, Mr. Burnett married Eunice Franklin Burnett and remained married to her until his death June 20, 1971. The bill of complaint charged that Burnett was entitled to a divorce from Mrs. Burnett because of her incurable insanity, with the understanding that the decree “shall not abridge or affect the rights of the defendant to inherit and provided further that the complainant shall enter into bond, if found to be necessary and proper by the court, in such an amount as the court may think just and proper, conditioned for the care and keeping of the defendant during the remainder of her natural life, as provided by law.” The prayer of the complaint asked for a divorce conditioned upon the foregoing provision.

The decree granting a divorce to Burnett ordered:

“[Tjhis decree shall not abridge or affect the rights of the Defendant, Floy Estelle Davis Burnett, Non Compos Mentis, to inherit from the Complainant, Rubin Clifford Burnett, nor shall it affect or abridge the right of the Defendant to have the Complainant provide for and support the Defendant, if the same becomes necessary during the remainder of her natural life, all as provided for by law.”

Prior to 1956, the statute pertaining to divorce on the ground of incurable insanity provided that the decree of divorce would not abridge or affect the right of the insane spouse to inherit from the other spouse, but the provision was deleted by amendment in 1956 and was not in effect at the time of the divorce in 1962. The statute did provide in 1962 the following:

“The status of the parties as to the support and maintenance of the insane person shall not be altered in any way by the granting of the divorce.
However, in the discretion of the chancery court, and in such cases as the court may deem it necessary and proper, before any such decree is granted on the ground of incurable insanity, the complainant, when ordered by the court, shall enter into bond, to be approved by the .court, in such an amount as the court may think just and proper, conditioned for the care and keeping of such insane person during the remainder of his or her natural life, unless such insane person has a sufficient estate in his or her own right for such purpose.” Miss. Code Ann. § 93-5-1 (1972).

The appellees take the position that the statutes of descent and distribution control and that, even by agreement, a person cannot change them. They further contend that a man may be survived by one widow, not two, that only the surviving widow could inherit from him, and that Eunice Franklin Burnett was the only legitimate widow who survived Burnett (after Burnett’s death, Eunice Burnett quitclaimed her interest in the land involved to the appellee children). Appellees also argue that the court has no authority to write into statutes exceptions regulating descent and distribution of property.

In the complaint for divorce and decree thereon, after stating that the right of inheritance should not be abridged, the words “as provided by law” were included. It appears, therefore, that Burnett and his attorney may have been unaware that the statutory provision for inheritance had been amended.

Appellant contends that the provision for Mrs. Burnett to inherit from her husband was voluntarily stated in the complaint and was sworn to; that the decree granted the relief prayed for (interest in estate property); and that the provision amounted to either an agreement for support or a property settlement to that extent.

The court in the divorce decree, did not require Mr. Burnet.t to execute a bond conditioned for the care and support of his wife, nor does the record reflect that she has sufficient property otherwise to sustain herself. There is nothing to indicate that he did, or did not, desire his second wife, whom he married the next day, to be disinherited. We construe the provisions of the decree to mean, and conclude, that Mr. Burnett contracted in the decree to care for and support his incompetent wife (widow) by providing that she have set aside to her a part of his estate. This is further indicated by the fact that, during his lifetime, he did not attempt to dispose of his property either by will, conveyance or by impressing a lien upon same. The case of In Re Estate of Kennington, 204 So.2d 444 (Miss. 1976) lends support to the position that the provisions of the decree should be construed to be a contract and support settlement. There the Court said:

“Nor can we say that such a contract violates any public policy of the State. A contract under which the husband obligates himself to make periodic payments to his wife so as to bind his estate after his death would seem to have a salutary purpose. It is nearer within that category of public policy which obligates the husband to support and provide for his wife and which underlies the statutory policy giving her the right to renounce his will if an attempt is made to exclude her from a share in his estate.” 204 So.2d at 449.

In Mahaffey v. First National Bank, 231 Miss. 798, 97 So.2d 756 (1957), a husband agreed, in property settlement, to transfer life insurance policies to his children in a consent divorce decree. He failed to do so, and the Court held that the children were clothed with the same interest and entitled to the same right as if the duty had been actually performed. The Court further said “equity regards that as done which ought to be done.” 231 Miss. at 821, 97 So.2d at 765.

