text:
    Herschel C. ADCOCK v. SURETY RESEARCH AND INVESTMENT CORPORATION et al.
    No. 10802.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.
    Writ Granted Nov. 16, 1976.

      E. Wade Shows, Baton Rouge, for appellant.
    Elliott W. Atkinson, Jr., and Roy Maughan, Baton Rouge, for appellees.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   EDWARDS, Judge.

Plaintiff-appellant, Herschel C. Adcock appeals from the final judgment of the trial court signed on December 2, 1975 in favor of defendants, Surety Research & Investment Corp., Charles R. Johnson, Don. C. Gunnell, Robert Burton and James R. Halford, upholding the defendants’ exceptions of lack of jurisdiction in person-am, and dismissing plaintiff’s suit.

Our review clearly convinces us that the able trial judge correctly analyzed the factual evidence and has correctly applied the law. We affirm, and we adopt his well written reasons for judgment as the basis for this opinion.

Judge McGehee wrote:

“This is a suit by plaintiff for legal services in connection with an agreement of April 4, 1973 (see exhibit P-1), which was a contract between Horace B. Wom-ack, a resident of Louisiana, and Surety Research and Investment Corporation, a Nevada corporation with its principal office in California. Also parties to the agreement were defendants, Don C. Gun-nell, Robert Burton, James R. Halford and Charles E. Johnson, all residents of California.

“The parties agreed to form a Nevada corporation to develop a condominium project in that state.

“Plaintiff, alleging that the project is under construction and that fees provided in the contract are due him, filed suit against Womack, Surety Research and Investment, and the four California residents, asserting jurisdiction over the Nevada corporation and the California residents under R.S. 13 ¡3201, et seq. (the long-arm statute).

“This matter is before the Court on a declinatory exception based on (1) insufficiency of service of process, and (2) lack of jurisdiction in personam filed by the defendants, Gunnell, Burton and Halford, and on an exception of lack of jurisdiction in personam filed by the defendants, Surety Research and Johnson.

“The Court has considered the documentary evidence offered together with the testimony of Mr. Nicholas J. Fitch, a Las Vegas real estate broker, and both the live testimony and deposition of the plaintiff, Mr. Adcock.

“The facts found are as follows:

“During the latter part of March, 1973, plaintiff accompanied his client, Defendant Womack, to Las Vegas for a discussion of the business venture. Surety Research had deposited certain sums of money to obtain land and financial commitments. The California defendants who were stockholders of Surety Research were to individually guarantee the financing and Womack was to supervise construction. Shortly after arriving in Las Vegas, the parties learned that the right to purchase the land to be involved had been lost. After some further negotiations a decision was reached that Mr. Fitch would attempt to locate an alternate site so that the project and the rather substantial sums of money advanced by Surety Research could be salvaged.

“An alternate site was selected, and on April 3, 1973, Mr. Johnson came to Baton Rouge to meet with plaintiff and Mr. Womack. On April 4, 1973, the agreement (P-1) was drafted in Mr. Womack’s office in Baker, Louisiana, and executed by Womack and Johnson, individually and as president of Surety Research. The document was then taken to Los Angeles and executed the following day by Defendants Gunnel, Burton and Halford.

“A close examination of plaintiff’s testimony, and particularly pages 12 and 13 of his deposition, reveals that the role of plaintiff in the project was not altered at the Baton Rouge meeting. His position was the same as that agreed upon in Las Vegas earlier. The parties had even commenced the preparation of the document in Las Vegas which was interrupted by the decision to check on the status of the property. Defendants did not either personally or through their agent come to Baton Rouge and seek plaintiff out in order to employ him. The drafting and clerical tasks involved in reducing the agreement to writing were accomplished in Baton Rouge after having been interrupted in Las Vegas.

“The pertinent provision of Louisiana law is found in R.S. 13:3201 (a) which provides :

“A Court may exercise personal jurisdiction over a nonresident who acts directly or by an agent, as to a course of action arising from the nonresident.
“(a) transacting any business in this State.”

“In attempting to determine the meaning of the phrase “transacting any business in this state”, the Court notes that Comment (a) states that this Long-Arm Statute was “adopted ... to permit the courts of this state to tap the full potential of jurisdiction in personam over nonresidents permitted by International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1157 (1945); and McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957)”.

Comment (d) of R.S. 13:3201 sets forth the proposed meaning of “transacting business” :

“It is intended to mean a single transaction of either interstate or intrastate business, and to be as broad as the phrase ‘engaged in a business activity’.”

“The principal consideration herein is whether or not extending the jurisdiction in personam of this Court to these defendants would be a denial of due process. Guidelines involved in this determination are set forth in the two United States Supreme Court Cases cited above, International Shoe and McGee. The Court has considered these cases and, in addition thereto, the case of Hanson v. Denckla, 357 U.S. 325, 78 S.Ct. 1228, 2 L.Ed.2d 1283, wherein the Court citing the International Shoe case stated:

“The unilateral activity of those who claim some relationship with a non-resident defendant cannot satisfy the requirement contact with the forum State. The application of that rule will vary with the quality and nature of the defendant’s activity but it is essential in each case that there be some act by which the defendant purposefully avails itself o-f the privilege of conducting activities within the forum State, thus invoking the benefits and protection of its law. International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 159, 90 L.Ed. 95.”

“We have here basically a case involving a business transaction based upon a contract for services confected in Nevada and performed in Baton Rouge, Las Vegas, Carson City, Memphis and Cedar Rapids, Iowa.

“The facts warrant a conclusion that these defendants did not have sufficient contacts in Louisiana to subject them to the jurisdiction of this Court. Although plaintiff relies heavily on the Louisiana Supreme Court case of Drilling Engineering, Inc. v. Independent Indoneasian American Petroleum Company, 283 So.2d 687, a close examination of the facts in that case distinguish it drastically from the facts here. There the defendant came to Louisiana and sought out the plaintiff initially and confected the employment agreement in Lafayette. This Court must conclude that the defendants did not transact business in this state within the meaning of R.S. 13¡3201(a). To subject the defendants to the jurisdiction of the Louisiana court would deny them due process of law and offend “the traditional notions of fair play and substantial justice.” Therefore, the exceptions to jurisdiction filed on behalf of the defendants, Charles Johnson, Surety Research and Investment Corporation, Don C. Gunnell, Robert Burton, and James R. Halford, will be sustained and, accordingly, the petition of plaintiff will be dismissed at plaintiffs cost as to these defendants only.

“This decision renders unnecessary a consideration of the exception of insufficiency of service of process filed on behalf of the defendants, Gunnell, Burton and Halford.”

The decision of the trial court is affirmed. Plaintiff appellant is to pay all costs.

AFFIRMED.


source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    Achille DENOUX v. The HARTFORD ACCIDENT AND INDEMNITY COMPANY.
    No. 10781.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.
    Writ Refused Nov. 16, 1976.

      Gerald L. Walter, Jr., Baton Rouge, for appellant.
    Donald L. Peltier, Thibodaux, for appel-lee.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   EDWARDS, Judge.

Plaintiff-appellee sued for workmen’s compensation benefits alleging total arid permanent disability. The trial court rendered judgment in favor of plaintiff-appel-lee, awarding benefits of $49.00 per week, not to exceed 500 weeks, and medical expenses and costs. This appeal followed.

Appellant primarily contends that the lower court erred in holding that appellee's disability is total and permanent within the intendment of the Workmen’s Compensation Act. The issues presented are (1) whether appellee is a skilled worker; (2) if so, whether he is able to continue in his occupation following the 'injury; (3) whether he is limited to recovery for specific loss under RS 23:1221(4) rather than compensation for permanent and total disability.

The facts as found by the trial court show:

Appellee was injured in an automobile accident on February 16, 1972 while in the course and scope of his employment. He sustained a cerebral contusion, cuts and bruises on his head and face, and temporary amnesia. He was hospitalized for eleven days and released.

Dr. Thomas B. Flynn, neurosurgeon, treated appellee on the day of the accident and saw him again on March 3 and March 24, 1972. Dr. Flynn stated that appellee complained on March 3 of a “ringing in his right ear” and on March 24 of some blurring of vision. At that time he told appellee he might return to work on a part-time basis.

Appellee returned to work but continued to have difficulties with his hearing and vision. On recommendation of his employer, he consulted Dr. Homer D. Kirgis, neurosurgeon, on May 24, 1972. Dr. Kirgis concluded appellee had sustained a cerebral contusion which explained his hearing and vision problems. He last saw appellee on February 3, 1973, at which time appellee was found improved yet neurologically deficient in three respects: some unsteadiness in balance, ear noises and diminished hearing, and a slight nystagnus (an involuntary jerking movement of the eyes). These, in Dr. Kirgis’ opinion, represented permanent deficits.

Dr. Robert H. Cox, specialist in otolar-yngology, was recommended to appellee by Dr. Kirgis for his hearing problem. Dr. Cox’s examination and tests revealed ap-pellee had virtually no hearing in the right ear, normal in the left. He stated appellee complained of loud tinnitus (ringing) in his right ear and dizziness. To reduce the noise, Dr. Cox suggested a destructive lab-zzyrinthectomy, in which the inner ear is completely destroyed to eliminate tinnitus and dizziness. The operation was performed with some success; the tinnitus was reduced to appellee’s relief.

The trial court summarized the uncontra-dicted medical evidence as follows: (1) ap-pellee has total loss of hearing in right ear; (2) his remaining hearing in his left ear is adversely affected by the reduced 'yet continuing noise in his right ear; (3) he has permanent neurologic deficits in the form of impaired vision (nystagnus) and slight unsteadiness.

Before the accident, appellee was employed as a manager of a large food store, where he had a long history of success in this occupation.. There is no question but that such a managerial position constitutes skilled, rather than unskilled or common, labor within the intendment of the Act.

