author: CHIASSON, Judge.

text:
    Palace Mae Guilfou BLANCHARD, Individually and as the natural tutrix of Joseph Carroll Blanchard et al. v. Paul RODRIGUE et al.
    No. 10873.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Rehearing Dec. 20, 1976.
    Writs Refused Feb. 11,1977.

      Glynn A. Long, Donaldsonville, and James George, Baton Rouge, for plaintiffs and appellants.
    Herman C. Hoffmann, Jr., Monroe & Lemann, New Orleans, for all defendants.
    Edward C. Seghers, Kenneth E. Barnette, Seale, Smith & Phelps, Baton Rouge, for Paul Rodrigue, Frank Hollins, Thibaut Leasing Company, Thibaut Oil Company, Thibaut’s Individually, General Acc. Fire & Life Assur. Corp., Ltd.
    Calvin E. Hardin, Jr., Baton Rouge, for Interstate Fire & Casualty Co.
    Edward Rice, Jr., New Orleans, for Evan Hall Sugar Cooperative, Inc. and Bituminous Casualty Corp. and appellants.
    Frank Fertitta, Baton Rouge, for State Farm Mutual Automobile Ins. Co.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   CHIASSON, Judge.

This appeal has been taken from a judgment of the District Court in favor of the survivors of Carroll Blanchard and against Paul Rodrigue, Evan Hall Sugar Cooperative, Inc., and Bituminous Casualty Corporation.

The Trial Judge in his reasons for judgment summarized the events prior to the trial on the merits as follows:

“On the morning of November 27, 1972, at about six o’clock A.M., Frank Hollins was driving a 1964 Chevrolet cane truck in the direction of south along Louisiana Highway No. 308. This truck was owned by Thibaut Leasing Company and was leased to Evan Hall Sugar Cooperative, Inc. for the purpose of hauling sugar cane during the grinding season. When the truck reached a spot near and within the city limits of Donaldsonville, Louisiana, Hollins noticed that his truck was pulling to one side. Upon alighting, he discovered that the right front tire was flat. Because the shoulders on both sides of the highway at this location were extremely narrow or non-existent, and bordered by deep ditches, he was forced to park his truck within and completely blocking the southbound lane of travel. Highway 308 is a standard Louisiana two lane hard surfaced highway.
“The Hollins vehicle had been stopped for a short period of time in this position when it was approached from the rear by a 1960 Chevrolet cane truck driven by Paul Rodrigue. This truck was also owned by Thibaut Leasing Company and leased to Evan Hall Sugar Cooperative, Inc. On the previous night both drivers had been instructed by a supervisor of their employer, Evan Hall Sugar Cooperative, Inc. to proceed in the morning to the Belle Terre Plantation to load sugar cane destined for the Evan Hall mill. “Paul Rodrigue seeing the truck blocking his lane of travel made no effort to stop but turned left into the passing lane. When the front of his truck was about opposite the door of the stationary vehicle a collision occurred between his truck and the approaching 1972 Chrysler owned and operated by Carroll Blanchard. “Carroll Blanchard had left his home and was proceeding northwardly in the northbound traffic lane of said Highway 308, when he collided with the truck driven by Paul Rodrigue. The collision took place entirely within the northbound traffic lane of said highway opposite the truck of Frank Hollins. Neither the approaching vehicle nor the passing truck left skidmarks on the highway. Mr. Blanchard was knocked unconscious by the force of the collision and died still jammed in the front seat some 15 minutes after the accident without regaining consciousness. “This wrongful death and survival action for damages was brought originally by his widow, Mrs. Palace Mae Guilfou Blanchard, individually, and as natural tutrix of the minors, Joseph Carroll Blanchard, Mitchell Blanchard and Michael Blanchard. The plaintiff sues Evan Hall Sugar Cooperative, Inc., (hereinafter called Evan Hall), Paul Rodrigue, Frank Hollins, Thibaut Farms, Inc., Thibaut Oil Company, Thibaut Leasing Company, James H. Thibaut and Thomas 0. Thi-baut.
“By a supplemental petition, Edward G. Blanchard, Bruce G. Blanchard and Mary Ann Blanchard, wife of Dale Cassard, the major children of Palace Mae Guilfou Blanchard and Carroll Blanchard, joined in the said suit and also pray for damages for the alleged wrongful death of their father, said Carroll Blanchard.
“In addition to the respondents named in the original petition, the plaintiffs add as defendants, James A. Thibaut, William Henry Thibaut, Vivian Elizabeth Thibaut Scott, Charles Lloyd Thibaut, James D. Thibaut, Betty Thibaut Smith and Dr. David D. Thibaut. The petitioners also sue the following insurance companies: Bituminous Casualty Corporation, General Accident Fire and Life Assurance Corporation, Ltd. and Interstate Fire and Casualty Company.
“A motion for summary judgment seeking dismissal of the suit was denied as to defendants, Thibaut Leasing Company, James Thibaut, Thomas Thibaut, James A. Thibaut, William H. Thibaut, Vivian Thibaut Scott, Charles L. Thibaut, James D. Thibaut, Betty Thibaut Smith and David Thibaut and was sustained as to defendant, Thibaut Oil Company.
“By intervention, State Farm Mutual Automobile Insurance Company, insurer of Carroll Blanchard, seeks recovery of the sum of $3,088.00 against Evan Hall, Frank Hollins, Paul Rodrigue, Thibaut Leasing Company, General Accident Fire and Life Assurance Corporation and Bituminous Casualty Corporation for property damage to the automobile of Carroll Blanchard paid by it as subrogee.
“To these demands all the defendants filed answers denying liability and pleading, in the alternative, the contributory negligence of Carroll Blanchard . .”

After a trial on the merits the Trial Judge determined that the negligence of Paul Rodrigue was the sole proximate cause of the accident. Accordingly, judgment was rendered against Paul Rodrigue, his employer, Evan Hall, and Evan Hall’s insurer, Bituminous Casualty Corporation. The Trial Judge awarded Mrs. Blanchard $75,000.00 for loss of support and $25,000.00 for loss of love and affection, the minor children $25,000.00 each for loss of support and $15,000.00 each for loss of love and affection, the major children $10,000.00 each for loss of love and affection, all of the plaintiffs $1,985.35 for funeral expenses and State Farm Mutual Automobile Insurance Company, intervenor, $3,088.00 for damage to the automobile. The Trial Judge did not award damages for pain and suffering or for loss of inheritable estate.

The plaintiff’s suit against Frank Hollins, Thibaut Farms, Inc., Thibaut Oil Company, Thibaut Leasing Company, James H. Thi-baut, Thomas A. Thibaut, James A. Thi-baut, William Henry Thibaut, Vivian Elizabeth Thibaut Scott, Charles Lloyd Thibaut, James D. Thibaut, Betty Thibaut Smith, Dr. David Thibaut, General Accident Fire and Life Assurance Corporation, Ltd. and Interstate Fire and Casualty Company was dismissed by the Trial Judge.

Defendants, Paul Rodrigue, Evan Hall, and Bituminous Casualty Corporation, appealed this decision contending that:

“1. The Court erred in finding Mr. Carroll Blanchard not negligent and in awarding damages to the plaintiffs.
“2. The Court erred in the amount of damages awarded to the surviving spouse and three minor children for loss of support.
“3. The Court erred in failing to hold Thibaut Leasing Co. and/or its individual partners responsible for the actions of Paul Rodrigue.
“4. The Court erred in holding Bituminous Casualty Corporation the only insurer responsible for the actions of Paul Rodrigue.”
The plaintiffs answered, contending that: “1. The Court erred in not rendering judgment against Frank Hollins, Thibaut Farms, Inc., Thibaut Leasing Co., Thibaut Oil Company, James H. Thibaut, Thomas A. Thibaut, James A. Thibaut, Willaim Henry Thibaut, Vivian Elizabeth Thibaut Scott, Charles Lloyd Thibaut, James D. Thibaut, Betty Thibaut Smith, Dr. David D. Thibaut, General Accident Fire and Life Assurance Corporation, Ltd. and Interstate Fire and Casualty Company.
“2. The Court erred in the amount awarded to the plaintiffs in certain elements of damage.
“3. The Court erred in not awarding damages for certain elements of damage which should be compensated”

By Joint motion the plaintiffs’ appeal has been dismissed as to Thibaut Oil Company and to Thibaut Farms, Inc.

The Trial Judge’s stated reasons for holding the negligence of Paul Rodrigue as the proximate cause of the accident were:

“There is no doubt in the mind of the Court that Paul Rodrigue was negligent in attempting to negotiate the passage of the stopped vehicle without ascertaining that the passing lane was clear of approaching traffic. Since Paul Rodrigue testified that he saw the stopped truck when he was more than a half block away and had ample distance in which to stop or avoid the truck, the negligence of Hollins in stopping in the southbound lane and his failure to put out reflectors should be deemed remote causes. The fact that neither Blanchard or Rodrigue stopped also leads to a belief that Hollins had failed to place reflectors before the accident. However, either with reflectors or without reflectors Rodrigue was under a legal duty to be certain that the passing lane was clear of approaching traffic. His failure in this respect constitutes the proximate cause of this collision.
“The defendants, alternatively, contend that Mr. Blanchard was guilty of contributory negligence because the absence of skidmarks indicate that he must have been travelling at an excessive rate of speed and for that reason failed to take any steps to avoid the truck of Paul Ro-drigue approaching in his lane of travel. The Court does not subscribe to this view. A cane truck is a large vehicle which completely blocks the view of all vehicles immediately to the rear of it. The absence of skidmarks and the point of impact is almost conclusive evidence that the overtaking truck verred suddenly from behind the parked vehicle and into the passing lane. Blanchard could not drive to his left because of the parked truck nor could he drive to the right because of the narrow shoulder and deep ditch. In this sudden emergency a collision was inevitable even at normal speed.”

The record contains evidence which supports the conclusions of the Trial Judge. In the absence of manifest error the determinations of the trier of fact will not be disturbed on appeal.

