author: BLANCHE, Judge.

text:
    Hugues J. de la VERGNE, II, and Charles E. de la Vergne, Jr. v. Louis V. de la VERGNE, and the Succession of Mrs. Marcelle Menard, widow of Charles E. de la Vergne, Sr.
    No. 11984.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 1978.
    Rehearing Denied Aug. 31, 1978.
    Writ Granted Oct. 26, 1978.
    See also, La.App., 361 So.2d 1236.
    Harry McCall, Jr., Louis R. Koerner, Jr., for Louis V. de la Vergne, defendant and appellant.
    Ernest A. Carrere, Jr., Lucius F. Suthon, New Orleans, for succession of Mrs. Mar-celle Menard de la Vergne.
    C. Ellis Henican, New Orleans, for plaintiffs, Charles E. and Hugues J. de la Vergne, plaintiffs and appellees.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

This case involves a property dispute among brothers. It has been consolidated for the purposes of this appeal with Suit No. 11,990 on the docket of this Court, 361 So.2d 1236, entitled “Louis V. de la Vergne v. Hugues J. de la Vergne, II, and Charles E. de la Vergne, Jr.” Separate opinions and decrees will be rendered in each case.

There are three de la Vergne brothers, Louis, Charles and Hugues. Through mense interfamily transfers, they each have a five-eighteenth interest in the property involved in this litigation. Additionally, Louis de la Vergne is a particular legatee under his late mother’s will for the remaining three-eighteenth interest of the property.

The property consists of some eighty-seven acres between the Bogue Falaya River and the Abita River and includes the pre-Civil War home known as “Villa de la Vergne” located on a bluff overlooking the Bogue Falaya River.

Louis de la Vergne is intensely interested in acquiring full ownership of Villa de la Vergne, and Charles and Hugues de la Vergne apparently have an interest in maximizing their economic interest in the property.

Numerous attempts were made to reconcile their interests. The interactivity of the three brothers has included litigation which preceded the cases before us. That litigation involved such matters as road use and location as well as the enjoining of building a boat marina (slip) on the property.

Our judicial interest in the matter begins with the instant suit filed by Hugues and Charles de la Vergne to partition the property by licitation. The evidence fully supports a finding by the trial judge that the property could not be divided in kind without a diminution in value; and he, accordingly, found that the property must be partitioned by licitation. The court relied on LSA-C.C. arts. 1339 and 1340. An appeal was granted to Louis de la Vergne, defendant-appellant, and before this Court there is only one issue, i. e., whether C. Ellis Heni-can, counsel for plaintiffs-appellees, should have been disqualified to represent appel-lees because of his former representation of appellant, Louis V. de la Vergne, in the same subject matter of the suit. Upon such a finding, appellees suggest that the suit should be “stayed and dismissed.” No error has been urged as to the trial court’s factual finding of the indivisibility of the property in kind required for partition by licitation.

We view this effort to disqualify counsel as no more than the last of the many efforts to forestall the inevitable sale of the property by licitation. Not one word has been written by appellant challenging the finding that the property was not susceptible to division in kind.

On the motion to disqualify, the trial judge found no giving of confidential information by appellant or the misusing of any such information (assuming it was given). In fact, appellant’s testimony was rejected when the trial judge stated that he was not satisfied with the evidence presented by appellant on this issue.

The only issue in the partition suit was whether the property was susceptible to a division in kind, and how the violation of any confidences could affect the outcome of that issue is beyond us.

We decline to disqualify counsel for his alleged participation in the case and affirm the judgment of the trial court. The costs of this appeal are to be cast to appellant.

AFFIRMED.

      . LSA-C.C. arts. 1339 and 1340 provide:
      “Art. 1339. Partition by licitation where division in kind impossible or inconvenient.
      “Art. 1339. When the property is indivisible by its nature, or when it can not be conveniently divided, the judge shall order, at the instance of any one of the heirs, on proof of either of these facts, that it be sold at public auction, after the time of notice and advertisements prescribed by law, and in the manner hereinafter prescribed.”
      “Art. 1340. Property not conveniently divisible
      “Art. 1340. It is said that a thing can not be conveniently divided, when a diminution of its value, or loss or inconvenience of one of the owners, would be the consequence of dividing it.”

      . No specification of error was assigned in accordance with our court rules, and we discern the issue thusly because it was the only point argued in brief.


source: Caselaw Access Project

license: Public Domain

text:
    Louis V. de la VERGNE v. Hugues J. de la VERGNE, II, and Charles E. de la Vergne, Jr.
    No. 11990.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 1978.
    Rehearing Denied Aug. 31, 1978.
    See also, La.App., 361 So.2d 1234.
    Louis R. Koerner, Jr., Harry McCall, Jr., New Orleans, for plaintiff-appellant.
    C. Ellis Henican, New Orleans, for defendants-appellees.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

This is a suit for specific performance and involves the same property which was the subject of the suit to partition by licitation (Appeal No. 11,984), 361 So.2d 1234. It is based on an agreement dated July 9, 1973, which was executed by all three de la Vergne brothers and their mother. The agreement reads:

“Louis buys homesite (700 x 1200 approx) from Uncle Jules & Aunt Claire for y3 of total price from them of $350,000 & from Hugues & Charles their interest based on same purchase price.
“Heirs of C. E. V. buy the remainder (vacant land) from Uncle Jules & Aunt Claire for % of total price and sell part after 9 months to pay purchase price and to acquire new road,
“[signed] Hugues J. de la Vergne, II
“[signed] Mrs. Charles E. de la Vergne
“[signed] Louis V. de la Vergne
“[signed] Charles E. de la Vergne, Jr.”
(Exhibit H-l, Record No. 11,990, p. 4)

Louis V. de la Vergne, plaintiff-appellant, has made the same motion to disqualify C. Ellis Hennican as attorney for his brothers, Charles and Hugues de la Vergne, in this case, and it was given the same treatment by the trial judge as in Appeal No. 11,984.

In further consequence of the efforts to forestall the sale of the property by licitation, a motion was made to stay the execution of the judgment in the partition suit (Appeal No. 11,984) on the grounds that irreparable injury would occur if the property were sold before the suit for specific performance was tried. This motion was also denied.

The case has not been tried on its merits. The judgment refusing the motion to disqualify and to stay execution of the judgment in the partition suit is interlocutory in nature and not appealable in the absence of irreparable injury.

With regard to the question of irreparable injury, it occurs to us that the agreement could have been timely offered as proof of the divisibility in kind of the property in the partition suit, or, alternatively, as a bar to the partition suit since the parties had, by agreement, divided the property in kind. The agreement was never offered in evidence. Now that appellant is unsuccessful in the partition suit, he would utilize the courts to further delay the execution of that judgment until some decision is finally rendered with regard to the agreement for which he now allegedly claims that specific performance is due.

Appellant should have timely utilized his day in court on this issue when the partition suit was tried.

A judgment which does not determine or dispose of any issue constituting a part of the merits of the case is not a final judgment. If such a judgment cannot cause a party to suffer irreparable injury, it is not appealable. LSA-C.C.P. art. 2083; Succession of Fontenot, 340 So.2d 707 (La. App. 3rd Cir. 1976), and the cases therein cited.

For the above reasons, ex proprio motu, we dismiss the appeal, at appellant’s cost.

APPEAL DISMISSED.


text:
    Louis V. de la VERGNE v. Hugues J. de la VERGNE, II, and Charles E. de la Vergne, Jr.
    No. 12084.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.
    Rehearing Denied Aug. 31, 1978.
    Louis R. Koerner, Jr., New Orleans, for plaintiff-appellant.
    C. Ellis Henican, New Orleans, for defendants-appellees.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

This is an appeal from a judgment denying a motion for confirmation of preliminary default.

Plaintiff-appellant brought this suit for specific performance of an agreement involving property in St. Tammany Parish. It is the same property which the trial court had previously decreed should have been partitioned by licitation. Plaintiff was a defendant in the partition suit and let that suit go to judgment without putting at issue the agreement which he now asserts gives him the right to specific performance. After considering the evidence submitted by the plaintiff on confirmation, the trial court denied the motion, stating:

“In reviewing the record in this case and carefully considering the evidence presented on December 12, 1977, the court has concluded that the proof offered does not justify the relief sought. In addition the property that is the subject of this case is the same property that another division of this court has decreed should be partitioned by licitation and although this matter is now on appeal the court observes that the defendant had every opportunity to raise the claim that he asserted in this case, but did not do so for reasons that are not now apparent to the court.” (Record, p. 23)

The agreement sought to be enforced is represented by two writings, both dated the same date, one written by Hugues de la Vergne, II, (Exhibit H-l) and one written by Charles de la Vergne, Jr. (Exhibit C-l). The agreements are identical except for the order of the signatures:

“Louis buys homesite (700 X 1200 approx) from Uncle Jules & Aunt Claire for 4 of total price from them of $350,-000 & from Hugues to Charles their interest based on same purchase price.
“Heirs of C.E.V. buy the remainder (vacant land) from Uncle Jules & Aunt Claire for % of total price and sell part after 9 months to pay purchase price and to acquire new road.”

As we read the agreement, it does not contain any obligatory language which would require the parties to buy or sell according to its terms. At most, it indicates nothing more than an expression of intention between the parties thereto. Furthermore, whatever were the intentions of the parties as expressed by the above agreement, the trial judge could have considered them abandoned, as he took judicial notice of the partition suit in another division of the court which had gone to judgment without appellant having offered the agreement in defense thereof.

For the above and foregoing reasons, we affirm the judgment of the trial court denying plaintiff’s motion for preliminary default, at plaintiff’s costs,

AFFIRMED.

      . This judgment was affirmed by this Court on the 12th day of June, 1978, in Appeal No. 11,984 on the docket of this Court.


author: COVINGTON, Judge.

text:
    Laure Cazes ULMER et al. v. BATON ROUGE GENERAL HOSPITAL et al.
    No. 12014.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 1978.
    Rehearing Denied Aug. 31, 1978.

