text:
    Mrs. Jewel Mauterer, widow of Fred “Fritz” MAUTERER, Sr., et al. v. ASSOCIATED INDEMNITY CORP. and Fireman’s Fund Insurance Company et al.
    No. 7428.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.

      Leydecker, Bates & Hand, Gerald J. Ley-decker, New Orleans, for Mrs. Jewel Mauterer, and others, plaintiffs-appellants.
    Dillon & Williams, Gerard M. Dillon, New Orleans, for Associated Indemnity Corp., defendant-appellee.
    Before SAMUEL, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

Plaintiffs, the wife and children of Fred J. Mauterer, Sr., filed suit for the wrongful death of Mr. Mauterer. This suit was brought against several executive officers of the company that employed Mauterer. The suit named Associated Indemnity Corporation as the insurance carrier for the liability of these executive officers. The defendant insurance company filed a motion for summary judgment contending that the two policies it had in effect with Mauterer’s employer did not cover liability for the named executive officers. The trial court granted this motion for summary judgment and plaintiffs have appealed. We affirm.

The facts show that Fred J. Mauterer, Sr. was employed as a pipe fitter with the Sam P. Wallace Company, Inc. The Wallace Company was doing subcontract work at the Murphy Oil Refinery when the accident occurred. Mauterer was assisting in the loading of a flat bed truck with heavy steel pipe when one of the stanchions used to hold the pipe on the truck gave way before the pipes could be secured by a chain. Mauterer was beneath the pipe when it rolled off the trailer and was crushed to death.

The first issue is the coverage afforded under the terms of a comprehensive general liability policy. It is contended that the occurrence or operation is excluded from coverage by the facts in this case. The policy in pertinent part reads as follows:

“Exclusions
This insurance does not apply:
* * * * * *
(b) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of
(1) any automobile or aircraft owned or operated by or rented or loaned to the named insured, or . . . . ”

Under the Definitions section of the policy the term automobile is defined as follows:

“ ‘automobile’ means a land motor vehicle, trailer or semitrailer designed for travel on public roads (including any machinery or apparatus attached thereto), but does not include mobile equipment.”

The policy by its terms clearly excludes from coverage the situation in this case. Plaintiffs argue that since the trailer was being loaded by a “cherry picker” (which comes within the definition of mobile equipment) then the accident arose out of loading by mobile equipment and not loading • of a trailer. This argument is purely semantical and creates no issue of material fact. . The accident arose out of the failure of a stanchion on the trailer that was being loaded. The terms of the policy could not more clearly exclude this situation from coverage. When the terms of the policy are clear and unambiguous they form the law between the parties. RCC article 1901 and 1945; Jennings v. Louisiana and Southern Life Insurance Co., 280 So.2d 291 (La.App. 1st Cir. 1973). The words in an insurance policy are to be understood in the common ordinary sense without resort to grammatical rules. RCC article 1946; Schwegmann Bros. Giant Supermarkets v. Underwriters at Lloyd’s, London, 300 So.2d 865 (La.App. 4th Cir. 1974).

The second issue deals with coverage under the terms of the comprehensive automobile liability policy. Plaintiffs’ contention is that if Mauterer was killed loading an “automobile” then the automobile policy ought to apply. Defendants again point to an exclusion in that policy, excluding the persons involved.

The exclusion at issue is on page 3 of the policy under the section,

“Persons Insured”
“None of the following is an insured
(i) any person while engaged in the business of his employer with respect to bodily injury to any fellow employee of such person injured in the course of his employment; . . . ”

It is not at issue that Mauterer was in the course of his employment when killed and that the negligence complained of by plaintiffs arose solely from the executive officers engaging in the business of the Sam P. Wallace Company. The sole issue becomes are the executive officers to be included within the meaning of the words “fellow employee”?

This exclusion is commonly known as the “cross-employee exclusion” and its intent is to deny coverage to employees that have a remedy under the Workmen’s Compensation Act. Manuel v. Liberty Mutual Insurance Co., 256 La. 480, 236 So.2d 807 (S.Ct.1970); Myers v. Fidelity and Casualty Company of New York, 152 So.2d 96 (La.App. 3rd Cir. 1963).

The question of whether an executive officer is an “employee” within the meaning of the cross-employee exclusion has recently been answered in the federal courts, Heiser v. Gibson, 386 F.Supp. 901 (E.D.La.1974). The court in Heiser, citing Manuel v. Liberty Mutual Insurance Co., supra, held that in determining whether an executive officer is an employee it is proper to look to the Workmen’s Compensation Act. LSA R.S. 23:1044 states that executive officers are deemed to be employees for purposes of receiving compensation benefits. This being true they ought to also be employees for purposes of interpreting an insurance contract provision, the intent of which is to exclude persons with a remedy under the Workmen’s Compensation Act.

Plaintiffs make one final argument worthy of mention. The exclusions relating to persons insured further states:

“None of the following is an insured
******
(iii) an executive officer with respect to an automobile owned by him or by a member of his household; ...”

Plaintiffs’ contention is that since executive officers are specifically mentioned in subsection (iii) they must logically be excluded from subsection (i), supra, since they are not specifically mentioned there. We find no merit in this argument since there is no prohibition against twice excluding a certain class of people from coverage under the policy. Subsections (i) and (iii) relate to different circumstances surrounding the exclusions. Plaintiffs aver that at the very least subsections (i) and (iii) are ambiguous and create a material issue of fact. We perceive no ambiguity, but assuming there was, the issue would be a question of law and not a question of fact. CCP article 966; Ocmond v. Eserman, 259 So.2d 600 (La.App. 4th Cir. 1972).

For the foregoing reasons the judgment of the trial court is affirmed. Plaintiffs are to pay all costs.

AFFIRMED.

      . The tractor of the truck was owned by Wallace and the trailer was rented from Gill Truck and Trailer Rentals, Inc.

      . The record contains a petition of intervention by Associated Indemnity Corporation. This petition alleges that Mrs. Jewel Mau-terer, the widow, has been receiving compensation benefits. The record does not reflect an answer to this petition by plaintiffs.


source: Caselaw Access Project

author: SAMUEL, Judge.

license: Public Domain

text:
    Ruben SPILLMAN v. Wayne P. PARKER, Registrar of the Bureau of Vital Statistics of the City of New Orleans.
    No. 7435.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.

      Little, Schwartz & Dussom, William E. Wright, Jr., New Orleans, for plaintiff-ap-pellee.
    James P. Screen, New Orleans, for defendant-appellant.
    Before SAMUEL, LEMMON and BEER, JJ.
   SAMUEL, Judge.

Relator filed a petition for a writ of mandamus directing the Registrar of the Bureau of Vital Statistics of the City of New Orleans to produce relator’s original birth certificate and judgment of adoption for the purpose of ascertaining whether or not relator may have inherited property from his biological father and mother. Following trial of the rule to show cause, the registrar was directed to produce the birth certificate and judgment of adoption for relator’s inspection. Respondent has appealed suspensively.

The record reflects that relator was adopted by a judgment executed on or about April 1, 1934, and that, through conversations with his adoptive grandmother from the time he was five years old, he had been led to believe his natural parents were people of property. The plaintiff is now forty-one years old. His adoptive father is deceased and his adoptive mother is seventy years of age.

The trial judge opened the sealed envelope and examined the documents. He saw no reason why these documents should not be made available to the adopted child. The envelope was then resealed. The records sought by relator are in the possession of the appellant by virtue of LSA-R.S. 40:201 and 202.

Appellant contends: (1) the legislature intended that all adoption records should be handled in a most confidential manner; (2) the adopted child seeking the record of his biological parents should be compelled to come forward with substantial proof of the necessity for divulging this information; and (3) the information pertaining to adoptions should be released only to the court and not to the adopted child.

We agree with appellant’s first contention. As set out in R.S. 46:65 G, as well as R.S. 9:422 through 441 inclusive, and particularly R.S. 9:437, the legislature intended all adoption records should be handled in a most confidential manner.

Relative to defendant’s second contention, the right of anyone to see the documents once sealed is provided for in R.S. 40:209 A which provides in pertinent part:

“This sealed package shall be opened only on the order of a competent court either upon its own motion, or upon the demand of the adopted child or the adoptive parent, or the department.” LSA-R.S. 40:209 A.

This statute clearly specifies the circumstances under which the order should issue: (1) upon the court’s own motion, or upon the demand of (2) the adopted child, (3) the adoptive parent, or (4) the department. By specifying the record shall be produced by court order upon the demand of the adopted child, it appears the adopted child may have the unqualified right to the court order without giving any reason therefor. However, that question is not before us. Here relator has given a valid reason for his demand.

