author: GUIDRY, Judge.

text:
    Gertrude MONTGOMERY and Marion Petry, Plaintiffs-Appellants, v. Corine BREAUX, Defendant-Appellee.
    No. 5612.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 22, 1976.
    Rehearing Denied Nov. 4, 1976.
    Writ Refused Jan. 12, 1977.

      Joel B. Dickinson and Weldon J. Hill, II, Baton Rouge, for plaintiffs-appellants.
    Cooper & Sonnier by Charles R. Sonnier, Abbeville, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   GUIDRY, Judge.

This is a petitory action wherein plaintiffs seek to be recognized as owner and restored to the possession of a .86 acre tract taken from the southeast corner of the East Half of the Southeast Quarter of Section 19, T. 12 S., R. 3 E., Vermilion Parish, Louisiana, which land is hereafter referred to as the “subject tract”. Plaintiffs appeal from the trial court judgment which sustained an exception of thirty year acquisitive prescription (LSA-R.C.C. Article 3499 et seq.) filed by defendant and ordered their suit dismissed with prejudice.

The instant litigation is of long standing and has previously been before this Court (285 So.2d 253, La.App. 3rd Cir. 1973, writ granted, La., 288 So.2d 639) and the Supreme Court of Louisiana (297 So.2d 285, La.1974). In order to place in proper perspective the issues presented by this appeal we deem it necessary to briefly review the history of this litigation.

In August of 1970 defendant, Corine Breaux, filed a possessory action alleging a disturbance of her possession of the subject tract by plaintiffs. This suit terminated in a judgment in favor of Corine Breaux recognizing her right of possession to the subject tract. Plaintiffs thereafter filed the instant petitory action to which defendant responded by the filing of an exception of thirty year and/or ten year prescription acquirenda causa. The trial court considered the filed exception in advance of a trial on the merits, maintained same and rendered judgment recognizing defendant, Corine Breaux, as owner of the subject property by virtue of the acquisitive prescription of thirty years. Plaintiffs appealed from that judgment and this court in Montgomery et al. v. Breaux, 285 So.2d 253, with Judge Domengeaux dissenting, reversed the judgment of the trial court holding in effect that the assertion of 30-year acquisitive prescription is an affirmative defense and cannot be considered on an exception in advance of trial on the merits. Our Supreme Court granted writs and reversed this holding finding that, although the trial judge, in sustaining the exception, was in error in declaring Corine Breaux the legal owner of the subject property, acquisitive prescription could be pleaded by the peremptory exception in a petitory action. Montgomery v. Breaux, 297 So.2d 185 (La.1974). The Supreme Court nonetheless reversed the trial court, finding that the trial court erred in admitting and considering the transcript of evidence taken in the prior possessory action in rendering judgment on the exception of prescription. The matter was remanded to the trial court for further proceedings.

Upon remand plaintiffs filed a supplemental petition requesting trial by jury of all issues in the case which request was granted. Thereafter, defendant filed a motion re-urging her exception of prescription and requesting that in the interest of judicial economy the court exercise its discretion and reconsider the exception of prescription in advance of a trial on the merits. Defendant’s motion was granted, the exception was heard by the trial judge and judgment was rendered maintaining the exception and dismissing plaintiffs’ suit. It is from this judgment that plaintiffs have perfected this appeal.

Plaintiffs assert that the trial court erred in the following particulars:

(1) In granting defendant’s motion for a trial of her exception of prescription prior to a trial on the merits after plaintiffs had timely applied for and were granted a trial by jury.
(2) In holding that defendant acquired the subject land by the prescription of 30 years.
(3) In holding that defendant’s possession had not been interrupted by a disturbance in law, i. e., the filing of two mineral leases by plaintiffs’ ancestors in title.

ASSIGNMENT OF ERROR NO. 1

There can be no question but that the exception of prescription could be heard and disposed of in advance of a trial of this action on its merits unless the previous order of the trial court granting a trial by jury precluded such consideration by the trial judge. Montgomery v. Breaux, supra. Plaintiffs suggest that the trial judge’s consideration of this exception, under the circumstances, was error because LSA-C.C.P. Article 1735 specifically provides that all issue's for which a jury trial has been requested shall be by jury unless the parties stipulate otherwise. There is no merit to this contention. LSA-C.C.P. Article 1731 provides as follows:

“Except as limited by Article 1733, the right of trial by jury is recognized . . ” (Emphasis ours)

LSA-C.C.P. Article 1733 provides the following, among other, limitations on jury trials:

“A summary . . . proceeding

It cannot be disputed that the trial of an exception is a summary proceeding as LSA-C.C.P. Article 2592 defines a summary proceeding, among others, as any issue which may be raised by way of exception. The above being considered we conclude that under Montgomery et a 1. v. Breaux, supra, the trial court was not required to refer the exception of prescription to the merits, and having elected not to do so such exception was not a matter which could be considered by the jury (LSA-C.C.P. Art. 1733) and was properly triable before the trial judge.

ASSIGNMENT OF ERROR NO. 2

Plaintiffs suggest error in the trial court’s conclusion that defendant has shown possession of the subject property necessary to acquire same by the prescription of 30 years, as provided by R.C.C. Articles 3499 et seq.

LSA-C.C. Articles 3499 and 3500 provide as follows:

“Art. 3499. The ownership of immova-bles is prescribed for by thirty years without any need of title or possession in good faith.”
“Art. 3500. The possession on which this prescription is founded must be continuous and uninterrupted during all the time; it must be public and unequivocal, and under the title of owner.”

When this matter was before us previously, Montgomery v. Breaux, 285 So.2d 253 (La.App. 3rd Cir. 1973) Judge Domengeaux, in his dissenting opinion, extensively reviewed the facts of possession as evidenced by the record. Although upon remand the matter was re-tried the facts adduced at the second trial are identical with those adduced on first hearing. With Judge Do-mengeaux’s consent and approval I adopt as my own the review of the facts of possession as set forth in his earlier dissent:

“The disputed .86 acre tract of land was originally owned by Fisher Petry as part of a larger 65 acre tract in Vermilion Parish. A fence separated the land of Petry from that owned by C. Gastinel to the south.
On November 21, 1898, Petry donated the .86 acre tract to the Pleasant Grove Baptist Church, by duly recorded authentic act, for the purpose of erecting a church or public school. The tract was described as follows:
“One certain lot or parcel of land lying and being situated in the Parish of Vermilion, the aforesaid containing Eighty-Six hundredths of acre and to be taken from the South East corner of the East half of the South East quarter of Section Nineteen, Township Twelve South, Range Three East.”
The record indicates that a church building was thereafter erected on the .86 acre tract and later converted to a school. However, at least forty or fifty years ago the buildings were removed, none being since replaced by the donee, Pleasant Grove Baptist Church. Nor has the land been occupied or put to any other use by the donee since that time.
From the aforementioned 65 acre tract, the same Fisher Petry sold to Felix Breaux the following described 17V2 acres, which included the .86 acre tract in question, by deed dated December 7, 1931:
“I7V2 acres of land taken from One certain tract of land containing about sixty five acres, and being the East half of the Southeast Quarter of Section Nineteen, Township Twelve South of Range Three East, with all buildings and improvements thereon or thereto appertaining, the 17V2 acres of land being bounded on the North by the Abbe-ville Canal lateral, East by Joe Petry and the Abbeville Canal lateral, South by C. Gastinel and West by Felix Breaux.”
Nowhere in the act of sale was there mentioned the 1898 donation. Two years previous to this sale Petry had also leased this land to Atlantic Oil and Producing Co., and later sold Vi mineral royalties to the same tract to R. C. Neibert. Neither was there any mention of the donation in these transactions.
Before Felix Breaux’s death in 1935, his daughter, Corine, defendant-appellee herein, and her husband were allowed to plant trees and shrubbery and to place a barn, rice house, and other improvements on the I7V2 acre tract. At that time Corine Breaux and her husband were farming the land under rice and grain, in addition to grazing livestock.
After her father’s death in 1935, Corine was also permitted by her mother to place her house and garage upon the property, in anticipation of a partition. In 1937 there was a partition of Felix Breaux’s estate whereby Corine received 20.1 acres, encompassing all of the aforementioned I7V2 acre tract.
From 1935 until 1965 defendant-appellee, Corine Breaux, resided upon this 20.1 acre tract, farming and grazing livestock thereon. Throughout this period the previously mentioned fence, separating the property from that of C. Gastinel to the south, remained intact. For at least the 30-year duration the disputed .86 acre tract was included within the appellee’s fenced acreage and was at no time separated from the remainder of the property. This tract was used for farming and grazing as was the rest of appellee’s land. In 1965 Corine Breaux moved her home and garage from the 20.1 acre farm into Abbeville. Thereafter she also had her barns sold and tool shed removed.
For the next two years Corine continued to use the land as before. In addition, she granted a five year mineral lease on the 20.1 acre tract in 1967 to W. Guidry, who subleased the property to Superior Oil Company. She also conveyed a pipeline right-of-way in March, 1967.
From 1968 until the time of trial several different parties farmed the land for defendant-appellee, Corine Breaux. Their testimony was to the effect that they had specifically planted portions of the .86 acre tract in question, part of which had become covered with abandoned uprooted trees which had been hauled there.
On September 9, 1969, Pleasant Grove Baptist Church sold the .86 acre tract for the sum of $100.00 to plaintiff-appellant, Gertrude Montgomery Petry, the sale being duly recorded. Shortly thereafter Gertrude M. Petry and her husband had the disputed land surveyed and built a fence around the .86 acre tract. This fence was allegedly torn down several times by defendant, Corine Breaux, and replaced. There was also testimony to the effect that the Petrys cut and tore down the Breaux fence three times, which had to be replaced.
Corine Breaux, defendant-appellee herein, being disturbed in her possession, filed the aforementioned possessory action which was tried on October 22, 1971, and April 15, 1972. Judgment was rendered in her favor.”

