text:
    James H. SHERWOOD et ux., Plaintiffs-Appellants, v. Clifton SEPULVADO et al., Defendants-Appellees.
    No. 13607.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 28, 1978.
    Nelson & Achee, Ltd. by Frank M. Dodson, Shreveport, for plaintiffs-appellants.
    Lunn, Irion, Switzer, Johnson & Salley by Harry A. Johnson, Jr, Shreveport, for Clifton Sepulvado & Patricia Sepulvado, defendants-appellees.
    Kitchens, Benton & Kitchens by Paul E. Kitchens, Minden, for State Farm Fire and Cas. Co, defendant-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   PRICE, Judge.

Jean Sherwood, joined by her husband, James H. Sherwood, brought this action for damages alleged to have been caused by Mrs. Sherwood’s being pushed through the front door of the Clifton Sepulvado residence by Mrs. Patricia Sepulvado. Plaintiffs seek to recover for personal injuries to Mrs. Sherwood and for medical expenses incurred by the community of acquets and gains from Mr. and Mrs. Sepulvado and their homeowner’s insurer, State Farm Fire and Casualty Company.

The trial court rendered judgment for plaintiffs against Mrs. Sepulvado but rejected the demands against Clifton Sepul-vado on a finding that Mrs. Sepulvado was not acting as an agent for the community. The court rejected plaintiffs’ demands against State Farm because of a provision of the policy which excludes coverage for “bodily injury or property damage which is either expected or intended from the standpoint of the insured.” The court limited the award to Mrs. Sherwood for her personal injuries to $1,000 after finding her actions and words while in the Sepulvado home justified a mitigation of the amount of damages to which she would have otherwise been entitled. The court further awarded her husband, as head and master of the community, $1,104.43 for her medical expenses.

Plaintiffs have appealed asking for an increase in the amount awarded and for a reversal of the judgment rejecting their demand against Clifton Sepulvado and State Farm.

Defendant, Patricia Sepulvado, has answered the appeal seeking reversal of the judgment holding her liable for plaintiffs’ damages, and alternatively, in the event this court affirms the finding of liability, she requests the judgment rejecting plaintiffs’ demands against State Farm be reversed and any judgment for damages be rendered solely against this insurer.

We reverse the judgment rejecting plaintiffs’ demands against Clifton Sepulvado and State Farm, and otherwise affirm the judgment of the trial court for the reasons assigned.

The incident giving rise to this litigation occurred as follows: The Sherwoods and Sepulvados were neighbors in the same Shreveport residential area, and the two families had been friends prior to the date of May 3, 1974. In the late afternoon on this date, Mrs. Sherwood went to the Sepul-vado home to request the Sepulvados to restrain one of their children from further wetting her minor son with a garden hose. After her knock at the front door had been acknowledged by Mrs. Sepulvado, Mrs. Sherwood let herself into the living room where Mr. and Mrs. Sepulvado were watching television. Mrs. Sherwood stood just inside the door while conversing primarily with Mrs. Sepulvado about the wetting incident. The discussion became argumentative, and Mrs. Sepulvado asked Mrs. Sherwood to leave her home. As Mrs. Sherwood did not immediately comply, Mrs. Sepulvado walked over to Mrs. Sherwood and placed her hands on the front of Mrs. Sherwood’s shoulders and pushed her backwards through the front door onto the front porch. Mrs. Sherwood stumbled slightly as she stepped down from the threshold to the porch (approximately three inches), but did not fall. The parties continued to exchange harsh words in the front yard and street until Mrs. Sepulvado was restrained by her husband.

Plaintiffs contend the push by Mrs. Sep-ulvado, although slight, caused serious injury to Mrs. Sherwood’s lower back and has continued to cause pain in her back and legs through the date of trial.

The assignment of errors by all of the parties presents the following issues on this appeal: (1) whether Mrs. Sherwood was the aggressor in the altercation so as to justify the battery by Mrs. Sepulvado; (2) whether the exclusionary clause in the Sepulvado’s homeowner’s insurance policy precludes coverage under the circumstances of this incident; (3) whether Mr. Sepulvado is vicariously liable as head and master of the community for the tort of his wife; (4) whether any injury to Mrs. Sherwood’s back was caused by the alleged battery; and (5) whether the trial court should have mitigated the amount of damages awarded to Mrs. Sherwood.

The Sepulvados claim that Mrs. Sherwood was the aggressor in the altercation as she came into their home, initiated an argument, and refused to leave. They rely on that rule of law which precludes liability against a defendant where the plaintiff provokes the battery by an aggressive act. Tripoli v. Gurry, 253 La. 473, 218 So.2d 563 (1969); Deville v. Wilks, 229 So.2d 128 (La.App. 3rd Cir. 1969). There is no testimony in this case, however, of any aggressive act on the part of Mrs. Sherwood. Refusing to leave defendants’ home was not an act of aggression toward Mrs. Sepulva-do, and the ensuing argument, even if initiated by Mrs. Sherwood, does not preclude liability since words alone cannot justify a battery. Morneau v. American Oil Company, 272 So.2d 313 (La.1973). Furthermore, the trial judge found no legal justification for a battery under these facts, and his findings are to be accorded great weight in absence of any manifest error. Hall v. Hughes, 340 So.2d 407 (La.App. 2d Cir. 1976). The record amply supports the trial judge’s finding of insufficient provocation.

The second issue is whether State Farm’s exclusionary clause in its homeowner’s insurance contract with the Sepulvados precludes its liability. The policy provides that no coverage is afforded “to bodily injury or property damage which is either expected or intended from the standpoint of the insured.” Both the Sherwoods and Sep-ulvados contend the clause is inapplicable since Mrs. Sherwood did not intend or expect bodily injury to result from the push. State Farm contends this clause excludes policy coverage for any intentional tort committed by the insured, citing Baltzar v. Williams, 254 So.2d 470 (La.App. 3rd Cir. 1971) and Kipp v. Hurdle, 307 So.2d 125 (La.App. 1st Cir. 1974). We do not find these cases controlling. In Balizar, Travelers Insurance Company had insured the town of Glenmora under a contract containing the same exclusionary clause as in the present case. Plaintiff sued the town’s deputy marshall for an intentional illegal arrest. The issue was whether the subject clause excluded the insurer’s liability. The Third Circuit held the town did not expect or intend that its deputy would commit an intentional, violent act upon a citizen; and therefore, the exclusionary clause did not apply. Although the court stated that public policy precludes one from insuring against his own intentional acts, this is obi-ter dictum without citation of any supporting authority. A contract of insurance is a legal agreement having the effect of law upon the parties, and which only the parties may abrogate or modify, C.C. Art. 1945. Kipp v. Hurdle, supra, is more analogous to the case at hand. In- Kipp plaintiff was grabbed by the hair and flung to the floor by defendant who admitted she intended to throw plaintiff to the floor, but denied she intended to harm plaintiff. The court held that it must be presumed she intended the consequences of her action, and that the exclusionary clause (identical to the one presented here) precluded liability on the part of the insurer. The Kipp case has subsequently been criticized in the case of Rambin v. Wood, 355 So.2d 561 (La.App. 3rd Cir. 1978) in which the court construed the exclusionary clause at issue. In Ram-bin defendant intentionally pushed plaintiff, but “might not have expected” the injuries which resulted. The court cited Kipp, but refused to follow the rationale that the insured is presumed to intend the consequences of his act. The court cited Restatement of Torts Second, Section 8A, which defines intent as denoting that the “actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.” The court further cited cases from other jurisdictions in accord with its holding that where the act is intended, but the resulting injury is not, the exclusion has no application, and coverage is afforded.

The language of the exclusionary clause under consideration does not preclude liability for an expected or intended “act,” but rather for an expected or intended “injury.” When the act is intentional, but the injury is not, the exclusionary clause is not applicable. Mrs. Sepulvado testified she intended to push Mrs. Sherwood, but did not intend to harm her at the time. This is corroborated by the slight force used upon Mrs. Sherwood which failed to cause her to fall. The rationale followed in Rambin is more appropriate to the present circumstances. We therefore find that the exclusionary clause is inapplicable, and that the State Farm policy affords coverage.

The third issue is whether the trial judge was in error in failing to hold Mr. Sepulvado vicariously liable as head and master of the community for the tort of his wife. We hold the court committed error in this regard. The law is clear that to hold the husband liable for the wife’s torts, one must establish that the wife was expressly or impliedly authorized to act, and acted in service of the community. Hart v. Hardgrave, 103 So.2d 910 (La.App. 2d Cir. 1958); Walker v. Fontenot, 329 So.2d 762 (La.App. 1st Cir. 1976), cert. den. 332 So.2d 217; Adams v. Golson, 187 La. 363, 174 So. 876 (1937). Mr. Sepulvado testified he was watching television in the room where his wife and Mrs. Sherwood were arguing. He admitted he saw and heard the entire incident. He heard his wife ask plaintiff to leave on more than one occasion and saw her finally push Mrs. Sherwood out the door. Although Mr. Sepulvado restrained his wife from any further altercation, he did not do so until his wife had followed Mrs. Sherwood into the front yard. The amount of elapsed time between the initial confrontation and Mr. Sepulvado’s subsequent restraint of his wife was sufficient to show an implied consent to his wife’s actions. Furthermore, the expulsion of Mrs. Sherwood from the Sepulvado home was the culmination of an argument concerning the acts of one of the Sepulvado children and has sufficient connexity with the community activities to be termed a “community mission.” Therefore, Mr. Sepulvado is vicariously liable for the tort of his wife.