The Trial Judge awarded Mrs. Blanchard, individually and as natural tutrix of her minor children, $150,000.00 for loss of support. The defendants contend that this award, based upon income attributable to the deceased and his work-life expectancy, is excessive.

The settled jurisprudence of this state is that damages for loss of support are speculative in nature and cannot be calculated with mathematical certainty. The most a Court can do in such cases is to exercise sound judicial discretion and award an amount which, considering all the circumstances, seems just to both parties and is not unduly oppressive to either. Viator v. Gilbert, 253 La. 81, 216 So.2d 821 (1968); McFarland v. Illinois Central Railroad Company, 241 La. 15, 127 So.2d 183 (1961).

Factors which should be weighed in determining the amount due for loss of support include the decedent’s present earnings, his age and life expectancy, his work-life expectancy, the possibility of a decrease or increase in his earnings, the decedent’s job security, the nature of decedent’s work, his health, his relationship with his family, his personal expenses and his past work record. Other factors are the surviving spouse’s age and health, the minor children’s age, and the effects of inflation and the need to discount future earnings to a present day amount. In short, all factors relevant to a determination of the amount of the loss of support due to the premature demise of the decedent should be considered.

At the time of his death Mr. Blanchard was 53 years of age, in good health and earning approximately $8,500.00 per year as a farmer and storekeeper. He had a life expectancy of 21.25 years and a worklife expectancy of 13.3 years. The decedent owned his own farm and a grocery store. His relations with his family were excellent and he had a wife and three minor children, two age nine and one age twelve, dependent on him for support.

While the Trial Judge’s award of $150,000.00 for loss of support may be high, we do not find that the awards in the judgment, $100,000.00 for the wife, $40,-000.00 for each of the three minor children, and $10,000.00 for each of the three major children, to be excessive or inadequate. While awards of damages should be based upon the facts which exist in each particular case and not solely on a consideration of uniformity, we do refer to prior cases to determine whether there has been an abuse of the Trial Court’s discretion in making awards. Barnett v. Trinity Universal Insurance Company, La.App., 286 So.2d 770 (2nd Cir. 1973). A comparison of the overall award in this case with awards in other cases indicates that there has been no abuse of discretion by the Trial Judge.

The truck driven by Paul Rodrigue was leased by Evan Hall from Thibaut Leasing Company. The vehicle was under the exclusive control of Evan Hall and was operated by its employee, Paul Rodrigue. The relationship between Thibaut Leasing and Evan Hall was one of bailment. Because the negligence of a bailee cannot be imputed to the bailor, Thibaut Leasing Company and its individual partners cannot be held liable for the actions of Paul Rodrigue. Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962).

Insurance coverage for Evan Hall was provided by Bituminous Casualty Corporation under two policies; Policy No. GA 693476, a General Liability Automobile Policy, with bodily injury liability limits of $100,000.00 per person and $300,000.00 per accident and property damage liability limits of $100,000.00 per accident; and Policy No. UL 4993, a Comprehensive Catastrophe Liability Policy with a liability limit of $1,000,000.00 as excess coverage over the underlying policies.

Insurance coverage for Thibaut Leasing Company was provided by General Accident Fire and Life Assurance Corporation, Ltd. and Interstate Fire and Casualty Company. Policy No. CA 26 444 28, a Combination Automobile Policy, issued by General Accident, provided bodily injury coverage of $5,000.00 per person and $10,000.00 per accident and property damage coverage of $5,000.00 per accident. Policy No. 183-093689, an Excess Liability Policy issued by Interstate Fire, provided bodily injury coverage of $95,000.00 per person over the $5,000.00 coverage of the underlying General Accident Policy and property damage coverage of $95,000.00 per accident over the $5,000.00 underlying policy. Thibaut Leasing is also covered under an umbrella policy, an Excess Catastrophe Liability Policy, resulting from a binder issued by an agent of General Accident, which provides coverage up to $1,000,000.00. The issue of whether this coverage applies to Paul Ro-drigue and Evan Hall was raised at the trial. This issue was not decided by the Trial Judge because he did not hold Thibaut Leasing and its insurers liable for the acts of Paul Rodrigue.

The Combination Automobile Policy issued by General Accident to Thibaut Leasing provided that the company agrees:

“To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile. “To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident and arising out of the ownership, maintenance or use of the automobile.” Insuring Agreements 1. Coverage A— Bodily Injury Liability and Coverage B— Property Damage Liability.
“With respect to the insurance for bodily injury liability and for property damage liability the unqualified word “insured” includes the named insured and, if the named insured is an individual, his spouse if a resident of the same household, and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either. The insurance with respect to any person or organization other than the named insured or such spouse does not apply:
“(1) to any person or organization, or to any agent or employee thereof, operating an automobile sales agency, repair shop, service station, storage garage or public parking place, with respect to any accident arising out of the operation thereof, but this provision does not apply to a resident of the same household as the named insured, to a partnership in which such resident or the named insured is a partner, or to any partner, agent or employee of such resident or partnership;
“(2) to any employee with respect to injury to or sickness, disease or death of another employee of the same employer injured in the course of such employment in an accident arising out of the maintenance or use of the automobile in the business of such employer.”

Insuring Agreements III. Definition of Insured (a).

There was an agreement, evidenced by a letter (P-19), between Evan Hall and Thibaut Leasing that Thibaut Leasing would carry public liability insurance on the truck in question. Because the use of the truck by Paul Rodrigue was with the permission of Evan Hall, the lessee, and therefore with the permission of Thibaut Leasing, the lessor and the named insured, Paul Rodrigue is an “insured” under the terms of the policy issued by General Accident. Ritter v. Thornton, La.App., 309 So.2d 750 (4th Cir., 1975).

The Excess Liability Policy issued by Interstate Fire provides in part that:

“The provisions of the immediate underlying policy are incorporated as a part of this policy except for any obligation to investigate and defend and pay for costs and expenses incident to the same, the amount of the limits of liability, any “other insurance” provision and any other provisions therein which are inconsistent with the provisions of this policy.” Part 1 — Insuring Agreements 1. Excess Liability Indemnity.

The General Accident Policy is the underlying policy in this instance. Because Paul Rodrigue is an “insured” under the underlying policy he is an “insured” under this excess liability policy.

It is the contention of Thibaut Leasing that the Excess Catastrophe Liability Policy provided by General Accident does not provide coverage in this case because of a judgment, dated October 3, 1974, containing a compromise agreement between Thi-baut Leasing and General Accident as to the coverage afforded by this policy. This compromise agreement specifically excludes coverage of Paul Rodrigue and Evan Hall.

R.S. 22:655 provides in part that:
“It is also the intent of this Section that all liability policies within their terms and limits are executed for the benefit of all injured persons, his or her survivors or heirs, to whom the insured is liable; and that it is the purpose of all liability policies to give protection and coverage to all insureds, whether they are named insured or additional insureds under the omnibus clause, for any legal liability said insured may have as or for a tort feasor within the terms and limits of said policy.”

Neither Paul Rodrigue, the insured, nor the Blanchards, the injured persons, were parties to this suit. Therefore, this judgment does not affect the rights of these parties as regards coverage under the policy-

Testimony in the record by Herbert A. Rodrigue, an agent for General Accident, and the existence of the compromise agreement between Thibaut Leasing and General Accident, establishes that General Accident was bound by the action of its agent and is liable for excess coverage. This decision does not affect any right General Accident may have for indemnification from other parties under the terms of the compromise agreement.

Because it is the opinion of this Court that insurance coverage in this case is provided by the five policies introduced, it is necessary to determine the order in which the policies apply. These policies all contain “pro-rata” and “excess coverage” clauses with regard to other insurance.

An examination of the various “pro rata” and “excess coverage” clauses contained in these five policies indicates that primary coverage in this instance is provided by the Combination Automobile Policy issued by General Accident. The “pro rata” clause contained in this policy does not conflict with the “excess coverage” clauses contained in the other policies. Juan v. Harris, La., 279 So.2d 187 (1973).

Where “excess coverage” clauses exist in policies providing double or concurrent coverage they are mutually repugnant and will not be enforced. In these cases each insurer is held liable in proportion to the limit of its respective policy. Concurrent coverage to $100,000.00 is provided by the Excess Liability Policy issued by Interstate Fire and the General Liability Automobile Policy issued by Bituminous Casualty. These policies contain excess coverage clauses which conflict. Concurrent coverage above these two policies, to a limit of $1,000,000.00, is provided under the Excess Catastrophe Policy, General Accident, and the Comprehensive Catastrophe Liability Policy, Bituminous Casualty. These policies also contain “excess coverage” clauses which conflict.

Therefore, coverage is as follows:
1. $0 to $5,000.00 — Combination Automobile Policy, General Accident
2. $5,000.01 to $200,000.00 — Excess Liability Policy, Interstate Fire (19/39) and General Liability Automobile Policy, Bituminous Casualty (20/39)
3. $200,000.01 to $2,200,000.00 — Excess Catastrophe Policy, General Accident (V2) and Comprehensive Catastrophe Liability Policy, Bituminous Casualty e/2).

The Trial Judge did not err when he dismissed the plaintiffs’ suit as to Frank Hollins; Thibaut Farms, Inc., Thibaut Leasing Co., Thibaut Oil Company, James H. Thibaut, Thomas A. Thibaut, James A. Thi-baut, William Henry Thibaut, Vivian Elizabeth Thibaut Scott, Charles Lloyd Thibaut, James D. Thibaut, Betty Thibaut Smith, and Dr. David D. Thibaut. The Trial Judge’s conclusion that the above parties were neither negligent nor liable for the negligence of Paul Rodrigue was correct. However, the Trial Judge did err in dismissing plaintiffs’ suit as to General Accident Fire and Life Assurance Corporation, Ltd. and as to Interstate Fire and Casualty Company, insurers of Paul Rodrigue.

The plaintiffs contend that the Trial Judge erred in not awarding damages for the conscious pain and suffering of the decedent, the survivors grief, mental anguish, pain, shock and suffering, the loss of guidance and nurture of the minor children and loss of inheritable estate.