We hold that the decree of divorce, following the sworn bill of complaint which asked that Mrs. Burnett inherit from her husband, was an enforceable contract and support settlement and the effect of same was to set aside unto Mrs. Burnett an interest in his estate to the extent of a child’s part, in this case, an undivided one-fifth (Vs) interest, and that she is now vested with that interest in the property of Mr. Burnett’s estate.

Therefore, the judgment of the trial court is reversed and judgment is rendered here for appellant.

REVERSED AND RENDERED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, BOWLING and COFER, JJ., concur.


author: COFER, Justice,

text:
    W. G. EADY v. J. B. EADY, Ruth Eady, Robert Liston Eady and Martha Jean Eady.
    No. 50569.
    Supreme Court of Mississippi.
    Sept. 27, 1978.

      Rainer & Sumrall, Pearl, Larry E. Clark, Taylorsville, J. Edward Rainer, Pearl, for appellant.
    Tullos & Tullos, Eugene C. Tullos, L. D. Pittman, Raleigh, for appellees.
    Before ROBERTSON, SUGG and COF-ER, JJ.
   COFER, Justice,

for the Court:

W. G. Eady, appellant, brought suit in the Chancery Court of Smith County to cancel cloud on title to land allegedly his, by appel-lees’ claim thereagainst. Defendants, ap-pellees here, are J. B. Eady and Robert Liston Eady, father and son, and their wives. Appellant and J. B. Eady are brothers, and the land involved came from the estate of their father. Appellant also prayed injunction against appellees’ assertion of title to the land and otherwise attempting to exercise dominion over it. Appellant claims record title by deed. Appel-lees claimed ownership by adverse possession. The chancellor entered decree in appellant’s favor as to part of the land, and upheld appellees’ adverse possession defense as to part thereof.

In 1948, appellees J. B. Eady and his wife, Mrs. Ruth Eady, conveyed to appellant:

South 50 acres of the north half of the northeast quarter, less the East 10 acres, Section 12, Township 4 North, Range 7 East.

By their deed they reserved the “right of free use, control and possession of the above described property the remainder of the natural life of their mother Mary Lula Eady, provided that the grantors therein pay all taxes on said property, look after and care for said property, but on the date of the death of their said mother, the conditions herein set out in the reservations are immediately terminated.”

Thereafter on February 25, 1959, appellant and appellees J. B. Eady and wife, Mrs. Ruth Eady, conveyed by quitclaim deed, all of the south 50 acres of the north half of the northeast quarter of Section 12, Township 4 North, Range 7 East, to appellants’ and appellee J. B. Eady’s mother, Mrs. Mary Lula Eady. When the purpose of this conveyance had been accomplished, Mrs. Mary Lula Eady executed warranty deed to appellant to the forty acres first herein-above described, the deed being dated March 13, 1959.

The record reveals that there is a fence on or near the property first hereinabove described running in a more or less northerly and southerly direction. Appellant claims, and the chancellor, by his decree, concluded that the fence runs through the land in dispute, causing some twelve acres thereof to be easterly of the fence (which the chancellor found to belong to appellees by adverse possession) and some twenty-eight acres to be westerly thereof (adjudged to appellant).

The record is clear that paper title to the entire forty acres is in appellant. Appellee Liston Eady who claims the land east of the fence disclaims in his testimony any title by adverse possession, asserting rather that the forty acres deeded as hereinabove set out is there, appellant has it, and it does not include any land east of the fence.

Appellant strongly denied any adverse possession of appellees ripening into title, but rather effectually asserted his own continued ownership of it and that appellees J. B. Eady and Liston Eady only occupied it, to the extent of their occupancy, by his permission and consent.

Several assignments of error addressed to the claim of adverse possession were made by appellant, and these will be decisive of this appeal.