As contended by relator, the denial of a right of inspection would have the effect of violating the right of inheritance the adopted child may have as a forced heir in the successions of his blood parents. In addition to becoming a forced heir of his adopting parents, under the provisions of Civil Code Article 214 an adopted child retains his right to inherit from his legitimate biological parents and other blood relatives. In pertinent part the article provides :

“ . . . the adopted person and his lawful decedents are relieved of all of their legal duties and divested of all of their legal rights with regard to the blood parent or parents and other blood relatives, except the right of inheritance from them.’’ LSA-C.C. Art. 214. (Emphasis ours).

Relative to appellant’s third contention, it would serve no useful purpose to permit the court to view the adoptive records and not disclose the contents ■ to the person who by law is entitled to its production. We are of the opinion the proper interpretation of this provision is simply that the records cannot be divulged to those persons entitled to seek them except by court'order. Every adopted child in this state could have an heirship interest in the successions of his biological parents. In the absence of knowledge as to whom these parents might be, the child is effectively prevented from seeking his rightful share in those successions.

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

AFFIRMED.

      . “When any person, who adopted prior to July 27, 1938, any person born in Louisiana, by observing the legal requirements for adoption in Louisiana existing at the time of the adoption, presents the original or a certified copy of the birth certificate of the adopted person and a certified copy of a final judgment decreeing the adoption or the notarial act of adoption, in accordance with the legal requirements existing on the date of the judgment or act of adoption, the division of public health statistics, if the adopted person was born outside the parish of Orleans, or the local registrar for the parish of Orleans, if the adopted person was born there, shall make a record showing:
      (1) The date of birth of the person adopted;
      (2) The new name of the person adopted, if his name was changed in accordance with law; and
      (3) The names and addresses of the adoptive parents.” LSA-R.S. 40:201.
      “Upon completion of the record provided for in R.S. 40:201, the Division of Public Health Statistics or the local registrar for the parish of Orleans, as the case may be, shall issue to the adoptive parents a certified copy of the record and., shall place the original birth certificate and the copy of the judgment or the copy of the act of adoption in a sealed package and shall file the package in its archives. This package shall be opened only by order of a court of record.” LSA-R.S. 40:202.

      . “G. Notwithstanding any other provision of this Section, information pertaining to adoption of children shall be strictly confidential and shall only be released to courts of competent jurisdiction in accordance with existing laws.” LSA-R.S. 46:65 G.

      .“A. All the proceedings provided in this Sub-part shall be heard by the judge in chambers, and no one shall be admitted to the hearings except the parties in interest, their attorneys, and officers of the court. Records of the proceedings shall not be open to inspection except on written authorization by the court, and there shall be no publication thereof. No one except the judge presiding in the case, or his successor, shall have access to the confidential report rendered to the judge by the department. The court may punish for contempt anyone violating the provisions of this Section.
      B. The clerks of the respective juvenile courts shall keep separate indices of all suits filed in accordance with this Sub-part, and shall index these suits in the name of the parties filing the petition and in the name of the child to be adopted. These records are subject to the same safeguards as are prescribed for all proceedings. Following final disposition of the case, all confidential reports submitted by the department to the judge may in the judge’s discretion be destroyed or returned to the department or be retained in confidential files.
      O. All adoption records of agencies shall be retained in confidential files and it shall be unlawful, except for purposes directly connected with the agencies’ responsibilities in relation to adoption work, and then subject to the agencies’ rules and regulations, to disclose any information concerning any individual adoption case. Any person who violates the foregoing provision shall be fined not more than five hundred dollars or imprisoned for not more than ninety days, or both.” LSA-R.S. 9:437.


author: GULOTTA, Judge.

text:
    Earl J. RODDY and Etienne P. Millet v. NORCO LOCAL 4-750, OIL, CHEMICAL & ATOMIC WORKERS INTERNATIONAL UNION.
    No. 7425.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.

      William D. O’Regan, III, LaPlace, for plaintiffs-appellees.
    Jackson & Hess, Dennis M. Angelico, Victor H. Hess, Jr., New Orleans, for defendant-appellant.
    Before REDMANN, GULOTTA and STOULIG, JJ.
   GULOTTA, Judge.

Defendant, Norco Local 4-750, Oil, Chemical & Atomic Workers International Union, hereafter referred to as Local 4— 750, appeals from a summary judgment.

Plaintiffs allege that a judgment, not yet satisfied, was awarded in their favor on December 6, 1965, against the Independent Oil & Chemical Workers of Louisiana, hereafter referred to as Independent. Plaintiffs assert that an affiliation agreement was entered into between Independent and Oil, Chemical & Atomic Workers International Union. As a result of the agreement, plaintiffs contend that Independent’s name was changed to Norco Local 4-750, an dLocal 4-750 “in its latter name International Union. According to plaintiffs, defendant is the same legal entity as Independent, the only change being in name, and defendant is liable for the judgment rendered on December 6, 1965, against Independent.

In support of their claim, plaintiffs point out that in a proceeding in the United States District Court for the Eastern District of Louisiana, defendant asked the Federal court to substitute Local 4-750 as plaintiff for Independent, since the name of Independent had been changed to Local 4 — 750, and Local 4 — 750 “in its latter name . succeeded to all rights and properties held under its former name”. According to plaintiffs, in view of defendant’s judicial admission and acknowledgement that the two unions were one and the same entity, no genuine issue of material fact exists, and plaintiffs are entitled to a summary judgment against Local 4 — 750.

In opposition to the motion for summary judgment, defendant attached an affidavit of the president of Local 4-750, in which it was denied that defendant is the same entity as Independent. The president’s affidavit further asserts that Local 4-750 only became the bargaining agent for the Norco Refinery of Shell Oil Company and that the workers at the Shell Chemical Plant in Norco have operated as the Independent Chemical Workers Union of Norco, later changed to Chemical Workers Union of Louisiana. Defendant contends that the trial judge erred in granting a motion for summary judgment in favor of plaintiffs because the affidavit attached to the opposition demonstrates that a genuine issue of material fact exists and that in such instance a summary judgment should not be granted. See LSA-C. C.P. art. 966. We agree.

In an exception of no cause of action filed in the trial court, defendant asserts that the 1965 original judgment in favor of plaintiffs was rendered against a named defendant, i.e., Independent Oil & Chemical Workers of Louisiana, and by its terms does not cast in judgment the defendant, Local 4-750. The thrust of the exception is if defendant, Local 4-750, is liable for the original judgment, the result would be to change the very terms of the original judgment, which has now become final.

In an exception of res judicata, defendant claims that in the case of Roddy v. Independent Oil and Chemical Workers Union, 233 So.2d 714 (La.App. 4th Cir. 1970), we affirmed the trial court’s dismissal of a rule to show cause, directed against Local 4 — 750 by plaintiffs, in which it was asserted that Local 4-750 be substituted as defendant in lieu of Independent. According to defendant, our judgment affirming the dismissal is now final, defendant’s separate identity has been established and the question before us is res judicata.

As pointed out by defendant, the trial judge did not rule on the exceptions of no cause of action or res judicata. It is well settled that when a trial judge refers exceptions to the merits of the case and decides the matter on its merits, without reference to the exceptions, the exceptions are considered to have been overruled. See Palama v, Livaudais, 182 La. 1035, 162 So. 765 (1935); Humble Oil & Refining Company v. Doughty, 254 So.2d 313 (La.App. 4th Cir. 1971). However, in the instant case, although the trial judge did not refer the exceptions to the merits, the granting of the summary judgment had the effect of overruling the exceptions.

With respect to defendant’s exception of no cause of action, plaintiffs’ petition alleges that Local 4-750 is the same legal entity as Independent. It is well settled in our jurisprudence that for the purposes of an exception of no cause of action, all well-pleaded allegations of the petition are accepted as true. See Borenstein v. Joseph Fein Caterers, Inc,, 308 So.2d 396 (La.App. 4th Cir. 1975). We find no merit to the exception of no cause of action. This exception is overruled.

We conclude also that defendant’s exception of res judicata is without merit. In Roddy, supra, this court merely concluded that summary proceedings could not be used by judgment creditors to substitute Local 4-750 for Independent. The issue before us in the instant case was never reached by this court in Roddy, supra. The exception of res judicata is overruled. See LSA-C.C. art. 2286.

Accordingly, the summary judgment in favor of plaintiff is annulled, vacated and set aside. The matter is now remanded to the trial court for further proceedings consistent with the views expressed herein-above.

ANNULLED AND REMANDED.

      . LSA-C.C.P. art. 966 reads:
      Art. 966. Motion for summary judgment; procedure
      “The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff’s motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
      “The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the day of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

      . LSA-C.C. art. 2286 reads:
      Art. 2286. Res judicata, essential elements
      “The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action ; the demand must be between the same parties, and formed by them against each other in the same quality.”


author: GUIDRY, Judge. PETERS, Judge

text:
    Walter J. GUIDRY et ux., Plaintiffs-Appellants, v. Berna D. COMO et al., Defendants-Appellees.
    No. 5360.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.