The fourth issue is whether there is sufficient evidence to prove injury resulted to Mrs. Sherwood because of the push by Mrs. Sepulvado. Dr. W. W. Fox, the treating orthopedic surgeon, testified that Mrs. Sherwood had a very unstable back at the L-5 disc space, and that the history given him by Mrs. Sherwood on her first visit several days after the incident supported a probability that her complaint of pain in the lower lumbar region was activated by the pushing incident. In the absence of any medical evidence to the contrary, there is sufficient proof of a causal connection between the incident and Mrs. Sherwood’s injuries.

The final issue is whether the award of damages is manifestly erroneous. The trial judge mitigated Mrs. Sherwood’s damages because of her actions and words in the Sepulvado home, awarding $1,000 general damages to Mrs. Sherwood and $1,104.43 special damages to Mr. Sherwood on behalf of the community of acquets and gains. The trial judge’s decision is accorded great weight in these circumstances, Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), and we find the record supports his conclusion that mitigation of damages was appropriate Tinder the facts presented.

For the foregoing reasons the judgment appealed is reversed insofar as it rejects plaintiffs’ demands against Clifton Sepulva-do and State Farm Fire and Casualty Company, and these defendants are cast in soli-do with defendant, Patricia Sepulvado. The judgment in all other respects is affirmed at defendants’ costs.


source: Caselaw Access Project

author: JONES, Judge.

license: Public Domain

text:
    Edith Estelle Compton BRANNON, Plaintiff-Appellant, v. Ronald Craig BRANNON, Defendant-Appellee. Edith Estelle Compton BRANNON, Plaintiff-Appellant, v. Ronald Craig BRANNON, Defendant-Appellee.
    Nos. 13608, 13609.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 28, 1978.

      Love, Rigby, Dehan & Love by Sam P. Love, Jr., Shreveport, for plaintiff-appellant.
    Glen H. Smith, Shreveport, for defendant-appellee.
    Before HALL, MARVIN and JONES, JJ.
   JONES, Judge.

In these consolidated domestic proceedings plaintiff-wife appeals a judgment granting her a divorce on the defendant’s adultery and denying her permanent alimony because her fault contributed to the separation. We affirm.

On April 12, 1977, following an argument between the spouses, plaintiff-wife packed her bags and left the matrimonial domicile. She contended she left because her husband mistreated her by unnecessarily yelling and cursing her, telling her -.of his desire for separation and refusing to permit her to stay in their home. The husband denies these allegations explaining that when plaintiff left, he was studying for important employment related tests which he was to take the following week. He testified plaintiff inquired as to whether he wanted a separation, but he stated he wanted to delay any discussion until after his exams. Upon the persistence of his wife and after a heated conversation he explained to her he did not want her to leave and did not desire a separation, but if she wanted to leave, he would not stop her.

A few days following her departure, the wife called attempting to reconcile, but the husband at this time refused to allow her to return because he had learned of several sexually promiscuous activities which his wife had performed in public and of which he had previously been unaware. The husband considered the embarrassment which he endured following the acquisition of this knowledge to be a continuation of cruel treatment to which he had been subjected by his wife throughout the marriage and which he could no longer continue to endure.

On May 19th, the wife sued for a separation alleging the husband’s cruel treatment and constructive abandonment. The husband reconvened for separation on the wife’s cruel treatment. On November 14th, the wife filed suit for divorce on the husband’s adultery which occurred on November 2nd and 3rd. These separation and divorce cases were consolidated for trial.

The trial court without giving reasons for judgment awarded the wife a divorce, but denied her permanent alimony finding she was mutually at fault in causing the separation of the parties.

The judge during trial refused to dismiss upon her motion plaintiff’s divorce suit either with or without prejudice.

The only errors urged on appeal are (1) failure of trial court to grant plaintiff's motion to dismiss with prejudice the wife’s suit for divorce and (2) denial to plaintiff of permanent alimony because of the trial judge’s erroneous finding of serious fault on wife’s part which contributed to the deterioration of the marriage.

Failure To Grant Motion To Dismiss

On the first day of trial plaintiff-wife voluntarily sought to dismiss her divorce suit without prejudice. The trial court denied plaintiff’s motion to dismiss. Plaintiff then proceeded to introduce the testimony of two witnesses to prove the husband’s adultery. On second trial day plaintiff sought to dismiss the divorce suit with prejudice which motion was denied. The reason why the wife desired to dismiss her divorce suit was to protect her pendente lite alimony in the event the court found her fault contributed to the dissolution of the marriage. Though the plaintiff objected to the refusal to grant the dismissal, she continued to introduce evidence to prove the adultery. She testified she wanted a divorce or alternatively a separation.

The trial judge is required to grant a motion to dismiss without prejudice which is filed before the defendant enters a general appearance. When a dismissal is sought following a general appearance, the trial judge, while still required to dismiss the case, has within his discretion the option of dismissing with or without prejudice. C.C.P. Article 1671.

When the court refused to grant the dismissal, the mover could have sought supervisory writs to compel the judge to dismiss or she could have declined to introduce evidence to establish adultery which was the ground for divorce in the suit she sought to dismiss. By taking neither of these courses of action and by continuing with trial to judgment, plaintiff has acquiesced in the denial of her motion to dismiss and has waived any right to assert on appeal the trial court’s error in refusing to grant the dismissal. C.C.P. Article 2085; Luquette v. Decker, 273 So.2d 570 (La.App. 1st Cir. 1973).

FAULT OF THE WIFE WHICH OPERATES TO DENY HER PERMANENT ALIMONY

There was no prior separation judgment and this adjudication of mutual fault in these consolidated divorce and separation proceedings was the initial determination of the wife’s fault.

A wife who has not been at fault and has not sufficient means for her support is entitled to receive alimony after divorce. C.C. Article 160.

Fault which will deny the wife alimony has been defined to be conduct or substantial acts of commission or omission by the wife violative of her marital duties. Pearce v. Pearce, 348 So.2d 75 (La.1977). The wife’s misconduct must be of a serious nature and must independently contribute to or cause the separation. Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707 (1958). “The essence of this definition is that fault is conduct which constitutes grounds for separation or divorce, other than mere living separate and apart for a specified period of time.” Smith v. Smith, 216 So.2d 391 (La.App. 3rd Cir. 1968). The wife has the burden of proving freedom from fault in order to be entitled to alimony following divorce. Sachse v. Sachse, 150 So.2d 772 (La.App. 1st Cir. 1963); Smith v. Smith, supra.

The determination of fault in the separation proceeding bars relitigation of pre-separation fault for the purpose of an award of alimony to the wife in a proceeding for final divorce. Fulmer v. Fulmer, 301 So.2d 622 (La.1974).

When the wife is adjudicated at fault in a separation proceeding, she is barred from recovery of permanent alimony even though the husband’s post-separation fault entitled her to a divorce. Bennett v. Bennett, 349 So.2d 909 (La.App. 1st Cir. 1977) writ refused; Bruner v. Bruner, 356 So.2d 1101 (La.App. 2d Cir. 1978) writ granted 358 So.2d 641 (La.1978).

Though a wife is adjudicated free of fault in a separation proceeding, she is not entitled to alimony if she is guilty of post-separation fault which would entitle her husband to a divorce. Moon v. Moon, 345 So.2d 168 (La.App. 3rd Cir. 1977). Writ refused.

In the recent case of Thomason v. Thomason, 355 So.2d 908 (La.1978) the wife sought a divorce on the conviction and sentence of her spouse to imprisonment at hard labor. The husband reconvened for divorce on the wife’s adultery. The trial court denied both demands for divorce finding “mutual fault”. The court of appeal affirmed on the wife’s appeal. The Supreme Court reversed granting the wife a divorce, but affirmed the trial court’s finding of mutual fault of the spouses.

The case did not involve the issue of alimony, however at page 912, footnote 8, the Supreme Court commented:

Although the question of alimony was not raised at this time, we note that equal fault by both parties was determined in this proceeding even though it was the wife who obtained the divorce. The fault by each was of a serious nature and an independent contributory cause of the divorce and such that would bar the recovery of alimony under CC 160. See Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707 (1958). In Fulmer v. Fulmer, 301 So.2d 622 (La.1974), we held that the determination of fault in a separation proceeding is conclusive of pre-separation fault and cannot be relitigated. To the same effect, determination of fault in a proceeding for immediate divorce is conclusive for purposes of permanent alimony following divorce. Thus, neither party in the instant suit would be entitled to alimony.