      David M. Ellison, Jr., Baton Rouge, of counsel for plaintiff-appellee, Laure Cazes Ulmer, et al.
    Robert L. Kleinpeter, Baton Rouge, of counsel for defendant-appellant, Baton Rouge General Hospital, et al.
    Before BLANCHE,. COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge.

Plaintiff, Laure Cazes Ulmer, individually as surviving spouse of George W. Ulmer, Jr., and as provisional tutrix of her minor child, Kristen Lise Ulmer, brought this wrongful death action to recover damages for loss of support, loss of society and mental anguish. The suit was instituted against Baton Rouge General Hospital and its insurer, Argonaut-Southwest Insurance Company.

Following trial by jury and the response of the jury to interrogatories, verdict was entered for the plaintiff, awarding her, individually, the sum of $200,000.00 and, as tutrix of her minor daughter, also the sum of $200,000.00, or a total of $400,000.00. Judgment on the verdict was signed by the trial judge. Defendants’ motion for a new trial was denied. A suspensive appeal has been perfected by the defendants and plaintiff has answered the appeal, asking for an increase in the award to the sum of $600,-000.00. We affirm.

A jury verdict should be maintained unless the record reflects that its conclusions of fact are not supported by the evidence, and/or its application of the law is clearly erroneous. Perrin v. St. Paul Fire and Marine Insurance Company, 340 So.2d 421 (La.App. 4 Cir. 1976). In the absence of manifest error, the appellate court is not to disturb, on appeal, the finding of the jury which has evidence before it furnishing a reasonable factual basis for its verdict, based upon its reasonable evaluation of credibility. See Canter v. Koehring Company, 283 So.2d 716 (La.1973).

The pertinent factual events occurred in 1974. Plaintiff alleged that on May 23, her husband, George W. Ulmer, Jr., was admitted as a patient in the Baton Rouge General Hospital. Mr. Ulmer had been admitted to the same hospital previously, following a boat accident on May 11 in which he had sustained rib fractures and internal injuries. On that occasion, he remained as a patient in the hospital until May 17. Complaining of severe chest pains, he was readmitted on May 23; on that date, emergency surgery was performed to repair a tear in the diaphragm and to remove his spleen. Thereafter, he was taken to the surgery ward where he remained until his death on May 26. An autopsy was performed and it was determined that death was caused by massive bilateral pulmonary emboli secondary to thrombosis of the vessels of the lower extremities, with pulmonary infarction of the right lung.

Plaintiff alleged further that during her husband’s hospital confinement and as a result of his injuries, the operation and the insertion of tubes and other devices in his body, Mr. Ulmer was unable to get out of bed, walk around or otherwise move about in order to maintain his blood circulation. It was also specifically alleged that despite usual and customary nursing procedures appropriate for post-operative patients in the Baton Rouge area with Mr. Ulmer’s history, nurses, employees and other personnel of defendant hospital failed and neglected to periodically change the patient’s position in bed or to move him so as to maintain his blood circulation, but rather allowed him to remain immobile in bed for unreasonably long periods of time. It was also alleged in the petition that on the morning of May 26, 1974, the patient’s temperature and pulse rate increased drastically; but that, despite these and other signs indicating a serious and deteriorating condition requiring immediate attention of a physician, the defendant hospital’s nurses and attendants failed and neglected to call a physician until a substantial period of time had elapsed. Then, the plaintiff, alleging that the aforesaid acts or omissions on the part of the defendant hospital’s employees constituted the proximate cause of her husband’s death, set out in the petition the alleged negligence on the part of the hospital and itemized the alleged damages. The defendants filed a general denial and affirmatively pleaded that the hospital met the standard of care of hospitals in the Baton Rouge area.

The duty owed by a hospital to its patient is to exercise the degree of care, skill and diligence used by hospitals generally in the community. See Garrison v. Hotel Dieu, 319 So.2d 557 (La.App. 4 Cir. 1975), writ denied, 323 So.2d 129 (La.1975); Killgore v. Argonaut-Southwest Insurance Co., 216 So.2d 108 (La.App. 2 Cir. 1968). A hospital must exercise such reasonable care toward a patient as the patient’s known condition may require. If, as the result of the failure of nurses, attendants or employees of the hospital to exercise reasonable care, whether through incompetence or nonperformance of duty, so as not to measure up to the community standard of cafe, a patient dies or sustains injuries, the hospital is liable for the damages sustained thereby. Meynier v. DePaul Hospital, 218 So.2d 98 (La.App. 4 Cir. 1969).

From the verdict, it appears that the trial jury accepted the plaintiff’s allegations that there were acts of negligence on the part of the defendant hospital after the surgical operation. We do not find manifest error in the verdict and judgment based thereon. On the contrary, there is impressive evidence in the record establishing the liability of the defendant hospital.

Dr. Leo Farmer, a general surgeon, testified as to the events leading up to the demise of Ulmer. As stated above, Ulmer was involved in a boating accident on May 11 and was admitted to the defendant hospital at that time, suffering from rib fractures and associated injuries. Ulmer was ambulatory and seemed to have recovered sufficiently for discharge from the hospital on May 17. Subsequently, Ulmer went back to Dr. Farmer on May 23, at which time the patient was observed to be pale, to have a lowered blood pressure and in shock. Dr. Farmer immediately readmitted Ulmer to the hospital, and on the same day he performed surgery to remove the patient’s spleen. As far as could be determined, the operation was successful and the surgeon expected a routine recovery. Dr. Farmer testified as to the duties of nurses required to maintain proper blood circulation of a post-operative patient, as follows:

“Q. ... In Baton Rouge and at the time of this young man’s hospitalization, was it considered the duty of nurses to see that the patient’s circulation is maintained after an operation?
A. . |T|t’s part of the general nursing care, yes.
Q. I had asked you earlier in your deposition, Doctor, on page 15, ‘Is it considered within the province of the nurses to see the patient’s circulation is maintained post-operatively?’ And you said, ‘Yes,’ is that correct?
A. That’s correct.
Q. And I also asked you if they do that without any order at all from the doctor?
A. It’s usually routine, yes.
Q. Now, again, where a patient is in pain and won’t do it himself, are the nurses to do this themselves, physically?
A. I would believe this would be the standard of nursing care, yes.”

Dr. Farmer also testified that a patient should be encouraged to straighten out his legs, because leaving them in a bent position contributes to stasis or cooling of the blood in the lower legs, which would be one of the multiple contributing factors in causing stagnation of the blood and blood clots.

Dr. Farmer examined the autopsy report and stated that it showed the cause of death to be “a massive pulmonary embolus, bilateral pulmonary emboli.”

Dr. Carl F. Tucker, pathologist, testified that he performed the autopsy on Ulmer, and determined that the cause of death was “massive blood clots which formed in the lower extremities, the legs, and migrated through the vessels of the body through the right side of the heart, lodged in his pulmonary arteries.”

Dr. Tucker also testified to certain procedures, such as the use of a strainer or umbrella, that can be used to prevent blood clots from reaching the lungs or heart. He also stated that he had been able to ascertain from certain lesions, known as pulmonary infarctions, that Ulmer had been throwing off blood clots for several days before the terminal or lethal blood clot occurred.

Dr. Tucker further testified that the symptoms of phlebothrombosis (presence of a clot in a vein) include “fever, elevated temperature, elevated heart rate, pain, swelling, discoloration, sometimes cyanosis, which is a purplish discoloration; sometimes the leg turns white; so it can turn either pale or purple; and there’s several signs you can perform, one is called Ho-man’s sign . . . and that’s where you flex the foot backward and if there’s pain that develops in the calf or the back part of the knee called the popliteal area, that’s a sign that makes you anticipate that a person has phlebothrombosis or thrombophlebi-tis (inflammation in a vein usually associated with a thrombus).” He specifically stated that the patient’s chart did not indicate, that any physician had given Ulmer the test for Homan’s sign despite the fact that the patient indicated several of the symptoms of phlebothrombosis. It is significant that Dr. Tucker declared Ulmer to be a high risk for blood clots “due to the fact that he had serious trauma and then he also, first admission he was a high risk because of his trauma; the second admission he was a high risk because of his surgery and his trauma; and he had probably been in bed, I guess, for ten days or two weeks at the time he was admitted the second time.”

Mrs. Camile Salins, a registered nurse and Director of Nurses at Doctors’ Hospital in Baton Rouge, testified that when a patient was unable to move himself because of being sedated or comatose, the nurse physically moves his legs; additionally, the nurse “coughs” and “deep breathes” the patient, in order to exercise his lungs and to get secretions up; if the nurse sees that the patient has put his legs in a bent position, she would straighten them out, in order to promote circulation of the blood. She also testified to certain drastic circumstances under which a nurse would have a duty to call a doctor to attend to a patient, such as when the heart rate increases substantially, temperature rises suddenly and remains high despite routine measures to lower the temperature.

Mrs. Laura Cronin, a registered nurse and Head of Nursing Services at Woman’s Hospital in Baton Rouge gave testimony substantially to the same effect as Mrs. Salins.

Mrs. Cronin stated that when a patient, who has had abdominal surgery for the removal of his spleen, is unable to move himself, requires medication to lower a high temperature which fluctuated sharply, suddenly becomes pale, his abdomen is distended and his breathing rapid, the doctor should be called.

Following the physician, pathologist and two nurses as witnesses were nine nurses, either registered or licensed practical nurses, employees of the Baton Rouge General Hospital. The gist of their testimony was that it was standard care to'ensure that a post-operative patient moves his legs and is turned frequently, about every two hours and that he coughs and deep breathes. These nurses also corroborated the fact that from the symptoms shown by Ulmer, a physician should have been called.

The hospital records, as testified to by these nurses, reveal that no physician was called for Ulmer from the time that Dr. Baughman saw him on May 25th at about 2:00 P.M. until 7:15 A.M. on May 26th, despite the alarming symptoms.

The plaintiff’s final medical witness was Dr. David Aiken, a physician and surgeon, who qualified as an expert on behalf of plaintiff and who testified on direct and on rebuttal. In substance, Dr. Aiken considered that any small blood clots that Ul-mer may have had when he was re-admitted to the hospital on May 23 were not of a size to cause death. Further, he indicated that if Ulmer had not been routinely moved and his legs exercised, this immobility could have contributed to enlargement of blood clots and resulted in his death. Dr. Aiken felt, after examining Ulmer’s chart, that a physician should have been called. He pointed out that upon being called, any prudent physician would have checked out Ulmer’s alarming symptoms and had certain tests for blood clots made.