The above is an accurate summation of the evidence as appears in the record. On the basis of this evidence the trial judge sustained defendant’s exception of 30 year prescription. Our consideration of this evidence in light of the provisions of the previously cited articles and the legion of cases which have interpreted those provisions convinces us as to the correctness of the trial court’s ruling on the issue of possession.

Plaintiffs suggest that defendant did not possess the subject tract “under the title of owner” because the plat annexed to the plat of partition of the Breaux estate separately delineates the subject tract within the lot allotted to Corine Breaux; and, because Corine Breaux, according to the testimony of two of plaintiffs’ witnesses, verbally acknowledged that the subject tract belonged to another. Defendant denied that she ever acknowledged verbally or otherwise that she did not own the subject property and to the contrary testified that she always considered herself the owner of same. We find no merit in this contention.

We attach little, if any, significance to the fact that the subject tract was separately delineated within the lot of Co-, rine Breaux on the Breaux partition plat. Defendant did not prepare this plat nor was it prepared under her direction. The record does not indicate that she was even aware that the subject tract was so delineated on the partition plat. As stated in Jastremski et al. v. Robichaux, 255 So.2d 406 (La.App. 1st Cir. 1971):

“In order for an acknowledgment to take place so as to interrupt the running of acquisitive prescription, it is necessary that the possessor intend to so acknowledge that he is not possessing the property being prescribed as owner. The acknowledgment must constitute an intentional act on the part of the possessor and not result from a negligent or unintentional act or piece of phraseology, Vincent v. Bullock, 192 La. 1, 187 So. 35 (1939).”

As to the alleged verbal acknowledgment of non-ownership, which as aforesaid was denied by defendant, suffice it to say that factual conclusions of the trial court, particularly where the credibility of witnesses is involved, should not be disturbed on appellate review except upon a finding of manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1873); Plescia v. Dunham, 319 So.2d 812 (La.App. 1st Cir. 1975). We find no manifest error in the trial court’s conclusion in this regard.

ASSIGNMENT OF ERROR NO. 3

Plaintiffs finally assert that the course of prescription running in defendant’s favor was interrupted by a disturbance in law, i. e., the granting and recording of two oil, gas and mineral leases affecting the subject land by the Pleasant Grove Baptist Church, the first on October 21, 1956 and the second on October 1, 1961. A disturbance in law does not interrupt the course of prescription accruing in favor of a possessor under LSA — R.C.C. Article 3499 et seq. As stated by Justice Tate in his concurring opinion in Ree Corporation v. Shaffer, 261 La. 502, 260 So.2d 307, 314 (La.1972):

“. . . The determination of whether the plaintiff is in possession, or whether his possession is uninterrupted, is a matter of substantive law regulated by Articles 3426-3456 of the Louisiana Civil Code; and a possession is interrupted only in the case of physical usurpation, Civil Code Article 3449, not by a ‘disturbance in law’.”

For the above and foregoing reasons the judgment of the trial court is affirmed, all costs of this appeal to be paid by plaintiffs.

AFFIRMED.

      . In this connection the Supreme Court determined that all that could be decided on the exception was that respondents’ petitory action was defeated by relator’s claim of prescription. The Court could not declare relator legal owner of the property.


source: Caselaw Access Project

author: CULPEPPER, Judge. GUIDRY, Judge

license: Public Domain

text:
    Elizabeth RUTHERFORD, Executrix of the Succession of Joe P. Rutherford, Plaintiff and Appellee, v. J. W. RUTHERFORD, Jr., Defendant and Appellant.
    No. 5613.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 22, 1976.
    Rehearing Denied Nov. 4, 1976.
    Writ Granted Jan. 12, 1977

      Brame, Bergstedt & Brame, by David A. Fraser, Lake Charles, for defendant-appellant.
    Jones, Jones & Alexander, by Jerry G. Jones, Cameron, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   CULPEPPER, Judge.

This is an action to annul a donation inter vivos. The plaintiff is the executrix of the succession of the donor. The defendant is the donee. From a judgment annulling the donation, the defendant-donee appealed.

The substantial issues are: (1) Did the donee accept the donation? (2) Did the trial court err in excluding parol testimony offered by defendant for the purpose of proving that the donation was remunerative rather than purely gratuitous? (3) Was the donor mentally capable of executing the donation?

The act of donation sought to be annulled is from Joe P. Rutherford as donor to his nephew, J. W. Rutherford, Jr., as donee, conveying an undivided Vw interest in 160 acres in Cameron Parish. The act is dated November 27, 1973 and was signed by the donor in the presence of Ward Fontenot, Notary Public, and two witnesses in Cameron Parish.

The form of this act of donation is not contested. Plaintiff contends, however, that the donation in null because the donee failed to accept it. The alleged acceptance is by a separate act on a separate sheet of paper.

Article 1540 of our Civil Code provides that:

“A donation inter vivos shall be binding on the donor, and shall produce effect only from the day of its being accepted in precise terms.”
“The acceptance may be made during the lifetime of the donor by a posterior and authentic act, but in that case the donation shall have effect, with regard to the donor, only from the day of his being notified of the act establishing that acceptance.”

The substantial issue is whether the donation was accepted in “precise terms” as required by Article 1540.

The alleged acceptance was, signed by the donee in Texas before Betty Rowe, Notary Public and two different witnesses and reads in pertinent part as follows:

“BE IT KNOWN, That on this date before me the undersigned Notary Public and in the presence of the undersigned competent witnesses personally came and appeared:
J. W. RUTHERFORD, JR., husband of Patricia Clement Rutherford, of full age of majority, a resident of Montgomery County, Texas,
who declared that he has taken cognizance of the Act of Donation by JOE P. RUTHERFORD, passed before Betty Rowe, Notary Public, dated November 28, 1973, of certain property fully described in said Act, and he accepts said Donation with gratitude.
“THUS DONE AND PASSED at Conroe, Texas, on this 28th day of November, 1973, in the presence of the undersigned competent witnesses and me, Notary Public.” (Emphasis supplied)

Two discrepancies between the November 27 act of donation and this purported acceptance' are immediately apparent. First, the acceptance recites that the donation being accepted was passed before Betty Rowe, Notary Public. The subject act of donation, however, was passed before Ward Fontenot, Notary Public. Second, the acceptance recites that the donation being accepted was dated November 28, 1973. The subject act of donation was dated November 27, 1973. In addition, the acceptance fails to describe the property which was the subject of the November 27 donation. Under these circumstances, we cannot conclude that defendant has accepted the subject donation in “precise terms” as required by Article 1540.

The donation inter vivos is not based on the mere consent of the parties. Our Code requires these formalities: (1) Both the donation and the acceptance must be by authentic act. (2) The acceptance must be in “precise terms”. LSA — C.C. Articles 1536,1538 and 1540; see also 3 Planiol, Civil Law Treatise, Section 2563 (11th Ed. 1938). We are concerned in this case with the second formality — the requirement of acceptance in “precise terms”.

To determine the meaning of the phrase “accepted in precise terms”, Article 1540 can be read in pari materia with Civil Code Article 1805. Article 1805 is included in our Code under the heading “Of the Consent Necessary to Give Validity to a Contract”, and reads as follows:

“The acceptance to form a contract must be in all things conformable to the offer; any condition or limitation contained in the acceptance of that which forms a matter of the offering, gives him, who makes the offer, the right to withdraw it.” (emphasis supplied)

By using the phrase “accepted in precise terms”, we believe the redactors intended that the acceptance of a donation inter vivos, like the acceptance of an offer, conform in all respects to the content of the donation. As we previously pointed out, the purported act of acceptance in the present case does not conform in all respects to the donation. In fact, the two acts differ so substantially that we cannot assume that there is any relation at all between them. Therefore, the act of donation cannot be given effect.

We found no cases interpreting the requirement of “precise acceptance” in a fact situation even remotely similar to the one presented in the present case. In Duplessis v. Kennedy, 6 La. 231, 235 (1834), however, the court offered the following brief explanation of the requirement:

“The acceptance to bind a donor must be made in precise terms, and binding form of expression, which shows that the parties understood each other as to the thing given, * * *.

In the present case, of course, the thing given does not appear to be the thing accepted.

In other cases, the courts have recognized the severity of the requirement of acceptance in precise terms and have shown no reluctance to strictly enforce the provision. See In re Mora’s Estate, 51 La.Ann. 316, 25 So. 123 (1899); Gabert v. St. Tammany Yacht Club, 166 La. 57, 116 So. 667, 669 (1928); and Wood v. Martin, 2 So.2d 665, 668 (La.App. 2d Cir. 1941).

Article 1540 compels the donee to do more than make a good faith attempt to accept the donation. He must accept in precise terms. This is a formality, as is the requirement that the act be in authentic form. Excuses for noncompliance with formalities are irrelevant and are generally inadmissible as parol evidence. Therefore, the defects in the donee’s acceptance are not cured by the assertion that the document was intended to be an acceptance of the November 27 donation.

If we were to hold otherwise, we would be creating an exception to the express rule that the donation must be accepted in precise terms.

