author: GUIDRY, Judge.

text:
    Joseph G. VIDRINE, Plaintiff-Appellant, v. MISSOURI FARM ASSOCIATION, Defendant-Appellee.
    No. 5655.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.
    Rehearing Denied Dec. 15, 1976.
    Writ Refused Feb. 11, 1977.
    Caliste Beard, Jr., and Stanford B. Gau-thier, II, Lafayette, for plaintiff-appellant.

      Voorhies & Labbe by Mark Bienvenu, Lafayette, for defendant-appellee.
    Before HOOD, CULPEPPER and GUI-DRY, JJ.
   GUIDRY, Judge.

Plaintiff instituted this action against Missouri Farm Association to recover damages for personal injuries allegedly sustained as a result of a fall. The defendant is the liability insurer of the premises where the accident occurred. Nelson Vidrine, father of the plaintiff, is the owner of the insured premises. The trial court, after a hearing on the merits, dismissed the plaintiff’s suit. Plaintiff appeals.

The record reflects that on or about July 27, 1974, plaintiff, while visiting his family in Scott, Louisiana, accompanied his father to their farm to see a new cow. Plaintiff, who was 26 years of age at the time of the accident, had been to the recently acquired farm on several occasions. On the farm at the time was an unfinished dwelling, a garage, and to the rear of these buildings was a barn where the cows were kept. The farm was located in Lafayette Parish, between Duson and Scott. Plaintiff and his father, who were the only witnesses testifying at the trial of this matter, stated that the night before their visit to the farm it had rained all night. Plaintiff testified that as they drove into the farm the next morning there were puddles of water on the ground and where there was no water it was muddy. Mr. Vidrine, proceeded at this time to pull his car into the garage where both he and plaintiff got out.

Leading from the garage to the barn was a walk constructed of heavy road planks which were simply laid on the ground. The boardwalk consisted of two (2) boards each approximately ten (10) inches wide, two (2) inches thick, and twenty (20) feet long. The two boards lay abreast of one another. Mr. Vidrine stated that the boards had no nails or holes in them.

Plaintiff, wearing dress shoes at the time, stepped onto the boardwalk leading to the barn. Mr. Vidrine, who was standing behind his son, testified that he knew the boards had been slipping but neglected to tell his son. The evidence adduced from the two witnesses, plaintiff and his father, revealed that after plaintiff took 2 or 3 steps one of the boards slipped on the wet ground causing him to fall and injure himself. Plaintiff stated that he had never walked on these boards before the accident. As a result of the accident plaintiff allegedly sustained an injury to his back.

In dismissing plaintiff’s suit the trial court found that the landowner-insured was free from fault and that the accident and ensuing injuries were caused solely by negligence of the plaintiff. In reaching these conclusions the trial court determined that the plaintiff was an “invitee” of the landowner-insured and that the latter was under no duty to alter the premises to make them absolutely safe and could assume, under the circumstances, that plaintiff would conduct himself in a reasonably prudent manner and avoid apparent dangers.

In the instant matter the liability of the landowner, if any, must be predicated on the concept of fault under R.C.C. Articles 2315 and 2316. Before a determination of liability can be made we must first inquire as to whether any causal relationship exists between the harm to the plaintiff and the landowner’s alleged negligent conduct. Thus if the plaintiff can show that he probably would not have suffered the injury complained of but for his father’s conduct, he has carried his burden of proof relative to cause in fact. Stewart v. Gibson Products Company of Natchitoches Parish Louisiana, Inc., 300 So.2d 870 (La.App.3rd Cir. 1974); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (La.1972); Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406 (La.1976). There can be no question that the accident would not have occurred but for the laying of the boardwalk by the landowner.

Although, as aforesaid, it is established that the landowner’s conduct in laying the boardwalk was a cause in fact of plaintiff’s injury, this alone does not establish the former’s responsibility in damages for such injury. Rather, in addition, before plaintiff can be permitted to recover for such conduct, it must be established that the conduct complained of constituted a breach of a legal duty imposed to protect against the particular risk involved. As set forth in the recent case of Shelton v. Aetna Casualty & Surety Company, supra:

“A finding that defendant’s conduct was the cause in fact of plaintiff’s injury, however, does not establish liability. In addition, we are required to ascertain whether the landowner breached a legal duty imposed to protect against the particular risk involved. Smolinski v. Taulli, 276 So.2d 286 (La.1973); Hill v. Lundin & Associates, Inc., supra; Pierre v. Allstate Insurance Co., 251 La. 471, 242 So.2d 821 (1971); Page v. Green, 306 So.2d 847 (La.App.2d Cir. 1975). In making this determination, the following inquiries must be made: (1) What, if any, duty was owed by the landowner to the plaintiff? (2) Was there a breach of this duty? (3) Was the risk, and harm caused, within the scope of protection afforded by the duty breached? Jones v. Robbins, [La., 289 So.2d 104] supra; Hill v. Lundin & Associates, Inc., supra; Thomas v. Hanover Insurance Co., 321 So.2d 30 (La.App.3rd Cir. 1975).’’

In reviewing the trial judge’s reasons for judgment we note that he defined, for the purpose of determining liability under R.C.C. Articles 2315 and 2316, the duties of the landowner in terms of the status of the person entering the land, i. e., invitee. As stated by our Supreme Court in Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.Sup.Ct., 1976) this approach, which utilizes the common law classifications of invitee-licensee-trespasser is of little help, as the proper test to be applied in determining a landowner’s liability under R.C.C. Articles 2315 and 2316 is as follows:

“ ‘whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff’s status as trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative.’ ”

Thus in determining the duty owed by the landowner to the plaintiff it is not necessary to classify plaintiff as an invitee, but rather it is appropriate to ascertain this duty by examining the particular facts before us. Shelton v. Aetna Casualty & Surety Company, supra. Under the facts, as fully reviewed above, we conclude that the landowner owed plaintiff a duty to discover any unreasonably dangerous conditions on the premises and to either correct the condition or warn him of their existence. Shelton v. Aetna Casualty & Surety Company, supra; Natal v. Phoenix Assurance Co., 305 So.2d 438 (La.Sup.Ct., 1974); Foggin v. General Guaranty Insurance Co., 250 La. 347, 195 So.2d 636 (1967).

We determine that this duty was not breached. There was no showing that this boardwalk was unreasonably dangerous, therefore, the landowner did not incur a duty of prior discovery, correction and/or warning. In addition, it is well settled that a landowner is not liable for an injury resulting from a condition which should have been observed by an individual in the exercise of reasonable care or which was as obvious to a visitor as to the landowner. Shelton v. Aetna Casualty & Surety Company, supra; Alexander v. General Accident Fire and Life Assurance Corp., 98 So.2d 730 (La.App.1st Cir. 1957); writ denied Feb. 10, 1958. This rule is clearly applicable in the instant matter when considering that plaintiff had visited the farm on several previous occasions; was familiar with the muddy conditions; observed the construction and position of the boardwalk; and yet proceeded on. We thus determine, as did the trial court, that there was no breach of duty on the part of the landowner and that plaintiff’s own negligence was the sole cause of the accident.

Plaintiff next contends that the trial court committed error in not finding liability on the part of the landowner under R.C.C. Article 2317. The cited article formed the basis for the recent Supreme Court holding that damage caused by a defect in a “thing” in the custody of a person imposes strict liability upon that person for the damages caused although the custodian be not personally negligent. Loescher v. Parr, 324 So.2d 441 (La.1976). In the cited case a large magnolia tree fell on the plaintiff’s automobile. The tree was ninety percent rotted out and hollow. The owner of the tree was unaware of the tree’s defective condition. In imposing strict liability on the landowner for the damages caused by the fall of the defective tree the court stated as follows:

“The owner-guardian of the defective tree is therefore liable for his legal fault in maintaining the defective tree and in preventing its vice from causing injury, unless he proves that the damage was caused by the fault of the victim, by the fault of a third person, or by an irresistible force.”

The Loescher case is inapposite from a factual standpoint and the holding of that case is therefore inapplicable. In the instant case although plaintiff’s injury was caused by a “thing” in the custody of the landowner-insured, the “thing” was without defect. In addition, as found by the trial court with which finding we agree, the damage occasioned was caused by the fault of the plaintiff.

Plaintiff finally asserts that the trial court erred in not applying R.C.C. Article 2323 which he contends sets forth a doctrine of comparative negligence. We can find no Louisiana jurisprudence which sanctions such a concept. This notwithstanding, it is obvious that the doctrine of comparative negligence has no applicability in the case at bar. The doctrine of comparative negligence is necessarily based on the theory that both litigants were found to be at fault. Such is not the situation here where we have determined that defendant is free from fault and that plaintiff’s negligence was the sole cause of the accident.