In opposition to the expert testimony offered by the plaintiff, the defendants offered that of Dr. Paul DeCamp, a surgeon and Chief of Staff of Ochsner Foundation Hospital in New Orleans, the testimony of Dr. Donald Cowick, who was an attending physician, and of Mrs. Mary B. Hardy, Director of Nursing Service at the defendant hospital. The defense also recalled Dr. Tucker.

Dr. DeCamp had reviewed the records of both hospital admissions of Ulmer, as well as the autopsy report. He was of the opinion that the nurses had followed the doctor’s orders in this particular case. He indicated that with reference to moving a patient after a surgical procedure, there is nothing to indicate that such movement does any good. Relative to the possibility of inserting an umbrella into a patient with clots forming, Dr. DeCamp did not recommend such procedure, but that if it is used, the umbrella should be inserted in the patient’s neck rather than his leg.

Dr. Cowick testified he visited Ulmer once on each day he was in the hospital and that he checked the patient’s chart each time. Concerning the nurses’ handling of the patient, Dr. Cowick testified as follows:

“The nursing care of this patient was quite compromised from the standpoint of his severity of illness, the amount of medical monitoring apparatus, the amount of treating apparatus, that had to be attached to this patient, and it’s my impression that the nursing care was carried out to the best of their ability in relation to this, however, I do say that the nursing care was compromised from the standpoint that he had a very severe injury. . . . Each of these limit the standards of nursing care somewhat.”

The parents of Ulmer testified to some extent about their son’s second hospital confinement. They testified that the nurses moved the patient very little.

Laure Cazes Ulmer, the widow, testified to the boating accident and her late husband’s admission and re-admission to the hospital. The patient, according to her testimony, was taken to surgery soon after being re-admitted on May 23 and released from the recovery room to his hospital bed at about 7:30 P.M. The wife remained with Ulmer until 9:00 P.M.; later she returned and stayed with him until the next day. When she left on May 24, one of Ulmer’s parents remained with him until noon on the following day, Saturday, at which time the wife returned to the hospital. She stayed with her husband until his death. She testified that no nurse moved her husband’s legs at any time when she was at the hospital. When questioned about her husband’s condition early in the morning of May 26th, starting just about midnight, she stated that at that time he suddenly turned very white and she immediately called a nurse. She said that her husband was last seen by a doctor, prior to the final emergency, on May 25th about noon or 1:00 P.M. After her husband turned pale, he also complained of pain and nausea. Later on in the morning of May 26th, Ulmer called to his wife that he felt bad and began to vomit. His wife called the nurse. Her husband’s condition continued to worsen and Mrs. Ul-mer was asked to leave the room in order that the nurses and doctors could attend to him. Mr. Ulmer was pronounced dead about 8:10 A.M.

In summary, the testimony of the family was to the effect that they were not instructed about moving or turning the patient and that, except for one time when Ulmer was placed on the side of his bed and his legs dangled over the side on May 25th, he was not moved or turned by the nurses. It was their testimony that the nurses were not cooperative and seemed to think that the family was complaining when they asked that something be done for the patient.

We had previously indicated the amount of the awards made to Laure Cazes Ulmer, surviving spouse of George Ulmer, Jr., and tutrix of the minor child, Kristen Lise, who was born on November 9, 1972. Appellants contend that these awards are excessive and in support thereof rely on several cited cases wherein the courts of this state have granted lower awards under somewhat similar circumstances. On the other hand, as aforesaid, the plaintiff seeks an increase in the awards.

In Miller v. Thomas, 258 La. 285, 246 So.2d 16, 19 (1971), the Supreme Court stated the well-settled principle that in assessing damages much discretion must be left to the judge or jury, LSA-C.C. art. 1934(3):

“From these decisions, two principles emerge: (1) To modify the amount of an award for general damages, an appellate court must find that the trial judge or jury has abused the ‘much discretion’ accorded by the codal provision; (2) The awards in other cases serve only as an aid in determining whether there has been an abuse of discretion and rivet no steel frame of uniformity.”

In the case of Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), the Supreme Court expressed the way to ascertain whether the jury had abused its discretion in the following language:

“Since the jury does have, under the law, much discretion in fixing damages, the appropriate procedure for testing whether the jury abused its discretion is to determine whether the award can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the jury.”

The Supreme Court has also set forth the rule of appellate review as it applies to awards of general damages in the case of Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974), as follows:

“The appellate review of awards for general damages is limited to determining whether the trial court abused its great discretion. The adequacy or inadequacy of an award should be determined on the basis of the facts and circumstances peculiar to the case under review, having in regard also that the trier of fact has the advantage of seeing the witnesses and evaluating their testimony, including that of residual pain. The awards made in other cases provide no scale of uniformity; their use is limited to serving as an aid to determine, if the present award is greatly disproportionate to similar awards (if truly similar), whether an issue of abuse of discretion may exist in the present case. In any event, an abuse of trial-court discretion must be clearly demonstrated by the record before an appellate court will tamper with an award of general damages.”

See also Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977).

Mrs. Ulmer testified as to the changes brought about in her life, and her daughter’s life, by the death of George W. Ulmer, Jr. The family was close-knit and of a sharing nature. He was a member of the Church of Jesus Christ of Latter Day Saints and taught Sunday School. He had been an insurance adjuster, was selling insurance at the time of his death and was doing well in his job. The wife was supported in her testimony by the young man’s parents and two family friends.

Dr. George R. Rice, a professor of Economics at Louisiana State University, testified as to the economic loss due to the death of Ulmer. He projected the earnings of the decedent from his present earnings, taking into consideration inflation, salary increases and the work-life expectancy. Dr. Rice used a work-life expectancy of 31V2 years, and opined that the economic loss to Mrs. Ulmer and the child amounted to $523,-000.00.

We have considered the awards made in the instant case in light of the well-established rule and find no abuse of the much discretion vested in the jury. The awards are within the bounds of the jury’s discretion; therefore, they will be neither lowered nor increased by this Court.

The appellants objected to the testimony of witnesses who were not listed on the pre-trial order or furnished in response to interrogatories, and objected to the trial court’s denial of a continuance. There is no merit to this objection and the trial court did not abuse its discretion in such denial. The local rules of court, which appellants claim were not adhered to, are intended to aid the orderly conduct of litigation and are not to be construed so literally as to defeat their intended purpose. Caston v. Woman’s Hospital Foundation, Inc., 243 So.2d 872 (La.App. 1 Cir. 1971).

The record reflects that counsel for appellants was furnished with the names of several additional witnesses more than a week prior to trial.. No witness, either lay or expert, was of the type which counsel would not expect to be used in a case of this nature. The record supports the conclusion that counsel for appellants ably questioned all witnesses and that appellants were in no way prejudiced. Moreover, even if the objected-to witnesses had not been allowed to testify, there is other ample evidence in the record to support the jury’s award.

For the reasons assigned, the judgment appealed from is affirmed at appellants’ costs.

AFFIRMED.


text:
    Emily FRANCIS v. E. BROUSSARD and Maryland Casualty Insurance Company.
    No. 12015.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 1978.
    Rehearing Denied Aug. 31, 1978.
    Writ Refused Oct. 20, 1978.
    Joseph J. Weigand, .Jr., Houma, counsel for plaintiff and appellee.
    Paul R. Wimbish, Houma, counsel for defendants and appellants.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

This is an action for damages wherein plaintiff, Emily Francis, seeks to recover for personal injuries received by her as a result of being struck by an automobile on April 18, 1975, while she was standing in the northbound lane of Louisiana Highway 57 (also known as “Grand Caillou Road”).

The automobile involved in the accident was owned and operated by the defendant, Eno Broussard, and insured by the defendant, Maryland Casualty Insurance Company.

The trial judge piece-mealed the trial, hearing first the issue as to liability. After finding the defendants liable, he then held a trial on the damages allegedly sustained by plaintiff and awarded her $24,921.85 in general damages. The defendants have appealed from these judgments. We reverse.

In his “Finding of Facts and Reasons for Partial Judgment” the trial judge found that Eno Broussard was negligent. From our review of the evidence, we find such a determination to be manifestly erroneous.

Eno Broussard testified that he was traveling north on Louisiana Highway 57 at approximately thirty-five miles per hour and was in the vicinity of Authement Ice House on the evening when the accident occurred. He was familiar with the road, living only a short distance away. In this particular area the highway was two lane, paved and had streetlights. The time of the accident was established as approximately 8:35 P.M. Broussard further testified that just prior to the accident he was approaching a vehicle which was proceeding south on the highway and he was temporarily blinded by its lights.

Upon being blinded by the lights, Brous-sard said that he took his foot off the gas pedal; and when the lights of the oncoming vehicle cleared him, he saw the plaintiff immediately in front of him in his lane of travel. He estimated that at this time he was no more than twenty feet away and immediately applied his brakes, leaving some sixteen feet of skid marks. Broussard claimed that he traveled no more than one or two feet after the impact, and this was corroborated by the state trooper who investigated the accident.

Mrs. Marie Broussard, defendant’s wife, was riding in the passenger seat of the automobile; and she likewise testified to the incident of meeting the vehicle and being blinded by its lights. She said that just as the vehicle, which she believed to be a truck, passed that she noticed the plaintiff near the center of the highway, that she was walking into their lane of travel with her hands in the air and that they were too close to avoid hitting her.

An independent witness to the accident was Paul Gregoire, a friend of the plaintiff who lived only two doors from plaintiff’s home. This witness verified that a blue truck was proceeding south on Louisiana Highway 57 and was meeting the Broussard vehicle. Gregoire observed the plaintiff proceeding from one side of the highway to the other. He stated that plaintiff walked in front of the blue truck that was traveling south, and in order for the driver to miss her, he almost hit the ice house. According to his testimony, plaintiff then turned around and started going toward the north lane while the Broussard vehicle was approaching and it then struck her. His testimony corroborates that of Brous-sard and his wife.