      Ralph J. Hanks, Jr., Lake Charles, for plaintiffs-appellants.
    Plauché, Smith & Hebert, by A. L. Plauché, Jr., Lake Charles, for defendants-appellees.
    Before HOOD, GUIDRY and PETERS, JJ-
   GUIDRY, Judge.

This is a tort suit wherein plaintiffs sought to recover special and general damages allegedly sustained as a result of an intersectional collision between a vehicle owned and driven by plaintiff, Walter Guidry and one owned and driven by defendant, Berna D. Como. Plaintiff, Walter Guidry, was joined in this suit by his wife, Hilda, who was riding as Walter’s guest passenger. Also made defendant is the insurer of the Como vehicle, Fireman’s Fund Insurance Company. The defendants filed answer denying any negligence on the part of Berna Como and in the alternative alleged that plaintiffs were contributorily negligent. In addition, defendants filed a reconventional demand urging that in the event it be determined that both drivers were negligent defendants are entitled to indemnity and/or contribution from plaintiff, Walter Guidry for all amounts they may be ordered to pay to Hilda Guidry. The trial court found both drivers negligent but determined that Hilda Guidry was free of negligence, and accordingly rendered judgment rejecting plaintiff, Walter J. Guidry’s demands; allowing recovery of general damages by plaintiff, Hilda Guid-ry, in the sum of $1500.00; and, recovery by defendants, plaintiffs in reconvention, from Walter J. Guidry of one-half of the award made to Hilda Guidry. Walter J. Guidry, plaintiff and defendant in recon-vention has perfected this appeal. Hilda Guidry did not appeal and defendants have neither appealed nor filed answer to the appeal of plaintiff, Walter Guidry. Accordingly, the judgment of the trial court as to Hilda Guidry is final.

The accident giving rise to this litigation occurred at the intersection of Enterprise Boulevard and Jackson Street in the City of Lake Charles, Louisiana. This intersection is controlled by a mechanical traffic light. Plaintiff was proceeding south on Enterprise Boulevard and was one of several cars in a funeral procession. The automobiles comprising the funeral procession had their head lights burning and were proceeding about ten miles per hour maintaining a distance of one to two cars lengths between each car. Defendant was driving west on Jackson Street. When defendant arrived at the intersection the traffic light was red for Jackson Street traffic so defendant stopped. The funeral procession at that time was passing through the intersection southbound on Enterprise Boulevard. As plaintiff approached the intersection the traffic light changed, giving Jackson Street traffic a green light and Enterprise Boulevard traffic a red light. The collision occurred when plaintiff drove through the intersection on a red light and defendant, Como, proceeded on a green light but between the vehicles comprising a funeral procession.

The trial court determined that defendant, Como, although she proceeded on a green light, was negligent in driving between the vehicles comprising a funeral procession in violation of Lake Charles City Ordinance No. 1317, Section 12-50. In support of this conclusion the court pointed to the fact that while Mrs. Como was stopped at the traffic light on Jackson Street several cars, with lights on, moving at a steady pace passed through the intersection traveling south on Enterprise Boulevard. As held by the trial court this was sufficient notice to Mrs. Como that she could no longer rely on the right-of-way given her by the green light. Mrs. Como’s entry into the intersection under these conditions clearly constituted negligence on her part which was a proximate cause of the accident.

Plaintiff, Walter J. Guidry, was also found to be negligent by the trial court. Mr. Guidry testified that as he approached the intersection he noticed the defendant, Como, stopped on Jackson Street. Mr. Guidry admitted he proceeded into the intersection without further attention to the defendant’s automobile, nor did he watch the traffic light to ascertain whether it would be green when he started through. In this connection Mr. Guidry candidly stated, “I was in a funeral procession so I just went on”. The testimony was conclusive that when the Guidry car crossed the intersection the light was red for traffic on Enterprise Boulevard. Considering these uncontroverted facts we, like the trial court, find that the plaintiff, Walter J. Guidry, was negligent in the operation of his vehicle and that his negligence was a proximate cause of the accident.

Plaintiff, Walter J. Guidry, contends that he was not negligent under the circumstances because Lake Charles City Ordinance No. 1317, Section 12-50, grants to drivers in a funeral procession an absolute right-of-way over all other vehicles proceeding on intersecting streets. In support of this argument plaintiff cites the case of Carroll v. Zurich Company (La.App.3rd., 1967), 200 So.2d 765. An examination of Carroll, supra, reveals that under the facts of that case the cited ordinance was not applicable because as found by the court plaintiff having lagged far behind the main body of the procession, plaintiff’s vehicle could not fairly be considered a part of the funeral procession. There is only a slight implication in that decision that the ordinance in question gives a preferential right-of-way at traffic controlled intersections to vehicles in funeral processions, but at best this language is dictum. In any event, the more recent views of this Court on the subject, as expressed in Deshotel v. Southern Farm Bureau Casualty Insurance Co., (La.App.3rd Cir., 1969) 224 So.2d 191, and Funderburk v. Rayfield, (La.App.3rd Cir., 1973) 274 So.2d 777, would be controlling. In Deshotels and Funderburk, supra, this Court in considering the effect of the same or similar ordinances, determined that such an ordinance did not give the driver in a procession an absolute right to disregard traffic signals. The court in Funderburk, supra, stated:

"To allow participants in a procession to drive through intersections in wanton disregard of the traffic signals set up to control passage through the intersection would be to give such persons rights which are not even afforded to operators of emergency vehicles. LSA-R.S. 32:125; Dupre v. Carter, La.App., 250 So.2d 831. This we are not prepared to do."

We agree with the trial court that the accident giving rise to this litigation was caused by the joint negligence of Walter J. Guidry and Berna D. Como and accordingly the judgment of the trial court dismissing the demands of plaintiff, Walter J. Guidry, and on the reconventional demand in favor of plaintiffs in reconvention and against Walter J. Guidry for contribution of one-half of the award to Hilda Guidry should be affirmed.

For the reasons assigned the judgment of the trial court is affirmed at the cost of plaintiff-appellant, Walter J. Guidry.

AFFIRMED.

PETERS, J., concurs and assigns written reasons.

PETERS, Judge

(concurring).

I agree the judgment of the lower court dismissing Walter J. Guidry’s demands against Berna D. Como and her insurer should be affirmed because defendant Ber-na D. Como was not negligent.

The evidence shows defendant did not realize a funeral procession was passing through the intersection. When defendant arrived at the intersection the light was red for Jackson Street traffic so defendant stopped. She remained stopped until the light turned green in her favor, a period of some five to ten seconds, and she testified she did not observe any cars on Enterprise Boulevard during that time. When the light changed she had no knowledge that a funeral procession was going through the intersection. It is well-settled that a motorist with a green light has the right to assume that other motorists will stop in obedience to the red light facing them. Guidry v. Messina (La.App. 4th Cir., 1974), 294 So.2d 559; Deshotel v. Southern Farm Bureau Casualty Insurance Co. (La.App. 3rd Cir., 1969), 224 So.2d 191. Defendant therefore was not negligent in assuming she could safely drive into the intersection.

For the reasons assigned, I respectfully concur.


author: STOULIG, Judge.

text:
    Richard E. DEICHMANN v. ALTO EMPLOYEES’ TRUST and A. A. Harmon, Sr., as Trustee of Alto Employees’ Trust.
    No. 7342.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.
    Rehearing Denied June 9, 1976.
    Writ Refused Sept. 24, 1976.

      Klein & Klein, Donald S. Klein, New Orleans, for plaintiff-appellant.
    Chaffe, McCall Phillips, Toler & Sarpy, Kenneth W. Jacques, New Orleans, for defendants-appellees.
    Before SAMUEL, ' LEMMON and STOULIG, JJ.
   STOULIG, Judge.

Plaintiff, Richard E. Deichmann, filed suit for payment of his proportionate interest of $75,500 in the Alto Employees’ Trust that he alleged became due when he terminated his employment with Alto Trailer Sales, Inc. The answer filed for defendants, A. A. Harmon, Sr., trustee, and the trust itself, claimed the trustees elected to defer payment to plaintiff to his retirement age, which they were authorized to do under the trust agreement, as amended. From a judgment dismissing his suit, plaintiff has appealed.

In this appeal we are concerned only with the distribution provisions of the trust instrument and amendments thereto. By way of background we note the trust is a qualified, noncontributory profit sharing fund, wholly financed by annual contributions of up to 15 percent of the employer’s net profits. Its approval by Internal Revenue Service as a qualified plan permits beneficiaries to defer tax payment on their interest until they receive distribution. This affords each participant an opportunity to control to some extent the rate of taxation on his interest and generally, if the funds are paid out after the beneficiary becomes 65, his income at that time is considerably less than in his earning years, thus his tax rate is lower.

