author: CULPEPPER, Judge.

text:
    Mrs. Stanley BEGNAUD, Plaintiff and Appellant, v. A. D. DEBOISBLANC et al., Defendants and Appellees.
    No. 5173.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.
    Rehearing Denied Nov. 13, 1975.
    Writ Refused Jan. 9, 1970.
    Lucius A. Hornsby, Jr., Lafayette, for plaintiff and appellant.
    L. H. Olivier, Lafayette, for defendants and appellees.
    Rodney Bernard, Jr., Lafayette, for ex-ceptor-appellee.
    Before HOOD, CULPEPPER and MILLER, JJ.
   CULPEPPER, Judge.

This is a suit for damages for the wrongful death of 11-year old Brian Beg-naud, who fell from a load of hay on a pick-up truck. Plaintiff-appellant is Brian’s mother. The defendants are the driver of the truck, his employer, and his insurer. A jury found the truck driver free of negligence. Plaintiff appealed.

The decisive issue on appeal is whether the truck driver was negligent.

On the date of the accident, Eugene De-boisblanc, 21 years of age, was in charge of a crew which was hauling hay from the field to the barn on a farm owned by his father, Mr. A. D. Deboisblanc. Members of the crew were Ronnie Lajaunie, Errol Breaux and Stanley Begnaud, Jr., Brian’s older brother, all of whom were young men in their twenties. Brian’s mother had given him permission to go with the “older boys” to haul the hay.

The pick-up truck was loaded in the field with about 40 bales, stacked four or five bales high. The top of the hay was about one bale above the top of the cab of the truck. A flat bed trailer, loaded with a higher stack of hay, was being pulled behind the truck.

Young Brian asked Eugene if he could ride on top of the hay on the trailer. Eugene testified he refused this request because the hay was stacked too high on the trailer, and he considered it to be unsafe. However, he gave Brian permission to ride on the hay on the truck, along with Errol Breaux.

When they started toward the barn, Eugene was driving with Ronnie Lajaunie as a passenger in the cab of the truck. Brian and Errol Breaux were seated above the cab on top of the load of hay, facing toward the front of the truck. Brian was seated behind the driver and Errol behind the passenger.

At the time of the accident, the truck and trailer were proceeding at a speed estimated to be no more than S miles per hour on a dirt road leading from the blacktop highway through the pasture to the barn. Breaux testified the road was not rough nor was it smooth. He said “It felt like a gravel road, you know.” He stated further that the ride on the hay was fairly smooth and there was no lurching nor shifting of the bales. He was not sure whether he and Brian were sitting on the same bale, but they were sitting only about one foot apart, and they were not “cutting up” or doing anything else to cause Brian to fall.

No one who testified actually saw Brian fall or knew what caused him to fall. Breaux says that his hat fell off, and he jumped down and ran about 20 feet back of the trailer to pick it up. After he picked up his hat, he saw Brian lying face down on the road about 100 feet further back.

Later examination by a physician revealed that Brian’s skull was crushed. The physician was unable to express an opinion as to whether the injury was caused by the fall from the truck or by a wheel of the trailer.

Plaintiff contends the jury erred in finding the truck driver free of negligence. The argument is that the driver, Eugene Deboisblanc, was in control of the boy, and that he either ordered or permitted young Brian to ride on top of the hay on the truck when he knew or should have shown that this was unsafe for an 11-year old boy. Plaintiff stresses testimony by Eugene Deboisblanc that he refused to let the boy ride on the wagon because it was too dangerous, but he let him ride on the truck because it was “less dangerous”. From this testimony, plaintiff argues that Eugene knew it was hazardous to let the boy ride on top of the hay on the truck. Plaintiff argues Eugene should have ordered the boy to ride in the cab where it was safe.

The evidence stressed by defendants is that young Begnaud was intelligent, physically well coordinated and capable of riding on the hay without an unreasonable risk of falling. Furthermore, defendants stress the fact that Errol Breaux, a young man in his twenties, was seated beside Brian and, insofar as Eugene Deboisblanc knew, was watching out for him. The evidence also shows that Brian had ridden on top of the hay on previous occasions without incident. The road was smooth, the bales were stacked securely, the truck was going slowly, and there was no reason to anticipate that the situation presented an unreasonable risk of foreseeable harm to this 11-year-old boy.

The applicable rule of law is stated in Whitney v. Southern Farm Bureau & Casualty Insurance Company, La.App., 225 So.2d 30 (3rd Cir. 1969) as follows:

“As a general rule, a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child from injury. Such person is not an insurer of the safety of the child. He is required only to use reasonable care commensurate with the reasonably foreseeable risks of harm. Lafitte v. Grain Dealers Mutual Insiirance Company, La.App., 121 So.2d 774 (2nd Cir. 1960) ; 65 C.J.S. Verbo Negligence § 63 (60) pp. 781-782; Prosser, Law of Torts, 3rd Ed. 344-346.”

Also particularly applicable here is the rule of appellate review that “When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error.” Canter v. Koehring Company, La., 283 So.2d 716 (1973). In the present case, the jury, by a unanimous verdict, held the truck driver and his employer free of negligence. We find no manifest error in this evaluation of the evidence.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

Affirmed.


source: Caselaw Access Project

author: MILLER, Judge.

license: Public Domain

text:
    ESTATE of John E. RICHARD, Plaintiff-Appellant, v. Joseph Willie RICHARD, Defendant-Appellee.
    No. 5166.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.
    Rehearing Denied Nov, 13, 1975.
    Octave Pavy and Leon S. Haas, Jr., Opelousas, for plaintiff appellant.

      Olivier & Brinkhaus by John L. Olivier, Sunset, for defendant appellee.
    Before HOOD, CULPEPPER, and MILLER, JJ.
   MILLER, Judge.

Plaintiff, the dative testamentary executor of the Succession of John E. Richard, appeals the judgment sustaining defendant Joseph Willie Richard’s exception of no right of action. We set aside the ruling and remand.

Other issues were ruled on by the trial court, but we do not consider these because the ruling was interlocutory in nature and no irreparable injury is alleged. LSA-C. C.P. arts. 1841 and 2083; In re Perovich Adoption, 302 So.2d 343 (La.App. 3 Cir. 1974).

On December 27, 1972 John E. Richard donated to his son, defendant John Willie Richard, a tract of land valued at $29,800. The donation recited and plaintiff alleged the donation was onerous. The donation was recorded January 19, 1973. John died on August 27, 1973, and plaintiff qualified as dative testamentary executor. Suit was filed January 18, 1974 contending the donation was null and void because donor reserved the usufruct of the property (which until 1974 was prohibited by LSA-C.C. art. 1533) and the value of the alleged services set forth in the donation was less than half the value of the property.

The exception of no right of action (although not particularized to this point, under LSA-C.C.P. art. 927 the court can notice no right of action “of its own motion”) was sustained on the basis that LSA-C.C. art. 1504 limits the right to seek a reduction in a donation to forced heirs, their heirs or assigns. On finding no allegation that plaintiff was a forced heir or an assignee of one, plaintiff was found without a right of action. Connolly v. Cardno, 16 La.App. 363, 133 So. 449 (Orls.App.1931).

Plaintiff alleged the donation was invalid and null and void; and that the value of the alleged services set forth in the purported donation was less than half the value of the property donated. Under LSA-C.C. art. 1526 the rules peculiar to inter vivos donations (here C.C. art. 1533 that the donation is null if donor reserves the usufruct) apply when the value of the object given exceeds by half that of the charges or services. Plaintiff has alleged facts which indicate the rules peculiar to donations inter vivos do apply. If these rules apply, reservation of the usufruct invalidates the donation. LSA-C.C. art. 1533; Succession of Yeates, 213 La. 541, 35 So.2d 210 (1948).

Since plaintiff has alleged facts which if established would make the donation a radical nullity, the donation may be attacked by an interested party. Byrd v. Byrd, 230 La. 260, 88 So.2d 214 (1956); Taylor v. Spencer, 225 So.2d 98 (La.App. 2 Cir. 1969). The right to bring the action (contending for radical nullity) is not restricted to a particular category of heirs and may properly be brought by the succession representative. LSA-C.C.P. art. 685 expressly authorizes a representative to sue to enforce a right of the deceased or his succession. Strictly construed, if the act was null and of no effect, the property was never divested from decedent’s estate. At least, this is what plaintiff is contending and he has a right of action to make that contention.

As to the exception of no right of action, the trial court judgment is set aside and the exception is overruled. Costs of this appeal are taxed to appellee.

Trial Court judgment set aside; case remanded.


text:
    James Lee MOUILLE et al., Plaintiffs-Appellees, v. Percy Joseph HENRY, Defendant-Appellant.
    No. 5141.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.
    Rehearing Denied Nov. 13, 1975.

      Henry A. Bernard, Jr., New Iberia, for defendant appellant.
    Armentor & Wattigny by Gerard B. Wattigny, New Iberia, for plaintiffs appel-lees.
    Before HOOD, CULPEPPER and MILLER, JJ.
   MILLER, Judge.

Defendant Joseph Henry appeals the judgment granting plaintiffs James Lee Mouille, R. F. Dulin, and Sidney Louviere a mandatory injunction requiring Henry to remove his mobile home from property subject to a building restriction. Henry also appeals the dismissal of his third-party claim against his vendor. We affirm.