The Trial Judge concluded, based on the lack of skidmarks, that the accident occurred too quickly for the deceased to react, that, based on testimony of parties at the scene, the deceased never regained consciousness following the accident, and that, therefore, the deceased experienced no conscious pain and suffering for which an award could be made. Where there is no indication that the decedent consciously suffered any pre-death pain, an award cannot be made to the survivors for pain and suffering. Addison v. Travelers Insurance Company, La.App., 281 So.2d 805 (1st Cir. 1973).

The plaintiffs contend that the Trial Judge should have awarded damages for the survivors’ grief, mental anguish, pain, shock and suffering and for the minor chil-drens’ loss of guidance and support, in addition to his award for loss of love and affection. The plaintiffs also contend that the Trial Judge erred when he denied a recovery for loss of inheritable estate. These types of damages are not subject to specific pecuniary evaluation and it is not necessary that the Trial Judge make a specific award for each of these items. We feel that the Trial Judge’s total award included these elements of damages.

The award of $3,088.00 to State Farm Mutual Automobile Insurance Company as reimbursement for its payment under the collision policy covering the Blanchard vehicle has not been contested and is affirmed. Primary coverage for property damage is provided under the Combination Automobile Policy issued by General Accident.

For the above and foregoing reasons, that portion of the Trial Court’s judgment dismissing the plaintiffs’ and State Farm’s suit as to General Accident, Fire and Life Assurance Corporation, Ltd. and Interstate Fire and Casualty Company is reversed. The Trial Court’s judgment is amended to make Paul Rodrigue, Evan Hall Sugar Cooperative, Inc., Bituminous Casualty Corporation, General Accident Fire and Life Assurance Corporation, Ltd. and Interstate Fire and Casualty Company, solidarily liable. The judgment is affirmed as to all other matters. Cost to be paid by defendants, Paul Rodrigue, Evan Hall Sugar Cooperative, Inc., Bituminous Casualty Corporation, General Accident Fire and Life Assurance Corporation, Ltd., and Interstate Fire and Casualty Company.

REVERSED IN PART, AMENDED, AND AFFIRMED IN PART.

ON APPLICATION FOR REHEARING

The applications for rehearing have convinced this Court that a more precise assignment of cost and interest is necessary.

Code of Civil Procedure Article 2164 provides in part:

“The court . . . may tax the cost of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.”

Cost are to be paid by the defendants in proportion to their liability for the entire amount of the judgment.

Interest which accrued from date of judicial demand until entry of judgment by this Court is apportioned among the defendants in the same manner as the liability for the judgment.

The Combination Automobile Policy issued by General Accident which provides the primary coverage in this case provides that the company shall:

“pay all expenses incurred by the company, all costs taxed against the insured in any such suit and all interest accruing after entry of judgment until the company has paid or tendered or deposited in court such part of such judgment as does not exceed the limit of the company’s liability thereon.”

Insuring Agreements 11(b)(2).

After the date of rendition of judgment- by this Court, interest on the entire amount of the judgment is to be paid by General Accident until such time as it pays, tenders or deposits in Court the limit of the company’s liability under the primary policy. Adams v. Ross, La.App., 300 So.2d 192 (1st Cir. 1974); Ogaard v. Wiley, La.App., 325 So.2d 642 (3rd Cir. 1975); Doty v. Central Mutual Insurance Company, La.App., 186 So.2d 328 (3rd Cir. 1966). Interest on the entire amount of the judgment is not due from General Accident from the date of judgment by the Trial Court because there was no judgment by the Trial Court against General Accident.

DECREE AMENDED.

      . The Combination Automobile Policy issued by General Accident provides:
      “If the insured has other insurance against a loss covered by this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, under coverages A and B the insurance with respect to temporary substitute automobiles under Insuring Agreement IV or other automobiles under Insuring Agreement V shall be excess insurance over any other valid and collectible insurance.” Conditions 20. Other Insurance.
      The Excess Liability Policy issued by Interstate Fire provides:
      “This condition does not apply with respect to the underlying insurance or excess insurance purchased specifically to be in excess of this policy.
      “If, with respect to a loss covered hereunder, the insured has other insurance, whether on a primary, excess or contingent basis, there shall be no insurance afforded hereunder as respects such loss; provided, that if the applicable limit of liability of this policy is greater than the applicable limit of liability provided by the other insurance, this policy shall afford excess insurance over and above such other insurance in an amount sufficient to give the insured, as respects the layer of coverage afforded by this policy, a total limit of liability equal to the applicable limit of liability afforded by this policy.”
      Conditions 5. Other Insurance.
      The Excess Catastrophe Liability Policy, under the terms of which General Accident is bound, provides:
      “It is agreed that if any occurrence covered hereunder is also covered in whole or in part under any other excess liability policy issued to the insured prior to the inception date hereof or under any prior term of this policy, the applicable per occurrence or aggregate limit of liability as stated in Item 3 of the Declarations shall be reduced by any amounts payable to the insured on account of such occurrence under such prior insurance.”
      Conditions 13. Prior Insurance and Non-Cumulation of Liability.
      The General Liability Automobile Policy issued by Bituminous Casualty provides:
      “With respect to a hired automobile or a non-owned automobile, this insurance shall be excess insurance over any other valid and collectible insurance available to the insured.”
      VI. Additional Condition, Excess Insurance— Hired and Non-Owned Automobiles.
      The Comprehensive Catastrophe Liability Policy issued by Bituminous Casualty provides: “If other collectible insurance with any other insurer is available to the insured covering a loss also covered hereunder (except insurance purchased to apply in excess of the sum of the retained limit and the limit of liability hereunder) the insurance hereunder shall be in excess of, and not contribute with, such other insurance. If the insured carries other insurance with the company covering a loss also covered by this policy (other than underlying insurance of which the insurance afforded by this policy is in excess) the insured must elect which policy shall apply and the company shall be liable under the policy so elected and shall not be liable under any other policy.”
      Conditions I. Other Insurance.


source: Caselaw Access Project

author: SCHOTT, Judge.

license: Public Domain

text:
    Maria J. REDDEL v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS.
    No. 7693.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1976.
    Rehearing Denied Jan. 12, 1977.

      Barbera & Moliere, C. F. Barbera, Me-tairie, for plaintiff-appellee.
    Deutsch, Kerrigan & Stiles, Frederick R. Bott, New Orleans, for third-party defendants-appellees.
    Jesse S. Guillot, New Orleans, William W. Irwin, Jr., D. Ross Banister, Jerry F. Davis, Johnie E. Branch, Jr., Baton Rouge, for Dept, of Highways, State of Louisiana.
    Before SAMUEL, STOULIG and SCHOTT, JJ.
   SCHOTT, Judge.

Defendant has appealed from a judgment in plaintiff’s favor for the value of property she alleged was taken by defendant when it erected a fence on her property. Palmer and Baker Engineers, Inc., against which a judgment was rendered in favor of defendant on its third-party call, answered the appeal.

Plaintiff, in March and May, 1967, by two acts of sale acquired five adjacent lots on Utica Avenue in Jefferson Parish between Lime Street and Harvard Avenue. Contiguous to the rear or south of the lots was the right-of-way for the Interstate-10 Highway. In January, 1970, when plaintiff attempted to sell the property, she learned that a fence, constructed by defendant along the right-of-way, was approximately eight and a half feet nearer to her lots’ frontage on Utica Avenue than her title called for with respect to the distance between the right-of-way line and the lots’ frontage. She claims that the fence was built after she purchased her property with the result that defendant took or encroached upon 2280 square feet of her property.

Defendant denies there was an encroachment. It contends the highway and its appurtenances were constructed in the proper location, the fence was constructed before plaintiff’s purchase on the original right-of-way line, and plaintiff’s problem was caused by her own surveyors who erroneously located the right-of-way line and mistakenly included the disputed strip in her acquisition. Alternatively, defendant maintains that it took the disputed strip before plaintiff acquired so that she had no right of action for compensation. Further in the alternative, defendant claims that the amount awarded to plaintiff is excessive.

In 1957 a survey was made by Palmer and Baker for defendant showing the north boundary of the right-of-way to coincide with the south boundary of the disputed strip. Defendant placed in evidence its composite drawing of November 8, 1957, showing the property then required for the 1-10 project in the vicinity of the property in dispute. This showed a required area of 37,053 square feet in the half square then owned by one owner and subsequently subdivided into lots, of which plaintiff eventually became the owner of five.

This exhibit demonstrates that the owner of the property in 1957 was paid for 37,053 square feet and no more. This includes only 19,579 square feet to the rear of plaintiff’s property, and yet in 1970, when Palmer and Baker revised the plan of the right-of-way in order to correct the survey of 1957, a total of 21,553 square feet was shown as taken to the rear of plaintiff’s property. We are compelled to conclude that the difference of about 2,000 square feet was never paid for and was not included in the expropriation proceedings against the then owner of the entire half square. While defendant intended to use it all along since the overall area and physical location of the right-of-way was never changed, notice was never given to anyone that the disputed area was used until the fence was constructed.

Apparently, defendant realized this and after the case was tried on the merits in February, 1974, defendant filed an exception of no right of action based upon the proposition that the strip had been effectively taken before plaintiff purchased the property, so that she was relegated to a cause of action against her vendors and/or her surveyors. The evidence taken in January, 1975, then focused on the question of when the fence was constructed.

In reasons for judgment the trial judge said the following:

“. . .At the hearing on the exceptions, the plaintiff, Maria J. Reddel, testified that shortly before she purchased the property in question she did inspect it and testified that at that time the fence which was later constructed by the Department of Highways which encroaches upon plaintiff’s land, was not in existence at that time. Mrs. Reddel further testified that the highway was not completed at that time and therefore not open to traffic at that time. Furthermore, a letter was introduced on behalf of Maria J. Reddel, which was addressed to her by the State of Louisiana, Department of Highways dated February 27,1970. That letter states that there was a partial acceptance of the construction of the Interstate 10 Highway on December 15, 1967 and that the roadway was opened on that date. This letter is contrary to the allegations made in the exception filed by the State of Louisiana alleging that the construction of the highway was accepted and the highway opened for use in February of 1967. In addition, the court takes note that the Adloe Orr survey of February 21, 1967 does not show the existence of a fence encroaching upon Maria Red-del’s property at that time. This Orr survey is attached to Maria J. Reddel’s acquisition of the property by act before Thomas C. Wicker, Jr., Notary Public, which act and survey were filed into evidence by Mrs. Reddel.”