Under the original trust agreement if an employee leaves the company before retirement, the trustees were required to remit his interest in the fund within 60 days of the end of the fiscal year within which the employee severed his connection with the company. However, in a general amendatory reservation clause, the settlor reserved broad rights to change any provision of the instrument other than those relating to the financial interest of the beneficiary.

In 1965, the agreement was amended and with respect to distribution to terminated employees, it deleted the mandatory payment provision and substituted in its place several modes of payment, including, but not limited to, lump sum payment, installment distribution or deferment until retirement age. The option was with the trustees, not the beneficiary.

Plaintiff, a participant in the fund since its inception, left the company in December 1971 after 14 years of service. Some two and one-half years later, in a letter dated July 9, 1974, addressed to A. A. Harmon, Sr., president of Alto Trailer Sales, Inc., and also a trustee, plaintiff requested payment of his proportionate interest in the trust. Deichmann testified he made several unsuccessful verbal demands for payment and was finally instructed by Mr. Harmon, Sr., to write a letter setting forth his reasons for applying for his funds “at this time.” The trustees deny that oral demands for payment were made; however we need not resolve this factual dispute to reach a result.

The record reflects that at this time the Alto trustees had voluntarily distributed to IS terminated employees their interests in the fund even though they left the company after the 1965 amendment went into effect. Defendants explain this was done because the interests were not large enough to contribute significantly to each employee’s retirement fund. Therefore, since it would not constitute a meaningful supplement to retirement viewed from the beneficiaries’ interests, there was no need to retain their money.

There was one instance after 1965 where the trustees paid out $32,870.07 interest in the fund to a terminated employee, but this was only after judgment was rendered against one of the trustees ordering the distribution. That case was Martinez v. Alto Employees’ Trust, 273 So.2d 735 (La.App. 4th Cir. 1972), in which the employee essentially raised the same issues that we are now asked to decide. The court in Martinez found it necessary only to pass upon the issue of whether or not the trustees abused their discretion in failing to pay the participant’s share in a slump sum upon his demand even though he had not reached the age of retirement.

In Martinez it was also pointed out there was a close connection between Alto Trailer Sales, Inc., and Alto Employees’ Trust; that A. A. Harmon, Sr., and his two sons were officers of the corporation and sole trustees; that all three participate in the trust as beneficiaries; and that the trust account is administered and audited by a Harmon-owned firm. Mr. Harmon, Sr., testified in that case that a persuasive factor in withholding Martinez’s funds was to prevent him from using them as capital to engage in competition with Alto Trailer Sales, Inc. In support of its conclusion that the trustees had abused their discretion and breached their fiduciary obligation owed to the beneficiary, this court stated in Martinez at pages 737 and 738:

“A trustee owes a great fiduciary duty to the beneficiary of the trust. LSA-R. S. 9:2082 provides: ‘A trustee shall administer the trust solely in the interest of the beneficiary.’ (Emphasis ours.) In the exercise of his discretionary powers a trustee must act not only reasonably, but with the highest good faith toward, and loyalty to, the beneficiary and in the latter’s best interest.
“It is obvious to us that the largeness of appellant’s interest coupled with the fact that Mr. Harmon felt appellant would be going into competition with his company, Alto Trailer Sales, particularly the latter, spurred the trustees to refuse immediate payment because such payment would be detrimental to Alto Trailer Sales. Insofar as is shown by the record this appears to be the only reason for the refusal. The consideration for non-payment was therefore not what was in the best interest of the beneficiary, but rather what was best for Alto Trailer Sales.”

In the case before us, we weigh the decision of the trustees to defer payment until plaintiff’s normal retirement age in the light of whose interest this best serves. Stated another way, we evaluate the trustees’ testimony to determine whether they were acting solely for plaintiff’s best interest. Uniformly, they all recited the purpose of the plan was to furnish a source of revenue to supplement social security payments the participants would receive after they reach age 65 and they said this was the basis for their decision in plaintiff’s case. It was established plaintiff has a high earning capacity and will be eligible for a military service pension and owns revenue producing rental property. At the time this decision was made it could not reasonably be projected that plaintiff’s source of funds on retirement would be limited to social security benefits. This consideration in itself would be an insufficient basis for substituting our judgment for that of the trustees if their own literature on the trust did not indicate a social security supplement was only one of the considerations in forming the trust.

In reviewing the July 31, 1959 explanatory memorandum distributed by Alto Employees’ Trust to Alto Trailer Sales, Inc., employees, it is obvious that the “primary purpose” of the plan was to permit employees to share in the net profits of their employer and enjoy the tax advantages offered to participants in a qualified plan. We quote:

“The Alto Trailer Sales, Inc., has established a profit-sharing plan to reward loyal and faithful service, and to furnish each of you with an opportunity to provide a degree of security for your old age, or, in the event of death, to better provide for your families. Naturally, in either event, this fund will be a supplement to old age payments or survivors’ benefits which present social security laws now provide.
******
“The primary purpose of the Alto Employees’ Trust is to enable all of the em ployees of Alto Trailer Sales, Inc., to share in the company’s profits. Under the provisions of the plan approved by the Internal Revenue Service, the company may pay over to the trust an annual amount not to exceed 15% of the participating employees’ compensation.” (Emphasis added.)

While it is true the idea of the beneficiary’s interest as a supplement to social security was considered by the settlor, had it been the only purpose for establishing the trust, there would be no reason to provide for lump sum or alternate settlements on termination of employment. Nor would it have been necessary for the 1965 amendment to clothe the trustees with discretion to defer the settlement until participant’s normal retirement date. The effect of this amendment then was to vest in the trustees the obligation to weigh each individual case to determine which mode or date of payment was best for the terminated beneficiary. We think this would entail considering his earning power, his present net worth and his ability to provide for his own retirement. It is conceivable that some individuals might invest their capital more beneficially to their own advantage than might the trustees. We can envision situations where an immediate distribution would be detrimental to the individual, while in other cases lump sum payment would be to his advantage. In this case the record is not clear as to whether the trustees even discussed plaintiff’s request for payment much less attempted to weigh the individual factors that should have been considered in their determination of the beneficiary’s best interest.

The testimonial evidence does not support a finding that the trustees accorded the plaintiff’s request for payment the consideration to which it was entitled. A. A. Harmon, Sr., testified that only an informal discussion was had of the contents of plaintiff’s letter request for payment. He acknowledged his awareness of this participant’s high earning capacity and ownership of rental property. He also stated that he had no objection to plaintiff’s entering the employ of a competitor.

According to the testimony of A. A. Harmon, Jr., a trustee, he acknowledged a consideration of the plaintiff’s letter request for payment and stated that he did not take into consideration the fact of the children’s college education in evaluating the request. He candidly admitted he did not know if the trustees had the discretion to grant such a payment. He acknowledged knowing of the plaintiff’s earning capacity, pension rights and rental property.

Lastly, L. J. Harmon (the third trustee empowered to administer the trust) also stated that plaintiff’s letter request for payment was considered and rejected. In reply to what factors he considered in arriving at his decision to reject, he stated the fund was meant to be a retirement fund, a supplement to social security. When asked if in his opinion the reasons advanced by the plaintiff for payment were valid, he replied: “Well, really — it is not up to me to determine — .”

In summary the gist of the testimony of the three trustees clearly reflects that a serious in depth consideration of all of the factors involved in plaintiff’s request for payment was not had before its rejection. It indicates that certain of the trustees were not conversant with the actual terms and conditions of the trust as they relate to the distribution of a terminated employee’s proportionate share.

Under these circumstances it is obvious that the trustees were unable to fulfill their obligation as fiduciaries of the plaintiff and to conform to the standards exacted by L.R.S. 9:2082, which mandates that they shall administer the trust solely in the interest of the beneficiary. Nor could they exercise their right of discretion for the best interest of their beneficiary when in fact they were unaware that such a right was vested in them. It is obvious that the trustees did not render to the plaintiff the high degree of good faith and intense loyalty that a fiduciary owes to his beneficiary.

The corpus of the trust was used exclusively to purchase chattel mortgage paper arising out of the sale of mobile home trailers by the settlor. This type of high risk investment is authorized under the trust. The trustees all affirmed that payment to plaintiff would not jeopardize the interest of anyone else in the trust, so this was not a factor in reaching their decision to defer payment. In fact under Section VI, Paragraph 5, plaintiff had the right to insist that his proportionate share be transferred and placed in a “bank savings account,” and therefore the impact of this withdrawal on the trust funds is not a factor to be considered in evaluating the right to immediate payment.