In March 1974 Henry purchased a lot located in a restricted subdivision. The building restrictions were recorded in 1957 to be effective for a twenty-five year period. The manner in which amendments were to be confected was detailed in the restrictive covenant. Restriction number 7 prohibited living in a “tent, trailer or shack” on the property, and number 2 prevented erection of a residence of less than $9,000 in value. Tr. 35.

Henry purchased a mobile home for $3,000. In June of 1974 he placed it on the lot and moved in. That same month he received notice from plaintiffs (owners of property in the subdivision) protesting his violation of building restrictions and requesting his compliance within ten days. This suit was filed the following month.

Henry contends 1) the restrictions do not apply to mobile homes; 2) the restrictions had been waived; and 3) the restrictions have been amended to permit mobile homes.

Questions relating to creation of building restrictions and their applicability to specific properties are strictly interpreted. In contrast to this, the nature of restrictions is interpreted to give a reasonable scope to the intent of the owner creating them. Salerno v. Delucca, 211 La. 659, 30 So.2d 678 (1947). In Salerno, an injunction enforcing a restriction against erecting a “business establishment” was held to restrict billboards.

Henry argues that mobile or modular home buildings were not contemplated within the 1957 restriction against trailers. The trial court rejected this argument and held this mobile home to be a trailer. Webster’s primary definition for “mobile home” is: “a trailer that is used as a permanent dwelling.” This mobile home was towed onto Henry’s lot and the trailer hitch and wheels remain in place. Henry has failed to establish manifest error in the trial court’s holding Henry violated restriction number 7 of the properly recorded building restriction.

The trailer also violated restriction number 2 because it was of less value than the $9000 minimum requirement.

The bulk of the evidence related to defendant’s allegation the building restrictions had been waived. Only one other trailer was located on the 75 lot subdivision, and it was on a lot designated commercial as opposed to Henry’s lot which was residential. The other alleged violations were seven in number — one instance of exposed piers (which was in the process of extensive renovations at trial), three fence violations on the part of one owner who fenced his three lots under one fence, one instance of a horse which was occasionally seen in the subdivision (but it was established the horse was not maintained on the premises), and two instances of beauty shops being operated within residences in the subdivision’s residential district.

To determine whether building restrictions have been waived, there are three areas of consideration. The number of violations, their character, and the adverse reaction of property owners to those violations. The proponent of waiver must establish a preponderance in all three. Fisher v. Smith, 190 So.2d 105 (La.App. 4 Cir. 1966). While the record contains conflicting evidence about the character of violations, Henry did not establish a single instance of another trailer home being located on a residential lot in the subdivision.

Property owners testified they policed for violations of the covenant. Tr. 76, 78, 83, 94. Pictures and testimony indicate no substantial departure from visual characteristics of residential structures and no disruption of residential traffic patterns by an influx of patrons to the two beauty parlors. Henry failed to establish manifest error in the trial court’s holding these building restriction violations were insufficient to constitute a waiver of the entire plan of restrictions. Guyton v. Yancy, 240 La. 794, 125 So.2d 365 (1961).

Henry contends the building restrictions were amended by a majority of residential lot owners as permitted by LSA-R.S. 9:5622 (as amended in 1960). Amended building restrictions were approved in Roccaforte v. Lewis, 286 So. 2d 490 (La.App. 1 Cir. 1973). LSA-R.S. 9:5622 as amended is effective only where building restrictions do not have a termination date. Where the covenant provides its termination date, the statute does not apply. Robinson v. Morris, 272 So.2d 444 (La.App. 2 Cir. 1973). We distinguish the Roccaforte case because that restrictive covenant did not prescribe its termination date.

At oral argument Henry contended the restrictive covenant was amended as permitted under its terms whereby owners of fifty percent of the lots could amend the restrictions. He obtained signatures of owners of 28 residential lots (and 2 commercial lots) on a document styled “Amendment to Restrictive Covenants.” The amendment allowed certain mobile homes in the subdivision and all mobile homes were excluded from the $9,000 minimum value limitation. One or two signatories owned several subdivision lots.

There are 50 residential lots and 25 commercial lots in the subdivision. Henry contends owners of residential lots are the only owners to be counted to determine if fifty percent voted to change the restrictions to allow mobile homes and exempt mobile homes from the $9,000 minimum value of homes to be built in the subdivision. We reject that contention. The $9,000 restriction applies to commercial as well as residential lots. To change the $9,000 restriction, owners of 38 lots must sign the amendments. Henry does not contend he meets that restriction.

Henry finally contends his third party claim against his vendor should be recognized because seller represented trailers were permitted in the subdivision. There is no manifest error in the trial court’s finding Henry failed to establish this claim. Absent manifest error, this factual determination is sustained. Coward v. U. S. Fidelity & Guaranty Co., 289 So.2d 506 (La.App. 3 Cir. 1974).

The trial court judgment is affirmed at appellant’s costs.

Affirmed.


author: LEMMON, Judge. LEMMON, Judge BEER, Judge LEMMON, Judge. LEMMON, Judge BEER, Judge

text:
    O. L. HAAS, Sr. v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY.
    No. 6715.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 15, 1975.
    On Rehearing Oct. 9, 1975.
    Writ Refused Nov. 21, 1975.

      Becnel & Kliebert, Larry C. Becnel, Vacherie, for plaintiff-appellee.
    Porteous, Toledano, Hainkel & Johnson, Christopher E. Lawler and John J. Hainkel, Jr., New Orleans, for defendant-appellant.
    Before LEMMON, SCHOTT and BEER, JJ.
   LEMMON, Judge.

In appealing from an adverse judgment in this suit involving a collision between a moving and a parked vehicle, Southern Farm Bureau Casualty Insurance Company, licbility insurer of the driver of the moving vehicle, contends that plaintiff O. L. Haas’ contributory negligence in parking in a dangerous position was a legal cause of the collision which bars Haas’ recovery of damages to his car.

The accident occurred on La. Highway 20 in Vacherie. At that point the highway was a straight, two-lane road, 18 feet wide, with a three-foot shoulder on each side and a ditch along each shoulder. Residences and business places were located on both sides of the highway, which was a heavily traveled artery.

At about 6:00 p. m. on January 10, 1972 Haas parked his car in front of one of the residences which fronted on the highway. Although he used a narrow driveway across the ditch to park as far off the highway as possible, his parallel-parked car remained partially in the northbound lane, so that it was necessary for a northbound car to cross the center line in order to pass Haas’ parked vehicle. Haas left his emergency lights blinking while he went inside the residence.

Farm Bureau’s insured, Carroll Levet, traveling north on the highway, came along about ten minutes later and ran into the fear of the Haas vehicle. Levet testified he never saw the parked car and was blinded just before impact by the headlights of an oncoming vehicle.

Tommy Morvant, driver of the oncoming car, testified that when he saw the parked car with its blinking lights and noticed Levet’s car approaching about 30 yards behind the parked car he slowed down while about 100 yards away from the parked car in order to let Levet pass safely. (Levet stated that Morvant’s car was just past the point of collision when the impact occurred.)

The record further established that there was no other traffic on the highway at the time and that there were several other places in the vicinity where Haas could have parked his car completely off the highway.

We conclude Levet’s negligence was a legal cause. Although he may have been momentarily blinded just before the accident, he had traveled a considerable distance on the straight highway (with no other traffic in the area) before being blinded and should have seen the parked car with blinking lights if he had exercised reasonable care and kept a proper lookout. His inattention was a cause-in-fact of the accident, and his breach of his duty to observe what he should have seen created a risk of colliding with traffic obstructions which made him legally responsible for the resulting collision.

We next inquire into Haas’ conduct in parking on the traveled portion of the busy highway. Using the procedure outlined in Laird v. Travelers Ins. Co., 263 La. 199, 267 So.2d 714 (1972) and in Pierre v. Allstate Ins. Co., 257 La. 471, 242 So.2d 821 (1970), we first determine whether that act was a cause-in-fact of the accident. If Haas had not parked in a position which partially obstructed the highway, the accident would not have occurred, and the determination that this act was a cause-in-fact presents no difficulty.

Inasmuch as the mere existence of the causal relationship does not establish legal liability for ensuing harm, we next consider the duty imposed and the risks encompassed within that duty. The duty to refrain from parking on a highway is imposed as a safety measure in order to keep traffic arteries open. The obstruction of highways not only impedes passage, but also creates a risk that a confused or inattentive driver will collide with the stationary vehicle. The risk of harm created by a motorist’s obstructing a highway imposes a reciprocal duty on motorists to refrain from doing so.

The exact risk sought to be avoided by imposition of this duty came into being when Haas parked so as to leave insufficient room on the highway for unobstructed passage of northbound vehicles. Admittedly, Levet’s inattention constituted later and intervening negligence, but the hazardous condition created by Haas’ negligence continued up to the moment of the accident, and the concurrent substandard behavior of both parties combined to create the particular risk involved and to bring about the collision.

Haas contends, however, that the facts of this case fall somewhere between those of the Pierre case (where liability was imposed on the parked defendant) and the Laird case (where liability was not imposed).

Each case, of course, must be considered according to its own facts and circumstances. Under the circumstances of the Laird case the court, recognizing that duties are imposed on motorists to protect some persons under some circumstances against some risks, held that the risk of the occurrence of the ensuing collision with this particular following motorist did not fall within the ambit of Laird’s duty, inasmuch as there was no oncoming traffic; the following motorist could have passed Laird without moving out of his assigned lane of traffic; Laird’s vehicle, almost completely off the highway with brake lights on, was (even to an inattentive or momentarily distracted driver) obviously stopped; signs warning of highway construction should have alerted any driver that the highway ahead might be blocked; and a person standing by the stopped vehicle attempted to warn the oncoming driver by shouting and waving.