Beyond any question, the evidence showed that plaintiff was in an intoxicated condition. It was stipulated at trial that Mrs. Elaine Defelice, if called as a witness, would testify that a short time before the accident plaintiff stood in front of the De-felice car and asked Mrs. Defelice to run over her. This witness would have further testified that plaintiff had a strong odor of alcohol and was somewhat incoherent.

Plaintiff was also observed by Gregoire to be in the highway hollering, wandering about and raising her hands up in the air. He called the police and asked them to contact her for her own safety. Since he and plaintiff were friends, he did not want to talk to her himself for fear it might cause trouble but called the police. In describing the accident, he stated:

“Q Now, you say that right before the accident happened you saw a blue truck coming south?
“A Yes, sir.
“Q And what did Mrs. Francis do?
“A She walked toward the truck, the truck went off of the highway, towards the ice plant, almost hit the ‘pressure’ to get back on the highway so he didn’t hit Mrs. Francis.
“Q I see. And then how soon after that did Mr. Broussards [sic] car come along?
“A Just when the truck turned to go back on the highway Mr. Broussard was coming down the bayou and he hit her.” (Record, p. 160)

From a reading of plaintiff’s testimony, it is obvious that she intended to cross from one side of the road to the other. At one point she testified as follows:

“Q Okay, you walked out on the road and some way you turned around and saw the car, right?
“A Yes.
“Q Now, why didn’t you get out of the way?
“A Well, the car was too close.” (Record, p. 142)

We conclude from the testimony of both Gregoire and the plaintiff herself that plaintiff was attempting to cross the road at the time she was hit by the Broussard car. In so doing she first created an emergency to the southbound vehicle, causing him to run off the road in an attempt to avoid her. Thereafter she headed back into Broussard’s lane of travel at a time when he was blinded by the lights of the truck, and when he did see her, it was too late.

In his Reasons for Partial Judgment, the trial judge stated:

“Trooper Toups testified that the defendant, Mr. Broussard, told him that there was an automobile to his front when he veered to the left to avoid something. The Trooper further related that Mr. Broussard stated that he did not veer to the left because he didn’t have time. The Trooper further testified that Mr. Broussard did not tell the Trooper that he was blinded by the lights of a car going in the opposite direction.
“Thus, the defendant, Mr. Broussard, was directly impeached by the Trooper, called as a witness by the defendants. If what the Trooper states is true, then there can be no question that Mr. Brous-sard was put on notice that something was on the road and he failed to veer to the left and/or stop to avoid the accident. Under this set of facts the defendant driver was clearly negligent.” (Record, pp. 29, 30)

In the light of the testimony of Brous-sard, his wife and an independent witness, we believe that the trooper must have been mistaken in his testimony and must have been referring to the blue truck described by Gregoire. The driver of the blue truck would have been unable to veer to the left because of the oncoming Broussard vehicle. We are dutybound to make an effort to reconcile the discrepancy in testimony before discrediting Broussard as a liar and believe this to some extent reconciles or explains how the trooper could have been mistaken. In any event, the preponderance of the evidence is that Broussard was meeting a vehicle rather than following one and that the trooper was mistaken concerning what he believed Broussard had told him.

With regard to the absence of the driver of the blue truck, it was explained at trial that he was not available to testify. The state trooper, however, acknowledged that he talked to the driver of the vehicle that he described as being directly in front of the Broussard vehicle.

From the foregoing testimony, it is obvious that defendant Broussard was presented with a sudden emergency created by the plaintiff in walking out into the highway in front of two oncoming cars, causing one to veer off the highway and placing herself in a position of peril at a time when Broussard did not have a reasonable opportunity to observe her or notice her perilous predicament.

We have great compassion for plaintiff, inasmuch as the record showed that she is a widow whose husband was also killed while walking on the highway and that she was left with eighteen children. However, under the circumstances, we are of the opinion that the evidence does not support a finding that Broussard was negligent in failing to observe plaintiff in time to avoid the accident.

For the above reasons, the judgment of the trial court is reversed, and judgment is rendered dismissing plaintiff’s suit at her costs.

REVERSED AND RENDERED.


text:
    Daniel A. OLIVER v. MILLIKEN & FARWELL, INC., et al.
    No. 12017.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 1978.
    Rehearing Denied Aug. 31, 1978.
    Writ Refused Sept. 1, 1978.
    See also, La.App., 290 So.2d 738.
    Ashton L. Stewart, Baton Rouge, counsel for plaintiff-appellant.
    Victor Sachse, III, R. Gordon Kean, Jr., Baton Rouge, Paul G. Borron, Plaquemine, Joseph W. Cole, Jr., Philip N. Pecquet, Port Allen, Gordon M. White, Gerald L. Walter, Jr., Baton Rouge, Felicien Y. Lozes, Nathaniel Phillips, Jr., New Orleans, Donald L. Peltier, Thibodaux, Stephen P. Dart, St. Francisville, counsel for defendants-appel-lees.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge.

Plaintiff, Daniel A. Oliver, filed this suit on May 26,1969 against defendant, Milliken & Farwell, Inc., to determine the rights of the parties to the alluvion which had formed on the Mississippi River in front of their adjacent properties, which fronted on the river. Thereafter, Oliver joined as defendants all other property owners in front of whose properties this alluvion had formed, Davis (Willie, Ronald and Gerald), Devall Planting Company, Inc. (which is now Harry L. Laws and Company, Inc.), Joan Seidenbach, et al, Mrs. Ina Mae Morris, et al, and Ashland Plantation, Inc. This alluvion is known as Solitude Point, and as of the time suit was instituted, contained 4,293.74 acres. The real value of ownership in Solitude Point stems from the frontage on the Mississippi River, although many mineral leases have been granted by the several parties, and it has a present value also for mineral purposes. The evidence is that the lands of the riparian owners were confirmed in 1805 by the United States to the ancestors in title to the parties, and that this alluvion began to form in front of certain of these lands in 1805.

The trial court held that it was required to divide the alluvion equitably and rendered an interlocutory judgment on May 31, 1973. Oliver appealed the interlocutory judgment on the grounds that it constituted instructions to the surveyor to fix the boundary lines in the division of the allu-vion, and that this would cause Oliver irreparable injury in a final judgment when rendered.

This Court affirmed the interlocutory decree on February 11, 1974, reported at 290 So.2d 738 (La.App. 1 Cir. 1974), writ denied, 294 So.2d 549 (La.1974), holding that:

“Viewed as a whole, the frontage to frontage method would produce the fairest results for all the riparian owners in this case.”

The trial court, after affirmation of its interlocutory judgment, ánd denial of writs by the state Supreme Court, proceeded by ex parte order dated September 4, 1974, to appoint Brown & Butler, engineers, to survey the alluvion in order that a division of this alluvion could be made among the several riparian owners.

This aspect of the instant case commences with this order directing the court-appointed engineers to allocate the alluvion among the several riparian owners on the following basis:

“(a) Frontage to Frontage as defined in Hogue, 241 La. 407, 129 So.2d 194 (1960).
(b) The original frontage line to be determined as the bank lines of maximum westward recession of the Mississippi River reached by the River from 1836 to the present date as recorded with the 1836 land survey and subsequent river surveys. This original frontage line follows with the meanders recorded in the 1836 land survey field notes from section 5 through section 16; thence with the bank line of maximum westward recession as recorded with the official Mississippi River Surveys to the lower end of the lands involved in this suit.
(c) Each owner’s proportionate amount of that original frontage shall be his or its pro-rata share of the present frontage; the present frontage shall be determined by an actual survey of the frontage as it now exists.”

After lapse of a period of time, the surveyor carried out the order of the trial court. The surveyor’s map, dated November 30, 1976, and the surveyor’s report, dated December 10, 1976, were annexed to and made part of the final judgment of the district court, viz:

“It is therefore the judgment of this Court that the division of accretion (allu-vion) be made in accordance with the map and report herewith attached.”

The judgment also ordered that costs be assessed as proportionately computed, and taxed the surveyor’s fee as part of the court costs.

A new trial was applied for by motion of defendant Davis and plaintiff Oliver; it was granted, but limited to the method of division used by the surveyor to arrive at the allocation of the alluvion, and the computation and assessment of the costs.

On the hearing for a new trial, the district court determined that the engineers had followed the orders of the Court, except for the allocation of court costs, and signed a judgment to that effect dated November 29, 1977, from which judgment defendant Davis and plaintiff Oliver have appealed.

The primary contention of both appellants is that the surveyor failed to follow the trial court’s order, which we have set out above, in allocating the alluvion to the respective riparian owners.

The legislature has early established by law an aleatory relationship between the State and owners of the soil situated on the edge of a river or stream, so that by chance either may gain or lose. LSA-C.C. arts. 509, 510. If alluvion is formed in front of the property of more than one riparian owner, it is to be divided between or among them as the case may be. LSA-C.C. art. 516. In the event additional alluvion is formed by accretion in front of another riparian property, of course, a different allocation may be made. The rule in Jones v. Hogue, 241 La. 407, 129 So.2d 194 (1960), is not a fixed formula applicable to all situations. The Supreme Court made this clear when it stated:

“In sum, when alluvion formed in front of the estates of riparian owners is to be divided, two objects, insofar as possible, are to be attained: (1) Each owner should receive a fair proportion of the area of the alluvion, and (2) each should receive a fair proportion of the new frontage on the water. Because of the varying conditions which obtain in different cases, no one method of effecting a division can be pr'escribed which will not in some instances result in substantial inequities. The courts can therefore do no more than take each case as it is presented and order an apportionment by the method which will most nearly attain these two objects and do justice between the parties to the particular case.”

While when this case was first before the trial court, intermediate appellate court and state supreme court, they were in a position to argue for their favorite formula: frontage-to-frontage, frontage-to-acreage, a combination of those two formulas, or some entirely new formula, for the allocation of Solitude Point, the parties are no longer in such a position. The law of this case is that the appropriate formula to apply is “frontage-to-frontage.”