The Thomason case is analogous to the facts here presented for the reason that in neither case had there been a prior adjudication of fault and in the initial proceedings aimed at dissolution of the marriage the trial court made an adjudication of mutual fault.

In Smith v. Smith, 216 So.2d 391 (La.App. 3rd Cir. 1968), a case factually similar to the one presented on appeal, the wife sued for a separation then later amended her petition to seek a divorce on adultery or alternatively a separation on her husband’s cruel treatment. The trial court granted the wife the divorce and awarded her permanent alimony. The lower court refused to allow the husband the opportunity to introduce evidence to prove fault on the part of the wife so as to deny her permanent alimony. The Third Circuit reversed the alimony award and remanded to determine if the wife was at fault. The court made no distinction as to when the fault must occur, pre-separation or post-separation.

In the event the plaintiff-wife is guilty of fault, she is not entitled to alimony even though she is entitled to a divorce because of her husband’s adultery.

There is evidence in the record of the following acts of the wife which constitute conduct and acts of omission and commission in the nature of cruel treatment towards' the husband: (1) failure to properly take her medicine, obtain sufficient rest and avoid strenuous physical activities necessary to control and prevent incapacitating illness due to chronic hypertension; (2) refusing to sleep with her husband after creating sickness due to the conduct set forth above; (3) refusal to communicate with her husband and to sleep with him for no cause other than her own displeasure and anger at him; (4) attempting to abandon her husband and leave the matrimonial domicile on 5 separate occasions during the five year marriage, including the April 12, 1977 abandonment which brought an end to the cohabitation between the parties; (5) subjected her husband to embarrassment and humiliation by the following conduct in the presence of their mutual friends in Dusty Roads Motorcycle Club: (a) verbal abuse directed toward belittling the husband; (b) using unladylike, vulgar and profane language; (c) displaying her posterior and breasts; (d) grabbing with her hand part of the reproductive organs of a male friend; (e) dancing with a male friend in a lewd manner.

The plaintiff argues the foregoing conduct occurred prior to the separation and was therefore condoned by the husband and for this reason could not be considered fault on part of wife to justify denial of permanent alimony. While the evidence does establish that numerous incidents of the above acts of cruel treatment occurred prior to the physical separation, there is a sufficient pattern to said conduct that continued through the date of separation to justify a finding that the husband’s forbearance in enduring the cruel treatment was based upon a desire to save the marriage rather than a true forgiveness of the wife for the cruel treatment to which she had subjected him. See Gibbon v. Gibbon, 337 So.2d 298 (La.App. 2d Cir. 1976) and Carriere v. Carriere, 147 So.2d 668 (La.App. 3rd Cir. 1962). The final act of abandonment together with the husband’s discovery of public acts by the wife which embarrassed and humiliated him are sufficient basis for his refusal to reconcile with her.

The trial judge is granted much discretion in weighing the credibility of the witnesses and in determining the factual issue of the wife’s fault and his finding will not be disturbed on appeal unless manifestly erroneous. Pearce v. Pearce, supra, and the cases cited therein. There is evidence in the record to support the trial judge’s finding of fault of the wife which had not been condoned and that contributed to the dissolution of the marriage.

For reasons assigned, judgment is affirmed at appellant’s cost.

      . A judgment dismissing an action without prejudice shall be rendered upon application of the plaintiff and upon his payment of all costs, if the application is made prior to a general appearance by the defendant. If the application is made after a general appearance, the court may refuse to grant the judgment of dismissal except with prejudice. C.C.P. Article 1671.

      . When the wife has not been at fault, and she has not sufficient means for her support, the , court may allow her, out of the property and earnings of the husband, alimony which shall not exceed one-third of his income when:
      1. The wife obtains a divorce;
      2. The husband obtains a divorce on the ground that he and his wife have been living separate and apart, or on the ground that there has been no reconciliation between the spouses after a judgment of separation from bed and board, for a specified period of time; or
      3. The husband obtained a valid divorce from his wife in a court of another state or country which had no jurisdiction over her person.
      This alimony shall be revoked if it becomes unnecessary, and terminate[d] if the wife remarries. (Art. 160. As amended by Acts 1964, No. 48, § 1.)


author: HALL, Judge.

text:
    Ike OLIVER, Sr., Plaintiff-Appellee, v. RELIABLE LIFE INSURANCE COMPANY, Defendant-Appellant.
    No. 13610.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 28, 1978.
    Clyde Lain, II, Monroe, for defendant-appellant.
    Samuel Thomas, Tallulah, for plaintiff-appellee.
    Before HALL, MARVIN and JONES, JJ.
   HALL, Judge.

Plaintiff, Ike Oliver, Sr., beneficiary of a burial insurance policy issued to Eliza Miller by defendant, Reliable Life Insurance Company, brought suit to recover benefits provided in the policy. Defendant denied liability on the basis of (1) LSA-R.S. 22:613 which prohibits the procurement of insurance on the life of another unless the benefits are payable to the insured or his representatives or to one with an insurable interest in the insured at the time the contract was made; and (2) material misrepresentations concerning the health of the insured. After trial the district court rendered judgment in favor of plaintiff for $750. Defendant appealed. We affirm.

Eliza Miller was an illiterate, unemployed black man in his sixties, probably an alcoholic. Ike Oliver looked after him, as he did a number of other persons similarly situated, furnishing Miller with room and board, cash advances, and other expenses. Miller was indebted to Oliver for a substantial amount of money, which was to be repaid out of social security benefits which Oliver was attempting to get for Miller.

Miller asked Oliver to get him a burial policy and to see to his funeral, which Oliver promised to do. Oliver arranged a meeting with an agent of the defendant company. Miller answered questions on the application read to him by the agent and requested that Oliver be named beneficiary. At Miller’s request, Oliver signed Miller’s name to the application. The initial and subsequent premiums were paid by Oliver. About four months after the policy was issued, Miller died. Oliver paid the funeral home $1,060 for funeral services.

The policy provided that defendant would furnish a $1,000 funeral service for the insured. A clause entitled “Optional Cash Settlement” provided that should the beneficiary not use the services provided by the policy the company would pay 75 percent of the face value of the policy to the beneficiary.

On appeal defendant does not urge its defense based on misrepresentations, but relies solely on its defense based on LSA-R.S. 22:613.

The prohibition of LSA-R.S. 22:613 is not applicable under the facts of this case for two reasons.

First, the policy was applied for and acquired by the insured, Miller, and not by the beneficiary, Oliver. Oliver’s testimony in this regard is supported by the testimony of the insurance agent who took the application. It was understood by Miller, Oliver and the insurance agent that Oliver signed the application for Miller because he could not read or write. Although Oliver paid the premiums, Miller was indebted to him for their repayment out of social security benefits he hoped to receive. The policy was not procured by one person upon the life of another as contemplated by the statute.

Second, Oliver had an insurable interest in the individual insured. Miller was indebted to him with no means to repay the debts except through social security benefits he might receive. The continuance of Miller’s life was essential for him to receive such benefits and pay the debts he owed to Oliver. Additionally, Oliver had agreed to see that Miller had a proper funeral, which Oliver did in fact arrange and pay for at an expense to him in excess of the amount of the insurance policy. Oliver had a reasonable expectation of pecuniary advantage from the continuance of the life of the insured, or of loss at his death. See Kelmell v. Aetna Life Insurance Company, 238 La. 72, 113 So.2d 609 (1959). See also Goodwin v. Federal Mut. Ins. Co., 180 So. 662 (La.App. 2d Cir. 1938) in which recovery was denied for lack of an insurable interest, but in which the legal principles supporting recovery under the facts of the instant case are well stated.

The judgment of the district court is affirmed at appellant’s costs.

Affirmed.

      . LSA-R.S. 22:613:
      “A. Any individual of competent legal capacity may procure or effect an insurance contract upon his own life or body for the benefit of any person. But no person shall procure or cause to be procured any insurance contract upon the life or body of another individual unless the benefits under such contract are payable to the individual insured or his personal representatives, or to a person having, at the time when such contract was made, an insurable interest in the individual insured ....
      “C. ‘Insurable interest’ as used in this Section and in R.S. 22:616 includes only interest as follows: .
      “(2) In the case of other persons, a lawful and substantial economic interest in having the life, health or bodily safety of the individual insured continue, as distinguished from an interest which would arise only by, or would be enhanced in value by, the death, disablement or injury of the individual insured. . . . ”


author: MARVIN, Judge.

text:
    Vernice Joseph PLEASANT, Plaintiff-Appellant, v. Irene Whitman PLEASANT, Defendant-Appellee.
    No. 13603.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 28, 1978.
    Robert P. McLeod, Monroe, for plaintiff-appellant.
    Marshall Q. Blackwell, Monroe, for defendant-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

In this divorce proceeding after a legal separation, the husband appeals from a default judgment against him for permanent alimony. He contends his wife did not sustain the burden of proof. We agree and reverse on this point and remand.