Of these operative facts emphasized in the Laird case, only the warning lights were present in the instant case. This factor, however, is relatively insignificant standing alone, since the accident in the Pierre case happened in broad daylight.

Although Haas’ counsel presented a forceful argument and a cogent analysis of the recent cases decided on the duty-risk theory, we conclude that Haas breached a duty of reasonable care by obstructing the highway when it was practicable to park elsewhere and that his breach created the exact risk which the duty not to obstruct highways is designed to prevent. There is an “ease of association” between the duty imposed, the risk created and the damages inflicted. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Prosser, Handbook of the Law of Torts, Ch. 7 (4th Ed. 1971).

Nevertheless, while Haas’ concurrent negligence was a legal cause of the accident, he is entitled to recovery because of the applicability of the doctrine of last clear chance.

In Jackson v. Cook, 189 La. 860, 181 So. 195 (1938) the Supreme Court held that the doctrine applies not only when the defendant actually discovered a continuingly negligent plaintiff’s position of peril in time to prevent the accident and failed to do so, but also when the defendant should have discovered such plaintiff’s position of peril. Although Louisiana is apparently the only jurisdiction which extends the doctrine to last clear chance to accord recovery under these circumstances, the Jackson case has never been overruled. See the denial of certiorari in Nixon v. Southern Rwy. Co., La., 293 So.2d 182 (1974).

In the present case, therefore, we conclude that although Haas’ negligence continued up to the instant of the accident, his recovery is not barred by his contributory negligence inasmuch as Levet had the “unconscious last clear chance.” See Restatement (Second), Torts § 479 (1965).

DAMAGES

Haas purchased the 1972 Cadillac on September 22, 1971 for $7,858.99. After the accident less than four months later, Haas’ collision insurer (coincidently Farm Bureau) paid him $2,327.87, the estimated cost of repairing the patent damage. Haas then purchased a new car and was allowed $3,100.00 as the trade-in or salvage value of the wrecked car in an unrepaired condition. He now seeks in this suit to recover the damages he sustained in excess of the amount paid by the collision insurer.

An expert in appraising automobile values, whose company had originally sold Haas the subject automobile, inspected the car after the accident and found extensive body and chassis damage. He testified that the car was in excellent condition just prior to the wreck and opined that, because of the scarcity of Cadillacs in January, the car with only 4,000 miles of use could have commanded as high a price just before the accident as the original sales price.

The expert further stated that the extensively wrecked car, had it been repaired, would have suffered a substantial value inferiority (depreciation) in comparison to an identical car (of similar age and mileage) which had not been wrecked. He estimated the value of the car, if repaired after the wreck, to be $5,000.00 to $5,400.-00, thus indicating a value inferiority attributable to the collision in the range of $2,400.00 to $3,000.00.

The trial judge awarded $2,372.13, calculated by subtracting the damages paid by the collision insurer and the salvage value from $7,800.00, which the judge found to be the value just prior to the accident. This amount is also supported by the value opinions contained in the only expert testimony in the record.

The judgment is affirmed.

AFFIRMED.

LEMMON, J., concurs specially and assigns reasons.

BEER, J., dissents and assigns reasons.

LEMMON, Judge

(concurring specially)-

In a separate opinion in the Nixon case, I respectfully suggested that the holding of the Jackson case be reexamined. This issue was in a peculiar posture upon application for certiorari in the Nixon case in that the majority of this court, although discussing last clear chance, found the defendant free from negligence and the plaintiff was the party seeking review. Because three members of the Supreme Court voted to grant certiorari and a fourth voted to deny certiorari to the plaintiff because the rationale in the Jackson case was wrong, I respectfully reurge my previous suggestion.

BEER, Judge

(dissenting).

I respectfully dissent.

I am unwilling, in circumstances such as those existent here, to acknowledge the validity or applicability of the doctrine of “last clear chance.” I do not believe that a parked automobile, protruding barely one foot onto a heavily traveled, 18 foot state highway, at night, has the right to have the doctrine applied in its behalf and against the adverse driver, notwithstanding the fact that its blinkers were blinking.

Independent witness Morvant located the Cadillac as follows: “He was on the side of the road, most of the way, with about two wheels on the road.’’ (Emphasis mine.) Morvant also described the position of the Cadillac as “ . . .he was in the driveway but his wheels were sitting on the blacktop of the edge [of the highway].”

Morvant testified that he had to slow down to let Levet “get around” plaintiff’s car which, I feel, supports Levet’s testimony about the blinding effect of Morvant’s lights. Morvant said that the highway was heavily traveled at that time and further acknowledged that Levet “would have to come partially into your [Morvant’s] lane” to “get around” the parked Cadillac.

The position of the parked Cadillac was such that Levet neither actually discovered the negligent plaintiff’s perilous position nor was, in my opinion, obliged to have discovered it. The position in which the plaintiff’s car was parked was a subtle peril — almost a trap and the flashers were of little significance in these circumstances since the Cadillac was only “about a foot” on the highway and would have appeared to be off the traveled portion. I feel that Haas was negligent and that his negligence was more proximate because of its subtleness. He had any number of places where he could have safely and legally parked to fulfill his mission, well-intentioned as it may have been. He chose one of the most perilous possible methods of parking his car, and, though it is of little significance, his testimony is unfactual with respect to the positioning of the car for he says it was completely off the highway.

The majority concludes (correctly, I think) that “ . . . Haas’ negligence continued up to the moment of the accident” and, further, that such negligence “ . . . combined ... to bring about the collision.” “Nevertheless,” says the majority, Haas recovers “because of the applicability of the doctrine of last clear chance.” In the circumstances of this case I find its applicability unwarranted on the facts and on the law.

Thus, I respectfully dissent.

Before LEMMON, SCHOTT and BEER, JJ-

LEMMON, Judge.

ON REHEARING

On rehearing defendant first contends the evidence does not support a finding that Levet was negligent. We have again reviewed the record and conclude that Levet was negligent either: (1) if he was only momentarily blinded just before the accident, in failing to see the parked car, with its taillights blinking, before the interference with his vision, or (2) if he was blinded several seconds before the collision, in continuing forward on the highway in a blinded condition without slowing or otherwise taking steps to bring his vehicle under proper control. Under either version of the facts Levet’s substandard driving was a substantial legal cause of the accident.

Defendant next contends that if the substandard behavior of each party was a legal cause of the accident, then plaintiff should not be allowed to recover simply because his negligent act occurred first, particularly since plaintiff’s gross disregard of the safety of other motorists set a continuing trap for those motorists who were momentarily distracted. Arguing that the decisions of the Supreme Court in Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962) and Pierre v. Allstate Ins. Co., 257 La. 471, 242 So.2d 821 (1970) effectively abrogated any legal theory which would serve to relieve all but the last wrongdoer of liability, defendant urges that justice in this particular case cries out for denial of recovery to a grossly negligent plaintiff who can only point to the chronology of events as the basis for his claim.

Defendant is essentially quarreling with the doctrine of last clear chance insofar as recovery is allowed purely on the basis of whose negligence occurred first. We agree that allowing recovery solely on that basis is inconsistent with the rationale of the Dixie and Pierre cases and the abrogation of passive negligence defenses. Nevertheless, there was no contributory negligence in the Dixie and Pierre cases, and the court was not confronted with the inconsistency problem of applying last clear chance under those circumstances. Therefore, the unconscious last clear chance doctrine of Jackson v. Cook, supra, remains viable unless overruled by the court which introduced the doctrine.

Our original judgment affirming the judgment of the trial court is reinstated.

Judgment of the trial court reinstated.

LEMMON, J., concurs and assigns reasons.

BEER, J., dissents and assigns reasons.

LEMMON, Judge

(concurring).

Defendant’s visceral reasoning is that a grossly negligent actor should not recover damages from a second person whose lessor variation from the requirements of due care results in that second person’s falling into the first actor’s trap. This is essentially a comparison of the two negligences.

I agree that the application of comparative negligence is the only method of achieving' justice in this case. Nevertheless, I concede the sole authority of higher courts to implement this method. Reluctantly disregarding plaintiffs trap-setting culpability, I vote to allow him full recovery.

BEER, Judge

(dissenting).

I respectfully dissent for I cannot agree with the result that is reached in spite of my acknowledgement to my brothers on this panel that I am now less than sure of the correctness of my previously stated conclusion that Levet was free from negligence.

This is a frustrating case in which I am constrained to agree that the majority has much merit to its ratio decidendi even though it generates a conclusion that I feel unable to accept. My gnawing frustration may be borne of a notion that perhaps the time has about come when we must cope with the evergrowing pressure to accept the doctrine of comparative negligence into our decision making process.

Our state has hundreds of thousands of automobiles and trucks constantly operating within its boundaries during each working day. These vehicles encompass the entire spectrum of operating efficiency — from the standpoint of the skill with which they are driven (or parked) and the condition in which they are maintained. Thus, at any given moment, accidents can and do take place in a variety of instances where fault varies from the barest minimum to the grossest maximum.