Defendant takes issue with these findings and while there is some merit to this position we cannot say that the evidence did not provide a reasonable basis for the trial judge’s specific isolated finding that the fence was not in place when plaintiff acquired the property. However, the evidence does not support his finding that the highway was not open at the time and because this becomes significant in another connection we have chosen to detail much of her testimony.

On the merits plaintiff testified on direct examination that she did not know when the fence was placed.

She testified that she first became aware of the fence being on the property in January of 1970. But on cross-examination she testified as follows:

“Q. Now, prior to [the time when you signed an agreement to purchase] did you visit the property you were going to purchase?
A. Yes.
Q. Now, that would be sometime in the early part of 1967, would it not, after January ’67?
A. Yes.
Q. At the time you visited the property, was some construction work going on on the ramps or service road or the frontal road in front of that property?
A. Any property there?
Q. Was there some construction work going on either the ramps, or the frontal road near that property?
sk * * * * *
A. I honestly can’t remember.
Q. Did someone take you there to show you this property?
A. Yes.
Q. Did you know at that time that an 1-10 or the Expressway was passing there?
A. Well, the 1-10 was there.
Q. It was there when you visited at it?
A. Yes, it was outside where the fence is.
Q. That is what I was asking: When you visited the property they were working on the 1-10, weren’t they?
A. It was completed.
Q. And this was in ’67?
A. That’s right.
Q. And specifically, January of ’67?
A. Yes.”

On further cross-examination by counsel for third-party defendant, the following testimony was elicited:

“Q. Now, when you first went out, before you ever bought it, when you were looking to buy it, when you were negotiating, I think you told us earlier that the 1-10 was in at that time?
A. Right, yes.
Q. And did you go out the 1-10 to get to your property?
A. No, I went out Veterans.
Q. The 1-10 was in place?
A. Yes.
Q. Do you remember what cars were on it even though you didn’t go on it? * * *
Q. Yes, ma-am. When you went out there around the property, when you were negotiating to purchase, do you remember if the 1-10 was in use even though you may have chosen not to use it?-
A. I think it was.
Q. You knew that you were buying this property for investment purposes next , to this Interstate Highway?
A. That’s right.
Q. And the highway was there and the property that you though you were buying was in the area right next to the fence which parallels the highway?
A. Right, that is correct.
Q. So then you bought it after looking at it, is that correct?
A. That is right.
Q. Now, when you first see it in its condition, the property with the grass next to the fence that bordered the highway, did you buy it from—
A. Gambino.
Q. And one lot from Gambino and who were the other People?
A. I think Gambino owned it or Pusch.
Q. And subsequently then, with regards to the highway and the street and the gress — -it is now on your land, it is now or was when you sold it in ’71 in the same state as it was in January of ’67 when you were negotiating to buy it?
A. Yes, sir.”

From the foregoing testimony the issue would seem to be settled that when Mrs. Reddel purchased the property the completed highway was there beyond the fence and was in use. But Mrs. Reddel’s clear unequivocal testimony quoted above, given on February 6, 1974, must be compared with her testimony at the trial of the exceptions in January, 1975:

“Q. Mrs. Reddel, do you recall whether or not just prior to purchasing the property in question if you went and looked at the property before buying it?
A. Yes, I drove around there.
Q. You did go there?
A. Yes.
Q. If I recall correctly, this property is along the right-of-way of the Interstate-10, is that correct?
A. Right-of-way.
Q. Do you recall how you got to the property, that is, from what highway or street did you come from?
A. From Veterans into the service road.”

For some inexplicable reason, defendant has maintained in this Court that there was a service road on plaintiff’s side of the fence but this is clearly contradicted by the evidence. The surveys indicate that a service road ran up to the north side of Utica and then came to an end. There was no service road continuing on the other side of Utica Avenue behind plaintiff’s property. Instead the fence on the east side of the service road continued across Utica Avenue and then continued to form the boundary of plaintiff’s lots and the Highway Department right-of-way, so that traffic would exit the service road from the north and be forced to take a right turn to the west along the front of plaintiff’s property on Utica Avenue. Mrs. Reddel’s testimony continued:

“Q. As you drove along Utica to the property in question, did you see any fences along the right-of-way of the Interstate Highway?
A. No.
Q. Did you see any fence along the property that you ultimately purchased?
A. No.”

On cross-examination the following questions were put to Mrs. Reddel:

“Q. Have you been on the service road, Mrs. Reddel, after or since you have purchased this property. Have you been back on the service road?
A. Well, yes.
Q. There is a fence there now between the service road and the Interstate, is there not?
A. Yes.
Q. The service road was completed at the time you drove to the lot when you purchased it?
A. Yes.”

From the foregoing testimony it can be readily seen that confusion set in on the location of the service road as having something to do with the property now in dispute. But as stated above, it is clear that the service road stopped on the north side of Utica Avenue and was never intended to run behind plaintiff’s property.

The letter from the Highway Department that was placed in evidence at the trial of the exception apparently convinced the trial judge of plaintiff’s case. It was written on February 27, 1970, to Mrs. Red-del and it reads in pertinent part as follows:

“We wish to advise that the right-of-way concrete markers were placed on the State project No. 740-00-33. Partial acceptance of this project was made September 30,1966, and final acceptance was on March 14, 1967. The chain link fence was constructed under State project No. 740-00-35. Partial acceptance on this project was made December 15,1967, and the roadway was opened to traffic on that date. Final acceptance was made March 5, 1968.
“To determine the exact date on which the right-of-way concrete markers were placed, and the fences constructed, will require research of the project files and project diaries, which are in our Baton Rouge headquarters.”

It is significant that this letter by defendant to Mrs. Reddel, dated February of 1970, specifically advises that the exact date when the fences were constructed in connection with the project was not known to the writer but was available at defendant’s headquarters, so that the question of the date of installation is not answered by this letter. The letter does state that the highway was opened to traffic in December of 1967, contradicting Mrs. Reddel’s earlier testimony that when she inspected the property before her purchase the highway was in use.

In any event, defendant produced at the trial of the merits the testimony of James R. Wheat, a supervisor of surveyors for the Highway Department. The following testimony was elicited:

“Q. Do the records of the Department of Highway indicate when the properties were acquired within the right-of-way line for construction purposes?
A. When the property was acquired?
Q. Yes.
A. I believe they were acquired by expropriation in 1959.
Q. And would the records indicate when the construction started and ended?
A. It indicates that the construction was completed or the project had been completed, inspected, and accepted prior to or on February 27, 1967.
Q. In other words, as of February 27, 1967, the fence and the complete right-of-way project was finished? A. Right.
Q. The fence was installed and everything?
A. That was the date that the Department accepted it, so after all this had been built, it had to be there prior to that, but probably not any more than seven months or so.”

' When her testimony is scrutinized, plaintiff cannot be said to have admitted that the fence was in place when she bought the property. It is fair to say that she could not remember one way or the other. But in its letter, defendant admitted that the chain link construction project was not accepted until December, 1967, some seven to nine months after plaintiff acquired. This sharply contradicted the testimony of Wheat who said that the project was accepted before February, 1967, and this was the only positive testimony offered by defendant on the point.

Perhaps the trial judge gave little weight to Wheat’s testimony because he did not purport to have first-hand knowledge of these events and was testifying only from defendant’s records. Perhaps the trial judge considered Wheat’s testimony discredited by the letter. In any event, he was entitled to infer that the fence was not there when plaintiff acquired.

On the other hand, the record does disclose that the highway was in use when plaintiff acquired based upon her own admission. This provokes us to inquire whether the disputed property had been taken when plaintiff acquired even though the fence was not yet built.

We are not favored with any evidence of the exact configuration of the parts of the right-of-way such as the roadways themselves, a neutral strip if any, the shoulders, the green area along the roadways and the fences themselves, but it seems certain that there is a grassy or planted area between the fence and the roadway at least eight and one-half feet wide. The question of when this strip was taken is not answered by determining when the roadways were opened because none of the construction necessarily took place in the grassy area adjacent to plaintiff’s property.

When plaintiff acquired she knew only that her property extended to the right-of-way line. At that time defendant’s very survey showed this line to be outside of the disputed strip. No fence was there and no possession had been taken by defendant of the narrow grassy strip between plaintiff’s lots and defendant’s right-of-way. The only physical indication that this strip was within the right-of-way was the presence of the concrete monumental markers apparently placed there in 1966 but well hidden by the grass when plaintiff purchased. We have concluded that defendant did not effectively take this property until sometime after plaintiff acquired and she is entitled to compensation.

As an alternative, defendant contends that the compensation of $9,758.40 awarded to plaintiff is excessive. The trial court arrived at this amount based upon the market value of $4.28 per square foot as of October, 1972. The parties stipulated at to various market values on different dates, and the trial judge chose to use the date when judgment was rendered overruling some exceptions filed by the defendant in the initial stages of this litigation.

Other alternatives were the values as of the time the property was bought in January, 1967, when the fence was erected in December, 1967, when plaintiff first became aware that the fence was constructed on her property in January, 1970, and when plaintiff filed her suit in May, 1972.

At the outset we find no authority to support the amount as of the time the initial exceptions were overruled as used by the trial court. A review of the prevailing jurisprudence seems to support either the date of the taking, the date when plaintiff acquired knowledge, or the date when defendant’s answer was filed.

In Cruell v. Jefferson Parish, 216 So.2d 604 (La.App. 4th Cir. 1968), writs refused, 253 La. 640, 219 So.2d 175, defendant took plaintiff’s property in 1954 but plaintiff did not discover this fact until 1958. She filed suit in 1962 demanding compensation to be fixed at the market value as of 1958 when she learned that the property was taken. The Court found that she was entitled to compensation based on the date she acquired knowledge of the taking and rejected the contention that she was relegated to the value as of the time of the actual taking. That case would seem to dictate that plaintiff was entitled to compensation at least based on market value as of January, 1970, when she discovered that the fence was on her property.