For the foregoing reasons the judgment appealed from is affirmed. All costs to be borne by the plaintiff-appellant.

AFFIRMED.


source: Caselaw Access Project

author: GUIDRY, Judge. HOOD, Judge

license: Public Domain

text:
    John H. ARTIGUE, Plaintiff-Appellee, v. LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY, Defendant-Appellant.
    No. 5660.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.
    Dissenting Opinion Nov. 15, 1976.
    Rehearing Denied Dec. 15, 1976.
    Writ Refused Feb. 14, 1977.

      Davidson, Meaux, Onebane & Donohoe by Robert M. Mahony, Lafayette, for defendant-appellant.
    Logan & DeLaunay by Gerald C. DeLau-nay, Lafayette, for plaintiff-appellee.
    Before HOOD, DOMENGEAUX and GUIDRY, JJ.
   GUIDRY, Judge.

In this suit plaintiff seeks the recovery of statutory penalties and attorney’s fees, as provided for under LSA-R.S. 22:658, for the alleged arbitrary and capricious failure of defendant to timely pay the amount due plaintiff under a “Home Owner’s” insurance policy issued to him. The trial court rendered judgment in favor of plaintiff assessing penalties of 12% on the total amount of the loss or the sum of $10,824.00, plus attorney’s fees in the amount of $3,000.00, with legal interest on such sums from date of judicial demand, finding that defendant failed to make payment of the loss within sixty days after receipt of “satisfactory proofs of loss” and that its failure to do so was arbitrary and without probable cause. Defendant has appealed urging that the trial court erred in finding that payment was not made within the 60 day delay allowed by the cited statute; and, in any event, if such payment was made after such period the trial court erred in finding that defendant’s failure to pay was arbitrary or without probable cause. Plaintiff answered defendant’s appeal and seeks an increase in attorney’s fees.

There is no substantial dispute as to the facts. Plaintiff was the owner of a large brick veneer residence located some 31/2 miles from the City of Lafayette. While such residence was under construction, i. e., sometime during the latter part of November, 1974, a small fire was detected in the garage. This fire was extinguished before any substantial damage occurred. An investigation into the cause of this fire was conducted by a Deputy Fire Marshal. This investigation disclosed that building material stored in the garage had been saturated with some type of petroleum product. The investigator opined that the fire started when this saturated building material ignited. Sometime prior to December 2, 1974, the residence was completed and plaintiff moved in. On the latter date, defendant issued a “Home Owner’s” insurance policy to plaintiff insuring the dwelling and contents, said policy providing coverage in the amount of $60,000.00 for the dwelling, $30,-000.00 for unscheduled personal property and additional living expenses in the amount of $12,000.00. On December 6, 1974, plaintiff and his family journeyed to New Orleans for a visit. During the early morning hours of December 7, 1974, plaintiff’s home and all contents therein were totally destroyed by fire. Plaintiff was informed of the fire by telephone and he and his family immediately returned to Lafayette. Because of alleged suspicious circumstances, i. e., a can containing about a gallon of gasoline being found in the driveway and a car coming out of a narrow dirt road near plaintiff’s home just prior to discovery of the fire, the State Fire Marshal was again asked to investigate the cause of the fire.

On December 10, 1974, the first business day following the fire, plaintiff called at Farm Bureau’s local office and reported the fire to their agents, Messrs. Castille and Melancon, indicating at that time that he wished to make a claim for total loss of the home and contents. On this visit plaintiff furnished these agents with a statement written in his own hand setting forth facts concerning the fire which were within his knowledge. In addition, defendant’s agent, Mr. Castille, completed a company form designated as “SWORN STATEMENT IN PROOF OF LOSS”, setting forth thereon all information requested. Plaintiff was not requested to sign this form. On this same day Mr. Melancon, defendant’s claim adjuster, went to the site of plaintiff’s former residence and took photographs. These photographs show unquestionably that plaintiff’s residence and all contents were totally destroyed. On December 19,1974, a second and more complete statement was secured from Mr. Artigue. On December 20, 1974, the two statements taken from plaintiff, the photographs, and the unsigned proof of loss form were received at defendant’s main office in Baton Rouge, Louisiana. On December 24, 1974, First National Bank of Lafayette, holder of a mortgage on the plaintiff’s home and loss payee under the Artigue insurance contract, forwarded to defendant an affidavit intended as a sworn proof of loss advising of the total destruction of the Artigue residence and demanding payment of all amounts due under its mortgage. Defendant admits to having received this document from First National Bank of Lafayette some few days following its execution. Sometime between the date of the fire and the latter part of December, 1974, plaintiff being dissatisfied with the progress being made on the settlement of his claim, retained counsel to secure payment of his insurance loss. Pursuant to a request from defendant, plaintiff furnished a list of the contents of his home with the valuation of each separate item, which list was received in Farm Bureau’s main office on January 3, 1975. The list referred to showed the contents lost in the fire to have a total value in excess of $43,-000.00. At the request of defendant, on January 21, 1975 plaintiff signed a “SWORN STATEMENT IN PROOF OF LOSS” before a Notary Public, which form was forwarded to defendant’s main office and received there on January 23, 1975. It is significant to note that the only material difference between the proof of loss form prepared on December 10, 1974 and received in Baton Rouge on December 20, 1974, with that prepared on January 21, 1975, and received in Baton Rouge on January 23, 1975, is that the latter bears the signature of plaintiff and the former does not. On March 18, 1975 (54 days following receipt of the proof of loss dated January 21, 1975; 74 days following receipt of the list and valuation of personal property lost; 88 days following receipt of the proof of loss dated December 10, 1975; and, well over 60 days following receipt of the proof of loss furnished by First National Bank of Lafayette) defendant issued and delivered to plaintiff its draft in payment of the full amount of loss, i. e., $90,200.00.

The substantial issues for determination are: (1) did defendant fail to make payment within sixty days after receipt of satisfactory proofs of loss; and, (2) if so was such failure arbitrary, capricious, or without probable cause.

DID DEFENDANT FAIL TO MAKE PAYMENT WITHIN THE DELAY PROVIDED FOR BY LSA-R.S. 22:658?

LSA-R.S. 22:658 provides as follows:

“All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney’s fees for the prosecution and collection of such amount. Provided, that all losses on policies covering automobiles, trucks, motor propelled vehicles and other property against fire and theft, the amount of the penalty in each of the above cases shall be 25% and all reasonable attorney’s fees.”

The trial court determined that defendant failed to make payment within the delay provided for by the cited statute reasoning that the proof of loss filed by the First National Bank of Lafayette, admittedly received in defendant’s main office more than 60 days prior to payment, was a sufficient compliance with the statute. The trial court opined that:

“. . . Section 22:658 provides that payment must be made within 60 days after receipt of satisfactory proof of loss from the insured, employee or any party in interest. Certainly the mortgagee is a party in interest whose proof of loss should be satisfactory to require payment.”

We neither approve or disapprove this holding of the trial court, rather we prefer to base our holding of statutory untimeliness of payment upon the finding that satisfactory proofs of loss were given by the insured and received in defendant’s main office on December 20, 1974 and certainly by January 3, 1975.

As is clear from the facts heretofore briefly outlined the insured met with defendant’s agents three days following the fire. At this meeting he gave all of the facts necessary for preparation of a proper proof of loss form, which was in fact prepared by the agent and although unsigned was forwarded to the main office. In addition, plaintiff furnished defendant with a signed statement which was supplemented by a later statement given on December 19, 1974. The unsigned proof of loss form, plaintiff’s signed statements, and photographs taken by defendant’s agent, all of which confirmed that there was a total loss under the policy, were received by defendant on December 20, 1974. On January 3, 1975 defendant received a complete list furnished by plaintiff detailing each personal item of unscheduled property which was destroyed in the fire. This list showed the total value of personal property destroyed to be in excess of $43,000.00.

It appears to be well settled that no proof of loss in writing is required by LSA-R.S. 22:658. Wilkins v. Allstate Insurance Company, 173 So.2d 199 (La.App. 1st Cir. 1965); Moore v. St. Paul Fire and Marine Insurance Company, 193 So.2d 882 (La.App. 3rd Cir. 1967); Gatte v. Coal Operators Casualty Company, 225 So.2d 256 (La.App. 3rd Cir. 1969) reversed on other grounds, 256 La. 325, 236 So.2d 485 (1970). In Gatte v. Coal Operators Casualty Company, supra, we stated:

“. . . it is not necessary that the proof of loss be in writing, or in any other formal style, so long as the defendant has actual knowledge of the facts . .