I believe that our Louisiana courts should prepare to deal with this phenomenon on a more realistic basis than has heretofore been the case. The United States Supreme Court has, as exemplified in their landmark decision in International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), often turned to “traditional notions of fair play and substantial justice” to unravel knotty scio-economic-legal issues. This, I believe, is proper and within the boundaries of acceptable procedure in the 1970’s. The legislative and executive branches of our tripartite system of government have indicated a willingness to move in a direction toward emphasizing substance rather than form and the judiciary should, with care and caution, follow suit. Does this require an “opening” toward the concept of comparative negligence? I think it does. I believe that such a conceptual approach is more in tune with these times. Indeed, the idea of comparative negligence is not only more realistic but more responsive to the kind of substantial justice that these complex times seem to require.

Urbanized as we have become in this great open state of ours, considerations must change as we deal with the problems which technological growth and population explosion have produced. Many accidents now result from the very fact that our city streets and state highway systems are overloaded and ill used. Because of this, more and more accidents now result from the combined oversights and predelictions of several drivers than ever before. Though a substantial number of accidents result from single instances of negligence, a vastly greater number are the result of “fault” on the part of more than one driver.

Americans are inclined, in most controversial matters, to “split the difference.” Our national character tends toward a compromise approach to “head and head” confrontations except in matters where moral considerations predominate.

This basic tendency certainly spills over into the area of judicial deliberation but meets with great frustration in jurisdictions where comparative negligence is not the rule. Many lawyers and judges believe that juries follow the doctrine whether or not it is the law of the jurisdiction. I am inclined to agree. When a jury hands down a “compromise verdict,” it really is a comparative negligence verdict — or very close to it. Some appellate judges in those jurisdictions which do not recognize the concept of comparative negligence are now feeling a sort of judicial frustration with the situation. Even in states where the legislature has signaled a reluctance or unwillingness to accept the doctrine of comparative negligence, appellate courts are, in some instances, proceeding on the basis of “active judicial interpretation” to bring comparative negligence into the law of the state. In Nga Li v. Yellow Cab Co. of Cal., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (1975) the California Supreme Court has now held that a plaintiff’s causal negligence will not bar tort recovery. Specifically, that court has judicially adopted a comparative negligence system. In doing so, the court took the “judicial initiative” even though contributory negligence was part and parcel of the California law by both prior legislative and prior judicial pronouncement.

Following the California Civil Code, the court determined that it was committed to a continuation of interpretation through “dynamic expression” and held that such a course now required that they supersede the “all or nothing” rule of contributory negligence within the doctrine of comparative negligence.

Across the country in Florida there are similar stirrings. In Hoffman v. Jones, 280 So.2d 431 the Florida Supreme Court has very recently promolgated the judicial adoption of comparative negligence.

Our changing society has, itself, been the most prolific producer of social, economic and legal developments whose “time has come.” True, there have been moments of great leadership from the courts, from the legislatures and from the executive branch of government. But, by and large, our national will and our national conscience have been the real forces that have seen us through those episodes of “future shock” that traverse the whole spectrum of our national actions.

I believe that the doctrine of comparative negligence is “on the march” and will eventually be recognized in our great state either by legislative will, judicial fiat or some combination of the two.

How it is achieved may be less important than it has been in the past when courts and legal scholars may have been more concerned with form than substance. I say this as a firm believer in the art of judicial restraint. Indeed, as a more or less traditional and, perhaps, conservative judge I am somewhat surprised to find myself holding these views. But, as has been said, there is nothing stronger than an idea whose time has come and that, I believe, describes the situation regarding comparative negligence.

The California Supreme Court has, in the Nga Li decision referred to an interesting article in the Harvard Law Review (Mishkin, Foreword, The Supreme Court 1964 Term (1965) 79 Harvard L.Rev. 56, 60-62) which discussed “issues involving renovation of unsound or outmoded legal doctrines.” (Emphasis mine.)

I believe that contributory negligence as a complete bar to recovery is outmoded and the law is in need of renovation on this important front. The method by which this is accomplished should, however, take place within the guidelines of sound and responsible judicial (or legislative) conduct. How this is ultimately translated into a realistic and properly operating premise is the basic responsibility of all of us who care about the orderly administration of justice whether we are legislators, law professors, lawyers or judges.

If we handle the matter expeditiously and well, I believe that the result will not only be a fairer and more equitable rule of law but will also be the basis for more realistic verdicts — a boon for plaintiffs and defendants. While it may be true that the instances of recovery by plaintiffs will doubtlessly be higher, the quantum of the award should be more reasonable because judges and juries will have the green light to do what they have very often wanted to do any way —“split the difference” on a realistic basis.

      . We do not discuss statutory violations. There was no evidence of signs prohibiting parking [R.S. 32:143, subd. A(14)], and R..S. 32:141 may not have been explicitly applicable to this locality. Nevertheless, criminal statutes do not define civil liability, but only provide guidelines (often in terms of minimum standards of behavior) for determining liability in civil cases.

      . Although not adopted as controlling in the majority opinion in the Laird case, another point of view advanced was that Laird’s slight and momentary obstruction, under the totality of existing circumstances, was not such substandard behavior as to warrant imposition of liability.

      . $7,762.50, plus $106.49 for air bags.

      . The estimate left open any charges for hidden front and rear end damage.

      .He estimated that the slightly used car could have been sold in January for approximately $7,800.00 to $8,000.00. He further noted that Haas’ sales price reflected a substantial discount given because of Haas’ friendship with the dealer.

      . This application of the doctrine differs from that of the doctrine of discovered peril, in which a defendant actually discovering a plaintiff’s peril refuses or otherwise fails (with a reasonable opportunity to act) to protect plaintiff against the consequences of his own negligence.

      . In the Dime case the plaintiff was the lessor of the truck, and in the Pierre case the plaintiffs were the surviving children of a truck passenger. Thus, parking negligence could not be imputed to the innocent plaintiff in either case.

      . Depending upon the form of comparative negligence applied, plaintiff’s recovery would be reduced (under pure comparative negligence) or entirely barred (under certain modified applications), if plaintiff is found to be more than 50% negligent.

      . Agreeing with the views expressed in Judge Beer’s dissenting opinion on rehearing, I reiterate my statement in the concurring opinion in Kontomitras v. New Orleans Public Service, Inc., 314 So.2d 441 (La.App. 4th Cir. 1975) that “doctrinal tort writers are almost unanimous in condemning contributory negligence, perhaps the only point of controversy being whether comparative negligence should be adopted by the courts or the legislature. (Earlier erroneous) judicial interpretation ... is always subject to judicial correction. See concurring opinion in Broussard v. Heebe’s Bakery, 263 La. 561, 268 So.2d 656 (1972).”


author: LOTTINGER, Judge.

text:
    STATE of Louisiana, Through the DEPT. OF HIGHWAYS v. The SOCIETY FOR the PROPAGATION OF the FAITH et al.
    No. 10353.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1975.
    Writ Refused Oct. 22, 1975.
    Johnie E. Branch, Jr., and William W. Irwin, Jr., Asst. Gen. Counsel for Highway Dept., Baton Rouge, for appellant.
    William J. Jones, Jr., Covington, and Thomas A. Rayer, New Orleans, for defendants-appellees.

      Before LOTTINGER, COVINGTON and BAILES, JJ.
   LOTTINGER, Judge.

This is a highway expropriation proceeding, two suits having been filed by the Department of Highways against the Society For The Propagation Of The Faith Of The Archdiocese Of New Orleans, Inc. The other suit bears Number 10,354 on the docket of this court. Both suits will be considered in this opinion, however, separate judgments will be rendered.

These consolidated cases involve two I-12 takings by the Highway Department from the Society, the first taking occurred on March 24, 1969 when it expropriated 91.932 acres of the Society’s lands.

A part of the land in the first taking was expropriated for the planned U.S. 190, 1-12 diamond design interchange. The Highway Department later changed the design of this interchange to a larger clover-leaf design necessitating the second expropriation suit filed on September 8, 1971, which expropriated an additional 34.203 acres.

The trial court’s judgment, from which the State has appealed, awarded the following amounts for the takings:

FIRST TAKING SECOND TAKING COMBINED TAKINGS
TOTAL AWARD $469,755 $629,622 $1,099,377
DEPOSIT BY STATE 241,304 251,475 492,799
INCREASED AWARD $228,451 $378,147 $ 606,598

Five appraisers testified, two on behalf of the Department and three on the behalf of the Society. The appraisers were Edward Deano and Darrel Willet for the State. The appraisers for the Society were Frank Patecek, John Lejeune and Kermit Williams.