We realize that this is a strict and technical application of the rule of Article 1540. We feel, however, that the redactors of the Code intended that the courts strictly scrutinize donations inter vivos because they are irrevocable and tend to impoverish the donor’s family. See Packwood v. Dorsey, 6 Rob. 329 (1844).

Customarily, the formal requirement of precise acceptance is simply and efficiently accomplished by including words of acceptance in the same instrument as the act of donation. See Oppenheim, The Donation Inter Vivos, 43 Tul.L.Rev. 729, 739 (1969); 3 Planiol, Civil Law Treatise, Section 2563 (11th Ed. 1938). The widespread use of this sensible technique may explain the absence of jurisprudence interpreting the requirement of precise acceptance as it relates to the facts of this case.

At trial, defendant attempted to introduce evidence for the purpose of showing that the donor intended the November 27, 1973 donation to be remunerative rather than púrely gratuitous. The trial court excluded this evidence on the grounds that parol testimony could not be used to modify the terms of an authentic act.

Defendant argues that this parol testimony is admissible because it is necessary to clarify ambiguity surrounding the intent of the donor. The words used in the act of donation, however, are not ambigúous. In the act of donation the donor states that the gift is made “in consideration of the love and affection which he bears for his nephew.” By this language the donor clearly demonstrated that his gift was purely gratuitous. The act of donation makes no mention, either express or implied, that the donation was made as recompense for past services.

We considered a similar situation in Mobley v. Lee, 318 So.2d 631 (La.App. 3rd Cir. 1975). In Mobley, it was argued that the following phrase in an act of donation by an aunt to her niece created ambiguity as to whether the donation was intended to be onerous or purely gratuitous:

“ * * * that in consideration of the love and affection which she bears for her niece * * * and for her personal care, she does * * * donate and deliver unto her said niece the following described property * * (emphasis added)

We concluded that the clause “for her personal care”, when considered with the donation and acceptance as a whole showed that the donor’s intent was to give the property to her niece for the niece’s care and not as remuneration for care rendered by the niece to her aunt.

We conclude, therefore, that the trial judge did not err in the present case by refusing to admit parol testimony where the intent of the donor was clearly and unambiguously reflected by the language of the authentic act of donation.

An attorney employed by defendant prepared both the act of donation and the act of acceptance. Defendant also employed the notaries who completed each act. Any ambiguity resulting from the preparation or completion of these instruments must be resolved against the defendant-do-nee and in favor of the plaintiff. Housing Authority of City of Lafayette v. Fidelity & Deposit Company of Maryland, Inc., 309 So.2d 920 (La.App. 3rd Cir. 1975), writ refused, 313 So.2d 826 (La.1975).

The overwhelming majority of the evidence introduced at the trial of this case concerns the donor’s mental condition at the time he executed the donation. The issue is close, but the trial judge found the donor competent. Having determined that the donation fails for lack of a precise acceptance, we need not consider the mental capacity of the donor.

For the reasons assigned, the judgment of the trial court is affirmed. All costs of this appeal are assessed against defendant-appellant.

AFFIRMED.

GUIDRY, J., dissents and assigns written reasons.

Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.

GUIDRY, Judge

(dissenting).

I cannot agree with my brethren of the majority that the donation in question is null for not having been accepted in “precise terms” during the lifetime of the donor. The majority finds the acceptance imprecise because of two errors appearing in the notarial act of acceptance, i. e., the acceptance recites that the donation accepted was passed before Betty Rowe, Notary Public, in lieu of Ward Fontenot, Notary Public; and, the acceptance recites that the donation is dated November 28, 1973, in lieu of the correct date, November 27,1973. These inadvertent clerical errors do not, in my opinion, destroy the effectiveness of this otherwise valid authentic act of acceptance. As pointed out in the majority opinion the acceptance necessary to give validity to a contract must be without condition or limitation. LSA — R.C.C. Article 1805. With this I agree. The acceptance with which we are here concerned is precise being without limitation or condition. After referring to a donation made to him by Joe P. Rutherford the donee recites that “he accepts said Donation with gratitude.” What form of acceptance could be more precise?

The errors in the agreement of acceptance do not relate to the quality of the acceptance but solely to identification of the donation accepted. In my opinion, the inadvertent and obvious clerical errors in the authentic act of acceptance do not cast any real doubt as to the donation intended to be accepted by the donee. The acceptance refers to a donation made by Joe P. Rutherford to J. W. Rutherford, Jr. The record does not indicate that Joe P. Rutherford ever made any donation to J. W. Rutherford, Jr. other than the one in question. The authentic act of acceptance was actually attached to the donation and recorded as one document in the records of Cameron Parish. Under these circumstances can there be any real doubt as to the donation intended to be accepted by the donee in the authentic act of acceptance. That the errors complained of were inadvertent clerical errors is patent from the record itself. The Notary before whom the act of acceptance was passed erroneously included her name and the date on which the instrument was executed in the blanks provided for insertion of the name of the Notary before whom the donation was passed and the date of such donation. In any event, parol evidence was admissible to prove and correct these obvious clerical errors which the majority considers as rendering uncertain the donation intended to be accepted by the donee. Dane & Northrop v. Selzer, 63 So.2d 760 (La.App. Orleans 1953); Levy v. Ward, 33 La.Ann. 1033; Harvey v. Gulf States Land and Improvement Company, 108 La. 550, 32 So. 475 and cases therein cited. I would hold that the authentic act passed before Betty Rowe, Notary Public, on November 28, 1973, sufficiently complied with the provisions of LSA — R.C C. Article 1540.

I would next hold that recordation of the donation with the acceptance attached in the records of Cameron Parish, Louisiana, prior to the death of the donor, constituted notice of such acceptance to the donor. LSA-R.C.C. Articles 2254 and 2264. In Planiol, Vol. 3, Part 2, Section 2565, page 256, is found the following:

“In ease of an acceptance by a later instrument, the donor has to be notified and the donation is effective for him from the day he has received the notification (Art. 932). This notification is made through the clerk of the court (hussier)

Finally, I would hold that the donor was mentally competent at the time he executed the donation, finding no manifest error in this factual conclusion of the trial judge.

In summation, for the reasons briefly hereinabove set forth I would find the donation valid. I respectfully dissent.


author: DOMENGEAUX, Judge. GUIDRY, Judge

text:
    Mercedes REED and Richard K. Reed, Plaintiffs and Appellees, v. WEST BROTHERS OF EUNICE, LA., INC., et al., Defendants and Appellants.
    No. 5633.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 22, 1976.
    Rehearing Denied Nov. 4, 1976.
    Writ Refused Jan. 7, 1977.

      Dubuisson, Brinkhaus, Guglielmo & Dau-zat, by Jimmy L. Dauzat, Opelousas, for defendants-appellants.
    Donald Soileau, Mamou, for plaintiffs-ap-pellees.
    Before CULPEPPER, DOMENGEAUX, and GUIDRY, JJ.
   DOMENGEAUX, Judge.

On October 15, 1974, plaintiff, Mrs. Reed, a customer in defendant’s department store, tripped, fell and injured herself. Joined by her husband, they sued to recover damages for her injuries and medical expenses. Finding causal negligence on the part of the defendant and lack of same on the part of Mrs. Reed, the district judge awarded her general damages of $15,000.00 and medical specials to Mr. Reed in the amount of $905.75.

Defendant has appealed, suggesting that the trial judge erred in finding negligence on the part of defendant and lack thereof on the part of Mrs. Reed. Alternatively it contends that the award to Mrs. Reed is excessive. Plaintiffs answered the appeal seeking a higher award for general damages. We affirm.

The defendant owns and operates a large department store in the City of Eunice, Louisiana. There are numerous departmentalized areas within the store. One such area is the shoe department. There are main aisles throughout the establishment and in addition there exists subsidiary aisles, which are also used by the patrons. One such subsidiary aisle, running west to east, leads from the hardware department into the shoe department and continues into the fabric department. Within the shoe department is a fitting area. The aforementioned subsidiary aisle, approximately 30 inches wide, leads into the fitting area. Actually the aisle is formed by movable verticle shoe racks along its length. The shoe department, the fitting area therein, and the subsidiary aisles present a rather condensed, cluttered area with multitudinous displays of unboxed shoes, slippers, etc. on racks and tables. The west-east subsidiary aisle converges generally near the southern side of the aforementioned fitting area.

The fitting area contains two sets of three tubularly framed chrome cushioned chairs for convenience in shoe fitting. The three chairs of each set are bolted, together. One set is situated at the northern side of the fitting area and the other set is on the southern side. There are also two tubularly framed chrome cushioned fitting stools, which by custom, when not in use, are placed under each set of chairs to the extent that their configuration allows. Even when the stools are so situated, because of their height, they protrude about sixteen inches beyond the front of the chairs. When the stool is placed under the chairs on the south set of chairs it blocks substantially the continuation of the aforementioned west-east subsidiary aisle. The chairs and the stools are made of the same type and color chrome and cushion.

On the date mentioned plaintiff, Mrs. Mercedes Reed, and her mother, were patrons in defendant’s store. They shopped and browsed around from one department to another, ultimately becoming separated. Mrs. Reed had purchased one or two brooms (that point is not clear), was carrying it or them in her left hand and a large purse-bag in her right hand. She proceeded to walk down the west-east subsidiary aisle in an easterly direction, planning to ultimately meet her mother in the fabric department, which was east of the shoe fitting area, and while so proceeding tripped on the protruding footstool, her purse becoming entangled with a verticle shoe rack. Mrs. Reed fell to the floor, face down, and received rather serious and painful injuries. She did not see the footstool.