The frontage-to-frontage formula, although discussed in the Hogue case, was ultimately found not to be applicable to those particular facts. The formula is clearly stated in the old case of Newell v. Leathers, 50 La.Ann. 162, 23 So. 243 (1897):

“What is of consequence is the extent of the old frontage of the tracts on the water course, and from this is to be determined the extent of the new frontage on the water course. This excludes the idea of a proportionate area or acreage system of division between the several tracts fronting on the alluvion to be divided. Each proprietor of the original tracts takes the quantity of alluvion that may be between the lines of his old frontage on the water course, measured forward to the new frontage. The lines by which the new frontage is reached may be parallel, or convergent or divergent, according as the extent of the newly-formed water line may be the same in the one case, or less in the other, or greater in the third, than the ancient water line of the tracts.”

As stated before, the district court in the earlier stages of this litigation used the “frontage-to-frontage” formula; this court affirmed; and our Supreme Court denied writs. Messina v. Michael, 324 So.2d 837 (La.App. 1 Cir. 1975), writ denied 326 So.2d 381 (La.1976), held that a division of . allu-vion allocating the new frontage on the basis of the old frontage was equitable and harmonious with the Hogue principles.

Consequently, the argument of the appellants that the division by the frontage-to-frontage formula gives each substantially less acreage is only an attempt to reargue the equities in an effort to persuade this Court that the division of Solitude Point should have been with regard to some other formula.

As the various maps filed in evidence indicate, at the time of the institution of this suit, the alluvial deposit known as Solitude Point was attached to the southerly portion of Section 5 and to Sections 6 through 20, Township 6 South, Range 12 East, West Baton Rouge Parish, Louisiana. In preparing the map showing the division of the alluvion, the engineering firm appointed by the district court to perform such work was required by the court to determine the “original frontage line” of the riparian properties. Insofar as the properties located in the northerly portion of Solitude Point are concerned, the “original frontage line” was decreed by the court to correspond to the 1836 governmental bank line survey. The map of survey, which was approved by the district court, discloses that the surveyor determined the subject line to be that frontage to which alluvion was presently attached. Properly, he did not include in the original frontage line the northerly portion of Sections 5 or 4, to which alluvion had been attached in 1836, but both of which had completely eroded away at the time this suit was instituted. It seems to us to be quite clear from the Hogue case, as well as the previous opinion rendered by this Court in the present matter, that the division of alluvion among the several riparian owners is to be made as the alluvion existed at the time the division was sought, and not as it may have existed at some earlier time. Only that portion of a riparian owner’s frontage to which alluvion was attached when the allocation of allu-vion is sought is to be considered in determining the extent of the owners’ frontage lines pursuant to Article 516 of the Civil Code.

Article 516 is applicable where alluvion is formed in front of the property of several owners. The Article provides:

“If an alluvion be formed in front of the property of several riparian proprietors, the division is to be made according to the extent of the front line of each at the time of the formation of the alluvion.”

This article must be construed consistently with LSA-C.C. art. 509:

“The alluvion belongs to the owner of the soil situated on the edge of the water

The alluvion to be divided can only be that which has been formed by accretion to the existing frontage at the time division is sought. Frontage which has disappeared, such as in Section 4 and the northerly portion of Section 5, can not be considered in allocating alluvion in the instant case. The district court, in reaching its decision embodied in the May 31, 1973, judgment, and this court in affirming said judgment, followed this interpretation. Paragraph (b) of said judgment refers to Section 5, part of which remains, but does not refer to Section 4, which no 'longer exists.

From a reading of the testimony of Harvey Theriot, who actually surveyed the property in question and allocated the allu-vion as an employee of the engineering firm appointed by the district court to perform such tasks, and a comparison of his report with the district court’s order of May 31, 1973, we find, as did the trial judge, that the surveyor complied with his order in allocating the alluvion. Each riparian owner’s alluvion frontage on Solitude Point was computed using the same percentage, determined by dividing his 1836 survey frontage length by the total length of the 1836 survey and maximum westward recession of the subject properties.

Accordingly, we find that the 4,293.-74 acres in the alluvion known as Solitude Point shall be divided in accordance with the annexed “Map Showing Division of Accretion on Solitude Point in Accordance with Judgment of the 18th Judicial District Court, Dated May 31, 1973, prepared by Brown & Butler, Consulting Engineers, Baton Rouge, Louisiana, dated November 30, 1976,” which division by acreage is as follows:

Daniel A. Oliver - 768.48 acres
Milliken & Farwell, Inc. - 2314.26 acres
Ashland Plantation, Inc. - 446.06 acres
Mrs. Ina Mae Morris, et al 218.54 acres
Devall Planting Company, Inc. (Harry L. Laws & Co., Inc.) 380.80 acres
Joan Seidenbach, et al ,112.01 acres
Willie Hugh Davis, et al 53.59 acres
4293.74
The division by frontage is as follows:
Original Frontage, 1836 New Frontage
Daniel A. Oliver 6,776.28' 9,521.76'
Milliken & Farwell, Inc. 6,430.81' 9,036.43'
Ashland Plantation, Inc. 1,855.86' 2,607.81'
Mrs. Ina Mae Morris, et al 1,196.28' 1,680.99'
Devall Planting Company, Inc. 3,066.42' 4,308.86'
Joan Seidenbach, et al 1,831.26' 2,573.24'
Willie Hugh Davis, et al 2,329.47' 3,273.32'
TOTALS: 23,486.38' 33,002.52'

The trial court in its judgment after new trial decreed that the fee of Brown & Butler, Consulting Engineers, which amounted to $53,200.00, be taxed as court costs, and be assessed and paid by apportioning one-half thereof among the parties in proportion to the acreage allotted to them by the division of the alluvion, and one-half thereof among them in proportion to their new river frontage, and that other court costs be taxed in accordance with the interlocutory judgment rendered May 31, 1973, among the parties in proportion to their new river frontage. We agree with this assessment of the costs. Appellant Oliver does not assign as error the allocation of costs. The appellees do not discuss the allocation of costs in their briefs. Only appellant Davis relates his argument back to a re-argument of the formula to be used in allocating the alluvion and is without merit.

For the foregoing reasons, we affirm the trial court’s judgment. The costs of this appeal are to be paid by the appellants Oliver and Davis, each to pay one-half of such costs.

AFFIRMED.

Appendix to follow.

APPENDIX


text:
    JUBAN PROPERTIES, INC. v. Robert G. CLAITOR.
    No. 12263.
    Court of Appeal of Louisiana, First Circuit.
    June 16, 1978.
    Martin C. Schroeder, Jr., Baton Rouge, for defendant-relator.
    E. Drew McKinnis, Baton Rouge, for plaintiff-respondent.
    Before PONDER and LOTTINGER, JJ.
   Defendant in a Petition for Writs of Cer-tiorari, Prohibition and Stay Order seeks “a rule or order directed to Juban Properties, Inc. and the Honorable Melvin A. Shortess, issuing a stay order pending application for certiorari by Robert G. Claitor to the United States Supreme Court; further in connection with this stay order, an order mandating Juban Properties, Inc. to remove the fence constructed on the easterly fifteen (15) feet of its property . . . ”.

This court rendered judgment for plaintiff on December 28, 1977, 354 So.2d 672. An application for rehearing was denied on February 13, 1978, La., 356 So.2d 440. The Supreme Court of Louisiana on March 27, 1978 unanimously denied an application for writ of review.

Applicant is asking this court to stay a final and executory judgment and in conjunction therewith to issue a mandatory injunction to a party who is acting under a final judgment.

We find it inappropriate to do so.

Application for stay order and mandatory injunction denied.


text:
    Allie P. CHAUVIN, III v. The HIGHLANDS INSURANCE COMPANY.
    No. 12018.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 1978.
    Rehearing Denied Aug. 31, 1978.
    Writ Refused Oct. 20, 1978.
    Clement Story, III, Lafayette, of counsel for plaintiff-appellant, Allie P. Chauvin, III.
    Edward C. Abell, Jr., Lafayette, of counsel for defendant-appellee, The Highlands Ins. Co.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

Plaintiff-appellant, Allie P. Chauvin, III, has appealed a trial court judgment granting a motion for summary judgment, dismissing defendant-appellee, Highlands Insurance Company, from the suit.

On June 2, 1976, plaintiff was involved in an automobile accident with Irvin J. Davidson. Mr. Davidson had been covered under certain liability policies issued by Highlands Insurance Company to Irvin J. Davidson d/b/a Davidson Valve Lubrication Service. Following a telephone conversation with a representative of Highlands concerning the cancellation of these policies, Mr. Davidson mailed the policies to the insurance agency, together with an undated letter stating that Davidson Valve Lubrication had been out of business since January 1, 1976, and including the cogent sentence, “Please cancel my insurance.” The policies and letter were received at the agency on May 7,1976. Subsequent to receiving the letter on May 7, 1976, the company cancelled the insurance policies effective January 1, 1976.

After the accident of June 2, 1976, plaintiff filed the instant suit against Highlands. The motion for summary judgment subsequently filed by Highlands was granted.

The sole question is whether there is any genuine issue as to whether the liability policies were effective on the date of the accident which occurred on June 2, 1976.

The record clearly establishes that Mr. Davidson surrendered his policies to the insurer through its agent and that he requested their cancellation in writing. The written request was undated, but the evidence shows that the letter was received in the office of the insurance agency on May 7, 1976. We have no difficulty in concluding from the evidence that the intent of the insured was to cancel his insurance coverage and that the cancellation was effective no later than the receipt of the policies by the insurer’s agent on May 7, 1976.

