source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    Earline Canterbury ALLEN, Plaintiff-Appellant, v. Olen FORBESS, Defendant-Appellee.
    No. 13185.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.
    Rehearing Denied April 25, 1977.

      Wright, James, Hogg & Bleich by E. Joseph Bleich, Ruston, for plaintiff-appellant, Earline C. Allen.
    Rabun & Post by David F. Post, Farmer-ville, for defendant-appellee, Olen Forbess.
    James M.. Dozier, Jr., Farmerville, for defendant-appellee, Town of Farmerville.
    Before HALL, MARVIN and JONES, JJ.
   MARVIN, Judge.

A subdivision resident appeals from the rejection of her demands to enjoin Defendant from commercially raising worms on his residence lot in the subdivision, which is subject to conventional restrictions prohibiting commercial establishments.

The restrictive covenant reads, in part: “All of the lots . . . are hereby restricted to be used as residential property and such residences are to be . well constructed and suitable for family unit residences . . . Commercial establishments are prohibited .
******
“The stipulations set out herein shall be covenants running with the land, and may be enforced by any person . by a proceeding either at law or in equity. “The restrictions . . . may be altered by a majority of the residence owners living in the subdivision at that time.”

Thirteen families (or residence owners) live in the subdivision. The lots of Plaintiff and Defendant are separated by a 30-foot street. This partial reproduction of the subdivision plat and of photographs, depicts the relationship of the properties of the litigants and the appearance of the worm “farm” in controversy:

Defendant began his worm farm endeav- or in 1975. By the time Plaintiff filed suit in 1976, Defendant had erected 35 worm bed structures approximately three feet high, on the rear or easterly portion of his lots. The worm bed structures are of masonry and metal or wood, covered with burlap. Defendant has no customers who come to his lot. He sells for profit and delivers worms to customers who order worms by sometimes telephoning Defendant at his home. Defendant admits that he attempts to raise 1,000 worms per square foot of worm bed and that he has a total of 2,600 square feet of beds in the 35 structures on his subdivision lots.

The subdivision plat and restrictions were recorded in 1953. Plaintiff was residing in the subdivision before Defendant began his worm operation. Plaintiff acknowledged that she knew one person in the subdivision (a Mrs. Long) commercially operated a beauty shop in her home and advertised its operation. Plaintiff was sometimes a customer in this beauty shop, located about 900 yards from Plaintiffs home. Mrs. Long, the shop operator, ceased operating the beauty shop however, some eight years before this litigation arose. Plaintiff also admitted she knew a subdivision resident, about a block away from Plaintiff, was teaching piano lessons in her home.

Plaintiff did not admit being aware that three other persons conducted some type of business in their respective homes in the subdivision. One resident, in his basement hobby shop, has repaired guns and charged therefor since 1966. This resident does not advertise his gun repair services. Another resident calibrates water meters for a charge in the basement of his home. This resident does not advertise this service and his customers do not call at his home. A third resident drew house plans in his home from 1963 until 1969. He advertised his services to a limited degree in the local newspaper and his clients occasionally came to his home.

The restrictions in question are covenants that run with the land for the benefit of the owners of lots in the subdivision. Injunction is a legally proper and available remedy to prevent violation of the restrictions. Civil law principles of interpretation are to be employed in construing restrictive covenants, fairly and faithfully considering the entirety of the instrument and the intent of the subdivider, if interpretation is necessary. Salerno v. De Lucca, 211 La. 659, 30 So.2d 678 (1947); Smith v. DeVincent, 322 So.2d 257 (La.App.2d Cir. 1976).

The language of the covenant clearly restricts the use of a lot to residential purposes and prohibits commercial establishments. While the language perhaps could have been more precise and explicit, a fair, but strict conclusion is that the subdi-viders intended that a family unit structure would be constructed on each lot and that commercial establishments were not to be permitted. See Beyt v. Woodvale Place Apartments, 297 So.2d 448 (La.App. 3d Cir. 1974) for a similarly worded restriction. In Parish of Jefferson v. Groetsch, 256 So.2d 722 (La.App. 4th Cir. 1972), the term “Commercial business” in a zoning ordinance was held to include a homeowner’s activity of storing, repackaging and selling small items, such as light bulbs, pencils and sandals, which were delivered to customers who ordered from the homeowner.

The lower court found the Defendant’s worm farm activity to be in contravention of the restriction, but held the restriction to have been abandoned or waived because of the actual use of a significant portion of the developed area of the subdivision. The “actual use” which the trial court found was the five mentioned violations among the 13 families residing in the developed area of the subdivision.

Whether acquiescence in the violations of a restriction may exist to an extent sufficient to find abandonment and waiver of the restriction, will be determined by the particular circumstances of each case. The violation in question will have to be weighed against and compared with violations of similar character, proximity and notoriety. Also to be considered are the number and the duration of the total violations. Actual or constructive knowledge of the violations on the part of the complaining property owner must be found before waiver and abandonment of a restriction will be declared. Unless the violations result in substantial change in the intended nature of the subdivision, subverting the original scheme of the subdivision, abandonment and waiver will not be declared. Guyton v. Yancey, 240 La. 794, 125 So.2d 365 (1960).

In an excellently worded opinion on the issue, our brother Ponder, J., illustrated that in only two of eleven instances have Louisiana courts declared abandonment and waiver. The facts in each case showed violations of the same character by a majority of lot owners in the same category as the complaining lot owner.

Under the circumstances here, the five violations mentioned were indoor activities, not of similar character to Defendant’s erection of 35 worm bed structures visible to Plaintiff and the public. Two of the five violations had been discontinued eight or more years when Defendant began his activity and Plaintiff brought suit. While there are only thirteen family units or residences now in the subdivision, the subdivision is comprised of more than twice that many lots which are subject to the restriction. Under the circumstances shown by the record, a finding of waiver and abandonment of the restriction was not warranted.

Defendant also alleges Plaintiff, by acquiescence, laches and silence, should be held legally estopped to enforce the restriction. We do not agree. The record shows that shortly after Defendant began erecting the worm bed structures, Plaintiff discussed the matter with Defendant’s wife. A few months later Plaintiff sought legal advice, and the issue was raised by her or her attorney with municipal officials. Defendant was aware that Plaintiff had provoked talk in the subdivision of his worm farm activity. Defendant himself contacted municipal authorities about his worm farm operation before he began selling worms. He was generally aware of the restricted nature of the subdivision when he purchased his property. Defendant knew of Plaintiff’s opposition and dissatisfaction with the worm bed structures before he completed all 35 of them. Defendant did not sell any substantial number of worms from the structures complained of until 1976. Plaintiff brought suit in April, 1976, slightly less than a year after Defendant purchased materials for the erection of the first of the worm beds.

Estoppel is not favored at law. Jackson v. Golson, 111 So.2d 876 (La.App.2d Cir. 1959). Even should we assume that Plaintiff did not timely raise objections or protest, ignoring Plaintiff’s discussions with her attorney, with Defendant’s wife, and with municipal authorities, we find no intent on the part of Plaintiff to mislead or to deceive Defendant into taking a course of action to his detriment. Defendant testified that he did not rely on Plaintiff’s silence or inaction to build the farm, and “. . . never thought about whether [his lot] was restricted or unrestricted at that time [the time he began the activity]..."

The injunction will issue as prayed for. Accordingly, judgment of the lower court is reversed, and

IT IS ORDERED that Defendant, Olen Forbess, is hereby enjoined and prohibited from engaging in the activity of raising and cultivating worms on a commercial basis and for profit in the Highland Addition Subdivision in the Town of Farm-erville.

Defendant is cast for all costs, here and below.

REVERSED AND RENDERED.

      . The lower court considered other issues such as nuisance and the effect of the municipal zoning ordinance. These issues were not raised on appeal by the litigants and arguments here were limited to the subdivision restrictions.

      . See East Parker Properties, Inc. v. Pelican Realty Company, 335 So.2d 466, 475 (La.App. 1st Cir. 1976), at footnote 12.

      . In Edwards v. Wiseman, 198 La. 382, 3 So.2d 661 (1941), violations occurred on 23 of 28 corner lots in the subdivision. In Finn v. Murphy, 72 So.2d 358 (La.App.Orl.1954), violations occurred on nine of sixteen corner lots.


author: LEMMON, Judge. REDMANN, Judge,

text:
    FOUNDATION PLAN, INC. v. Mrs. Loretta Breaux, wife of/and Welmon BREAUX.
    No. 7486.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.
    Rehearing Denied May 17, 1977.
    Writ Refused June 30, 1977.
    Rodney J. Madere, New Orleans, for plaintiff-appellee.
    New Orleans Legal Assistance Corp., Jack Mark Stolier, New Orleans, for defendants-appellants.
    John F. Robbert, New Orleans, for ami-cus curiae.
    Before REDMANN, LEMMON and BOUTALL, JJ.
   LEMMON, Judge.

In this suit on a promissory note Mrs. Loretta Breaux has appealed from a judgment maintaining an exception of prescription and also dismissing on the merits her reconventional demand for damages under the Truth in Lending Act, 15 U.S.C. § 1601 et seq.

On appeal Mrs. Breaux contends that (1) although the reconventional demand was filed more than one year after the occurrence of the violation, she may assert the prescribed cause of action as a defense to the main demand, and (2) the proof was insufficient to support the trial court’s finding that plaintiff’s violation of the act was unintentional. Since we affirm the finding that the violation was unintentional, we do not reach the prescription issue.

Mrs. Breaux alleged several violations of the act, but the evidence presented at trial was principally intended to show an incorrect annual percentage /ate of interest. 12 C.F.R. § 226.5(b)(1) requires that the annual percentage rate be determined “(i)n accordance with the actuarial method of computation so that it may be disclosed with an accuracy at least to the nearest quarter of 1 percent”.

The note shows the actual amount of loan as $694.34, the number of monthly payments as 24, and the amount of each monthly payment as $42.00. In addition to that information the disclosure statement showed the annual percentage rate as 36.00%, the finance charge as $296.70, and the total of payments as $1,008.00. The disclosure statement also showed this was an interest bearing loan, rather than a precomputed loan, and explained the finance charge as follows:

“If interest on this loan is not precomputed, the FINANCE CHARGE is computed on outstanding unpaid principal balances on the basis that installments shall have been paid according to contract. Delinquency will increase the FINANCE CHARGE as the contract rate is computed on actual unpaid balances of amount financed for the actual time outstanding.”