Clearly by January 3, 1975, defendant was possessed of all of the facts surrounding the fire loss sustained by plaintiff and the amount of such loss. It is admitted that defendant had not received by that date a formal proof of loss form signed by plaintiff, however, under the cited cases such, under the circumstances, was unnecessary. In connection with the latter we make mention of the fact that the record supports a finding that defendant’s agents deliberately refrained from securing plaintiff’s signature to the first proof of loss form completed on December 10, 1974, because they considered that until such was signed and received by the insurer the delay provided for by LSA-R.S. 22:658 would not commence to run. In this connection Mr. William B. Briggs, defendant’s district claim’s manager, testified as follows:

“Q. Do you know why no forms of this sort were furnished to him prior to that time?
A. Why?
Q. Right.
A. Well, at the particular time, we were not ready to — or the investigation of this claim was not completed. Mr. Artigue had not asked for a Proof of Loss form. We had just simply held up furnishing it to him until we were ready to furnish it.”

In this same vein defendant’s local adjuster, Mr. Alcee Melancon, testified as follows:

“Q. So you’re saying that you do not submit a proof of loss until your investigation is completed?
A. That’s correct. Normally.”

Under these circumstances, even if it be considered that the proof of loss submitted by plaintiff was technically deficient under the statute, because plaintiff failed to affix his signature thereto, we conclude, as did our Supreme Court in Gatte v. Coal Operators Casualty Company, supra, that the insurer waived the deficiency.

For these reasons we conclude that defendant’s payment to plaintiff on March 18, 1975, was untimely.

WAS DEFENDANT’S DELAY IN PAYMENT ARBITRARY, CAPRICIOUS OR WITHOUT PROBABLE CAUSE?

Defendant contends that it did not act arbitrarily, capriciously or without probable cause in delaying payment of plaintiff’s claim because there was some question concerning the values placed on the personal effects and secondly, because the fire was of suspicious origin and under investigation by the State Fire Marshal.

The record reflects that of the innumerable items of personal property set forth on the list of January 3,1975, defendant questioned the value of about ten items. Plaintiff, through counsel, promptly responded to such questions and furnished such additional information as was requested. In addition to this circumstance it is noted that the total valuation of personal property originally furnished by plaintiff amounted to a sum in excess of $43,000.00 while the policy covered contents only to the extent of $30,000.00. Defendant eventually paid its policy limits of $30,000.00. There is simply no merit to defendant’s contention that it withheld payment because it questioned the value of the items of personal property.

Defendant’s remaining contention, that it was entitled to delay payment of this claim because the fire was of suspicious origin and under investigation by the State Fire Marshal is equally without merit.

As stated in Baghramain v. MFA Mutual Insurance Company, 315 So.2d 849 (La.App. 3rd Cir. 1975), writs refused October 13, 1975:

“To sustain the defense of arson the insurer has the burden of proving by a preponderance of evidence that (1) the fire was of incendiary origin, and (2) plaintiff was responsible for it. Proof may be, and invariably is, by circumstantial evidence. When proof is circumstantial, the evidence must be so convincing that it will sustain no other reasonable hypothesis but that plaintiff was responsible for the fire. Sumrall v. Providence Washington Ins. Co., 221 La. 633, 60 So.2d 68 (1952).”

The record in this case clearly supports a finding that the defendant insurer did not have at any time prior to the expiration of the 60 day delay sufficient information on which to base a judgment that the fire was of incendiary origin and absolutely no evidence whatever indicating that plaintiff was responsible for the fire. To the contrary, defendant’s employees and the Deputy Fire Marshal who conducted the investigation all candidly testified that no evidence, sufficient to justify a conclusion that the fire was of incendiary origin, was ever discovered. It is true that on the date of payment the Fire Marshal had not yet closed his file, however, as we determined in Baghramain, supra, there is no law authorizing an insurer to deny a claim on the basis that the Fire Marshal has not closed his file.

Defendant relies on Headrick v. Pennsylvania Millers Mutual Insurance Company, 257 La. 1101, 245 So.2d 324 (1971) in support of the contention that its untimely payment was neither arbitrary nor capricious. Headrick is inapposite from a factual standpoint. Although, in Headrick, as in this case, the insurer never formally denied the claim, in Headrick the insurer had before it prior to expiration of the sixty day delay, sufficient information to justify a conclusion that the fire was of incendiary origin and that the homeowner was responsible for the fire. As aforestated, in the instant case defendant was never possessed of any concrete evidence indicating that the fire was the result of arson or that plaintiff was responsible for the fire. In addition, whatever suspicions defendant may have entertained as a result of the factual circumstances previously related, i.e., a gas can being found in the driveway and a speeding car being seen leaving the road leading to plaintiff’s home, were quelled long prior to expiration of the sixty day period reckoning from December 20, 1974.

The trial court was clearly correct in finding defendant’s untimely payment of this insurance claim to be without probable cause.

The trial judge awarded plaintiff $3,000.00 as attorney’s fees. Defendant does not seriously oppose this award as being excessive. Plaintiff has answered the appeal and contends that such award should be increased so as to compensate him for the additional legal work necessitated by this appeal.

The amount awarded as attorney’s fees is left largely to the discretion of the trial court. The factors which are generally considered in determining the amount of such an award include the degree of professional skill and ability exercised, the amount of the claim, and the amount recovered for the plaintiff, and the time devoted to the case. Each case is considered in light of its own facts and circumstances. In all instances, however, the amount awarded must be reasonable. Bezue v. Hartford Accident and Indemnity Company, 224 So.2d 76 (La.App. 1st Cir. 1969); Ray v. Superior Iron Works and Supply Company, Inc., 284 So.2d 140 (La.App. 3rd Cir. 1973).

We have reviewed the record in this case and find the amount awarded by the trial court as attorney’s fees to be reasonable and sufficient to compensate plaintiff’s counsel for work on both the trial and appellate level.

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

AFFIRMED.

DOMENGEAUX, J., concurs in the opinion but would increase the attorney fees an additional $500.00 so as to compensate ap-pellee for work done on appeal. Horn v. Vancouver, 322 So.2d 816 (La.App. 3rd Cir. 1975).

HOOD, J., dissents and assigns reasons.

HOOD, Judge

(dissenting).

I cannot agree with my colleagues that plaintiff is entitled to recover penalties and attorney’s fees.

In my opinion, defendant paid the claim “within sixty days after receipt of satisfactory proofs of loss from the insured,” as required by LSA-R.S. 22:658. Even if the facts should justify a conclusion that payment was delayed more than sixty days after a satisfactory proof of loss was filed, I think any delay which may have occurred was fully justified, and that defendant was not arbitrary, capricious, or without probable cause in failing to make the payment sooner.

Courts have held many times that LSA-R.S. 22:658 is a penal statute and that it must be strictly construed. Penalties may not be assessed merely because payment was delayed more than 60 days after receipt of proof of loss. They may be assessed only where the failure to pay within the 60 day period is arbitrary, capricious or without probable cause. Headrick v. Pennsylvania Millers Mutual Insurance Company, 257 La. 1101, 245 So.2d 324 (1971); Reed v. United States Fidelity & Guaranty Company, 302 So.2d 354 (La.App. 3 Cir. 1974); Nichols v. Iowa Mutual Insurance Company, 232 La. 856, 95 So.2d 338 (1957).

My colleagues concede that defendant did not receive “a formal proof of loss form signed by plaintiff” until January 23, 1975, and that payment of the full amount provided in the policy was made to plaintiff within 60 days (actually, within 54 days) after that date. They hold, however, that “satisfactory proofs of loss were given by the insured and received in defendant’s main office on December 20, 1974, and certainly by January 3,1975,” and that defendant was arbitrary and capricious and liable for penalties because payment was not made until 74 days after the last mentioned date. The majority admits that the documents which they consider to be “satisfactory proofs of loss” were unsigned and were “technically deficient under the statute,” but they conclude (without giving any basis for such a conclusion) that defendant had “waived the deficiency,” and that the harsh penal provision of LSA-R.S. 22:658 should be invoked.

I respectfully suggest that all of the information and all of the documents which were furnished by plaintiff prior to January 23,1975, cannot reasonably be considered as “satisfactory proofs of loss,” or as a basis on which defendant could determine its obligations under the policy. I also suggest that there is nothing in the record which will support the holding that defendant waived the filing of a proof of loss, as required by the policy and by LSA-R.S. 22:658. The evidence, on the contrary, shows that defendant consistently required a formal proof of loss, it diligently pursued its investigation so that payment could be made within 60 days after that proof of loss was filed, and it voluntarily paid the full amount of the policy within that 60 day period, even though it could not complete its investigation within that time.