The insurance contracts provided that the policies were cancellable at the option of the insured:

“11. Cancellation: This policy may be cancelled by the named insured by surrender thereof to the company or any of its authorized agents or by mailing to the company written notice stating when thereafter the cancellation shall be effective. This policy mat be cancelled by the company by mailing to the named insured at the address shown in this policy, written notice stating when not less than ten days thereafter such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice. The time of surrender or the effective date and hour of cancellation stated in the notice shall become the end of the policy period. Delivery of such written notice either by the named insured or by the company shall be equivalent to mailing.” (Policy No. BGA 15 18 50 of Highlands Insurance Company)
“(m) Cancellation. This policy may be cancelled by the Named Insured by mailing to the Company written notice stating when thereafter the cancellation shall be effective. This policy may be can-celled by the Company by mailing to the Named Insured at the address shown in this policy written notice stating when not less than 30 days thereafter such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice. The effective date and hour of cancellation stated in the notice shall become the end of the policy period. Delivery of such written notice either by the Named Insured or the Company shall be the equivalent to mailing.” (Policy No. XS 72 09 22 of Highlands Insurance Company)

As may be seen from the foregoing, the policies were cancelled by the insured by notice and, in the case of Policy No. BGA 15 18 50, delivery of the policy as provided for by the cancellation clause designated under provision “11” thereof.

Statutory authority for the cancellation of a policy by an insured is found in LSA— R.S. 22:637:

“A. Cancellation by the insured of any policy which by its terms is cancella-ble at the insured’s option or of any binder based on such policy may be effected by written notice thereof to the insurer and surrender of the policy or binder for cancellation prior to or on the effective date of such cancellation. In event the policy or binder has been lost or destroyed and cannot be so surrendered, the insurer may in lieu of such surrender accept and in good faith rely upon the insured’s written statement setting forth the fact of such loss or destruction.
“B. Following such cancellation the insurer shall pay to the insured or to the person entitled thereto as shown by the insurer’s records, any unearned portion of any premium paid on the policy as computed on the customary short rate or as otherwise specified in the policy. If no premium has been paid on the policy, the insured shall be liable to the insurer for premium for the period during which the policy was in force.
“C. The surrender of a policy to the insurer for any cause by any person named therein as having an interest insured thereunder shall create a presumption that such surrender is concurred in by all persons so named.”

Counsel for plaintiff argues that Mr. Davidson received no notice that the policies were cancelled until after the accident and notes that the company made the cancellation effective on a pro rata basis retroactive to January 1, 1976. We regard this as irrelevant to the central question of whether or not there was coverage for Mr. Davidson on June 2, 1976, the date of the accident. Mr. Davidson was not entitled to any notice of cancellation when he himself cancelled the insurance contracts with written notice and surrender of the policies. The return of the unearned premium was in accordance with both the policy provisions and the statutes referred to hereinabove, and the'fact that it was made retroactive to January 1, 1976, when Mr. Davidson claimed the company went out of business, rather than May 7, 1976, when the policies were surrendered was no more than a gratuity.

For the above reasons, the judgment of the trial court maintaining the motion for summary judgment is affirmed, with costs assessed to plaintiff-appellant.

AFFIRMED.


text:
    William F. MULLER v. A. K. DURNIN CHRYSLER-PLYMOUTH, INC., et al.
    No. 12029.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 1978.
    Rehearing Denied Aug. 31, 1978.
    Writ Refused Oct. 20, 1978.
    John D. Brady, Baton Rouge, of counsel for plaintiff-appellee William F. Muller.

      Carey J. Guglielmo, Baton Rouge, of counsel for defendant-appellant Chrysler Corporation & Chrysler Motors Corp.
    James C. Lopez, Baton Rouge, of counsel for defendant-appellee A. K. Durnin Chrysler-Plymouth, Inc.
    Herschel C. Adcock, Baton Rouge, for amicus curiae.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

Defendants-appellants, Chrysler Motors Corporation and Chrysler Corporation (hereinafter referred to as “Chrysler”), are appealing the trial court judgment in a redhibition action.

The trial court found in favor of plaintiff-appellee, William P. Muller, granting a $1,000 reduction in the purchase price of a 1975 Plymouth Valiant Brougham, awarding damages of $500 for inconvenience caused the plaintiff, and attorney’s fees of $1,000. The $1,000 reduction in price was cast solidarily with A. K. Durnin Chrysler-Plymouth, Inc., defendant-appellee (hereinafter referred to as “Durnin”); but Dur-nin’s third party demand was allowed against Chrysler. The damages awarded for inconvenience and the attorney’s fees were cast against Chrysler.

Plaintiff bought a new Plymouth automobile from Durnin, a Chrysler dealer. He took the vehicle to the dealer numerous times for repairs and finally formally tendered it to Durnin as not being fit “for the purpose for which it was intended.” The instant suit followed the dealer’s refusal to accept the tender.

The specifications of error alleged by Chrysler are that the trial court erred in:

(1) awarding an excessive amount as a reduction of the purchase price,
(2) making an award for inconvenience,
(3) awarding attorney’s fees, and
(4) awarding indemnification to Durnin on the third party demand.

The trial judge neither committed manifest error nor abused his discretion in awarding the $1,000 reduction in the purchase price. Absent a showing of manifest error or abuse of discretion, we will not disturb the finding. Canter v. Koehring, 283 So.2d 716 (La.1973), and its progeny.

Counsel for Chrysler has cited in his brief the testimony of Alvin J. Doyle, an expert witness for plaintiff-appellee, where he estimated that the total cost for the repairs would not exceed $500. Doyle’s repair estimates were “ball park” figures, according to him, which we believe the trial judge gave weight. The trial judge also took into account other considerations to determine, in his discretion, the amount of the reduction. These included the nature and variety of the repairs and the frequent inconveniences associated therewith. At best, the reduction which a trial judge must decree is a theoretical difference between the purchase price and the price a reasonable buyer and seller would have agreed upon if they had known of the defects. This necessarily required the discretion of the trial judge which we have found he did not abuse.

With regard to the judgment of the trial court which awarded plaintiff the sum of $500 for inconvenience, the decision of the Supreme Court in Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976), is dispositive of the matter. This Court has on occasions applied Meador and most recently in Burns v. Lamar-Lane Chevrolet, Inc., 354 So.2d 620 (La.App. 1st Cir. 1977). Accordingly, the award of the trial court in plaintiff’s favor on this issue is reversed.

The third specification of error presents the question of whether an award to plaintiff of attorney’s fees is recoverable when plaintiff has not shown actual knowledge of the defects on the part of the manufacturer.

Article 2545 of the Louisiana Civil Code provides for attorney’s fees if the seller knows the vice of the thing he sells and omits to declare it. The jurisprudence of Louisiana, for over seventy years, has established the presumption that a manufacturer knows the vices of his product and that actual knowledge is not required. See George v. Shreveport Cotton Oil Company, 114 La. 498, 38 So. 432 (1905). In Rey v. Cuccia, 298 So.2d 840 (La.1974), the Court stated:

“Under the 1968 amendment to Article 2545: ‘The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.’ (Italics ours.) A manufacturer is presumed to know of the defects of the products he sells. * * ” (298 So.2d at 847)

To adequately protect the consumer, access to the courts must be afforded. The purchaser who is successful in a redhibitory action will find his award totally insufficient if the plaintiff is then required to pay attorney’s fees for the prosecution of the complaint.

We find no error in the trial court’s award to Durnin on the third party demand. Chrysler takes the position that a contract provision between Chrysler and Durnin limiting the implied warranty of fitness was in existence before 1974 and that the 1974 amendment to Article 2531 of the Louisiana Civil Code preventing manufacturers from limiting their liability to sellers in reconvention cannot be made to apply retroactively without impairing the obligation of contract.

Our reading of the warranty between Chrysler and Durnin reveals that the warranties of Chrysler shall be in effect “from time to time.” Implicit in this statement is a unilateral establishment of warranties by Chrysler which will change “from time to time” and each change, however minor, will constitute a new warranty agreement. Those warranty agreements issued by Chrysler Corporation after the effective date of the amendment to Article 2531 cannot be in contradiction of the terms of Article 2531.

We find that the sale of the vehicle to Durnin occurred on November 6, 1974, which was subsequent to the effective date of the 1974 amendment to Article 2531 (Acts 1974, No. 673, § 1.) There is a burden of proof upon Chrysler to show that, in view of the declaration to change the warranty from “time to time,” there was in existence at the time of the sale a warranty applying to the vehicle which existed prior to the 1974 amendment. This it did not do. The testimony and exhibits are void of any evidence on current warranties. Absent such a showing, any agreement in contravention of the provisions of Article 2531, as amended, would be invalid. As a consequence, we find that there is no impairment in the obligation of contract to allow Dur-nin its third party demand.

For the reasons set forth, the judgment of the trial court awarding plaintiff the sum of $500 for inconvenience is reversed and set aside; and in all other respects the judgment is affirmed. Defendants-appellants Chrysler are to bear the costs of this appeal.

REVERSED IN PART AND AFFIRMED IN PART.

      . The warranty provision as contained in Exhibit Chrysler No. 1 states:
      “WARRANTY
      “Chrysler Corporation’s warranty on new Chrysler passenger cars, as in effect from time to time, will be as set forth in CHRYSLER’S Warranty and Policy Procedure Manual. CHRYSLER will supply sufficient copies of Chrysler Corporation’s then current warranty to DIRECT DEALER to permit DIRECT DEALER, in accordance with DIRECT DEALER’S obligations under Paragraph 7 of this agreement, to provide a copy to each purchaser from DIRECT DEALER of a new Chrysler passenger car. Such warranty will be the only warranty made or deemed to have been made to any person by either CHRYSLER or Chrysler Corporation applicable to products sold under this agreement; it will be expressly in lieu of any other warranty, expressed or implied, including but not limited to, any implied warranty or merchantability or fitness for a particular purpose; and the remedies set forth in such warranty will be the only remedies available to any person with respect to products sold hereunder. Neither CHRYSLER nor Chrysler Corporation assumes or authorizes any other person to assume for either of them any other obligation or liability in regard to such products.”

      . Article 2531 of the Louisiana Civil Code, as amended, provides:
      “The seller who knew not the vices of the thing is only bound to repair, remedy or correct the vices as provided in Article 2521, or if he be unable or fails to repair, remedy or correct the vice, then he must restore the purchase price, and reimburse the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, subject to credit for the value of any fruits or use which the purchaser has drawn from it.
      “In any case in which the seller is held liable because of redhibitory defects in the thing sold, the seller shall have a corresponding and similar right of action against the manufacturer of the thing for any losses sustained by the seller, and further provided that any provision of any franchise or manufacturer-seller contract or agreement attempting to limit, diminish or prevent such recoupment by the seller shall hot be given any force or effect.