As in Martinez, we conclude the trustees’ decision was an abuse of discretion because of their testimony as to their reasons for making it may be summarized as an inaccurate policy statement generality. There is nothing in the record to reflect the trustees weighed their decision by examining the financial picture of Richard Deichmann and sincerely considering whether his best interest would be served by honoring or denying the request.

We find no relevance whatsoever in the fact that Internal Revenue Service approved the original document and its subsequent amendments as qualifying under Section 401. While this is of the utmost importance to those who will reap tax benefits, it has nothing to do with plaintiff’s right to distribution. We point out that this approval does not extend to the administration of the profit sharing fund.

We conclude the proportionate share of plaintiff should be paid as he has requested.

We next consider whether defendant is entitled to deduct from this amount $1,527.97, representing commission previously paid to plaintiff on trailers that were subsequently repossessed. The trust instrument grants to the employer the status of a preferred creditor in collecting any employment-related debt incurred by an employee. The $1,527.97 charge-back is the return of an unearned commission due to repossession of trailers. Since the participant’s proportionate share is based upon his. salary, including commissions, it is proper to deduct unearned commissions.

For the reasons assigned, the judgment appealed from is reversed and it is now ordered that A. A. Harmon, Sr., trustee, and Alto Employees’ Trust pay to plaintiff, Richard E. Deichmann, his proportionate interest in the Alto Employees’ Trust after deducting therefrom the sum of $1,527.97, with legal interest from judicial demand until paid. Defendants are to pay all costs.

REVERSED AND RENDERED.

      . 26 U.S.C. 401 et seq.

      . Section VI. Distributions, Paragraph 1 provides in part:
      “Each Participating Employee shall be entitled to distribution of (a) the amount of his separate Account within sixty (60) days after the end of the fiscal year in which his separation as an Employee occurs as a result of his retirement, death or incapacity, or (b) the amount of his distributive share of his separate Account as computed in Paragraph 2(e) of this section within sixty (60) days after the end of the fiscal year in which his separation as an Employee occurs as a result of his resignation or dismissal. * * * ”

      . Section X. Miscellaneous, Paragraph 10 provides:
      “This Agreement may be amended at any time and from time to time by an instrument in writing executed by the Corporation and the then Trustees, approved by a resolution adopted by the Board of Directors of the Corporation, but such power of amendment shall under no circumstances include the right in any way or to any extent to revest or otherwise transfer any interests in or to the Fund, or any income therefrom, to the Corporation ; nor shall the power of amendment include the right in any way or to any extent to divest any Participating Employee of his proportionate interest in the Fund. Neither shall such power of amendment be exercised in any way which would or could give to any Participating Employee any right or thing of exchangeable value in advance of the receipt of distributions in accordance with the terms provided therefor, and provided that no amendment shall ever operate to enable any part of the corpus or income or other assets of the Fund to be used for or diverted to any purpose other than the exclusive benefit of Participating Employees of the Corporation.”

      .Section VI was deleted entirely. The part with which we are concerned was substituted as follows:
      “3. Distributions shall be made by the Trustees, in their sole discretion, subject to the limitations set forth in this paragraph, and the trustees may direct that distribution to any Participant or his beneficiary shall be made in cash or in kind or in a combination of both and that such distribution shall be made in whole or in part:
      (a) In a lump sum,
      (b) In installments over a period of years, or
      (c) In the form of an annuity contract providing for a monthly guaranteed life income for the life of the Participant, or for such other term or terms as shall be agreed upon between the Participant and the Trustees, or
      (d) In such other form or manner as the Trustees may direct, after consultation with the Participant, or
      (e) In any combination of the foregoing methods of distribution.
      “Distribution in kind shall be based upon the fair market value of the distributable property, as determined by the Trustees at the time of distribution.
      “4. The Trustees may, in cases other than disability or death, determine that any such distribution shall not be made or shall not commence until what would have been a Participant’s normal retirement date; provided, further that the Trustees shall retain the power and discretion at any time to change the method or date of commencement of distribution, except that such distribution or the commencement thereof shall not in any event, be deferred beyond what would have been a Participant’s normal retirement date.”

      . In part the letter recited:
      “To itemize all the reasons why I need my money at this time would indeed be quite voluminous. * * * Hs t¡;
      “In the midst of this inflationary spiral, with four children, two headed for college next year, one towards medical school, I am looking at $10,000.00, in college expense next year and in excess of $20,000 per year for the next 8 years thereafter.”

      . Fourteen of these payments varied in amounts from $38.46 to $1,000.40, and one payment of $2,800.

      . The “normal retirement date” of participants under the trust agreement was reduced from 65 years to 60 years by an amendment dated March 31, 1965.

      . Section VI. Distributions, Paragraph 4 states: “The Trustees may * * * determine that any such distribution shall not be made or shall not commence until what would have been a Participant’s normal retirement date; provided, further that the Trustees shall retain the power and discretion at any time to change the method or date of commencement of distribution * *
      It is interesting to note, but of no significance in the disposition of the merits of this ease, that by an amendment to the trust dated July 28, 1974 Paragraph 4 is deleted in its entirety and the following substituted therefor:
      “4. The Trustees shall in cases other than disability or death, retain distributions until what would have been a participant’s normal retirement date.”


author: MORIAL, Judge. LEMMON, Judge

text:
    EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN v. H. F. RICHARDS. Robert W. CARLISLE v. H. F. RICHARDS. Alvin A. WATTIGNEY v. H. F. RICHARDS et al.
    No. 7625.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 19, 1976.
    Rehearing Denied June 9, 1976.
    Francipane, Regan & St. Peé, Chester Francipane, Wayne H. Scheuermann, Me-tairie, for plaintiff-appellee.
    Normann & Normann, Charles E. Leche, New Orleans, for defendant-appellant.
    Before LEMMON, SCHOTT and MORIAL, JJ.
   MORIAL, Judge.

Hartford Accident and Indemnity Company (Hartford) appeals from a judgment of the district court declaring it to have provided coverage under an insurance policy issued to Robert W. Carlisle.

On August 14, 1972 Robert W. Carlisle and his passenger, Alvin A. Wattigney, were involved in a one-car accident while in a 1972 Ford Y\ ton pickup truck owned by their employer, Automatic Power Corporation (Automatic). Both men, at the time, were proceeding on company business in the company truck from New Orleans to Houston. As Carlisle proceeded along his route, two dogs ran onto the highway in front of the truck. In his attempt to avoid striking the dogs the accident occurred resulting in serious injuries to both men.

The negligence of Carlisle, having not as yet been passed upon by the trial court is not at issue on this appeal. What is at issue is whether an insurance policy issued by Hartford, Carlisle’s personal automobile liability insurer, provides coverage.

Hartford admits that it issued a policy to Carlisle. It denies, however, that the policy provides coverage, as here, the insured is driving a non-owned Y ton pickup truck in connection with his employment. Employers Mutual Liability Insurance Company of Wisconsin (Employers), the liability insurer of Automatic and its employee, Carlisle, a driver of the truck, filed a motion for summary judgment and/or declaratory judgment in the district court seeking a ruling that the Hartford policy provides coverage for its insured from any liability which might be imposed as a result of this accident. The trial court granted Employers’ motion. Hartford appeals. We affirm.

The applicable policy provisions provide as follows:

“COVERAGE A — LIABILITY: The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage, arising out of the ownership, maintenance or use of an owned automobile or a non-owned automobile. . . .
* * * ' * * *
“Exclusions:
This policy does not apply:
Under coverage A — Liability. . To a non-owned automobile while maintained or used by any person while such person is employed or otherwise engaged in any other business or occupation, but this exclusion does not apply to a private passenger automobile operated or occupied by the named insured or his private chauffeur or domestic servant or a utility trailer used therewith: (emphasis added)
:j« * * * ‡
“Definitions:
‘Private passenger automobile’ means a private passenger or station wagon type automobile;
‘Utility automobile’ means an automobile of the truck type with a load capacity of 1500 pounds or less not used for business or commercial purposes other than farming.”

The trial court found that the exclusion dealing with non-owned automobiles used in business was inapplicable because the vehicle here was a “private passenger automobile” and is thus specifically excepted from the exclusion under the terms of the policy. Hartford contends that to stretch the clear and unambiguous terms of the policy to have “private passenger automobile” include a Y pickup truck is absurd.

Although Louisiana jurisprudence on this point is limited, in both cases where the issue has been raised the courts have concluded that a pickup truck is a “private passenger automobile.” See Riker v. Aetna Casualty & Surety Company, 286 So.2d 493 (La.App. 1 Cir. 1973); Wirick v. Wyble, 300 So.2d 571 (La.App. 3 Cir. 1974). Hartford asserts that these cases are distinguishable from the one at bar because of a difference in the policy definitions of “private passenger automobile.” In Riker, supra, and Wirick, supra, “private passenger automobile” is defined as “ . . .a four-wheel private passenger, station wagon or jeep type automobile.” The policy at bar does not include the category “jeep type automobile” in its definition.

