author: DIXON, Justice. CALOGERO, Justice

text:
    STATE of Louisiana v. James CARNEY.
    No. 57579.
    Supreme Court of Louisiana.
    June 21, 1976.

      Clyde D. Merritt, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendant, indicted for the second degree murder of Rosemary Coleman, was convicted and sentenced to life imprisonment. He appeals, raising nine of the twelve assignments of error he perfected during and after trial. Because we find merit in two assignments, we limit our discussion to these.

Assignment of Error No. 12

Defendant contends the trial court erred in denying his motion for a new trial based on the discovery of new evidence. The alleged new evidence was an arrangement between the district attorney’s office and the State’s witness Lois Lewis for the State to dismiss battery charges pending against her in exchange for her testimony at trial. Prior to trial, defendant had requested “evidence materially favorable to the defendant either as direct or impeaching evidence.” The State replied it had none.

A correct disposition of the case requires a summary of the testimony at the trial on the merits as well as at the motion for a new trial.

At the trial on the merits Alice Ford gave the following testimony: Ford, Lois Ann Lewis and the victim were walking toward Zalia’s Bar late Friday, April 27, 1974. They were approached by defendant “who seemed in an easy frame of mind.” Defendant took the victim by the arm saying he wanted to “talk to her,” said “good night ladies” to Ford and Lewis, and took the victim aside. Soon thereafter, Ford heard a sound like a “firecracker,” ran inside the bar, heard another similar sound, and later saw the victim lying on the floor inside the bar. It was not until officers turned the victim over that Ford saw a knife hidden in the area of her bra. Defendant and the victim had recently terminated a “common law” relationship.

At the trial on the merits Lois Ann Lewis gave the following testimony: As Lewis, Ford and the victim approached the bar, defendant came up and “grabbed” the victim “like he was mad” and pulled her aside. Defendant told the victim he wanted to speak to her but there was no other conversation; defendant did not say “good night ladies” to Ford and Lewis. Ford turned and walked toward the bar, but Lewis turned to see if defendant and the victim were fighting. She saw defendant produce a pistol and fire at the victim’s chest, though the victim made no movements toward him. The victim then ran inside the bar and a second shot was fired, but it hit the door. Lewis did not see a knife until persons from the coroner’s office arrived and removed the victim’s bra.

Officer Morgan gave the following testimony: He arrived after the emergency unit had come, declared the victim dead, and left the scene. When he first saw the body, only a white handkerchief wrapped around a knife was visible from inside the victim’s bra; he partially withdrew the knife for purposes of photographing.

At the motion for a new trial, Robert Zibilich gave the following testimony: Zi-bilich represented Lois Lewis in a battery charge lodged against her by the district attorney’s office. In negotiations with an assistant prosecutor, Chen, an agreement was reached whereby the charge would be dropped after Lewis testified in the instant case. The arrangement was not brought to the attention of the presiding judge or defendant’s attorney; it was kept between the district attorney’s office, Zibilich and Lewis. Zibilich told Lewis her case would “probably be dismissed.” When Lewis was asked if she planned to testify, she said, “I’ve been subpoenaed and I plan to testify.” When the trial court asked, “Was there any discussion between — with you and your client to the effect if she did not want to testify?” Zibilich answered, “She didn’t mention it one way or the other to me.” The charge against Lewis stemmed from a fight which happened after unnamed persons were “trying to pick on” Lewis because of her plan to testify in this case.

It was stipulated at the motion for a new trial that assistant district attorney Armstrong, who prosecuted defendant, had no knowledge of the arrangement.

Ronald Monroe, successor to Chen, testified at the motion for a new trial as follows : He submitted the case against Lewis for nolle prosequi “in exchange for cooperation and testimony of defendant in the James Carney murder trial . . . also investigation shows defense of self-defense would be used in trial of this case.” Monroe was unaware that a motion for exculpatory evidence had been filed in the instant trial.

In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), the United States Supreme Court held “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

In Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the court was faced with a situation in which a government witness named Taliento, whose testimony was important to the government’s case, was promised by an assistant United States attorney that he would not be prosecuted if he testified against Giglio. The record indicated that the assistant was not authorized to make the promise and that he failed to inform his superiors once he had made the promise. Finding that the fact that the promise was unauthorized and uncommunicated was not controlling; the court held “the prosecutor’s office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government.” 92 S.Ct. 763, 766. The court concluded by finding that the evidence not given upon defendant’s request was “material” under Brady:

“Here the Government’s case depended almost entirely on Taliento’s testimony; without it there could have been no indictment and no evidence to carry the case to the jury. Taliento’s credibility as a witness was therefore an important issue in the case, and evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it.” 92 S.Ct. 763, 766.

See also Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); DeMarco v. United States, 415 U.S. 449, 94 S.Ct. 1185, 39 L.Ed.2d 501 (1974); Favor v. Henderson, Docket 17,628-S, Western District of Louisiana, affirmed 489 F.2d 1311 (5th Cir. 1974).

In his per curiam to this court, the trial court found there was “no intentional withholding of these facts from defense counsel” and that the evidence sought was not “exculpatory . . . but if known at the time of trial to defense counsel, could only have been used in an attempt to discredit the witness, Lois Lewis.” He further noted that the testimony of other witnesses was “substantially the same” as Lewis’.

It is clear from Giglio v. United States, supra, that the fact that the information was withheld inadvertently is not controlling. And Giglio leaves no doubt that, if the witness’ testimony is important to the case, the fact that the evidence of a bargain between the witness and the state could be used only to “discredit the witness” does not take the case out of the reach of Brady, see also DeMarco v. United States, supra.

Miss Lewis’ testimony was important to the State’s case. She was the only witness who testified at trial that she saw defendant shoot the victim without provocation. No less than two witnesses testified they saw a knife wrapped in a handkerchief partially protruding from the victim’s bra. The State must prove beyond a reasonable doubt that the killing was not committed in self-defense. State v. Patterson, 295 So.2d 792 (La.1974) and cases there cited.

The State contends the cases relied on above, Brady, Giglio, Napue and DeMarco, do not apply to the case before us. Three arguments are made in support of this contention.

First, because Lois Lewis is not a co-participant with defendant in the crime ft>r which he stands convicted, the State contends these cases do not apply. Although each case cited above was occasioned by an arrangement between the government and a witness who allegedly had participated in the crime for which the defendant was being tried, the State points to no language in any of these cases, and there is none, by which the court limited its holding to witnesses who had participated in the very crime for which the defendant was on trial. The relevant aspect of each case was the fact that important testimony was given by a witness whose reason for bias had been concealed.

Furthermore, the State’s argument fails to consider Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). In Davis, one of the state’s crucial witnesses testified he saw the defendant with a crowbar in his hand standing near the location where a stolen safe was later found. The witness was not defendant’s alleged co-participant. The defendant sought to introduce evidence to show the witness was on probation from a juvenile adjudication and may have testified in order to shift suspicion from himself or as a result of undue pressure caused by the possibility of probation revocation. The trial court ruled, according to Alaska law, that juvenile adjudications were privileged, therefore inadmissible. The United States Supreme Court reversed, finding the state’s interest in preserving the anonymity of juvenile adjudications secondary to the accused’s fight “to probe into the influence of possible bias in the testimony of a crucial identification witness.” There is no doubt that Brady and Giglio would apply had the state failed to inform defendant, after a proper request, of the witness’ juvenile adjudication.

Second, the Brady line does not apply because Lois Lewis allegedly was unaware of the agreement, the State contends. The record does not support this contention. It reflects Lewis’ attorney told her the charge against her “would probably be dismissed.” He asked her whether she was planning to testify, and she responded, “I’ve been subpoenaed, and I plan to testify.” Further, the evidence shows that the case was nolle prossed at least partially in exchange for Lewis’ testimony.

Third, the State contends Brady does not apply because at trial defense counsel did not ask Lewis whether her testimony was given in exchange for an agreement with the prosecution. This contention misses the mark of Brady and Giglio. Defendant properly requested the information, and the State said it had none. The State cannot now cite defendant’s reliance on the State’s response as a failure on defendant’s part to act diligently. Nothing in these cases requires counsel to ask each witness whether his testimony is given as a result of an agreement with the prosecution where the prosecution has advised defendant that no such arrangement exists.

Lewis’ testimony was important to the case, and the State failed, after defendant’s proper request, to inform him of the agreement between it and Lewis. Brady, Giglio and Davis require reversal.

We also find merit in defendant’s eighth assignment of error. During closing argument, the prosecutor made the following remark, in response to which defendant requested a mistrial :

“You did hear testimony of a relationship between James Carney and the victim Rosemary Coleman, that they had lived as husband and wife — common law marriage — and that this relationship had come to an end, as one witness stated, 4 days earlier. I submit, gentlemen that this is your motive.
“For some reason, reasons we are not privileged to know — and only the defendant knows — ”

This was an indirect reference to the defendant’s failure to testify, and it alone would require reversal of defendant’s conviction. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); C.Cr.P. 770(3).

Accordingly, the conviction and sentence are reversed and set aside, and the case is remanded for a new trial.

SANDERS, C. J., and SUMMERS and MARCUS, JJ., dissent.

CALOGERO, J., concurs and assigns reasons.

DENNIS, J., concurs in the majority opinion and decision on the basis of assignment of error No. 12 only.

CALOGERO, Justice

(concurring).