However, the problem is complicated by Koerber v. City of New Orleans, 228 La. 903, 84 So.2d 454 (1955), in which the City took possession of plaintiff’s property for construction of an airport in 1941. Plaintiff discovered the taking in 1946, and yet compensation was awarded as of the date defendant filed its answer to plaintiff’s suit in 1951. If this case controls it would appear that plaintiff’s damages would be based on the market value as of February, 1973, and the trial court’s judgment should be affirmed. Aside from the fact that this resolution of the problem would be inconsistent with the Cruell case, our decision must be influenced by A. K. Roy, Inc. v. Board of Com’rs for Pontchartrain L.D., 238 La. 926, 117 So.2d 60, in which plaintiff’s property was taken and he acquired knowledge at the time of the taking but took no action until several years later. In refusing to apply the rule of the Koerber case, the Court held as follows:

“Under the particular facts of this case, the rule of the Koerber case is not controlling, and we think applicable instead the jurisprudence holding in effect that where a property owner, with full knowledge that its property has been taken possession of by a public body for the purpose of constructing public works, stands by without resistance or complaint, as was the case here, considerations of public policy require that the owner shall not be permitted to reclaim its property but shall be restricted to a claim for compensation for the value of the property taken and for damages to adjacent land, if any, determined as of the date of the taking.”

Further distinguishing the Koerber case in a footnote the Court observed that while Mrs. Koerber’s property was taken in 1941 and she acquired knowledge of this taking in 1946, even though she did not file suit until 1949, she had engaged in conversations and correspondence with respect to the property and seemingly explained why her suit was not filed when she first acquired knowledge of the taking.

Thus, it seems that the instant case is unlike both the Roy case and the Koerber case. It differs from the former in that she did not acquire full knowledge of the taking from the very time it was taken and then do nothing for a number of years, and her case differs from the latter in that she did not offer an explanation as to why no action was taken from the time she acquired knowledge in January, 1970, until she filed suit in May, 1972. Thus, we have concluded that plaintiff is entitled to compensation based on market value of $2.80 per square foot in January, 1970, or the sum of $5,244.00. She is entitled to interest from the date that the property was taken in December, 1967, pursuant to the Roy case.

Palmer and Baker, Inc. and defendant have stipulated through their counsel that they, in the trial court, agreed to a settlement of the third-party demand regardless of the outcome of the main demand. Pursuant thereto they have stipulated that the third-party demand should not have been granted in the trial court and should now be dismissed.

Accordingly, the judgment in favor of plaintiff and against defendant is affirmed but is amended so that the judgment is for $5,244.00 with legal interest from December 1, 1967, until paid. The judgment in favor of defendant on its third-party demand is annulled and set aside. In all other respects the judgment is affirmed.

AFFIRMED IN PART, AMENDED IN PART AND ANNULLED IN PART.


author: MORIAL, Judge.

text:
    COURTESY FINANCE COMPANY OF GENTILLY v. Donald TUCKER and Charles E. Tucker.
    No. 7709.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1976.
    Mauriee E. Clark, Jr., Paul W. Odenwald, New Orleans, for plaintiff-appellee.
    Charles W. Fasterling, New Orleans, for defendants-appellants.
    Chaffe, McCall, Phillips, Toler & Sarpy, Gerald Wasserman, Emile L. Turner, Jr., New Orleans, for garnishee-appellee.
    Before SAMUEL, BOUTALL and MORIAL, JJ.
   MORIAL, Judge.

Plaintiff obtained a default judgment against defendants based upon domiciliary services of citations and original and supplemental and amending petitions on defendants. Thereafter and without having served notice of judgment on defendant, Charles E. Tucker, plaintiff proceeded to a seizure via fieri facias and garnishment of the wages of Charles E. Tucker. Defendant, Charles E. Tucker, filed a motion to dissolve the garnishment in which he asked for damages and attorney’s fees which were denied by the court. It is from the denial of this motion that defendant, Charles E. Tucker has appealed. We reverse and remand.

Defendant, Charles E. Tucker, was not personally served with either the original or supplemental and amending petitions. LSA-C.C.P. Article 1913 provides in pertinent part:

“Notice of the signing of a default judgment against a defendant on whom citation was not served personally, and who filed no exceptions or answers, shall be served on the defendant by the sheriff, by either personal or domiciliary service.”

LSA-C.C.P. Article 1974 provides in the second paragraph that:

“When notice of judgment is required under Article 1913, the delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913.”

The delay for taking a suspensive appeal does not begin to run until the time to apply for a new trial expires or until a motion for a new trial is refused. See LSA-C.C.P. Article 2123. A judgment creditor may proceed with the execution of a judgment only after the delay for a sus-pensive appeal therefrom has elapsed. See LSA-C.C.P. Article 2252. The lack of service of the default judgment suspended the running of the above time limitations. Therefore, the seizure and garnishment of Charles E. Tucker’s wages pursuant to the default judgment were premature and a nullity. See Nassau Realty Co., Inc. v. Brown, La., 332 So.2d 206 (1976); Moses v. American Security Bank of Ville Platte, 222 So.2d 899 (La.App. 3rd Cir. 1969).

For the foregoing reasons, the judgment of the district court of February 3, 1975, denying the motion to dissolve the garnishment is reversed and it is further ordered that the writ of fieri facias issued pursuant to the supplemental petition of Courtesy Finance Company of Gentilly dated July 25, 1974 is dissolved and the judgment of the district court of September 20, 1974 is annulled, vacated and set aside; it is further ordered that the right of Charles E. Tucker to claim damages for the illegal seizure of his wages is reserved and the case is remanded to the district court for a determination of such damages. Courtesy Finance Company of Gentilly is to pay all costs of these proceedings.

REVERSED AND REMANDED.


text:
    Dennis J. DeVUN, Individually and on behalf of the minor, David C. DeVun v. John H. BARTON and United Services Automobile Association.
    No. 7731.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1976.
    Rehearing Denied Jan. 12, 1977.
    Writ Refused March 11, 1977.

      Edwards, Porteous & Lee, G. Thomas Porteous, Jr., and D. R. Martiny, Gretna, for plaintiffs-appellees.
    Schafer & Schafer, Timothy G. Schafer, New Orleans, for defendants-appellants.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   SCHOTT, Judge.

Defendants have appealed from a judgment in plaintiff’s favor for damages sustained by him and his minor son in an automobile accident which occurred at the intersection of Sauve Road and Hyde Place in Jefferson Parish.

This is a “T” intersection with Sauve Road running east-west and Hyde Place intersecting on the north side only. A stop sign requires traffic entering from Hyde Place to come to a stop. Before the accident, plaintiff’s minor son David had been proceeding east on Sauve Road and while in the process of making a left turn into Hyde Place the left rear of his automobile collided with the left front corner of the automobile driven and owned by defendant Barton. Barton had stopped at the stop sign on Hyde Place which was located 26 feet from the north curb line of Sauve Road, had moved to within a short distance from the Sauve curb line and was still in the right lane of Hyde, preparing to enter Sauve Road when the collision occurred.

The evidence consisted of the testimony of Mr. and Mrs. Barton, David DeVun and an investigating officer. At the conclusion of the trial of the case the judge in colloquy with counsel made several statements which provide us with an insight into his findings. These statements include: 1) the police officer was unworthy of any credibility; 2) Barton had not entered Sauve Road when the impact occurred; 3) Barton was negligent because he was approaching the intersection from an inferior street; and 4) the only question to be decided was if David DeVun was guilty of contributory negligence. It follows that he found that David was not guilty of contributory negligence, and it is this finding which we have scrutinized.

David testified as follows: As he proceeded east along Sauve Road at approximately 25 miles per hour he first observed the Barton vehicle when he was 15 to 20 yards away, at which time it was well past the stop sign in motion and veering to the left approaching Sauve Road. When David started making his turn into Hyde he was going about 10 miles per hour. In answer to the question of what happened when he got to the intersection he said, “I saw the vehicle start to come out of Hyde and I proceeded to make my turn anticipating that he would stop. He did not stop and I was struck.”

The following questions and answers were elicited from David on cross examination:

“Q. Now, when you first saw him what did you notice about the driver if anything?
A. He wasn’t looking the direction I was coming. He was looking toward the left.
Q. And, did you notice this from the moment you first saw him?
A. No, sir.
Q. When did you first notice that he was looking away from you?
A. When I got closer to the intersection.
Q. Did you blow your horn?
A. No, sir.
Q. Did you, after seeing him for the first time, about a foot and a half from the curb line and proceeding out at five to seven miles an hour, did you realize that he was coming out into Sauve in the direction that you were going to proceed into?

A. Yes, sir.

Did you in any wise alter your course of action? <©

To try and avoid from the accident, yes, sir. í>

What did you do? «O

I tried to make my turn wider in order for him to miss me but he didn’t.” í>

Considering the foregoing testimony and rejecting in toto the testimony of the Bartons and the police officer, we are compelled to conclude that David was guilty of contributory negligence. It is universally understood that a driver must take reasonable measures to avoid an accident. David’s testimony is to the effect that he saw Barton moving out into Sauve Road directly in his path and looking in the opposite direction.

Under these circumstances David had a duty as a left turning motorist not to execute his turn, which included crossing a portion of the lane in which Barton was moving, until he was sure the turn could be made safely. David was charged with the duty of stopping, if necessary, to prevent this accident with Barton who was preparing to turn left and was oblivious of David’s approach from the right. David’s explanation that he tried to make a wide enough turn to avoid coming into contact with Barton does not excuse him, in effect, from running his automobile into the path of Barton’s. It was not reasonable for David to proceed in the hope that Barton might see him in time to stop and thereby give David the room he needed to make the turn.

Accordingly, the judgment appealed from is reversed and there is judgment in favor of defendants and against plaintiff, dismissing his suit at his cost.