We next consider the nature of appellee’s disability. A worker is permanently and totally disabled when his injuries incapacitate him from performing work of the same or similar nature which he is accustomed to performing. Knispel v. Gulf States Utilities Co., 174 La. 401, 141 So. 9; Castile v. H. E. Wiese, Inc., 231 So.2d 406 (La.App. 1st Cir. 1970). In this regard, i. e., the determination of disability, appellant contends the trial' court erred in considering lay testimony of ap-pellee and of his former employer concerning his postinjury ability to perform satisfactorily his duties as store manager. We agree with appellant that, as a general rule, lay testimony will not be considered in this context where there is no material conflict in the medical evidence. See Lee v. Royal Indemnity Co., 149 So.2d 606 (La.App. 1st Cir. 1963). However, where the medical evidence is inconclusive, lay testimony maybe considered. Jackson v. Phoenix Insurance Co., 252 So.2d 511 (La.App. 4th Cir. 1971).

The lay testimony was properly considered by the trial court below. While there is no disagreement among the three doctors that appellee in fact suffers from permanent disabilities, there is neither any common conclusion that these disabilities will not hinder appellee from returning to his former calling. Dr. Flynn testified (hypothetically, since all of appellee’s complaints had not been manifest at the time of his last examination) that, if the tinnitus, unsteadiness, headaches and blurred vision were present to a significant degree, the appellee could not have returned and operated the grocery store. Later examinations by Drs. Kirgis and Cox found these deficiencies apparent. Dr. Kirgis stated that he did not think the unsteadiness or nystagnus would prevent the appellee from performing his duties, but he did not opine relative to the hearing loss. In regard to the diminished hearing, Dr. Cox felt that compensation for and adjustment to the disability depended on the individual; he could not say whether appellee could successfully renew his former occupation, but thought that it would do no harm to try.

Appellee testified that heTiad problems communicating with people following his re-employment and that his hearing problem often left him confused in attempting to conduct the business. Mr. Paul LeBlanc had employed appellee but discharged him after a few months. He testified that ap-pellee had problems communicating with both fellow employees and customers. Le Blanc stated that appellee could no longer handle the store successfully.

We are convinced that appellee, as a result of his injuries, is not capable of performing the duties of food store manager, his former occupation. Where a worker suffers such total disability, he is entitled to compensation on that basis rather than being limited to recovery under RS 23:1221 (4) (p) even though the disability arose from one of the specific losses in that schedule. Barr v. Davis Brothers Lumber Co., 185 La. 1013, 165 So. 185 (1935); Jackson v. Phoenix Insurance Co., supra; Malone’s Treatise on Louisiana Workman’s Compensation Law and Practice, pp. 352-53, Sec. 279.

The decision of the trial court is therefore affirmed at appellant’s cost.

AFFIRMED.


text:
    Spencer FOREMAN v. Karl M. KENT et al. Ernest Leon SHIELDS et al. v. Karl M. KENT et al.
    Nos. 10794, 10795.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearings Denied Aug. 27, 1976.
    Writs Refused Nov. 19, 1976.

      Charles R. Maloney, New Orleans, for Spencer Foreman in No. 10794.'
    Ronald F. Plaisance, New Orleans, for Ernest Shields in No. 10795.
    René A. Curry, Jr., New Orleans, for appellee.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   EDWARDS, Judge.

These consolidated cases arose out of a head-on collision. The accident occurred about six o’clock p.m. on April 21, 1972. The weather conditions were clear and dry, and the location was a relatively straight stretch of U.S. Highway 51 in Tangipahoa Parish. The vehicles involved were a 1963 Chevrolet driven by Spencer Foreman, proceeding in a northerly direction, and a 1971 Chevrolet driven by Karl Kent, proceeding in a southerly direction. The collision took place in the northbound lane, Foreman’s proper lane of travel. As a result of the collision, both vehicles were damaged heavily. Both drivers were injured, Foreman more seriously. Doris Shields, guest passenger in the Foreman vehicle, died as a result of injuries sustained in the accident. Kent was travel-ling alone; in addition to Doris Shields and Foreman, Jerome Shields and Huey P. Galmon were riding in the Foreman vehicle.

Spencer Foreman filed suit against Karl Kent, his father Charles Kent, and their insurer, American Indemnity Company of Galveston, Texas. The nine surviving children of Doris Shields brought suit against the same defendants for wrongful death, for their mother’s surviving action for pain and suffering, and for funeral expenses. The trial court rendered judgment dismissing all plaintiffs’ claims. This appeal followed.

The primary issue presented by this appeal is whether the trial judge erred in finding defendant Karl Kent free of negligence.

Appellants correctly contend that the burden is on the defendant to exculpate himself from fault in this type of situation:

“A motorist who is involved in a collision in the wrong lane must absolve himself from negligence by a clear preponderance of the evidence; that is, inasmuch as he was in the wrong lane of traffic at the time of the accident, he is presumed to have been negligent and bears the burden of establishing that he was without fault or that there were circumstances which justified his conduct.” Springer v. Government Employees Insurance Company, Inc., 311 So.2d 36, 38 (La.App. 4th Cir. 1975). See also Rizley v. Cutrer, 232 La. 655, 95 So.2d 139 (1957) and Wishom v. Ford Motor Company, 256 So.2d 298 (La.App. 1st Cir. 1971).

We now turn to a review of the evidence, which discloses conflicting versions of the occurrence.

Spencer Foreman testified that he was proceeding north at about 55 to 60 m. p. h. intending to turn left onto a road next to the Hines Lumber Company. He first saw the Kent vehicle as it topped a rise, or slight hump in the highway, next to the above-mentioned road. At that point Foreman estimated he was some 250-300 yards from the Kent vehicle. Foreman described the progress of the Kent vehicle from this point as “all over the road, kinda zig-zag.” He stated that immediately before impact the Kent vehicle was headed “over in my lane kinda.” At all times after he first saw the Kent vehicle Foreman stayed in his own lane of travel. Further, he “didn’t take his eyes off him” and continued on, watching, until the collision. When Doris Shields yelled “look out” just before impact, Foreman said he didn’t have time to do anything to avert the collision. He said he didn’t remember whether he had hit his brakes but was quite sure he didn’t turn the steering wheel before impact.

Jerome Shields, one of the plaintiffs and a rear seat passenger in the Foreman vehicle, gave the only other testimony corroborative of Foreman’s version of the accident. He stated that he observed the Kent vehicle coming down the center line of the highway at them, fishtailing. According to him, Foreman never swerved the car nor turned his head during this time. However, although Shields admitted that the .first time he saw the Kent vehicle was when Doris Shields screamed, he still maintained that the cars were far enough apart at that point, some 150 feet, for him to watch the Kent vehicle as it fishtailed towards them.

The day after the accident Jerome was interviewed by Harry Zylicz, an insurance adjuster for defendant insurer. Harry Zylicz testified that he took a statement from Shields which read as follows:

“Well, the statement speaks for itself, ‘Jerome Shields, colored male, fifteen years, Box 144, Fluker, Louisiana. On 4-21-72 at about 6:00 P.M., it was still daylight, roadway was dry. I was in the rear left side of a ’63 Chevrolet driven by my father, Spencer Foreman, age 72. My mother, Dorothy Shields, was in the front seat. Huey Galmon was in the back seat with me. We were travelling north on U.S. 51 about forty miles per hour, headed toward Fluker. The Kent car was going in the opposite direction, over sixty miles per hour. The collision occurred just about in front of Conway’s Lumber Yard. My father for some reason left the right side of the highway and allowed his car to cross the centerline and get onto the wrong side of the road. He wasn’t on the wrong side of the road long for my mother screamed and as she did he immediately abruptly swerved hard to his right and did get back onto his side of the road and just the moment he got onto his side of the road the accident occurred. When my mother screamed, I looked up and my dad swung hard right, I saw Kent car then for the first time. It then was on it’s proper side of the road, not far from us, and as my dad swerved right to get to his side of the road it seemed that Kent swerved left and the cars collided on my dad’s side of the road. I hurt my right leg, my right shoulder. I went to Charity Hospital. Am O.K. now. I have been read this statement and it is true and correct.’ ”

• Jerome explained that the difference in his trial version of the accident and that given to Zylicz was that the latter version was Huey P. Galmon’s, the other passenger in the Foreman vehicle. Jerome gave no reason why he related Galmon’s version, rather than his own recollection of the accident, to the adjuster. Further, Jerome admitted that he had not seen Galmon following the accident until over a week later, but he maintained that he had nevertheless heard Galmon’s version that next day from a lady to whom Galmon had spoken.

Three other witnesses — Johnny Foreman, Rebecca Shields, and Calvin Shields — testified that they had arrived at the scene of the accident shortly after the collision occurred and had seen a liquor bottle on the front seat of the Kent vehicle. Rebecca Shields testified further that a police officer poured the whiskey out and threw the bottle across the nearby railroad tracks.

Karl Kent gave the following version of the accident. He first saw the Foreman vehicle as he topped the rise near the Hines Lumber Company. He was traveling about 50-55 m.p.h. When he saw the Foreman vehicle, it was about 250-300 yards away. At that time Foreman began drifting over into Kent’s southbound lane. Kent stated that he began veering slightly to his left to give Foreman room. Foreman continued on in the southbound lane until he was almost on Kent, whereupon Kent braked and cut his vehicle hard to his left. Immediately thereafter Foreman cut to his right and they collided.

Huey Adams, the State Police Officer who investigated the accident, testified that he questioned the passengers (Galmon and Jerome Shields) of the Foreman vehicle.

Q. I see. And what did they tell you and take one at a time if their versions were different or tell me what they told you about the accident, please ?
A. Well, I couldn’t recall exactly which one said what at this particular time but I do recall them telling me what happened and they told me that the driver of the 1963 Chevrolet, which was Spencer Foreman, had turned his head back to talk to one of them in the back, to Galmon, and the next . . . and when he did the vehicle went over into the southbound traffic lane and that the woman screamed when the . . . that’s Doris Shields screamed and the driver cut the . . . whipped the vehicle back over into the northbound traffic lane and that’s where the accident . . . that’s when the collision happened.
Q. Officer, did you . . . .when you said they told you, did Jerome Shields tell you a version of the accident to the effect you just testified or words to that effect P
A. I got this from both of them.

He also testified that the Kent vehicle left a set of skid marks about 3CY long starting in the southbound lane and crossing over into the east edge of the northbound lane where the collision occurred. The Foreman vehicle left no skid marks. Finally, he testified that there was no indication when he questioned Karl Kent that evening that he had been drinking, nor did he remove a bottle from Kent’s car.