In its reasons for judgment, the lower court said:

“The first taking contemplated a diamond design interchange. The second taking resulted when the plans were changed to a cloverleaf design interchange.
This is significant for several reasons. The first is that the intersection of highway, such as US 190, with an interstate highway using a diamond design requires less land than a clover-leaf. The second taking was made in order to make US Highway 190 a control-of-access south of its intersection with 1-12.
This Court understands that the joining of two control-of-access highways requires a clover-leaf design, and that a diamond design will not work. Highway 190 is to be four lane, but not control-of-access, north of 1-12. South of 1-12 it is control-of-access to the Lake Pontchartrain Causeway, as well as four lane.
Prior to the taking, the property was in excess of eleven hundred acres. It is bordered on its extreme west by about sixteen hundred feet of frontage on the big Tchefuncte River at an area which is locally known as Three Rivers. Upstream the Abita River has gone into the Bogue Falaya River and at this point the Tchefuncte River joins the Bogue Fa-laya River at what is known as Three Rivers. The property at the river is high and outstanding. There is a small amount of river frontage that is low, but most of it is probably the highest part of the Tchefuncte River between Covington and the Lake Pontchartrain.
Its southern boundary has more frontage on the Tchefuncte River but different in character in that it is low. The south boundary of the property, in addition to the approximately 900 feet of frontage on Tchefuncte River, is approximately two miles along the meanderings of Ponchitolawa Creek which is navigable for most of its length although not of the size of the Tchefuncte River. Yachts of large size come up the Tche-functe River as far as where this property is, but only small pleasure-type boats can and do use the Ponchitolawa Creek. Also there is additional frontage of water on a small bayou called Bayou Mon-ga, small but also navigable which traverses the southwestern part of this property.
The highway is interesting. The property had approximately thirty four hundred feet of uninterrupted highway frontage on the west side of US 190 from Ponchitolawa Creek on the south running thirty four hundred feet north. There are then several intervening ownerships and several small tracts with frontage on highway 190.
The first taking went all the way through the property from its western river frontage to the eastern US 190 edge, but it left the landowner with a good portion of valuable frontage on US 190.
The second taking consumed almost all of the defendant landowner’s US 190 frontage.
In addition to these roads which I have mentioned, a state or parish maintained black top road known as Ruhl Road, or Three Rivers Road, cuts through this property about a quarter of a mile of its western boundary and, therefore, from the description which I have just given, the property has been treated by all of the appraisers as really being three separate distinct types of land.
The forty acres or so on the extreme west is classified as estate type river frontage, very, very high in value, very limited supply of it, and a great demand for it.
On the eastern part of it on US Highway 190, the appraisers went back an arbitrary distance of seven hundred, seven hundred fifty or eight hundred feet and computed an area roughly four thousand feet on the road by seven hundred fifty feet or so deep of about sixty acres, and they called that high grade commercial. Then the portion bounded on the south by the creek, on the west by Ruhl Road, on the north by a section line, and then on the east by no highway frontage, they called interior land. All of the appraisers treated it in that fashion.
The landowner used Mr. Frank Patecek, Mr. John Lejeune, and Mr. Kermit Williams as expert appraisers. The Highway Department used Mr. Edward Deano and Mr. Darrel Willett as their expert appraisers.

For the first taking, the appraisals were as follows:

March, 1969 Taking
Patecek Lej eune Williams Deano Willett
Commercial 13,068p/a 12,256p/a 13,000p/a 8000p/a 7500p/a _28^ per sq. ft._
River 10,500p/a 12,000p/a ll,500p/a 4000p/a 3500p/a
Interior l,800p/a_l,750p/a_l,500p/a 1000p/a 875p/a
The Court found all of the appraisers to be thorough. This Court’s conclusions are to follow Mr. Williams’ opinions of $13,000 per acre for the commercial land; $11,500 per acre for the river front land; and $1500.00 per acre for the interior land.

For the second taking the appraisals were as follows :

September, 1971 Taking
Patecek Lejeune Williams Deano Willett
Commercial 18,295p/a 15,933p/a 16,000p/a 8000p/a 7,950p/a
River 13,598p/a 12,000p/a No value 4000p/a 3,710p/a
Interior 2,33 lp/a_l,750p/a_l,800p/a 1000p/a_928p/a
No river front land was taken in the second expropriation.
All of the landowner’s appraisers testified to increases in value during the thirty months which elapsed between the first and second takings. Mr. Willett, one of the State’s appraisers, also found value increases during this period. Mr. Deano was the only one of the five appraisers who testified to no increases at all during this two and one-half year period.
The Court finds reasonable, and will accept, Mr. Williams’ conclusions of $1800.00 per acre value for the interior land, and $16,000.00 per acre value for the commercial front land.
The second taking consumed 12.977 acres of interior land and 21.226 acres of commercial land. As stated above, the Court accepts Mr. Williams’ figures.
After the second taking that portion of the landowner’s property which was formerly highway frontage is behind a control of access fence with no frontage road on the 9.893 acres remaining in the northwest quadrant. The Court accepts the proposition that the highest and best use of this property (9.893 acres) has reduced from commercial at $16,000.00 per acre to residential at $1800.00 per acre, and the damages for that land are $14,200.00 per acre.
The land remaining in the southwest quadrant has also been damaged because it is behind the control of access fence, and the nearest access via the service road is a mile and a quarter south. The Court concludes that this area (stipulated to be 8,885 acres) has also been reduced to residential use, just as the land in the northwest quadrant, and it is therefore damaged in the same fashion.
With respect to the fees of the landowner’s experts, the Court concludes that by and large, they are reasonable, although certainly not cheap.
For example, Mr. Champagne, the engineer and surveyor, obviously did a great amount of work. His maps of the entire tract were used throughout the whole trial.
The real estate appraisers, also, did a tremendous amount of work in both of the takings, and therefore their fees, although high, are in this Court’s opinion properly due to the landowner as costs of court.”

In suit no. 29940 the lower court awarded judgment in favor of defendant and against petitioner in the sum of $469,755.00 as compensation for the parcels expropriated, subject to a credit of $241,304.00 being the deposit by the Highway Department in these proceedings, together with legal interest on $228,451.00 (the amount the total award exceeds the deposit) from March 24, 1969 (the date of the expropriation) until paid, together with all costs.

In suit no. 34-898, the Lower Court awarded judgment in favor of defendant and against petitioner in the sum of $362,974.00 as compensation for the parcels expropriated plus $266,648.00 as severance damages, for a total award of $629,622.00 subject to a credit of $251,475.00, being the deposit in these proceedings, together with legal interest on $378,147.00 (the amount the total award exceeds the deposit) from September 13, 1971 (date of expropriation) until paid, together with costs. The Lower Court also awarded expert fees.

The petitioner has taken an appeal in both of the cases while the defendant has neither appealed nor answered the appeal.

The defendant has cited 6 expropriation cases of property at or near this interchange (US 190-1-12) which have been reviewed by this court, namely, State Department of Highways v. Beatty, 288 So.2d 900 (1973); State Department of Highways v. Wax, 295 So.2d 833 (1974); State Department of Highways v. Covington Interstate, 295 So.2d 828 (1974); State Department of Highways v. St. Tammany Homestead Association, 304 So.2d 765 (1974); State Department of Highways v. Gulf Oil Corporation, 304 So.2d 775 (1974); State Department of Highways v. Shell Oil Company, 304 So.2d 777 (1974).

We find no error on the part of the Lower Court in adopting the valuation set forth by appraiser Williams.

In State, Department of Highways v. Wax (Supra) as well as in others of the cases above mentioned, we held that it is well settled in our law that where the experts differ, the trial judge is in a better position to determine the credibility and the weight to be accorded their testimony and his decision as to the valuation of property should not be disturbed unless shown to be manifestly erroneous.

The petitioner also complains that the Lower Court erred in considering damages on a “cost-to-cure” approach. In State, Department of Highways v. Wax (Supra) we said:

“As stated in State, Department of Highways v. Neyrey, 260 So.2d 739 (La.App. 4 Cir. 1972), the usual method of determining severance damages is the “before and after” test, but in considering applicability of the “cost to cure” method of determining severance damages, the Court said:
‘However, under certain exceptional circumstances the ‘before and after test’ will not adequately compensate the owner for his damage and the courts will resort to the ‘cost to cure’ method of computation, not for purpose of restoration, but to gauge the diminution in market value as would be reflected in a lower purchase price that a well-informed buyer would be willing to pay. The case of State, Department of Highways v. Mason, 254 La. 1035, 229 So.2d 89 (1969), stands for the proposition that the ‘cost to cure’ concept should be used in assessing severance damages only in most exceptional situations . . .’
‘. . . The rationale justifying this method of computation is that a well-informed buyer would pay less than market value for the property by a sum equal to the amount of the award, this being the cost necessary to overcome the deficiency created by the taking, i.e., the loss of access. Thus, it is only in this way that the owner of the property is fully and fairly compensated for his loss.’ * * *
We agree with the trial court that the facts of this case necessitate the use of the “cost to cure” method as the only equitable way by which to measure the defendant’s losses. Accordingly, the award of severance damages decided below will be upheld.”

The petitioner also complains of the award of severance damages by the lower court. Certainly the contemplated project would cause severance or consequential damages to defendant. Under almost identical circumstances this court granted severance damages in State Department of Highways v. Beatty, (Supra) and State Department of Highways v. Covington Interstate (Supra).

In the Beatty case we said:

“Regarding the statutory provision that severance damage should he determined as of the date of trial (R.S. 48:453), the Third Circuit said in State Department of Highways v. William T. Burton Industries, 231 La. 360, 219 So.2d 837 ((La.App.) 1969):
“ ‘In our view, however, the provision that severance damages be valued as of the date of the trial was statutorily intended to specify that the damages the remainder suffers should be reduced by special benefits which result to it from the completion of the highway construction, not to deprive the landowner of compensation for damages sustained by his tract because of any general increase in the value of land between the taking and the trial. We do not believe that the legislature intended to deprive a landowner of damages to his property undoubtedly caused him by the taking, simply because — in the long interval between the taking itself and the subsequent completion of the long-term major highway construction project — his property had increased in value due to generally improved economic conditions, along with all land in the area (and, probably, most other lands in the entire State).
“ ‘ “The landowners” damages should not be offset by such a general appreciation in value, any more than it is by general benefits the tract receives because of the improvement. As stated by the Grey decision, cited above “ * * * the citizen whose property is taken cannot be compelled to bear more of the cost of the public improvements and general benefits resulting therefrom than is borne by other property owners whose property is neither taken nor damaged for the public purpose.” (Louisiana Highway Comm., 197 La. 942) 2 So.2d (654) 6607 ”

We feel that the award of the lower court was fair and just and we find no error in its decision.