REVERSED AND RENDERED.


author: BOUTALL, Judge.

text:
    Clarence J. HEBERT, Jr. v. Leon TERNOIR, Jr., et al.
    No. 7735.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1976.
    Rehearing Denied Jan. 12, 1977.
    Greenberg & Dallam, Alan James Bou-dreaux, Gretna, for George W. Giacobbe and Clarence J. Hebert, Jr., exceptors-ap-pellees.
    Earl J. Schmitt, Jr., in pro. per.
    Before SAMUEL, BOUTALL and MORIAL, JJ.
   BOUTALL, Judge.

This appeal concerns the effectiveness of an attorney’s lien filed by Earl J. Schmitt, Jr. in the record of the case of Hebert v. Reese Truck Lines, et al.

Before trial on the merits occurred in the case of Hebert v. Reese Truck Lines, et al, Earl J. Schmitt, Jr., not an attorney of record therein, filed a pleading entitled “Attorney’s Lien on Subject Matter of Suit” claiming a lien against the subject matter to the extent of 16%% of any settlement. Two documents accompanied the claim for an attorney’s lien; a document entitled “Contract of Employment” executed by Clarence J. Hebert, plaintiff, in favor of George W. Giaeobbe, his attorney of record, and an untitled document executed by Giaeobbe and Schmitt that stipulated that Schmitt would receive 50% of all fees earned by Giaeobbe.

A motion to strike the attorney’s lien from the record was filed in behalf of Gia-cobbe and Hebert. After trial on the motion the trial judge ordered the claim for attorney’s lien stricken from the record.

L.R.S. 37:218 states plainly that an attorney may acquire an interest in the subject matter of a suit as his fee and may stipulate that neither the client nor the attorney may, without the other’s consent, dispose of the suit or claim, provided there is a written contract signed by the client.

We note that the documents, evidence, and testimony submitted at the trial of the motion to strike show no agreement of any type between attorney Schmitt and plaintiff Hebert. There is no employment contract between an attorney and his client as required by LSA-R.S. 37:218 to give rise to a lien. An agreement between Schmitt and Giaeobbe cannot affect the rights of Hebert or bind the parties to the lawsuit.

Additionally, we note that LSA-R.S. 9:5001 provides that an attorney is granted a special privilege for the amount of his professional fees on all judgments received by him, and the property recovered thereby. In the case now before us, Schmitt was not the attorney that filed the suit or handled the lawsuit in any manner, and that statute is similarly inapplicable.

The judgment ordering the pleading stricken is affirmed at Schmitt’s costs.

AFFIRMED.


author: PER CURIAM.

text:
    Willis H. TAYLOR, Jr. v. The LOUISIANA COMMISSION ON GOVERNMENTAL ETHICS et al.
    No. 10970.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    John R. Martzell, New Orleans, for plaintiff-appellant Willis H. Taylor.
    R. Gray Sexton, Baton Rouge, for defendant-appellee Comm, on Gov’t Ethics, the Ethics Comm. Members.
    John L. Avant, Baton Rouge, for defendant-appellee Edwin W. Edwards, Governor, State of Louisiana.

      Before ELLIS, CHIASSON and PONDER, JJ.
   PER CURIAM.

Prior to our deciding this case, we became aware, without being afforded the courtesy of advice from counsel, that the Louisiana Commission on Governmental Ethics may have already held the hearing that plaintiff sought to have enjoined, making the case moot and any opinion we gave an advisory one. In answer to our inquiry to counsel, they have advised us that not only has the hearing been held but also an opinion has been reached.

The only relief clearly asked for in these proceedings was for an injunction against the holding of the hearing. Any decision made by us now would be advisory. State ex rel. Preston v. Henderson, La., 283 So.2d 230 (1973).

Counsel suggests that we hold the present matter under advisement until we receive the appeal from the hearing and then combine the two appeals. We do not consider this appropriate treatment for a moot matter.

The appeal is dismissed.


text:
    Roy Rainer WELLS, Plaintiff-Appellant, v. ST. TAMMANY PARISH SCHOOL BOARD et al., Defendants-Appellees.
    No. 11052.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.

      James R. Strain, Jr., Slidell, for plaintiff-appellant.
    C. T. Williams, Jr., New Orleans, for defendants St. Tammany Parish School Bd. and The American Ins. Co., appellee.
    James J. Whittenburg, Slidell, for Rowland Crawford and R. C. Brooks, appellees.
    Richard A. Machen, Slidell, for Richard Narcisse, Individually and as Administrator of the Estates of his minor children, Gerald Narcisse and Lester Narcisse, appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal of a summary judgment dismissing the suit of Roy Rainer Wells, plaintiff-appellant, as to the individual members of the St. Tammany Parish School Board, defendants-appellees.

On March 16, 1973, while employed as a teacher by the St. Tammany Parish School Board (Board), the appellant was injured while assisting a bus driver in handling a student who was causing a disciplinary problem. To recover for his injuries the appellant brought this tort action. The appellant in his petition named the Board as one of the defendants. The Board on May 28, 1974, filed an exception of no cause of action and no right of action and, alternatively, a motion for summary judgment contending that under La.R.S. 23:1032 the appellant’s sole remedy as to the Board was provided by the Workmen’s Compensation Act. The District Court on September 30, 1974, rendered judgment in favor of the Board dismissing appellant’s suit as to tort damages and reserving appellant’s right to workmen’s compensation.

On May 16, 1975, the appellant filed a supplemental and amending petition naming the appellees, the individual members of the St. Tammany Parish School Board, as defendants and alleging negligent conduct on their part which contributed to the appellant’s injury. The negligent conduct alleged by the appellant was that:

“A. These defendants took an active part in the business of the school board, knew of their duty, and breached said duty to establish a procedure to adequately select substitute bus drivers that meet the standards established by the State Department of Education of Louisiana;
“B. By failing to screen substitute bus driver applications and allow persons qualified to handle and discipline children, and to act as substitute bus drivers;
“C. Failure to approve the hiring of a substitute bus driver by Rowland Crawford; j
“D. Failure to instruct substitute bus drivers in the manner and procedure of disciplining children;
“E. Failure to instruct substitute bus drivers on what to do in an emergency situation;
“F. Failing to have a procedure where by substitute bus drivers are notified as to safety meetings;
“G. Failing to invite substitute bus drivers to safety meetings where instructions were given as to safety and discipline procedures to be used in the above mentioned situation;
“H. Failure to establish a procedure where by school board correspondence on school bus safety and discipline can be disciminated (sic) to substitute bus drivers in order to assist them in the performance of their duties;
“I. In failing to properly and adequately staff the late yard duty position;
“J. The St. Tammany Parish School Board owed the plaintiff the duty to provide a safe environment in which to work along with the above mentioned duties. These duties were delegated to the above listed executive officer defendants;
“K. Because of the breach of the above mentioned personal duties of each of the executive officer defendants, the plaintiff received the damages complained of.”

The appellees on December 10,1975, filed a motion for summary judgment contending that the appellant’s sole remedy against them was under the provisions of the Workmen’s Compensation Act. The District Court on March 12, 1976, rendered judgment in favor of the individual members of the Board and dismissed appellant’s suit against them. It is this judgment which has been appealed.

It is the contention of the appellees that Louisiana law and jurisprudence, while allowing certain third-party actions by employees against the officers and directors of the employing corporation, does not allow third-party actions by employees against unincorporated groups of individuals, such as School Boards, who are the employers of the employee.

Under R.S. 23:1101-1103 an injured employee has the right to recover damages for his injuries where the injuries are caused by a third party. A parish school board is a legal entity separate from its individual members. R.S. 17:51, R.S. 17:81, R.S. 17:87.6. Therefore, the individual members of a school board are third persons within the meaning of R.S. 23:1101 and may be sued in tort where their personal negligence results in the injury of a person employed by the school board.

It is the individual member’s personal liability for his own fault which gives rise to an obligation to repair the injury caused. The negligent conduct alleged by the appellant is not the conduct of an individual member, but rather it is the conduct of the members acting as a School Board. There is no personal liability on the individual members of a public body, who are public officers, for the neglect of duty of that body when they act in good faith and without malice, as the official action of the individual members becomes merged in the official actions of the body itself as an entity. Strahan v. Fussell, 218 La. 682, 50 So.2d 805 (1951). The appellant has failed to state a cause of action as to the individual members of the St. Tammany Parish School Board.

A motion for summary judgment shall be rendered “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” Art. 966, La.Code of Civil Procedure. A motion for summary judgment is not a substitute for an exception of no cause of action. Sinclair Oil & Gas Company v. Delacroix Corporation, La.App., 235 So.2d 187 (4th Cir., 1970). By virtue of the hereinbe-fore mentioned statutes and jurisprudence, the appellees are not entitled to a summary judgment as a matter of law. Therefore, a summary judgment is not appropriate in this case.

The failure of the plaintiff to state a cause of action may be noticed by this Court on its own motion. La.Code of Civil Procedure Art. 927. When the grounds of the objection may be removed by amendment of the petition, the Court shall order such amendment within a delay to be set by the Court. If the plaintiff fails to amend within the time allowed, the action shall be dismissed. La.Code of Civil Procedure Art. 934.

For the above reasons, the judgment of the District Court is reversed and the case remanded for the fixing of a delay in which the appellant may amend his petition to state a cause of action. Cost of this appeal to be paid by the appellant, all other costs to await the final disposition of the case.

REVERSED, RENDERED AND REMANDED.


author: PONDER, Judge.

text:
    Robert J. McDONALD v. Dr. Lloyd P. CHAMPAGNE.
    No. 11053.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.

      J. Peyton Parker, Jr., Baton Rouge, of counsel, for Robert J. McDonald.
    Dr. Lloyd P. Champagne, pro se.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is a suit by one co-maker who had paid a promissory note against another comaker for the latter’s virile share. The court gave judgment as prayed for and the defendant has appealed.

Defendant specified as errors that the trial court failed to apply: the rule of equitable estoppel; the principle of offset or compensation; and the principle of unjust enrichment. He relies “solely on Louisiana Civil Code Article 21 on equity jurisdiction of the court.” He admits: “There is no denial of the propriety of the note, defendant-appellant’s viable (sic) portion thereof, nor his obligation to pay if that was as far as it went.”