On December 10, 1974, plaintiff reported the fire to an adjuster for defendant, and that adjuster partially filled out a form entitled “Sworn Statement in Proof of Loss.” The information filled out on that form indicated that a fire occurred at plaintiff’s home on December 7, 1974, that the total insurance was $60,000.00 on the building and $30,000.00 on the contents, and that the cash value of the property at the time of the loss was $70,000.00. No amounts were filled in to show “The Whole Loss and Damage” or to show “The amount claimed under policy.” Instead, the form merely contains a notation “Total loss — ?”. There is nothing in the form to show that a claim was being made, or if so, the amount which was being claimed, or the amount of damages which had been sustained. The form was not signed by anyone. The District Claims Manager for the insurer explained that the agent or adjuster ordinarily uses a “Notice of Loss” to inform the company when he learns of a loss, and that in this case, the adjuster “just started on the wrong form.” The adjuster testified that he never intended for the partially filled-out form to be a proof of loss or a claim, that he never asked plaintiff to fill out such a form and that he did not make notations on that form for plaintiff or to assist him in submitting a claim. In any event, the unsigned form which was partially filled out by the adjuster shows that no demand or claim was being made by anyone, and it did not purport to show the loss sustained by the insured. That document thus could not serve as a proof of loss or as a claim by plaintiff. I am unable to agree with the holding that the only material difference between the form partially filled out by the adjuster on December 10, 1974 and the formal proof of loss filed by plaintiff on January 23, 1975 is that the latter bears the signature of plaintiff and the former does not.

Artigue admits that the adjuster informed him on December 10, 1974 that he would have to make out a list of the contents which were in the house at the time of the fire. Within two weeks thereafter plaintiff engaged an attorney to assist him in handling his claim, and he has been represented by capable counsel since the latter part of December, 1974. His attorney obviously was aware of the fact that a proof of loss had to be submitted, because he promptly made up a list of the contents of the house at the time of the fire, he made out and had plaintiff sign a formal proof of loss which shows the amount of the loss and the amount claimed, and he filed that proof of loss with the insurer on January 23,1975. That document filed on January 23, 1975 constituted the first information defendant received as to the amount claimed by plaintiff. The full amount of the policy was paid within 60 days after that proof of loss was filed.

The list of contents prepared by plaintiff’s attorney was received by defendant on January 3, 1975. Defendant challenged the values placed on some of the items which were included in that list, and for reasons to be given later I think the defendant’s objections were reasonable. But, even if the list should have been accepted at its face value, it could not have served as a proof of loss as to damage to the house.

Plaintiff furnished defendant’s adjuster with a brief hand written statement on December 10, 1974, when he first reported the fire. That statement, however, makes no reference to the value of the house or its contents, or the amount of the loss sustained by plaintiff, and it contains nothing to indicate that plaintiff was asserting a claim. The entire statement apparently was intended to establish that plaintiff did not start the fire. Plaintiff explained in that statement that he was in a motel in New Orleans at the time the fire occurred, that he was notified of the fire by a telephone call, and that he came home the next morning. It concludes with the declaration: “I don’t know of anyone who would, or could have burned my house. This is a true statement.”

My colleagues state that on December 19, 1974, a second statement was secured from Artigue and was furnished to defendant on the following day. They apparently hold that that statement constituted a satisfactory proof of loss. Defendant’s adjuster testified that he obtained a more complete statement from Artigue on December 19, but the statement was never introduced into evidence and there is nothing in the record to show what was contained in it. It cannot serve as a proof of loss.

The insurance policy issued by defendant covering this loss provides that within 60 days after the loss, . . the insured shall render to this company a proof of loss, signed and sworn to by the insured,” stating among other things “the actual cash value of each item thereof and the amount of loss thereto, all incumbrances thereon, all other contracts of insurance,” and other information.

The record shows without question, I think, that plaintiff did not furnish defendant with a proof of loss as required by the policy and by LSA-R.S. 22:658 until January 23, 1975. Payment was made within 60 days after that date, so no penalties or attorney’s fees are due by defendant.

Assuming, alternatively, that the documents filed by plaintiff prior to January 23, 1975 constituted “sufficient proofs of loss,” the evidence available to defendant at that time made it highly questionable as to whether defendant was liable at all, and under those circumstances I think defendant was entitled to a reasonable delay to enable it to investigate the claim.

No one questions the fact that the two fires in plaintiff’s home were caused by arson. My colleagues and I cannot, and do not, suggest that they were started by plaintiff. The evidence which was available to defendant up to the time payment was made, however, was sufficient to reasonably justify a suspicion that the fire was caused by the insured.

The first fire occurred during the early morning hours of November 18, 1974, before the construction of plaintiff’s new home had been completed. Artigue showed that he had left the premises an hour before the fire occurred, and that no one was present at the home when it started. That fire was extinguished without much damage, but a deputy fire marshall was notified within' two hours after it occurred, and he found that some building materials stored in the garage of the house had been saturated with tractor fuel, or “some type of petroleum product,” and that they had been ignited. He suspicioned arson, and he began an investigation of the fire.

While that investigation was being conducted, and before it had been completed, the house again caught fire and was completely destroyed. The second fire began about midnight on December 7, 1974, and it prevented the fire marshall from completing his investigation of the first one. The deputy fire marshall was called to investigate the second fire, and upon his arrival at the scene he found a gasoline can, containing approximately one gallon of gasoline, just outside the house on the driveway. He learned that immediately after the fire started a car with “a white top and a red body” was seen driving at a fast rate of speed away from the home, on the narrow dirt road which led from the highway to plaintiff’s new residence. A witness stated to the investigator that the car was “coming at a high speed and didn’t bother to stop and share the small dirt road.” The vehicle fitted the description of an automobile owned by a relative of the plaintiff. Plaintiff showed that he had left the house before the second fire started, and that no one was present at that time.

The deputy fire marshall began a thorough investigation of the second fire, and he did not complete that investigation until November 4,1975, long after defendant had paid the full amount called for under the policy.

Defendant would not be liable under the policy if the fire was of incendiary origin and plaintiff was responsible for it. The evidence indicated strongly that the fire originated by arson, and the facts justified a reasonable suspicion that the plaintiff was responsible for it. I think defendant had the right to delay payment until it could investigate and determine whether plaintiff was responsible for the loss. The evidence shows that defendant pursued its investigation diligently, and that it made payment of the full amount of the policy even before that investigation could be completed.

On January 21, 1975, defendant mailed a “Proof of Loss” to plaintiff with the request that he fill it out and have it notarized. The completed form was returned on January 23. On January 29, defendant’s District Claims Manager wrote to its adjuster, enclosing a photocopy of the proof of loss which had been furnished by plaintiff six days earlier, informing the adjuster that the claim must be paid or acted upon within 60 days, urging him to furnish the Fire Marshall with all the information he had, advising that “the Fire Marshall will now try to obtain a polygraph test from the insured, regarding this fire,” and instructing the adjuster to impress upon the Fire Marshall the fact that a decision on the claim would have to be made within the next 60 days and that the company would like the benefit of his full investigation and report prior to that time. On February 3, 1975, defendant’s District Claims Manager wrote to the Fire Marshall, sending him all the information defendant had relating to the fire, and stating “If we could be of any further assistance, please so advise.” I believe that defendant did everything it could to rush the completion of that investigation, so that it could determine whether it was liable under the policy.

In my opinion, defendant also was justified in delaying payment until it could investigate the claims made by plaintiff for the loss of contents of the house. In the list of contents which was submitted to defendant on January 3, 1975, plaintiff valued the lost contents at $43,000.00. Defendant promptly questioned the values placed on some of the listed items. My colleagues dismiss defendant’s argument that it was entitled to a reasonable time within which to investigate those claimed values by stating that “there is simply no merit to defendant’s contention that it withheld payment because it questioned the. value of the items of personal property.” I disagree with my colleagues as to the merits of that argument.

The list of contents furnished by plaintiff consisted of six type written pages. The values placed on many items on that list appear to be inflated, and I believe defendant should have been allowed a reasonable time to investigate them. For example, the following are some of the items listed in that document:

After defendant questioned some of these values, it received a letter from plaintiff’s attorney on February 21, 1975, explaining the values placed on some of the items. Most of the explanations given, however, were indefinite and I think unsatisfactory. In several instances, for instance, he explains that “he (Artigue) does not have any receipts.” As to the antique mirror, Artigue “indicates that this item was purchased for cash at an auction in New Orleans.” To support his claim of $15,000.00 for the king sized bedroom sets, he explains, “that these were purchased throughout the past several years in New Orleans, Lafayette and Baton Rouge. He (Artigue) has no records of the exact prices. He (Artigue) indicates that two of the sets were Broyhill and that the others were of like quality.” With reference to plaintiff’s wardrobe, and that of his wife, he states simply that they were purchased locally with cash, and that he has no receipts for them.

Defendant nevertheless did not delay payment. It paid the full face amount of the policy, $30,000.00, for the lost contents within 25 days after defendant received the “explanation” from plaintiff’s attorney. I think the payment thus was made within 25 days (instead of 60) from the time a satisfactory proof of claim was submitted, and that the delay was reasonable. Certainly the insurer was not arbitrary or capricious.