Huey Galmon testified that he was watching a boy on a bicycle when he heard Doris Shields say “watch out, Buddy.” Galmon looked up and saw that Foreman was in the southbound lane. Foreman then pulled his wheel back to the right, and the collision occurred. Galmon’s testimony at trial was substantially unchanged from the statement he gave the insurance adjusters.

The photographs introduced at trial show heavy damage to the front of Foreman’s vehicle and the right front and right front side of Kent’s vehicle. Appellants argue that the depicted damage refutes the appellees’ version of the accident. We note on this point the real difficulties involved, even with the aid of expert testimony (not present herein), in attempting to reconstruct positions and headings of vehicles prior to a collision from analyses of photographically depicted resultant damage. See Holder v. Travelers Ins. Co., 159 So.2d 292 (La.App. 2d Cir. 1964). This Court cannot conclude that the photographs necessarily either refute or prove Kent’s version.

The better evidence is the testimony of the participants. After a careful review of the record, we find that there is ample justification for the trial court to have concluded that Kent’s version more probably reflected the true occurrence than did Foreman’s version. The Kent version was corroborated by Galmon and by the physical evidence of skid marks left by that vehicle. Foreman’s version is corroborated only by Jerome Shields testimony, which testimony was strained and incredible at times. Further, Foreman’s own testimony that he observed the erratic approach of the Kent vehicle for some 300 yards without taking any defensive action at all raises more questions than it answers.

But most importantly, and especially where, as here, the decision rests primarily on the determination of credibility, the trial judge is peculiarly better able than we to separate the facts from the fluff. It is a well recognized principle of appellate review that we apply. See Canter v. Koehring Co., 283 So.2d 716 (La.1973). We cannot say that the trial judge erred in accepting Kent’s version and holding that defendants had carried their burden of exonerating themselves from the initial adverse presumption by showing circumstances justifying Kent’s being in the wrong lane of travel at the time of the collision.

The decision of the trial court is affirmed at appellants’ costs.

AFFIRMED.

      . Although the trial judge did not render written reasons, we assume that the dismissals of plaintiffs’ suits were based on such a finding, since, although any contributory negligence of Foreman would have barred his recovery, such negligence would not have barred recovery by the guest passengers or survivors against Kent.


author: CHIASSON, Judge.

text:
    Judy Hanson ROME v. LIFE AND CASUALTY INSURANCE COMPANY OF TENNESSEE.
    No. 10813.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.
    Writ Refused Nov. 16, 1976.

      George R. Covert, Baton Rouge, for appellant.
    Maurice J. Wilson, Breazeale, Sachse & Wilson, Baton Rouge, for appellee; Donald K. Switzer and Barrett Sutton, Nashville, Tenn., of counsel.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   CHIASSON, Judge.

Plaintiff-appellant, Judy Hanson, Rome, brought suit, as beneficiary, against defendant-appellee, Life and Casualty Insurance Company of Tennessee, under a policy of insurance which provided coverage in the amount of $27,860.00 in the event of the accidental death of Lovincy A. Rome, Jr., appellant’s husband. The policy, issued on April 25, 1972, contained a provision which limited appellee’s liability, in the case of suicide within two years of date of issuance, to the amount of the premiums paid.

Mr. Rome, the insured, died of a gunshot wound on October 8, 1973. Appellee, in the belief that the insured’s death was suicide, paid the appellant $257.60, the amount of the premiums paid. Appellant then brought this suit to recover the amount due for accidental death under the terms of the policy.

After a trial on the merits the Trial Court held the insured’s death to be suicide.

It is well settled that when suicide is offered as a defense to a suit upon an insurance policy the burden of proof rests heavily upon the insurer to establish the occurrence of the suicide to the exclusion of every other reasonable hypothesis. Webster v. New York Life Ins. Co., 160 La. 854, 107 So. 599 (1926); Newdigate v. Acacia Mut. Life Ass’n, 180 La. 979, 158 So. 358 (1934); Brooks v. Louisiana and Southern Life Ins. Co., La.App., 246 So.2d 270 (1st Cir., 1971).

Where it is evident from the testimony that the insured killed himself, whether accidentally or intentionally, the case presents two questions. First, do the physical facts surrounding the death of the insured exclude with reasonable certainty any possibility of accident? Second, does the evidence show that the insured had a motive for taking his own life sufficient to overcome the presumption against suicide and make it reasonably certain that the death was not the result of an accident, but of the deliberate intention to take one’s own life? Webster v. New York Life Ins. Co., supra.

The events which immediately preceded the death of the insured were that Mr. Rome, who appeared extremely intoxicated, entered the appellant’s home about 5:30 A. M., went immediately to the bedroom and took a pistol appellant kept under her pillow. He then left the house, entered his car and drove off. As he was leaving the deceased shouted, “take care of the baby”. Mr. Rome drove about 210 feet, almost to an intersection, and stopped adjacent to a wooded area. Two shots were heard.

Shortly thereafter, the appellant asked a neighbor, who was on his way to work, to see what had happened to her husband. The neighbor went to the car and found the deceased slumped to the right in the driver’s seat. The neighbor spotted the gun on the deceased’s left hip. The window next to the deceased was open, so the neighbor removed the gun, brought it to the appellant and then went on to work.

When the police arrived at the scene, they found the car with the engine running and the lights on. The transmission was in first gear and the deceased’s foot was depressing the clutch. The glove compartment was open and there was a cigarette in the deceased’s left hand. The deceased had been shot once in the temple. One of the officers observed what he took to be powder burns around the wound. The coroner testified that he did not note whether there were or were not powder burns.

The gun contained two spent cartridges, but there was no sign of a second bullet in the car. One of the officers testified that in his opinion the pistol had a “hard trigger.”

The above physical facts do not preclude with reasonable certainty any possibility of an accident. The physical facts establish that the deceased shot himself in the temple at fairly close range with a pistol with a “hard trigger.” These facts do not, however, establish that the deceased shot himself intentionally. The possibility that Mr. Rome’s death was the result of an accident is created by the fact that he was found in a car with the engine running and the transmission in first gear. The only thing preventing the car from moving was that the deceased’s foot was depressing the clutch. In addition, there was a cigarette in the deceased’s left hand and the glove compartment which was located to his right was open. While these facts do not establish that Mr. Rome shot himself accidentally, they do create the possibility, as counsel for plaintiff suggest, that the deceased shot himself while trying to put the pistol in the glove compartment. Where alcohol, automobiles and firearms are mixed, there exist the very real possibility of an accident.

The second factor to be considered in determining whether Mr. Rome’s death was suicide is the existence or nonexistence of a motive. The only fact offered to explain why Mr. Rome should want to kill himself was that the appellant had filed a suit for separation about three weeks before the incident. The appellant and the deceased had been separated, in fact, for about three months at the time of the incident. Testimony at the trial indicated that the deceased wanted to save his marriage. The testimony also indicated that the relationship between the deceased and the appellant had improved after their separation.

The deceased and the appellant had one child, a daughter. The deceased was very fond of his daughter and had spent the previous day with her at his sister’s home. During the separation the deceased had seen the child whenever he wished.

The sister of the deceased testified that the deceased had been in good spirits the day before his death and had planned to go fishing on the morning he died.

Mr. Rome was in good health and in good financial shape.

The above facts do not establish a motive sufficient to overcome the presumption against suicide.

While the Trial Court recognized that the insurer must establish suicide “to the exclusion of every other reasonable hypothesis,” the Trial Court erred when, in applying this standard, it failed to give weight to the requirement that there be a motive sufficient to establish the deceased’s intent to kill himself.

In Newdigate v. Acacia Mut. Life Ass’n, 180 La. 979, 158 So. 358 (1934), the Supreme Court said:

“While the law places upon the insurance company the burden of proving that the deceased committed suicide ‘to the exclusion of every other reasonable hypothesis’ of death by any other means, it is not required to offer proof sufficient to eliminate every speculative, fantastic, conjectural, frivolous, and imaginary hypothesis of death in any other way.”
“It is our opinion that the evidence in this case shows clearly and beyond any rational doubt that the deceased intentionally destroyed himself."

The Court found intent in Newdigate because:

“In the instant case there was serious and strong motive for the deceased taking his life. His health was seriously impaired. He was discouraged and despaired. He had suffered a nervous breakdown. He had serious disagreement with his employer. He was threatened with loss of employment. He was burdened with financial worries. He was agitated and upset from being separated from his children, and brooded over the death of his first wife. He unbosomed himself to the several doctors who had waited upon him and to the captain, the chief officer, and purser of the steamer, and his wife, telling them of his overwhelming desire to destroy himself. He had previously actually attempted suicide.”
“The room in which he was last seen was left in its normal condition, showing no evidence of violence. There was nothing about the railing of the ship to show that any one had heavily fallen against these protections, and the evidence is overwhelming that no one on the promenade or main deck could have fallen into the sea unless they deliberately and intentionally wanted to do so.”

There is no such strong motive in the present case. If the deceased had no strong motive for taking his own life, the presumption is that he did so accidentally. Webster v. New York Life Ins. Co., supra.

Cases in which the Court has found fact situations insufficient to overcome the presumption against suicide include Webster v. New York Life Ins. Co., supra; Leman v. Manhattan Life Ins. Co., 46 La.Ann. 1189, 15 So. 388; Faulk v. Mutual Life Ins. Co., 160 La. 529, 107 So. 395; Oubre v. Mutual Life Ins. Co. of New York, La.App., 21 So.2d 191; Young v. First National Life Insurance Company, La.App., 159 So.2d 395.

For the reasons assigned, the judgment appealed from is reversed and it is ordered that there be judgment in favor of the appellant, Judy Hanson Rome, and against the appellee, Life and Casualty Insurance Company of Tennessee, in the amount of $27,402.40, the amount of the policy less the amount previously paid, plus legal interest from date of demand. Cost to be paid by appellee.

REVERSED AND RENDERED.


author: ELLIS, Judge.

text:
    Willindon JORDON v. MANGEL STORES CORPORATION, etc., et al.
    No. 10826.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.

      Walter C. Dumas, Baton Rouge, for appellant.
    John I. Moore, Baton Rouge, for appel-lees.
    Before ELLIS, BLANCHE, and LOT-TINGER, JJ.
   ELLIS, Judge.