A prima facie case must be established in order to confirm a default judgment. C.C.P. Art. 1702. City of Monroe v. Fussell, 297 So.2d 482 (La.App.2d Cir. 1974). This record contains a transcript of the proceedings on confirmation of the default and it is upon this record that we must determine whether all essential elements of the wife’s demand were established by sufficient proof. With the record before us, we cannot presume that sufficient proof was presented. See Acme Poster Advertising Co. v. State, etc., 352 So.2d 397 (La. App.3rd Cir. 1977).

In the separation judgment, the husband was ordered to pay $500 monthly alimony pendente lite. We are not shown the circumstances upon which that award was based. Permanent alimony is based on different considerations than alimony penden-te lite. C.C. Arts. 148, 160. Frederic v. Frederic, 302 So.2d 903 (La.1974); Fitzpatrick v. Fitzpatrick, 303 So.2d 539 (La.App.4th Cir. 1974).

The only evidence relating to permanent alimony is the wife’s assent to her attorney’s statements that her husband had been ordered to pay $500 in the separation judgment and that she had recently agreed with her husband to reduce that amount to $250. We have no evidence that the wife has not sufficient means for her support. C.C. Art. 160.

Insofar as the permanent alimony award is concerned, judgment below is reversed and the case is remanded to allow the wife to present evidence to support her demand. Cost of this appeal is assessed to the appel-lee-wife.


author: LEMMON, Judge.

text:
    Lionel M. TREADAWAY v. DEPARTMENT OF POLICE.
    No. 9428.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 5, 1978.
    Ellis J. Pailet, New Orleans, for plaintiff-appellant.
    Michael A. Starks, Asst. City Atty., for defendant-appellee.
    Before REDMANN, LEMMÓN and BEER, JJ.
   LEMMON, Judge.

The court adopts the attached opinion of the Civil Service Commission as the opinion of this court.

The judgment is affirmed.

AFFIRMED.

CITY OF NEW ORLEANS CIVIL SERVICE COMMISSION NO. 1031

Appellant, Lionel M. Treadaway, who is employed as a police officer by the New Orleans Department of Police, was suspended by that department for a period of seventy-five (75) days from March 3, 1977 through May 16, 1977.

The reasons for the suspension are stated in a letter under date of March 11, 1977 from the Superintendent of Police to appellant. Basically, appellant is disciplined under Rule IX, Section 1, Paragraph 1.1 of the Rules of the Civil Service Commission for the City of New Orleans which provides in part that the appointing authority may discipline within its discretion an employee under its charge who is unable or unwilling to perform the duties of his position in a satisfactory manner or has omitted to perform any act that it was his duty to perform.

The matter was assigned by the Civil Service Commission to a Hearing Examiner pursuant to Article X, Section 12 of the Constitution of the State of Louisiana (1974). The hearing was conducted on Wednesday, July 6, 1977 before Hearing Examiner Thomas L. Gaudry, Esq. The testimony presented at said hearing was transcribed by a reporter and a copy of said transcript and all documentary evidence have been reviewed by each member of the Civil Service Commission.

This appeal presents us with two issues; first, whether the appointing authority erred in concluding that appellant failed to do something that he was required to do under departmental regulations; second, whether the appointing authority abused its discretion in suspending appellant for seventy-five (75) days for his failure to perform the required tasks.

The first issue is easily settled on the basis of the record. The appointing authority did not err in finding that appellant failed to do what he was required to do under departmental regulations.

Articles 52, 53, Paragraph C, Numbers 4 and 54 of the Rules for the Administration of the Department of Police impose a clear duty upon employees of that department to obey rules, regulations or instructions, whether oral or written, which are promulgated by authorized personnel.

The pertinent department rules are (1) that an officer may not abandon his assigned area of patrol without permission of the radio dispatcher or a supervisory officer; and (2) that an officer may not take a lunch break without permission of his platoon supervisor.

The record shows that appellant went outside of his area of patrol without authority on January 26, 1977. Appellant stated that he did so to investigate a report of an attempted breaking and entering into his partner’s apartment. He argues that since the apartment was located in the vicinity of the Howard Johnson and the Tastee Donuts establishments in which by custom he was allowed to take his meals, that his trip to his partner’s apartment did not constitute abandonment of his patrol area.

The argument is without merit on the issue of whether he failed to obey the rules of the department and what weight it has goes more to the issue of mitigation.

The record further shows that appellant took his meals without first receiving the permission of his platoon supervisor.

Appellant rather lamely argues that he was not aware of the pertinent departmental rules. However, that claim has never constituted a justification for failure to follow clearly promulgated regulations. In fact, that claim does not even amount to a mitigating circumstance inasmuch as the City at the very least has a right to expect its police officers to make themselves aware of the rules and regulations that govern their conduct.

With respect to the second issue, this commission holds that the appointing authority did not abuse its discretion in assessing the penalty of seventy-five (75) days suspension against appellant.

Prior to the violations which are the subject of this appeal, appellant had been assessed a seventy-five (75) day suspension for similar violations.

Apparently, appellant had not yet realized at the time of this offense the seriousness of his duty to faithfully follow the rules and regulations of the Department of Police.

The appeal is dismissed.

RENDERED AT NEW ORLEANS, LOUISIANA THIS 25th DAY OF OCTOBER, 1977. ’

CITY OF OF NEW ORLEANS

CIVIL SERVICE COMMISSION

(s) Trevor G. Brvan_

Trevor G. Bryan

Commissioner

CONCURS:

(s) Marcel Garsaud. Jr. (s) Norris V. Fitzmorris

Marcel Garsaud, Jr., Norris V. Fitzmorris,

Chairman Commissioner

(s) Wood Brown. Ill

Wood Brown, III,

Commissioner


author: CULPEPPER, Judge. WATSON, J.,

text:
    Johnny F. BROUSSARD, Plaintiff and Appellee, v. Edward J. STINE et al., Defendant and Appellant.
    No. 6566.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 7, 1978.
    Rehearing Denied. Oct. 16, 1978.
    Camp, Carmouche, Palmer, Carwile & Hunter; Edgar F. Barnett, Lake Charles, for defendant-appellant.
    Cox, Cox & Knapp, Leonard K. Knapp, Lake Charles, for plaintiff and appellee.
    Sandoz, Sandoz & Schiff, Leslie J. Schiff, Opelousas, Franklin, Moore & Walsh, Charles W. Franklin, Baton Rouge, for defendant and appellee.
    Before CULPEPPER, WATSON and FORET, JJ.
   CULPEPPER, Judge.

This is a suit for breach of contract. Plaintiff Broussard alleges that he incurred losses as the result of Mr. Stine’s breach of a contract to provide adequate water for the irrigation of plaintiff’s rice crop on approximately 400 acres of land. The jury found for the plaintiff and awarded him $16,599.00 in damages. Defendant appeals.

The substantial issues on appeal are: (1) Was there a contract between Mr. Brous-sard and Mr. Stine? (2) Was the contract breached? (3) What damages did plaintiff suffer as a result of the breach?

In his brief, counsel for appellant gives only cursory treatment to the first two of these issues. The defendant admits that he supplied water for Mr. Broussard’s operations on the Krause & Managan Farm, for which Mr. Broussard paid him one fifth of the crop. We find the record amply supports the jury’s finding that there was a contract between Mr. Broussard and Mr. Stine. We also find evidence that defendant breached this contract in that at crucial times during the production of this rice crop he failed to supply adequate water to the plaintiff’s fields.

The record clearly shows there was some crop loss. But there is conflicting evidence as to the amount. We cannot be sure what formula the jury used to award damages. Deducting the stipulated damages of $920 from the award of $16,599, leaves $15,679 for crop loss on the 400 acres, which comes to approximately $39.20 per acre. If we use $9.50 as the average selling price per barrel for the grade of rice which would have been produced, and $1.80 for the drying and storage fees per barrel, and remembering that the farmer’s share is 60%, the jury’s award would compensate Mr. Broussard for the loss of approximately 8.5 barrels per acre. Of course, the jury could have believed that the proper water supply would have resulted in a better grade of rice. In that case, their award might reflect the loss of less than 8.5 barrels per acre but of a grade of rice which would have brought more than $9.50 when sold. Many different factors could have been considered by the jury.

Having carefully considered the evidence presented concerning the 1975 yields from other farms in the vicinity of the Krause & Managan fields farmed by Mr. Broussard, and considering the yields from the Krause & Managan Farm in 1974 and 1976, we find no manifest error in the award made by the jury.

For the reasons assigned, the judgment appealed is affirmed. Costs of this appeal are assessed against the defendant-appellant.

AFFIRMED.