The trial judge, addressing himself to the jurisprudence which centers on the responsibility of store keepers to keep aisles open and free from obstruction, found little difficulty in holding that under the circumstances the defendant was guilty of negligence which was the proximate cause of Mrs. Reed’s trip, fall, and subsequent injuries.

Most of the shoes and other foot apparel in the store are displayed on racks and tables in the shoe department. It is clear, and defendant’s store manager so admitted, that the merchandise is displayed so that customers are attracted to them, may handle and feel them, and ultimately purchase some of the items. This operational fact leads to the obvious conclusion that a customer would pay more attention to the displayed merchandise than to the floor to discover possible obstructions in the aisle. This is particularly true when an area is condensed and crowded with displayed merchandise as was the case here.

The regular placing and maintaining of the footstool which partially blocked the bisecting west-east aisle clearly created a dangerous situation.

Under the circumstances herein it was or should have been reasonably foreseeable to defendant that the position of the footstool was such that a shopping patron could easily trip thereon, as happened to Mrs. Reed. We therefore agree with the conclusion of the trial judge in finding defendant negligent. Ferrington v. McDaniel et al, Sup.Ct., rendered June 21, 1976, 336 So.2d 796; Whittaker v. Schwegmann Brothers Giant Supermarkets, 334 So.2d 756 (La.App. 4th Cir. 1976); Landry v. Hazelwood and Santillo, Inc., et al., 330 So.2d 683 (La.App. 3rd Cir. 1976); Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La. 1976); Hay v. Sears, Roebuck & Company, 224 So.2d 496 (La.App. 3rd Cir. 1969); Provost v. Great Atlantic & Pacific Tea Company, 154 So.2d 597 (La.App. 3rd Cir. 1963).

Defendant contends that Mrs. Reed should have seen the footstool, and therefore is responsible for her own injuries. Although plaintiff may not have intended to buy any footwear, she certainly had been shopping in the store and was going through the shoe area. She had shopped in defendant’s store many times before and stated that she would often go to the store to buy one item and would end up buying several. It stands to reason that wares which are prominently displayed in a store such as West Brothers will be looked at by the patrons, even though no purchase is ultimately made or intended.

In view of the format and layout of the store and particularly in the area of the shoe department and the subsidiary aisle leading into the fitting section, coupled with the fact that Mrs. Reed’s hands “were full” we conclude that she was not negligent in failing to see the footstool.

The trial judge, in his reasons for judgment, quoted from the case of Provost v. Great Atlantic & Pacific Tea Company, supra, as follows:

“Defendant’s store in this case was a ‘self-service’ type store, in which its merchandise was displayed on counters or on shelves so that customers could inspect the merchandise as they walked in the aisles or passageways of the store. The storekeeper certainly intended that his customers would devote the major part of their attention to the merchandise which was being displayed, rather than to the floor to discover possible obstructions in the aisle, and in our opinion that circumstance must be considered in determining the degree of care which the storekeeper should use in maintaining safe passageways. A patron of a self-service type store, we think, is entitled to rely upon the presumption that the proprietor will see that the passageways provided for his use are reasonably safe, considering the fact that while using these passageways he may be devoting some of his attention toward inspecting the merchandise. See Vogts v. Schwegmann [La.App.Orl., 56 So.2d 177] supra; Reid v. Monticello, [La.App., 1 Cir., 33 So.2d 760] supra; Williams v. Liberty Stores, 148 La. 450, 87 So. 233; Chalmers v. Great Atlantic & Pacific Tea Company, 172 Md. 552, 192 A. 419; Sears Roebuck & Co. v. Scroggins, C.C.A. 8 Cir., 140 F.2d 718; Miller v. Safeway Stores, Incorporated, 219 Or. 139, 312 P.2d 577, 346 P.2d 647.”

The above statement fits the facts of this case. The trial judge observed that the testimony of Mrs. Young, the Manager of the Shoe Department, described Mrs. Reed as “looking ahead” and not “down”. In that regard he stated:

“In fact, she was attempting to say that Mrs. Reed should have looked down, in defense of the defendant’s position. However, this testimony accentuates the fact that Mrs. Reed was looking around, as the store hoped she would, at their displayed merchandise.”

In Ferrington, supra, the lady plaintiff walked some twenty feet from one counter to another in a supermarket aisle and tripped and fell on a box which protruded some 16 to 20 inches into the aisle. It is evident that if she were looking at the box she would have seen it for some distance. Our Supreme Court, in allowing recovery, reversed the district and appellate courts. Addressing itself to self-service stores where objects for sale are displayed, the Court quoted from Kavlich v. Kramer, 315 So.2d 282 (La.1975):

“. . . Numerous items displayed upon shelving along the aisles or walkways in self-service stores entice the customers to focus their eyes upon the display rather than on the surface upon which they walk. . . .”

Having concluded that plaintiffs are entitled to recover, we now consider the award made to Mrs. Reed for general damages. The award of special damages is not in dispute.

As a result of her fall she received a dislocated right shoulder, a chip fracture of the glenoid fossa (the cup into which the humerus fits) and a possible avulsion of a small portion of the bone of the upper arm. She was hospitalized and x-rayed. A reduction of the subulation dislocation was performed. She remained in the hospital for five days, during which time she was placed in a cast type strap which immobilized the shoulder and arm for about three weeks. She was treated with pain killers and received physical therapy. Mrs. Reed was under the doctor’s care until March, 1975, and wound up with some limitation of motion in the shoulder area for several months, nearly a year. She suffered extreme pain initially which gradually subsided, but at the time of trial (April, 1976) she still complained of pain in the shoulder area.

Mrs. Reed’s attending physician attested to the painful character of her injuries. He acknowledged that a shoulder dislocation with its attendant tearing and stretching of tissues causes severe pain. Plaintiff was totally disabled for approximately two months with gradual improvement thereafter consisting of greater mobility of the shoulder and arm and lessening pain. The physician stated that in joint injuries such as Mrs. Reed experienced, it is quite common for traumatic arthritis to set in, but that condition takes time to develop.

Mrs. Reed testified as to the severity of her pain initially and subsequently, and of her inability to utilize her right arm to any great extent for almost a year. At time of trial she still had some limitation of motion and constant pain (although not agonizing) which she attempts to relieve by massage and analgesics.

The district judge, in his reasons for judgment stated that he considered and gave credence to the medical testimony and also to Mrs. Reed’s testimony concerning her pain and disability. He awarded her $15,000.00. We find no abuse of discretion. He has much under the provisions of C. C. Article 1934(3) and the jurisprudence. See Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (La. 1963); Ballard v. National Indemnity Company of Omaha, Nebraska, 246 La. 963, 169 So.2d 64 (La. 1964); Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (La. 1967); Miller v. Thomas, 258 La. 285, 246 So.2d 16 (La. 1971); Walker v. Champion, 288 So.2d 44 (La. 1973); Bitoun v. Landry, 302 So.2d 278 (La. 1974).

Although the injuries sustained by the lady plaintiff in Calecas v. Great Atlantic and Pacific Tea Company, Inc,, 330 So.2d 619 (La. App. 4th Cir. 1976) are not identical to those sustained by Mrs. Reed, we find many similarities, particularly in the realm of pain and the duration thereof. In Cale-cas the Fourth Circuit affirmed an award of $14,000.00 general damages and $1,049.13 in specials.

For the above and foregoing reasons the judgment of the district court is affirmed at defendant-appellant’s costs.

AFFIRMED.

GUIDRY, Judge

(concurring).

I am unable to distinguish in any material degree the fact situation present in this case from that which prevailed in Ferrington, et ux. v. McDaniel et al., 336 So.2d 796 (La. 1976). Ferrington is, in my opinion, controlling and dictates an affirmance of the trial court’s findings that the defendant was negligent and that the plaintiff was free from contributory fault. For these reasons I respectfully concur.

      . By stipulation in a pre-trial order the proper party defendant is West Brothers of Eunice, Louisiana, Inc.


text:
    Charles A. CASTILLE, Jr., Plaintiff, v. Blair FOLCK d/b/a Quarter Racing Congress Co., Defendant-Third-Party Plaintiff-Appellee, v. C. Wade NAVARRE, Third-Party Defendant-Appellant.
    No. 5634.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 22, 1976.
    Rehearing Denied Nov. 4, 1976.

      Ware & Bertrand by Ronald J. Bertrand, Rayne, for third-party defendant-appellant.
    Marshall J. Stockstill, Jumonville, Hart-ley, Plauche & Broadhurst by Oscar E. Reed, Jr., Lafayette, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   GUIDRY, Judge.

Plaintiff, Charles A. Castille, Jr., filed suit seeking rescission of a contract of sale of a broodmare named “Flying Cobre” purchased by him at an auction sale conducted by Blair Folck d/b/a Quarter Racing Congress Company (hereinafter referred to as Folck) in the City of Lafayette, Louisiana, on August 18, 1973. Castille alleged his entitlement to a rescission of the sale and a return of the price paid because of error of fact as to a principal motive brought about by certain misrepresentations made by defendant and/or his employees prior to and at the time of sale. In the alternative, plaintiff asked that the sale be rescinded for redhibition. Plaintiff in addition to seeking a rescission of sale and restoration of the purchase price, i. e., $4000.00, alleged his entitlement to certain itemized damages.