I concur in the majority opinion because I agree that the trial court erred in denying Carney’s motion for a new trial on the basis of newly discovered evidence (assignment of error number 12). I do not agree, however, that the prosecutor’s comment was an indirect reference to Carney’s failure to take the stand (assignment of error number eight). In this latter respect I find the case indistinguishable from State v. Smith, 327 So.2d 355 (La.1976).

      . In brief to this court, the State alleges that defense counsel did not exercise due diligence because both he and Lewis’ attorney were employed by the office of the indigent defender. The record does not reflect that Zibilich was employed by that office, nor does the argument have merit if, in fact, he was.


source: Caselaw Access Project

author: DIXON, Justice. MARCUS, Justice

license: Public Domain

text:
    OIL PURCHASERS, INC. v. W. J. KUEHLING et al.
    No. 57241.
    Supreme Court of Louisiana.
    June 21, 1976.

      James R. Murrell, III, New Orleans, for plaintiffs-applicants.
    Charles N. Wooten, Ltd., Robert M. Cordell, Lafayette, for defendants-respondents.
   DIXON, Justice.

This is a suit by the heirs of Albert Jean Lequeux to rescind or reform a contract of employment entered into by Albert Lequeux and Edward F. LeBlanc, an attorney. A brief history of this litigation is necessary for an understanding of the issues before us in this case.

In October of 1960 Oil Purchasers, Inc. instituted this concursus proceeding, citing many claimants to certain oil royalties already deposited and those to be deposited in the registry of the court. Among the claimants cited were the heirs of Mathurin Lequeux.

Mathurin Lequeux had been twice married, once in France and then in Louisiana. As a result of his marriages he left two groups of heirs, the “French heirs” and the “American heirs.”

Albert Jean Lequeux was one of the American heirs of Mathurin Lequeux. He claimed one-half of Mathurin Lequeux’s interest in the royalties and subject property. Mathurin Lequeux’s other American heirs, including W. J. Kuehling (the “Kueh-ling group”), claimed the other one-half. The French heirs of Mathurin Lequeux claimed 1:^7ths of Mathurin Lequeux’s interest. Other claimants to the royalties and property included the State of Louisiana and Humble Oil & Refining Company.

On August 7, 1961 Albert Jean Lequeux entered into a contingent fee contract with Edward F. LeBlanc, attorney, to represent him in his claim to the royalties and property. Under the contract, LeBlanc’s fee was to be an undivided 25% interest in whatever property that Albert Lequeux owned that was then, or in the future would be, subject to any claims adverse to Le-queux’s asserted ownership. Edward Le-Blanc also obtained similar contracts from the Kuehling group.

However, Albert Lequeux, apparently dissatisfied with LeBlanc’s handling of his case, filed a separate action in September of 1963 against Mr. LeBlanc to rescind and annul the contingent fee contract. LeBlanc answered and reconvened, praying for recognition of the validity of his contract. This suit was ended by compromise and a judgment was rendered June 25, 1964 which, among other things, recognized LeBlanc’s right to continue his representation of Albert Lequeux. This judgment was signed by the trial judge, by Mr. LeBlanc and by Charles Wooten, attorney for Albert Le-queux. No appeal was ever taken from the compromise judgment.

On January 11, 1965 Mr. LeBlanc negotiated a settlement with the State of Louisiana and Humble Oil & Refining Company. The consent judgment gave 50% of the property formerly owned by Mathurin Lequeux to the State and Humble (80% of 50% to the State, 20% of 50% to Humble), and 50% to the American heirs and Le-Blanc (37.5% of 50% to the Kuehling group, 37.5% of 50% to Albert Lequeux, and 25% of 50% to Edward LeBlanc.) However, the judgment expressly preserved the rights of the French heirs to assert their claim to 1:!47ths (of the 50% awarded the American heirs) against the Kuehling group and Albert Lequeux. At this point, the only remaining funds in escrow were those claimed by the French heirs adversely to the American heirs.

In 1961 Silas Cooper, the attorney for the French heirs of Mathurin Lequeux, proposed a settlement that would terminate the dispute between the heirs. After several years of negotiations, a settlement was accepted by the Kuehling group, but rejected by the Lequeuxs. Therefore, the dispute as to the 1:147ths claimed by the French heirs, and their right to assert this claim against the American heirs, as preserved in the January, 1965 judgment ended as to the Kuehling group. However, the French heirs still asserted their claim against the 37.5% of 50% of Mathurin’s interest granted to Albert Lequeux by the January, 1965 judgment.

Albert Lequeux died on December 2, 1964. He left as his heirs Clyde and Malcolm Lequeux, plaintiffs in rule in the instant matter. Edward LeBlanc died on March 23, 1969.

After the death of Mr. LeBlanc, Clyde and Malcolm Lequeux employed Charles Wooten to represent them. Mr. Wooten successfully negotiated a settlement with the French heirs, thus putting an end to the last dispute among the heirs of Mathur-in Lequeux, leaving only the dispute between the heirs of Albert Lequeux and the heirs of Edward LeBlanc to be decided in this action.

This action was instituted by Malcolm and Clyde Lequeux against the heirs of Edward LeBlanc, by a rule to show cause, to have the employment contract between Albert Lequeux and Edward LeBlanc rescinded, insofar as it purported to convey to Edward LeBlanc any interest in the property described therein. Alternatively, the Lequeuxs asked the court to determine the value of the services rendered by Le-Blanc, and to thereby reduce the amount of money and property to be returned by the LeBlanc heirs to the Lequeuxs.

The defendants in rule, the heirs of Edward LeBlanc, filed exceptions of prescription, res judicata and no right of action, in addition to an answer to the rule to show cause. The trial of the exceptions was referred to the merits.

The trial judge was of the opinion that Mr. LeBlanc had performed substantially all of the services contemplated by the contingency fee contract. But because LeBlanc died before he completed the representation, the judge awarded the LeBlanc heirs 20% of Albert Lequeux’s interest in the property and money in escrow, rather than 25% as the contract had called for.

On appeal the court reversed. Oil Purchasers, Inc. v. Kuehling, 321 So.2d 17 (La.App. 3rd Cir. 1975). The court was of the opinion that the exceptions of res judicata and no right of action, reurged by the LeBlanc heirs, were not properly before it, because they had been waived by the failure to insist on a ruling on those exceptions in the court below. Therefore, the Court of Appeal did not consider the judgments of June 19, 1964 and January 11, 1965, which recognized LeBlanc’s contract and interest in the property. The court concluded that an award in quantum meruit, which it construed the trial court’s judgment to be, cannot consist of land, but only of money. The court then remanded the case for a determination of the money value of the land awarded by the trial court to the LeBlanc heirs. On application of the LeBlanc heirs, w'e granted writs.

The resolution of this dispute necessarily begins with an examination of the pertinent parts of both the contingent fee contract and the 1963 suit to annul, which culminated in the Junte, 1964 judgment. The contingent fee contract, entered into in August, 1961, provided in part:

“Therefore, in consideration of the services of EDWARD F. LEBLANC, heretofore rendered and to represent them herein and the services to be rendered hereinafter, each of the undersigned parties do hereby grant, give, convey, transfer, and deliver, with full warranty of title unto the said attorney an undivided 25% interest in whatever property may be initially adversely claimed judicially or extra judicially at this time or in the future; this undivided 25% interest includes all of the clients’ rights, titles and interest of any description whatsoever, corporeal and incorporeal, surface and minerals, including revenues in royalties which may have accrued or may accrue to the clients’ interest, in and to the following described property:
“It is agreed and understood by and between the parties hereto that this transfer of interest shall be complete and binding without further execution of any further instrument or agreement, upon there being filed in the Office of the Clerk of Court, Parish of Vermilion, State of Louisiana, any instrument whether a judgment of any court of competent jurisdiction, or any settlement agreement by the terms of which appear-ers entitled rights, titles, interest, to whatever extent, proportioned or manner, or (sic) therein recognized.”

The contract provided for its recordation, and contained a provision to the effect that, if the clients attempted to discharge the attorney without cause, the contingent interest would “ipso facto vest” in the lawyer.

In his petition to annul or rescind the employment contract, Albert Lequeux alleged (1) the contract purported to convey a 25% contingent interest in and to certain immovable property in Vermilion Parish in consideration of LeBlanc’s furnishing legal services; and (2) that Le-Blanc had failed to represent petitioner’s interest as contemplated by the contract. Albert Lequeux prayed for a judgment declaring the contract null and void, or, alternatively, if the court found LeBlanc entitled to compensation, a money judgment rendered on a quantum meruit basis. Mr. LeBlanc reconvened as noted above.