We affirm.

Plaintiff, defendant and two others were partners in a land promotion transaction. Defendant advanced $7,500.00 to plaintiff who, in addition to being a partner, was the realtor and was to make a $20,000.00 commission. When one of the partners died, the transaction was cancelled, over plaintiff’s initial objections. To meet accrued expenses, the three partners borrowed $3,400.00 from plaintiff’s brother and signed a note. The plaintiff paid this note after maturity and now seeks reimbursement of defendant’s virile share. When plaintiff did not repay the $7,500.00 advanced for him by defendant, the latter sued him and secured judgment.

Defendant first contends that plaintiff’s failure to assert an offset or counterclaim estops him now. We find it unnecessary to determine whether failure to assert offset as an affirmative defense in one action could ever estop one from asserting it in a subsequent action. The general rule is that estoppels are not favored. One must affirmatively show that he was misled and acted to his prejudice in order to prevail on a defense of equitable estoppel. American Security Bank of Ville Platte, Inc. v. Vidrine, La.App., 255 So.2d 140 (3rd Cir. 1971). There is no showing that defendant ever changed his position to his prejudice in reliance upon McDonald’s failure to plead offset in the first suit. The claim is therefore without merit.

He next claims that the interest due him because of forbearance to sue on the $7,500.00 obligation offsets his indebtedness claimed in the present suit.

Compensation is an affirmative defense. C.C.P. Art. 1005. The party who asserts an affirmative defense must prove that defense by a preponderance of the evidence. New Amsterdam Casualty Co. v. Culotta, 230 So.2d 339 (4th Cir. 1970).

The only evidence supporting this defense is the testimony of the defendant himself. There was no documentary evidence establishing any agreement by the plaintiff to pay interest in return for defendant’s forbearance to institute suit. Plaintiff testified there was no such agreement. We find no manifest error in the trial court’s holding that defendant failed to prove compensation by a preponderance of the evidence.

Defendant asserts plaintiff would be unjustly enriched because he was not paid and did not secure judgment for the payment of interest on the $7,500.00, except from judicial demand.

In an action for unjust enrichment, there must be an absence of justification or cause for the enrichment and the impoverishment. In Edmonston v. A-Second Mortgage Company of Slidell, Inc., La., 289 So.2d 116 (1974), the leading case on the subject, the Supreme Court said:

“The issue, then, is whether there is a contract, express or implied, between Mrs. Edmonston and A-Second or Standard and A-Second which would justify the enrichment of A-Second. If there is such, the contract is the law between them and it serves as a legal cause or justification for the enrichment. If cause is found, the enrichment is not unjustified and the attempt to invoke the actio de in rem verso must fail. For it is not every unjust enrichment which warrants the resort to equity; only the unjust enrichment for which there is no justification in law or contract allows equity a role in the adjudication.”

Dr. Champagne evidently agreed to lend McDonald the money interest free. That contract is the law between the parties. Plaintiff’s enrichment was therefore justified.

Defendant cites Civil Code Article 21 in an attempt to persuade this court to decide in his favor. Since there is express positive law, this article is not applicable.

The judgment of the trial court is affirmed. Appellant is cast with all costs.

AFFIRMED.

      . Art. 21. “In all civil matters, where there is no express law, the judge is bound to proceed and decide according to equity. To decide equitably, an appeal is to be made to natural law and reason, or received usages, where positive law is silent.”


text:
    AIR COMPRESSORS, INC. v. BIG CHIEF CONSTRUCTION CO., INC.
    No. 11060.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Henry F. Mestayer, New Orleans, of counsel, for plaintiff-appellee Air Compressors.
    Thomas G. Donelon, Metairie, of counsel, for intervenor-appellant Jefferson Bank & Trust Co.

      Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This appeal was taken from a judgment of the Nineteenth Judicial District Court decreeing the privilege claimed by Air Compressors, Inc., plaintiff-appellee, to be superior in rank to the privilege claimed by Jefferson Bank and Trust Company, inter-venor-appellant.

On October 2, 1974, judgment was rendered in the Twenty-Fourth Judicial District Court, Parish of Jefferson, in favor of the appellee and against Big Chief Construction Co., Inc. in the amount of $6,239.36, plus interest and attorney’s fees. This judgment was made executory in the Nineteenth Judicial District Court, Parish of East Baton Rouge, on October 24, 1974, and a writ of fieri facias was issued seizing any debts owed by the Continental Oil Company to Big Chief. Continental Oil was served with the writ of fieri facias, a petition of garnishment, citation and interrogatories on November 4, 1974.

Continental Oil filed an answer to the interrogatories on November 18,1974, denying any indebtedness to Big Chief. Later, on December 30, 1974, it filed an amended answer alleging that, since the date of service of the interrogatories, it had become indebted to Big Chief for $3,886.00, that it had made one payment to Big Chief of $2,769.00, and that Big Chief, as of that time, was an employee of Continental Oil. On January 27, 1975, judgment was rendered ordering Continental Oil to turn over to Air Compressor the sum of $3,886.00.

On March 6, 1975, Air Compressor once again made Continental Oil garnishee. On the same day, Continental Oil filed a motion to have Jefferson Bank & Trust Company made a party to the garnishment proceeding, alleging that it had been informed on January 13, 1975, that Jefferson Bank held an assignment of accounts receivable from Big Chief dated October 4, 1974. This motion was denied ex parte by the Court.

On March 24, 1975, Continental Oil answered the March 6, 1975 interrogatories stating that it held $6,625.25 owed to Big Chief and reiterating the circumstances relative to Jefferson Bank.

On April 24,1975, the Nineteenth Judicial District Court ordered Continental Oil to turn over to the appellee $5,218.71, plus interest in satisfaction of the garnishment.

The appellant on April 25, 1975, filed a petition of intervention in the Nineteenth Judicial District Court asking that an assignment of accounts receivable made by Big Chief be recognized as giving the appellant a superior privilege on the funds owed to Big Chief by Continental Oil.

On May 9, 1975, Continental Oil filed an answer to the intervention citing the judgment of April 24, 1975, and the subsequent intervention of Jefferson Bank, and requesting that it be permitted to pay the amount of the garnishment judgment to The Clerk of the District Court of the Parish of East Baton Rouge. The Court, ex proprio motu, ordered a rule nisi issued commanding the appellee and the appellant to show cause why the privilege claimed by the appellant should not be recognized as superior to the privilege claimed by the appellee.

At the hearing the Court would not allow introduction of evidence relative to the validity of the privilege claimed by the appellant. Further, there is no testimony or evidence as to whether or not the funds seized were derived from accounts purportedly assigned to the appellant. Ordinarily, one who does not carry his burden of proof loses his claim. However, in this case, the Court limited the hearing to the ranking of liens on a summary hearing.

We quote from the transcript of evidence the following pertinent provisions:
“THE COURT: ... I suspect, gentlemen, that a more practical way of handling this would be to have these monies paid into the Registry of the Court and put this down as an ordinary proceeding if we are going to contest the validity of the assignment, but I will sustain your objection and if you want to go ahead with the summary matter at this time, we can do that.” (Page 68).
* * * * * *
“MR. DONELON: Your Honor, I would prefer to have a complete trial on the issues. There is no doubt about it. We got into it after the garnishment had been filed, had no prior notice, had no chance to put our evidence forward. And I would agree with you. I would have more witnesses than Mr. Akin to present ...” (Pages 68 & 69).
******
“THE COURT: And if the Court is being asked to make that determination, then we are getting into something other than just a ranking of liens on a summary hearing which motivated me to say that perhaps we ought to put this thing down on the merits if we have got to contest the validity vel non of the assignment, as to whether there is valuable consideration and so on . . . ” (Page 72).
******
“THE COURT: ... I think we might be able to do this entire thing today but if we do so, we will have to pretermit this matter for an hour or two and let me finish my routine docket and see how much time we have left and what we can get into.
“MR. MESTAYER: Well, yes, I would like to conclude it today while I am here, if I may.
“THE COURT: Well, suppose you finish with this witness and then we will lay the matter over for a little while, whatever you want to do, but I will have to sustain the objection made by Mr. Mestayer as to all these other notes and things that preexisted October 4th, the date of the assignment.” (Page 76).

The testimony of the witness was thereafter concluded. The minutes of the Court does not reflect that the matter was ever again taken up by the Court before the rendition of the judgment which is the subject matter of this appeal.

The failure of appellant to carry his burden of proof is not imputable to it under the particular facts of this case. Appellant is entitled to present testimony and evidence upon all issues properly before the Court.

The validity of appellant’s claim must be established before its rank can be determined. On the record now before us, we are unable to rank the conflicting claims herein.

For the above reasons, the judgment of the Nineteenth Judicial District Court is reversed and the cause remanded for further proceedings. Cost of this appeal is to be divided equally between the appellant and the appellee. All other cost to await the final disposition of this case.

REVERSED AND REMANDED.


text:
    Carolyn H. HOWARD v. Lawrence J. ACOSTA et al.
    No. 11061.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.

      Doris Gates Rankin, Baton Rouge, of counsel for plaintiff Carolyn H. Howard.
    Roger M. Fritchie, Baton Rouge, of counsel for defendants Lawrence J. Acosta, et al.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is a tort claim for personal injuries arising from an automobile collision in Baton Rouge on April 6, 1973. The defendants, Lawrence J. Acosta, McCarty Corporation, Trade Rite and Associates and Employers Commercial Union Companies admitted liability. The trial court awarded plaintiff, Carolyn H. Howard, $6,000.00. Both plaintiff and the défendants have appealed.

The sole issue before the court is quantum. We affirm.

On October 27, 1972, while employed as a nurse, plaintiff suffered a work related accident with injury to her lower back. She was treated by Drs. Miceli and Loupe, the latter an orthopedist. Dr. Loupe gave his opinion that she had sustained a severe lumbosacral strain with possibility of inter-vertebral disc injury. She was hospitalized for almost a month, undergoing conservative treatment. However, in December he advised her that she would be allowed to return to work when she regained enough strength and endurance. She testified she worked a few days in January but could not work every day because of pain and cramps. She did not work in February, and worked only four days in March.