This is a suit for damages arising out of an alleged false arrest and imprisonment of plaintiff Willindon Jordon for attempted shoplifting while on the premises of Shoppers Fair, a store operated by defendant Mangel Stores Corporation. Also made a defendant is Jack A. Hebert, who arrested plaintiff. From a judgment dismissing his suit, plaintiff has appealed.

The evidence offered on the question of liability consisted of the testimony of Jack A. Hebert, who detained and arrested plaintiff, and the testimony of plaintiff himself.

Mr. Hebert testified that at the time of the arrest he was a sergeant on the Baton Rouge Police Department, doing extra duty as a security guard at Shoppers Fair. He said that he saw plaintiff break open a socket wrench set and remove one of the sockets. Plaintiff apparently saw Sergeant Hebert watching him, because he concealed the socket in the palm of his hand, and began to walk towards the front of the store. Sergeant Hebert went after him, but, because of other patrons in the store obstructing his path, was unable to catch up until plaintiff was almost out of the store. Sergeant Hebert stopped plaintiff at the door and took him to the store office, where he was searched. The socket was not found on plaintiff’s person. Plaintiff was subsequently formally arrested by Sergeant Hebert, and charged with attempted shoplifting. The record reveals that plaintiff was tried on the charges in the Baton Rouge City Court and acquitted.

Plaintiff testified that he was looking for clothing at the store, and never went into the hardware department. He denied any knowledge of the theft of the socket.

Article 215 of the Code of Criminal Procedure provides:

“A peace officer, merchant, or a specifically authorized employee of a merchant, may use reasonable force to detain a person for questioning on the merchant’s premises, for a length of time not to exceed sixty minutes, when he has reasonable cause to believe that the person has committed theft of goods held for sale by the merchant, regardless of the actual value of the goods. The detention shall not constitute an arrest.
“A peace officer may, without a warrant, arrest a person when he has reasonable ground to believe the person has committed theft of goods held for sale by a merchant, regardless of the actual value of the goods. A complaint made to a peace officer by a merchant or a merchant’s employee shall constitute reasonable cause for the officer making the arrest.”

Defendants contend that there was a reasonable cause to believe that plaintiff had committed a theft of goods from the store, and that they are protected from liability by the qualified privilege afforded by Article 215, supra.

It is clear from the record that, if Sergeant Hebert’s testimony is accepted, the defendants had probable and reasonable cause for both the detention and arrest. If plaintiff’s testimony is accepted, there could be no such reasonable cause.

The trial court found that defendants were reasonably justified in their actions, and therefore must have been unable to accept plaintiff’s testimony. We find no manifest error in this conclusion.

The judgment appealed from is affirmed, at plaintiff’s cost.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    Mrs. Nina Laverne HUDGINS et al. v. The TRAVELERS INSURANCE COMPANY et al.
    No. 10573.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.
    Writ Refused Nov. 19, 1976.
    • Paul H. Dué and John deGravelles, Baton Rouge, for Nina Hudgins.
    O. Romaine Russell, Baton Rouge, for Hawkins.
    W. A. Norfolk, Arthur Abercrombie, and Mary Olive Pierson, Baton Rouge, for appellees.
    Before SARTAIN, ELLIS and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This case was consolidated for trial with Wilkinson v. The Travelers Insurance Company et al., 330 So.2d 351 (La.App. 1st Cir. 1975). Plaintiffs are the surviving spouse and children of decedent, V. C. Hudgins, who was a guest passenger in the automobile driven by Marathon Glenn Hawkins at the time of the accident in question. Plaintiffs sought damages relating to the injury and death of V. C. Hudg-ins. The issues raised in this case are identical to the issues raised in the above cited case, that is, the issue of assumption of risk. The jury answered affirmatively the interrogatory, “Did Mr. Hudgins assume the risk of the accident?”

For the reasons assigned in Wilkinson v. The Travelers Insurance Company et al., supra, the judgment of the Lower Court is affirmed at the plaintiffs-appellants’ costs.

AFFIRMED.

      . The final disposition of this case was de- ■ layed awaiting a rehearing before the Louisiana Supreme Court of Callais v. Allstate Insurance Co., 334 So.2d 692 (1976).


author: COVINGTON, Judge:

text:
    MARGOT, INC. v. Paul PEARSON d/b/a Paul Pearson’s Hauling.
    No. 10765.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.
    Writ Refused Nov. 16, 1976.

      Darrell D. White, Baton Rouge, for plaintiff.
    Ben F. Day, Baton Rouge, for defendant.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge:

Margot, Inc. has appealed from a judgment dissolving a writ of sequestration which had been issued pursuant to the repairman’s privilege on automobiles and other machinery provided for in LSA-R.S. 9:4501, and from a judgment awarding damages for the wrongful issuance of the writ of sequestration. Paul Pearson, the defendant, and Nora Byrd, Jr., the interve-nor, have also appealed the judgment complaining of the amount of damages and attorney fees awarded.

This suit arises out of a writ of sequestration issued at the instance of Margot, Inc., the plaintiff who was seeking to collect an amount allegedly due on an open account for parts and labor used to repair defendant’s vehicles by defendant, Paul Pearson. The plaintiff’s original petition set forth the indebtedness as amounting to $4,013.72. Annexed to this petition was an accounts receivable ledger sheet which showed the balance owed by Pearson was $1,982.03. Defendant’s motion to dissolve and answer admitted he owed the sum of $1,982.03. Then, the plaintiff filed an amended petition setting out the corrected amount owed as $1,982.03.

Pursuant to the writ of sequestration, the sheriff seized a tractor truck and a gravel dump trailer purportedly belonging to Pearson. Defendant admits the dump trailer was owned by him, but contends .that the tractor truck was owned by Nora Byrd, Jr., who has intervened in the proceedings.

Subsequently, Pearson moved to dissolve the sequestration on the grounds that the amount sued for was not the amount owed, that Margot had never worked on the dump trailer, and that the tractor truck was owned by Byrd. On the same date Byrd, who was represented by the same counsel who was representing Pearson, intervened to have the writ dissolved as to the tractor truck, claiming that he was the owner of the tractor truck, and for damages for the wrongful issuance of the writ.

After a hearing on the motion to dissolve, Judge Claiborne dissolved the writ of sequestration, finding that “the affidavit attached to the original petition was incorrect; and further that someone other than plaintiff in rule (Pearson) owned the other vehicle seized.” Thereafter, the case was heard on the merits by Judge Engolio, who rendered judgment in favor of Margot on the open account for the sum of $1,982.03; judgment in favor of Pearson for $50.00 damages and $200.00 attorney fees for the wrongful seizure; and judgment in favor of Byrd, the intervenor, for $2,550.00 damages and $200.00 attorney fees. At the trial on the merits Pearson and Byrd were again represented by the same counsel (though a different one from that who represented them both on the motion to dissolve). All parties have appealed.

It is admitted that Pearson owed Margot the sum of $1,982.03 at the time the suit was filed and the writ of sequestration issued. The ledger sheet attached to the original petition shows this correct amount. The amended petition alleges this amount. The evidence establishes that this is the correct amount owed by Pearson. However, the original petition set out that Pearson owed Margot the sum of $4,013.72 (this figure was typed in the body of the petition from the “proof” column of the ledger sheet instead of the correct figure from the “balance” column, which is correctly shown as “1,982.03”).

Pearson contends, and the trial judge agreed, that by alleging the incorrect amount owed by Pearson in its petition Margot filed “a false affidavit” of the amount due, and consequently, the writ of sequestration “was issued without sufficient proof in the record” and was thus a wrongful issuance of the writ. We disagree.

The pertinent procedural article, LSA-C.C.P. art. 3501, provides (in part):

“A writ of attachment or of sequestration shall issue only when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts shown by the petition verified by, or by the separate affidavit of, the petitioner, his counsel or agent.”

Although there was an error in the original petition in giving an incorrect figure for the amount owed, this error is of no legal consequence. No one was misled or harmed by this error. Both Margot and Pearson knew the correct figure was $1,982.03. Plaintiff’s itemized statement of accounts setting forth the debt actually owed by Pearson was made a part of the original petition. We, therefore, believe that the amount of the claim clearly appears from specific facts of the petition as required by article 3501 of the Code of Civil Procedure.

The hypertechnical construction placed on this procedural rule by the trial judge is contrary to the purpose of our rules of procedure. All articles of the Code of Civil Procedure are to be construed liberally; they are “only a means to an end, not an end in themselves.” See LSA-C.C.P. art. 5051, and Comment thereunder. Procedural rules must be functional.

In addition, the case of E. B. Williams & Co. v. Louisiana Lumber Co., 105 La. 99, 29 So. 491, 492 (1901), squarely holds, in considering the other conservatory writ (writ of attachment), that when a person sues out a conservatory writ for a larger amount than he is entitled to, he may yet sustain the writ for the amount to which he proves he is entitled.

The Williams court said:

“The mere fact that plaintiff claimed too much, if claimed in good faith, is not to be taken as ground sufficient to dissolve the attachment, and perhaps prevent him from recovering the claim due.”

The other question raised by Pearson regarding the dump trailer was that this vehicle “has never been worked on by Mar-got, Inc., and is thus not subject to their lien or to be sequestered.” The evidence produced at the trial clearly shows that Margot did do the work which it claimed to have done on this particular vehicle. As a matter of fact, Pearson, in his testimony, admits that the work was performed by Margot on the dump trailer and that he paid for the work with a check that “bounced.” In his testimony, Pearson goes so far as to say: “I never said there wasn’t any work done on the dump trailer.” There is no merit to this contention.

We, therefore, find that the dump trailer, which was admittedly owned by Pearson and on which it was proven the repair work was done by Margot, was properly the subject of the writ of sequestration. We hold that, as to Pearson’s dump trailer, the writ of sequestration was not wrongfully issued, and the trial judge erred in dissolving the writ.