In Antoine v. Houston Fire and Casualty Company, 232 So.2d 588 (La.App. 3 Cir. 1970), we held that the insurer was not liable for penalties where payment was made more than four months after the accident, but within 60 days after formal demand for payment was made. The court, with Judge (was Justice) Tate as its organ, said:

“The insurer therefore is not liable for penalties. Under the statute, if the nonpayment is arbitrary, a further pre-requi-site for such liability is (a) demand, either written or oral, for such payment of past due compensation, Moore v. St. Paul Fire & Marine Insurance Company, 251 La. 201, 203 So.2d 548 and (b) a lapse of more than sixty days after such demand without payment of compensation undoubtedly due, LSA-R.S. 22:658, Stagg v. New Amsterdam Casualty Company, La.App. 3d Cir., 166 So.2d 82. The trial court thereof correctly denied penalties.”

In Reed v. United States Fidelity & Guaranty Company, 302 So.2d 354 (La.App. 3 Cir. 1974), we stated that “Where there is a serious dispute as to the nature of the loss, thus leaving the question of coverage in doubt, the insurer’s refusal to pay the claim is not arbitrary, capricious or without probable cause.”

The facts in Headrick v. Pennsylvania Millers Mutual Insurance Company, supra, are similar to those presented here. The fire was found to have been of incendiary origin, and the plaintiff was a suspect, as in this case. Unlike the present case, however, no payment was made by the insurer prior to the trial. The court found that plaintiff was not responsible for the fire, but it concluded the defendant’s refusal to pay was not arbitrary, capricious or without probable cause and that defendant thus was not liable for penalties.

In the instant suit, defendant has never denied its obligation under the policy. On the contrary, it has indicated that it was ready and willing to pay the claim, as soon as a determination could be made that plaintiff was not responsible for the fire and as soon as the value of the contents could be determined. It had no figures on which it could have based such a payment until it received the formal proof of loss from plaintiff on January 23, 1975.

Payment of the full amount due under the policy was made 54 days after the required proof of loss was filed with the insurer. Defendant clearly has been in good faith. It was not arbitrary, capricious or without probable cause in delaying payment of this claim until March 18, 1975. I think the majority has erred in imposing penalties in this case.

For these reasons, I respectfully dissent.


author: DOMENGEAUX, Judge.

text:
    TOWN OF KINDER, Louisiana, et al., Plaintiffs and Appellees, v. BEAUREGARD ELECTRIC COOPERATIVE, INC., Defendant and Appellant.
    No. 5667.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.
    Rehearing Denied Dec. 15, 1976.

      Landry, Watkins, Cousin & Bonin by William 0. Bonin, New Iberia, John E. Demor-uelle, Kinder, for defendant and appellant.
    Jones, Patin, Harper, Tete & Wetherill by J. Norwell Harper, Lake Charles, for plaintiffs and appellees.
    Before HOOD, DOMENGEAUX and GUIDRY, JJ.
   DOMENGEAUX, Judge.

This is a suit by the Town of Kinder, an incorporated municipality, situated in Allen Parish, Louisiana, (Kinder), and Central Louisiana Electric Company, Inc., an electric public utility, (CLECO), against Beauregard Electric Cooperative, Inc., an electric cooperative, (Beauregard), seeking in-junctive relief preventing Beauregard from furnishing electricity to any customer, and particularly to a proposed garment plant, Garan, Inc., or its affiliate, Kinder Industries, Inc., and the contractor or contractors which would construct the Garan plant on a tract of land recently annexed to the Town of Kinder. Beauregard filed numerous exceptions which were overruled and ultimately filed answer and amended answer.

Pursuant to the hearing for preliminary injunction, which was held on October 22, 1975, the rule was made absolute and defendant cooperative, its agents, employees and all other persons, firms, or corporations acting or claiming to act in its behalf were restrained, enjoined, and prohibited during the pendency of the suit from furnishing electric services to any customer on the tract of land in the corporate limits of the Town of Kinder, Louisiana, described as follows:

“Commencing at the southeast corner of Section 26, Township 6 South, Range 5 West, Louisiana Meridian, thence north 1,335.1 feet, thence north 89° 58' west 30 feet to a point of beginning: thence from said point of beginning north 89° 58' west 917.2 feet, thence south 0°17' east 574.8 feet, thence north 89°43' east 596.6 feet, thence north 29° 06' east along the west right of way line of U. S. Highway 165 a distance of 654.3 feet to point of beginning.”

Trial on the merits for the permanent injunction was held on December 19, 1975, after which time the trial court denied the permanent injunction prayed for and dismissed plaintiffs’ suit, dissolving the previously granted preliminary injunction. Plaintiffs have appealed the judgment of the district court which denied the permanent injunction, and defendant has filed a motion to dismiss the appeal.

MOTION TO DISMISS APPEAL

Beauregard’s motion to dismiss the appeal was referred to the merits. Its basis is essentially that Kinder’s and CLE-CO’s right to a permanent injunction has become moot because the construction of the proposed garment factory has ceased since the issuance of the preliminary injunction. A narrative of the facts and circumstances of this case will follow in the body of the opinion which will show that, in the context of this case, the question of mootness should be decided on the appeal itself.

A motion to dismiss an appeal must be based on alleged irregularities in proceedings relating to the appeal, occurring either in the trial court or in the appellate court, or on want of jurisdiction in one or both courts. It should not be based on matters relating to the merits of the controversy. McConnell v. Pasley, 39 La.Ann. 1097, 3 So. 484 (1887). When a motion to dismiss an appeal is based on issues which go to the merits of the case, those issues should not be determined on such a motion, but instead they should be resolved on the appeal. Gulf States Utilities Company v. Dixie Electric Membership Corp., 248 La. 458, 179 So.2d 637 (1965); State v. Home Realty Inv. Co., 214 La. 45, 36 So.2d 633 (1948); Mares v. Louisiana Wild Life and Fisheries Commission, 228 So.2d 694 (La.App. 4th Cir. 1969).

Beauregard’s motion to dismiss is based on issues which relate to the merits, and accordingly the motion is denied.

THE PRELIMINARY INJUNCTION

The record of the hearing for preliminary injunction discloses that since 1962 CLECO has held a non-exclusive franchise from the Town of Kinder to supply electricity to the residents and businesses within said municipality. Beauregard, since 1941, has held a non-exclusive franchise from the Police Jury of Allen Parish to furnish electricity to residents and businesses within said parish outside of municipalities.

In 1944 Beauregard constructed an electric utility line on or immediately adjacent to the described tract, which of course at that time was outside the corporate limits of Kinder. This Beauregard line apparently services those customers who were already in the vicinity.

Beauregard has no franchise from Kinder and moreover Kinder adopted a resolution in 1967 specifically restricting any unfran-chised electric service company from serving electric customers within its corporate limits.

In 1975 the Town of Kinder purchased the tract of land described hereinabove which was then situated north of the city limits of Kinder. This purchase was made to provide a site for the construction of a garment factory, all of which was the result of efforts by interested parties and entities in Allen Parish to attract industry to the town. In connection with the purchase of the land Kinder enacted an ordinance annexing said land to the town.

Anticipating the construction of the garment factory on the recently annexed tract, CLECO began extending a utility line to service the factory site and the contractor or contractors designated to construct the building. Alleging that Beauregard attempted or would attempt to service the newly annexed site, since its lines were already there, Kinder and CLECO brought this suit for injunctive relief to enjoin Beauregard from rendering service to the site of the proposed factory. Beauregard had no customers within the newly annexed tract to the corporate limits.

At the time of the hearing for preliminary injunction, some work was being performed at the construction site consisting of soil leveling and stabilizing and the contractor had moved its work trailers to the site and had them hooked up to CLECO’s recently constructed utility line for power.

The trial court granted the requested preliminary injunction on the basis of Town of Coushatta v. Valley Electric Membership Corp., 139 So.2d 822 (La.App. 2nd Cir. 1961). That case holds that a municipality and the holder of a franchise therefrom are entitled to injunctive relief prohibiting a non-franchised utility from servicing a new customer in a newly annexed area. We find, as did the trial judge, that the Coushatta case was applicable to the situation in its posture at the time of the preliminary injunction. The rule set forth in Coushatta has been applied and followed. Gulf States Utilities Company v. Dixie Electric Membership Corporation, 185 So.2d 313 (La.App. 1st Cir.1966). See also the Federal cases of Dixie Electric Membership Corporation v. City of Baton Rouge, 440 F.2d 819 (5th Cir. 1971); City of Thibodaux v. Louisiana Power & Light Company, 373 F.2d 870 (5th Cir. 1967).