The judgment rendered in the case on June 25, 1964 recited that it was submitted on the joint stipulation of all parties, who jointly moved for the rendition of the judgment, which provided in part:

“IT IS ORDERED, ADJUDGED AND DECREED that plaintiff’s demands be denied and dismissed finally and that the Contract of date August 7, 1961, between the parties recorded in Vol. 477 page 100 under Entry No. 160817 Conveyance Records of Vermilion parish, Louisiana, a duly certified copy thereof annexed hereto, marked Exhibit ‘A’ and paraphed ‘Ne Variteur’ by this Court for identification herewith be and the same is hereby recognized and decreed as valid, binding and effective between the parties, ALBERT JEAN LEQUEUX (hereinafter referred to as LEQUEUX sometimes) and EDWARD F. LEBLANC (hereinafter referred to as LEBLANC sometimes) and of full force and effect SUBJECT ONLY to the following REFORMATION, DETERMINATION AND/OR SPECIFICATION with reference to the property and interests affected thereby, viz:
“That a vested right, title, share, portion, interest and ownership in and to the property itemized and described in said instrument of August 7, 1961, including all surface and minerals pertaining thereto, be and the same is recognized as having been fully and finally transferred, conveyed and delivered by ALBERT JEAN LEQUEUX to EDWARD F. LEBLANC in the following proportions,
“AND IT IS FURTHER ORDERED, ADJUDGED AND DECREED.:
“That the said EDWARD F. LEBLANC be and he is recognized as the exclusive attorney at law representing the interests of ALBERT J. LEQUEUX under, by virtue of and in keeping with said contract of August 7, 1961, uninterruptedly and satisfactorily to date, notwithstanding Lequeux’s attempt to terminate his services on June 14, 1963 precipitating and resolving the within rights and actions and the said LeBlanc is hereby authorized to continue to represent his and L'equeux’s interests in all litigation, compromise and/or settlement relating to the rights and property-described in said contract, and, each party shall have concurrent legal rights accordingly including rights of appeal

The Lequeux heirs contend this judgment could not transfer title to the described property to LeBlanc, because, at this time, Albert Lequeux did not have perfect title to the property, as it was in litigation among the various claimants. However, by compromise with the State and Humble in 1965 and the French heirs subsequent to that, title to certain of the properties did vest in Albert Lequeux, the transferor, and his heirs. Therefore, by virtue of the doctrine of after-acquired title, the title vested immediately in Le-Blanc and his heirs, as the transferee. McDonald v. Richard, 203 La. 155, 13 So. 2d 712 (1943); St. Landry Oil & Gas Co. v. Neal, 166 La. 799, 118 So. 24 (1928); Wolf v. Carter, 131 La. 667, 60 So. 52 (1912); Comment, 18 La.L.Rev. 312 (1958).

A transaction, or compromise, as the 1964 judgment was, reduced to writing, has the authority of the thing adjudged. C.C. 3078 provides:

“Transactions have, between the interested parties, a force equal to the authority of things adjudged. They can not be attacked on account of any error in law or any lesion. But an error in calculation may always be corrected.”

Not only was there a transaction, but the transaction was reduced to a judgment which conveyed an undivided interest in described property to Mr. LeBlanc. His ownership interest was effectively fixed.

Defendants complain that the Court of Appeal erred in holding that the exception of res judicata (and other exceptions) were not before the court on appeal, because they were not ruled on by the trial court, nor was a ruling requested by defendants, who neither appealed nor answered the appeal of plaintiffs.

The record seems to support the position of defendants, that the exceptions, although not mentioned in the trial court judgment, were tried, argued and necessarily overruled by the trial court, at least by implication, in the judgment which reduced the percentage of the property acquired by Mr. LeBlanc in the contract and prior judgment from 25% to 20% of the whole. After the exceptions were argued they were referred to the merits with the understanding that evidence adduced on the trial of the merits would apply to the exceptions.

Nevertheless, we find it unnecessary to rule on the difficult res judicata question presented. (There was a final judgment in an action on the employment contract— the subject of this suit—between the same parties or their successors in the same quality. C.C. 2286. The question is the identity of the cause, since the previous judgment contemplated the continued representation of the clients by the attorney, who subsequently died before the termination of the litigation for which he was employed. Hope v. Madison, 194 La. 337, 193 So. 666 (1940); Comment, 2 La. L.Rev. 347, 491 (1940). In the case before us, it can be said that its cause is the failure of performance by the attorney because of his death).

We need not reach the question of res judicata because the only relief defendants can be granted is a restoration of the trial court’s judgment, from which defendants took no affirmative action for relief. In the absence of an appeal or an answer to the appeal (C.C.P. 2133), the judgment reducing the attorney fee from 25% to 20% is final as to defendants. Morgavi v. Mumme, 270 So.2d 540 (La.1972); Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971). The Court of Appeal held, contrary to the trial court, that defendants were entitled, not to 20% of the money and land involved, but only to 20% of the value of the property involved. It is from this ruling that defendants apply to us. This ruling, we find, is in error, and resolution of this point will restore the judgment of the trial court, which is as much relief as defendants can obtain.

The Court of Appeal held that defendants “cannot recover under the contract because he (LeBlanc) died without completing it. They can recover only in quantum meruit.” La.App., 321 So.2d 17, 23. Quantum, meruit is a “striking example of an ill-considered importation from the common law . . . ” Comment, 50 Tul.L.Rev. 631 (1976). It supplied a need in early common law and has been expanded in our jurisprudence. However, its lack of underlying theoretical basis has “led inexorably to confusion and inconsistency.” 50 Tul.L.Rev. 631, 653.

A better analysis of the judgment reducing the attorney fee from 25% to 20% is that the benefits Mr. LeBlanc and his heirs obtained under the judgment recognizing the contract in 1964 were reduced in proportion to the value of the services which remained to be performed at his death. The judgment actually rendered modified the 1964 judgment and the 1961 contract of employment.

The demand of plaintiffs adequately meets the five prerequisites of actio de in rem verso recognized in Louisiana in Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967); Edmonston v. A-Second Mortgage Co., 289 So.2d 116 (La.1974). Comment, 43 Tul.L.Rev. 263 (1969). The impoverishment of plaintiffs in rule (the need to obtain other legal assistance on the death of Mr. LeBlanc) is directly related to the enrichment of defendants (the receipt of the entire fee) without justification or cause (the enrichment and impoverishment are not the result of the contractual provisions, but the result of the death of Mr. LeBlanc; see 43 Tul.L.Rev. 263, 269 (1969)) and there is no other available remedy.

Therefore, we need not plow in the uncertain ground of quantum meruit, and need not reach the rather mechanical result that only money can be awarded, not land. The availability of the actio de in rem verso dispenses with such tasks.

We agree with the Court of Appeal and the trial court in the analysis of the evidence of the representation by Mr. LeBlanc. The trial court found that he had performed “substantially all of the services contemplated by the contract.” This finding is not overcome by plaintiffs. The trial court reached the conclusion that the value of the services remaining to be rendered after Mr. LeBlanc’s death was about 20% of the whole, and therefore ordered a 20% reduction of the fee, thereby reducing the fee from 25% of the property to 20% of the property.

For these reasons, the judgment of the Court of Appeal is reversed, and the judgment of the district court is reinstated, at the cost of plaintiffs in rule.

MARCUS, J., concurs and assigns reasons.

MARCUS, Justice

(concurring).

Although I agree with the majority that 20% of the property itself, rather than 20% of its monetary value, can be awarded to the heirs of Edward LeBlanc, I do not believe that this case calls for application of the actio de in rem verso. The actio de in rem verso is a subsidiary remedy that can be used only when no other legal relief is available. Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967). In my view, the Civil Code provides a remedy for the attorney’s heirs, so that resort to the actio de in rem verso is inappropriate.

Articles 2766 and 2767 of the Civil Code state:

Art. 2766 Contracts for hiring out work are canceled by the death of the workman, architect or undertaker, unless the proprietor should consent that the work should be continued by the heir or heirs of the architect, or by workmen employed for that purpose by the heirs.
Art. 2767 The proprietor is only bound, in the former case, to pay to the heirs of the undertaker the value of the work that has already been done and that of the materials already prepared, proportionally to the price agreed on, in case such work and materials may be useful to him.

(Emphasis added).

The principles announced by these articles, while technically applicable only to contracts of hiring out work, should also be applicable to the contract of mandate involved herein, which stipulated a commission (article 3022) and which similarly expired with the death of the agent (article 3027). Article 2767 declares that when the undertaker dies his heirs should be recompensed for the value of his work propor-tionably to the price agreed on. The attorney’s fee or commission, i. e., the “price agreed on,” was under the contract in this case 25% of the property itself and not its value or a sum of money. The attorney died after completing about 80% of the services contemplated in the agreement. Hence, I believe that payment in property, reduced in proportion to the amount of services that remained to be performed after his death, is authorized by Civil Code article 2767 and is proper under the facts of this case.

I therefore respectfully concur.

      . We make no finding as to the effect of such a provision.


author: SUMMERS, J.,

text:
    The TIMES-PICAYUNE PUBLISHING CORP. v. The Honorable Frank A. MARULLO, Jr., Judge, Criminal District Court, Parish of Orleans.
    No. 58294.
    Supreme Court of Louisiana.
    July 7, 1976.
   In re: The Times-Picayune Publishing Corp. applying for Writs of Certiorari, Review, Prohibition, Mandamus and Stay Order.

Writ granted. The trial judge’s order of 7/7/76 restraining the news media is vacated and set aside. Prior restraint in this case is not warranted. See Nebraska Press Association v. Stuart, - U.S. -, 96 S.Ct. 2791, 48 L.Ed.2d -, dec. June 30, 1976.

SUMMERS, J.,

concurs agreeing that the order was improvidently granted because there has been no showing, and he is not prepared to assume, that the news media will not use reasonable restraint, under the circumstances of this and its companion case, in reporting the trial events.


text:
    STATE of Louisiana v. Jessie GREEN.
    No. 58269.
    Supreme Court of Louisiana.
    June 29, 1976.
   In re: Jessie Green applying for Remedial Writ and Stay Order.

Granted. Stay Ordered.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Bernard J. Bagert, Sr., Judge of the Criminal District Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 20th day of July, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 13th day of October, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.

It is further ordered that, in the meantime and until the further orders of this court all proceedings against the relator in said Criminal District Court shall be stayed and suspended.


text:
    Van H. ALFORD v. GEORGIA-PACIFIC CORPORATION.
    No. 58120.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Van H. Alford applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 331 So.2d 558.