WATSON, J.,

dissents, being of the opinion that there is no evidence to support the quantum award by the jury and that either the award should be reduced substantially or a new trial ordered.


author: . WATSON, Judge.

text:
    Alton CREDEUR v. Norbert R. LUKE et al.
    No. 6570.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 7, 1978.
    Writ Granted Oct. 10, 1978.
    Rehearing Denied Oct. 16, 1978.

      Richard R. Kennedy, Lafayette, for plaintiff-appellant.
    Logan, deLaunay & Stutes, Keith States, Lafayette, Onebane, Donohoe, Bernard, Tor-ian, Diaz, McNamara & Abell, Edward C. Abell, Jr., Lafayette, for defendant-appel-lee.
    Allen, Gooch & Bourgeois, Lynn A. De-Rouen, Lafayette, for intervenor-appellee.
    Before CULPEPPER, WATSON and FORET, JJ.
   . WATSON, Judge.

This is an appeal from the granting of a summary judgment in favor of the insurer-defendant in an executive officer suit. Plaintiff is Alton Credeur who alleges that he was injured while employed by Luke Engineering Corporation or Chemical Processing, Inc. and that his injuries were caused by the negligence of the defendant, Norbert Luke, an executive officer of these corporations. The defendant insurer is Continental Insurance Company, which had issued a policy of liability insurance with Luke Engineering Corp., Norbert Luke and Chemical Processing, Inc. DBA Pollution Disposal Service as named insureds. The policy included comprehensive coverage for general liability as well as automobile liability.

Continental filed a motion for summary judgment on the basis of provisions in its policy which, Continental contends, entitled it to judgment as a matter of law.

The trial court granted summary judgment to Continental; and both plaintiff Credeur and the defendant Luke have appealed.

The issue on appeal is whether, as a matter of law, Continental is entitled to a judgment dismissing the suit against it. The question turns on whether there is coverage under either the comprehensive liability or the automobile liability features of the policy-

The comprehensive coverage excludes insurance for injury resulting out of maintenance or use of automobiles in the following language:

“Exclusion
“This insurance does not apply:
* * * * * *
“(b) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of
(1) any automobile or aircraft owned or operated by or rented or loaned to any insured, or
(2) any other automobile or aircraft operated by any person in the course of his employment by any insured.” (TR. 71, back of page).

Elsewhere in the policy the term “automobile” is defined as meaning a “land motor vehicle, trailer or semi-trailer designed for travel on public roads” (page 59, back of page).

Thus, by its terms the policy excludes from comprehensive liability coverage, any injury to a person involved in the maintenance or use of a motor vehicle.

The plaintiff alleges that he was cleaning the inside of a tank truck belonging to his employer when injured. Obviously, the contended injury fits within the clear wording of the exclusion of the policy.

Next, we must consider whether there is coverage under the comprehensive automobile liability feature of the policy. Here, the employer claims the exclusion known as the “cross-employee exclusion”. The policy provides under section 2 “persons insured” as follows:

“None of the following is an insured: “(i) any person while engaged in the business of his employer with respect to bodily injury to any fellow employee of such person injured in the course of his employment.” (TR. 62, back of page).

There is no question that Credeur was injured while engaging in the business of his employer and the question then becomes whether Luke was an employee within the contemplation of the quoted provision of the policy. The United States District Court for the Eastern District of Louisiana in Heiser v. Gibson, 386 F.Supp. 901 (1974) and the Court of Appeal, Fourth Circuit, in Mauterer v. Associated Indemnity Corp., 332 So.2d 570 (La.App. 4 Cir. 1976) have answered this issue unfavorably to plaintiff, holding that an executive officer is an employee for purposes of this exclusion. The reasoning of these courts appears to us to be sound and we adopt it.

Counsel for plaintiff resourcefully argues that the present case is distinguishable in that Luke was a named insured. However, the policy itself when identifying or defining persons “insured”, lists the various parties and immediately thereafter places a limitation upon who is to be considered an “insured” (TR. 62, back of page). The exclusion is plain and we find no reason to conclude that a named insured should be treated differently from any other.

The facts, the insurance policy and its exclusions and the legal principles involved in this case are virtually identical with those in the cited case of Mauterer v. Associated Indemnity Corp., supra. Therefore, we affirm the summary judgment in favor of the defendant-insurer on the basis that there is no coverage under its policy.

Costs are taxed one-half against the plaintiff, Alton Credeur, and one-half against the other appellant, the defendant, Norbert R. Luke.

AFFIRMED.


author: WATSON, Judge.

text:
    Merrick G. STRONG et ux. v. SECURITY GENERAL LIFE INSURANCE COMPANY.
    No. 6584.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 7, 1978.
    Rehearing Denied Oct. 16, 1978.

      Fish & Montgomery, John M. Robinson, Springhill, for defendant-appellant.
    Riddle, Bennett & Ryland, Darrel Ryland, Marksville, for plaintiffs-appellees.
    Before CULPEPPER, WATSON and FORET, JJ.
   WATSON, Judge.

The issues in this appeal are: (1) whether the defendant, Security General Life Insurance Company, proved that plaintiffs are excluded from the benefits provided by its policy; (2) whether there was error in the amount awarded; and (3) whether the action of the defendant in denying payment was arbitrary and capricious, entitling plaintiffs to recover penalties and attorney’s fees.

On October 10, 1975, Merrick G. Strong purchased a policy titled “Major Medical Policy” from Security General Life Insurance Company, which provides under the insuring clause as follows:

“The Company hereby insures the Insured named in Schedule A, or any member of the Insured’s family, if any, named in the application attached hereto and made a part hereof, and will pay for the expense of hospital confinement and for other specified expense, subject to all the provisions of the policy, including the benefits, effective dates, limitations and exclusions:
(a) resulting from accidental bodily injury sustained while this policy is in force, hereinafter referred to as such injury; and
(b) resulting from sickness or disease, which originates and has its beginning more than thirty (30) days after the effective date of this policy, and while this policy is in effect, subject to all the provisions of the policy, including the benefits, effective dates, limitations and exclusions contained herein, hereinafter referred to as such sickness.”

Erma L. Strong, wife of Merrick Strong, was named in the application and thus was entitled to the benefits of the policy up to a maximum of $1500 for each separate accident or sickness until August 23, 1976 at which time the policy was amended to provide $2500 in benefits.

Between June 9 and June 20, 1976, Mrs. Strong was confined in Woman’s Hospital, Baton Rouge, for a hysterectomy. She was the only witness who testified (no witnesses having been called on behalf of defendant) and we must rely on her testimony as well as any admissible documentary evidence filed by the parties. Here it may be noted that the defendants attempted to introduce three files of documents identified as D — 1, D-2 and D-3 as part of the business records of the insurance company. However, a timely objection was made to the reception of these documents and it was sustained by the trial court. The trial court thereafter allowed the documents to be filed under an Offer of Proof. These documents consist of various documents which purport to be copies of correspondence, hospital records, medical bills and the like. We are aware of no legal basis for the reception of these documents in evidence and we decline to consider them.

Mrs. Strong testified that prior to her hysterectomy in June of 1976, she had consulted the same physician, Dr. Jack Jones of Baton Rouge, for a general checkup in February of 1976. She admitted quite candidly that Dr. Jones had advised her then that she might consider a hysterectomy some time in the future. However, this falls far short of proving that plaintiff’s claim is subject to the exclusion found on page 1, part 2 of the policy which provides:

“Any surgical operation resulting in or from any sickness shall not be covered under Part 2 unless such sickness originated and had its beginning after this policy has been in force for six months.”

Also, under Part 10 “LIMITATIONS” found on page 2 of the policy, there is a provision that:

“1. Any loss or disability resulting in or from treatment, removal or repair of: (1) . . urogenital organs, shall be covered only if such sickness or disease originated and had its beginning after this policy has been in force for six months;”

Following her hospitalization for the hysterectomy, Mrs. Strong had two additional episodes of hospitalization. One of these was from July 26-28 for removal of an abscess, apparently of the vaginal area. The other was in November, 1976, when Mrs. Strong had acute cystitis, causing an infection of the bladder.

The bills in the records substantiate a charge of $309.71 for the July hospitalization and $461.08 for the November hospitalization. These are in addition to the earlier bills relating to the hysterectomy of:

Woman’s Hospital $1,352.10
Dr. Jack Jones 660.00
Dr. J. W. McGehee (anesthesiologist) 100.00

The trial court allowed plaintiffs a recovery of $2,500, the full face amount of the policy, as amended, plus penalties of 12% and a $750 attorney’s fee.

Our analysis of the record reflects no manifest error in the conclusion of the trial court that Mrs. Strong’s sickness originated and had its beginning after the policy had been in force for six months. This factual conclusion, which is based on a reasonable evidentiary basis, allows recovery under the policy.

However, the trial court erred in the total awarded, because plaintiffs are only entitled to recover the amount of the policy in effect at the time of the June, 1976 operation, that is, the sum of $1,500. Thereafter, they are entitled to $309.71 for the July hospitalization and $461.08 for the November hospitalization, or a total of $2,270.79.