We believe that the absence of the term “jeep type automobile” in Hartford’s policy is not critical to our determination that a pickup truck is a “private passenger automobile.” Although there is language in Riker, supra, indicating that the “jeep type automobile” designation is important, we do not believe that it was the determining factor in the court’s decision. The court in Riker, supra, appears to have based its ruling primarily upon the current everyday concept of a pickup struck stating:

“Certainly, pickup trucks are used as private passenger automobiles by a growing number of people. Most citizens would be surprised to learn that their insurance policies intend a distinction between their use of a neighbor’s car and his pickup. For this reason, we feel that if pickup trucks are to be excluded from the description of private passenger automobiles, this exclusion should be specific and easily understood by the general public.” At 495.

The court in Wirick, supra, while noting that their policy included the phrase “jeep type automobile,” did not in any manner discuss this as a basis for its decision. The court therein simply concluded that:

“ . . .in this day and time a pickup truck with a load capacity of 1,500 pounds is a private passenger automobile.” At 575.

In view of the courts’ language in Riker and Wirick, we see no substantial basis upon which to distinguish the issue presented herein.

As a final note, Hartford contends that the pickup cannot be a “private passenger automobile” because under the policy it is considered a “utility automobile.” The policy defines the term “utility automobile” as “an automobile of the truck type with a load capacity of 1,500 pounds or less not used for business or commercial purposes other than farming.1’ (emphasis added). Clearly, the pickup here does not fit within this definition due to its use for non-farming business purposes.

The judgment of the trial court is affirmed. Hartford Accident and Indemnity Company is to pay all costs.

AFFIRMED.

LEMMON, J., concurs.

LEMMON, Judge

(concurring).

Exclusion (h), at issue here, uses the term “other business or occupation”, referring to businesses other than public or livery conveyance and automobile business specially covered in the same group of exclusions. Exclusion (h) excludes coverage to a non-owned automobile while used for business purposes, except (pertinently) when the vehicle is a private passenger automobile operated by the named insured. The apparent purpose of the exception to the exclusion is essentially to allow the named insured to drive a company vehicle (other than to carry public passengers or to transport cargo) and still be covered without sole reliance on the employer’s insurance.

An insured, who is aware of and concerned about the terms of his liability coverage, would not reasonably be informed by this policy language that he must obtain other coverage in order to be insured while driving his employer’s )^-ton pickup truck in the course of his employment for the purpose of transporting himself and a fellow employee from one city to another.

The vehicle in the present case could reasonably be classified as a passenger automobile, both by reference to construction and to manner of use. I am simply unwilling to tell this insured he is not entitled to the policy’s liability coverage under these overall circumstances when the insurer did not tell him so in more unambiguous terms.

      . At the time of the accident the insured was driving himself and another employee to Houston, carrying only some light equipment and luggage. He used the truck, however, rather than a ear, because he intended to bring a large piece of equipment back after working there for seven to ten days.

      . See generally 10 Couch, Cyclopedia of Insurance Law § 41:268 et seq. (1962); 1 A Appleman, Insurance Law and Practice § 573 (1965); 38 A.L.R.2d 867 (1954).


text:
    Floyd A. RUE, Jr. v. Emmanuel K. MESSMER and Protective National Insurance Co.
    No. 7223.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.
    Rehearing Denied June 9, 1976.
    John G. DeRussy, New Orleans, for plainti f f-appellant.
    Bernard, Micholet & Cassisa, Steven N. Elliott, New Orleans, for defendant-appel-lees.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   SAMUEL, Judge.

On June 6, 1974 plaintiff filed this suit for personal injuries and property damage allegedly sustained in a two car automobile collision. Named defendants were Emmanuel K. Messmer, the driver of the defendant car, and his alleged liability insurer, Protective National Insurance Company, a foreign corporation. On June 7, 1974, service of plaintiff’s petition was made on the defendant insurance company, through the Secretary of State. On June 10, 1974 personal service was effected on Emmanuel K. Messmer. On December 18, 1974, plaintiff entered a preliminary default against both defendants, and subsequently confirmed that default on January 21, 1975. Judgment in the amount of $2,684.40 plus costs was read, rendered and signed on January 23,1975.

On March 13, 1975 Protective filed what it titled a “MOTION TO SET ASIDE JUDGMENT AND FOR NEW TRIAL”. The motion admits service through the Secretary of State but avers the mover had never been served with a notice of judgment and had no knowledge thereof until March 5, 1975 when plaintiff’s counsel sent a copy of the judgment to Protective. The motion further avers Messmer’s insurance with Protective had been cancelled at Messmer’s request prior to the date of the collision. The trial court ordered plaintiff to show cause why the judgment should not be set aside and a new trial granted.

After hearing the rule, the court sustained the motion and rendered judgment setting aside and annulling the default judgment as to Protective and ordering a new trial as to that defendant. Plaintiff has appealed from that judgment.

The primary question presented is whether or not the application for a new trial was made timely. If notice of the signing of the default judgment against the foreign insurer-defendant is required by our law, the delay for applying for a new trial had not expired because that delay commences to run only on the day after the clerk has mailed the notice of judgment, no such notice was mailed, the application was timely made, and the judgment granting the new trial will not be disturbed; on the other hand, if such notice is not required, the delay for applying for a new trial had expired, the default judgment had become final, and the only recourse then open to the appellee was an action for nullity of judgment.

Our only law requiring notice of the signing of a final judgment is Code of Civil Procedure Article 1913. That article reads:

“Notice of the signing of a default judgment against a defendant on whom citation was not served personally, and who filed no exceptions or answer, shall be served on the defendant by the sheriff, by either personal or domiciliary service.
Except as otherwise provided by Article 3307, when a case has been taken under advisement by the court notice of the signing of a final judgment therein shall be mailed by the clerk of court of the parish where the case was tried to the counsel of record for each party, and to each party not represented by counsel.
If, at the conclusion of a trial a case is not taken under advisement .but the court does not sign a judgment at the time, a party may make a request of record for notice of the date when the judgment was signed; and when such a request is made, the clerk shall mail such notice to the party requesting it or to his counsel of record.
The clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of the judgment was mailed.
Except as otherwise provided in the first three paragraphs of this article, notice of the signing of a final judgment is not required.” LSA-C.C.P. Art. 1913.

The last paragraph of Article 1913 provides that notice of the signing of a final judgment is not required unless otherwise provided in the first three paragraphs of the article. Therefore, as the second and third paragraphs obviously do not refer to default judgments and therefore are inapplicable here, unless the first paragraph requires notice of the signing of the default judgment in this case, no such notice was required.

In our opinion, the first paragraph does not require that the present defendant be served with notice of the signing of the default judgment. In pertinent part the “Explanatory Note” under Article 1913 states the article was amended “. to eliminate the requirement of notice of the signing of a final judgment except where a default judgment was based on domiciliary service, . . . ” (emphasis ours).

Domiciliary service cannot be made on a corporation. Code of Civil Procedure Article 1234 provides:

“Domiciliary service is made when a proper officer leaves the citation or other process at the dwelling house or usual place of abode of the person to be served with a person of suitable age and discretion residing therein as a member of his domiciliary establishment.” LSA-C.C.P. Art. 1234.

A corporate entity does not have a “dwelling house or usual place of abode” nor does it have a “domiciliary establishment”. This conclusion coincides with Louisiana jurisprudence decided prior to the enactment of our present Code of Civil Procedure. In Frank Melat v. Cooper, La.App., 150 So. 432, one Frank Melat was the corporate defendant’s authorized agent for service of process. Service of citation and petition was made on Melat by handing certified copies thereof to a Mrs. J. E. McAneny, an adult living in the same house with Melat. In holding the service was illegal and rendered the judgment based thereon null and void, the court stated that there is no provision in our law for substituted service by making domiciliary service upon a corporation’s agent for service. Insofar as we are informed, our law has not been changed in that regard.

In addition, the first paragraph requires that a defaulted defendant who was not served personally shall be served with notice of the signing of the judgment by the sheriff. Obviously, a foreign corporation cannot be served by a Louisiana sheriff who has no authority to make service beyond this state’s boundaries.

Thus, the first paragraph of Article 1913 cannot refer to a foreign corporation unless service of citation upon such a corporation’s agent for service of process is a personal service within the purview of the paragraph. Within that purview, we believe such a service is a personal service.

Code of Civil Procedure Article 1261 provides:

“Service of citation or other process on a domestic or foreign corporation is made by personal service on any one of its agents for service of process.” LSA-C.C.P. Art. 1261.