Writ denied. The result is correct.


text:
    Cornelius LANIEUX v. STATE of Louisiana Through the LOUISIANA STATE PENITENTIARY and the Department of Corrections.
    No. 58254.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Cornelius Lanieux, applying for Certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 328 So.2d 765.

Writ denied. Not timely filed.


text:
    Junius COLLINS v. Alvin WILSON et al.
    No. 58262.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re: Junius Collins, applying for Cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 331 So.2d 603.

Not considered. Not timely filed.


text:
    STATE of Louisiana v. George ROW.
    No. 58160.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: George Row, applying for writs of certiorari, prohibition, mandamus and for Stay Order.

Writ granted. We can find no legal justification under existing statute or ordinance to permit retention and destruction of the revolver in the lawful possession of the accused. He is entitled to its return to him. La.R.S. 15:41. The order of the trial court to the contrary is set aside.


text:
    ECONOMY CARPETS MANUFACTURERS AND DISTRIBUTORS, INC. v. BETTER BUSINESS BUREAU OF BATON ROUGE, INC., et al.
    No. 58261.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: Breazeale, Sachse and Wilson applying for certiorari, or review to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 333 So.2d 765.

Application denied; the ruling complained of is not a final judgment.


text:
    Dorothy Ardoin CAMPBELL et al. v. FIDELITY AND CASUALTY CO. OF NEW YORK.
    No. 58154.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: Dorothy Ardoin Campbell, et al. applying for certiorari or writ of review to the Court of Appeal, Third Circuit, Parish of Evangeline, 331 So.2d 198.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Robert C. DYSON, Jr., et al. v. GULF MODULAR CORP. et al. Evie Lee Creel DYSON et al. v. John D. BELCHER, Jr., et al.
    No. 58180.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: Robert C. Dyson, Jr., et al. and Evie Lee Creel Dyson et al applying for certiorari or writ of review to the Court of Appeal, First Circuit, Parish of Washington, 331 So.2d 543,331 So.2d 549.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Clifford F. FAVROT, Jr. v. Katherine Boulet BARNES.
    No. 58195.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: Katherine Boulet Barnes applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 332 So.2d 873.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana v. Joseph COTTON.
    No. 58196.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: Joseph Cotton, applying for writ of review.

Writ granted. (See Order.)

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable John S. Covington, Judge of the 19th Judicial District, Court for the Parish of E. Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 20th day of July, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 13th day of October, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Joseph BOUDREAUX.
    No. 58266.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: Joseph Boudreaux, applying for writs of certiorari, prohibition, mandamus and for Stay Order.

Writ granted. Transcript ordered.


text:
    Paul M. WARD v. Shirley Ann WARD.
    No. 58279.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: Shirley Ann Ward applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans, 332 So.2d 868.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana v. Nolan W. SHOCKEY.
    No. 57973.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: Nolan W. Shockey applying for remedial writs.

Writ denied. The record supports the ruling of the trial judge.


text:
    STATE of Louisiana v. Dennis BEARUP.
    No. 58143.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: Dennis Bearup applying for supervisory writs, writs of certiorari, prohibition, mandamus and for Stay Order.

Writ denied. We are unwilling to disturb the ruling of the trial court as to competency of the witness, at least for purposes of the preliminary examination.


text:
    STATE of Louisiana v. David H. SEELING.
    No. 58144.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: State of Louisiana applying for writ of certiorari, mandamus and prohibition.

Application denied; no error of law in the ruling of the district judge.


text:
    Max H. DURHAM, Jr. v. The FIRST GUARANTY BANK OF HAMMOND et al.
    No. 58171.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: First Guaranty Bank of Hammond, et al. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa, 331 So.2d 563.

Writ denied. The judgment is correct.


text:
    STATE of Louisiana v. Lloyd W. BLANKE, Jr.
    No. 58179.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: Lloyd W. Blanke, Jr. applying for Remedial or Supervisory Writ of Review.

Writ denied. No merit in the application.


text:
    Louise CHARLES v. SEWERAGE AND WATER BOARD.
    No. 58185.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: Sewerage and Water Board of New Orleans, applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 331 So. 2d 216.

Writ denied. On the facts found no error of law in the judgment of the Court of Appeal.


text:
    PLY-WOODS, INC. v. INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY.
    No. 58193.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: Ply-Woods, Inc. applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 331 So.2d 230.

Application denied; there is no error of law in the judgment of the Court of Appeal.


text:
    GENERAL ELECTRIC COMPANY v. Cecil MARTIN.
    No. 58194.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: General Electric Company applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans, 331 So.2d 228.

Writ denied. No error in the Court of Appeal’s judgment.


text:
    Eudora A. BAESSLER v. Lewis C. MORGAN.
    No. 58200.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: Lewis C. Morgan applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 331 So.2d 214.

Application denied; no error of law in the judgment of the Court of Appeal.


text:
    Robert E. MAJORS v. NATIONAL MAINTENANCE CORPORATION.
    No. 58201.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: Robert E. Majors applying for certiorari, or writ of review to the Court of Appeal, Third Circuit, Parish of St. Landry, 331 So.2d 148.

Writ denied. On the facts found by the Court of Appeal there is no error of law in the judgment.


text:
    Lloyd J. THIBODEAUX v. HOME INDEMNITY COMPANY.
    No. 58202.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: Home Indemnity Company applying; for certiorari or writ of review to the Court of Appeal, Third Circuit, Parish of St. Landry, 331 So.2d 142.

Writ denied. Judgment of the Court of Appeal is correct.


text:
    STATE of Louisiana ex rel. Simon SMITH, Jr. v. Robert LOWE, Clerk of Court, Fifth Judicial District Court, Parish of Franklin.
    No. 58208.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: Simon Smith, Jr. applying for Writ of Mandamus.

Application denied; this court is informed that the original of the transcript of evidence sought has been filed in Federal District Court and the duplicate has been previously furnished to Samuel T. Singer, attorney for applicant.


text:
    Pamela Belote GRAY, Individually and on behalf of her minor daughter, Martie Jo Gray v. W. D. ATKINS, Jr.
    No. 58209.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: W. D. Atkins, Jr. applying for certiorari or writ of review to the Court of Appeal, Third Circuit, Parish of Lafayette, 331 So.2d 157.

Writ denied. The Court of Appeal judgment is correct.


text:
    Leola J. MILTON v. LIBERTY MUTUAL INSURANCE COMPANY et al.
    No. 58216.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: Liberty Mutual Ins. Co. and J. C. Penny Co., Inc. applying for certiorari or writ of review to the Court of Appeal, Third Circuit, Parish of Rapides, 331 So.2d 144.

Application denied; no error of law in the judgment of the Court of Appeal.


text:
    Clarence L. MURPHY v. HURDLE PLANTING AND LIVESTOCK, INC. and Lamar Golman.
    No. 58217.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: Clarence L. Murphy, applying for Certiorari, or writ of review, to the Court of Appeal, First .Circuit, Parish of West Baton Rouge, 331 So.2d 566.

Writ denied. No error of law.


text:
    Willard FEE and Donald Fee d/b/a Fee Brothers Logging Contractors v. VANCOUVER PLYWOOD COMPANY, INC.
    No. 58222.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: Willard Fee and Donald Fee applying for certiorari or writ of review to the Court of Appeal, Third Circuit, Parish of Allen, 331 So.2d 151.

Writ denied. On the facts found by the Court of Appeal, no error of law.


text:
    Frank DAVIS v. CALDWELL PARISH POLICE JURY et al.
    No. 58228.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: Frank Davis, applying for certio-rari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caldwell, 331 So.2d 872.

Writ denied. The judgment is correct.


text:
    Dorothy Kate Colclough CAMBRE v. ST. PAUL FIRE AND MARINE INS. CO.
    No. 58232.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: Dr. Joel H. Ory, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 331 So.2d 585.

Writ denied. No error in the result is shown.


text:
    Dorothy Kate Colclough CAMBRE v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY et al.
    No. 58233.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: Dorothy Kate Colclough Cambre applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 331 So.2d 585.

Writ denied. No error of law.


text:
    Dorothy C. SMITH v. Woodrow W. SMITH.
    No. 58237.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: Dorothy C. Smith applying for certiorari or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 331 So.2d 611.

Writ denied. On the facts found by the Court of Appeal we find no error of law in the judgment.


text:
    MURDOCK ACCEPTANCE CORPORATION v. S. & H. DISTRIBUTING COMPANY, INC.
    No. 58235.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: Murdock Acceptance Corporation, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo, 331 So.2d 870.

Writ denied; No error in the result.


text:
    Succession of Annie (Anne) Miller DELASSUS.
    No. 58242.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: Robert A. Miller, Philip A. Miller, Thomas B. Miller and Frederick A. Miller applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Feliciana, 331 So.2d 528.

Writ denied. The result is correct under the facts stipulated.


text:
    Edward Maurice CORLEY v. TIDEWATER CONSTRUCTION CORP. and Liberty Mutual Insurance Company.
    No. 58245.
    Supreme Court of Louisiana.
    July 2. 1976.
   In re: Edward M. Corley, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Jackson, 331 So.2d 890.

Application denied. No error of law in the Court of Appeal judgment.


text:
    Gayle Barrios JOHNSON v. Kenneth Edward JOHNSON.
    No. 58246.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: Kenneth Edward Johnson, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Terrebonne, 331 So.2d 854.