While conceding an error on the disclosure statement, plaintiff defended the re-conventional demand on the basis of 15 U.S.C. § 1640(c), which provides:

“(c) A creditor may not be held liable in any action brought under this section for a violation of this part if the creditor shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.”

Plaintiff acknowledges that 24 timely monthly payments of $42.00 each on an interest bearing note of $694.36 would involve an annual percentage rate of greater than 86.75%. However, plaintiff points out that the monthly payments on that amount at 36% should have been $41.00 (and the finance charge $289.64 and total payments, $984.00), and plaintiff attributes the incorrect figures on the disclosure statement to a good faith clerical error.

In this respect plaintiff’s president explained that the company’s employees, in closing a loan, determine the monthly payments, finance charge and total payments by reference to the Louisiana Payment and Reference Tables published by the American Heritage Life Insurance Company. He produced a copy of the payment chart and further explained that the then loan manager, who was no longer employed by the company, apparently skipped down one line on the chart in copying the figures onto the disclosure statement.

In Ratner v. Chemical Bank N. Y. Trust Co., 329 F.Supp. 270 (S.D.N.Y.1971) the court traced the legislative history of the good faith defense, noting that the exception was adopted in response to contentions that mathematical and clerical errors would be inevitable in view of the complexity of annual rate calculations. The court further observed that “(a) defendant invoking this exception is required not merely to show the clerical error was unintentional, but also that due care has been taken to set up procedures to avoid” clerical errors.

In the present case we believe that plaintiff maintained a procedure reasonably adapted to avoid clerical and mathematical errors. The amount financed (which was the exact net proceeds of the loan) is shown on the chart, and the employee handling the loan is instructed to obtain the other information for 36% loans from the line on the chart. This procedure eliminates mathematical calculations and is reasonably designed to avoid clerical error (although clerical error in human beings cannot be 100% eliminated).

As to the issue of unintentional error, the trial court found in its reasons for judgment that the error in the payment schedule was one “involving an honest mistake”, noting particularly that the interest deducted from each of Mrs. Breaux’s two payments was calculated at exactly 36%.

While the employee who handled the transaction did not testify (hearsay testimony showed that he did not recall the particular transaction), plaintiff’s president testified that all employees are instructed to copy the correct information from the charts. The circumstances suggest it is more probable that this was clerical error, and there was no suggestion in the record that this creditor utilized planned clerical errors as a method of collecting small additional amounts in excess of the stated percentage rate.

The determination of whether a violation “was not intentional and resulted from a bona fide error” is one of fact, to be decided on the proof presented in each individual case. The fact that the error favored the creditor is certainly not determinative, nor is the fact that the error involved a relatively small amount of money. All of the facts and circumstances of the case must be considered, and a reviewing court should accord great weight to the factual findings of the trial court.

After reviewing the record, we conclude the evidence and circumstances in this case support a finding that the violation was not intentional and resulted from a good faith clerical error.

The judgment is affirmed.

AFFIRMED

REDMANN, J., dissents and assigns reasons.

REDMANN, Judge,

dissenting.

The creditor violated 15 U.S.C. § 1639 by declaring that the annual percentage rate was 36% on a $694.34 loan with repayment in 24 (on-schedule) monthly installments of $42, for a total finance charge of $296.70.

Liability is avoided under § 1640(c) only by showing “that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.” Here the error was reading the finance charge figures from the wrong line on a 13-column table of figures. It is quite understandable but also quite foreseeable that an employee would make such an error. There was no showing of the maintenance of any procedure reasonably adapted to avoid any such error.

The borrower should have judgment on the reconventional demand for twice the finance charge and for attorney’s fees, § 1640(a).

      . The judgment merely dismissed the reconven-tional demand. The reasons for judgment indicated the dismissal was based both on the exception of prescription and the failure to prove violation of the federal act.

      . C.C.P. art. 424 may be utilized to assert a prescribed claim for damages under the Truth in Lending Act as a defense to suit to enforce an obligation which arose from the same transaction or occurrence that gave rise to the claim for damages. Termplan Mid-City, Inc. v. Laughlin, 333 So.2d 738 (La.App. 4th Cir. 1976); Reliable Credit Service, Inc. v. Bernard, 339 So.2d 952 (La.App. 4th Cir. 1976), cert. den. 341 So.2d 1129 (with the statement: “No error of law”). This court interpreted broadly the “incidental to, or connected with” requirement of C.C.P. art. 424 as to the prescribed obligation.
      Plaintiffs contention in this case that the one-year period in 15 U.S.C. § 1640(e) is one of peremption rather than prescription was not discussed in the previous opinions.

      . Apparently, the original trial was held on exhibits and briefs, and a new trial was granted upon Mrs. Breaux’s timely application. The testimony from the new trial is the only testimony in the record, along with some exhibits from the original trial.

      .The following is a copy of the pertinent portion of the payment chart, with the line showing the correct figures underscored:
      PAYMENT CHART 24 MONTHLY PAYMENTS

      . See also Palmer v. Wilson, 502 F.2d 860 (9th Cir. 1974), involving omissions and misstatements which were part of the creditor’s usual credit practice; Powers v. Sims and Levin Realtors, 396 F.Supp. 12 (E.D.Va.1975), which involved legal errors arising from defendant’s failure to comply conscientiously with the disclosure requirements; and Doggett v. Ritter Finance Co. of Louisa, 384 F.Supp. 150 (W.D. Va.1974), involving misinterpretations of the disclosure requirements. Thus, each of these cases involved violations which were not of a clerical or mathematical nature.

      . The implication of this observation is that plaintiff prepared the disclosure statement for the sole purpose of fulfilling federal requirements, and the higher figures inadvertently used in three places on the statement were of no financial benefit to plaintiff unless the interest charged on payments received from the debtor exceeded the stated annual percentage rate.


author: BOLIN, Judge.

text:
    PETROFUNDS, INC., et al., Plaintiffs, v. GULF COAST PRODUCING COMPANY et al., Defendants, B & B Casing Company et al., Defendants-Third-Party Plaintiffs-Appellees, Commercial Union Insurance Company, Third-Party Defendant-Appellant.
    No. 13210.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.

      Goff, Goff & Levy by A. K. Goff, Jr., Ruston, for third party defendant-appellant.
    Frank W. Walden, Cecil Gill Smith, Jr., by Cecil Gill Smith, Jr., Natchez, Miss., for defendants-third party plaintiffs-appellees.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

Petrofunds, Inc., and others sued B & B Casing Company and others for damages allegedly caused in part by the negligence of B & B Casing in furnishing unsuitable drilling casing for the well in which plaintiff owned a working interest. B & B Casing made Commercial Union Insurance Company a third party defendant, averring the insurer had issued a policy to B & B covering the alleged damages. Commercial Union filed a motion for a declaratory judgment as to the third party demand on the grounds that the insurance contract excluded this claim. The trial court rendered judgment denying the declaratory judgment “at this time” and Commercial Union appeals. We dismiss the appeal as it is not from an interlocutory decree which may cause irreparable injury.

While there is some question as to whether the motion should be equated to an exception of no cause or right of action or a motion for summary judgment, it is undisputed the judgment appealed is interlocutory in nature. Louisiana Code of Civil Procedure Article 2083 authorizes appeals from final judgments and from interlocutory judgments “which may cause irreparable injury”. Appellant does not contend that it has lost any rights which can not be protected by an appeal from a final judgment; rather, it contends it will be forced to undergo unnecessary expense and the inconvenience of a trial. The expense and inconvenience of defending a case on its merits are not items constituting irreparable injury. Rapides Central Rwy. Co. v. Missouri Pacific Rwy. Co., 207 La. 870, 22 So.2d 200 (1945); Waters v. Waters, 264 So.2d 275 (La.App. 4th Cir., 1972); Shaw v. Garrett, 295 So.2d 897 (La.App. 2d Cir., 1974).

The appeal is dismissed at appellant’s cost.


text:
    GULF COAST PRODUCING COMPANY, Plaintiff, v. B & B CASING COMPANY et al., Defendants-Third-Party Plaintiffs-Appellees, Commercial Union Insurance Company, Third-Party Defendant-Appellant.
    No. 13211.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.
    Goff, Goff & Levy by A. K. Goff, Jr., Ruston, for third party defendant-appellant.
    Frank W. Walden, Cecil Gill Smith, Jr. by Cecil Gill Smith, Jr., Natchez, Miss., for defendants-third party plaintiffs-appellees.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

For the reasons assigned in the companion casé of Petrofunds, Inc., et al. v. Gulf Coast Producing Company et al., 345 So.2d 958 (La.App. 2d Cir., 1977), this appeal is dismissed at appellant’s cost.


author: BOUTALL, Judge.

text:
    John W. CHENEVERT v. LOUISIANA STATE DEPARTMENT OF HIGHWAYS.
    No. 7708.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.
    Rehearings Denied May 17, 1977.
    Johnie E. Branch, Jr. and William W. Irwin, Jr., Baton Rouge, Jesse S. Guillot, New Orleans, for State of Louisiana, Dept, of Highways, defendant-appellant.
    Steven F. Griffith, New Orleans, for John W. Chenevert, plaintiff-appellee.
    Frederick R. Bott of Deutsch, Kerrigan & Stiles, New Orleans, for Palmer and Baker Engineers, Inc., third-party defendant-ap-pellee.
    Before SAMUEL, BOUTALL and MORIAL, JJ.
   BOUTALL, Judge.

This is an action filed by John W. Chene-vert for compensation for property taken without formal expropriation by the State of Louisiana in the construction of Interstate Highway 10 in Jefferson Parish. From a judgment of the trial court rendered in favor of the plaintiff, the defendant appeals.