These cases stand for the proposition that the holder of a parish franchise may not serve any new customers within an annexed area of the municipality without a franchise from the municipality. Beauregard had not served any customer on the site involved in this suit at the time of its annexation or since. Based on the facts of this case, we conclude that the District Court correctly granted the preliminary injunction sought by CLECO and Kinder.

THE PERMANENT INJUNCTION

At the trial on the merits for the permanent injunction held December 19, 1975, it was stipulated that all evidence presented at the hearing for preliminary injunction would be considered for purposes of the trial on the merits. Additionally, it was more articulately demonstrated by way of specifics, that in 1975 the Ward 2 Industrial District of the Parish of Allen, the Town of Kinder, and Kinder Industries Corporation, a subsidiary of Garan, Inc., entered into several agreements requiring that the Town purchase the site described herein-above, that the District construct a plant building thereon and that the cost of the building was to be financed by general obligation bonds to be issued by the District in an amount not to exceed $850,000.00. Kinder Industries was to equip the building and lease it from the District at a rental sufficient to retire the bonds. Following these agreements, a successful bond election was held, and some $650,000.00 of bonds were sold by the District on August 7,1975, the first bond payment becoming due March 1, 1976.

Pursuant to these arrangements, and as brought out at the hearing for preliminary injunction, the contractor moved’ onto the building site, commenced some preliminary work and began to utilize CLECO’s recently constructed utility line for power.

It was brought out that at some point in time between the two hearings, work on the building site was discontinued by Garan and/or Kinder Industries Corporation. The electrical power furnished by CLECO was shut off, and the contractor moved off the site.

Apparently some time in the early part of December, 1975, the representatives of Gar-an indicated to the representatives of the Industrial District that they “may not” build and operate the garment plant in Kinder, although they indicated that “someone else” would do so. The evidence does not indicate the status of the discussions at the time of the hearing for permanent injunction, but it is clear, as found by the district judge, that, “work on site preparation had ceased for an apparent indefinite period of time”, and “there is nothing in the record to indicate that work will recommence”.

Based on those findings the trial judge denied the permanent injunction and dissolved the previously granted preliminary injunction.

It is apparent to us that if, at the time of the hearing for permanent injunction, construction on the garment plant would have been in progress, the permanent injunction would have been granted.

Injunctive relief under C.C.P. Art. 3601, is an extraordinary remedy and the party seeking same must be threatened with irreparable loss or injury without an adequate remedy by law. Greenberg v. De Salvo, 254 La. 1019, 229 So.2d 83 (1969), cert. denied 90 S.Ct. 1521, 397 U.S. 1075, 25 L.Ed.2d 809. Also, to be entitled to injunc-tive relief, the applicant therefor must prove that the threat of irreparable injury is immediate and that there is a clear and present need for it. Although there is some speculation in the record that a garment plant will ultimately be built, the fact remains, in the posture of the case as presented to us, that there was nothing to enjoin at the time of the permanent injunction trial. Consequently, we find no error on the part of the district court in denying the permanent injunction.

Appellants suggest, in the event that plaintiffs are not entitled to permanent injunction because of the status of the project, that the dismissal of plaintiff’s suit should be without prejudice, so that there will be no question as to the preservation of plaintiff’s rights should construction of the plant recommence at a later date and/or should appellee later attempt to serve a customer in the annexed area.

We feel the point is well taken. It would appear that should such contingencies occur CLECO and Kinder would not be prejudiced in reasserting their right to injunctive relief in view of the rather unusual circumstances of this case. However, we feel that the better course to follow is to order plaintiff’s suit dismissed without prejudice. (C.C.P. 2164). There is a bond indebtedness to be paid off, and the trial judge opined, from his overview of the evidence, that the plant would have to be built eventually.

The district judge divided the costs at trial between CLECO and Beauregard. Appellants suggest that all of those costs should be assessed against appellee. The trial court has great discretion in assessing costs and we will not interfere with that discretionary determination, finding no abuse thereof. .

For the above and foregoing reasons the judgment of the district court is amended so as to order plaintiffs’ suit dismissed without prejudice. In all other respects it is affirmed. Costs of this appeal are assessed against appellants.

AFFIRMED, AS AMENDED.

      . It is to be remembered that this suit was filed exclusively for injunctive relief and any other legal rights or obligations between the Town of Kinder, the Industrial District, the Parish of Allen, Garan, Inc., and Kinder Industries, are not before us.


author: CULPEPPER, Judge.

text:
    Robert HENRY, Plaintiff and Appellant, v. Michael SYEBEK, Defendant and Appellee.
    No. 5679.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.
    Rehearing Denied Dec. 15, 1976.
    Writ Refused Feb. 11, 1977.
    Louis Berry, Alexandria, for plaintiff and appellant.
    Walter M. Hunter, Jr., Alexandria, for defendant and appellee.

      Before CULPEPPER, WATSON and HUMPHRIES, JJ.
   CULPEPPER, Judge.

The plaintiff, a pedestrian, seeks damages for personal injuries received when struck by an automobile driven by the defendant. From a judgment rejecting his demand, plaintiff appealed.

The issues are: (1) Was the defendant negligent? (2) Was the plaintiff contribu-torily negligent? (3) Did defendant have a last clear chance to avoid the accident?

The accident occurred at the “T” intersection of Third Street and Daspit Street in the city of Alexandria. At this location, Third Street has four lanes, two for north bound and two for south bound traffic. Daspit intersects the west side of Third. Third Street is a main traffic artery. Das-pit Street is a narrow side street without sidewalks.

Plaintiff lives on Daspit Street. On March 7, 1975, at about 9:00 a. m., plaintiff and his brother walked in a westerly direction on Daspit toward Third. When they reached the intersection, plaintiff’s brother crossed Daspit to the northwest corner. Plaintiff started to cross Third Street to wait for a city bus at a bus stop on the east side of Third opposite Daspit. There is no designated or marked crossing for pedestrians on Third Street at this intersection.

Plaintiff testified that before starting across Third Street he looked both north and south and saw no vehicles approaching. He then walked about 10 feet into Third Street and looked again in both directions and still saw no approaching vehicles. When plaintiff reached a point about in the middle of Third Street, his brother called to him from the northwest corner of the intersection. Plaintiff turned and looked toward his brother but continued to walk. Suddenly, he heard the brakes of a vehicle approaching from the south on Third. Plaintiff says the vehicle was only 10 to 15 feet away when he first saw it, and that he “froze”. The automobile driven by defendant, struck plaintiff’s right leg and fractured it.

The defendant testified he was driving in the inside north bound lane of Third Street at a speed of about 30 miles per hour, which was within the speed limit of 35 miles per hour. He first saw the plaintiff about two steps from the curb in the outside south bound lane. Plaintiff was walking across Third Street. Defendant testified that when he first saw the plaintiff his vehicle was about 50 feet south of a store on the east side of Third Street, which would place his vehicle over 100 feet from the intersection. Defendant took his foot off the accelerator but did not apply his brakes at that time. When plaintiff reached the middle of the inside south bound lane, he looked toward defendant, and defendant assumed he had seen defendant’s vehicle and would not walk into its path. When plaintiff stepped across the center line of Third Street, defendant was only about 50 feet from plaintiff. Defendant applied his brakes and was almost able to stop, but struck the plaintiff in the inside north bound lane.

Defendant’s testimony is corroborated by the officers who investigated the accident. They found the defendant’s vehicle left 42 feet of skidmarks on the wet pavement, that it struck plaintiff in the inside north bound lane and that defendant’s vehicle stopped five to ten feet north of the point of impact. The officers estimated plaintiff’s speed at about 25 miles per hour at the time he applied his brakes.

Applicable here are the following statutory provisions:

LSA-R.S. 32:213:
“A. Every pedestrian crossing a roadway at any point other than within a marked cross walk or within an unmarked cross walk at an intersection shall yield the right of way to all vehicles upon the roadway.”
LSA-R.S. 32:214:
“Notwithstanding the foregoing provisions of this Part, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a highway.”

Since there is no marked crosswalk for pedestrians at this intersection, plaintiff had the duty to yield the right of way to all vehicles on Third Street as required by LSA-R.S. 32:213. Nevertheless, plaintiff argues that under LSA-R.S. 32:214 the defendant motorist was negligent in not sounding his horn to warn plaintiff, or, if necessary, stopping his vehicle before he struck plaintiff. For the reasons stated below, we find it unnecessary to decide the issue of defendant’s negligence.

Even assuming that the defendant was negligent in some respect, we think the trial judge was clearly correct in finding that plaintiff was contributorily negligent. Under the statutory rules set out above, plaintiff had the duty to yield the right of way to defendant’s approaching vehicle. Although plaintiff says he looked in both directions after he walked about 10 feet into Third Street, he admits that he did not look again before he was struck. He apparently was distracted by his brother calling to him from the corner on Daspit Street, and he walked on directly into the path of defendant’s approaching vehicle without first observing to see if he could do so in safety.