Writ denied. We find no error of law in the judgment of the Court of Appeal.


text:
    Clifford F. FAVROT, Jr. v. Katherine Boulet BARNES.
    No. 58274.
    Supreme Court of Louisiana.
    July 2, 1976.
   In re: Clifford F. Favrot, Jr. applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Jefferson, 332 So.2d 873.

Writ denied. No merit in the assignment of error.


author: SAMUEL, Judge.

text:
    CONTINENTAL AUTOMOBILE ASSOCIATION, INC. v. Wilburn P. HANSEN, Jr.
    No. 7338.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.

      Richard C. Buckman and Morris B. Phillips, New Orleans, for plaintiff-appellant.
    Donald G. Perez and Lester J. Wald-mann, New Orleans, for defendant-appel-lee.
    Frederick S. Haygood, Metairie, and Bruce S. Johnston, Jefferson, for third party defendant-appellee.
    Before SAMUEL, LEMMON and STOULIG, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against Wilburn P. Hansen, Jr., to recover property damage to its boat, damage allegedly caused by the defendant when he struck the stern portion thereof with his outboard hull while plaintiff’s boat was moored in a boathouse in Sellers Canal in St. Charles Parish. Defendant answered, denying negligence and averring contributory negligence on the part of plaintiff. In addition, defendant filed a third party petition against the marina in which the boat was moored (asserting defective construction of the boathouse) and against Allstate Insurance Company under the liability portion of his homeowners policy with that insurer. All state answered the third party demand, denying any coverage under the circumstances.

After a trial on the merits, there was judgment on the original demand in favor of plaintiff for $1,349.74. Both third party demands were dismissed. Defendant has appealed. In this court he contends: (1) plaintiff cannot recover because of its contributory negligence; and (2) there is coverage under his policy with Allstate, and accordingly, that third party defendant is liable to him for the cost of defending this suit and for reimbursement of the amount he is required to pay under any judgment rendered against him. Appellant has abandoned his third party demand against the marina.

On March 11, 1972, the defendant purchased a hull powered by a 55 h.p. outboard motor, both new. The following day, March 12, he launched the boat in Sellers Canal. He managed to get the motor started but it would not keep going in neutral and he allowed the boat to drift away from the dock while he was trying to get it started and running. When the motor finally started, he pushed the lever control out of neutral and into forward, but nothing happened; the motor coughed and sputtered but the boat did not move. He then pushed the lever control all the way forward and as he looked back at the motor it caught in that fast forward position. The boat leaped forward, out of control, and struck the stern and motor assembly of plaintiff’s inboard-outboard which was moored in its boathouse with approximately 18 inches of its stern protruding out of the boathouse and into the canal.

We find no evidence whatever in the record to support appellant’s first contention, that plaintiff was guilty of contributory negligence in allowing a portion of its boat to protrude into the canal. The record establishes that, even with the protrusion, there was ample room in the canal for passage by larger boats and even barges. This aspect of the case requires no further discussion.

We do find merit in appellant’s second contention relative to coverage under his Allstate homeowner’s policy. Coverage is set forth in Section II of the policy. The limit of liability under Section II, Coverage E “Personal Liability (Bodily Injury and Property Damage)” is $25,000 for each occurrence and, in pertinent part, Coverage E reads as follows:

“COVERAGE E — PERSONAL LIABILITY
This 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 or property damage, to which this insurance applies, caused by an occurence. This Company shall have the right and duty, at its own expense, to defend any suit against the Insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, but may make such investigation and settlement of any claim or suit as it deems expedient.”

Allstate relies on the following pertinent policy language under “Exclusions” :

“This policy does not apply:
1. Under Coverage E — Personal Liability and Coverage F — Medical Payments to Others:
b. to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of any watercraft:
(2) powered by any outboard motor (s), singly or in combination of more than 25 total horsepower, if such outboard motor (s) is owned by any Insured at the inception of this policy and not endorsed hereon, unless the Insured reports in writing to this Company within 45 days after acquisition his intention to insure the outboard motor or combination of outboard motors, ownership of which was acquired prior to the policy term.”

Appellant concedes his outboard motor was in excess of twenty-five horsepower and that the motor was not endorsed on the policy prior to the accident. Also undisputed is the fact that Allstate received a letter from appellant within forty-five days after he acquired the hull and outboard motor, but subsequent to the accident, notifying Allstate of his intention to insure them.

The policy was issued to defendant on August 26, 1971 for a period of three years. It was in full force and effect on the date defendant acquired the hull and motor on March 11, 1972. A careful reading of the policy, and especially the exclusions contained therein, satisfies us that the incident sued upon was not excluded.

The above quoted portion of “Coverage E — Personal Liability” simply says Allstate agrees to insure the homewoner for sums which the latter is legally obligated to pay for property damage to which the policy applies caused by “an occurrence”. This statement of coverage is then qualified and limited by certain “Exclusions”. The exclusion pertinent here also is quoted above.

Our reading of the quoted exclusionary language shows the policy does not apply under personal liability coverage to property damage arising out of the operation or use of a water craft powered by an outboard motor of more than twenty-five horsepower only if such outboard motor is owned by the insured prior to the inception of the policy and not endorsed thereon. The only exception provided in the policy to the exclusion of an outboard motor owned at the inception of the policy and not endorsed thereon occurs when the insured reports in writing his intention to insure the outboard motor, “ownership of which was acquired prior to the policy term.” Thus, the exclusionary language relied on by Allstate only applies to outboard motors owned by the insured prior to the inception of the policy period, and that fact is stated twice in Paragraph b. (2) of the Exclusions.

Such being the case, there is no language in the policy which excludes outboard motors acquired after the inception of the policy term, as is the case before us, and the meaning of the word “acquisition” (at least insofar as it is applicable in this case) is rendered moot. Stated another way, the policy only excludes coverage when the water craft is powered by an outboard motor (or motors) in excess of twenty-five horsepower when that motor (or motors) is owned by the insured at the inception of the policy and does not exclude coverage of any outboard motor (or motors) acquired after the inception of the policy.

It is doubtful that Allstate intended this result when it drafted the policy issued to defendant. Nevertheless, the provisions of the policy are clear and it would be beyond the authority of this court to reform the contract to make the exclusionary provisions apply to outboard motors acquired after the inception of the policy. Insurance is a contract of adhesion, construed against the insurer who draws it. Since the insurance is applicable to the damage in suit under the above quoted “Coverage E, Personal Liability” and since there is no language whatever in the policy excluding coverage for personal liability for damages resulting from occurrences involving an outboard motor acquired after the inception of the policy period, Allstate was obligated to defend the suit and pay the judgment.

The record contains no evidence upon which we can make an award for damages resulting from Allstate’s refusal to defend the suit. However, we have the authority to make our own estimation of the value of the services rendered by the attorneys for the defendant-appellant. In this connection, we have taken into consideration, among other things, the dollar amount of damage involved and the facts that the trial of the case consumed one day or less and the issues were not complicated. We conclude that an attorney’s fee in the amount of $650 would be reasonable.

For the reasons assigned, the judgment appealed from is affirmed insofar as it awards to plaintiff-appellee the sum of $1,349.74, together with legal interest from date of judicial demand, dismisses an exception of no right of action, and dismisses the third party demand against Pier 90 Marina. The judgment is reversed insofar as it dismisses the third party demand against Allstate Insurance Company and it is now ordered that there be judgment in favor of third party plaintiff-appellant, Wilburn P. Hansen, Jr., and against third party defendant-appellee, Allstate Insurance Company, for full reimbursement of the amount said third party plaintiff-appellant is required to pay under the judgment rendered against him in this suit, and in addition, the full sum of $650, together with legal interest from date of judicial demand until paid. All costs in both courts are to be paid by the third party defendant-appellee, Allstate Insurance Company.

AFFIRMED IN PART; REVERSED IN PART.

      . Thus, we need not decide whether notice to insure must be given within 45 days of acquisition of the policy or of acquisition of the motor, since that phraseology applies only to motors owned at the time the policy period begins.

      . Redding v. Cade, La.App., 158 So.2d 880; Gallagher v. Gallagher, 190 So.2d 916. See also American Legion v. Southwest Title & Ins. Co., La.App., 207 So.2d 393, annulled on other grounds, 253 La. 608, 218 So.2d 612.


author: ELLIS, Judge:

text:
    John POPE v. REPUBLIC UNDERWRITERS INSURANCE COMPANY.
    No. 10742.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Rehearing Denied June 30, 1976.
    Writ Refused Oct. 20, 1976.
    John N. Gallaspy and Michael J. Paduda, Jr., Bogalusa and Carey Guglielmo and George Mathews, Baton Rouge, for appellant.
    France W. Watts, III, Franklinton, for Pope.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge:

This is a suit by John Pope to recover from Republic Underwriters Insurance Company, which insured his home against loss by fire, the amount of a loss suffered by him when his home burned on April 18, 1973. Republic denied liability on the ground that plaintiff was himself the instigator of the fire. After trial on the merits, judgment was rendered in favor of plaintiff for the face amount of the policy together with penalties and attorney’s fees, and defendant has ' appealed.