The first issue is where Mr. Chenevert’s property actually lies in relation to the highway. This question of location arises because, as testified to by the surveyors in this case, the actual physical measurement of the subdivision in which Chenevert’s lots are located, Ponte Vista Subdivision, is less than the measurement on the corresponding plat map of the subdivision by some 55 feet in north-south length. This results in encroachment of Ponte Vista Subdivision into the subdivision abutting it in the rear, Lake Villas Subdivision, so that there is an overlapping of the. last several northernmost lots in Ponte Vista over the southernmost lots of Lake Villas Subdivision. It is important to note that Chenevert’s lots are not in this overlap or encroachment area. However, because of the error, if one locates Chenevert’s lots by measuring north from the beginning of Ponte Vista Subdivision and the streets and squares laid out therein, his lots are partly under the Interstate 10 right-of-way. Conversely, if one measures south from the suggested actual line of Ponte Vista coincident with the line of Lake Villas, Chenevert’s lots are outside of the right-of-way. The latter is what the surveyor for the Highway Department did. Such a survey had the effect of granting full rights of ownership to those last several lots in Ponte Vista within the contested area, and arbitrarily throwing the burden of the subdivision conflict on Chenevert’s lots, either eliminating half of his property, or placing it under the adjoining paved, established street.

The state has sought to excuse itself from imposing this unconscionable burden upon Ghenevert by asserting that Chenevert should have somehow caused a proration to be made of the survey error by prorating the error amongst all of the lots in the subdivision, and (recognizing the ridiculousness of that argument) by alternately alleging that proration should be made amongst those undeveloped lots in the last section of the subdivision. We cannot conceive why this should be Chenevert’s burden. The State hired the engineering firm of Palmer & Baker, Inc. to make the surveys in this area in the years 1957 and 1958 for the purpose of locating the proposed right of way, in order to determine which property was needed for highway purposes. The surveyor was aware of the survey error at that time and yet chose to ignore the situation, not even notifying the Department of Highway land acquisition section that there was a problem. If there is any fault to arise for lack of provoking a proration of the survey error amongst the property owners, it is upon the Highway Department surveyor and not Chenevert. It is also to be noted that in the period of 1964 through 1968 the Parish of Jefferson employed the engineering firm of J. J. Krebs to lay out the streets and squares in the undeveloped portion of Ponte Vista Subdivision and that this has been accomplished with paved streets, etc. being installed. Any proration from that time forward is impossible.

As we view the situation in this case, although it is complicated by the efforts of the Highway Department to excuse itself from liability, the taking of Mr. Chenevert’s property has resulted from its erroneous location by the Palmer & Baker surveyor in locating Chenevert’s lots, not -from some established point within Ponte Vista Subdivision, but from a determination that it was proper to locate Chenevert’s lots by starting from the established line of Lake Villas Subdivision and measuring backwards into Ponte Vista Subdivision, entirely disregarding the survey error in Ponte Vista which he knew to be present.

The trial judge in his reasons for judgment made the following findings:

“The court further holds that in any event, because of the fact that the lots in this subdivision were sold over a period of many years, that the subdivision has been substantially built up through the years all the Way to Canal No. 5, and that requiring proration be applied in this case, would drastically- affect homes, streets and would result in other chaos. This court concludes that the decision of Provosty v. Clark, [11 La.App. 147], 119 So. 753, [763] (Orl.App.1929) and those many other cases citing that decision are controlling and that this court accepts those decisions and practices followed by the surveyors and engineers in this area who adopt the policy that when there is an error made (which was never clearly shown in this case) the engineers or the surveyors will start from the built up section and then work from that point toward the rear. See Bernard [Co.] v. Cook, 59 So.2d 170 ([La.] Orl.App.1952); Wiggs v. Warren Realty [Co]., 84 So.2d 737 ([La.] Orl.App.1952); Lucas v. Asset Realization Co., 51 So.2d 653, [652] ([La] Orl.App.1951); Weathersby v. Hogsett, [17 La.App. 1], 131 So. 511 and 133 So. 391 (Orl.App.1931) and others. In addition to this, since it was shown that the Highway Department has had ample opportunity to discover this error many years before and has never done so, it certainly can’t now come into this court in this case and complain about an error being made 50 years before.”

We affirm the trial judge’s finding that Chenevert’s land was improperly taken, and he is entitled to be compensated for its loss.

Having now decided that the Interstate Highway does in fact lie upon the land of the plaintiff, we move to a consideration of the amount of compensation Chenevert should receive for its taking. The trial court awarded plaintiff the market value of the land as of the date suit was filed in 1971 in the sum of $25,818.10. Under the circumstances of this case, we are of the opinion that the proper time of valuation of the property is March 20, 1967, which is the date of the first knowledge that Chenevert had that his land was taken, and is coincident with the actual taking of the land.

Chenevert had been the owner of the property some time prior to the time work was started in the vicinity for the Interstate Highway. There is no precise evidence in the case when this land was actually being used for highway purposes, but the work was progressing in 1966 and 1967 and the project was accepted in 1968. Chene-vert obtained knowledge of his property being used by way of a notice from the tax assessor that the property had been taken from the tax rolls under his name. He thereupon made inquiry of the Department and some negotiations ensued. Because of the illness of his attorney, suit was delayed in being filed.

We are referred to our decision in the case of Cruell v. Jefferson Parish, 216 So.2d 604 (La.App. 4th Cir. 1968). In that case the landowner was awarded the value of the property taken which was stipulated to be the same at the time of the knowledge of the taking as it had at the time of the trial. That case pointed out the difference in the application of the principles announced by the Supreme Court of Louisiana in the cases of Koerber v. City of New Orleans, 228 La. 903, 84 So.2d 454 (1965) and A. K. Roy, Inc. v. Board of Commissioners for Pontchartrain Levee District, 238 La. 926, 117 So.2d 60 (1960). This difference in application of the principles relating to time of assessing a valuation of the property taken is further discussed in the case of Reddel v. State of Louisiana through the Department of Highways, 340 So.2d 1010 (La.App. 4th Cir. 1976). Under a similar factual situation there concerning time of taking, knowledge and filing of suit, we held that neither case was entirely controlling of the circumstances there presented and held that the time of knowledge was the controlling factor for the valuation of the property. In our case, as in the A. K. Roy, Inc. case, the time of taking and the time of knowledge are basically the same, but in our case the time of knowledge can be fixed with more preciseness.

As a result of the taking, Mr. Chenevert lost a total of 7,337.6 sq. ft. from his lots. Plaintiff’s appraiser testified that the valuation at this time was $1.00 per square foot, and that there was $120.00 consequential damage to the property not taken. The testimony of the appraiser for the Department of Highways agrees that under R-3 zoning the valuation would be $1.00 per sq. ft., and we agree that R-3 zoning is the proper basis for the determination. We award plaintiff the sum of $7,457.60 for compensation.

Finally, appellant has raised the issue of prescription, asserting that the plaintiff’s suit was untimely filed. In accordance with the decisions in the cases of Cruell, supra, and Reddel, supra, the proper prescriptive period is 10 years, which would begin to run from the date of knowledge of the taking. That date is March 20, 1967 and suit was filed on December 10, 1971. Plaintiff’s suit was timely filed.

For the reasons expressed above, we amend the judgment of the trial court to reduce the award from $25,818.10 to $7,457.60, with legal interest from March 20,1967 until paid, and as thus amended we affirm the judgment appealed from.

AMENDED AND AFFIRMED.


author: PER CURIAM.

text:
    Zona Marie Anderson FRAZIER, Plaintiff-Appellant, v. Morrell Paige FRAZIER, Defendant-Appellee.
    No. 13257.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 1977.
    Donald R. Miller, Shreveport, for plaintiff-appellant.
    Wiener, Weiss & Madison by John M. Madison, Jr., Shreveport, for defendant-ap-pellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   PER CURIAM.

Morrell Frazier filed this motion to dismiss the appeal by his wife from a judgment rejecting her demands for a separation, child custody, alimony pendente lite, and injunctive relief relating to community property. Frazier contends the appeal is now moot as he has obtained a final divorce from his wife in a separate action.

The motion is without merit. Although there may be additional reasons for denying the motion, of primary concern is the showing by appellant that the divorce judgment relied on by appellee is not a definitive judgment. There is presently pending a motion for new trial, and delays for appeal have not yet begun to run. The motion to dismiss is overruled.


text:
    Harry J. BROOKS, Plaintiff-Appellant, v. CANADIAN UNIVERSAL INSURANCE COMPANY, Defendant-Appellee.
    No. 13199.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.

      J. B. Wells & Associates by A. Richard Snell, Bossier City, for plaintiff, defendant-in-reconvention.
    Mayer, Smith & Roberts by Caldwell Roberts, Shreveport, for defendant, plaintiff-in-reconvention, third party plaintiff-appellee.
    Bethard & Davis by J. Q. Davis, Coushat-ta, for Bank of Ringgold, third party defendant, intervenor-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

Plaintiff was awarded judgment against his automobile insurer for the cost of repairing collision damage. The lower court rejected plaintiff’s demands for loss of the car, for loss of use of the car, and for financial loss and damage to his reputation because the mortgagee of the car and loss payee on the policy recovered judgment on the debt and garnished plaintiff’s wages. Plaintiff appeals. We affirm.

Plaintiff wrecked his four-month-old Cadillac in December, 1973. The estimated cost of repairing known damage to the car was $4,038.93, which was less than its value at the time. The Cadillac dealer, the insurer’s adjuster, and plaintiff were in general agreement that some additional damage would likely be discovered once repairs were undertaken and that this additional damage would probably cost $300-$400 to repair. The dealer would not begin repair of the car until the plaintiff-owner authorized the repairs.

The record indicates that plaintiff initially desired to “total” the car and that he refused or neglected to authorize its repair. In March 1974, plaintiff executed a proof of loss for $4,038.93 and the insurer forwarded to the loss-payee its check payable jointly to plaintiff and the loss payee. Eventually in October 1975, plaintiff filed suit against the insurer.

Plaintiff requested from the dealer in April 1976 and received in May 1976 a supplemental appraisal in the amount of $321.35. The supplemental appraisal was not revealed to the insurer or its counsel until trial of the case in September 1976.