Certain applicable legal principles are timely here. Persons relying on adverse possession as basis for their claim of title have the burden of proof on the issue. Kayser v. Dixon, 309 So.2d 526, 528 (Miss. 1975). For title to ripen in a claimant by adverse possession, the occupancy must be “actual, adverse, hostile, exclusive, peaceful, uninterrupted and continuous, under claim of ownership, open, notorious, and visible for the statutory period of ten years.” Kayser v. Dixon, supra, and authorities therein cited. Record title coupled with actual possession of a part of the land constitutes constructive possession of the whole, except that part of the land in conflicting actual possession of another. Evans v. Shows, 180 Miss. 518, 522, 523, 177 So. 786, 787 (1938), Shepherd v. Cox, 191 Miss. 715, 731, 1 So.2d 495, sugg. of error overruled, 4 So. 2d 217 (1941); Robinson v. Humble Oil and Refining Co., 253 Miss. 602, 625-626, 176 So.2d 307, 318 (1965).

These authorities precluded the running of adverse possession where occupancy is by permission of the owner or where the possession is not exclusive.

As to the first of these postures where the statute does not run, the record establishes that whatever possession appel-lee J. B. Eady, and those claiming with or under him had of the land in dispute, it was with the permission and consent of the record owner, the appellant. When appellee J. B. Eady and his wife deeded the land to appellant in 1948 they retained the use of it to the extent quoted hereinabove. When their mother had expired and appellant and J. B. Eady were returning from her interment, J. B. Eady asked appellant if he could continue to use the land as before, and appellant consented thereto. This permissive use continued until the year 1975 when the permission was about to be withdrawn.

As to the second of the factual situations barring the statute, the evidence wholly disproves any exclusiveness on ap-pellees’ part. In spite of vague claims by appellee Liston Eady as to payment of taxes, appellant produced receipts showing the land assessed for taxation in his name and paid for the years 1959-1976, inclusive. The sehoolhouse, well established as being on the land east of the fence, was dismantled by authority of appellant; the barn or cotton house on the east side of the fence was used, at least from time to time, by appellant; he sold timber on the land two times; he gave an oil lease on it in 1965; and he denied to appellee J. B. Eady permission to cut timber from it. If it be conceded that appellees were occupying the land adversely to appellant, the possession would have to be described as scrambling, for appellant was active upon it also.

In addition to this proof, the record shows (not without contradiction) that appellee Martha Jean Eady, Liston’s wife, asked appellant’s wife that, if they ever decided to dispose of the forty acres, they sell it to Liston. In 1975, when appellant was about to lease the land and was establishing the boundaries, Liston asked that the land be leased to him instead. Appellee J. B. Eady proposed to appellant that he sell the land to Liston.

Appellant and appellee J. B. Eady had a brother, Oliver, who used appellant’s land west of the fence by agreement with appellant, Oliver Eady left a son, James, at his decease, and James testified in the trial. He testified he was familiar with the fence; about 1974 he testified he and appellee J. B. Eady repaired the fence in question after some cattle had torn it down, and, as they were doing so, they discussed the need for a new fence and concluded that such was not then proper because sooner or later, J. B. Eady said appellant would claim his holdings, and then the fence would be relocated; they did not discuss the proper place for the fence, but that it would be relocated and rebuilt at such time as appellant would take possession of the entire forty acres.

He testified further that Liston visited him in Jackson in April 1975 and acknowledged the fact that the land belonged to appellant, prompted by the fact that the witness and others were drawing up leases for the witness’ place and appellant’s place jointly, and inquired if appellant intended to fence the land Liston was using, and Liston asked him if appellant would lease to him the part of the land he had been using.

We conclude that appellees did not establish their title to any of the forty acres of land by adverse possession as was their burden, and reluctantly as is always true, we find the chancellor’s decision on. the part of the land east of the fence to be contrary to the overwhelming weight of the evidence.

That part of the chancellor’s decree finding and adjudicating title to the land other than that on the east side of the fence, to be in appellant and removing any cloud of appellees therefrom and enjoining them from asserting claim to, or trespassing upon, or interfering with appellant’s use thereof, is affirmed. We reverse that part of the decree dismissing appellant’s bill of complaint as to the land east of the fence, and award to appellant the relief prayed as to the entire forty acres.