Article 1261 clearly states service of process on a corporation is made by “personal” service on its agent for service of process. And Article 1232 of the Code of Civil Procedure provides personal service is made “ . . . when a proper officer tenders the citation or other process to the person to be served.” When serving a corporation the “person to be served” is the corporation’s agent for service of process.

As proper service of citation was made in this case on the Secretary of State, the foreign insurer-defendant’s statutory agent for service of process under Revised Statute 22:985, notice of the signing of the default judgment was not required.

For the reasons assigned, the judgment appealed from is reversed and the motion for a new trial is denied. All costs in both courts are to be paid by the defendant-ap-pellee.

ANNULLED AND SET ASIDE.

      . A. preliminary default also was entered against both defendants on July 30, 1974.

      . See IjSA-C.C.P. Arts. 1974, 1913, 2001-2006.


author: SCHOTT, Judge. LEMMON, Judge

text:
    Ed L. LANDRY et al. v. Ignatius BARRECA et al.
    No. 7552.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.
    Rehearing Denied June 9, 1976.
    Writ Refused Sept. 24, 1976.
    Connolly, Labranche & Lagarde, Frans J. Labranche, Jr., New Orleans, for plaintiffs-appellees.
    Joseph A. Barreca, New Orleans, for defendants-appellants.
    Before LEMMON, SCHOTT and MORIAL, JJ.
   SCHOTT, Judge.

Defendant has appealed from a judgment in favor of plaintiff as administrator of the estate of his nine year old son Lyle for $8500, and in favor of third-party defendants, rejecting defendant’s incidental demands for indemnity and contribution.

The case arose from an accident in which a bicycle operated by Lyle Landry was struck by an automobile driven by defendant’s minor son David. It occurred on a street twenty feet wide in a residential neighborhood when Lyle entered the street from behind a parked automobile in the path of David’s vehicle. David had been traveling from 10 to 20 miles per hour in excess of the speed limit of 20 miles per hour. David put on his brakes but could not avoid striking the child. Defendant contends that his son’s speed was not the proximate cause of the accident and, alternately, that Lyle was contributorily negligent barring recovery.

The record supports the trial court’s conclusion that had David been traveling within the speed limit he could have avoided the collision. The officer who investigated the accident found that David’s automobile left skid marks 102 feet long. He also found that the parked car, behind which Lyle emerged, was in the middle of the skid marks. Thus, the minimum distance David’s car could have skidded prior to impact was about 60 feet.

Plaintiff offered in evidence the chart showing braking distances for automobiles traveling at various speeds found at 1 Blashfield, Automobile Law and Practice, § 33, p. 38, to which objection was made by defendant and maintained by the trial judge. The chart, before us on a proffer by plaintiff, contains a collection of manuals and authorities which show that an automobile traveling 20 miles per hour requires a braking distance to stop from twenty to thirty feet, well within the distance available to David Barreca for a stop had he been traveling within the speed limit.

In Moliere v. Liberty Mutual Insurance Company, 239 So.2d 477 (La.App. 4th Cir. 1970), this Court held that such a chart was admissible not as conclusive evidence of speed but as indicative of approximate speed. Similarly, we hold that the proffered chart was admissible under the circumstances of this case where, after giving defendant every benefit of the doubt, his son’s automobile could have stopped short of striking Lyle with much room to spare had he been proceeding at the allowed legal rate of speed. We would afford little weight to such a chart if we were considering a matter of close distances of a few feet but no such problem exists in the instant case.

It is clear from the foregoing that David’s failure to observe the speed limit was the sole proximate cause of the accident. We need not consider the plea of contributory negligence on Lyle’s part since this was not a proximate cause.

Defendant argues that the trial court award is excessive, and further alleges an inability to pay. Lyle Landry sustained a fractured femur, a fractured clavicle, lacerations and bruises. Five weeks of hospitalization were required. He spent an additional six weeks in a body cast. In view of the severity of his injuries the award of $8500 was not excessive. The evidence advanced in support of defendant’s inability to pay was before the trial court and was quite likely reflected in the size of the award granted. This Court finds no abuse of discretion on the part of the trial court under the circumstances.

The third-party demands for indemnity and contribution have no support under the evidence and defendant did not seriously urge these on appeal. No benefit would result from a discussion of these.

Accordingly, the judgment is affirmed' at defendant’s cost.

AFFIRMED.

LEMMON, Judge

(concurring).

Both the trial court and this court found as a fact that Lyle Landry moved from behind a parked car into the path of the David Barreca vehicle. There was a dispute in the testimony as to whether Lyle had entered the street from the sidewalk or had been riding in the street for some distance before reaching the parked car; it was undisputed, however, that the impact occurred in the middle of the street, a fact borne out by the location of the skid marks and of the damage to the front of the car, as well as undisputed testimony.

David was properly found negligent because he saw Lyle in his path a considerable distance away (as proved by his 60 feet of skid marks, plus the distance traveled during reaction time, prior to impact), but was unable to stop in time because of his excessive speed. Less apparent, however, is the issue of contributory negligence.

Under the duty-risk approach to tort liability, Lyle’s being in the middle of the street in David’s path was a cause-in-fact of the accident. If he had not been in that position (either from entering the street behind the parked car or from riding along and moving to the middle to pass the parked car), the accident would not have occurred. The finding that the motorist’s conduct was a cause of the accident does not bar a finding that Lyle’s conduct was a concurrent cause.

I vote to grant recovery, however, because the 914-year old boy’s act of riding a bicycle in the middle of the street, while a cause-in-fact of the accident, (1) was not such significantly substandard behavior that he should “be considered contributorily negligent so that he is barred from recovering civil damages under the totality of the circumstances . ’’, especially when measured by the standard of self-care expected of a child of his age, intelligence and experience, and (2) was among the very risks at which defendant’s duty was aimed.

As to the first point, it is not significant substandard behavior for a nine-year old child to ride a bicycle in the middle of the street while passing a parked car in a residential neighborhood where cars do not travel at high speeds.

As to the second point, a major purpose of imposing a low speed limit in a residential neighborhood is to protect youngsters who are learning to ride bicycles or who are playing in or near the streets. A motorist traveling at a low speed can prevent an accident when confronted with a young cyclist or pedestrian in his path, unless the youngster darts out completely without notice. The motorist has the duty to drive slowly in reasonable anticipation of such reasonably expected occurrences. When the exact risk occurs and the motorist has violated his duty to drive slowly in anticipation of that risk, the legal cause of the accident is the motorist (if he could have avoided the accident while traveling at a reasonable or legal speed).

      . Other sources also demonstrate that David’s , available space of 60 feet was considerably more than would be required to stop at 20 miles per hour, e. g., the chart at 9 Blashfield’s Cyclopedia of Automobile Law and Practice, § 6237, p. 413 (18 feet for car with brakes in excellent condition), Yehicle Speed and Stopping Distance Computer published in 1968 by Lawyers and Judges Publishing Co., Inc. (20.5 feet for an automobile with average brakes). See also Goldsmith v. St. Paul Mercury Indemnity Company, 123 So.2d 797 (La.App. 2nd Cir. 1960) where it was said that a vehicle traveling 20 miles per hour would require 44.2 feet to stop, including reaction time.

      . Compare Picard v. Joffrion, 202 So.2d 372 (La.App. 1st Cir. 1967) and Guidry v. Grain Dealers Mutual Insurance Company, 193 So.2d 873 (La.App. 1st Cir. 1967) which hold that such charts are not admissible independent of proof of accuracy. See discussion in XXIX La.L.R. 315.

      . Laird v. Travelers Ins. Co., 263 La. 199, 267 So.2d 714 (1972).

      . Plauche v. Consolidated Companies, 235 La. 692, 105 So.2d 269 (1958).

        . Paxton v. Ballard, 289 So.2d 85 (La.1974); Kelly v. Messina, 318 So.2d 74 (La.App. 4th Cir. 1975).


author: GUIDRY, Judge.

text:
    Sylvian ROMERO, Plaintiff-Appellee, v. FLO-TEL, INC., et al., Defendants-Appellants.
    No. 5461.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.

      J. Winston Fontenot, Joseph A. Koury, Lafayette, for plaintiff-appellee.
    Davidson, Meaux Oneband & Donohoe, by Ken Williams, Lafayette, for defendants-appellants.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

Plaintiff, Sylvian Romero, instituted this suit against defendants, Mary Hewell, Flo-Tel, Inc., and the latter’s insurer, Travelers Insurance Company (hereinafter referred to as “Travelers”), seeking damages for personal injuries. The plaintiff’s alleged injuries were sustained as a result of a two car collision between the automobile in which he was riding as a guest passenger, and being driven by one, Livingston Hayes, and a vehicle owned by Flo-Tel, Inc., insured by Travelers, and being driven by Mary Hewell. The defendant filed a third party action against the driver of the other vehicle, Livingston Hayes, claiming that his negligence was the sole and proximate cause of the accident, alternatively asking for contribution from Hayes as a joint tortfeasor. The defendants appeal from a judgment rendered on a jury verdict which found them solely responsible for plaintiff’s injuries and which dismissed their third party demand against Livingston Hayes. The plaintiff was awarded $12,500.00 in damages.