The lower court gave judgment for the amount of the original estimate less deductible ($3,938) plus the supplemental appraisal ($321) with legal interest and costs, subject to a credit for the $3,938 tendered by the insurer by deposit into the registry of the court.

The policy provides the insurer’s obligation:

“Coverage E — Collision or Upset: To pay for direct and accidental loss of or damage to the automobile ... in excess of the deductible amount . . . ”

It also provides generally:

“12. Names Insured Duties When Loss Occurs — When loss occurs the named insured shall:
* * * * * *
(c) file proof of loss with the company . setting forth . . . the actual cash value [of the automobile] at time of loss, the amount, place, time and cause of such loss .
(Emphasis supplied)
******
“14. Limit of Liability . . The limit of the company’s liability for loss shall not exceed either (1) the actual cash value ... or (2) what it would then cost to repair or replace the automobile .
“The company may pay for the loss in money or may repair or replace the automobile . . . ”

Plaintiff contends once the insurer learned that plaintiff was not going to agree to the amount of damages, it then became the “duty” of the insurer to repair the automobile. Plaintiff’s contentions are misplaced. It is the duty of the insured to submit a proof of loss to the insurer setting forth, among other things, the actual cash value of the automobile and the amount of the loss (cost of repair). In cases where the automobile is not a “total loss”, the insurer is afforded the option of (1) either paying the insured and loss payee for the cost of repair or (2) repairing itself, or at its order, the damaged automobile.

The record overwhelmingly shows that the insurer elected the first option as soon as it was determined that the car was not a total loss. Once the insurer made this election, the insured could have decided whether or not to have the car repaired. It was not incumbent on the insured to release the insurer before the repairs were made. If the insured disputed the cost of repair, he could have obtained a more thorough estimate of the hidden damage (as he did shortly before trial), all without being required to order repair of his car. The trial court noted in its reasons for judgment:

“THE COURT: The letter of February 1974, indicates to me that the adjuster did tell plaintiff that they would pay for any additional damage revealed in the course of the repairs.
“From plaintiff’s testimony I do not gather that the question of payment for any hidden damages was the bone of contention or hangup that kept him from either authorizing the repairs or making a settlement with the insurance company.
“I don’t believe that insurance policy means that this company can, over protest of the insured, authorize the repairs of this automobile. I don’t believe that is what that means. I believe it took him to authorize it, and he didn’t authorize it and wouldn’t authorize it, although he had been asked.
“I don’t think the delay in making the repairs was the fault of the insurance company. I don’t think there is any way that the insurance company could have paid for hidden damages until they know what they are, unless there is some agreement about the amount, and there was none.
“The evidence also reveals, in my opinion, and counsel has confirmed it in oral argument, that the insurance company was never told until today of the supplemental appraisal dated [April] 30, 1976, which showed additional damage of $321.35.
“According to my calculations, even with these damages, had they been revealed shortly after the accident, and considering the appraisal price of the salvage, and the cost of repairs first estimated, there would still not be a total loss situation.”

In summary, it was the insured’s duty to submit the proof of loss to the insurer. It was the duty of the insurer to make the election whether to pay or to repair. The insured vacillated in making the decision to repair the car and failed to submit his claim in full, to the insurer. We find no error below.

At appellant’s cost, judgment is

AFFIRMED.

      . Plaintiff did not sue for penalties and attorney fees under L.R.S. 22:658.

      . The repairman’s lien (R.S. 9:4501 and C.C. Art. 3217(2) attaches to the automobile when repairs are authorized by the owner or by someone whom he has clothed with actual or apparent authority. Andress Motor Co. v. Butler, 43 So.2d 913 (La.App. 2d Cir. 1950); Margot, Inc. v. Pearson, 336 So.2d 280 (La.App. 1st Cir. 1976).
      The dealer’s employees testified that plaintiff would not agree to their requests that he authorize the repairs. One employee explained: “It is the owner’s vehicle and he must authorize the repairs. The [insurer’s] obligation is to the owner and not to [the dealer].”

      . The insurer’s adjuster forwarded the proof of loss to plaintiff with a letter dated February 4, 1974. This letter read in part:
      “We are taking the opportunity of writing this letter to you since you are apparently having some problem in making up your mind in regards to the proper disposition of your vehicle.
      “We understand that the vehicle cannot be totalled when it is considered to be valued at approximately $5,845.00.
      “We also have discussed this with our appraiser and the repair facility, Rountree Olds. They have both concurred that they will possibly be confronted with additional damage to this unit once repairs are started. However, both agree that it is impossible at this time to ascertain this amount of damage. This would have to be noted whenever it is discovered after repairs have been started.
      “We are also forwarding this proof of loss to you so that we can eliminate the possibility of having to be confronted at a later date with higher labor rates. Since this accident-did occur in December of 1973 and repairs have not yet begun and it is already February, we do not feel that the insurance company would be responsible for any increase in labor rates.”


author: PRICE, Judge.

text:
    Allen C. PARTNER, Plaintiff-Appellant, v. T. E. MERCER TRUCKING COMPANY et al., Defendants-Appellees.
    No. 13217.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.
    Rehearing Denied May 23, 1977.
    David A. Rothell, Mansfield, for plaintiff-appellant.
    Bodenheimer, Jones, Klotz & Simmons by G. M. Bodenheimer, Jr., Shreveport, for defendants-appellees.
    Before PRICE, HALL and JONES, JJ.
   PRICE, Judge.

Allen C. Partner appealed the judgment rejecting his demands for damages sustained by him when his automobile was struck from the rear by a truck-tractor unit belonging to T. E. Mercer Trucking Company.

The accident happened during daylight hours at or near the intersection of Mansfield Road and Jewella in Shreveport. The dispute in this case is a factual disagreement as to the cause of the wreck. Partner contends that he was struck from the rear while either stopped in the inside lane for a stop signal light, or as he began to pull forward when the light changed to green.

Loyd Wright, the driver of the truck, contends he stopped for the red light in the inside lane. After pulling through the intersection on the change of signals, Wright testified the Partner car passed his truck in the outside lane, cut suddenly into his lane, and made a sudden stop in his path to avoid a vehicle which was stopped for a left turn. Wright contends he applied brakes, but was unable to avoid colliding with the rear of the Partner automobile.

The trial judge found the accident was caused by the negligence of Partner. The court found contradictions in the testimony of Partner, his witnesses, and the report of the investigating police officer which showed the point of collision to be south of the intersection.

This is purely a factual matter, and as there is evidence to support both versions of the cause of the accident, this court should not disturb the trial court’s factual determination. Canter v. Koehring Company, 283 So.2d 716 (La. 1973).

There has been no misapplication by the trial judge of the jurisprudential rule that the driver of a vehicle which collides with the rear of another vehicle must overcome a presumption of negligence. Since the court believed the version of the accident related by Wright and corroborated by his wife who was driving a following automobile, sufficient evidence was presented to rebut the presumption of negligence.

The judgment is affirmed at appellant’s costs.


author: JONES, Judge.

text:
    Charles KILSON, Jr., Plaintiff-Appellant, v. The AMERICAN ROAD INSURANCE CO., Defendant-Appellee.
    No. 13218.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.
    Rehearing Denied May 23, 1977.
    Writ Refused June 10, 1977.

      Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for plaintiff-appellant.
    Blanchard, Walker, O’Quin & Roberts by John T. Cox, Jr., Shreveport, for defendant-appellee.
    Before PRICE, HALL and JONES, JJ.
   JONES, Judge.

Charles Kilson, Jr. (Kilson) filed suit against The American Road Insurance Company (American Road), claiming he suffered damages as a result of American Road’s refusal to pay under the terms of an insurance policy. From a trial court judgment upholding American Road’s exception of no cause or right of action, and granting their motion for a summary judgment, Kil-son appeals. We affirm.

Kilson’s petition alleges the following facts: On November 11, 1975, Kilson purchased a used Volkswagen automobile, financing the purchase through Ford Motor Credit Company. He initially secured collision insurance on the automobile, but later allowed it to lapse. Following this, Ford Motor Credit Company notified Kilson it had acquired “single interest” insurance, protecting only the interest of Ford Motor Credit Company, and was charging the premium to his account. The “single interest” insurance was acquired from American Road.

While this “single interest” insurance was in effect, Kilson’s automobile was involved in a collision, and was a total loss. Following this collision, Kilson refused to make any further payments on the automobile loan, demanding Ford Motor Credit Company pursue any further claims against American Road.

After American Road’s refusal to pay off the balance of the loan owed by Kilson, Ford Motor Credit Company filed suit against Kilson, and had the automobile covered by the chattel mortgage seized and sold to satisfy the unpaid amount of the loan. After Kilson was unsuccessful in attempting to enjoin the sheriff’s sale in that proceeding, he brought this suit against American Road. Kilson claims that due to the failure of American Road to promptly pay the claim arising out of the automobile collision, he suffered damages in the loss of his vehicle, inconvenience, attorney’s fees, embarrassment, and humiliation.

In response to Kilson’s petition, American Road filed an exception of no cause or right of action, stating the insurance policy at issue provided coverage only to the named insured, Ford Motor Credit Company, and then only in accordance with its provisions. American Road also filed a motion for summary judgment stating there is no issue as to the facts, as plaintiff admits the only insured under the policy is Ford Motor Credit Company, and therefore they have no liability to Kilson as a matter of law. A copy of the insurance policy was attached to the motion.

An exception of no cause of action addresses itself to the sufficiency in law of the petition and is triable on the face of the papers. For the purpose of determining the issues raised by this exception, the well pleaded facts in the petition must be accepted as true, and a suit will not be dismissed on an exception of no cause of action if allegations of fact set forth a cause of action as to any part of the demand. Pence v. Ketchum, 326 So.2d 831 (La.1976); Elliott v. Dupuy, 242 La. 173, 135 So.2d 54 (1961).

Kilson’s petition does not allege he has any rights under the terms of this insurance policy. In fact, he admits the policy is “single interest” insurance, protecting only the interest of Ford Motor Credit Company. Kilson’s petition implies the premiums were paid by Ford Motor Credit Company, and he was then required to reimburse them for those premiums. The fact that the premium was charged by Ford Motor Credit Company to Kilson does not create any sort of legal relationship between Kilson and American Road which would allow Kilson to recover the value of his automobile or any other damages from American Road. The lower court correctly upheld the exception of no cause of action.