Defendant, Folck, filed answer admitting that he conducted a broodmare sale as alleged and that plaintiff tendered payment to him in the amount of $4000.00 in connection with his purchase of “Flying Cobre”. Defendant further alleged, however, that in conducting said sale he did so only as agent for the owners of the horses consigned to said sale and that the owner/consignor of “Flying Cobre”, i. e., C. Wade Navarre, was the proper party against whom redress should be sought. Together with the filing of his answer Folck deposited the sum of $4000.00 in the registry of court to be disbursed pursuant to a final decision rendered in this proceeding. Finally, in his answer, Folck assumed the role of third party plaintiff and sought judgment over against the consignor of “Flying Cobre”, Mr. C. Wade Navarre, for all damages which might be incurred by third party plaintiff as a result of the principal demand of plaintiff. C. Wade Navarre filed answer generally denying the allegations of the third party petition. Plaintiff, Charles A. Castille, Jr., did not join C. Wade Navarre as a principal defendant.

The trial court determined that a principal-agent relationship existed between Folck and Navarre; that Folck, who conducted the sale of “Flying Cobre”, as agent of Navarre, knowingly misrepresented prior to and at the time of sale that the named broodmare had been “Coggins Tested” and that a Coggins certificate would be furnished to the purchaser; that in fact the said mare had not been so tested and plaintiff has never been furnished with a Cog-gins certificate; that such misrepresentation concerned a principal cause of the agreement; and, that plaintiff’s consent to the contract of sale was vitiated by error of fact. R.C.C. Articles 1819, 1820, and 1846. Having so found the trial court ordered the sale rescinded and the purchase price deposited in the registry of court returned to plaintiff. The trial judge further determined that plaintiff was entitled to damages and fixed the amount thereof at the sum of $3726.00. Finally, the trial court granted judgment over in favor of third party plaintiff and against the third party defendant, C. Wade Navarre, assigning as his reasons therefor the following:

“Considering the third party demand by Mr. Folck against Mr. Navarre, I feel that the latter is liable.
As above stated, a principal-agent relationship existed between Mr. Navarre and Mr. Folck, or his company. Under such a working relationship, the law states that the principal, in this case Mr. Navarre, will be responsible for all actions of the agent which were approved by the principal. LSA-C.C. Art. 3021. Such was certainly the case here. Mr. Navarre continuously represented to Mr. Folck that the horse had been Coggins tested and he continued to represent this even after the sale was completed. By his own testimony, he was present at the auction and heard the auctioneer repeatedly state that all of the horses had been Coggins tested. He, no doubt, approved of this representation for he made no outward attempt to halt it, nor any attempt to inform anyone of any misrepresentation. Even if there had been no previous misrepresentation by Mr. Navarre and he was never requested to have the horse Coggins tested, his acquiescence in the representations made by the auctioneer was an adoption or a ratification of the agent’s action. LSA-C.C. Art. 3010; Ledoux vs. Old Republic Life Insurance Company, 233 So.2d 731 ([La. App.] 1970), writs refused; Gill Truck & Trail. Rent., Inc. vs. Hunter Truck L., Inc., 283 So.2d 509 ([La.App.] 1973).”

Following rendition of judgment C. Wade Navarre, third party defendant, perfected this suspensive appeal from the judgment against him. Plaintiff and defendant did not appeal. Third party plaintiff did not answer the appeal of third party defendant.

At the outset we observe that, since neither plaintiff nor defendant has appealed, the judgment of the trial court rescinding the sale, ordering a return of the purchase price to plaintiff and casting defendant Folck in damages is now final. The only issue for determination by this court is the correctness of that portion of the trial court judgment which awards third party plaintiff, Folck, judgment over against third party defendant, Navarre. Although, as aforestated, the trial court judgment as between Castille and Folck is final we find it necessary to inquire into the correctness of that judgment as such bears upon the correctness of the award against third party defendant from which the latter has appealed suspensively.

Although our review of the record convinces us as to the correctness of the trial court’s factual findings that:

(1) A principal-agent relationship existed between Folck and Navarre whereby the former was authorized to sell the broodmare “Flying Cobre” for account of the latter.
(2) Prior to and up until the time of sale Navarre assured Folck that the broodmare “Flying Cobre” had been Coggins tested and that a Coggins certificate would be furnished to the purchaser.
(3) Prior to and at the time of sale Folck was well aware that a Coggins certificate had not been furnished for delivery to the purchaser of this broodmare, although admittedly it was Folck’s obligation to have all necessary documents, including a Cog-gins certificate, in hand before commencement of the sale.
(4) In spite of the knowledge possessed as set forth above (item 3) Folck and his employees, including the auctioneers, repeatedly misrepresented to the proposed buyers, including Castille, that all horses had been Coggins tested and that a Cog-gins certificate would be furnished upon completion of the sale.
(5) The broodmare “Flying Cobre” was not Coggins tested prior to the sale of August 18, 1973 and the buyer, Charles Castille, Jr., has never been furnished with a Coggins certificate.
(6) The misrepresentation as to the availability of a Coggins certificate on the broodmare “Flying Cobre” induced plaintiff, Castille, to consent to the contract of sale under an error of fact which bore upon a principal cause of the agreement.
(7) Plaintiff, Castille, suffered damages as a result of the misrepresentations of Folck and Navarre.

we conclude that the trial court erroneously ordered a rescission of the contract of sale. We know of no authority, and we have not been referred to any, which would authorize a suit for rescission of sale being brought against the agent of the seller. A suit for rescission of sale, be it for error of fact or redhibition, must be brought against the seller. As set forth in 3 C.J.S. Agency § 476, p. 358:

“An undisclosed principal is not a necessary party defendant to a suit by the purchaser against the agent to rescind a contract of sale of personal property

It must be remembered that in the instant case the purchaser, Castille, was at all times aware that the broodmare “Flying Cobre” was owned by C. Wade Navarre and that Folck was acting only as agent for Navarre.

Although the facts alleged in plaintiff’s petition and the evidence adduced in support thereof do, in our opinion, warrant a rescission of sale for error of fact under R.C.C. Article 1846 and a demand for damages under R.C.C. Article 1934, such relief under the circumstances of this case, could not be granted in a suit brought against anyone other than the vendor. In the instant case Blair Folck was not the owner nor the vendor of the broodmare “Flying Cobre”, rather he was merely acting as agent of the seller. The record clearly reflects that C. Wade Navarre was the owner of “Flying Cobre” and the purchaser was aware of that fact. Any suit seeking a rescission of the sale of August 18, 1973, should have been instituted and prosecuted against Navarre. Since we determine that the trial court erroneously ordered a rescission of the sale it must necessarily follow that the damage award for breach of contract under R.C.C. Article 1934 is likewise erroneous.

Although we conclude that plaintiff, in effect, has no cause of action against Folck for breach of contract and damages or rescission for redhibition, and that for the same reason, the latter has no cause of action over against Navarre for the damages awarded to plaintiff for breach of contract, we determine that the allegations of plaintiff’s petition, the allegations of third party plaintiff’s petition, and the evidence adduced thereunder, support a cause of action ex delicto based upon damages sustained as a result of false representations made by Folck and Navarre.

LSA-C.C.P. Article 2164 allows an appellate court to disregard the so called, “theory of the case” doctrine and permits a judgment which is just, legal, and proper upon the record on appeal. Jackson v. Zito, 314 So.2d 401 (La.App. 1st Cir. 1975, writ refused as the judgment was not final La., 320 So.2d 551, 553); Dean v. Hercules, Incorporated, 314 So.2d 430 (La.App. 1st Cir. 1975, writ granted La., 318 So.2d 55, reversed on other grounds La., 328 So.2d 69).

Plaintiff alleges in his petition that because of Folck’s fraud and misrepresentations he was damaged. Folck, as third party plaintiff, alleges that Navarre agreed to make true representations respecting each animal consigned by him to the sale of August 18,1973 and that failing to do so he is liable for all damages incurred by third party plaintiff. Under the facts found by the trial court which we have previously summarized and in which we concur there is no question but that plaintiff suffered damages as a direct result of the false representations made by Folck and Navarre. Folck must be held to compensate plaintiff for the damage caused by his deliberate misrepresentations. R.C.C. Article 2315; Ingram v. Canal Bank & Trust Co. et al., 13 La.App. 651, 127 So. 462 (La.App.—Orleans 1930).

We recognize that generally speaking an agent is not responsible to third persons where his principal is disclosed, however, the agent may make himself personally liable if he expressly or impliedly pledges his own responsibility. In this connection the trial judge found that although a principal-agent relationship existed between Navarre and Folck, that the latter was personally liable. In reaching this conclusion the trial judge stated:

“In addition, there is personal liability for these reasons.
It is important to note at this time that a principal-agent relationship admittedly existed between Mr. Navarre and Mr. Folck, the latter acting as agent, but not the traditional principal-agent relationship. Under the usual circumstances, the principal declares to the agent what duties he has and what representation to make. In the present situation, the agent is the party who “makes the rules of the game”. It is the agent who, in effect, says to the principal, “I will sell your horses for you if you meet the standard and representations I make to prospective purchasers.” There can be little doubt that under these circumstances, Mr. Folck obligated himself to make sure all horses met the requirements as advertised. I think that in the mind of a prospective purchaser, Mr. Folck and his company had assumed this responsibility.”

We believe this conclusion by the trial court to be eminently correct.

Third party plaintiff seeks full indemnity from third party defendant for all damages incurred as a result of the principal demand made by plaintiff.

It is generally held that a principal is under a duty to reimburse his agent for payment of damages which the agent is required to make to third persons on account of the authorized performance of an act which constitutes a tort or breach of contract. 3 C.J.S. Agency § 320; Flower v. Jones, 7 Mart. (N.S.) 140. As set forth in 3 C.J.S. Agency § 320, p. 119:

“The general rule is that, where one is employed or directed by another to do an act in his behalf, not manifestly wrong, the law implies a promise of indemnity by the principal for damages resulting from or expenditures incurred as a proximate consequence of the good faith execution of the agency . . . .”