The case of Hancock Bank v. Alexander, 256 La. 643, 237 So.2d 669 (1970), relied upon by Pearson is inapposite. In the Hancock Bank case the plaintiff bank merely had an unsecured promissory note upon which it brought suit and sought a writ of sequestration. The bank’s petition did not set out the requisite grounds for the issuance of a writ of sequestration, as required by LSA-C.C.P. art. 3501. It is only when the plaintiff claims “the ownership or right of possession of property, or a mortgage, lien, or privilege thereon,” that a writ of sequestration can issue. LSA-C.C.P. art. 3571. The plaintiff in Hancock Bank only alleged “an indebtedness on a promissory note,” so was clearly not entitled to a writ . of sequestration. The court remarked that “it was not until the motion for summary judgment was tried that the deed of trust was referred to or produced in the record (even if that device could be considered as a ‘mortgage’, ‘lien’, or ‘privilege’ as contemplated by Article 3571 j.”

In the instant case the original petition of the plaintiff claimed the repairman’s privilege of LSA-R.S. 9:4501 as plaintiff’s ground for the issuance of the writ of sequestration. In Hancock Bank, the plaintiff alleged no grounds for sequestration. See also Wright v. Hughes, 254 So.2d 293 (La.App. 4th Cir. 1971).

While Hancock Bank does stand for the proposition that an amendment to the pleadings will not be permitted “once the defendant has moved to dissolve a conservatory writ,” we find that that holding has no application to the instant case, because the original petition with the annexed “Accounts Receivable Ledger” sheets, together with Pearson’s answer admitting the exact amount owed, made the amended petition unnecessary. The amount of the claim clearly appeared from specific facts shown by the verified petition. See LSA-C.C.P. art. 3501; Johnson, Attachment and Sequestration: Provisional Remedies under the Louisiana Code of Civil Procedure, 32 Tul.L.Rev. 1 (1960). There was no need to “cure” any “defects after the fact.” Cf. Hancock Bank v. Alexander, supra, at 237 So.2d 672; L’Enfant, Civil Procedure, 31 La.L.Rev. 343, 356 (1971).

Turning now to the question of the writ of sequestration as to the tractor truck Pearson and Byrd urge that the seizure under the writ was wrongful because Byrd actually owned the tractor truck.

The evidence shows, and both Pearson and Byrd admit, that Margot made the repairs on the trailer truck in question. There is evidence that Byrd authorized Pearson to have Margot make the subject repairs, and that Byrd ratified the actions of Pearson in having the vehicle repaired at Margot’s. It is not necessary that Byrd have specifically authorized Pearson to have these repairs made, because Margot acted in good faith in repairing the vehicle and acted on the belief that Pearson, the person who requested the repairs, had the status to do so. See Universal Electric Construction Company v. Liner, 281 So.2d 830, 832-834 (La.App. 1st Cir. 1973), writ refused, 283 So.2d 501 (La.1973).

In the Liner case this court recognized the repairman’s privilege granted by LSA-R.S. 9:4502, and pointed out that “there is no requirement in R.S. 9:4502 that the owner of the movable request that the repairs be done.” What we said in Liner is also applicable to LSA-R.S. 9:4501. Where the repairman acts in good faith in repairing the automotive machinery and acts in the belief that the person who requests the repairs has the status to do so, the repairman has a privilege against the automotive machinery and this privilege may be enforced by the writ of sequestration; LSA-R.S. 9:4501. Accordingly, we hold that, as to the trailer tractor, the writ of sequestration was not wrongfully issued, and the trial judge erred in dissolving the writ.

Moreover, in order to set the record straight, we hold that for the purpose of the repairs to and use of this vehicle, Pearson and Byrd are one and the same entity. They were engaged in the same type of hauling business; they used each other’s vehicles interchangeably (without payment for the use) and treated such vehicles as their own while so using them; they worked for each other on occasions (sometimes Byrd was the employee; sometimes Pearson was); they used parts off each other’s vehicles without anything more than a casual word (the dump body on this specific trailer truck belonged to Pearson). They had, to say the least, a close business affiliation. To all outward appearances, they operated as an entity. Even the seller of this particular vehicle testified that he sold the trailer truck to “them.” They were represented by the same counsel on the rule to dissolve the writ; and on the merits, they were represented by the same counsel (though different from the one on the rule). We need but repeat what we said in Mistric v. Republic National Life Insurance Company, 314 So.2d 472, 476 (La.App. 1st Cir. 1975), writ denied, 319 So.2d 444 (La.1975):

“Sufficient unto itself, is the fact that the same law firm represented (the defendants). Surely, if they were in fact two separate and distinct entitites having two separate and distinct defenses in this lawsuit, each would have been represented by a separate and distinct law firm.”

In any event, the trailer truck seized under the writ was the vehicle on which the repairs were made. Byrd either authorized the repairs or acquiesced in them and, if he owned the vehicle, he received the benefit of the repairs.

It is ordered, adjudged and decreed that the judgment dissolving the writ of sequestration herein be and is hereby reversed and the writ of sequestration is maintained on both of the seized vehicles; that the judgment in favor of Paul Pearson d/b/a Paul Pearson’s Hauling, be and is hereby reversed and the claim for damages and attorney fees is dismissed; that the judgment in favor of Nora Byrd, Jr., be and is hereby reversed and the claim for damages and attorneys fees is dismissed; that the judgment in favor of Margot, Inc., and against Paul Pearson, d/b/a Paul Pearson’s Hauling, in the full sum of $1,982.03, with legal interest from date of judicial demand, be and is hereby affirmed. All costs are to be shared equally by Paul Pearson and Nora Byrd, Jr.

AFFIRMED IN PART; REVERSED IN PART.

      . We note that there was an error in the amount claimed in the Eanoook Bank case and that the Supreme Court did not mention this as a ground for dissolution of the writ.


author: PONDER, Judge.

text:
    The DOW CHEMICAL COMPANY v. Joseph N. TRAIGLE, etc.
    No. 10768.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.
    Writ Refused Nov. 24, 1976.

      Robert G. Pugh, Shreveport, for appellant.
    R. Gordon Kean, Jr., Baton Rouge, for appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

This is a tax refund suit brought by Dow Chemical Company (Dow) against Joseph N. Traigle, Collector of Revenue, State of Louisiana (Collector), pursuant to La.R.S. 47:1576. Dow seeks to be refunded $167,979.23, representing use taxes it paid under protest for the tax period January 1, 1970, through June 30, 1974, (audit period) together with interest at the rate of two per cent (2%) per annum. The Collector reconvened praying for ten per cent (10%) attorney’s fees as provided in La.R.S. 47:1512.

The court below, relying on Chicago Bridge & Iron Company v. Cocreham, La., 317 So.2d 605 (1975) and Halliburton Oil Well Cementing Company v. Reily, 373 U. S. 64, 83 S.Ct. 1201, 10 L.Ed.2d 202 (1963), granted summary judgment in favor of Dow for the entire relief prayed for and dismissed the Collector’s reconventional demand. The Collector has timely perfected this appeal. We affirm.

Dow operates a manufacturing facility at Plaquemine, Louisiana, where it manufactures chemicals and related products. The plant requires sophisticated machinery, some of which is assembled by Dow’s own employees at other Dow plants located out-of-state. The raw materials, and all other articles necessary for the construction of the machinery, are purchased outside of Louisiana. Completed units of machinery are then shipped to the plant.

Dow reported this machinery on its use tax return, but paid use tax on the basis of its material costs only. The Collector contends that Dow must also pay use tax on all labor, overhead and interstate transportation costs incurred in the production of each unit. The principal sum at issue herein, $167,979.23, represents the amount the Collector asserts is due.

Dow contends, and the trial court held, that the inclusion of out-of-state labor, shop overhead and transportation costs in assessing a use tax on an out-of-state manufacturer-user is violative of Article 1 § 8, Clause 3 (the commerce clause) of the United States Constitution when an instate manufacturer-user pays tax (sales) on material costs only. We agree. See Halliburton Oil Well Cementing Company, supra; and Chicago. Bridge & Iron Company, supra.

The Collector asserts that the courts’ findings in those two cases that no use tax is levied on labor, overhead and transportation against an in-state manufacturer-user is erroneous; that the U.S. Supreme Court in Halliburton, supra, relied upon an erroneous stipulation that an in-state manufacturer-user would not have paid tax on labor or shop overhead, and that the Louisiana Supreme Court also fell into this error in Chicago Bridge & Iron, supra, by following the Halliburton case. The Collector’s position is that: “(1) The Louisiana Statute clearly imposes a use tax on both the out-of-state (‘foreign’) manufacturer-user as well as instate manufacturer-user on the incremental value of fabrication and freight;” and, “(2) In the administration of the use tax, it is collected equally from instate manufacturer-users as well as foreign manufacturer-users

These arguments, made by the Collector in Chicago Bridge & Iron, supra, were answered thus by the Louisiana Supreme Court:

“The narrow question we are here considering is whether under Louisiana law the in-state purchaser who, in performing his construction contracts, in part fabricates or manufactures off site at his in-state plant, is required to pay, in addition to the sales tax on the raw materials purchased in-state, a use tax on the labor and shop overhead which goes into fabrication of such equipment. In effect, has the Louisiana Legislature placed upon the cost of intra-state labor and shop overhead a use tax, in the nature of a value added tax ?
“The Collector says that the Legislature has done just that. In support of his contention he relies upon the provisions of R.S. 47:302, the regulations of the Collector of Revenue enacted or adopted pursuant to the authority of R.S. 47:1151, and the collection policies and procedures of the Department of Revenue during the audit period.
“R.S. 47:302 does indeed levy a tax upon the use of each item or article of tangible personal property. The statute in distinguishing the use tax from the sales tax goes on to declare that the tax is at the rate of 2% of the cost price of each item or article of tangible personal property when the thing is not sold but is used in this state.
“The statute does not precisely describe any use or value added tax upon the cost of intra-state labor and shop overhead. Nor does it clearly preclude the imposition of such a tax. At best for the Collector it might be said that the statute in this respect is unclear, or imprecise.
“The general rule is that where a tax statute is susceptible of more than one reasonable interpretation, the construction favorable to the taxpayer is adopted. Brown v. LaNasa, 244 La. 314, 152 So.2d 33 (1963); United Gas Corp. v. Fontenot, 241 La. 564, 129 So.2d 776 (1961).
“The Collector next directs our attention to several of the regulations of the Department of Revenue in effect during the audit period. (Footnote omitted) He suggests that a review of these Regulations will indicate that the Department policy during the audit period was to tax the in-state manufacturer-user on the cost of labor and shop overhead.
“Our review of those regulations does not cause us to so conclude.
“The Collector’s changing Article 2-3, or ‘clarifying’ it as he contends would not standing alone cause us to conclude that during the subject audit period (prior to the 1963 amendment to Article 2-3) there was no applicable use tax imposed upon the in-state manufacturer-user. However, coupled with the provisions of the statute and the Halliburton stipulation it seems perfectly clear to us that this was the case. Certainly some effect must be attributed to the fact that the Collector of Revenue in that litigation, speaking of the period which is involved in the subject audit, declared rather solemnly on a point which ultimately governed the outcome of that litigation, that had the taxpayer ‘purchased his material, operated his fabricating shops and incurred his labor and shop overhead expenses ... at a location within the State of Louisiana, . there would have been no Louisiana sales tax or use tax due upon the labor and shop overhead.
“The Collector attempts to offset the import of the Halliburton stipulation, the amendment to the Regulations in 1963 (Article 2-3) and the lack of clarity and precision of R.S. 47:302 (to be most generous with the Collector’s position) by-relying upon the testimony of witnesses at trial concerning the Department’s policy during the subject audit period and the circumstances surrounding execution of the ‘erroneous’ Halliburton stipulation.
“That testimony was less than conclusive. In fact in some instances it supports CBI’s rather than the Collector’s position. In any event taxes are imposed by the Legislature, not by the Department of Revenue.
“We conclude that pertinent to this case the use tax did not bear against labor and shop overhead of the in-state manufacturer-user, just ás was stipulated to have been the case in Halliburton.
“R.S. 47:302, to the extent that it imposes a use tax complementing the sales tax, was designed to, and in fact did, impose a tax upon tangible personal property not purchased within the State but rather imported and used therein. Furthermore it does not place a use tax, or value added tax, upon the cost of intra-state labor and shop overhead.
“Finding that the use tax is imposed upon labor and shop overhead of the out of state manufacturer-user and that neither sales nor use tax is imposed upon the in-state manufacturer-user, we are constrained by the United States Supreme Court decision in Halliburton, to conclude that the Louisiana Use Tax as applied to labor and shop overhead of the out of state manufacturer-user is unconstitutional and therefore unenforceable, because violative of the commerce clause of the United States Constitution.”

The court also held that “insofar as the use tax is imposed upon the element of transportation cost for shipping CBI’s fabricated component parts from out of state plant to in-state job site, it is unconstitutional and unenforceable because in violation of the commerce clause . . .”

Thus, even though the members of this panel may feel otherwise, and would decide differently were the case one of first impression, nevertheless, we are constrained to decide this case as we do because of the above holding.

The Collector further argues that since the cases of Halliburton, and Chicago Bridge & Iron, supra, covered a different audit period from the instant case, their factual determination that an in-state manufacturer-user does not pay taxes on labor, shop overhead on items manufactured at in-state plants is not controlling in this case.

The Collector has neither cited, nor can we find any change in the pertinent statutory law to that effect. Policy changes and Department of Revenue Regulations are insufficient to impose taxes, which are clearly a legislative function. Chicago Bridge & Iron, supra; Article X Section 1, Louisiana Constitution of 1974. We therefore conclude that the Louisiana use tax as applied to labor, shop overhead, and transportation of the out-of-state manufacturer-user is unconstitutional, being vi-olative of the commerce clause of the United States Constitution.

The Collector next argues that the summary judgment was improper as there is a material issue of fact with regard to the appropriate price of raw materials to be utilized in determining the use tax for the audit periods in question.

We have examined both the depositions and the answers to interrogatories and cannot agree that they raise any material issue of fact. Specifically, the Collector refers to the deposition of a senior accountant of Dow that was introduced in evidence in asserting that the deposition raises a serious question as to whether Dow used the “actual costs” of the materials used in manufacturing the machinery at issue, or an improper “standard cost” instead, in establishing the tax basis on the materials. Although Dow’s petition does not put at issue the amounts that the Collector demanded due as use tax for the materials, and the Collector did not amend his reconventional demand to put the use tax paid on materials at issue, it is the Collector’s contention that the introduction of the deposition without objection enlarged the pleadings to cover that issue in accordance with Article 1154 of the Code of Civil Procedure; and, that summary judgment was therefore improper. The Collector cites Hancock Bank v. Alexander, 227 So.2d 183 (La.App. 3rd Cir. 1969); reversed on other grounds, La., 237 So.2d 669 (1970), for the proposition that the introduction of a deposition on the trial of the motion for summary judgment without objection can amend or enlarge the pleadings in accordance with Article 1154 of the Code of Civil Procedure. We do not believe that we must either accept or reject the Collector’s interpretation of Hancock Bank, supra, because we find that the subject deposition does not effectively raise the issue as to what cost basis was used by Dow in paying use tax on the materials. Mere hints of error in establishing “costs” are insufficient to raise the issue. The person being deposed expressly stated on several occasions that he did not understand or know Dow’s tax computation or reporting procedure. We are unwilling to hold that the pleadings were enlarged by the introduction of such insubstantial and admittedly possibly inaccurate “factual” testimony.

Collector points also to answers to interrogatories as raising a question of material fact as to cost of raw materials. The evidently relevant portions of these answers read as follows:

“Answer to Interrogatory No. 12
These IDT (Interdivisional Transfers) are of two types. Most of the IDT’s (although they may be of varying format) deal with the transfer of specific items, that is cell parts or ethylene-oxide catalysts. A few of the IDT’s, however, do not charge directly for specific items, but, rather, call for an additional interdi-visional charge to make up the difference between the standard cost shown on the IDT’s described above and the actual cost to the plant in Texas or Arkansas making the equipment.
“Answer to Interrogatory No. 15
With regard to each of the IDT’s attached as part of the answer to Interrogatory No. 12, the cost price reported to Louisiana for use tax purposes is the material cost which is shown on each IDT.
“Answer to Interrogatory No. 17
With regard to each of the items listed in the IDT’s attached as part of the answer to Interrogatory No. 12:
(a) The raw material cost is the same as the amount reported to the State of Louisiana for use tax purposes, and which is described in the answer to Interrogatory No. 15. Some of the raw materials were purchased from third persons and some were manufactured by Dow at certain of its other divisions. In either case, the raw material cost was the actual cost of the raw material used in the item upon which the tax was reported and paid.
(b) With regard to the raw materials manufactured by Dow or any of its divisions, and used by another division, the standard cost of such raw materials was the manufactured cost of the materials. Attached to the answer to this interrogatory is Dow’s Accounting Policy and Procedure Number AP-1002, Pages 1 and 2 (Exhibit “B”) which lists all of the items that are included in its standard cost.
“Answer to Interrogatory No. 19
The cost of each of the items described in the answer to Interrogatory No. 12 appears on Dow’s financial records in the following respects:
(a) At standard cost (which ultimately becomes IDT cost) upon the inventory records of the division manufacturing the item.
“Answer to Interrogatory No. 26
Yes, only the raw material costs were used in Texas and California as the basis of paying the use tax due on similar taxable items in those states. Michigan, the only other state involved, does not tax manufacturing equipment.”

As above, we cannot see that these, even if they have the effect of enlarging the pleadings, raise any question of material fact.

The Collector argues alternatively, that when a taxpayer such as Dow, files suit to receive a refund, the entire tax liability of the taxpayer is put at issue, citing Lewis v. Reynolds, 284 U.S. 281, 52 S.Ct. 145, 76 L.Ed. 293 (1931) and Missouri Pacific Railroad Co. v. U. S., 338 F.2d 668, 168 Ct.Cl. 86. We do not find these cases applicable to the facts of this case. These cases hold that under the Internal Revenue Code the federal government can plead as off-set any amount due the government.

In the instant case, the alleged “related aspect,” i. e. the amount due for material cost was never properly presented as an issue. Dow’s suit put at issue only the use tax due on labor, shop overhead and transportation costs. The Collector did not reconvene for any tax due on the material costs even after it supposedly suspected impropriety on Dow’s part, which as stated above, was too vague and insubstantial to be effective in enlarging the pleadings. Therefore, we expressly conclude that the issue of the amount of tax due on material costs is outside the scope of this suit.

Finally, the Collector argues that his affidavit in opposition to the motion for summary judgment affirmatively declares that it is the practice of the Department of Revenue to charge in-state manufacturer-users as use tax on labor, overhead and transportation, and that this raised a material issue of fact. We disagree. The mere policy of the Collector cannot impose a tax. The legislature is solely invested with such power. Chicago Bridge & Iron, supra. Therefore the policy of the Collector is irrelevant and immaterial on this point.

For the above and foregoing reasons, the judgment of the lower court is affirmed insofar as it grants judgment against the Collector for $167,979.63, with interest as provided by law and denies the reconven-tional demand. The Collector is assessed with those costs permitted by law.

AFFIRMED.

      . See especially the following quotation from p. 612:
      “In any event taxes are imposed by the Legislature, not by the Department of Revenue.”

      . The lower court stated in written reasons “that the Collector is barred from raising the issue of the tax base or the computation of the use tax [on the materials] since it admitted in its answer to plaintiff’s petition that the sum paid by plaintiff in response to its audit and demand was correct.” We do not find such an admission in the record.

      . The Missouri Pacific Railroad case, supra, interestingly enough has the following quotation on pages 671-672:
      “ . . . the government has the burden of going forward and showing that there is a reasonable basis in fact or in law for its setoff defense. By this we mean that the government has to demonstrate that it has some concrete and positive evidence as opposed to a mere theoretical argument, that there is some substance to its claim and is not a mere fishing expedition or a method of discouraging taxpayers from seeking refunds on meritorious clauses because of the cost that would result in proving each and every item involved in a tax return.”


text:
    Hazel Carr HARTLEY v. John A. HARTLEY.
    No. 10791.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.
    Writ Refused Nov. 16, 1976.
    James D. Thomas, II, Baton Rouge, for appellant.
    Walton J. Barnes, Baton Rouge, for ap-pellee.

      Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge:

This is a devolutive appeal from a judgment on a rule to fix alimony pendente lite, an award for child support and for injunc-tive relief in a suit for divorce or, alternatively, a judicial separation, brought by the wife, Hazel Carr Hartley, against her husband, John A. Hartley. The judgment overruled the exceptions of lis pendens and improper venue which were filed by the defendant husband, awarded to the plaintiff wife, as alimony pendente lite, the sum of $1,070.00 per month and $148.88 per month for payment of the mortgage note, plus the sum of $300.00 per month for the wife to use to pay off debts incurred by her prior to the judgment, and assigned to the plaintiff wife their home for habitation pending the lawsuit. The court purportedly denied any award for child support ; the requested support was for Debbie Hartley, a college student who is of the full age of majority. The court also enjoined the defendant from bothering the plaintiff and from disposing of the community property, with notice of said in-junctive relief to defendant’s employer. We amend and affirm.

The facts show that these parties were married in Mississippi in 1950. There were three children born of the marriage, all of whom have now reached the age of majority. In 1960 the Hartleys moved to St. Tammany Parish, Louisiana, where they purchased a home, and later purchased other real estate. It is not disputed that the Hartleys established their matrimonial domicile in that parish. This was their domicile when Mr. Hartley was transferred to Europe by his employer in 1971. The Hartleys moved to Norway first, and then to Scotland. In August, 1973, Mr. Hartley became involved with his secretary and compelled Mrs. Hartley to leave the European residence and return to the United States.

Upon their transfer to Europe, the Hart-leys had leased their St. Tammany Parish home, which lease was to run until November, 1975. Therefore, upon her return to the United States, Mrs. Hartley had to live with relatives in Mississippi, and then in Baton Rouge, Louisiana. While in Baton Rouge, she filed for divorce in East Baton Rouge Parish. Upon learning that her husband was in St. Tammany Parish, she filed a petition for divorce in the Twenty-Second Judicial District Court and obtained personal service upon the defendant. A rule nisi was issued pursuant to the petition, the preservation of the community property and the award of alimony and support pen-dente lite being the principal objects of the rule.

When the rule came on for hearing, defendant filed exceptions of improper venue and lis pendens. The suit in East Baton Rouge having been dismissed, there is no merit in the exception of lis pendens, and it is not argued on this appeal. The exception to the venue was argued and overruled by the trial judge, who remarked:

“With respect to the exception to the venue of this Court, this Court finds that the parties were domiciled in St. Tammany Parish, Louisiana; that the last matrimonial domicile was in Slidell, St. Tammany Parish, Louisiana; that the man’s work temporarily caused his location in Europe.”

The court then made its alimony awards and granted the requested injunctive relief. The defendant asked for a new trial, which was denied, whereupon the defendant perfected this appeal.

Appellant contends that the non-waivable venue of LSA-C.C.P. art. 3941 was not present in the instant case, so that the trial court erred in overruling his exception to the venue.

The pertinent venue provision, LSA-C.C. P. art. 3941, states:

“An action for an annulment of marriage, for a separation from bed and board, or for a divorce shall be brought in a parish where either party is domiciled, or in the parish of the last matrimonial domicile.
“The venue provided in this article may not be waived, and a judgment rendered in any of these actions by a court of improper venue is an absolute nullity.”

The trial court determined that the last matrimonial domicile was in St. Tammany Parish. The facts support this determination. Mr. and Mrs. Hartley purchased a home in Slidell, St. Tammany Parish, Louisiana, as stated above. They lived there as husband and wife for about eleven years, when the husband was transferred by his employer to work temporarily in Europe. In August, 1973, Mrs. Hartley was compelled to leave the European residence and return to this country. Because her husband refused to support her, Mrs. Hartley was obliged to live with relatives in various places in Mississippi and Louisiana. At the time the suit was instituted in St. Tammany Parish, she was staying in East Baton Rouge Parish.

These facts clearly show that the European sojourn was due to temporary work in the oil industry overseas. Such a sojourn does not constitute a change of domicile. See LSA-C.C. arts. 38, 41. Under these codal articles, the last matrimonial domicile of these parties is St. Tammany Parish, as the trial court held.

In Puissegur v. Puissegur, 220 So.2d 547 (La.App., 4th Cir. 1969), writ refused, 254 La. 285, 223 So.2d 409, the court found that an employee who had been transferred to Europe by his employer retained his Orleans Parish domicile, considering the employee temporarily working in Europe for the convenience of the employer. There was no evidence showing that the employee intended to make his residence in England his home, “the place of his principal establishment.”

The court in Puissegur said, at page 550:

“We are of the opinion that in the case before us the evidence as stated above does establish that although the defendant has acquired a temporary residence in England his actions indicate that he has not done so with the intention of making that residence his home; the place of his principal establishment.”

The court went on to hold that a temporary residence established by an employee in connection with employment, which requires living away from home for the convenience of the employer is not the domicile of the employee. Such is the case here. Mr. Hartley moved to Europe solely for the convenience of his employer for the definite term of an employment contract. The implication is strong that Mr. Hartley will return to St. Tammany Parish at the end of his tour of duty.

In the instant case the defendant chose not to appear as a witness, and the record is barren of any evidence showing a change of domicile, either by the husband, or the wife, or together, from St. Tammany Parish. We need only say that matrimonial domicile is not, like a man’s fancy, a fleeting thing; the law has endowed this concept with more substantial stuff.

There is no basis for objection to the jurisdictional venue of the trial court, and the court quite properly overruled the exception.

Next, the appellant complains about the amount of the awards of alimony pendente lite.

There can be no question but what this kind of alimony is to be fixed according to the needs of the wife and the means of the husband. LSA-C.C. art. 148; Boling v. Boling, 229 So.2d 423, 426 (La.App., 3rd Cir. 1969), states:

“Alimony for the wife is based on her need and the husband’s means. LSA-C.C. Article 148. The need must be proven and the alimony must be fair and just to each.”

The facts show that the husband has an annual income well in excess of $40,-000.00. Further, his employer holds funds belonging to him amounting to more than $50,000.00. The uncontradicted testimony shows that when Mrs. Hartley returned to the United States she had no food, no money and no transportation. Her husband had not sent her any money whatsoever from the date of separation, August 16, 1973, until the date of trial of the rule on October 28, 1974. The wife has little, or no income, on which she can depend. Further, the trial court has great discretion in these matters; Boling v. Boling, supra; Fuori v. Fuori, 316 So.2d 803 (La.App. 1 Cir. 1975). However, we cannot allow the amount awarded to stand.

Under Civil Code article 148, the amount to be awarded is, inter alia, that needed for her maintenance. The plaintiff testified that she and her daughter need $300.00 per month for food and household expenses and that she needs $130.00 per month for school and lunches. Obviously, the latter amount is for the daughter and we think it reasonable to assume that one-half of the former amount is likewise for her. Because of the fact that the daughter is of the full age of majority, the wife is not the proper plaintiff to prosecute an action for her support; Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973). We are of the opinion that the trial judge also erred in awarding the appellee $200.00 per month for rent while simultaneously assigning to her the family home for her habitation. Further, while the wife might well have incurred certain obligations needed to support herself, the debts were incurred prior to the suit for separation and constitute community obligations; Civil Code article 2403; Creech v. Capitol Mack, Inc., 287 So.2d 497 (La.1973). At this stage of the proceeding, it is not proper to allow her $300.00 per month to liquidate them. Therefore, we feel that the proper monthly award should be:

$150.00 - food and household expenses
150.00 - medical and dental expenses
100.00 - utilities
65.00 - laundry
80.00 - personal grooming
$545.00

In addition thereto, the husband should pay the mortgage affecting the home.

Accordingly, it is ordered, adjudged and decreed that the judgment appealed from is affirmed to award Hazel Carr Hartley $545.00 per month alimony pendente lite. In addition, John A. Hartley is ordered to make the monthly mortgage payments on the home. Those portions of the judgment relating to injunctive relief and the assignment of the family home to the wife are affirmed.

In the exercise of our discretion, the costs of the appeal are assessed against the appellant.

AMENDED AND AFFIRMED.


text:
    Howard M. STAFFORD v. Agnes E. EVANS et al.
    No. 10774.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.

      Joshua A. Tilton, Baton Rouge, for appellant.
    Miriam Attaya, Gonzales, for appellees.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge:

This is an appeal from a judgment in a partition suit. The appellant complains of the fractional interests of the parties as found by the trial court. The court below decreed that the parties were the owners of the subject property in the proportion of an undivided 802/1600 interest to Howard M. Stafford, an undivided 260/1600 interest to Agnes Edmonston Evans, an undivided 260/1600 interest to Lillie Edmon-ston Hacker, an undivided 100/1600 interest to the community of acquets and gains existing between Agnes Edmonston Evans and Rudolph Evans, an undivided 100/1600 interest to Alton B. Edmonston, and an undivided 78/1600 interest to the heirs of Peggy Faye Edmonston; and decreed the partition by licitation of the subject property. We amend and affirm.

The plaintiff-appellee, Howard M. Stafford, filed suit for a partition by licitation of certain immovable property situated in the Parish of Ascension, Louisiana. Stafford is an owner in indivisión of the subject property with Agnes Edmonston Evans, Lillie Edmonston Hacker, the community of acquets and gains existing between Agnes Edmonston Evans and Rudolp Evans, Alton B. Edmonston, and the heirs of Peggy Faye Edmonston.

The property in question is incapable of division in kind without a diminution in value, and all parties have stipulated that a partition by licitation was necessary, because of the varying interest of the co-owners and the fact that some of the co-owners were absentees.

The determination of the interest of the several parties depends primarily upon the interpretation of the conveyance from Ida Edmonston Roddy to Arthur L. Edmon-ston, dated March 29, 1952, of record in Conveyance Book 95, folio 239, Ascension Parish, Louisiana, in which the vendor conveys “all of her undivided one-eighth interest” in the particular property.