A motion for summary judgment shall be rendered if “. . . there is no genuine issue as to material fact and . mover is entitled to judgment as a matter of law.” LSA-C.C.P. art. 966. The copy of the insurance policy attached to the motion clearly shows the only insured under this policy was Ford Motor Credit Company. Kilson is neither an insured under the policy nor can he be considered a third party beneficiary, since the terms of the policy provide, inter alia, American Road is required to pay only after reasonable proceedings have been taken against the debtor to collect on the debt, including foreclosure on collateral security. While Kilson may receive some indirect benefit from the policy, since a payment under the policy would reduce his obligation to Ford Motor Credit Company, there are no rights under the policy which can be asserted by him. Since there exists no relationship between Kilson and American Road, Kilson has no right to recover under the insurance policy and American Road is entitled to judgment as a matter of law. The lower court was correct in upholding American Road’s motion for a summary judgment.

The judgment of the trial court is affirmed, appellant is to pay all costs of this appeal.

Affirmed.


text:
    Charles D. CHASE, Plaintiff-Appellant, v. SAFECO INSURANCE COMPANY OF AMERICA, Defendant-Appellee.
    No. 13219.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.
    Rehearing Denied May 23, 1977.

      Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Jack E. Carlisle, Jr., Shreveport, for defendant-appellee.
    Before BOLIN, HALL and MARVIN, JJ.
   MARVIN, Judge.

Plaintiff’s demands against his automobile collision insurer were rejected because the lower court applied the law of the state where the policy was written and where the plaintiff then resided. We affirm.

The policy was written September 4, 1974, in Seattle, Washington. On October 18, 1974, the insurer mailed a cancellation notice to plaintiff at the address furnished by plaintiff on the application for the policy. Other notices of cancellation were later mailed to plaintiff, but apparently none were received by plaintiff until plaintiff’s credit union (loss payee on the policy) received a copy of the notice of cancellation and informed plaintiff about November 20, 1974, of the cancellation and the necessity of plaintiff obtaining other insurance. Plaintiff was serving in the U. S. Navy during this time, but was residing and was sleeping each night at his civilian address in Seattle. The coverage issue arose when plaintiff’s automobile sustained damage in a collision while being driven in Louisiana by plaintiff’s wife on November 16, 1974.

Whether (and when) the cancellation was effective is to be determined by the law of Washington. Deane v. McGee, 261 La. 686, 260 So.2d 669 (1972); Jahrman v. Valley Air Park, Inc., 333 So.2d 712 (La.App. 2d Cir., 1976).

The Revised Code of Washington, Statute 48.18.291 provides:

“No contract of insurance predicated upon the use of a private passenger automobile shall be terminated by cancellation by the insurer until at least twenty days after mailing written notice of cancellation to the named insured at the latest address filed with the insurer, by or on behalf of the named insured.”

The policy in question contains a similar cancellation provision.

Washington courts have upheld the mailing procedure to effect cancellation even though receipt of the notice by the insured is not shown. Trinity Universal Insurance Company v. Willrich, 13 Wash.2d 263, 124 P.2d 950 (1942). We are obliged to follow Washington law under the factual circumstances, notwithstanding that our law may impose more stringent obligations on the insurer to effect cancellation and that our law might compel an opposite result.

Under Washington law the cancellation became effective twenty days after the date of the first mailing of the notice (October 18, 1974) and before the collision damage of November 16, 1974. At appellant’s cost, judgment is

AFFIRMED.

      . Cases cited by appellant include Foster v. Nunmaker Discount Company (La.App., 4th Cir., 1967) 201 So.2d 215; Breitenbach v. Green (La.App., 4th Cir., 1966) 186 So.2d 712; Ellzey v. Hardware Mut. Ins. Co. of Minnesota (La.App., 1st Cir., 1949) 40 So.2d 24; Long v. Home Indemnity Co. of New York (La.App., 2nd Cir., 1936) 169 So. 154.


text:
    Elmer Neal HARDY, Sr., Plaintiff-Appellee, v. A. C. BROWN, Defendant-Appellant.
    No. 13221.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.
    Kitchens, Benton & Kitchens by Graydon K. Kitchens, Jr., Minden, for defendant-appellant.
    Robinson & Smith by C. Wayne Smith, Homer, for plaintiff-appellee.
    Before BOLIN, HALL and MARVIN, JJ.
   MARVIN, Judge.

In a boundary action, summary judgment was granted on the issue of the location of a public road in 1860 as the boundary between lands of plaintiff and defendant. Defendant appeals. We reverse.

Plaintiff relies on a 1976 affidavit of an employee of a mineral lessee whose employer leased the lands in question in 1949. In essence, this employee states that for the purpose of determining the boundary and leasing the lands, he obtained in 1949 several items relating to the location in 1869 of the road in question. These items, which are attached to the employee’s 1976 affidavit, were: (1) affidavits of two now-deceased persons (W, born in 1867, and R, born in 1870); (2) a plat and proces verbal of a survey of the lands showing roadbeds in this area; and (3) an original (or preliminary) title opinion and a final title opinion of a lawyer. One other item is an affidavit of defendant relating to acts of possession by plaintiff and his ancestors in title on plaintiff’s lands.

Defendant (born 1882) opposes summary judgment with his affidavit and deposition and the deposition of B (born 1887).

Plaintiff’s items indicate that the road, as it existed in 1869, was changed and moved westerly about 1885. Defendant’s affidavit and depositions indicate the older road before 1885, was a private road and not the public boundary road. Thus, there exists a genuine issue of material fact, precluding summary judgment, C.C.P. 966, 967.

The admissibility of the 1949 items mentioned, made by persons since deceased, in support of the motion for summary judgment, was raised by defendant-appellant. While evidence of reputation of the location of a boundary, upon proper foundation, may be admissible to prove that location, we need not pass on that issue in view of our finding of a material issue of fact.

At plaintiff’s cost, summary judgment is reversed and the case remanded.

      . See 1 Conrad, Modem Trial Evidence §§ 313, 314, 315; McCormick on Evidence, 2d Ed., § 324; 11 C.J.S. verbo Boundaries § 106.


text:
    Lillie PERTEET, Natural Tutrix of Minors, Larry Perteet, Sara Ann Perteet and Lazar Perteet, Plaintiff-Appellant, v. ATLAS CONSTRUCTION COMPANY, INC., et al., Defendants-Appellees.
    No. 13222.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.
    Sutterfield & Vickery by James R. Sut-terfield, New Orleans, for plaintiff-appellant.
    Gold, Little, Simon, Weems & Bruser by John F. Simon, Alexandria, for defendants-appellees.
    Before BOLIN, HALL and MARVIN, JJ.
   BOLIN, Judge.

An unmarried mother of three minors sued for workmen’s compensation benefits due the minors because of the death of their alleged natural father. The trial court found the deceased was the father of the children but that plaintiff had not proved they were dependent upon decedent at the time of his death. Plaintiff appeals, and defendants (employers and their insurer) move to dismiss the appeal contending that appellant failed to timely perfect the appeal. We overrule the motion to dismiss, and affirm the judgment of the trial court.

MOTION TO DISMISS

The motion to dismiss the appeal is based on Act 201 of 1976 which amended Louisiana Code of Civil Procedure Article 2087 by reducing the delay for perfecting a devolutive appeal from 90 to 60 days. Act 201 became effective on October 1, 1976.

In this case the judgment was signed September 21, 1976; the required notice of judgment was mailed to plaintiff September 28; the seven-day period for applying for a new trial expired on October 7; and the delay period for appeal began to run October 8. Defendants contend that on October 8 Act 201 was controlling; that plaintiff was allowed only 60 days for perfecting a devolutive appeal; and that this appeal, having been perfected on December 21, was untimely.

We find the crucial date is the day the judgment was signed; the judgment was signed prior to October 1, and the 90-day delay period is applicable. The appeal was timely perfected and the motion to dismiss is overruled. Blacher v. Matlack, Inc., 344 So.2d 444 (La.App. 1st Cir., 1977).

MERITS

The issues on appeal are (1) whether or not plaintiff has established that decedent was the natural father of the three children; and (2) whether or not plaintiff has proved these children were dependent upon decedent, either wholly or partially, at the time of his death.

Plaintiff admits she never married decedent nor did they ever live together as husband and wife. The evidence establishes that decedent never formally acknowledged the children as his own. Plaintiff now 38 years old, testified she began having sexual relations with decedent when she was sixteen years old; that this relationship ceased for a two-year period when decedent married another woman, and the relationship was resumed upon decedent’s divorce from that woman. Plaintiff stated she never voluntarily had sexual relations with anyone other than decedent; that he had visited the children every two or three months and had informally acknowledged the children as his own. Plaintiff’s cousin and sister substantially corroborated plaintiff’s testimony as to the paternity of the children. We find the trial judge was correct in holding that decedent was the natural father of the three children.

Louisiana Revised Statutes 23:1252 provides that where the children, as in this case, are not conclusively presumed, under R.S. 23:1251, to be dependent upon the decedent, dependency must be determined “in accordance with the facts as they may be at the time of the accident and death.” Further, La.R.S. 23:1254 provides, “the mere expectation or hope of future contribution to support of an alleged dependent by an employee, shall not constitute proof of dependency as a fact.”

As this court recently stated, “The jurisprudence requires proof that the deceased employee was actually contributing to the support of a child where dependency cannot be presumed and a legal or moral obligation owed to the child is not sufficient.” Fidelity and Casualty Company of New York v. Masters, 335 So.2d 722 (La.App. 2d Cir., 1976).

Plaintiff, a person of extremely limited means, sought to prove the dependency of her minor children on decedent’s earnings by recounting various instances when decedent, who worked in Louisiana, came to plaintiff’s house in Mississippi and gave her cash to be used for the minors’ clothing. She testified decedent had visited her once every two or three months and always presented her with $115 to $120. She stated he last visited her in January 1973 before his death in May of that year.