We remand the case for survey and location of the boundaries of the land involved and direct that the chancery court put appellant in exclusive possession of the land within the boundaries of said survey.

AFFIRMED IN PART, REVERSED AND RENDERED IN PART, AND REMANDED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


text:
    Dr. Z. L. WEATHERFORD v. Arlin BROWN and Mary Nell Brown.
    No. 50677.
    Supreme Court of Mississippi.
    Sept. 27, 1978.
    Sam M. Reedy, Fulton, for appellant.
    Jimmy E. McElroy, Fulton, for appellees.
   Appeal from Chancery Court, Itawamba County; James E. Bost, Chancellor.

Before PATTERSON, C. J., SUGG and BOWLING, JJ., and EDWARD C. PRI-SOCK, Commissioner.

AFFIRMED.


text:
    In the Matter of the Petition for Adoption by John Clifton BARRETT, Jr. and Beverly Thomas Seal Barrett v. Richard L. SEAL.
    No. 50667.
    Supreme Court of Mississippi.
    Sept. 27, 1978.
    Joseph M. Stinson, Tylertown, for appellant.
    Sebe Dale, Columbia, for appellee.
   Appeal from Chancery Court, Walthall County; Bert H. Jones, Chancellor.

Before PATTERSON, C. J., SUGG and BOWLING, JJ., and EDWARD C. PRI-SOCK, Commissioner.

AFFIRMED.


text:
    PINE MEADOWS, INC. v. UNIFIRST FEDERAL SAVINGS & LOAN ASSOCIATION.
    No. 50597.
    Supreme Court of Mississippi.
    Sept. 27, 1978.
    Mitchell M. Lundy, Grenada, Howie, Montgomery & Montjoy, Jackson, Gore & Gore, J. Gore, Jr., Grenada, for appellant.
    Brunini, Grantham, Grower & Hewes, > George P. Hewes, III, W. David Watkins, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Before ROBERTSON, P. J., and SUGG and COFER, JJ.

AFFIRMED.


text:
    Dudley M. SCIPLE v. Rita D. Sciple CROMBIE.
    No. 50678.
    Supreme Court of Mississippi.
    Sept. 27, 1978.
    Goldman & Goldman, Robert M. Dreyfus, Jr., Meridian, for appellant.
    Lawrence W. Rabb, Meridian, for appel-lee.
   Appeal from Chancery Court, Noxubee County; Lenore L. Prather, Chancellor.

Before PATTERSON, C. J., and SUGG and BOWLING, JJ.

AFFIRMED.


text:
    Jerry Lamar POLLARD v. Cheryl Smith Pollard BARNHILL.
    No. 50662.
    Supreme Court of Mississippi.
    Sept. 27, 1978.
    Singley, Minniece, Neville & Hamill, Paul M. Neville, Meridian, for appellant.
    Bourdeaux & Jones, Thomas R. Jones, Meridian, for appellee.
   Appeal from Chancery Court, Lauderdale County; Howard Pigford, Chancellor.

Before PATTERSON, C. J., and SUGG and BOWLING, JJ.

AFFIRMED.


text:
    Clarence MATTHEWS v. STATE of Mississippi.
    No. 50680.
    Supreme Court of Mississippi.
    Sept. 27, 1978.
    Pool & Hudson, John N. Hudson, Natchez, for appellant.
   Appeal from Circuit Court, Adams County; Lennox L. Forman, Judge.

A. F. Summer, Atty. Gen., by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before SMITH, P. J., and WALKER and BOWLING, JJ.

REVERSED AND REMANDED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, BROOM, LEE and COFER, JJ., concur.


text:
    ESTATE of Sally PATRICK and Gaines Hinton et ux. v. Seig COAKER and Esther Coaker.
    No. 50646.
    Supreme Court of Mississippi.
    Sept. 28, 1978.
    Guy M. Walker, Laurel, Paul S. Griffith, Waynesboro, for appellants.
    W. Vol Jones, Jr., Waynesboro, for appel-lees.
   Appeal from Chancery Court, Wayne County; J. Shannon Clark, Chancellor.

Before SMITH, P. J., and WALKER and BOWLING, JJ.

AFFIRMED.