See also Hansman v. Uddo & Taormina Company, 76 So.2d 753 (La.App.—Orleans 1955).

The trial court found, and we believe correctly so, that although Mr. Folck did misrepresent to prospective purchasers before and at the time of sale that the broodmare “Flying Cobre” had been Cog-gins tested, he did so based upon assurances to that effect from his principal. As stated by the trial judge in his written reasons for judgment:

“Mr. Navarre continuously represented to Mr. Folck that the horse had been Cog-gins tested and he continued to represent this even after the sale was completed. By his own testimony, he was present at the auction and heard the auctioneer repeatedly state that all of the horses had been Coggins tested. He, no doubt, approved of this representation for he made no outward attempt to halt it, nor any attempt to inform anyone of any misrepresentation. . . . ”

Under the circumstances of this case we conclude that third party defendant, Navarre, is obligated to reimburse his agent, Folck, for the amount of damages finally determined to have been incurred by plaintiff.

Third party defendant finally argues that the award of damages by the trial court is excessive. We believe this contention to be without merit.

The trial judge found that plaintiff was entitled to recover the following amounts as damages: $20.00 transportation cost; $18.00 for Veterinarian expense; and $6.00 per day board expense of “Flying Cobre” for 621 days or $3,726.00. The evidence offered by plaintiff in support of these items of damages is uncontradicted.

It is well settled that appellate review of an award of damages is restricted to a determination of whether the broad discretion, in such matters, allowed the trier of fact has been abused. Spillers v. Montgomery Ward & Co., Inc., 294 So.2d 803 (La.1974); Revon v. American Guarantee & Liability Insurance Company, 296 So.2d 257 (La.1974). In this case we find no abuse of the broad discretion allowed the trier of fact.

For the reasons assigned the judgment of the trial court is affirmed. All costs of this appeal are assessed to appellant.

JUDGMENT AFFIRMED.

      . The “Coggins Test” is a laboratory test which determines whether a horse suffers from the disease known as “Equine Infectious Anemia”, commonly referred to as “Swamp Fever”. A “Coggins Certificate” is simply the document furnished by the laboratory confirming that the Coggins test showed a negative result.


author: DOMENGEAUX, Judge.

text:
    Leontine GUILLOT, Plaintiff-Appellee, v. The TRAVELERS INDEMNITY COMPANY, Defendant-Appellant.
    No. 5640.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 22, 1976.
    Rehearing Denied Nov. 4, 1976.
    Writ Refused Jan. 10, 1977.

      Gold, Hall, Hammill & Little, by Edward E. Rundell, Alexandria, for defendant-appellant.
    Riddle & Bennett, by John T. Bennett, Marksville, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   DOMENGEAUX, Judge.

Defendant, The Travelers Indemnity Company, appeals from a judgment awarding $12,500.00 to plaintiff, Leontine Guillot, for personal injuries sustained by the latter. Plaintiff has answered the appeal seeking an increase in the award. We affirm the judgment of the district court.

On May 5,1975, plaintiff was a passenger in an automobile owned and driven by her husband, Irvin Joseph Guillot, in the town of Marksville, Avoyelles Parish, Louisiana.

The Guillot vehicle was involved in an accident with another automobile, the causation of which was determined to be the sole negligence of Mr. Guillot. Plaintiff sought to recover from her husband’s insurer, defendant, under the liability and uninsured motorist provisions of the policy issued to the former.

Defendant-insurer did not contest the issue of Mr. Guillot’s liability for the injuries sustained by his wife as a result of the accident. Travelers paid $10,000.00 (policy limits) under the liability portions of the insurance contract but contended that Mrs. Guillot’s injuries were not covered under the uninsured motorist provisions due to certain exclusionary clauses contained in the policy. The trial judge disagreed with the defendant’s position and awarded Mrs. Guillot $10,000.00 under the liability provisions of the policy and an additional $2,500.00 under the uninsured motorist provisions of said policy.

Defendant’s appeal is directed toward the following specifications of error: (1) The trial court erred in allowing the tort victim to recover uninsured motorist benefits from insurer where the victim was not legally entitled to recover from the uninsured motorist, her husband; (2) The trial court erred in holding that a tort victim who was a passenger in a tortfeasor’s vehicle could recover from the tortfeasor’s insurer under both liability and uninsured motorist provisions of said vehicle, despite the terms and conditions of insurer’s policy.

“LEGALLY ENTITLED TO RECOVER”

The statute applicable to the instant case is LSA-R.S. 22:1406. LSA-R.S. 22:1406(D) (1) provides:

“No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability' provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, includ ing death, resulting therefrom . . . (Emphasis added).

Defendant contends that plaintiff is not “legally entitled to recover” damages from her husband’s insurer due to the doctrine of interspousal immunity embodied in LSA-R.S. 9:291. This issue was previously considered by this court in the case of Gremillion v. State Farm Mutual Automobile Insurance Company, 302 So.2d 712 (La. App. 3rd Cir. 1974), writ refused, 305 So.2d 134. In Gremillion we held that the defense of interspousal immunity is personal to the husband or wife and cannot be raised by an insurer in a direct action against same.

In Gremillion we quoted extensively from Booth v. Fireman’s Fund Insurance Company, 253 La. 521, 218 So.2d 580 (1968) as follows:

. the insurer does not stand in the shoes of the uninsured motorist who is the tort feasor.
We interpret the words ‘legally entitled to recover’ to mean simply that the plaintiff must be able to establish fault on the part of the uninsured motorist which gives rise to damages and prove the extent of those damages.”

See also Deshotels v. Travelers Indemnity Company, 257 La. 567, 243 So.2d 259 (La. 1971).

Defendant urges this court to reconsider our decision in Gremillion and reverse the holding therein. We are of the opinion that the Gremillion case was correctly decided and are inclined to adhere to its holding. Accordingly we find that the trial judge correctly ruled that plaintiff was “legally entitled to recover” under the provisions of LSA-R.S. 22:1406(D)(l)(a).

APPLICABILITY OF THE UNINSURED MOTORIST COVERAGE

Defendant maintains that due to certain exclusionary clauses contained in the policy issued to plaintiff’s husband, the uninsured motorist provisions of said policy are inapplicable to the situation presented by the instant litigation. We disagree.

Part III, Coverage D (Uninsured Motorists) of the Travelers policy issued to Mr. Guillot contains the following definition:

“ . . . The term ‘uninsured highway vehicle’ shall not include: (1) an insured automobile or an automobile furnished or available for the regular use of the named insured or a relative . .

The following exclusion is found in the same portion of the policy:

“This policy does not apply under Part III:
(a) To bodily injury to an insured while occupying a highway vehicle (other than an insured automobile) owned by the named insured or a relative, or through being struck by such a vehicle;”

However, LSA-R.S. 22:1406(D)(2)(b) provides:

“For the purposes of this coverage the term uninsured motor vehicle shall, subject to the terms and conditions of such coverage, also be deemed to include an insured motor vehicle when the automobile liability insurance coverage on such vehicle is less than the amount of damages suffered by an insured and/or the passengers in the insured’s vehicle at the time of an accident, as agreed to by the parties and their insurers or as determined by final adjudication.” (Emphasis added)

Under the terms of the policy in question the term “insured” is defined as “the named insured and any relative”.

The policy further provides:

“The insurance afforded under Part III applies separately to each insured, but the inclusion herein of more than one insured shall not operate to increase the limits of the company’s liability.” (Emphasis added).

As a practical matter, the definition of “uninsured highway vehicle” in the policy as well as the above cited exclusion operate to produce the same effect, namely, they attempt to limit the class of tortfeasors against whom the policyholder is protected. This court was presented with a similar problem in the case of Elledge v. Warren, 263 So.2d 912 (La.App. 3rd Cir. 1972), writ refused 266 So.2d 223. In reference to the exclusionary clause contained in the policy in that case, which was almost identical to the one presented herein, we made the following statement:

“ . . . . the provision is improper in that coverage of an insured, who has paid for the coverage, is restricted on no better premise than the ‘business interest’ his insurer has in securing a policy from his relative — a matter over which the insured may have no control.
The exclusionary provision is contrary to the statute and is void. . . .”

The intent and purpose of LSA-R.S. 22:1406 were well defined in Booth, supra:

“We conclude that the intent of our uninsured motorist statute and the policy endorsement issued thereunder is to afford protection to the insured when they become the innocent victims of the negligence of uninsured motorists.” (Emphasis added).

In reference to the above cited language our brothers of the First Circuit have stated, in Thomas v. Nelson, 295 So.2d 847 (La.App. 1st Cir. 1974) that:

“ . . .we may reasonably infer from the foregoing language that the court will interpret the statute to provide uninsured motorist protection when the automobile liability policy issues and affords protection to the uninsured [sic] when they become innocent victims of the negligence of uninsured motorists, regardless of where they may be and whether or not the vehicle in which they are riding as [sic] listed as an insured vehicle under the policy. Accordingly, we find that the exclusion relied on here by Travelers is in derogation of the statute and is void, because to give effect to such a clause would be to eliminate the coverage which the statutes require each automobile liability policy to provide. Deane v. McGee, 261 La. 686, 260 So.2d 669 (1972); Graham v. American Casualty Company of Reading, Pennsylvania, 261 La. 85, 259 So.2d 22 (1972); Crenwelge v. State Farm Mutual Automobile Insurance Company, 277 So.2d 155 (La.App. 3rd Cir. 1973).”