After analyzing plaintiff’s testimony, as well as her earlier deposition which seemed to contradict much of that testimony, the trial judge found:

“. . .it appears to have been established with some degree of certainty that the decedent gave the plaintiff cash in January 1973 [$115] and bought the children bicycles for Christmas in 1972. Whether he furnished any funds in 1972 appears debatable. He did leave cash [$120] with plaintiff’s mother at least one time in 1971.”

This factual finding is supported by the evidence, and under this finding we agree with the trial judge that plaintiff has failed to prove the children were dependent on decedent at the time of his death. The two cash payments coupled with a Christmas gift of bicycles over a period of three years did not constitute partial dependency under the Workmen’s Compensation Statute.

The judgment is affirmed.


text:
    STATE of Louisiana In the Interest of Rory Kevin GATES.
    No. 13223.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.
    Piper & Brown by Robert E. Piper, Jr., Shreveport, for Rory Kevin Gates, appellant.
    Eric R. Harrington, Asst. Dist. Atty., for State of La., appellee.
    Before BOLIN, HALL and MARVIN, JJ.
   BOLIN, Judge.

Rory Kevin Gates, sixteen years of age, was adjudged a juvenile delinquent based on a finding that he was guilty of simple burglary and simple damage to property in violation of Louisiana Revised Statutes 14:62 and 14:56. He appeals and we affirm.

Defendant contends: (1) notice given to him of the state’s intent to use his inculpa-tory statement was neither timely nor specific as to the nature of the statement, and (2) the statement was inadmissible because the state did not prove it was given voluntarily after defendant had been apprised of his constitutional rights.

A juvenile hearing to adjudicate delinquency must be conducted within the framework of due process and fair treatment. Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

Louisiana Code of Criminal Procedure Article 768 provides that if the state intends to introduce an inculpatory statement in evidence it must so advise defendant in writing prior to the state’s opening statement.

On the morning of the scheduled hearing the state presented defendant with a letter stating:

“Please be advised that the State intends to use against you a confession, admission or inculpatory statement made by you in the presence of Detective L. S. Huckaby, III and others in connection with your trial involving alleged theft from Multi Products, Inc., at Coushatta, Louisiana. This statement was made by you at or about the time of your arrest in connection with this matter.”

Since this case was heard in chambers no opening statement was made and defendant received the notice prior to any other action being taken. We find the notice was timely as provided by Article 768. State v. Morris, 259 La. 1001, 254 So.2d 444 (1971); certiorari denied 406 U.S. 959, 92 S.Ct. 2066, 32 L.Ed.2d 346.

The purpose and intent of Article *768 is to identify the particular inculpatory statement so that defendant is not surprised by its introduction at the trial and is afforded reasonable opportunity to prepare a defense pertaining to the inculpatory statement. State v. Sneed, 316 So.2d 372 (La.1975). There is no evidence that defendant was misled or surprised by the state’s introduction of his oral confession. We find the notice given here adequately notified defendant as to the date and circumstances surrounding the statement to be introduced and complied with the spirit and purpose of Article 768.

The burglary in question occurred on the evening of September 1, 1976. As defendant had pled guilty to burglary of the same building some months earlier, and as both break-ins were accomplished in an identical manner, the investigation immediately focused on defendant. An interrogation of an acquaintance of defendant on September 2 disclosed information further tending to incriminate defendant, and the sheriff’s department asked defendant’s mother to bring the juvenile to the courthouse for questioning that same day. There, in the presence of the juvenile’s mother, a police officer, and a deputy sheriff, the juvenile confessed that he had burglarized the building.

Before a confession is admissible the state must prove that it was given freely and voluntarily and not as a result of threat or inducement. R.S. 15:451. At the hearing the juvenile and his mother testified that the interrogation lasted for approximately five hours; that the juvenile was not apprised of his right to counsel; and that the officers promised that things would go easier on the juvenile if he confessed. Defendant and his mother did not contend that he was removed from his mother’s presence during the course of the interrogation.

The trial judge rejected this testimony and adopted the version offered by the officers conducting the interrogation. The trial judge found, “This confession was in a carpeted, newly-paneled office room after the boy had been brought into custody and in the company of his mother for some two or three hours.” He found the confession to be “frankly given and voluntary after having been advised of his rights.” We find the trial judge’s ruling as to the volun-tariness of the juvenile’s confession to be supported by the evidence.

Finding no error in the judgment of the trial court, it is affirmed.


author: HALL, Judge.

text:
    William D. SHOWS, Plaintiff-Appellant, v. Alma M. SHOWS, Defendant-Appellee.
    No. 13225.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.
    Rehearing Denied May 23, 1977.
    Writ Refused July 1, 1975.

      Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for plaintiff-appellant.
    Thomas & Dunahoe by Edwin Dunahoe, Natchitoches, for defendant-appellee.
    Before BOLIN, HALL and MARVIN, JJ.
   HALL, Judge.

Plaintiff filed a rule to show cause (1) why alimony payable to defendant should not be terminated or reduced; (2) why he should not be allowed to terminate hospitalization insurance for defendant; (3) why defendant should not have her visitation privileges eliminated or reduced; and (4) why defendant should not return a gun to their mentally incompetent major son. The trial court rejected all of plaintiff’s demands and he appealed.

Plaintiff obtained’a separation judgment on the grounds of his wife’s cruel treatment in 1974 and a judgment of divorce on April 6, 1976. The divorce judgment by consent provided that plaintiff pay defendant $200 per month permanent alimony and maintain hospitalization insurance for her benefit. The judgment also awarded plaintiff custody of a mentally incompetent major son and granted defendant certain visitation rights.

At the time the divorce and alimony judgment was rendered, plaintiff was making approximately $2,000 per month as an employee of Continental Can Company and defendant was unemployed. When plaintiff filed the instant rule in September, 1976, he had taken early retirement from Continental Can, motivated partially by health reasons. His retirement income is $952 per month, and he is no longer permitted to carry defendant on his hospitalization policy with Continental Can.

Defendant, who also has health problems, is currently working at the Jackson Parish Hospital with take-home pay of $284 per month. Her job is contingent on the continued availability of federal money to fund the program. She testified she spends all of her pay and all of the alimony presently being paid to her on necessary living expenses. She lives in a house owned by her daughter, does not pay rent, but does pay taxes and insurance on the house.

Although plaintiff’s petition to terminate or reduce alimony contains only allegations of changes in financial circumstances and no allegations relative to defendant’s fault, plaintiff contends on appeal that since the wife was adjudged to be at fault in the separation suit, she has no right to alimony after divorce.

The determination of fault in a separation suit is determinative of the issue of the wife’s fault for purposes of alimony after divorce under LSA-C.C. Art. 160 and bars relitigation of the fault issue at the time permanent alimony is claimed ancillary to a divorce proceeding. Fulmer v. Fulmer, 301 So.2d 622 (La.1974); Nethkin v. Nethkin, 307 So.2d 563 (La.1975); Frederic v. Frederic, 302 So.2d 903 (La.1974); Wilson v. Wilson, 317 So.2d 629 (La.App. 1st Cir. 1975), writs refused 320 So.2d 912 (La.1975).

However, in this case, in spite of the foregoing rule, a valid and definitive judgment has been rendered ordering plaintiff to pay alimony to the defendant. In a similar case, King v. King, 253 So.2d 660 (La.App. 1st Cir. 1971), writs refused, 260 La. 128, 255 So.2d 353 (1971), the court held:

“Assuming the husband’s obtention of a separation on ground of abandonment precluded the wife’s right to alimony following the divorce because the wife’s fault was thereby established, the husband’s remedy lay in an appeal in the divorce proceeding. In this instance, plaintiff-husband did not appeal the judgment which awarded appellant-wife alimony in the divorce proceeding. Said judgment has long since become final and precludes any further consideration of the incidental issue of appellant’s alleged fault.”

Laiche v. Laiche, 231 So.2d 647 (La.App.1st Cir. 1969) held that the issue of the wife’s fault was closed by a default divorce judgment which ordered the plaintiff-husband to pay alimony as prayed in his petition. Richardson v. Richardson, 275 So.2d 845 (La.App. 4th Cir. 1973) allowed alimony to be revoked under similar circumstances as involved in the instant case, but without considering the effect of the prior consent alimony judgment, and for that reason is not authoritative on the issue at hand.

Cox v. Cox, 341 So.2d 1351 (La.App. 1st Cir. 1977) held that a husband could not raise the issue of his wife’s fault on appeal from a judgment awarding her alimony, where he had consented to the judgment (except for amount) and raised no issue of her fault at the trial level, even though he had obtained a prior separation judgment based on her fault. It should be noted that in the Cox case the wife obtained a divorce on the grounds of the husband’s adultery after the separation judgment. The court found it unnecessary to rule on the effect of the husband’s fault giving grounds for the divorce subsequent to the wife’s fault giving grounds for the separation, in view of its initial holding referred to above.

In the instant case, when defendant reconvened for alimony in the divorce proceedings, plaintiff could have asserted the separation judgment as conclusively determinative of the wife’s fault and nonentitlement to alimony, but he did not. Instead, although the wife’s fault was put at issue by the pleadings, plaintiff consented to judgment awarding defendant alimony. No appeal was taken from the judgment, which is definitive, binding on the parties, and is res judicata.

We hold that a husband who has obtained a separation based on his wife’s fault and who thereafter consents to a judgment in her favor for permanent alimony after divorce, or who does not appeal from such a judgment rendered against him, may not in a subsequent proceeding raise the issue of the wife’s nonentitlement to alimony by reason of her fault.

The alimony judgment may be modified as to amount because of a change in circumstances, but the husband against whom the alimony judgment was rendered may not, after the judgment has become definitive, go behind the alimony judgment in an effort to establish the wife’s fault as precluding her entitlement to alimony.

With regard to the amount of alimony, the trial court concluded that plaintiff is well able to continue to pay $200 per month and that defendant is in need of that amount. The trial court did not abuse its discretion in refusing to reduce the award, particularly in view of plaintiff’s voluntary retirement, continued substantial income, and the temporary nature of defendant’s job. The evidence does not establish that defendant’s needs are less than that amount or that plaintiff is unable to pay that amount.