Furthermore, the last clear chance doctrine does not apply. Defendant testified plaintiff looked in his direction, and he assumed plaintiff saw his approaching vehicle and would stop before walking into its path. It was not until plaintiff stepped across the center line that defendant saw or should have seen plaintiff was going to walk into the path of his vehicle. Jurisprudence has established the rule that where a motorist sees an adult pedestrian in a position of safety in another lane of traffic, the motorist can assume the pedestrian will not leave the position of safety and walk into the path of his vehicle, and the motorist can rely on this assumption until he sees, or should see, that the pedestrian is going to walk into the path of the vehicle. Rowe v. Hardware Dealers Mutual Fire Insurance Company, 208 So.2d 409 (La.App.4th Cir. 1968). Under this rule, defendant was not aware of plaintiff’s peril until he stepped across the center line, and by that time defendant did not have a last clear chance to avoid the accident. Actually, plaintiff had the last clear chance to avoid the accident by simply looking to the south before he stepped across the center line of Third Street. See the recent similar case of Ritter v. Southern Farm Bureau Casualty Insurance Company, 321 So.2d 46 (La.App.3rd Cir. 1975).

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

AFFIRMED.


text:
    Murphy FONTENOT et al., Plaintiffs-Appellants, v. Doline Corkin FONTENOT et al., Defendants-Appellees.
    No. 5681.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.
    Rehearing Denied Dec. 15, 1976.
    Writ Refused Feb. 11, 1977.

      Bean & Rush by Warren D. Rush, Lafayette, for plaintiffs-appellants.
    Guillory, McGee & Mayeux by A. Frank McGee, Eunice, for defendants-appellees.
    Before HOOD, DOMENGEAUX and GUIDRY, JJ.
   DOMENGEAUX, Judge.

Plaintiffs-appellants, Murphy Fontenot, Norma Fontenot Fournerat, and Dolan Fontenot, petitioned for the annulment of a judgment of possession in favor of defendants-appellees, Doline C. Fontenot and Rosemary Pollingue Fontenot, which placed the latter in possession of certain property belonging to the estate of Milton Fontenot. From a partially adverse judgment, plaintiffs have appealed. Defendants have answered the appeal seeking certain modifications of the district court’s judgment.

Some time in the mid-1980s.Doline Corkin (Fontenot) and Milton Fontenot began living as husband and wife in the town of Eunice, Louisiana. Living with the couple was Doline Corkin’s daughter by a previous marriage, Rosemary Pollingue. On November 30, 1940, Milton Fontenot purchased a sizeable tract of land (37.75 arpents) near Eunice, hereinafter referred to as the “Mamou Road” property. The deed recited that Milton Fonetenot was married to and living with Doline Corkin. The purchase price of the property was $800.00 of which $250.00 was paid at the time of the transaction, the balance being due six months thereafter. The record clearly indicates that the $250.00 down payment was provided by Doline Corkin.

On April 29, 1941, Milton Fontenot and Doline Corkin were married in Oberlin, Allen Parish, Louisiana. Some time thereabout Milton and Doline Fontenot and Rosemary Pollingue moved out to the Mamou Road property. The trio cleared a portion of the land and erected a residence thereupon. On May 26, 1941, Milton Fontenot (appearing as married to Doline Corkin) sold the Mamou Road property to the St. Landry Homestead Association for $2,000.00 and purchased the property back therefrom on the same date. This transaction was obviously a typical sale and repurchase for purposes of affording a vendor’s privilege to the Homestead Association as additional security for a loan.

On December 10, 1971, Milton Fontenot conveyed to one Hubert Dupre, a portion of the Mamou Road property consisting of 1.41 acres and all improvements thereon (family dwelling). Thereafter, Mr. and Mrs. Fon-tenot moved into the town of Eunice, and bought a home, which they sold, purchasing the house in which they lived at the time of Mr. Fontenot’s death.

On November 3, 1956, Milton Fontenot executed an authentic act whereby he adopted Rosemary Pollingue. The document was placed in a safety deposit box and remained unrecorded until January 20, 1975.

Milton Fonetenot died on November 27, 1974, leaving a Last Will and Testament, bequeathing all of his property to his three (3)children (by a prior marriage), Murphy Fontenot, Norma Fontenot Fournerat, and Dolan Fontenot, and his adopted daughter, Rosemary Pollingue Fontenot, “share and share alike”. This disposition, however, was subject to a lifetime usufruct upon said property granted to the surviving spouse, Doline Corkin Fontenot.

The trial judge found that the Mamou Road property belonged to the separate estate of Milton Fontenot, subject to possible reimbursement to the community of ac-quets and gains existing between the deceased and Doline Corkin Fontenot, that the adoption of Rosemary Pollingue Fon-tenot was valid, and that the usufruct granted to Doline Corkin Fontenot impinged upon the legitime of the forced heirs.

Plaintiffs contend that:

(1) the Mamou Road property belongs to the separate estate of Milton Fontenot and is not indebted to the community of acquets and gains.

(2) the adoption of Rosemary Pollingue was invalid due to the failure to record the authentic act thereof prior to the adopter’s death.

(3) certain United States Savings Bonds payable to Milton Fontenot or Doline Cor-kin Fontenot are community property.

(4) the forced heirs of Milton Fontenot are entitled to their legitime unencumbered by the testamentary usufruct and may claim their inheritance without first proving that the value of said usufruct impinges upon their legitime.

(5) the community of acquets and gains owes $18,525.00 to the separate estate of Milton Fontenot, due from the sale of a portion of the Mamou Road property to Hubert Dupre in 1971.

(6) they are entitled to attorney’s fees payable from the succession funds in the amount of $12,500.00.

Defendants maintain that:

(1) the Mamou Road property is owned solely by Doline Corkin Fontenot and in the alternative was owned by the community of acquets and gains or by Milton Fontenot and Doline Corkin Fontenot jointly (joint adventure).

(2) the adoption of Rosemary Pollingue is valid.

(3) no money is owed the separate estate of Milton Fontenot by the community for funds acquired via the sale to Hubert Dupre.

(4) the forced heirs must demonstrate that the usufruct granted Doline Corkin Fontenot impinges upon their legitime before they are entitled to make an election under LSA-C.C. 1499.

THE MAMOU ROAD PROPERTY

The record clearly indicates that the 37.75 arpents purchased by Milton Fon-tenot on November 30, 1940, was his separate property, notwithstanding the marital declaration contained in the deed relative thereto. A community of acquets and gains cannot exist without a marriage, and any property acquired prior thereto must necessarily be of a paraphernal nature. See LSA-C.C. Articles 2334 and 2402; Jefferson v. Stringfellow, 148 La. 223, 86 So. 774 (La.1920). Of course Doline Corkin Fonten-ot is entitled to an individual reimbursement for the initial down-payment of $250.00 which the record indicates came from her separate funds. Furthermore, since the property was purchased on November 30, 1940, and the parties were married on April 29, 1941, it appears that the credit balance of the purchase price (due six months after date of purchase) was paid off with community funds. Therefore, the community is entitled to a reimbursement of the $550.00 representing the credit portion of the sale on the Mamou Road property-

Concerning the sale and repurchase to the St. Landry Homestead Association on May 26, 1941, our law is clear that such transactions do not change the nature and status of the property involved. See Ruffino v. Hunt, 234 La. 91, 99 So.2d 34 (La. 1958); Mayre v. Pierson, 171 La. 1077, 133 So. 163 (La.1931); and Lazaro v. Lazaro, 92 So.2d 402 (La.App.Orl.1957).

Although the Mamou Road property and all improvements thereon belong solely to the separate estate of Milton Fon-tenot, the community of acquets and gains is entitled to a reimbursement for any enhancement of the property as a result of community effort. LSA-C.C. 2408; Abraham v. Abraham, 230 La. 78, 87 So.2d 735 (La.1956); Succession of Singer, 208 La. 463, 23 So.2d 184 (La.1945); Palama v. Palama, 323 So.2d 823 (La.App. 4th Cir. 1976), writ refused 326 So.2d 381; Succession of Broussard, 306 So.2d 399 (La.App. 3rd Cir. 1975). In order to receive reimbursement for the enhanced value of the property under Civil Code Article 2408, a party must show: (1) that the improvements did in fact enhance the property; (2) that the improvements were made with community funds or joint labor; (3) the value at the commencement and dissolution of the community; and (4) that the enhancement did not result in the ordinary course of events, i. e. a natural appreciation of immovable property, etc. Succession of Rusciana, 136 So.2d 509 (La.App. 1st Cir. 1962).

The record is practically devoid of any evidence concerning the enhanced value of the Mamou Road property and any causation thereof. Therefore this portion of .the case must be remanded to the district court for a proper appraisement and evaluation consistent with the views expressed herein. See Succession of Singer, supra.