The trial court also concluded that plaintiffs were entitled to penalties and we find no manifest error in that decision. However, the penalties are to be assessed under LSA — R.S. 22:657 rather than LSA-R.S. 22:658, the former being the provision for penalties under health and accident policies. The penalty to which plaintiff is entitled by the statute is an amount equal to the benefits, or $2,270.79, plus a reasonable attorney’s fee. Plaintiffs answered the appeal by the defendant, and are entitled to a total award of $4,541.58.

The judgment of the trial court is amended to award plaintiffs the sum of $4,541.58, plus the reasonable attorney’s fee allowed by the trial court of $750 and an increase in the attorney’s fee of $500 for services on appeal, for a total attorney’s fee of $1,250.

All costs are assessed against defendant, Security General Life Insurance Company.

AMENDED AND AFFIRMED.


text:
    Shelby HAMPTON, Individually and for the use and benefits of the minor, Shelby P. Hampton, Jr. and Susan Hampton and Virginia Hampton, wife of Shelby Hampton v. Alfio A. CRISTINA and the Liberty Mutual Insurance Company.
    No. 8326.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 1978.
    Marvin C. Grodsky, New Orleans, for plaintiffs-appellants.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Claude D. Vasser, New Orleans, for defendants-appellees.
    Before SAMUEL, LEMMON and BEER, JJ.
   LEMMON, Judge.

This appeal by plaintiffs, Mr. and Mrs. Shelby Hampton, questions the adequacy of a $7,500.00 award for Mrs. Hampton’s injuries in a 1968 automobile accident. Plaintiffs basically dispute the trial court’s apparent conclusion that a 1965 automobile accident, rather than the 1968 accident at issue in this suit, caused a herniated cervical disc which required surgery in 1969.

I

In the September, 1965 accident Mrs. Hampton sustained, in addition to a fractured pelvis, injuries to the head, neck and shoulder, which were initially diagnosed by Dr. Jack Wickstrom, an orthopedic surgeon, as a sprain of the cervical spine.

In January, 1966 Dr. Wickstrom referred Mrs. Hampton to Dr. Raeburn Llewellyn, a neurosurgeon, for continuing neck, right shoulder and right upper extremity complaints. Although Mrs. Hampton related episodes of numbness, pulling and sensations of tightness in her right arm and fingers, which Dr. Llewellyn stated could be symptoms of nerve root irritation, he opined that the injury was a sprain rather than a ruptured disc. He treated her conservatively and in October, 1966 hospitalized her for cervical traction for 16 days, diagnosing “C6-C7 cervical neurological syndrome post-accident manifested by neck pain and right arm neuralgia”. She improved after the hospitalization, but in late November the doctor noted she was not improving with intermittent home traction and heat and was less comfortable than before hospitalization.

In May, 1967 the neck, shoulder and arm complaints continued, although Mrs. Hampton reported that she was working as a legal secretary three or four hours a day, three days per week. In October, 1967 she reported numbness and tingling of the hand. After a March, 1968 examination Dr. Llewellyn expressed his belief that additional neurological testing or treatment would not lessen her continuing uncomfortableness, but would not recommend surgery.

In August, 1968 Mrs. Hampton, upon the advice of her attorney, consulted Dr. Joseph Dugas, a general surgeon who recorded complaints of neck pain radiating into the upper extremity as far as the hand, atrophy of the intrinsic muscles of the hand, muscle spasm, and possible loss of reflexes. Dr. Dugas diagnosed a herniated cervical disc and recommended a myelogram and possible discogram, which Mrs. Hampton considered but declined after consultation with Dr. Llewellyn. She had no further treatment or examinations prior to the November, 1968 accident.

II

In November, 1968 Mrs. Hampton rein-jured her cervical spine in the accident at issue in this appeal and immediately consulted Dr. Dugas. She was also examined five days after the accident by Dr. Llewellyn, who diagnosed an aggravation of the preexisting injury and opined that she would return to her pre-accident status without significant residual injury.

Dr. Dugas undertook the treatment of Mrs. Hampton and prescribed diathermy, sitz baths and medication. When she did not respond favorably to the conservative treatment by August, 1969, he again recommended a myelogram, which revealed a ruptured disc at the C6 — 7 level. Dr. Llewellyn was called in and surgically removed the torn portion of the disc and fused the joint.

Ill

At the 1976 trial (resulting in the judgment from which this appeal has been taken) Mrs. Hampton, in attempting to show the disc herniation was caused by the 1968 accident, primarily relied on the opinion of Dr. Llewellyn. Because he had never diagnosed a ruptured disc before the 1968 accident, he attributed the condition to that accident. Cross-examination revealed, however, that Dr. Llewellyn also had not diagnosed a ruptured disc after the second accident and therefore was incorrect in at least one diagnosis and possibly both. Moreover, he conceded that the basis for his opinion attributing the disc condition to the 1968 accident was the fact that the positive mye-logram occurred after the accident, further admitting that the pattern of symptoms was the same after both accidents and that the symptoms prior to the 1968 accident were consistent with the ultimate finding.

Plaintiffs’ other medical evidence included the testimony of Dr. Wickstrom, who at the time of his last examination of June, 1967 opined that although there was definite nerve root irritation, the condition had not progressed enough to recommend surgery. Finally, there was the testimony of two other doctors, an orthopedic surgeon and a neurosurgeon, who had examined Mrs. Hampton in June, 1967 for evaluation of her 1965 injuries and had found no indication of a herniated disc. However, both of these doctors also examined Mrs. Hampton in December, 1968, after the November, 1968 accident, but before the January, 1969 trial of the claim arising from the 1965 accident. Neither was informed of the recent accident, and each again expressed the opinion (proved to be incorrect) that no herniated disc existed, noting further that her symptoms and the clinical findings were exactly the same as at the time of the first examinations.

On the other hand, Dr. Dugas, whom Mrs. Hampton had depended upon in the earlier trial when she attempted to prove the 1965 accident produced a ruptured cervical disc and who was the treating physician after the 1968 accident, was called by the court as its own witness. He reiterated and reexplained his opinion that the 1965 accident caused the condition.

IV

The plaintiff, in this civil case, has the burden of proving entitlement to recovery, including proof that the claimed injuries were caused by the accident in suit. This burden may be fulfilled by direct or circumstantial evidence. Favoring Mrs. Hampton is the circumstance that there was no conclusive evidence of a ruptured disc before the second accident, while there was conclusive evidence thereafter. Furthermore, four well qualified physicians who examined Mrs. Hampton between the first and second accidents, opined that she did not have a ruptured disc before November, 1968. (Their opinions in examinations shortly after the second accident must be considered in light of the fact that symptoms of ruptured discs a short time after an injury are often similar to symptoms of sprains.)

Nevertheless, Dr. Dugas was the only doctor who ever diagnosed a ruptured disc without myelography, and he did so before the second accident. As the treating physician after the second accident, moreover, his opinion is entitled to great weight. Furthermore, Mrs. Hampton persistently exhibited symptoms consistent with disc involvement from the time of the first accident. All medical experts agreed irritation at the C6-7 level can cause ulnar nerve symptoms in the hand, such as loss of sensation and atrophy. Mrs. Hampton experienced these symptoms, and Dr. Dugas noted them as the basis of his diagnosis. Finally, the fact that Mrs. Hampton had been steadily employed as a legal secretary for many years prior to the 1965 accident, but worked only two weeks in 1968, impugns to some extent her own testimony that she was “doing fairly well” and “feeling quite improved” in 1968 until the accident occurred.

We cannot say the evidence preponderantly proved the 1968 accident caused the herniated disc. There is ample medical evidence to support the conclusion that considerable disc involvement was attributable to the 1965 accident, and we cannot say that an award of $7,500.00 for aggravation of this condition (the extent of which aggravation could not be precisely defined by the medical evidence) constituted an abuse of the much discretion vested in the trial court by C.C. art. 1934(3).

The judgment is affirmed.

AFFIRMED.


text:
    John E. KIRSCH, Jr. v. PIER ORLEANS, INC. and Gourmet Food Services, Inc.
    No. 8387.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 1978.

      Michael H. Bagot and John H. Gniady, New Orleans, for plaintiff-appellee.
    Normann & Normann, Charles E. Leche, New Orleans, for defendants-appellants.
    Before SAMUEL, LEMMON and BEER, JJ.
   LEMMON, Judge.

Pier Orleans, Inc., a Louisiana corporation, has appealed from a judgment ordering the issuance of 10% of its authorized stock to plaintiff. Issues on appeal are (1) whether evidence of the agreement to issue stock to plaintiff was properly admissible and (2) whether the person who executed the agreement on behalf of the corporation was authorized to do so.

Pier Orleans was incorporated on May 7, 1973. The charter listed Thomas Blankenship as the sole incorporator, and the initial report of the same date listed him as agent for service of process, but listed no directors or officers.