The law applicable in such cases is given in Sumrall v. Providence Washington Ins. Co., 221 La. 633, 60 So.2d 68 (1952), as follows:

“Inasmuch as the defense is arson, the burden rested upon the insurer to establish, by convincing proof, that the fire was of incendiary origin and that plaintiff was responsible for it. It is well settled that the insurer need not prove its case against a plaintiff beyond a reasonable doubt; it suffices that the evidence preponderates in favor of the defense. Proof, of course, may be and invariably is entirely circumstantial. And, in these instances, a finding for defendant is warranted where the evidence is of such import that it will sustain no other reasonable hypothesis but that the claimant is responsible for the fire.”

We think that the record clearly reflects that the fire was of incendiary origin. The unrebutted expert testimony offered by defendants is to that effect, and we see no reason to disbelieve it.

Defendant contends that plaintiff had a motive for setting the fire because he was unemployed and his wife, who had been making the payments on the house and on their other obligations, had left him. The record reflects that all of the obligations were current at the time of the fire, but that no payments were made on them for some time thereafter. The record further reflects that the furniture, fixtures and appliances in the house were not insured and were destroyed by the fire.

The evidence is in hopeless confict as to whether Mr. Pope had the opportunity to set the fire himself. His son, William R. Pope, heard him threaten to burn the house to keep the finance company from getting it. William Pope further testified that his father had taken curtains, pictures, clothing and other articles from the house, and left some of them with him and some in other places. He also testified that on the evening of the fire, his father borrowed a number of shotgun shells from him, and hinted that the house would be burned that night. He further stated that his father was an alcoholic and often made idle threats. He testified that on the day after the fire, plaintiff said that he had paid Jack Rester $1,000.00 to set the fire.

Jack Rester also testified at the trial. It was brought out that he had given four different versions of his activities and those of plaintiff on the day of the fire, some of which implicated plaintiff and some of which exonerated him. The trial judge did not believe Mr. Rester’s testimony in any respect, and we see little point in detailing it here.

Plaintiff’s own testimony is to the effect that he spent the day with Mr. Rester, and that he did not set the fire. He further explained that he brought various personal items to his son’s house because he was preparing to rent his own home. He also had brought some laundry to be done by his daughter-in-law.

The trial judge found that defendant had not carried the burden of proving its defense, and we find no manifest error in his conclusion in that respect.

Defendant complains that the trial judge attached undue significance to the fact that plaintiff was acquitted of arson at the criminal trial. In his written reasons for judgment, the trial judge did say:

“This is a suit on an insurance policy covering a fire loss of a home that belonged to the plaintiff, John Pope. The defendant insurance company refused payment and this suit was filed to recover the amount of the policy. The insurance company defends on the grounds that the plaintiff burned his own house. Criminal proceedings were brought against the plaintiff John Pope, and after a trial, the jury returned a verdict of not guilty. The plaintiff had a serious drinking problem and on the night that the house burned, he had a friend of his, who also had a very serious drinking problem, were drinking together at the house, which later burned that night. The plaintiff was not present in the home when it caught fire. The only witness that testified that the plaintiff, John Pope, burned his house was his alleged friend, Mr. Jack Rester. The testimony of Jack Rester is completely unworthy of any belief. Mr. Rester has told several different stories, some implicate Mr. Pope in burning the house, others that say he did not. At the criminal trial he testified that Mr. Pope burned the house, apparently the jury did not believe him because they found him not guilty. Mr. Rester testified at the trial of this matter and the Court is of the opinion that his testimony can not be believed by any stretch of the imagination.”

There are no other references to the criminal trial. We do not interpret the foregoing statements as indicating an undue reliance on the acquittal. The court notes further in 'its opinion that defendant must prove its defense by a preponderance of the evidence, so that it is clear that he did not exact a higher burden of proof than is required by law in civil cases. There is more than ample evidence in the case to substantiate the propriety of the judge’s refusal to believe Mr. Rester’s testimony. Defendant’s contention is without merit.

Defendant’s next specification of error is that the court erred in awarding the face amount of the policy, since the house was not a total loss. Plaintiff introduced a repair estimate showing that the repairs would cost more than the face amount of the policy. Defendant offered no competent evidence to the contrary except the testimony of Hoyt Garrick, who made no independent estimate but only criticized that introduced by plaintiff. We find no manifest error in the decision to accept plaintiff’s contention.

We do, however, find that the judge erred in awarding penalties and attorney’s fees. The trial judge held that the insurance company did not have access to the fire marshall’s report and made no investigation of its own, and therefore had no basis for denying the claim. The record reflects that the company was aware of the investigation, and so advised Mr. Pope. The subsequent criminal charge for arson made against Mr. Pope, and his trial thereon, were public knowledge. We therefore hold that the defendant was not arbitrary in denying plaintiff’s claim under the policy.

The judgment appealed from is amended by removing therefrom the penalties and attorney’s fees awarded to plaintiff, and, as amended, it is affirmed. Costs of the appeal shall be borne equally by the parties. All other costs shall be paid by defendant.

AMENDED AND AFFIRMED.


author: SARTAIN, Judge.

text:
    J. Clem DREWETT et al., Plaintiffs-Appellants, v. STATE of Louisiana, Defendant-Appellee.
    No. 10825.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Rehearing Denied June 30, 1976.
    Writ Refused Oct. 20, 1976.

      Fred G. Benton, Jr., Baton Rouge, and Frank T. Salter, Jr., Joseph W. Greenwald, Asst. Parish Atty., Robert M. McHale, City Atty., Lake Charles, for plaintiffs-appellants.
    Fred L. Chevalier, Asst. Atty. Gen., Baton Rouge, for defendant-appellee.
    Louis D. Bufkin, Lake Charles, for in-tervenor Charles Molbert.
    Before SARTAIN, EDWARDS and CHIASSON, JJ.
   SARTAIN, Judge.

This is a suit for declaratory judgment brought by the various plaintiffs herein seeking a declaration of unconstitutionality of Act 719 of 1975 which provides for the allocation and distribution of the Revenue Sharing Fund established by Article 7, Section 26, of the Louisiana Constitution of 1974. The trial judge upheld the constitutionality of the act and dismissed plaintiffs’ suit, thus prompting this appeal. We affirm for reasons stated herein.

HISTORICAL BACKGROUND

In order to present this dispute in proper perspective a brief overview of the past history of Louisiana’s ad valorem taxation system is necessary.

In response to depressed economic conditions the Louisiana Constitution during the administration of Governor Huey P. Long was amended to provide an exemption from state, parish and local taxes for the bonafide homestead of each head of household up to an assessed value of $2,000.00. Subsequent amendments increased this amount to $5,000.00 for certain veterans.

The Legislature, recognizing the effect of the exemption on local governments, created the Property Tax Relief Fund pursuant to constitutional authorization, which fund was to be derived from other state taxes. This fund was disputed among the various parishes of the state on the basis of the losses incurred by local governmental units as a result of the homestead exemption.

The distribution of the Property Tax Relief Fund was challenged on the grounds that it was unconstitutional in that it denied equal protection of the laws to certain parishes. The distribution formula was so declared in Levy v. Parker, 346 F.Supp. 897 (1972), affirmed 411 U.S. 978, 93 S.Ct. 2266, 36 L.Ed.2d 955. Because of the lack of any uniform system of assessment of property subject to ad valorem taxation and because the disbursement of the fund depended on actual losses claimed by the parishes, the court concluded that the distribution of the fund resulted in arbitrary inequality and discrimination. The court noted that Louisiana’s system denied homestead owners in Orleans Parish and those who pay alcoholic beverage and income taxation (from which a portion of the Property Tax Relief Fund was derived) the same treatment accorded similarly situated taxpayers in other parishes thereby adversely affecting the benefits provided by the local government. The court held that the combination of unequal assessments, limited taxing power and payments from the fund on the basis of local millage rates resulted in an overall system which breached the constitutional rights of the plaintiffs.

In response to the Levy decision, to effect compliance therewith, a special session of the Louisiana Legislature was convened and passed Act No. 18 of the extraordinary session of 1972 proposing a constitutional amendment, subsequently adopted by the voters, to amend Article X, Section 4 of the Constitution of 1921 eliminating the property Tax Relief Fund and to add Section 10B to provide for the establishment and distribution of revenue sharing fund in the amount of $80,000,000.00 with provisions for additional allocations. The following year the Legislature enacted Act No. 153 of 1973 distributing the Revenue Sharing Fund provided for in the constitution according to the following formula found in Section 3 of the act:

Section 3. The amount to be distributed annually to each parish from the Revenue Sharing Fund shall be the sum of (a) an amount equal to that percentage of eighty percent of the total fund which is equal to the ratio which the population of the parish bears to the total state population, and (b) an amount equal to that percentage of twenty percent of the total fund which is equal to the ratio which the number of homesteads in the parish bears to the total number of homesteads in the state.

Subsequently the voters of Louisiana adopted a new state constitution containing revised provisions governing the Revenue Sharing Fund. Article 7, Section 26, of the Constitution of 1974 raised the above legislative formula for distribution insofar as it was based on percentages of homesteads and population in each parish to constitutional status and further increased the amount of the fund to $90,000,000.00. Article 7, Section 26(C) states:

(C) Distribution Formula. The revenue sharing fund shall be distributed annually as provided by law solely on the basis of population and number of homesteads in each parish in proportion to population and the number of homesteads throughout the state. Unless otherwise provided by law, population statistics of the last federal decennial census shall be utilized for this purpose. After deductions in each parish for retirement systems and commissions as authorized by law, the remaining funds, to the extent available, shall be distributed by first priority to the tax recipient bodies within the parish, as defined by law, to offset current losses because of homestead exemptions granted in this Article. Any balance remaining in a parish distribution shall be allocated to the municipalities and tax recipient bodies within each parish as provided by law.