The subject property has been the object of several conveyances and has been involved in several successions. The property was acquired by Arthur R. Edmonston, during the existence of the community of acquets and gains between him and Ida Daigle Edmonston, on December 13, 1919, recorded in Conveyance Book 61, folio 519, in Ascension Parish, Louisiana. They had five children. In 1924, Ida Daigle Edmon-ston died intestate, survived by her husband, Arthur R. Edmonston, and her children, Agnes Edmonston (wife of Rudolph Evans), Lillie Edmonston (wife of Marvin Hacker), Ida Edmonston (wife of William Roddy), Arthur Leo Edmonston and Joseph O. Edmonston. Thereafter, Arthur R. Edmonston married Estelle Marchand Edmonston, and they had three children, Murphy H. Edmonston, Wanda G. Edmon-ston (wife of Alvin R. Mire), and Alton B. Edmonston. Subsequently, Joseph O. Edmonston died about 1945, survived by his wife, Verba Brown, and two children, Joseph R. Edmonston and Harry L. Ed-monston.

Arthur R. Edmonston died intestate on August 11, 1951, survived by his second wife, seven children and two grandchildren.

On March 29, 1952, Ida Edmonston Rod-dy made the above mentioned conveyance of all of her undivided one-eighth interest. At the time of this conveyance, Mrs. Rod-dy owned a 13/80 or 26/160 interest (having inherited a 1/10 interest from her mother and a 1/16 interest from her father) .

On December 29, 1956, Murphy H. Ed-monston conveyed “all of his undivided one-eighth interest” in the property to Agnes Edmonston Evans during the existence of the community between her and Rudolph Evans. The deed contains the recitation that the vendor is conveying the interest he “acquired by inheritance from his father.” The deed is of record in Conveyance Book 119, folio 495 in Ascension Parish.

Arthur L. Edmonston died intestate on August 25, 1953, survived by his second wife, Jessie Dixon Edmonston, and four children of that marriage, namely Malcolm Leo Edmonston, Ruth Dale Edmonston, Kirby G. Edmonston, and Arthur Lane Ed-monston; he was also survived by another child, Peggy Faye Edmonston, born of his prior marriage to Elma Newchurch.

At the time of his death, Arthur L. Ed-monston owned an interest in the property as his separate property which he inherited from his parents, and also an interest which he acquired from Ida Edmonston Roddy by the March 29, 1952 deed. Since the deed did not contain the required recitals to make the property separate property, this interest is considered community property.

On December 10, 1964, Wanda G. Ed-monston Mire conveyed her interest to Stafford, of record in Conveyance Book 183, folio 95 in Ascension Parish. On February 4, 1965, Kirby G. Edmonston conveyed his interest to Stafford, of record in Conveyance Book 183, folio 262 in Ascension Parish. On September 3, 1966, Harry L. Edmonston conveyed his interest to Stafford, of record in Conveyance Book 195, folio 12 in Ascension Parish. On April 10, 1967, Joseph R. Edmonston conveyed his interest to Stafford, of record in Conveyance Book 199, folio 646 in Ascension Parish. On February 17, 1968, Jessie Dixon Edmonston conveyed her interest to Stafford, of record in Conveyance Book 206, folio 577 in Ascension Parish. On February 17, 1968, Arthur Lane Edmon-ston conveyed his interest to Stafford, of record in Conveyance Book 206, folio 580 in Ascension Parish. On June 20, 1968, Ruth Edmonston Bourgeois conveyed her interest to Stafford, of record in Conveyance Book 209, folio 843 in Ascension Parish. On September 13, 1968, Malcolm L. Edmonston conveyed his interest to Stafford, of record in Conveyance Book 212, folio 92 in Ascension Parish.

On June 30, 1969, Ida Edmonston Roddy conveyed “All of her undivided one-fifth (1/5) interest in” the subject property to Agnes Edmonston Evans, wife of Rudolph Evans, who purchased for her separate estate. The deed also contains the recital that “The interest of vendor in the above described property having been acquired by her by inheritance from her mother, the late Ida Daigle Edmonston; vendor having previously conveyed the 1/8 interest inherited from her late father, Arthur R. Ed-monston.” The deed is of record in Conveyance Book 218, folio 741, in Ascension Parish.

Peggy Faye Edmonston died in 1969, survived only by her mother, Elma New-church.

By virtue of the foregoing conveyances, Howard M. Stafford, plaintiff-appellee, contends that he is the owner of an undivided 802/1600 interest in the subject property. The defendants-appellants dispute this contention; they assert that this fractional interest is based on an erroneous interpretation of the deed from Ida Edmon-ston Roddy to Arthur L. Edmonston on March 29, 1952.

The resolution of the instant dispute depends on the interpretation placed upon the phrase “All of her undivided one-eighth interest in and to” the subject property contained in the description of the property conveyed by Mrs. Roddy to Arthur L. Ed-monston. It is the plaintiff-appellee’s contention, which prevailed at the trial, that the word “all” controls the disposition, so that the deed in question conveyed all of Mrs. Roddy’s interest in the subject property (which was 13/80 or 26/160 at the time). Defendants-appellants take the position that the fractional expression prevails over the word “all”, so that the deed in question conveyed a 1/8 or 10/80 or 20/160 interest in the subject property.

We agree with appellant’s position that the whole interest of Mrs. Roddy was not conveyed, nor intended to be conveyed. The specific fractional interest recited in the deed controls the interest conveyed. We find support for our holding in the case of Sabatier v. Bowie Lumber Co., 129 La. 658, 56 So. 628, 629 (1911).

In Sabatier the court said:

“The first question to be considered is whether Eugene Sabatier sold to Firmin Thibodaux the whole tract of land, or only an undivided sixth interest therein. It is admitted that, at the date of said conveyance, Eugene Sabatier was owner of the entire tract.
On September 30, 1895, Eugene Sabatier sold to Firmin J. Thibodaux the following described property, to wit:
‘The undivided one-sixth of a certain tract of land, situated in this parish, on the left bank of Bayou Lafourche, at about fifteen miles below the town of Thibodaux, and at forty arpents from the bayou, being the rear or double concession of the tract formerly belonging to J. B. Guedry.
‘The tract of land presently sold being the number twenty-three (23) on the plan of Bougerol, deputy surveyor of the United States, and originally deposited in the office of T. H. Seghers, notary public of New Orleans, and being known as plan number forty-two (42).
‘This land was bought by G. Sabatier from the city of New Orleans, by act before C. E. Fortier on the first of February, 1860.
‘The present vendor sells all of his rights, titles, and interest in the same, being the one undivided one-sixth of said property.’
The argument of counsel for defendant that the whole tract was conveyed is based entirely on the last paragraph above quoted. If that was all the description of the interest conveyed, the authorities cited in behalf of the defendant would be applicable. But, taking the description as a whole, we find that the vendor conveyed specially ‘the one undivided one-sixth of the tract,’ and the subsequent recital is a mere declaration that the interest so conveyed represented the vendor’s entire right, title, and interest in the property. Dr. Sabatier was in error as to the extent of his interest in the tract of land sold to Thibodaux. He supposed that it was one-sixth from the fact that the heirs of Gustave Sabatier were a nephew and five nieces, children of a predeceased brother and sister. Plaintiff inherited one-half of the estate as the sole heir of his father, and the nieces inherited the other half as the sole heirs of their mother. The heirs of the sister, prior to said sale, had renounced the succession, and the plaintiff had become sole owner of the property. But the fact of this renunciation was not known to the plaintiff. But without considering these outside facts, the recitals of the deed suffice to show that Dr. Sabatier was under the impression that he owned only one undivided sixth of the property. We agree with the judge below that the whole property was not conveyed, nor intended to be conveyed.”

The court held that only an undivided one-sixth interest in the property was conveyed by the deed. A similar result was reached by the court in Snelling v. Adair, 196 La. 624, 199 So. 782 (1940); see also Cutshaw, Problems in Description of Land in Louisiana (Comment), 23 La.L.Rev. 561 (1963).

At the time of the disputed conveyance, Mrs. Roddy owned an undivided 1/5 interest in her mother’s one-half of the community and an undivided 1/8 interest in her father’s one-half of the community (or 13/80 or 260/1600). The deed recites that she conveyed “all of her undivided one-eighth interest.” At the trial Mrs. Roddy testified that the one-eighth interest she intended to convey was the property she inherited from her father. Mrs. Roddy’s subsequent actions are consistent with her declared intent and with the recitation in the disputed conveyance. She continued to consider that she had retained a fractional interest in the subject property. She received money on oil leases. And, later she sold her remaining fractional interest to Agnes Edmonston Evans on June 30, 1969, conveying “All of her undivided one-fifth (1/5) interest” in the subject property, with a subsequent recital “the interest of vendor in the above described property having been acquired by her by inheritance from her mother, the late Ida Daigle Ed-monston; vendor having previously conveyed the 1/8 interest inherited from her late father, Arthur R. Edmonston.”

The case of Birch v. Watson, 23 So.2d 345, 347 (La.App., 1 Cir. 1945), indicates that the intention of the parties may be shown by parol evidence and by the acts and conduct of the parties with references to the property conveyed. See also James v. LeBlanc, 95 So.2d 175, 180 (La.App., 1 Cir. 1957).

Accordingly, the judgment of the trial court is amended to recognize the plaintiff and the defendants to be the owners in in-división of the property herein sought to be partitioned which property is described as follows:

A certain tract of land situated in the Parish of Ascension, being the North Half of the East Half of the Southeast Quarter of Section 32, Township 8 South, Range 3 East, Southeastern District of Louisiana, containing forty (40) acres. LESS AND EXCEPT: the south four (4) acres of said property conveyed by Arthur L. Edmonston by deed recorded October 30, 1951 in C.O.B. 94, folio 255 of Ascension Parish.

in the proportion of an undivided 748/1600 interest to Howard M. Stafford, an undivided 320/1600 interest to Agnes Edmon-ston Evans, an undivided 260/1600 interest to Lillie Edmonston Hacker, an undivided 100/1600 interest to the community of ac-quets and gains existing between Agnes Edmonston Evans and Rudolph Evans, an undivided 100/1600 interest to Alton B. Edmonston, and an undivided 72/1600 interest to the heirs of Peggy Faye Edmon-ston. In all other respects the judgment of the trial court is affirmed. The costs of this appeal to be paid by the appellee; all other costs to be borne by the mass, as fixed by the trial court.

AMENDED AND, AS AMENDED, AFFIRMED.