For the reasons hereinabove assigned, the judgment of the lower court will be affirmed, all costs of this appeal to be paid by petitioner, as permitted by law.

Affirmed.


text:
    STATE of Louisiana, Through the DEPT. OF HIGHWAYS v. The SOCIETY FOR the PROPAGATION OF the FAITH OF the ARCHDIOCESE OF NEW ORLEANS, INC., et al.
    No. 10354.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1975.
    Writ Refused Oct. 22, 1975.
    Johnie E. Branch, Jr., and William W. Irwin, Jr., Asst. Gen. Counsel for Highway Dept., Baton Rouge, for appellant.
    William J. Jones, Jr., Covington, and Thomas A. Rayer, New Orleans, for defendant-appellee.
    Before LOTTINGER, COVINGTON and BAILES, JJ.
   LOTTINGER, Judge.

This suit was consolidated with another suit entitled “State of Louisiana, Through The Department Of Highways v. The So ciety For The Propagation Of The Faith Of The Archidiocese Of New Orleans, Inc., Et Al”, La.App. 321 So.2d 388 on the docket of this court. This suit involves an 1-12 taking by the Highway Department from the Society for the purposes of construction of 1-12.

For the reasons this day assigned in suit No. 10,353 on the docket of this court, the judgment of the Lower Court will be affirmed, all costs of this appeal to be paid by petitioner, as permitted by law.

Affirmed.

Certiorari denied, La., 322 So.2d 768.


text:
    Elizabeth Foy BROWN v. Edwin EDWARDS, Indiv., etc., et al.
    No. 10325.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1975.

      Norbert A. Simmons, New Orleans, for plainti f f-appellant.
    Joseph F. Keogh, City-Parish Atty., for defendant-appellee Dumas.
    A. G. Seale and James H. Morgan, Baton Rouge, for defendant-appellee Fireman’s.
    Emile C. Rolfs, III, Baton Rouge, for defendant-appellee La. State Police.
    James J. Donelon, Baton Rouge, Executive Counsel, for defendant-appellee Edwin Edwards.
    Robert C. Funderburk, Baton Rouge, Sp. Counsel to Atty. Counsel Wm. H. Cooper, Baton Rouge, for defendant-appellee Sheriff’s Dept.
    Robt. L. Kleinpeter and Vance B. La-cour, Baton Rouge, for defendant-appellee Leon Netterville.
    Charles W. Franklin, Baton Rouge, for defendant-appellee Aetna Cas.
    Before LOTTINGER, COVINGTON and BAILES, JJ.
   LOTTINGER, Judge.

This is a suit filed by Elizabeth Foy Brown, as plaintiff against Edwin Edwards, and others, for damages resulting from the death of her son. The lower court, by summary judgment, dismissed the suit as it was asserted against Fireman’s Fund, one of the defendants. The petitioner has appealed.

Consolidated with the instant suit was another suit entitled “Laurence Smith and Erma Smith vs. Edwin Edwards, and others", which bears No. 10,326 on the docket of this Court. These two consolidated cases will be treated together in this opinion, however, a separate judgment will be rendered.

The sons of the petitioners in the two suits were both killed during the civil riot which took place on the campus of Southern University at Baton Rouge, on November 16, 1972. The petitioners filed their suits seeking damages for the death of their respective sons. Named as defendants are Edwin Edwards, individually and as Governor of the State of Louisiana, and other public and police officials of the State. Named among the defendants was Fireman’s Fund Insurance Company which was the surety on a bond in the sum of $20,000.00 which named J. A1 Amiss, as Sheriff of East Baton Rouge Parish as the principal. Fireman’s Fund filed a motion for summary judgment contending that the particular bond was a surety bond for Sheriff Amiss as the ex-officio tax collector of East Baton Rouge Parish citing as authority for its contention the provisions of Article VII, Section 65 of the Louisiana Constitution and R.S. 33:1443 and 33:1444.

Article VII, Section 65 of the Louisiana Constitution provides in pertinent part as follows:

“There shall be a sheriff elected by the qualified electors of each parish in the State except in the Parish of Orleans, who shall be elected at the general State election and hold office for four years. The sheriff, except in the Parish of Orleans, shall be the ex-officio collector of State, parish and all other taxes, except municipal taxes, which, however, under legislative authority, he may also collect.
“He shall, within sixty days from the date of his commission, give separate bonds as required by law, for the faithful performance of his duties in each capacity, and in default thereof the office shall be declared vacant. He shall not be discharged as tax collector until he makes satisfactory proof that he has exhausted the legal remedy to collect taxes.” (Emphasis added.)

At the time the suits were filed, there were three bonds contained on the public records of East Baton Rouge Parish naming Sheriff Amiss as principal. As indicated by the certified copies of the three bonds, only the $20,000.00 surety bond of Fireman’s Fund Insurance Company was furnished by the Sheriff in June, 1972. The Sheriff’s bond for $6,000.00 was not found on the public records at that time. In July, 1972 a $300,000.00 bond by Aetna Insurance Company was filed and in September, 1972 the Aetna’s $6,000.00 performance bond was filed.

These bonds were apparently filed by the Sheriff to comply with the mandatory requirements of Louisiana R.S. 33 :1443 and 33:1444. R.S. 33:1443 provides as follows:

“Except in Orleans Parish, the sheriff shall give bond in the sum of six thousand dollars, with the following conditions : ‘Condition of the above obligation is such, that whereas, the above bound A.B. has been elected, or appointed sheriff of the parish of-; now, if the said A.B. shall well and faithfully execute and make true returns, according to law, of all such writs, orders and process as shall come into his hands as sheriff aforesaid to the person entitled by law to the same, and shall faithfully do and perform all such other duties as may be required of him by law, then the above obligation to be null and void, otherwise to remain in full force and virtue.”

This particular statute requires that the Sheriff post a bond for the faithful performance of his duties in his capacity as Sheriff. The mandatory amount provided by that statute is $6,000.00. R.S. 33:1444, on the other hand, provides as follows:

“As ex officio tax collector of state and parish taxes, the sheriff except in Orleans Parish shall, before commencing the discharge of his duties, give bond, for his term of office, in a sum which shall be one thousand dollars over the full amount of the State and parish taxes levied, according to the last filed assessment roll of the parish, but shall not exceed twenty thousand dollars. The bond shall be conditioned as provided in R.S. 47:2052.”

This statute requires the Sheriff to give bond for the faithful performance of his duties as ex-officio tax collector. By Act 298 of 1972, R.S. 33:1444 was changed to require the Sheriff of East Baton Rouge Parish to furnish a $300,000.00 bond for the faithful performance of his duties as ex-officio tax collector.

We feel, as is contended by the Fireman’s Fund that the quoted statutes clearly disclose that the Louisiana Legislature distinguished the two constitutionally required bonds by using separate statutes and providing for separate and distinct monetary amounts for each bond. Therefore, the Sheriff is now constitutionally required to furnish two separate and distinct bonds, namely a $6,000.00 bond for his capacity as Sheriff and a $20,000.00 (now $300,000.00) bond for his capacity as ex-officio tax collector. As the bonds were issued to comply with the requirements of the Louisiana Constitution and the statutes, they are statutory bonds. Patent Scaffolding Company v. Ross Corporation, La.App., 172 So.2d 364. Therefore, these bonds must be interpreted in accordance with the statutory and jprisprudential rules established for the interpretation of statutory bonds.

Although the language of the $20,000.00 Fireman’s Fund bond appearing under the “condition of this obligation” states that the bond is written for “J. A1 Amiss as sheriff of East Baton Rouge .”, any other determination but that this $20,000.00 bond was furnished for the Sheriff in his capacity as ex-officio tax collector would be in direct conflict with the provisions of Article VII, Section 65 of the Louisiana Constitution of 1921, as well as the statutory requirements enacted pursuant to this constitutional provision. The Constitution requires separate bonds to each capacity of the Sheriff and, therefore, the language of the bond does not control the effect of the bond where the amount posted on the bond is in accordance with the statutory requirements. Petitioner contends that the language contained on the face of the bond in question raises a fact issue which should have precluded summary judgment in this matter. We feel that this position is not supportable because the well established jurisprudence concerning interpretation of statutory bonds, is clearly stated by the Louisiana Supreme Court in the case of Long Bell Lumber Company v. S. D. Carr Construction Company, 172 La. 182, 133 So. 438, is as follows:

“Although the bond in question here may admit of a broader construction, the liability of the parties thereto must be confined to the measure of liability contemplated by the statute under the provisions of which the bond was executed.”

In Miller v. Bonner, 163 La. 332, 111 So. 776, the Supreme Court said:

“. . . where a bond is given under the authority of a law, whatever is included in the bond and which is not required by the law must be read out of it, and whatever is not expressed and ought to have been incorporated must be read as if inserted into it.”

Both Louisiana and Federal Courts have taken the position that the statutory bond should be posted for the amounts required by law and not in excess of that amount. Continental Casualty Company v. Associated Pipe and Supply Company, (D. C.) 310 F.Supp. 1207; Cole v. Schexnadire, 163 La. 132, 111 So. 651, 653.

In Cole v. Schexnadire, the Louisiana Supreme Court stated as follows:

“Since the law demands no more, as to amount, under a contract such as the present one, than 50 percent of the contract . . . that amount would seem to be the extent of the liability of the surety . . .”