This court has recently stated, in Wilkinson v. Fireman’s Fund Insurance Company, 298 So.2d 915 (La.App. 3rd Cir. 1974), writ dismissed, 309 So.2d 657, that:

“In our opinion Graham and Deane stand for the proposition that any clause in derogation of the mandatory requirements set forth in LSA-R.S. 22:1406 (Uninsured Motorist Statute) is invalid insofar as it conflicts therewith.”

We are of the opinion that the exclusionary clauses contained in the policy issued to Mr. Guillot are in derogation of the provisions of LSA-R.S. 22:1406(D)(l)(a) and (2)(b) and must accordingly be declared invalid and inoperative. Thus we find that the trial judge correctly ruled that plaintiff, Mrs. Guillot, be allowed recovery under both the liability and uninsured motorist provisions of her husband’s policy.

QUANTUM

Plaintiff has answered the appeal seeking an increase in the amount of damages awarded by the trial court.

Plaintiff’s major complaint of injury was related to damages sustained to her right knee. X-ray examinations by orthopedists revealed a finding of chondromalacia and the existence of Pellegrini-Stieda syndrome. The two orthopedic surgeons who examined plaintiff, Doctor C. W. Lowrey of Alexandria, Louisiana, and Doctor William E. Smith, of Baton Rouge, Louisiana, were of the opinion that the Pellegrini-Stieda syndrome pre-existed the accident. Both orthopedists felt that the chondromalacia in plaintiff’s right knee also pre-existed the accident due to plaintiff’s obesity (230 to 250 lbs.) and genu valgus condition (knock-kneed). However, the orthopedists did find that the chondromalacia had been aggravated to some degree by the accident. Doctors Lowrey and Smith placed plaintiff’s accident related disability (knee) at 5 to 10 percent and 25 percent, respectively.

Plaintiff also complains of an injury to her back which was confirmed to some degree by Doctor Lowrey. However, plaintiff was examined by several general practitioners as well as the two abovementioned orthopedists and made no mention of back pain to anyone but Doctor Lowrey. The latter’s x-ray examination revealed a lip-ping or spurring at the L-4-5 interspace which he diagnosed as a lumbo-sacral sprain with sciatica and no disc protrusion. Doctor Lowrey was of the opinion that the spurring could have pre-existed the accident and was probably related to plaintiff’s obesity but also felt that the back condition was probably aggravated to some degree by the collision.

Plaintiff is a middle-aged, unemployed, relatively uneducated individual. She made no showing of any lost income as a result of the accident, and her claim is limited to pain, suffering, and disability and medical expenses. Under the facts presented herein, we find that the trial judge’s award of $12,500.00 to plaintiff represents no abuse of the broad discretion afforded the trier of fact in such matters, and we hereby affirm same. See C.C. 1934(3); Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (La.1963); Ballard v. National Indemnity Company of Omaha, Nebraska, 246 La. 963, 169 So.2d 64 (La.1964); Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (La.1967); Miller v. Thomas, 258 La. 285, 246 So.2d 16 (La.1971); Walker v. Champion, 288 So.2d 44 (La.1973); Bitoun v. Landry, 302 So.2d 278 (La.1974).

For the above and foregoing reasons the judgment of the district court is affirmed. Costs of this appeal are assessed against defendant-appellant, The Travelers Indemnity Company.

AFFIRMED.

      . On the date of the accident Mr. Guillot had in effect a policy with the defendant providing coverage of $10,000/$20,000 for liability and like amounts for uninsured motorist protection.


text:
    Charlie JONES, Plaintiff-Appellee, v. LOUISIANA DEPARTMENT OF HIGHWAYS, Defendant-Appellant.
    No. 5644.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 22, 1976.
    Rehearing Denied Nov. 4, 1976.
    See also La.App., 338 So.2d 343.

      William J. Doran, Jr., Baton Rouge, Gist, Methvin & Trimble by DeWitt T. Methvin, Jr., Alexandria, for defendants and appellants.
    Russell E. Gahagan, Natchitoches, for plaintiff and appellee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   DOMENGEAUX, Judge.

Defendant, Department of Highways, appeals from a judgment awarding $27,826.53 to plaintiff, Charlie Jones, for personal injuries. Jones answered the appeal seeking an increase in the award. We affirm the judgment of the District Court.

This case was consolidated for trial and appeal with Jones v. Louisiana Department of Highways, 338 So.2d 343 (# 5643, La. App. 3rd Cir. 1976) in which a separate opinion is being rendered this date. Also consolidated for trial and appeal with this action was the case of Jones v. Louisiana Department of Highways, 338 So.2d 344 (# 5645, La.App. 3rd Cir. 1976) in which a separate opinion is also being rendered this date. In Nos. 5643 and 5645 the Louisiana

Department of Highways instituted third party actions against State Farm. Prior to trial, the minors’ claims in # 5643 and # 5645 against State Farm were settled, and the Highway Department dismissed its third party demands against the insurer subject to a reservation of rights to a proportionate credit should Jones be found con-tributorily negligent.

On the afternoon of March 23, 1975, at approximately 4:30 P.M. plaintiff was driving his 1961 Ford Automobile south on Louisiana Highway 9 near Campti, in Natchi-toches Parish. Riding in the front seat with him were his two grandsons, Timothy Evans and Royce Evans, 9 and 11 years of age, respectively. Situated in the rear seat of the vehicle was plaintiff’s 11 year old son, Charlie Glenn Jones. Louisiana Highway 9, at that point, is a paved two-laned highway. Plaintiff executed a simple passing maneuver, at a speed of approximately 40 miles per hour, and, upon returning to his lane of travel, struck a large hole in the road, causing him to lose control of his vehicle and leave the roadway. The automobile rolled over into a ditch, and all passengers were injured. There was a rainstorm in progress at the time.

Plaintiff instituted these actions in several capacities, maintaining, in # 5644, that the sole cause of the accident was the negligence of the Louisiana Department of Highways and alleging in Nos. 5643 and 5645 that causation was due to the joint negligence of himself and the Highway Department.

Numerous witnesses testified that the section of Louisiana Highway 9 upon which plaintiff had his accident was generally in a deplorable condition. In fact, the following testimony was elicited from Troy Vascocu, an employee of the Louisiana Department of Highways and the department’s parish maintenance superintendent for Natchi-toches Parish:

“Q. Did you hear any of the members of your maintenance crew tell him, the lawyer representing the Department of Highways, at that meeting, that that road had been in a terrible condition for months?
Yes, sir. <¡
You heard some of your own men tell him that, didn’t you? Q*
(NO ANSWER) <1
Why do you reckon they told him that? &
A. Its obviously the condition of the road.
But they told him that because it was the truth? <©
That’s right. £>
Did they tell you that prior to March 23, 1975? <©
I knew it. p>
You knew it, they didn’t have to tell you? «©
A. They didn’t have to tell me, I knew the condition of it.”

Descriptions of the hole which plaintiff s vehicle struck on Highway 9 indicate that the crevice was from 8 to 14 inches deep and 12 to 24 inches in circumference. It is interesting to note that numerous witnesses testified that they had struck the same hole on occasions prior to the date of plaintiff’s accident. J. C. Windham, a resident of Crestón, Louisiana, stated that he had knowledge of the hole and that it had been there for some time prior to March 23,1975. Coley Scallions, also a resident of Crestón, testified that he had struck the same hole prior to plaintiff’s accident and had knocked the front end of his vehicle out of line. Vivian Miley, of Campti, Louisiana, testified that her automobile struck the same hole approximately two to three days before plaintiff’s accident, the impact breaking the shocks on her automobile. G. W. Lloyd, a resident of Chestnut, Louisiana, ran into the same hole approximately two weeks prior to Mr. Jones’ accident, and lost control of his vehicle. That incident also occurred during a rainstorm, and the witness testified that because of the water in the hole he was unable to see it. Finally, Buster Hawkins, owner of a wrecker service in Campti, Louisiana, testified that when he reached the scene of plaintiff’s accident to recover the latter’s automobile he struck the same hole in his wrecker and temporarily lost control of that vehicle.

THE HIGHWAY DEPARTMENT’S NEGLIGENCE

The Louisiana Department of Highways owes a duty to the public to maintain the state’s highways in a reasonably safe condition for the travelling public at all times. This duty encompasses an obligation to provide and enforce an efficient and continuous system of inspection of all state highways and bridges. McCullin v. State, Department of Highways, 216 So.2d 832 (La.App. 2nd Cir. 1968).

It is the duty of the Highway Department to repair and make safe any defect in the road of which it has or should have knowledge. Hale v. Aetna Casualty & Surety Company, 273 So.2d 860 (La.App. 2nd Cir. 1973), writ refused, 275 So.2d 867 (La.1973).

The test for determining what is a dangerous defect in a public way generally requires an answer to the question: Was the public way maintained in a reasonably safe condition for persons exercising ordinary care and prudence? Pickens v. St. Tammany Parish Police Jury, 323 So.2d 430 (La.1975); Wilkinson v. American Insurance Company of Newark, New Jersey, 311 So.2d 584 (La.App. 3rd Cir. 1975).

However, before the Highway Department will be found negligent it must be shown that the Department had either actual or constructive notice of the dangerous condition and failed within a reasonable time to correct it. Wilkinson v. American Insurance Company of Newark, New Jersey, supra; Laborde v. Louisiana Department of Highways, 300 So.2d 579 (La.App. 3rd Cir. 1974), writ refused, 303 So.2d 182 (La.1974).