The new constitution also contained revised provisions governing homestead exemptions (Article 7, Section 21) and provided for a system of uniform assessment (Article 7, Section 18), but by virtue of Article 14, Section 13, these provisions were not to become effective until January 1 of the year following the end of three years after the effective date of the new constitution. Until such time as the above provisions were to become effective the provisions of the Constitution of 1921 pertaining to these matters were to remain in effect. Thus the actual homestead exemption is governed at the present time by Article 10, Section 4(9).

FACTS OF THE PRESENT CASE

In accordance with the provisions of Article 7, Section 26, of the Constitution of 1974, the Legislature adopted Act 719 of 1975 allocating $90,000,000.00 to the Revenue Sharing Fund to be distributed pursuant to the following formula:

Section 3. The amount to be distributed annually to each parish from the revenue sharing fund shall be the sum of (a) an amount equal to that percentage of eighty percent of the total fund which is equal to the ratio which the population of the parish bears to the total state population, and (b) an amount equal to that percentage of twenty percent of the total fund which is equal to the ratio which the number of homesteads in the parish bears to the total number of homesteads in the state. As used in this Section, the term “homesteads” shall mean that enumeration of homestead exemption claims filed with the assessors as determined by the Louisiana Tax Commission as of November fifteenth of the previous calendar year.

As a result of the above formula, Calca-sieu Parish received a total appropriation for 1975-1976 in the amount of $3,583,080.-00. The amount available for distribution through the recipient bodies after allowance for Sheriff’s commissions and retirement contributions was $3,044,150.00. The amount of tax revenue Calcasieu claims to have lost due to homestead exemptions allowed in the parish is $3,491,149.00. As can readily be seen, Calcasieu’s portion of the Revenue Sharing Fund amounts to only eighty-seven percent of the revenues claimed lost. There were no excess funds to be distributed among the municipalities and tax recipient bodies within the parish.

Plaintiffs herein argue for various reasons that the formula in Act 719 of 1975 which failed to reimburse revenue losses attributable to homestead exemptions in full results in a denial of equal protection of the laws, invalidates taxes and impairs contractual obligations.

EQUAL PROTECTION

Calcasieu Parish and its various political subdivisions, as well as taxpayers situated therein, argue that the formula for revenue distribution deprives them pf equal protection of the laws inasmuch as the majority of parishes in the state are reimbursed to the full extent of losses attributable to the homestead exemption. Not only are homestead exemptions reimbursed in full, the formula yields to these parishes “excuses”, or amounts greater than that needed for homestead exemption reimbursements, which excesses are distributed among municipalities and other recipient bodies within the parish.

In applying the guarantee of equal protection to state revenue sharing plans, the court in Levy v. Parker, supra, stated:

The Equal Protection Clause, therefore, reaches all state actions. Cooper v. Aaron, 1958, 358 U.S. 1, 78 S.Ct. 1401, 3 L. Ed.2d 5, 19. It assures equality not only in the imposition but also in the distribution of state revenues. Hess v. Mullaney, 1954, 213 F.2d 635, 15 Alaska 40. Even largesse must be dispensed with an even hand. Shapiro v. Thompson, 1969, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600. Tax relief funds, designed to assist localities by making funds raised by state taxes available to local governmental agencies, must be administered by statute and in practice so as to avoid that governmental favoritism to one person over another that the Fourteenth Amendment was designed to proscribe. The failure to accord equal protection to all persons may not be justified by the sophistry that the receipt of funds from the legislature is a “privilege” and not a “right.” See Sherbert v. Verner, 1963, 374 U.S. 398, 404, 83 S.Ct. 1790, 1794, 10 L.Ed.2d 965. (346 F.Supp. 897 at page 903.)

The court further noted:

The presumption of reasonableness is of course with the state. Metropolitan Cas ualty Ins. Co. v. Brownell, 1935, 294 U.S. 580, 584, 55 S.Ct. 538, 540, 79 L.Ed. 1070. Unless it can be shown that the state’s failure to treat all alike has no rational basis, the state’s action must be sustained. Id., McGowan v. Maryland, 1961, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393. (346 F.Supp. 897 at page 901)

In the present case Calcasieu’s appropriation was calculated by the same formula as that of all other parishes in the state. It is true that such appropriations were only eighty-seven percent of the losses claimed by Calcasieu, whereas the formula resulted in appropriations to other parishes far greater than losses those parishes claimed as a result of homestead exemption.

We find no merit to this argument advanced by plaintiffs as we note that the degree of "loss” or “excess” experienced by a parish is directly dependent upon the amount each parish claims to have lost as a result of the homestead exemption. These “actual” losses are determined by multiplying the local millage rates by the value of the exempt property. The value of exempt property depends on local assessment practices candidly described in Levy, supra, as “assessment-any-basis-you-choose.” Thus, the actual losses claimed by a parish are subject to manipulation by the use of high millage rates coupled with artificially low assessments within the parish. This is precisely what the court in Levy, supra, found objectionable, that distributions were made from the property tax relief fund on the basis of losses claimed by a parish. Yet, plaintiffs herein ask us to find that they have been treated unfairly because these same losses were not reimbursed one hundred percent. We feel that in light of Levy, supra, the extent of reimbursement of homestead exemptions, as long as there exists no uniform system of assessment, is irrelevant. The paramount factor is the implementation of a formula for distribution based on relevant variables not subject to the whim of local political practices.

The formula questioned herein bases revenue distribution on weighted percentages of population and number of homesteads within each parish. The formula does not consider, nor was it designed to consider, the amount of losses a parish claims as a result of homestead exemptions. The latter figure is one which the court found objectionable in Levy, supra, as it was subject to gross manipulation. The former figures on the other hand are not subject to the type of manipulation denounced in Levy, supra, as they are not related in any way to current assessment practices. Absent a controlled system of assessment, the amounts claimed to be lost by parishes as a result of homestead exemptions simply can not be considered in any determination of inequity.

Plaintiffs argue that the weight assigned to each of the variables (80% to population and 20% to homesteads) is arbitrary. However, plaintiffs overlook that the presumption of reasonableness is with the state. The only offering plaintiffs have made to support their position that the formula is arbitrary is a showing that the formula fails to reimburse homestead exemptions in Calcasieu Parish one hundred percent, a showing which we have already pointed out is not legally relevant in light of Levy, supra.

Accordingly, we conclude that Calcasieu Parish has been treated in a manner consistent with that of the treatment of all other parishes in this state. That treatment is founded in a formula which furthers a legitimate state interest and is rationally related to the furtherance of those interests. The state has a definite interest in providing funds to the various parishes to support local governmental programs and it has enacted a formula not subject to self-serving manipulation through which those funds may be distributed. Thus we find no violation of the equal protection laws with respect to the treatment received by plaintiffs herein.

INVALIDATION OF TAXES AND IMPAIRMENT OF CONTRACT

The provisions presently governing homestead exemptions, Article 10, Section 4, of the Constitution of 1921, contain the following language:

The provisions of this paragraph shall in no way be construed or applied in such a manner as to: (a) invalidate taxes authorized and imposed prior to the effective date hereof, or (b) impair the obligations, validity or security of any bonds or other debt obligations authorized prior to such date, or (c) make inapplicable any other provisions of this Constitution or laws of this State, in force and effect on such effective date, to the extent that such provisions grant homesteads exemption from taxation.

It is argued by plaintiffs that since they are not reimbursed for the losses incurred as a result of homestead exemption these taxes are invalidated. They further argue that certain bond obligations have been impaired since debt service on said bonds is paid in part from advalorem taxes, the funds from which are significantly reduced as a result of failure to reimburse all homestead exemption losses.

We disagree with plaintiff that taxes have been invalidated within the meaning of the above cited constitutional provisions. The core of plaintiffs’ argument here is actually a complaint directed against the homestead exemption itself, for it is the exemption which reduces revenue from ad-valorem taxes and not the Revenue Sharing Fund (which actually increases available revenue from advalorem taxes). It can not be argued that taxes are invalidated merely because the present revenue generated from those taxes has been reduced in some instances. The system of advalorem taxation is still available to the governing authorities and by adjustment in millage pursuant to law governing authorities can further increase tax revenues resulting from that system. Furthermore, while actual figures are not before us, we feel that a comparison of the revenues generated by advalorem taxation with those lost due to homestead exemptions would indeed indicate that advalorem property taxes are a vital and significant source of governmental revenues.

We likewise disagree with plaintiffs’ argument that the validity of security on bonds issued by the governmental authorities has been impaired. Plaintiffs are in agreement with defendants that reimbursement from the property tax relief fund (and subsequently the Revenue Sharing Fund) were never pledged as security for any issued bonds. However, plaintiffs argue that when bonds are sold the purchaser is aware of certain “boundaries” within which security on said bonds will lie. It is argued that since advalorem taxes are not fully reimbursed the total available revenue with which to secure the bonds is reduced, thereby causing a reduction in the “boundaries” which the purchaser understood to exist at the time they purchased the bonds, thus violating the contract clause of both Article 1, Section 10, of the United States Constitution and Article 1, Section 23, of the Louisiana Constitution of 1974.