Prior to the date of incorporation Blankenship, Lionel Flotte and Russell Cornelius had been interested in obtaining a lease of plaintiff’s permit for a location on the shore of Lake Pontchartrain for the purpose of constructing and operating a restaurant. When preliminary negotiations, primarily between Blankenship and plaintiff, reached a point where the parties were near an agreement in principle, plaintiff turned over the negotiations to his attorney. At that point discussions about consideration for the lessee included payment of a sum of about $15,000.00 upon execution and rental payments of $1,000.00 per month, plus 10% of the stock in the corporation to be formed and the promise of a job in the restaurant. Blankenship, Flotte and plaintiff’s attorney testified that when a proposed draft of the lease was being discussed during one of the final negotiating sessions, Cornelius, who controlled the financing but attended few of the negotiating sessions, was called by telephone and agreed to the above terms, but insisted that the promise to issue stock and to provide employment not be included in the written lease. According to their testimony Cornelius was concerned about the possible effect of those terms upon the validity of the lease, since plaintiff’s permit rights were then in litigation.

After the corporation was chartered on May 7 Blankenship, Flotte, Cornelius, plaintiff and plaintiff’s attorney met on May 11 and worked out the details of the final lease, omitting (in accordance with Cornelius’ previous instructions) the provisions about the corporate stock and the job. A corporate bank account was opened, and on May 15 Blankenship and Flotte, who were apparently the signatories on the corporate bank account, executed a check in the amount of $16,500.00 to plaintiff.

On May 17, plaintiff, concerned about not having written evidence of the stock agreement, contacted Flotte, who executed an agreement to issue 10% of the stock as “prepaid for services rendered in connection with the lease”, after talking to Blankenship, who agreed there was no reason not to put in writing their promise to issue the stock to plaintiff. Flotte signed the agreement in his capacity as vice-president of the corporation.

On May 18 the lease was executed, and Blankenship signed the contract as president. At that time no formal meeting of the corporation had ever been held, and no board of directors had ever been elected.

On appeal, as it did in the trial court, defendant contends that evidence of prior negotiations and agreements leading up to a written agreement are inadmissible to vary the terms of the agreement. This contention is indeed a correct general statement of law regarding parol evidence, but applies only when the parties have stated the terms of their contract in the form of a complete written integration.

The parol evidence rule simply excludes as irrelevant any prior negotiations or agreements when the parties intend to integrate these into one writing. The parol evidence rule does not make these facts irrelevant; the new agreement in writing makes these facts irrelevant, but only if the written agreement is a complete and accurate statement of all of the terms agreed upon by the parties.

Here, the evidence was introduced, not to show prior negotiations, but to show that the written lease was not the complete agreement between the parties. Parol evidence is admissible to show that the parties did not intend to substitute one written contract for all of their prior negotiations and agreements and that the written agreement was not assented to as a complete integration. Burton v. Lumbermens Mut. Cas. Co., 152 So.2d 235 (La.App. 4th Cir. 1963), cert. den. 244 La. 895, 154 So.2d 767. Evidence is certainly admissible to show the circumstances under which the agreement was made and the purpose for which the written contract was executed. 3 Corbin, Contracts § 582 (1960); 9 Wigmore, Evidence § 2430 (3d ed. 1940); 25 La.L.Rev. 320 — 321 (1965); 30 Am.Jur. 2d, Evidence § 1043 (1967); Hirsh v. Miller, 167 So.2d 539 (La.App. 4th Cir. 1964), cert. den. 246 La. 909, 168 So.2d 821.

By showing that the parties did not intend the lease to be the complete contract and that they contemporaneously executed two separate agreements relative to consideration for the lease, plaintiff used the agreement to transfer stock to show what the entire bargain really was and thereby supplemented, rather than contradicted, the terms of the written lease.

Credible evidence by every party interested in the lease, except Cornelius, established that the lease contract was not intended to be the complete agreement and that the agreement to transfer the stock was one of the inducements for plaintiff to execute the lease, but was prepared to comply with Cornelius’ desire to omit that term from the written lease and to keep separate the promise to transfer stock. While Cornelius emphatically denied this testimony, the trial judge resolved this factual issue against him, and the record reveals no manifest error in this resolution or in the determination that both writings reflected the final and complete agreement between the parties.

Defendant also contends that Flotte was merely a promoter and was never an officer of the corporation and that his execution of the agreement to transfer stock was neither authorized nor ratified by the corporation.

This contention also turns on the factual evidence surrounding Flotte’s execution of the agreement. Blankenship testified that everything relative to formation of the corporation was done informally around the time of execution of the lease and that although officers were not formally elected until four months later, Flotte had been listed as vice-president when the bank account was opened. Flotte testified that he thought he was vice-president and that Blankenship (the sole incorporator and subsequently the first president) authorized execution of the agreement as evidence of the promise to transfer stock, a promise of which Cornelius was aware and had agreed to as part of the complete bargain. Other evidence showed that Flotte and Blankenship had conducted most of the lease negotiations on behalf of the corporation, had handled the formation of the corporation, had personally endorsed a substantial corporate obligation, and at the time of trial were shareholders of the parent corporation. Finally, Blankenship testified that Cornelius did not object to issuing plaintiff 10% of the stock until early 1976, and Flotte testified that Cornelius first tried to reduce plaintiff’s interest to 5%.

Cornelius, on the other hand, insisted that he represented the primary investor and that Blankenship and Flotte acted without his knowledge or authority in agreeing to transfer the stock.

Authority to bind a corporation is generally conferred by resolution of the board of directors. At the time of the lease and the agreement to transfer stock, directors had not been elected. However, Blankenship (who executed the lease as president) and Plotte had been held out to have apparent authority to act on behalf of the corporation, and plaintiff relied on this apparent authority in contracting with these parties. Therefore, as to these agreements with plaintiff, the corporation was bound by the actions of Blankenship and Flotte.

The judgment is affirmed.

AFFIRMED.

      . The first recorded minutes was a September 6, 1973 meeting of shareholders and directors, at which Blankenship, Cornelius and a third person were named directors, and Blankenship and Cornelius were elected president and secretary-treasurer respectively.
      Although the minutes indicated that Gourmet Food Service, Inc. (with the same directors) owned the “entire capital stock to date”, no stock certificates were issued until March, 1975, when 900 of the 1,000 authorized shares were issued to Gourmet Food.

      . This case does not present the problem of using an inferior form of evidence (verbal) to overcome superior evidence (written) which is a primary purpose of the prohibition expressed in C.C. art. 2276;' this case involves two contemporaneous written agreements, and testimonial proof is admissible to show that the parties did not intend the written lease to be a final and complete integration of their antecedent negotiations. Indeed, the formal contract of sale or lease frequently represents only a partial integration of the complete terms of the agreement. 3 Corbin, Contracts § 587 (1960).


author: REDMANN, Judge.

text:
    AETNA INSURANCE CO. et al. v. GENERAL ELECTRIC CO.
    No. 9084.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 1978.
    Rehearing Denied Oct. 19, 1978.
    Michael R. Sistrunk, Hugh M. Glenn, Jr., New Orleans, for plaintiffs-appellees.
    William A. Porteous, III, New Orleans, for defendant-appellant.

      Before REDMANN, STOULIG and SCHOTT, JJ.
   REDMANN, Judge.

The manufacturer of an electric transformer appeals from a judgment for $211,-305.90 damages the transformer suffered from a lightning-caused current surge of 5.6 times normal current. The transformer would have withstood that surge (and up to 11.8 times normal) had it possessed the impedance quality the manufacturer declared it had in the contract of sale and upon a plate affixed to the transformer. We affirm the award.

The case is controlled by La.C.C. 2547:

A declaration made by the seller, that the thing sold possesses some quality which he knows it does not possess, comes within the definition of fraud, and ought to be judged according to the rules laid down on the subject, under the title: Of Conventional Obligations.
It may, according to circumstances, give rise to the redhibition, or to a reduction of the price, and to damages, including reasonable attorneys’ fees, in favor of the buyer.

We note the difference between the manufacturer’s declaring the thing to have a quality it does not have, and failing to declare a defect. Louisiana law imputes to a manufacturer knowledge of his products’ constitution, Moreno’s Inc. v. Lake Charles Cath. High, La.1975, 315 So.2d 660. The fairness of treating imputed knowledge of defects as “suppressed” by a manufacturer without actual knowledge has been questioned (Campbell, The Remedy of Redhibition: A Cause Gone Wrong, 1974, 22 La.B.J. 27, 29-31), but that problem is not present here. This is not a suppression case but an assertion case. C.C. 1847(5) makes either “an assertion of what is false, or a suppression of what is true” fraud, if designed to obtain an unjust advantage. We deem it an unjust advantage to obtain a sale by misrepresentation. A manufacturer who in fact does not know of a defect in his product cannot reveal it to the buyer. But our manufacturer could have refrained from making an assertion, the truth or falsity of which it did not know. That theoretical calculations formed a basis for a belief in the truth of the assertion does not justify making the assertion unqualifiedly. The manufacturer here could, in all honesty, only have asserted that its hopes for this huge transformer’s surge-withstanding quality depended on projections from, data derived from smaller transformers. If the confessed fact that this manufacturer did not know whether its representation was true does not suffice as knowledge of its falsity for purposes of C.C. 2547, we apply Moreno’s imputation to charge the manufacturer with knowledge that the declared characteristic was not present. Thus the manufacturer is liable for the damages.