On April 6, 1973, Mrs. Howard was involved in the accident giving rise to this case, a collision in which Mr. Acosta collided lightly with the rear end of plaintiff’s vehicle. After the accident, plaintiff drove her car from Baton Rouge, where the accident occurred, to St. Francisville. On the way, she stopped at the West Feliciana Parish Hospital where she was examined by Dr. Miceli, who took x-rays, and gave her something for pain and a muscle relaxant. At that time, she complained of pain in her right shoulder.

She was seen by Dr. Miceli on April 20, 1973, and August 20, 1973. At the August visit, she was complaining of increased pain in her left leg, and pain in the right shoulder, radiating into her right arm. During the period from April to August, plaintiff worked six days in April, four days in May, nine days in June, seven days in July and 13 days in August, a better work record than she had prior to the accident.

However, because of her complaints of increased pain, Dr. Miceli referred plaintiff to Dr. Dean Moore, a neurosurgeon. She gave Dr. Moore a history of both the November and April accidents, and told him that her back and leg pain were essentially unchanged after the April accident. Dr. Moore performed a myelogram, which demonstrated a ruptured disc on the left side. In September, 1973, he performed surgery, at which time he found a bilateral rupture in the L4-L5 disc. After this operation, plaintiff no longer complained of any neck or shoulder pain, although there was no physiological connection between the two conditions. Because the complaints of back and leg pain continued thereafter, a second myelogram and a second operation were performed. A large herniation on the right side of the L3-L4 disc was found, and the disc removed.

It is plaintiff’s position that the April accident aggravated her low back complaints, and necessitated the subsequent surgery. Defendants argue that the only injury attributable to the April accident was a cervical strain which resulted in the shoulder pain complained of by plaintiff. Dr. Moore was of the opinion that plaintiff’s low back problems were unrelated to the April accident.

The trial judge found that Mrs. Howard suffered no injury in the April accident except the cervical strain, and that she was entitled to recover for pain and suffering caused thereby from April 6,1973, until the surgery was performed in September, 1973, after which she had no neck complaints. He awarded her $6,000.00 for this item. Apparently, no medical expenses were awarded because these had all been paid by the workmen’s compensation insurer of the West Feliciana Parish Hospital, where she was employed at the time of the November accident. We also note that all property damages had been paid by defendants prior to trial.

We find no manifest error in the conclusion of the trial judge that plaintiff suffered only a cervical sprain in the April accident, and that her low back condition was not aggravated thereby.

However, considering the statements of the Supreme Court in Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1976), that, “. . . the record must clearly reveal that the trier of fact abused its discretion in making its award”, and that “. . . [o]nly after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award,” and that court’s approval of awards double or triple any previous awards, or even more, we cannot affirmatively find that the award is outside the bounds of the great discretion now accorded trial courts in fixing damages. See Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La. 1974); Bitoun v. Landry, 302 So.2d 278 (La. 1974); Spillers v. Montgomery Ward & Co., 294 So.2d 803 (La.1976); Boutte v. Hargrove, 290 So.2d 319 (La.1974); Walker v. Champion, 288 So.2d 44 (La.1974).

We are heeding the Supreme Court’s warning against finding similarity between cases by “gleaning the facts of the compa-rabie decision from simply a written opinion of an appellate tribunal;” its pointing to changes in economic conditions (particularly rampant inflation), fluctuating job categories, employment opportunities and even lifestyles;” and its pointed reference to the impossibility of an appellate court’s judging what evidence in a particular case was given special weight by the finder of fact.

The judgment appealed from is therefore affirmed. Costs of this appeal shall be borne equally by plaintiff and defendants, with all other costs to be paid by defendants.

AFFIRMED.


text:
    Willie Gean Smith BRUMFIELD et al. v. David L. DAWSON.
    No. 11068.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.

      Michael E. Soileau, New Orleans, for plaintiff s-appellants.
    Guy L. Deano, Jr., Covington, for defendant-appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Willie Gean Smith Brumfield and her husband, Murray Brumfield, filed this suit to annul a tax sale of their property, on the basis of fraud. The trial judge dismissed the action with prejudice, when plaintiffs and their counsel failed for a second time to appear in court on the day of trial. Plaintiffs appealed from this judgment, claiming in their brief it was obtained by fraud or ill practices because'their counsel received no notice of the trial date.

The issue before this court is the propriety of the lower court’s dismissal of the case with prejudice.

We affirm.

Plaintiff and her husband in 1968 filed this suit to annul a tax sale, in which their property was adjudicated to the defendant. They claimed the tax sale was invalid because defendant had breached an agreement by which he had assumed the obligation of paying the taxes on the property. After long delays, the case was set for trial on December 10, 1974.

When both plaintiffs and their counsel were not present on the day of trial, the court dismissed the action without prejudice. Plaintiffs then filed a rule to show cause why a new trial should not be granted because of the illness of counsel. The court heard the rule on June 9, 1975, and granted a new trial.

Appellants’ counsel asserts in his brief to this court that he was not present at a pretrial conference held on July 15, 1975 and that he was never notified of the assigned trial date. This assertion is contained in the brief only and not in a motion for a new trial, not in a petition to annul a judgment or even in the motion for appeal. There is no evidence to support this contention. Instead, the record contains a copy of the notice of assignment for trial on Tuesday, December 9, 1975, addressed to counsel for plaintiffs and for defendant. In addition the judgment appealed from contains a recitation that the trial came for hearing pursuant to notice of trial given counsel for both plaintiffs and defendant at pretrial conference held on July 15, 1975.

Even if counsel were unable to attend the pretrial conference and were not given a notice of assignment for trial, it would seem that he would make some effort to determine what happened at the conference since he had only recently been granted a new trial. Instead, he did little or nothing until he received notice that judgment had been rendered against his clients. For an analogous factual situation, see Prejean v. Ortego, 262 So.2d 402 (3rd Cir. 1972).

The judgment of the trial court is therefore affirmed. Appellants are to pay all costs.

AFFIRMED.


author: ELLIS, Judge:

text:
    Jimmy L. KEPPER v. CONTINENTAL INSURANCE COMPANY et al.
    No. 11069.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 1976.
    Joseph E. Juban, Baton Rouge, for plaintiff-appellee.
    John B. Noland, Baton Rouge, for defendants-appellants.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

This is a suit for damages for personal injuries suffered by plaintiff Jimmy L. Kepper when he fell through the ceiling of a building leased by him from Richard C. Bennett. Made defendant with Mr. Bennett is Continental Insurance Company, his insurer. After trial on the merits, judgment was rendered in favor of plaintiff for $7,883.00, and defendants have appealed. Plaintiff has answered the appeal, asking for an increase in quantum.

Plaintiffs leased a large metal building from Mr. Bennett. Across the front of the building was an office and showroom area. The offices occupied an L shaped area, enclosing the showroom, which formed the right front part of the building. Above the offices there is a storage area, which is decked with plywood. The ceiling of the showroom is acoustical ceiling tile, which rests in metal supports hung from the roof of the building by heavy wire. There was no railing or partition of any kind separating the decking over the offices from the ceiling of the showroom.

The accident happened on the first day of occupancy of the building by plaintiff, who was engaged in moving in. It was raining heavily and plaintiff, noticing a leak in the ceiling, decided to go up to the storage area to try to locate it. He testified that he had not been up there before. The only source of light in the storage area were two skylights which were located over the rear section of the building behind the offices. Access to the storage area was furnished by a stair at the rear of the offices.

Plaintiff testified that when he reached the storage area, he began to walk toward the front of the building, looking for the leak. He walked off the edge of the decking, stepped onto the tile ceiling of the showroom and fell through to the floor below.

He testified that the surface of the ceiling tile was at the same level as the surface of the decking, and that he could not see the wires supporting the tiles because they were dark in color. The light in the area was very dim because of the distance from the skylights.

In finding the defendants liable for Mr. Kepper’s injuries, the district judge said:

“Article 2695 of the Civil Code established the responsibility of the lessor for damages for vices and defects found in the premises which he leases. It declares:

“ ‘The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.’

“In order to enforce strict liability against the owner-lessor for injuries caused by defective premises, the injured lessee must prove that the accident was proximately caused by a vice or defect in the premises. Jameson v. Employers Ins. of Wausau [La.App.], 286 So.2d 785. Generally, the landlord is only liable for any vice or defect that might be anticipated would cause injury to the tenant through normal use of the premises. Richter v. Koffman [La.App.], 223 So.2d 876. However, the issue of contributory negligence is not considered unless it is shown that the lessee knew of the vice or defect and even then it must appear that the premises could not reasonably be used in safety. Carlysle v. Aetna Insurance Company [La.App.], 248 So.2d 64.

“Judged by these standards, the Court is of the conviction that the situation presented constituted a hazardous and potentially dangerous condition. The landlord had failed to provide either adequate lighting or any barrier signaling to the unwary that there was a surface within the confines of the storage area which was not weight bearing. As such, it was more than likely that a similar accident would have ultimately occurred to a person occupied with manual activity whose attention was not directed toward the floor. Accordingly, the Court finds that the defendants are liable.”

We think the trial judge correctly disposed of the issues presented.

Plaintiff asks that the award of damages made be increased to provide for loss of income. There is no evidence in the record to support such an award.

Plaintiff also claims the sum of $80,-000.00, which was allegedly embezzled by his partner while plaintiff was injured. It is contended that plaintiff would have been able to prevent the embezzlement had he not been incapacitated by the accident. We think the claim to be entirely too speculative to constitute a basis for an award, and the evidence offered in support thereof was found by the trial judge to be insufficient to sustain the burden of proof. It was properly denied.

It is conceded by both parties that the trial judge failed to include in the special damages $552.72 of plaintiff’s hospital bill. The judgment will be increased by that amount.

The judgment is therefore amended to increase the amount thereof to $8,435.72 and, as amended, it is affirmed, at defendant’s cost.

AMENDED AND AFFIRMED.