The evidence concerning the extremely poor condition of Louisiana Highway 9 in the area of plaintiff’s accident is overwhelming. There is uncontradicted testimony that the hole in question was in existence at least two weeks prior to March 23, 1975. Furthermore, the Highway Department’s resident maintenance superintendent admitted that he and his employees were aware of the conditions of the road and its dire need of repair. Whether the Department had actual notice of the particular hole which plaintiff’s vehicle struck is of little consequence. The Department is required to maintain an efficient system of inspection and repair, and the fact that such a serious defect existed on an already poor roadway is sufficient proof that the Department breached its duty to the motoring public. We are compelled to agree with the trial judge’s conclusion that the Louisiana Department of Highways was negligent in its failure to discover and/or remedy the defect which caused plaintiff’s accident.

PLAINTIFF’S CONTRIBUTORY NEGLIGENCE

The Department contends that Charlie Jones was contributorily negligent in failing to see the hole and avoid striking same. Plaintiff testified that he was travelling at a speed of approximately 40 miles per hour, in a rainstorm, when the accident occurred. The investigating officer’s report corroborated that testimony. Plaintiff also testified that he was basically unfamiliar with that section of Highway 9, although he lived only a few miles from the point of his accident.

On the day of the accident plaintiff was returning to his home from a fishing camp which he and his wife had planned to rent for the summer. Mr. Jones testified that he had only been to the camp on two prior occasions, once in late 1974, to look at a pistol which the tenant, Charles Sexton, had for sale, and the second visit being approximately one week prior to his accident, when Mr. Jones and his wife inspected the camp in the process of entering into a rental agreement therefor. Additionally, plaintiff worked twelve hours a day, seven days a week, as the operator of a service station located some miles distant from the point of his accident. He testified that due to the time-consuming nature of his job, he seldom ventured beyond the area of his work or residence.

The evidence indicates that there were numerous holes on Highway 9 but apparently the one which plaintiff’s vehicle struck was the most severe. There was uncontradicted testimony to the effect that during a rainstorm these holes filled with water, rendering it virtually impossible for a motorist to determine their depth and breadth. Plaintiff was unfamiliar with this particular highway, and there is every indication that he proceeded with reasonable care upon it on the date of his accident. After a careful review of the record we find a sufficient basis therein to support the trial judge’s conclusion that plaintiff, Charlie Jones, was free of contributory negligence.

JUDICIAL CONFESSION

In suit # 5643, paragraph 7 of plaintiff’s petition reads as follows:

“The accident was caused by the joint negligence of Louisiana Department of Highways in failing to maintain the public highway in a safe condition, and of Charlie Jones in not maintaining a proper look out and keeping his automobile under proper control.”

An identical allegation is found in paragraph 7 of plaintiff’s petition in suit # 5645. The Highway Department contends that said allegations amount to judicial confessions by Charlie Jones to the effect that he was guilty of some negligence in causing the injuries to himself and the minors. The Department maintains the position that the admissions should act to bar Mr. Jones’ recovery and force his liability insurer into a contribution posture.

We reject this argument. LSA-C.C. Art. 2291 dealing with judicial confessions provides as follows:

“Art. 2291. The judicial confession is the declaration which the party, or his special attorney in fact, makes in a judicial proceeding.
It amounts to full proof against him who has made it.
It can not be divided against him.
It can not be revoked, unless it be proved to have been made through an error in fact.
It can not be revoked on a pretense of an error in law.” (Emphasis added).

By its very terms, LSA-C.C. 2291 applies only to admissions made by parties. In suit # 5643 Mr. Jones sued as provisional tutor of his grandsons, and in # 5645 he assumed the position of administrator of the estate of his minor child. As such Mr. Jones appeared only in a representative capacity for the real parties in interest, and any admissions or statements made by him in those proceedings cannot operate to affect his personal rights, since he was not a true party in either of those lawsuits. See Alleman v. Sentry Insurance Company, 257 So.2d 799 (La.App. 3rd Cir. 1972), writ refused, 261 La. 466, 259 So.2d 915.

HIGHWAY DEPARTMENT’S CLAIM TO PROPORTIONATE CREDIT

The Highway Department argues in the alternative that should plaintiff, Mr. Jones, be deemed guilty of contributory negligence, the award granted to the minors against the former should be reduced by one-half since plaintiffs (minors) released an alleged co-tortfeasor’s (Jones’) insurer. There has been no finding of contributory negligence on the part of Mr. Jones, and thus the Department’s argument is without merit. See Harvey v. Travelers Insurance Company, 163 So.2d 915 (La.App. 3rd Cir. 1964); Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967).

QUANTUM

In the accident plaintiff lost most of his teeth and suffered numerous fractured ribs as well as a compression fracture of the twelfth dorsal vertebra. He testified that he was unable to return to work as of the time of trial of this matter, however, several physicians opined that his disability was attributed to the residuals of the accident as well as a pre-existing emphysema condition. The record is absolutely devoid of proof that plaintiff is permanently disabled. Thus the trial judge awarded plaintiff $6,000.00 for lost wages and $5,200.00 for lost future wages. Considering the weakness of the record concerning permanent disability we cannot say that the trial judge erred in this portion of his award.

Plaintiff was awarded substantially all of the other special damages which he claimed, and recovered $12,000.00 for pain and suffering. Considering plaintiff’s injuries we find that award neither inadequate nor excessive.

For the above and foregoing reasons the judgment of the District Court is affirmed in all respects. Costs of this appeal, insofar as allowed by law, are assessed against defendant-appellant, Louisiana Department of Highways.

AFFIRMED.

      . State Farm Mutual Automobile Insurance Company was the liability insurer of Charlie Jones.


text:
    Charlie JONES, Provisional Tutor of the Minors, Royce Ray Evans and John Timothy Evans, Plaintiff and Appellee, v. LOUISIANA DEPARTMENT OF HIGHWAYS, and State Farm Mutual Automobile Insurance Company, Defendants and Appellants.
    No. 5643.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 22, 1976.
    Rehearing Denied Nov. 4, 1976.
    Writ Refused Jan. 12, 1977.
    William J. Doran, Jr., Baton Rouge, Gist, Methvin & Trimble by DeWitt T. Methvin, Jr., Alexandria, for defendants and appellants.
    Russell E. Gahagan, Natchitoches, for plaintiff and appellee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   DOMENGEAUX, Judge.

This is a companion case to the matter entitled Jones v. Louisiana Department of Highways, # 5644 of the docket of this court, 338 So.2d 338. For the reasons assigned therein, we affirm the judgment in the instant case insofar as it holds the Highway Department solely liable for the damages sustained by the minors. The trial court awarded plaintiff (tutor) the sum of $282.00 for damages sustained by the minor, Royce Ray Evans, and $4,668.40 for injuries received by the minor, John Timothy Evans. The award, to the latter consisted of $4,000.00 for general damages and $668.40 for special damages. On appeal, the Highway Department did not argue the issue of quantum concerning these minors, and we find the general range of awards granted herein neither excessive nor inadequate. However, the trial judge erroneously awarded the sum of $4,000.00 as general damages for the injuries suffered by John Timothy Evans, when in fact the amount prayed for was only $3,500.00. Since a litigant may not recover an amount greater than that for which he prays, the award in favor of John Timothy Evans must be reduced to the limits of the pleadings. See Friedman Iron and Supply Company v. Beaird Company, Inc., 222 La. 627, 63 So.2d 144 (1953); Alumaglass Corporation v. Administratrix of Succession of Kendrick, 303 So.2d 911 (La.App. 1st Cir. 1974), writ refused, 307 So.2d 632 (La.1975).

Accordingly, the judgment of the district court is amended so as to award to Charlie Jones, as provisional tutor of the minor, John Timothy Evans, the sum of $4,168.40, with legal interest thereon from date of judicial demand until paid. The judgment is affirmed in all other respects.

Costs of this appeal, insofar as allowed by law, are assessed against defendant-appellant, Louisiana Department of Highways.

AMENDED AND AFFIRMED.


text:
    Charlie JONES, as Administrator of the Estate of his minor child, Charlie Glenn Jones, Plaintiff and Appellee, v. LOUISIANA DEPARTMENT OF HIGHWAYS, and State Farm Mutual Automobile Insurance Company, Defendants and Appellants.
    No. 5645.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 22, 1976.
    Rehearing Denied Nov. 4, 1976.
    William J. Doran, Jr., Baton Rouge, Gist, Methvin & Trimble by DeWitt T. Methvin, Jr., Alexandria, for defendants and appellants.
    Russell E. Gahagan, Natchitoches, for plaintiff and appellee.
    Before CULPEPPER, DOMENGEAUX and GUIDRY, JJ.
   DOMENGEAUX, Judge.

This is a companion case to the matter entitled Jones v. Louisiana Department of Highways, # 5644 on the docket of this court, 338 So.2d 338. For the reasons assigned therein the judgment of the district court, insofar as it holds the Louisiana Department of Highways solely negligent for the injury to the minor, Charlie Glenn Jones, is affirmed.

The trial court awarded plaintiff Charlie Jones, as Administrator of the estate of his minor child, Charlie Glenn Jones, the sum of $322.00 for injuries sustained by the latter. After a review of the record we find that award neither inadequate nor excessive and affirm same.

For the reasons assigned above, the judgment of the District Court is affirmed.

Costs of this appeal, insofar as allowed by law, are assessed against defendant-appellant, Louisiana Department of Highways.

Affirmed.