As to the hospitalization insurance, the original alimony judgment ordered plaintiff to carry hospitalization insurance for the benefit of defendant. At that time, defendant was included in plaintiff’s policy with his employer. After plaintiff’s retirement he was no longer allowed to carry defendant on his insurance policy. In view of this fact, plaintiff’s reduced income, and our conclusion that $200 per month is at the maximum limit of alimony which plaintiff should be required to pay, circumstances have changed sufficiently to warrant that insurance coverage of the wife no longer be required.

The demand for a reduction in defendant’s visitation privileges is based on the allegation that she is “poisoning” their son’s mind against plaintiff. There is little or no evidence to support the allegation and this demand was properly rejected.

The demand by the plaintiff-father for delivery of possession of a shotgun allegedly belonging to his major son is not properly before the court in this proceeding ancillary to a divorce proceeding. Plaintiff’s demand in this regard was properly rejected.

For the reasons assigned, the judgment of the district court rejecting plaintiff’s demands is affirmed in all respects, except that it is modified to grant judgment in favor of plaintiff against defendant, amending the original alimony judgment of April 6, 1976, to eliminate the requirement that plaintiff be required to maintain hospitalization insurance for the benefit of defendant. Costs of appeal are assessed to the plaintiff.


text:
    Markham Allen DICKSON, Jr., et al., Plaintiffs-Appellants, v. A. C. DOMINICK, III, Defendant-Appellee.
    No. 13227.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.
    Cook, Clark, Egan, Yancey & King by Stephen R. Yancey, Shreveport, for plaintiffs-appellants.
    Booth, Lockard, Jack, Pleasant & Lesage by John R. Pleasant, Shreveport, for defendant-appellee.
    Before PRICE, MARVIN and JONES, JJ.
   PRICE, Judge.

This is an appeal from the judgment in a possessory action dismissing plaintiffs’ demands for failure to state a cause of action.

Markham Allen Dickson, Claudius Markham Dickson, and Paul Meade Dickson acquired title to a 9.6 acre tract of land in Caddo Parish by an exchange deed on July 17, 1975.

They filed this action against A. C. Dominick, III, alleging that on October 10, 1975, they were disturbed in their peaceful possession of this property by Dominick who denied them access to the land and informed them they would thereafter be barred from it.

Plaintiffs’ original petition alleged the following acts of possession by themselves or their ancestor in title to enable them to bring the possessory action:

1. Paying taxes
2. Hunting on property
3. Surveying of boundary lines
4. Partial fencing of tract
5. Physical inspection of the property
6. Picnicking and social outings on property

In response to the sustaining of defendant’s exception of vagueness, plaintiffs alleged the hunting and camping activities on the property took place on September 21, 22, and December 28, 1974.

Plaintiffs further clarified the allegations of the original petition by specifying the dates of the physical inspection, surveying, and fencing were in September and October, 1975.

Subsequent to the sustaining of the exception of no cause of action, plaintiffs amended their petition to allege an additional act of corporeal possession by their ancestor in title in leasing the land for agricultural purposes. An exception of vagueness was filed requesting specific information as to the date of the lease, the name of the lessee, and the rental received. After plaintiffs failed to supply this information within the delay ordered by the court, a formal judgment was signed dismissing plaintiffs’ demand.

La.C.C.P. Art. 3658 provides the requisites for the possessory action:

To maintain the possessory action the possessor must allege and prove that:
(1) He had possession of the immovable property or real right at the time the disturbance occurred;
(2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;
(3) The disturbance was one in fact or in law, as defined in Article 3659; and
(4) The possessory action was instituted within a year of the disturbance.

It is apparent from plaintiffs’ original and amended pleadings that, as a matter of law, they have not shown they had the undisturbed corporeal possession of the property for a period of more than one year prior to the alleged disturbance by defendant on October 10, 1975.

The intermittent hunting and recreational activities alleged by plaintiffs were prior to their acquiring title, and plaintiffs lacked the intent to exercise possession of the property as owners. This is insufficient to initiate the beginning of a period of corporeal possession. Norton v. Addie, 337 So.2d 432 (La.1976).

The payment of taxes by plaintiffs’ ancestor in title does not of itself constitute evidence of possession. Forrest v. Messenger, 20 So.2d 766 (La.App. 2nd Cir. 1945).

The surveying of the boundary lines and the partial fencing of the tract occurred less than one year prior to the disturbance.

Since the plaintiffs failed to comply with the exception of vagueness requiring additional facts surrounding the allegation of an agricultural use by their predecessors, the trial court properly dismissed' their demands.

For the reasons given, the judgment is affirmed at appellants’ costs.


text:
    R. G. SMITH, Plaintiff-Appellee, v. Stewart M. SCOTT, Jr., et al., Defendants-Appellants. Lane TERRAL, Plaintiff-Appellee, v. Stewart M. SCOTT, Jr., et al., Defendants-Appellants. Billy F. PEARSON, d/b/a Billy F. Pearson Plumbing, Plaintiff-Appellee, v. Stewart M. SCOTT, Jr., et al., Defendants-Appellants.
    Nos. 13228, 13229 and 13230.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.

      Brown, Wicker & Lee by Ralph J. Wicker, Monroe, for Stewart M. Scott, Jr., et al., appellants in Nos. 13230, 13229 and 13228.
    Baker, Culpepper & Brunson by Joseph A. Cusimano, Jr., Farmerville, for Burt T. Carlin and Jeffy Cole, d/b/a C & C Constr. Co., third-party defendants and plaintiffs in reconvention Nos. 13228, 13229 and 13230.
    Rabun & Post by Armand F. Rabun, Farmerville, Richard R. Storms, Ruston, for appellees in Nos. 13228, 13229 and 13230.
    Before PRICE, MARVIN and JONES, JJ.
   JONES, Judge.

Plaintiff in each of these three consolidated actions is a subcontractor who furnished labor and materials used in the construction of a camp house in Union Parish, built for Stewart M. Scott, Jr. and Phillip A. Rosamond (hereinafter referred to as owners). These subcontractors ask for the balance due them for labor and materials provided and seek recognition of a privilege on the immovable property upon which the camp house was constructed.

In each of these proceedings the owners filed identical pleadings, consisting of an answer in which they denied owing the claim and a third party demand against the general contractors, Burt T. Carlin and Jeffy Cole, d/b/a C & C Construction Company (hereinafter referred to as contractors). The owners state they entered into a written contract with the contractors which provided the contractors were to construct the camp house for a total price not to exceed $29,000. The owners assert they have paid the $29,000 and therefore owe nothing more on the contract. The owners further claim that in the event they should be held liable to plaintiffs, they are entitled to a judgment against the contractors for a like amount.

The contractors answered the third party demand, denying any liability to the owners and reconvened against the owners for additional amounts still owed to them for the construction. The contractors claimed the building contract provided the owners were to pay for the actual cost of all materials, labor, insurance and other expenses incurred in connection with the construction of the camp house, and additionally, the owners were to pay the sum of $2,600 to the contractors as a bonus for the services rendered by them. The reconventional demand of the contractors states that while the contract provides for a $29,000 ceiling price, it also provided that any changes in plans or specifications which resulted in an addition or reduction in cost would result in a corresponding change in the $29,000 ceiling price and further alleged that many costly additions were made to the plans and specifications by the owners, which had the effect of raising the ceiling price. The contractors further state they sent a final statement totaling $10,363.10 to the owners on July 24, 1974, for labor and material costs, miscellaneous expenses, and their bonus, and that the owners wrongfully refused to pay this statement because it resulted in a total cost of construction in excess of the $29,000 ceiling price provided in the contract. The July 24 statement was attached to the contractors’ reconventional demand.

The trial judge found that there had been authorized alterations additions and changes to the plans and specifications costing $7,304.61, which resulted in the camp house actually costing the sum of $36,304.61 and which adjusted the ceiling price provided in the contract accordingly. He found the owners had paid only $29,000, resulting in $7,304.61 remaining past due and unpaid. The trial court awarded each of the subcontractors a judgment against the owners for the amount of their unpaid bills and recognized their respective liens against the camp house. The trial court rejected the owners’ third party demands against the contractors. On the contractors’ reconven-tional demand, the trial court awarded them judgment against the owners for $3,769.25, the cost of authorized additions to the camp house less the subcontractors’ respective claims. We modify and affirm.

Since the owners did not file the construction contract and provide a bond, there is no question the subcontractors were entitled to a personal judgment against the owners for materials and labor supplied by them, and for recognition of their liens against the property, under the express provisions of LSA-R.S. 9:4812.

The owners complain that the trial court erred in denying their third party demand against the contractors and was further in error in giving the contractors a judgment against them on the reconventional demand.

The owners argue that, other than for services and materials worth some $900, the contractors have not proven there were any “authorized extras” which would increase the contracted price of the camp house.

The law is well settled that a contractor who adds extras to a construction with the knowledge of the owner or upon the owner’s authorization, is entitled to be paid the cost of such extras. LSA—C.C. Arts. 2763, 2764; Groner v. Cavender, 16 La.App. 565, 133 So. 825 (2d Cir. 1931); Huey Lumber and Millwork, Inc. v. Jackson, 212 So.2d 538 (La.App., 1st Cir. 1968); Gulotta v. Swinney, 143 So.2d 775 (La.App., 1st Cir. 1972).

At trial, one of the owners admitted making certain changes in the plans but indicated he thought the cost of these changes would be relatively insignificant and not greatly affect the price of the camp house. However, several of the subcontractors, the contractors, and other workers testified to the numerous and extensive changes required by Stewart Scott, one of the owners.

After reviewing the testimony and exhibits presented at trial, we hold the evidence clearly supports the trial judge’s finding that the owners’ authorized changes in the plans and specifications of the camp house increased the cost of construction. However, we cannot say his finding that “extras” added a cost of $7,304.61 to the $29,000 ceiling price was justified, since the contractors did not itemize the increased cost of the “extras” as they were added, and the evidence adduced to support the judge’s finding consisted mainly of estimates made by the contractors after construction was fully completed. Even so, the trial judge properly found that under the terms of the contract the contractors were not entitled to the $2600 bonus because the camp house was not constructed for less than the ceiling price.