Plaintiffs argue that the $18,525.00 realized from the sale of the property to Hubert Dupre (1.41 acres, with improvements, in 1971) was the separate property of Milton Fontenot and that the community owes a reimbursement therefor. Plaintiffs’ claim is not without merit. However, as we have already stated, the community of ac-quets and gains would also have been possessed with a claim against said money as a reimbursement for enhancement of the 1.41 acres in question due to community efforts. As a practical matter, these conflicting claims would probably act as a mutual offset. Furthermore, the record indicates that the sums realized from the Hubert Dupre sale were so commingled over the next few years with community monies as to render their traceability virtually impossible. For these reasons we find that the community is not indebted unto Milton Fontenot’s separate estate for the funds acquired from the abovementioned sale.

Finally, defendants argue that the purchase of the Mamou Road property might be considered a joint adventure on behalf of Milton Fontenot and Doline Cor-kin. While the joint adventure approach may have some equitable merit, the case of Hayes v. Muller, 245 La. 356, 158 So.2d 191 (La.1963) clearly puts the issue to rest. In Muller, the plaintiffs attempted to demonstrate the existence of a joint adventure between themselves and the owner of certain mineral leases. Therein, the Court stated as follows:

“The important question then is: Can the plaintiffs show an agreement by pa-rol? We think not. The parol evidence rule has been applied by this court not only in cases involving contracts which directly affect title to realty but also in others where the litigants merely sought to derive benefits growing out of verbal agreements relating to the sales of immovable property. .
. we held that a plaintiff cannot show an oral agreement to purchase property for him, and enforce the contract when it has been fraudulently violated (by acquisition in defendant’s name), despite the argument made therein that the evidence did not constitute an attack on the title of the defendant but was merely an attempt to profit from and through such title.”

The rule enunciated in Muller is clear, and we are not empowered to deviate from its holding.

Therefore, we hold that the Mamou Road property belongs to the separate estate of Milton L. Fontenot, the decedent. The community of acquets and gains formerly existing between Doline Corkin Fontenot and the deceased is possessed with a claim against the latter’s separate estate for whatever enhancement of the Mamou Road property (less, of course, the 1.41 acres, with improvements, transferred to Hubert Dupre in 1971) was brought about by community effort or funds, as well as a return of the credit portion of the purchase price therefor. In addition, Doline C. Fontenot is entitled to the return of the $250.00 down payment which she provided for the Mamou Road property.

THE ADOPTION OF ROSEMARY POLLINGUE FONTENOT

Plaintiffs contend that in executing the act of adoption the parties failed to comply with the strict requirements of LSA-R.S. 9:461, which provides as follows:

“§ 461. Right of adoption; conditions, limitations, and procedure
Any person above the age of twenty years may adopt any person over the age of seventeen years, according to the following conditions, limitations and procedure:
(1) That the adoption shall be effected by the execution of a notarial act signed by the adoptive parent or parents and the person to be adopted, where the person to be adopted is a major or an emancipated minor, or by the adoptive parent or parents and the living parent or parents or guardian or tutor, or a tutor ad hoc appointed for the purpose, of the person to be adopted where the person to be adopted is an unemancipated minor over the age of seventeen years; provided, however, that whenever proceedings are instituted to appoint a tutor or tutors ad hoc, as herein provided, that all proceedings in connection therewith shall be heard by the judge, in chambers, that records of the proceedings, except the act of adoption proper, shall not be opened for inspection except on authorization by the court, and there shall be no publication thereof, and all pleadings and offerings filed under this Section since January 1, 1952, save the said act of adoption, shall be confidential, and indexed and filed by the clerk of court, as provided in R.S. 9:437.
(2) That the notarial act executed in accordance with paragraph (1) of this Section shall be registered with the clerk of court of the parish in which the act is executed, except in the parish of Orleans, where it shall be registered with the register of conveyances for the parish of Orleans. The clerk of court or register of conveyances shall record all such notarial acts of adoption, except as otherwise provided in paragraph (1) hereof, in a separate book kept by him for the purpose, and shall keep an index of the same under the names of the adoptive parents and the person adopted. As amended Acts 1952, No. 514, § 1.”

The act itself was properly executed on November 3, 1956, but as aforementioned it was not recorded until January 20, 1975, approximately two months after the death of the decedent-adopter. Plaintiffs argue that failure to record the act of adoption in accordance with LSA-R.S. 9:461(2) renders the adoption itself invalid. In support of their proposition plaintiffs cite Succession of D’Asaro, 167 So.2d 391 (La.App. 4th Cir. 1964), which is directly on point to the issue presented herein. The D’Asaro case has been criticized at 26 La. Law Review 143 and 26 La. Law Review 465. We are inclined to agree with the criticism of the holding therein and choose not to follow that line of jurisprudence. See In re Bourque, 245 So.2d 525 (La.App. 3rd Cir. 1971), wherein we held that certain requirements in the adoption statutes were merely directory and that failure to comply with every minute detail did not render an adoption an absolute nullity.

We are of the opinion that the recordation requirement of LSA-R.S. 9:461(2) is of a directory nature and has no bearing upon the actual validity of the act itself under the facts presented herein. For these reasons we hold that the trial judge correctly found that the adoption of Rosemary Pollingue Fontenot by the decedent was proper and valid and that she is indeed a forced heir of Milton Fontenot.

THE UNITED STATES SAVINGS BONDS

Decedent and his wife owned a number of U. S. Savings Bonds made payable to Milton L. Fontenot or Doline Corkin Fontenot. We are aware, of course, that in accordance with- Federal Treasury Regulations, either designated holder may fully negotiate and transfer said bonds. However, under Louisiana Law, althopgh the bonds need not be included in the descriptive list of the succession, the value of the decedent’s community interest in the bonds must be included therein. Therefore, the community of acquets and gains owned a sum of money equivalent to the value of the bonds at the time of decedent’s death, and one-half the value thereof necessarily forms a part of his patrimony. See Succession of Videau, 197 So.2d 655 (La.App. 4th Cir. 1967), writ refused 250 La. 920, 199 So.2d 922; and Succession of Guerre, 197 So.2d 738 (La.App. 4th Cir. 1967), writ refused 250 La. 928, 199 So.2d 925, 926.

THE FORCED HEIRS’ RIGHT TO ELECT UNDER LSA-C.C. ARTICLE 1499

Civil Code Article 1499 provides as follows:

“Art. 1499. If the disposition made by donation inter vivos or mortis causa, be of a usufruct, or of an annuity, the value of which exceeds the disposable portion, the forced heirs have the option, either to execute the disposition or to abandon to the donee the ownership of such portion of the estate as the donor had a right to dispose of.”

Defendants argue that plaintiffs must demonstrate that the value of the usufruct granted Doline Corkin Fontenot by the testator impinges upon the value of the forced portion, in this case two-thirds of the decedent’s estate, LSA-C.C. Article 1493. Certainly, a literal reading of C.C. 1499 would seem to support said position. However, in Succession of Hyde, 292 So.2d 693 (La.1974), the Supreme Court held that a forced heir need not prove that the value of the usu-fruct impinged upon his legitime in order to make the election provided for in C.C. 1499.

A notarial act executed September 4, 1975, (contained in the record but apparently not properly introduced at trial) by Murphy Fontenot, Norma Fontenot Four-nerat and Dolan Fontenot (Tr. 120-121) indicates that these particular forced heirs have elected to take their legitime free of the testamentary usufruct and abandon the remainder of decedent’s property to his surviving spouse. Under the doctrine of the Succession of Hyde, supra, these heirs have an absolute right to make such a choice without any showing whatsoever of the value of the usufruct. The remaining forced heir, Rosemary Pollingue Fontenot, of course, has the same option.

ATTORNEY’S FEES

Plaintiffs request that the court award them the sum of $12,500.00 for attorney’s fees out of the mass of decedent’s estate. We know of no authority nor have we been directed toward any by plaintiffs that legal fees resulting from an opposition to a succession are to be paid by anyone other than those so opposing. For that reason plaintiffs’ claim in this regard is denied.

For the above and foregoing reasons the judgment of the district court is affirmed and the case is remanded to the district court for any necessary further proceedings consistent with the opinions expressed herein. Costs of this appeal are assessed against plaintiffs-appellants.

AFFIRMED AND REMANDED

      . We are aware, of course, that non-recordation of the act of adoption could, under particular circumstances, operate to the detriment of certain third parties. However, generally speaking, legal heirs are not regarded as third persons in the law. See 26 La.L.Rev. 143, 146, footnote # 10 and cases cited therein. Furthermore, even if the plaintiffs herein had been placed on notice via recordation, prior to the testator’s death, they would have been powerless to attack the adoption at that time because of the factual situation attendant hereto.