We find no merit to plaintiffs’ argument insofar as it pertains to the impairment of contracts inasmuch as reimbursements have never been pledged as security for these contracts and thus do not form a part of them. With respect to the impairment of security we find such a determination to be one of fact and while plaintiffs have shown a reduction in available funds over those of prior years, there has been no evidence offered to show that such reduction is to the extent that security on the bonds themselves has been in any way affected. We can not equate the mere reduction of revenues with security impairment without a showing of actual circumstances indicating a real danger to the ability of municipalities to satisfy present bond obligations. No such showing has been made herein.

ON BEHALF OF THE CITY OF LAKE CHARLES

The City of Lake Charles has filed a brief wherein it argues that it is entitled by law to participate in appropriations from the Revenue Sharing Fund. We find no merit to such contentions in light of subsequent amendments to Article 12, Section IS (Eighth), of the Louisiana Constitution of 1921. This article was amended in 1966 at which time the City of Lake Charles was deleted from said provisions. As a result of this amendment. Lake Charles was no longer entitled to be treated as a separate parish rather than a municipality. Thus, as a municipality we find the City of Lake Charles entitled to participate in the Revenue Sharing Fund as provided for in Article 7, Section 26(C), that is, as a body eligible to receive allocations of remaining balances after losses from homestead exemptions have been satisfied. Aside from this participation in the sharing of excess funds, we find no independent right on behalf of the City of Lake Charles to further participation. We feel as did the trial judge that the City’s remedy is an appeal to the legislative process if additional funds are desired.

ALLEGED SRS 275 FORM ERROR

Calcasieu Parish has advanced an argument that double deductions for sheriff’s commissions and retirement contributions have been erroneously made on the SRS 275 forms of various parishes (these are the forms upon which are calculated “excesses”, if any, a parish will receive after “losses” from homestead exemptions have been satisfied out of a parish’s appropriation from the Revenue Sharing Fund.) We find no standing on behalf of Calca-sieu Parish to make this challenge inasmuch as only one set of deductions for these items was made on Calcasieu’s own SRS form. Furthermore, these deductions are in no way related to the initial appropriations received by the parishes from the Revenue Sharing Fund.

Accordingly, for the above and foregoing reasons, the decision of the trial court is affirmed at appellant’s cost.

AFFIRMED.


author: BOUTALL, Judge.

text:
    Betty JACOBS v. KENT’S DOLLAR STORE OF CLAIBORNE AVENUE, INC.
    No. 7503.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.

      Wiedemann & Fransen, Perrin C. Butler, New Orleans, for Betty Jacobs, plaintiff-appellee.
    John C. Combe, Jr., Jones, Walker, Wachter, Poitevent, Carrere & Denegre, New Orleans, for Kent’s Dollar Store of Claiborne Avenue, Inc., defendant-appellant.
    George J. Richaud, for defendant-appellant.
    Before REDMANN, LEMMON and BOUTALL, JJ.
   BOUTALL, Judge.

This case involves a suit for personal injuries arising out of an accident in Kent’s Dollar Store. The trial court found in favor of plaintiff and defendant has appealed. Plaintiff answered the appeal seeking damages for a frivolous appeal. We amend and affirm.

Defendant avers that the trial court has committed error in its assessment of liability and in the award of damages. The issue as to liability presents no great problem. Plaintiff, Betty Jacobs, went to Kent’s Dollar Store for the purpose of buying baby clothes. At the time of this occurrence the plaintiff was in her eighth month of pregnancy with her tenth child. While she and her young daughter were examining the baby clothes several (plaintiff describes them as tool boxes, the manager as plastic tackle boxes) boxes fell from a shelf above the baby clothes display striking plaintiff on the head. The alleged cause for the boxes falling was that people at the T.G. & Y next door often threw objects against their wall, causing the Kent’s wall to shake and objects to fall from the wall. The assistant manager of Kent’s testified that he was aware of this occurrence and that objects falling off the wall had occurred in the past.

We believe these facts clearly set out a situation of negligence on the part of Kent’s Dollar Store. Knowing that the wall was likely to shake violently enough to dislodge items on the walls and shelves, Kent’s was under a duty to either warn their patrons of the danger or take affirmative steps to make their store safe for their patrons. Since there is no evidence in the record to show that Kent’s carried out this duty towards its customers we affirm the judgment of the trial court which found Kent’s liable for plaintiff’s injuries.

The second issue in this case involves quantum and presents a somewhat more difficult problem. Defendant contends that the award is excessive and that it constitutes punitive damages.

The plaintiff received a contusion on the top of her head as a result of the boxes falling on her. She complained of dizziness and headaches thereafter and sought treatment at Charity Hospital Clinic. She also felt soreness in the back of her neck and later went to a private physician who diagnosed her injuries as a cervical strain. He noted that the rigors of caring for ten children kept the plaintiff from recovering as quickly as expected. Six months after the accident the plaintiff was discharged as fully recovered.

The trial court awarded the plaintiff $5,000.00 in general damages and $99.00 in medical bills. Defendant contends this is an excessive award under the circumstances of the case and that the award is actually part punitive damages, not allowed in Louisiana absent a special statute. Post v. Rodrigue, 205 So.2d 67 (La.App. 4th Cir. 1967) and the cases cited therein. It relies upon the trial judge’s comments in the final paragraph of his Reasons for Judgment, contending the remarks show prejudice and prejudgment of the case. After discussing the facts and the law and deciding the quantum to be awarded, the trial judge added this paragraph:

“The Court is convinced that this case ought never to have been litigated. It is obvious that the defendant (not its attorneys) did not make any conscientious or sincere effort to avoid this litigation, knowing the facts and circumstances of this case, how and why the plaintiff was injured should have caused this defendant to do more than just file a general denial and plea of contributory negligence. The Court could understand defending on quantum alone, but this Court is also mindful that, after two pretrial conferences (the second just before the commencement of the trial) this case could have been settled were it not for the fact that the defendant’s bullheaded adjuster’s belief that this case was not worth more than $1,000.00 including injuries, pain and suffering, court costs and medical bills.”

The issue presented by defendant is unique and we believe one of first impression in Louisiana. The transcript of the trial in this case evidences no prejudice or bias on the part of the judge. The only prejudice or bias complained of by the defendant is the remark in the concluding paragraph quoted above, apparently based upon pre-trial conferences which are not of record.

Our personal knowledge of the conscientiousness and fairness of the trial judge also weighs in favor of a conclusion that bias did not enter into the decision. Nevertheless, the fact remains that the Reasons for Judgment contain an inappropriate statement which is entirely unrelated to the merits of the case. The fact that a litigant may have been unreasonable in compromise negotiation is neither a reason for judgment nor an appropriate finding of fact. With these considerations in mind, we proceed to an examination of the record and the findings of fact related to quantum.

The evidence of Mrs. Jacobs’ injuries consists of her testimony and, by stipulation, an emergency room form of Charity Hospital and three medical reports of Dr. D. W. Aiken. Mrs. Jacobs testified that she went to Charity Hospital right after the accident for treatment, that she went to Charity about 5 times and twice to the Algiers-Fischer Clinic near her home before going to Dr. Aiken. However, the only corroboration offered is one emergency room report dated April 29, 1973 showing a complaint of headaches and dizziness since being hit in head by a tool box one week ago , for which some analgesics were prescribed. She testified that her headaches got worse and she started having pains in the back of her neck.

Dr. Aiken first saw her on June 5, 1973, with complaints of headaches, dizzy spells, and soreness in back of her neck. He concluded she had a contusion on top of her head, which had resolved, and a cervical strain resulting from transmitted force from the blow on the top of the head. He found no muscle spasm or limitation of motion but only mild tenderness in the cervical area and some discomfort on extremes of motion. On June 19 he advised her to send her children to be cared for by a relative to assist recovery. He noted she had 10 children and could not rest to alleviate her onsets of headache, etc. On July 19 he noted considerable improvement and prescribed a cervical collar.

Mrs. Jacobs reported again to Dr. Aiken on October 4 telling him she was feeling pretty good but had recurring pain from time to time, but that she presently had a bad headache and some trapezial discomfort. The doctor noted some tenderness in the upper trapezius muscles with mild spasm. He ascribed her pain as being probably precipitated by nervous upset over an injury suffered by her “friend” the night before. He did not discharge her but scheduled her for further examination in six weeks.

On November 14, 1973, Mrs. Jacobs reported to the doctor that she had no headaches or cervical discomfort for a couple of weeks or more. The doctor found no tenderness or muscle spasm and discharged her as having recovered.

We relate this rather lengthy history because we disagree with some of the findings of the trial judge which are not supported by the record. We refer to his finding of treatment from Charity and the clinic “for sure starting a day or so after the accident.” The record shows her first (and perhaps only) treatment to be 13 days later. We refer to his finding that on October 4, 1973, she “still” had muscle spasms. The record shows this to be the only time she had it, with explanation of why it occurred. Finally we refer to his finding that she was in need of treatment when last seen by her doctor. The report of October 4 shows only a need of observation and the report of November 14 shows complete discharge.

We mention these details because we believe this to be the basis upon which the trial judge made the award of $5,000 to plaintiff in his discretion. R.C.C. art. 1934 (3). Since the record shows that the injuries and course of recovery were not so severe or arduous and that recovery was complete, the award should be reduced to the sum of $2,000.

Being of this opinion, we of course dismiss the request for damages for frivolous appeal.

For the above reasons we amend the judgment in favor of plaintiff, reducing it from $5,099 to the sum of $2,099 and, as amended, we affirm it in all respects.

The costs of appeal shall be shared equally by the parties.

AMENDED AND AFFIRMED.

      . The record indicates, and the trial judge found, that the accident occurred on April 16,1973.