The uncontested facts show that the collision occurred at approximately 6:25 P. M., on May 13, 1973. Immediately prior to the accident, Livingston Hayes, third party defendant, with his guest passenger, Syl-vian Romero, plaintiff, was travelling in an easterly direction on Louisiana Highway 94, a two lane thoroughfare just outside the city limits of Lafayette. The defendant, Mary Hewell was travelling in a westerly direction on the same highway. The accident ensued when Ms. Hewell, in attempting' to complete a left turn across the eastbound lane of travel was struck by the Hayes vehicle.

Defendants contend that the record shows the accident in question occurred at a point off the roadway and that Mary Hewell had actually completed her turn when she was struck some two feet beyond the traveled portion of the highway.

The testimony of Livingston Hayes and Sylvian Romero indicates that the point of impact occurred within Livingston Hayes’ lane of travel. Their testimony in this regard is corroborrated by the investigating officer, Trooper Leroy Dugas, who arrived at the scene shortly after the accident happened. He determined, from the debris on the roadway and the position of the cars aftér the accident, that the collision occurred in the eastbound lane of travel, near the edge of the roadway. Livingston Hayes further testified that prior to the accident he was traveling at 30 miles per hour, and as he approached within 10 or 15 feet of the oncoming vehicle driven by Mary Hewell, he noticed she began to execute a left turn. He immediately applied his brakes. This testimony was uncontra-dicted.

Mary Hewell testified that she was unaware of the oncoming Hayes vehicle, and did not see his automobile until it hit her.

We determine as did the trial jury that the accident occurred in the eastbound lane of Louisiana Highway 94 and not beyond the traveled portion of the highway as contended by defendants.

It is well established in our law that a left turning motorist has a duty to signal his intention to turn and also to be alert to oncoming traffic and not to attempt such a maneuver without first ascertaining that the left turn can be made safely. Hollier v. Gilder, 306 So.2d 475 (La.App. 3rd Cir., 1975); Magenta v. Fireman’s Fund Insurance Company, 384 So.2d 839 (La.App. 4th Cir., 1973); Scrantz v. Aetna Casualty & Surety Company, 281 So.2d 820 (La.App. 1st Cir., 1973); Young v. DeVillier, 282 So.2d 738 (La.App. 3rd Cir., 1973). R.S. 32:104.

Mary Hewell, by her own admission, failed to see the Hayes’ vehicle and clearly was negligent in not seeing what was there to be seen. Ms. Hewell was clearly negligent in failing to determine that her left turn could be made safely and such negligence was as found by the jury the sole and proximate cause of the accident that resulted. We discern no negligence on the part of Livingston Hayes, driver of the other vehicle.

DAMAGES

The plaintiff’s first medical expert to testify was Dr. Boring Montgomery, his treating physician. Dr. Montgomery, a general practitioner, first saw the plaintiff on May 14, 1973, the day after the accident. At this time the physician found that the plaintiff had tenderness and spas-ticity in the posterior and lateral cervical muscles and in the trapezius muscles. Motion in the head was practically impossible and the plaintiff was suffering a severe sprain of the cervical spine. X-rays taken showed the presence of an osteoarthritic condition and a narrowing of the discs. Dr. Montgomery prescribed muscle relaxants and heat treatments. Dr. Montgomery discharged the plaintiff in September, 1975.

Dr. Byron Unkauf, an orthopedic surgeon, saw plaintiff on April 9, 1975. Dr. Unkauf found that there was an aggravation of the pre-existing osteoarthritis, together with a partial tear of the trapezius muscle, which at the time of his examination had healed. This orthopedic specialist stated that the plaintiff’s disability was minimal, and certainly no more than 10% but that due to his age, and his performance of some strenuous physical labor, the plaintiff was more prone to have a re-occurrence of his disability.

The defendant’s only medical expert, Dr. Fred Webre, an orthopedic surgeon examined the plaintiff on October 23, 1974. His examination revealed limited motion of the neck in all areas, but found this to be compatible with his osteoarthritic findings. Dr. Webre testified that in view of the plaintiffs injury on May 13, 1973, he thought that this accident could have aggravated the existing condition.

Unquestionably the medical testimony established that at the time of the accident the plaintiff, Sylvian Romero, had a degenerative osteoarthritic condition. It is apparent to us from the testimony that the plaintiff injured his neck, cervical muscles and trapezius muscles in the accident and that as a result his preexisting condition was not only aggravated but it was activated. Plaintiff, previous to the accident had never sought any medical treatment in this regard, nor was he aware of the presence of his osteoarthritic condition. Subsequent to the collision plaintiff experienced pain in his neck region, limited motion of neck, and tenderness over the trapezius muscles, which required taking heat treatments on a daily basis for about one year.

The law is settled that a tortfeasor takes his victim as he finds him. DeVille v. United States Fidelity & Guaranty Company, 258 So.2d 694 (La.App. 3rd Cir., 1972); Dufrene v. Miller, 266 So.2d 462 (La.App. 4th Cir., 1972) writs refused; Deshotel v. Southern Farm Bureau Casualty Insurance Company, 224 So.2d 191 (La.App. 3rd Cir., 1969).

Applying the principle that the trial court has much discretion in awarding damages we are unable to hold that the jury award of $12,500.00 in general damages was an abuse of discretion. Johnson v. Ceaser, 304 So.2d 855 (La.App. 4th Cir., 1974); Stoltz v. Continental Insurance Company, 231 So.2d 443 (La.App. 4th Cir., 1974).

For the foregoing reasons the judgment appealed from is affirmed. Appellant is cast for all costs.

AFFIRMED.

      . Defendants’ appeal is from the judgment rendered in this matter on September 25, 1975 and "which judgment was signed on the 26th day of September 191/5”. The plaintiff’s demand and the defendant’s third demand were both submitted to the jury and a verdict was returned on September 25, 1975. The formal judgment on the main demand was signed on September 26, 1975, however the formal judgment dismissing the third party demand was not signed until September 27, 1975. We consider the order of appeal, though it refers only to the signed judgment of September 26, 1975 to have granted defendants a suspensive appeal from both the judgment against them in the main demand and the denial of their third party action.


author: CULPEPPER, Judge.

text:
    Albert FRANK, Plaintiff and Appellant, v. OLD AMERICAN INSURANCE COMPANY et al., Defendants and Appellees.
    No. 5472.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.
    W. Glenn Soileau, Ville Platte, for plaintiff-appellant.
    A. Gaynor Soileau, Ville Platte, for defendants-appellees.
    Before HOOD, CULPEPPER and PA-VY, JJ.
   CULPEPPER, Judge.

The appellant has neither appeared nor filed a brief in this case prior to the time the case was called for oral argument on April 22, 1976. Pursuant to Rule VII, Section 5(b), Uniform Rules of the Courts of Appeal, this appeal is considered abandoned and is hereby dismissed at appellant’s costs.

APPEAL DISMISSED.


author: MILLER, Judge.

text:
    STATE of Louisiana ex rel. William J. GUSTE, Jr. and Charles W. Tapp, Director, Piaintiffs-Appellees, v. Winston ROBOUCHE, Jr., a/k/a Wayne Davis and Louisiana State Publications, Inc., Defendants-Appellants.
    No. 5490.
    Court of Appeal of Louisiana, Third Circuit.
    May 28, 1976.
    James B. Wells & Assoc, by A. R. Snell, Bossier City, for defendants-appellants.
    Wm. J. Guste, Jr. by Stephen Miller Irving, Baton Rouge, for plaintiffs-appel-lees.
    Before MILLER, DOMENGEÁUX and PAVY, JJ.
   MILLER, Judge.

Ex proprio motu we issued a show cause order questioning this court’s jurisdiction because the appeal from the trial court’s preliminary injunction was not perfected within fifteen days as required by LSA-C. C.P. art. 3612. Appellants did not reply to our show cause order. We dismiss the appeal.

The trial court judgment granting the preliminary injunction was signed January 16, 1976. On the same day defendants were granted a devolutive appeal conditioned on furnishing a $250 bond. The appeal bond was filed February 11, 1976.

An appeal from an order or judgment relating to a preliminary injunction must be taken and a bond furnished within fifteen days from the date of the order or judgment. LSA-C.C.P. art. 3612.

When the appeal bond is not timely filed, this court is without jurisdiction. Eyraud v. Com. on Alcoholic Beverage Control, 282 So.2d 578 (La.App. 1 Cir. 1973).

The appeal is dismissed at appellants’ cost.

APPEAL DISMISSED.