Therefore, there was no reason for the Sheriff to furnish the $20,000.00 bond for his capacity as Sheriff when only a $6,000.00 bond was required by law, and the beneficiary, the public, could be protected only to the extent of $6,000.00. We feel, therefore, that the bond in question was applicable only to the actions of the Sheriff in his capacity as ex-officio tax collector, and, therefore, there is no genuine issue of material fact concerning this bond. Each of the bonds are treated as separate and distinct. In Baker v. Towle's Administratrix, 11 La. 432, 439, the Court said:

“His sureties as sheriff are not responsible for his acts as collector. He gives a distinct bond.”

In the case of Police Jury v. Bullit, 8 Mart. (N.S.) 323, the sureties on a Sheriff’s official bond were held not responsible for his actions as tax collector, and the plaintiff’s suit therein was dismissed as to the Sheriff’s surety. Clearly the reverse would also be true in that the surety of the Sheriff as tax collector would not be responsible for his actions as Sheriff. He gives a distinct bond in a different amount.

It is contended in the brief of plaintiffs that statutory provisions establishing the separate bond for the separate capacities of the Sheriff are violative of the equal protection clause of the fourteenth amendment of the United States Constitution. These statutes do provide equal protection to each and every citizen and are therefore not unconstitutional. Each citizen is protected to the equal extent of $6,000.00 under the Sheriff’s bond covering his duties as Sheriff, and each citizen is equally protected to the extent of $300,000.00 for the actions of the Sheriff in his capacity as ex-officio tax collector. Obviously the State of Louisiana has a legitimate state interest in protecting its citizens’ taxes and the actions of the Sheriff in dealing with same.

For the reasons hereinabove assigned, the judgment of the lower court will be affirmed, all costs of this appeal are to be paid by petitioner.

Affirmed.


text:
    Lawrence SMITH and Irma Smith v. Edwin EDWARDS, Indiv., etc., et al.
    No. 10326.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1975.
    Norbert A. Simmons, New Orleans, for plaintiff s-appellants.
    Joseph F. Keogh, City-Parish Atty., for defendant-appellee Dumas.
    A. G. Seale and James H. Morgan, Baton Rouge, for defendant-appellee Fireman’s.
    Emile C. Rolfs, III, Baton Rouge, for defendant-appellee La. State Police.
    James J. Donelon, Baton Rouge, Executive Counsel, for defendant-appellee Edwin Edwards.
    Robert C. Funderburk, Baton Rouge, Special Counsel to Atty. Counsel Wm. H. Cooper, Baton Rouge, for defendant-appel-lee Sheriff’s Dept.
    Robt. L. Kleinpeter and Vance B. La-cour, Baton Rouge, for defendant-appellee Leon Netterville.
    Charles W. Franklin, Baton Rouge, for defendant-appellee Aetna Cas.
    Before LOTTINGER, COVINGTON and BAILES, JJ.
   LOTTINGER, Judge.

This suit was consolidated with another suit entitled “Elisabeth Foy Brown v. Edwin Edwards et al.,” 321 So.2d 394, No. 10,325 on the docket of this Court. This suit is for damages resulting from the death of the petitioner’s son. The lower court similarly dismissed this suit as it bears against Fireman’s Fund Insurance Company, and the petitioners took this appeal.

For the reasons this day handed down in the suit entitled “Elizabeth Foy Brown vs. Edwin Edwards, et al.,” No. 10,325 on the docket of this Court, judgment of the lower court is hereby affirmed, all costs of this appeal to be paid by petitioner.

Affirmed.


author: DOMENGEAUX, Judge. FRUGÉ, J.,

text:
    Charlie ROBERSON, Plaintiff-Appellee, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Appellant.
    No. 5037.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 1975.

      Bolen, Halcomb & Bolton, by Gregory S. Erwin, Alexandria, for defendant-appellant.
    G. F. Thomas, Jr., by Edwin Dunahoe, Natchitoches, for plaintiff-appellee.
    Before FRUGÉ, HOOD, CULPEP-PER, MILLER, and DOMENGEAUX, JJ.
   DOMENGEAUX, Judge.

This case has been reargued before a panel of five judges, pursuant to an order of the Supreme Court, in accordance with Article 5, Section 8(B) of the Constitution of 1974. 320 So.2d 201 (La.1975).

We have considered the reargument, the complete record, and the briefs filed and have concluded that our original majority opinion (see 316 So.2d 22) is correct. Having reached that conclusion, we reinstate our original majority opinion which: (1) reversed the judgment of the trial court insofar as it granted plaintiff penalties and attorney’s fees; (2) amended and recast said judgment as so to award the plaintiff permanent and total workmen’s compensation benefits but subject to a credit for compensation previously paid; and (3) affirmed said judgment in all other respects.

Costs of this appeal originally and on reargument are to be equally divided between appellee and appellant.

Affirmed in part, amended in part, reversed in part, and rendered.

FRUGÉ, J.,

adheres to my original views: I dissent in part and concur in part.


author: FRUGÉ, Judge. WATSON, Judge

text:
    TURNKEY CONSTRUCTORS, INC., Plaintiff-Appellee, v. DEWEY, CHEATUM & HOWE, INC., et al., Defendants-Appellants.
    No. 4996.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 14, 1975.
    Writ Refused Oct. 24, 1975.
    Calvin T. Guidry, Kenneth P. Mayers, Lafayette, James L. Fortson and Hal V. Lyons, Shreveport, Davidson, Meaux, One-bane & Donohoe, by John G. Torian, II, Lafayette, for defendants-appellants.
    Richard R. Kennedy, Lafayette, for plaintiff-appellee.
    Before FRUGÉ, HOOD, CULPEPPER, MILLER, and WATSON, JJ.
   FRUGÉ, Judge.

We have been ordered by the Supreme Court to rehear this case before a five judge panei in accordance with Article 5, Section 8(B) of the Constitution of 1974. 319 So.2d 440 (La.1975).

We have reviewed the complete record and briefs subsequent to the order and have concluded that our original majority opinion (see 315 So.2d 409) is correct. Having reached that conclusion, we reinstate our original judgment reversing the judgment of the trial court and remanding the case to the district court Rr trial on the merits. The costs of this appeal are assessed against plaintiff-appellee.

Reversed and remanded.

WATSON, J., dissents and will assign written reasons.

WATSON, Judge

(dissenting):

Entirely overlooked by the majority is the fact that this is a suit by a sub-contractor for material and labor supplied on a construction project and that it is not a suit sounding in contract. No contract between the parties is filed in the record, and, while plaintiff asserts in its petition that the materials and labor were supplied pursuant to “agreements”, this does not relegate plaintiff to suing in contract when the petition asserts that it is filed to obtain recognition and enforcement of plaintiff’s lien. The lien was properly filed and recorded in the public records of the Parish of Lafayette.

The suit was then filed under the private works act, LSA-R.S. 9:4801 et seq. The jurisprudence is clear that all the person supplying material or labor need prove to prevail is the delivery of the material to the job site and the performance of labor on the work.

As to materials, the law is clearly stated by the Louisiana Supreme Court in Bernard Lumber Company v. Sayre, 230 La. 17, 87 So.2d 713 (1956), as follows:

“It is incumbent upon the plaintiff to prove that the materials were delivered to the site of the construction and upon such proof the burden then rests on the defendants to show that the materials so delivered were not used in the construction of their house.” 87 So.2d 714

A case squarely in point is Apex Sales Co. v. United States Fidelity & Guar. Co., 261 So.2d 247 (La.App. 4 Cir. 1972). Apex demonstrates the correct approach on appellate consideration of summary judgment in a lien case. A comparison of Apex and the instant case indicates the necessity of close analysis of the problems presented in summary judgment cases. While the rule is that doubts must be resolved against summary judgment, nevertheless, the record must be scrutinized to determine the true issues. The question to be resolved is whether there are any material issues, not simply whether defendants have denied plaintiff’s claim.

The issues of material fact which defendants in the instant case attempt to raise by affidavits filed in response to the motion for summary judgment are not material or relevant to the issues raised by plaintiff’s suit. Defendants must do more than merely enter a general denial of plaintiff’s allegation and then claim breach of contract by affidavits. See LSA-C.C.P. art. 967, which provides that a party

“ . . . may not rest on the mere allegations or denials of his pleading

To claim that plaintiff failed to clean up the job site is no defense to a suit on a lien for material and labor. The same is true of an accusation of defective workmanship.

Therefore, I think the trial court was correct in granting summary judgment as to the items covered by plaintiff’s lien.

I agree with the contention of counsel for defendants that there is no authority for the allowance by the trial court of attorney fees. LSA-R.S. 9:3902 does not appear to be applicable here. However, this is a matter which could be amended by this court on appeal.

For these reasons, I respectfully dissent.


author: HOOD, Judge.

text:
    Denver J. BABINEAUX, Plaintiff-Appellant, v. Walter LAVERGNE et al., Defendants-Appellees.
    No. 5135.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 1975.

      Landry, Poteet & Landry by John G. Poteet, Jr., Lafayette, for plaintiff-appellant.
    Shelton & Cline by Larry T. Richard, Rayne, for Wingate.
    Voorhies & Labbe by Edwin G. Preis, Jr., Lafayette, for Aetna.
    Davidson, Meaux, Onebane & Donohoe, by Dennis L. Doise, Lafayette, for Dixie Auto.
    Walter J. Lavergne, Jr., in pro. per.
    Before HOOD, CULPEPPER and MILLER, JJ.
   HOOD, Judge.