        “(Amended by Acts 1974, No. 673, § 1.)”


author: LOTTINGER, Judge.

text:
    A & P BOAT RENTALS, INC., et al. v. Alwynn J. CRONVICH et al.
    No. 12031.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 1978.
    Rehearing Denied Aug. 31, 1978.
    Writ Refused Oct. 20, 1978.

      Thomas S. Halligan, Asst. Atty. Gen., Baton Rouge, of counsel for defendant-appellant, Louisiana Tax Commission.
    Paul G. Moresi, Asst. Dist. Atty., Abbe-ville, of counsel for defendant-appellee, Euda Delcambre, Sheriff & Ex-Officio Tax Collector of Vermilion Parish and Lexie J. Belaire, Assessor of Vermilion Parish.
    Steven F. Griffith, Destrehan, of counsel for defendant-appellee, Julius B. Sellers, Jr., Sheriff & Ex-Officio Tax Collector for St. Charles Parish.
    Stanwood R. Duval, Jr., Houma, of counsel for plaintiff-appellant, A & P Boat Rentals, Inc.
    Jerome J. Barbera, III, Asst. Dist. Atty., Thibodaux, of counsel for defendant-appel-lee, Cyrus Bobby Tardo, Sheriff & Ex-Offi-cio Tax Collector of Lafourche Parish, and Hubert P. Robichaux, Assessor for La-fourche Parish.
    Walter E. Kollin, Metairie, of counsel for defendant-appellant, Lawrence A. Chehar-dy, Assessor of Jefferson Parish.
    Larry C. Pieno, Marrero, of counsel for defendant-appellant, Alwynn J. Cronvich, Sheriff & Ex-Officio Tax Collector of Jefferson Parish.
    Victor E. Bradley, Jr., Norco, of counsel for defendant-appellee, Clyde Gisclair, Assessor of St. Charles Parish.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This ease involves the ad valorem taxation of vessels engaged in offshore oil and gas production. Plaintiffs, Louisiana corporations, are the owners of the vessels being taxed by the defendants, assessors and sheriffs of various south Louisiana parishes, as well as the Louisiana Tax Commission. All of the plaintiffs and several of the defendants are appealing. The trial judge found the vessels owned by the plaintiffs to be taxable and determined the tax situs to be the domicile of the owners. Plaintiffs are appealing the issue of the taxing of the vessels, whereas the defendants are appealing the determination of the tax situs.

The record points out that plaintiffs own various types of vessels fulfilling different functions for oil and gas operations in the Gulf of Mexico. Basically these vessels fall into four categories, (1) crewboats, which act as taxis, (2) standby vessels, which remain with the rigs and platforms, (3) utility vessels, which carry supplies and men between platforms, and (4) survey and drilling vessels, which make surveys and take soil samples. These boats are primarily rented to oil and gas companies who dispatch them from various ports in Louisiana.

In 1975 and 1976 the owners of the vessels paid the ad valorem taxes to the various parishes under protest, LSA-R.S. 47:2110, claiming an exemption under Art. 7, § 21(C)(16) La.Const. (1974). Alternatively, plaintiffs claim that the vessels have no tax situs in Louisiana, that the vessels are constantly engaged in interstate commerce, and that they are, therefore, not subject to taxation by the respective parishes. Further in the alternative, plaintiffs claim that, in the event the vessels are found taxable, they should only be taxed in proportion to the amount of time spent within the state of Louisiana. Finally, plaintiffs additionally claim in the alternative that, in the event the vessels are taxable and not taxable proportionately, the vessels should be valued uniformly and taxed only at the domicile of the owner of the vessels.

In appealing the plaintiffs contend the trial judge erred in finding (1) the vessels were not exempt from ad valorem taxation, (2) the vessels had situs for taxation even though they were engaged in interstate and foreign commerce, and (3) the vessels would not be taxed proportionately to the time spent in the taxing parish. On the other hand, the defendants in appealing argue that the trial judge erred in finding (1) the situs for taxation to be the domicile of the owners of the vessels, (2) the refund of protested taxes to be to the plaintiffs and not to the proper taxing parish, and (3) in taxing court costs against the defendants beyond stenographic cost.

PLAINTIFFS’ ERROR NO. 1

Plaintiffs-appellants argue that these vessels are exempt from all ad valorem taxation since they are involved in the transportation of passengers and goods beyond the seaward boundaries of Louisiana, citing Art. 7, § 21(C)(16) La.Const. (1974) which provides:

“Section 21. In addition to the homestead exemption provided for in Section 20 of this Article, the following property and no other shall be exempt from ad valorem taxation:
«(O * * *
“(16) ships and oceangoing tugs, towboats, and barges engaged in international trade and domiciled in Louisiana ports. However, this exemption shall not apply to harbor, wharf, shed, and other port dues or to any vessel operated in the coastal trade of the states of the United States.”

It is further argued that a significant change was made in the terminology from “overseas trade and commerce” used in Art. 10, § 3, La.Const. (1921) to “international trade” as used in Art. 7, § 21(C)(16) La. Const. (1974). Appellants apparently contend that overseas trade was that between different nations, whereas, they argue that international trade is that beyond the “seaward boundaries” of the state, citing 43 U.S.C.A. § 1312 (1953) which defines seaward boundary of the states, and that state tax laws do not apply to the outer continental shelf 43 U.S.C.A. § 1333 (1975).

Exemptions from taxation are to be strictly construed against the person claiming the exemption, and any plausible doubt is fatal. In like manner, an exemption being an exceptional privilege, it must be clearly, unequivocally and affirmatively established. Ethyl Corp. v. Collector of Revenue, 351 So.2d 1290 (La.App. 1st Cir. 1977), writ refused 353 So.2d 1035 (La.1978).

We do not agree that the delegates to the Constitutional Convention by the changing of the terminology “overseas trade and commerce” to “international trade” intended any change in the meaning of these terms. Appellants have not cited to this Court any debate from the Constitutional Convention in support of this argument, nor have we been able to find any. We are convinced that the delegates intended no distinction, and thus the terminology is synonymous.

“International commerce” or “commerce with foreign nations” has been described at 15 C.J.S. Commerce, § 3 as follows:

“While commerce with foreign nations, sometimes referred to as ‘international commerce’, has been described as commerce of the United States with foreign nations, it has been said to mean commerce between citizens of the United States and citizens or subjects of foreign government, as individuals. It means trade and intercourse in all its branches, and embraces every species of commercial intercourse between the United States and foreign nations, including transportation, and it comprehends transportation from a foreign country into the United States, but is limited to commerce and transactions which, either immediately or at some stage of their progress, are extraterritorial. [Footnotes omitted]”

Since appellants’ vessels do not participate in commercial intercourse with foreign countries, they cannot be found to be “engaged in international trade”.

Appellants next argue that since Art. 7, § 21(C)(16) La.Const. (1974) excludes “coastal trade” from this exemption, and since “coastal trade” means within the three miles limit, that trade beyond the three miles limit is not coastal trade and thus exempt.

Black’s Law Dictionary, Fourth Edition, defines coasting trade as “commerce and navigation between different places along the coast of the United States. Commercial intercourse between different districts in different states, different districts in same state, or different places in same district, on seacoast or on navigable river.”

We find no necessity to determine whether plaintiffs-appellants are engaged or not in “coastal trade” to resolve whether they are eligible for this exemption. The only exemption provided is that for “international trade”, and since we have already concluded that these vessels are not engaged in international trade, they are not eligible for the exemption.

PLAINTIFFS’ ERROR NO. 2

The trial judge in his written reasons said:

“Plaintiffs’ contention that the vessels have no situs in Louisiana, as they are constantly engaged in interstate and foreign commerce lacks merit. First, there is no evidence in the record that these vessels are ‘constantly engaged in interstate and foreign commerce’. Even if there were such evidence, the situs of property for purposes of taxation is the state of the domicile of the owner, unless such property has acquired a tax situs in another state. A State may tax all of the property of a domiciliary corporation, even that property located outside the taxing state, so long as that property is not subject to double taxation. Northwest Airlines v. State of Minnesota, 322 U.S. 292, 64 S.Ct. (1944) 950 [88 L.Ed. 1283]; Central Railroad Co. of Penn. v. Commonwealth of Penn., 370 U.S. 607, 82 S.Ct. 1297 [8 L.Ed.2d 720] (1962).
“There is no indication in the record that these vessels are being taxed anywhere except Louisiana; therefore, these vessels have acquired no tax situs in other states. Since these vessels are being taxed only in Louisiana and there is no contention that any particular vessel is subject to taxation by more than one parish in a particular year, the property is not subject to double taxation. Since it is not subject to double taxation, it follows that Louisiana may tax the property belonging to domestic corporations, no matter where that property is located.
“The tax situs of the vessels in question is the State of Louisiana, the state of domicile of their owners. For that reason, this Court finds that the State of Louisiana may properly levy an ad valorem property tax on these vessels.”
We find no error.

PLAINTIFFS’ ERROR NO. 3

In the alternative the plaintiffs submit that these vessels should be taxed proportionately to the time spent within the coastline of Louisiana, citing LSA-R.S. 47:1982 and Ott v. Mississippi Valley Barge Line Co., 336 U.S. 169, 69 S.Ct. 432, 93 L.Ed. 585 (1949) rehearing denied 336 U.S. 928, 69 S.Ct. 653, 93 L.Ed. 1089 (1949).

LSA-R.S. 47:1982 provides:

“Ferry boats, boats, tugs, barges or other watercraft and all such property used in connection with the water transportation of persons or property of all kinds and character between termini situated in more than one parish or municipality, as defined above, shall be assessed proportionately in each such parish or municipality by the assessing authorities thereof and there subject to taxation by such parish or municipality; provided, that where such ferry boats and such water transportation equipment are situated and operate only within the boundaries of one such parish or municipality such property shall be so assessed and taxed therein only.”