The owners additionally urge the contractors were precluded from offering evidence of extras to defeat the owners’ third party demand under C.C.P. Art. 1005 because this constituted an affirmative defense and was not specifically set forth. This contention is without merit. The contractors set forth the facts constituting their defense in their answer and reconven-tional demand, and the attached statement. The owners make no claim they did not have fair notice of this defense, or that they were surprised or prejudiced by it. Under these circumstances the contractors’ factual allegations were adequate as an affirmative defense. Paxton v. Ballard, 289 So.2d 85 (La.1974); Budget Plan of Baton Rouge, Inc. v. Talbert, 276 So.2d 297 (La.1973); Cox v. W. M. Heroman and Company, Inc., 298 So.2d 848 (La.1974); Cambrice v. Fern Supply Company, Inc., 285 So.2d 863 (La.App., 4th Cir. 1973).

The case relied upon by the owners, McGowan-Rigsby Supply, Inc. v. Charles Carter and Company, 268 So.2d 716 (La.App., 1st Cir. 1972), is distinguishable as there the third party demand made no claim for the relief sought, nor was there a prayer for it. As noted above, the contractors here clearly advised the owners that the issue between them was the “ . many costly extras. . . . ”

The owners’ last complaint is that the trial judge erred in awarding the contractors’ judgment when the prayer in the contractors’ reconventional demand asked only for the $2600 bonus, to which they were not entitled, along with $30 expended for a fireplace jack.

In the contractors’ reconventional demand they allege that a statement asking for a final payment of $10,363.10 was presented to the owners but has remained unpaid. They attached a copy of this statement to their reconventional demand. Of this $10,363.10, a sum of $7,733.10 was listed as amounts due to various subcontractors and materialmen (including plaintiffs in these consolidated cases) for which the contractors were liable but which the construction contract obligated the owners to pay. The remainder of the amount on the statement was for the $2600 bonus, to which the contractors were not entitled, and $30 for a fireplace jack provided by the contractors. Since the contractors had primary liability for payment of these amounts, the trial judge correctly awarded the contractors those amounts previously paid by them, or still due to subcontractors not parties to this litigation. Even though the reconven-tional demand did not expressly pray for such relief, this award was proper under the provisions of LSA-C.C.P. Art. 862. Such a result is consistent with the liberal interpretation to be given the Code of Civil Procedure, C.C.P. Art. 5051; Budget Plan of Baton Rouge, Inc. v. Talbert, supra.

After examining the testimony and evidence introduced at trial, and the lower court’s reasons for judgment, we have found the trial judge committed an error in computation caused by his reliance on the inadequate evidence in ascertaining the additional cost required by construction of the “extras”.

The correct figure for the adjusted ceiling on the camp house is $34,846.94. This is computed by adding the amount actually withdrawn from the construction account as of July 24, 1974 (i.e., $27,083.84) to the adjusted amount of the contractors’ final statement of July 24, 1974 (i.e., the total amount of the statement, $10,363.10, less the $2600 bonus to which the contractors were not entitled under the terms of the contract, leaving a difference of $7,763.10).

Our review further indicates the owners have previously paid $27,300 on the cost incurred by the contractors, reflected by the disbursements from the special construction account, along with an amount of $2,137.93 paid directly to one material supplier by the owners. Subtracting the total of these two sums from the cost of construction, there remains $5,409.01 still due. After reducing this by $3,535.36 awarded to plaintiffs-subcontractors, the contractors are entitled to a judgment against the owners for $1,873.65.

For the foregoing reasons, we reduce the trial court judgment in favor of Bert T. Carlin and Jeffy Cole and against Stewart M. Scott, Jr. and Phillip A. Rosamond to One Thousand Eight Hundred Seventy Three and 65/100 ($1,873.65) Dollars. As modified, we affirm the judgment of the trial court. Costs on appeal are assessed against Burt T. Carlin and Jeffy Cole.

Modified and affirmed.

      . A copy of the contract was attached to the third party demand and reads as follows:
      “This agreement made this 22nd day of March, 1974, by and between Mr. Stewart Scott hereinafter known as the owner, and Bert T. Carlin, and Jeffy Cole, D/B/A C and C Construction Co., hereinafter known as the contractor.
      “Wittnesseth
      “Section 1
      “The contractor agrees to furnish all work, materials, services, tools, labor equipment, and supplies, necessary or required to fully perform, and complete, and will complete without any exceptions the work covered by this contract as described in the contract plans and specifications, which have been marked by both parties for identification. Contractor further agrees to furnish builders risk insurance, workmans compensation, and comprehensive liability insurance so as to protect the owner.
      “Section 2
      “The owner agrees to pay to the contractor a sum of money equal to the actual cost of all materials, labor, labor taxes, (state and federal) insurance, and any other expenses incurred, which are directly involved in the performance of said work. The owner further agrees to pay to the contractor the sum of $2,600.00) two thousand six hundred and no/100_Dollars, as a bonus for services rendered. Bonus is to be paid after work is complete and accepted by the owner. It is expressly understood by both parties, that there will be no monies paid by the owner to the contractor in excess of $29,000.00) twenty nine thousand and no/100.-Dollars, which shall be known as the ceiling price, however should the owner wish to make changes to the contract plans or specifications, which result in a change of actual cost, either additions, or deductions, then the ceiling price shall change accordingly.
      “Section 3
      “Payment to the contractor shall be made as follows: The contractor shall furnish to the owner an itemized statement of cost for all expenses incurred, on or about the 1st day of each suceeding month after construction has commenced, for approval. The owner shall then pay to the contractor the total of said statement within 5 days.”

      . We need not distinguish whether the facts asserting the affirmative defense are contained in the contractors’ answer or reconventional demand since under LSA-C.C.P. Art. 1005, “ . . . [I]f a party has mistakenly designated an affirmative defense as an incidental demand, or an incidental demand as an affirmative defense, and if justice so requires, the court, on such terms as it may prescribe, shall treat the pleading as if there had been a proper designation.”

      . “Art. 862. Relief granted under pleadings; sufficiency of prayer
      “Except as provided in Article 1703, a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief.”

      . “Art. 5051 Liberal construction of articles
      “The articles of this Code are to be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves.”


text:
    Alfred RICHARDSON, Plaintiff-Appellee, v. DEPARTMENT OF HIGHWAYS, State of Louisiana, et al., Defendants-Appellants.
    No. 13231.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.

      Blanchard, Walker, O’Quin & Roberts by Jerald L. Perlman, Shreveport, for defendants-appellants.
    Bethard & Davis by J. Q. Davis, Coushat-ta, for plaintiff-appellee.
    Before PRICE, MARVIN and JONES, JJ.
   JONES, Judge.

Defendants appeal a trial court judgment awarding $1550 to plaintiff as damages arising out of a vehicular collision. As modified, we affirm.

Alfred Richardson was driving south on Louisiana Highway 510 in DeSoto Parish at approximately 9:45 A.M. The asphalt road was wet and slick from an earlier rain and it was still misting. As he entered a curve going to his right he met a northbound Louisiana Department of Highways dump truck driven by Marlin T. Short. A collision occurred with both Richardson and Short claiming the cause of the accident was the other party encroaching on his lane of travel. As a result of the collision, Richardson’s vehicle was forced completely off the paved surface on his side of the road. It came to rest with only the front wheels on the pavement, and the vehicle at a right angle to the road. The Department of Highway’s dump truck spun 180 degrees and came to rest facing back the way it had come, on Richardson’s side of the road and completely off the paved surface. Richardson suffered some minor physical injuries. His car had extensive body damage along the driver’s side of the car. There were no witnesses to the accident other than the drivers.

Defendants first claim the trial judge erred in considering personal knowledge not properly in the record, and in finding the evidence supported Richardson’s version of the accident.

In his reasons for judgment, the trial judge stated he was familiar with the location of the accident and that the slope of the road at that location would cause a driver in Short’s lane of travel to tend to encroach upon the the other lane. However, we need not decide whether this indicates the trial judge improperly used knowledge of facts not in the record as we find the position of the vehicles after the accident, the photographs in evidence, the testimony of Leether Demease, who stated she observed glass (indicating the point of collision) near the edge of the paved surface on Richardson’s side of the road, and the testimony of plaintiff will amply support the trial court’s finding that Short’s truck encroached upon Richardson’s lane of travel.

Defendants also complain the award of $1000 to Richardson for pain and suffering was excessive in light of his minimal medical expenses. The evidence shows Richardson suffered a small hematoma on his scalp causing headaches and dizziness, and muscle strains in his back and shoulders. He received shots of muscle relaxant on several occasions and was referred to Charity Hospital for possible head injuries. While an award of $1000 may be somewhat high, it is still within the broad discretion of the trial court. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

Travelers Insurance Company also complains the trial court erroneously awarded judgment against it, in light of the total absence from the record of any evidence of the existence of insurance coverage. In his petition Richardson alleged Travelers was the insurance carrier for the Department of Highways. Travelers responded with a general denial, and further stated the policy of insurance is the best evidence of its contents and provisions. The insurance policy was never introduced into evidence. In this situation, the lower court should not have held Travelers liable. Earhardt v. Dermody, 242 So.2d 80 (La.App., 4th Cir. 1970); Stewart v. Liberty Mutual Insurance Company, 315 So.2d 337 (La.App., 1st Cir. 1975).

For the foregoing reasons, we modify the judgment of the trial court to reject plaintiff’s demand against Travelers Insurance Company and recast the judgment as follows:

It is ordered, adjudged, and decreed that the demands against Travelers Insurance Company are rejected;

It is further ordered, adjudged and decreed that there be judgment in favor of the plaintiff, Alfred Richardson, and against the defendants, Marlin T. Short and the State of Louisiana, Department of Highways, in solido, in the sum of One Thousand Five Hundred Fifty and No/100 ($1,550.00) Dollars, together with seven percent (7%) per annum interest thereon from judicial demand until paid, defendants to pay all costs, including costs of this appeal.

Modified and affirmed.