Denver J. Babineaux instituted this suit to recover damages for injuries sustained by him when his automobile collided with a vehicle owned and being driven by Walter Lavergne. The defendants are Lavergne, Harold J. Wingate, Aetna Life and Casualty Insurance Company and Dixie Auto Insurance Company. The trial court rendered judgment in favor of plaintiff and against Lavergne, and he rejected plaintiff’s demands against all other defendants. Plaintiff appealed.

The issues presented are (1) whether Lavergne, an employee of Wingate, was acting in the course of his employment at the time of the accident, and (2) whether the Lavergne automobile was a “Temporary Substitute Automobile” for a disabled truck owned by Wingate, within the meaning of automobile liability policies issued to Wingate by Aetna and Dixie.

The accident occurred at 4:05 P.M. on Saturday, November 17, 1973, in the City of Rayne. While Lavergne was driving his 1969 Plymouth automobile west on Jefferson Davis Avenue, he attempted to make a left turn at the intersection of that avenue with Malvern Street, and as he did so his car collided with an automobile being driven east on Jefferson Davis Avenue by plaintiff Babineaux. Plaintiff sustained personal injuries as a result of that collision. The sole proximate cause of the accident was Lavergne’s negligence in attempting to make a left turn in front of the oncoming Babineaux vehicle.

At the time the accident occurred, Win-gate was engaged in the house moving business, and Lavergne was in his regular employment. Lavergne had worked for Wingate as a foreman for several years. He worked regularly five days per week, and he was off work on Saturdays and Sundays.

The collision occurred on a Saturday afternoon. Wingate was not engaged in any house moving activities and Lavergne was not working that day. Before the accident occurred, Wingate delivered a check to an employee in Branch, Louisiana, and he planned to deliver a pay check to another employee, Adless Domingue, in Rayne that afternoon. He was using his 1972 Chevrolet pickup truck to make those deliveries, but the truck developed some motor trouble before the second check was delivered, and Wingate stopped at a gas station in Rayne to get it fixed. While he was in that station waiting for the repairs on his truck to be completed, Lavergne happened to drive into the same station in his own 1969 Plymouth automobile to get some gasoline. The meeting of Wingate and Lavergne at the service station was purely accidental.

Since the repairs to Wingate’s truck would take some time, Wingate asked Lav-ergne if he would deliver Adless Do-mingue’s pay check to him, and Lavergne agreed to do so. Wingate testified that Lavergne was not working that day, that he asked Lavergne to deliver the check strictly as a favor, that he did not order him to make the delivery, that he did not compensate him for it, and that he did not consider the delivery of that check to be a part of Lavergne’s job.

Lavergne confirmed the testimony of Wingate. He testified that he was not working on the day of the accident, that he and Wingate were friends of long standing and that he consented to deliver the check to Domingue strictly as a favor to his friend. He stated that he was not ordered to deliver the check, that he was not compelled in any way to do so, that he received no compensation for it, that Wingate gave him no instructions as to how and when the delivery was to be made, and that he did not consider the delivery of the check to be a part of his job.

Lavergne also testified that he planned to visit his sick uncle before he delivered the check to Domingue. After receiving the check, he put it in his shirt pocket and then drove west on Jefferson Davis Avenue to the intersection of that thoroughfare with Malvern Street where the accident occurred. His uncle lived on Malvern Street, a short distance south of that intersection. Lavergne testified that he was turning left at that crossing in order to go to his uncle’s home. Just prior to reaching that intersection he picked up his cousin, St. Amant, since his cousin also planned to visit the uncle.

The evidence shows that Domingue lived in the extreme south part of Rayne. The intersection where this accident occurred is in the northwest part of the city. The route along which Lavergne was traveling at the time of the collision led directly toward the home of his ill uncle, but it did not lead to Domingue’s home. In order for Lavergne to go to Domingue’s home from the scene of the accident it would have been necessary for him to turn around, or turn back, and travel east to get back to a street which he had already crossed and which would enable him to reach Domingue’s home.

Plaintiff contends that Wingate gave Lavergne two checks to be delivered that afternoon, one of which was made payable to Domingue and the other to a second alleged employee, George Guidry, who they contend lived on Jefferson Davis Avenue about one-half block west of the point where the accident occurred. They argue that Lavergne was delivering the Guidry check at the time of the accident, and that he thus was performing a duty for Win-gate. The evidence shows that Guidry was not working for Wingate at that time, that he had not worked for him for more than a month, that he in fact was living in Texas, and that Wingate did not ask Lavergne to deliver a check to Guidry. It also shows that Lavergne could not have been en route to Guidry’s former home in Rayne, since he was negotiating a left turn at Malvern Street before he reached the place where plaintiff contends Guidry resided.

The trial judge found that Lavergne was not working for Wingate on the day the accident occurred, that the meeting of those two parties at the service station was unplanned, that Lavergne was under no obligation to deliver the check to Domingue, that he was not compensated for running that errand, that delivering checks was not one of Lavergne’s regular duties, and that he undertook the errand as a personal favor to his friend Wingate, and not because of the employment relationship. He concluded that Lavergne was not acting within the course of his employment at the time of the accident, and that Wingate was not liable for the damages caused by Lav-ergne’s negligence.

The liability of a master for the acts of his servant is provided in LSA-C.C. arts. 176, 2317 and 2320. Article 2320 provides in part that:

“Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.”

Whether an employee was acting within the course and scope of his employment must be decided on the facts of each case. Sweet v. Trahan, 159 So.2d 782 (La.App. 3 Cir. 1964). The test to be applied is whether the employee is performing some function for his employer and for which he was employed. Laird v. Travelers Indemnity Company, 236 So.2d 561 (La.App. 4 Cir. 1970); Jefferson v. Rose Oil Company of Dixie, 232 So.2d 895 (La.App.2 Cir. 1970).

We find no error in the holding of the trial court that Lavergne was not acting within the course of his employment at the time the accident occurred, and that Wingate thus is not liable for the damages which plaintiff sustained as a result of Lavergne’s negligence.

Plaintiff contends, however, that although Wingate is not liable for the negligent acts of Lavergne, defendants Aetna and Dixie are liable to plaintiff on the ground that the 1969 Plymouth automobile being used by Lavergne at the time of the accident was a “temporary substitute automobile” for Wingate’s disabled truck, and that the Lavergne automobile thus was covered under the liability provisions of the policies issued by those insurers to Wingate.

At the time the accident occurred, there was in effect a family automobile insurance policy which had been issued by Aet-na to Wingate. The policy specifically described and covered Wingate’s 1972 Chevrolet pickup truck, that vehicle being listed as an “owned automobile.” The policy also provided that the term “owned automobile” includes a “temporary substitute automobile,” which is described as follows:

“ ‘temporary substitute automobile’ means any automobile or trailer, not owned by the named Insured, while temporarily used with the permission of the owner as a substitute for the owned automobile or trailer when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction

The trial court, relying on Tanner v. Pennsylvania Threshermen and Farmers’ Mutual Casualty Insurance Company, 226 F.2d 498 (6 Cir. 1955), concluded that the Plymouth automobile being used by La-vergne was not a “temporary substitute automobile” for Wingate’s truck, within the meaning of the provisions of the Aetna policy, and that the policy thus did not provide coverage of the damages sustained by plaintiff in the above accident.

The issues presented in Tanner were similar to those which are presented here. The court held there that in order for a non-owned vehicle to be covered as a “substitute car,” the non-owned .automobile must be in the possession or under the control of the insured to the same extent and effect as the disabled car of the insured would have been except for its disablement. It found that the alleged substitute automobile was being driven by its owner, not by the named insured, at the time of the accident, that it was not in possession or under the control of the insured, and that it thus was not a temporary substitute automobile within the meaning of the policy.

We agree with the trial court in the instant suit that the Plymouth automobile being used by Lavergne at the time the accident occurred was not a “temporary substitute automobile,” as that term is used in the Aetna policy. Although we find Tanner, supra, to be persuasive, we base our conclusion on the fact that Lavergne agreed to deliver the check strictly as a personal favor for, and not as agent or employee of, Wingate. Lavergne’s Plymouth automobile was not being used by Wingate, or his agent, and it was not being used by an “insured” named in the Aetna policy. We hold that under the circumstances presented here, it was not a temporary substitute for the owned automobile described in the policy, that is, Wingate’s 1972 Chevrolet pickup truck.

We thus affirm the conclusion reached by the trial judge that Aetna is not liable to plaintiff under the policy which Aetna had issued to Wingate.

There also was in effect at the time of the accident an automobile liability policy which had been issued to Wingate by defendant Dixie. That policy covered several vehicles owned by the named insured, Wingate, but it did not cover the 1972 Chevrolet pickup truck which was being repaired at that time. The Dixie policy provided substantially the same coverage for a “temporary substitute automobile,” as did the Aetna contract. Since the Dixie policy did not list the disabled pickup truck as a “Described Automobile” in that policy, there clearly is no merit to plaintiff’s argument that Lavergne’s automobile was a temporary substitute for any of the vehicles described in that policy, or that coverage was provided by Dixie in this instance.

As we understand plaintiff’s arguments, he did not contend that coverage was provided by any other provision of the Dixie policy.

Our ultimate conclusion is that Wingate is not liable for the damages sustained by plaintiff, and that plaintiff has no recovery against Aetna or Dixie under the automobile liability policies issued by those insurers. We thus find no error in the judgment rendered by the trial court.

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

Affirmed.