The obvious purpose of LSA-R.S. 47:1982 is to preclude taxation by more than one parish or municipality. In finding this statute not applicable, the trial judge reasoned that these vessels do not travel a more or less fixed route between different parishes. No argument is made that these vessels are taxed by more than one parish. Irrespective the reasoning, we agree that this statute is not applicable to this situation.

We also find that Ott v. Mississippi Valley Barge Line Co., supra, and Pullman’s Palace-Car Co. v. Commonwealth of Pennsylvania, 141 U.S. 18, 11 S.Ct. 876, 35 L.Ed. 613 (1891) are both inapposite in that the vessels attempted to be taxed here are not engaged in interstate commerce.

We, therefore, conclude that there is no Louisiana taxing statute authorizing the proportioning of ad valorem taxes on vessels engaged in offshore gas and oil production, and thus, find no error on the part of the trial judge in refusing to proportion these taxes.

DEFENDANTS’ ERROR NO. 1

The trial judge found the tax situs of these vessels to be the parish of the domicile of the owner by analogizing these vessels to intangibles. Additionally, he justifies his holding by reasoning that since these vessels “may be found at any place at any given time”, they do not receive the contemplated benefits from the taxing parish as envisioned by the legislature, and thus should be taxed at the owner’s domicile.

Things that are corporeal or tangible cannot be incorporeal or intangible, LSA-C.C. art. 460, thus, the trial judge was in error in analogizing these vessels to intangibles.

We are here concerned with property domiciled in Louisiana, and the issue is which taxing authority in this state can levy a tax against these vessels. The power to legislate is vested in the legislature. Art. 3, § 1(A) La.Const. (1974).

It is clear that the legislature intended that all property be taxed in the parish where situated, as of January 1, except where special provision is made that it be taxed elsewhere. LSA-R.S. 47:1952.

We find no justification for us to disregard the expressed intent of the legislature by accepting the argument that these vessels do not receive the same amount of benefits from the taxing parish as property permanently located therein. We concede that the benefits received may be disproportionate, however, there can be no question that benefits are afforded these vessels by the taxing parish. The rectification of any inequities is properly left to the legislature.

Finally, we find no error in the method used by the Louisiana Tax Commission in determining the tax situs parish. The Tax Commission reviews the activities for the month of December of the preceding year, and January of the tax year, to determine the port of operations. We find this to be a reasonable approach when dealing with movable property, and find the trial judge was in error in substituting his own theory.

Therefore, the proper tax situs is that fixed by the Tax Commission, the base of operations of the vessels as of January 1 of the tax year, and as such the judgment of the trial court is reversed.

DEFENDANTS’ ERROR NO. 2

Since we have hereinabove determined the trial judge was in error in establishing the tax situs as the domicile of the owner, we reverse that portion of the trial court judgment which ordered a refund of the taxes paid under protest.

DEFENDANTS’ ERROR NO. 3

In assessing court cost against the defendants, the trial court stated that “the cost of this proceeding are to be borne by the defendants to the extent provided by law”. We find this assessment does not violate LSA-R.S. 13:4521, and thus, there is no error on the part of the trial court.

DECREE

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed insofar as it found the vessels in question were not exempt from ad valorem taxation, were taxable in Louisiana, could not be taxed proportionately, and the assessment of costs in the trial court against the defendants to the extent provided by law; is reversed as to fixing of the tax situs at the domicile of the vessel owner and ordering a refund of the taxes paid under protest; and IT IS ORDERED ADJUDGED and DECREED that plaintiffs’ suit be and the same is hereby dismissed with prejudice. Plain tiff s-appellants are to pay all costs of this appeal.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

      . A & P Boat Rentals, Inc., Can Do, Inc. I, C. & G. Marine Service, Inc., C & G International, Inc., C & G Transportation, Inc., M.O.N.T. Boat Rental Service, Inc., E. & G. Chouest Marine Service, Inc., Edison Chouest Boat Rental, Inc., Cherokee Boats, Inc., C. & C. Boat Rental, Inc., Beet Offshore Service, Inc., Can Do, Inc. II, Bollinger & Boyd Barge Service, Inc., 3-C Boat Rentals, Inc., Gilbert Cheramie Boats, Inc., A and A Boats, Inc., 3-C Tug Rentals, Inc., Damon Chouest, Inc. and Martin Offshore Boats, Inc. each have their principal place of business in Lafourche Parish, while Grand Isle Boat Rentals, Inc. has its principal place of business in Jefferson Parish, and Triangle Marine, Inc. has its principal place of business in St. Mary Parish, Louisiana.

      . Lawrence A. Chehardy-Jefferson Parish, Clyde Gisclair-St. Charles Parish, Lexie J. Be-laire-Vermilion Parish and Hubert P. Robi-chaux-Lafourche Parish.

      . Alwynn J. Cronvich-Jefferson Parish, Julius B. Sellers, Jr.-St. Charles Parish, Euda Delcam-bre-Vermilion Parish, Cyrus Bobby Tardo-La-fourche Parish.

      . This statute has been repealed by Act 703 of the Regular Session of 1976.

      . § 1952. Place and time of listing and assessment
      All property subject to taxation, including merchandise or stock in trade, shall be placed upon the assessment lists in the respective parishes or districts where situated. Assessments shall be made on the basis of the condition of things existing on the 1st day of January of each year.
      All crops, whether growing or gathered, shall be considered as being attached to the realty while in first hands, and shall not be separately taxed while in possession of the lessor or his agent.
      The notes, judgments, accounts and credits of nonresidents doing business in the state, originating from the business done in this state, are subject to taxation at the business domicile in this state of the nonresident person or his business agent or representative, under the same rules and in the same manner that property of a like nature is assessed and taxed within the state.
      Mortgage notes and indebtedness and all evidence of indebtedness, shall be taxable only at the situs and domicile of the holder or owner thereof.
      No property shall be taxed twice in the same year.
      The tax collectors throughout the state, the parish of Orleans excepted, shall list for taxation for state and parish taxes, all merchandise or stock in trade brought into the several parishes for sale after the assessment rolls for the year are completed, and such officer shall furnish the auditor a duplicate of such assessment; provided nothing in this paragraph shall apply to merchants or other parties who have been regularly assessed.
      When a line between two parishes divides a tract of land, or plantation, each portion shall be assessed in the parish in which it lies; all movable property shall be assessed in the parish or district where it is located, except as otherwise provided. When the lines of parishes are in dispute as to their real location, the lines as shown by “Hardee’s Map” of 1895, shall be the lines for assessment purposes and the parish or parishes affected thereby shall be governed by such lines unless a court having competent jurisdiction shall decree otherwise.


author: PONDER, Judge.

text:
    C & M PROPERTIES, INC. v. Douglas E. WASCOM and Stanley P. Wascom.
    No. 12044.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 1978.
    Rehearing Denied Aug. 31, 1978.
    Gerard E. Kiefer, Baton Rouge, of counsel for plaintiff-appellee C & M Properties, Inc.
    A. S. Easterly, III, Baton Rouge, of counsel for defendant-appellant Douglas E. Wascom.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Defendants have appealed from a default judgment for $63,766.32 for breach of a lease.

The issues are the propriety of the overruling of a declinatory exception to the venue and the sufficiency of proof.

We reverse and remand.

Defendants, both then residents of Livingston Parish, leased a farm in East Baton Rouge Parish of about 600 acres from plaintiff. The agreement provided for prepaid minimum rentals of $6,000 for 1974, $9,000 for 1975 and $12,000 for 1976. Lessees were to pay a portion of the proceeds from the sale of the corn, milo, soy beans and wheat produced, with credit for the minimum prepaid rental. Lessor had the option to cancel the lease at the end of any calendar year if the rental for that year did not reach $32,000.00.

Alleging various breaches of the lease, plaintiff prayed for an accounting and for lost rental income of $62,773.46 and $1,002.76 for diesel fuel used.

Defendants excepted to the venue of the Nineteenth Judicial District Court, alleging that one defendant was a resident of Mississippi and the other a resident of Livingston Parish. The court overruled the exception. Thereafter a preliminary default was entered and a default judgment confirmed on testimony that defendants had paid only $33,226.54 for the three years.

LSA-C.C.P. Art. 42 states in pertinent part:

“The general rules of venue are that an action against:
(1) An individual who is domiciled in the state shall be brought in the parish of his domicile; or if he resides but is not domiciled in the state, in the parish of his residence;
******
(5) * * * A nonresident who has not appointed an agent for the service of process in the manner provided by law, other than a foreign or alien insurer, shall be brought in a parish where the process may be, and subsequently is, served on the defendant; * * * ”

Plaintiff argues that venue is proper in East Baton Rouge Parish under LSA-C. C.P. Art. 74 since he can suffer delictual as well as contractual damages as a result of a breach of contract.

Delictual damages may result from breach of a contract, but to take advantage of Art. 74, plaintiff must state a cause of action for an offense or quasi offense. Clement v. Redi-Bilt Corp., La.App., 249 So.2d 607 (4th Cir., 1971); Richardson v. Moore, La.App., 304 So.2d 425 (1st Cir., 1973). In Clement allegations of “unsatisfactory workmanship” were held not to be sufficient to sustain venue under LSA-C. C.P. Art. 74. In Richardson specific allegations of negligent maintenance were held to state a cause of action in tort as well as contract for purposes of venue.

Here, plaintiff’s petition fails to state a cause of action for an offense or quasi offense so as to bring it within the scope of LSA-C.C.P. Art. 74.

Plaintiff’s contention that the defendant who was a resident of Mississippi could be sued in East Baton Rouge even though he was served in Livingston is contrary to LSA-C.C.P. Art. 42(5) quoted above.

While we seriously doubt that plaintiff carried its burden of proof in confirming this default, we pretermit any decision on the merits of this case in view of the above holding.

For these reasons, the judgment in favor of C & M Properties, Inc., and against Douglas E. Wascom and Stanley P. Wascom is annulled and the case is remanded with instructions to transfer to the court having venue. Plaintiff-appellee is cast with the costs of this appeal.

REVERSED AND REMANDED.

      . LSA-C.C.P. Art. 74 states:
      “An action for the recovery of damages for an offense or quasi offense may be brought in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained. * * * ”