The manufacturer argues that, in its contractual warranty’s words, it “shall not be required to correct any defects which may appear . . . after one year from the date [the equipment] is first put in service.” Perhaps a manufacturer can never stipulate against warranty; see C.C. 2531, 2d para., as amended, Acts 1974 No. 673; Barham, Redhibition: A Comparative Comment, 1975, 49 Tulane L.Rev. 376, 387—388; Comment, Modification or Renunciation of Warranty in Louisiana Sales Transactions, 1972, 46 Tulane L.Rev. 894, 901— 902. But, if the contractual wording constitutes a renunciation of warranty, it is ineffective: it “is not obligatory, where there has been fraud on the part of the seller”, C.C. 2548, and we deem the “assertion of what is false”, C.C. 1847(5), to obtain an unjust advantage to constitute fraud. Furthermore, the transformer (like the pipe erroneously declared high-pressure pipe in Louisiana Iron & S. Co. v. Galloway, 2 Cir. 1927, 6 La.App. 218) was not defective; it merely did not have the impedance quality it was declared to have,

Affirmed.

      . It may even be argued that such cases are breaches not of the seller’s obligation of warranty, but of his obligation to deliver the thing sold, C.C. 2475. Compare the theory of failure of consideration set forth in Comment What Chance for the New Car Purchaser of a “Lemon”?, 1974, 62 Ky.L.J. 557, 559.


author: BEER, Judge.

text:
    Raphael EDWARDS v. C. E. HARTZMAN, J. M. Garrett, and D. A. Krenz.
    No. 9207.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 1978.
    Rehearing Denied Oct. 19, 1978.
    Beoubay & Gegenheimer, Jon A. Gegen-heimer, Gretna, for plaintiff-appellant.
    Hammett, Leake, Hammett, Hulse & Nelson, Craig R. Nelson, New Orleans, for defendants-appellees.
    Before SCHOTT, BEER and GARSAUD, JJ.
   BEER, Judge.

Appellant Raphael Edwards contracted pulmonary silicosis in the course and scope of his employment at Avondale Shipyards. By separate suit, he has recovered medical expenses and workmen’s compensation benefits. Here, he seeks tort recovery against certain executive officers of Avondale Shipyards. The district court has maintained an exception of prescription, resulting in this appeal.

Edwards’ deposition testimony convincingly indicates that as early as July, 1974, he knew that he was suffering from pulmonary silicosis, that his work was the cause of his illness, and that he should not return to such work. By the petition itself, he acknowledges that he was advised of the existent condition in 1975. Since this suit was filed in 1977, it is clear, on the face of the record, that any 2315 cause of action which Edwards might have by way of La. R.S. 23:1101, is time barred by the one-year prescriptive period. See: La.Civ.Code art. 3536. Nevertheless, he contends that his cause of action also arises by operation of general maritime law. Thus, he argues the admiralty doctrine of laches should be applicable, and his claim should not be time barred.

When a true admiralty claim is presented in state court, the doctrine of laches will, ordinarily, be primarily considered in determining the timeliness in filing a maritime tort action. Sewerage & Water Board of New Orleans v. Sanders, 264 So.2d 270 (La.App. 4th Cir. 1972), writ ref., 262 La. 1157, 266 So.2d 443; Lavergne v. Western Co. of North America, Inc., 346 So.2d 239 (La.App. 4th Cir. 1977).

In Poche v. Avondale Shipyards, Inc., 339 So.2d 1212 (La.1976), the Louisiana Supreme Court held that the Longshoremen and Harbor Workers Compensation Act, 33 U.S.C. §§ 901 et seq., and the Louisiana Workmen Compensation Act may apply concurrently to certain maritime workers despite the fact that the former law would preclude tort suits against executive officers, and the latter would not do so. In so holding, the court commented as follows:

“That the provisions of the state and federal compensation laws with respect to third party negligence actions are different cannot be disputed. We are of the opinion, however, that once the initial determination was made that the LHCA and state compensations statutes could operate concurrently, the appeal court was in error to reexamine the question of state-federal conflict with respect to particular provisions of the acts. It is obvious that unless the state statute provides benefits or rights beyond those accorded by federal law, there would be no reason to elect to pursue the state remedy. To hold, as did the appellate court, that a plaintiff may elect state law but only insofar as the rights accorded thereunder do not exceed those provided in the federal scheme is to render meaningless the right to make the initial election. We find it particularly significant that workers who chose to pursue state remedies during the pre-1972 era were allowed to take advantage of the state law in its entirety. The courts did not compare particular provisions of the laws with a view to harmonizing differences. (Emphasis ours.)” Id., at 1221.

The Poche decision did not abrogate the doctrine of election of remedies, and the Poche court went on to consider whether one applicant in that consolidated case had made an election of federal comp remedies.

In the instant ease, plaintiff clearly elected to pursue his remedies under state law. Had he chosen to pursue remedies available under federal admiralty law, he would have sought recovery under LHWCA with attendant preclusion of the third party action. His clear- choice to pursue state remedies, evidenced by a prior judgment for compensation benefits pursuant to the Louisiana Workmens Compensation Act, represents an election of the state scheme of recovery — including the one-year prescriptive period.

Having declined to pursue remedies under the federal or admiralty scheme, plaintiff may not now seek to apply particular provisions thereof, i. e., laches, to a state cause of action springing from La.R.S. 23:1101.

Accordingly, the trial court judgment is affirmed.

AFFIRMED


author: GARRISON, Judge.

text:
    James A. HERBERT v. DEPARTMENT OF POLICE. David C. HUBER v. DEPARTMENT OF POLICE.
    Nos. 9280, 9281.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 1978.
    James Burnett Aime, New Orleans, for appellants.
    Philip S. Brooks, City Atty., Michael A. Starks, Asst. City Atty., for appellee.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   GARRISON, Judge.

These consolidated cases are on appeal from the Civil Service Commission of the City of New Orleans. The appellants, James Herbert and David Huber, members of the New Orleans Police Department, were dismissed from the N.O.P.D. effective November 29,1976, as a result of numerous allegations of misconduct against them. Both appealed their dismissal to the Civil Service Commission and, upon their request, both cases were consolidated for trial because the allegations against both arose out of the same or similar incidents and events. After a hearing in front of a hearing examiner, the record was reviewed by the Commission, and the action of the Superintendent of Police in dismissing these officers was upheld.

Although numerous accusations were made against both Herbert and Huber, which were cited in the letter of dismissal from the Superintendent, clearly the most serious of these were the following:

(1) That Officer Herbert brutally beat Acosta Kittles while effecting an arrest, and that Officer Huber watched this brutality without trying to stop it:

(2) That Officer Herbert beat his former girlfriend and fiancee, Linda Long, and that Officer Huber was present during the beating and did nothing to stop it; and

(3) That Officer Herbert and Huber participated in the “blue flu” on Labor Day 1976, encouraging other officers .to do so, and threatening other officers who did not so participate.

Other allegations include the following:

(1) That Officers Herbert and Huber used the police car assigned to Herbert for a social outing to Tangipahoa Parish;

(2) That they obtained employment as security guards at their apartment complex in return for rent-free accommodations without permission of the department; and

(3) That Huber authored an anonymous letter to the Department reporting a rule infraction by another officer. (This complaint was admitted by Huber.)

Aside from the serious substance of some of these complaints, they would constitute violations of various departmental regulations, as set forth in the Superintendent’s letter of dismissal. Although technical or minor infractions of rules should not be the basis of dismissal from the police force, the cumulative effect of a variety of violations, when considered with more serious accusations, can hardly be ignored with regard to a determination as to whether dismissal from the police force should be upheld.

The facts of this case are, to a degree, somewhat confusing and unclear because of the conflicting nature of the testimony. Because of this, keeping in mind that the careers of two police officers are at stake here, the record of the Civil Service Commission inquiry was reviewed fully.

With regard to evaluating the testimony therein, however, two observations have to be made.

First, inasmuch as the hearings below were not criminal proceedings, the burden of proof as to the facts (although it clearly must be established by the appointing authority, La.Const. Art. 10, § 8(A) [1974]) need not be established beyond a reasonable doubt—as appellants have suggested in their argument. That is the case with regard not only to any one of the incidents charged but it is also the case with regard to the accumulation of incidents charged, so that even if it be concluded—for the sake of argument—that with regard to one or two of the incidents charged there is less than a preponderance of evidence, it is nevertheless possible to recognize the existence of sufficient evidence to support the remaining accumulated charges.

The second observation to be made, further with regard to the evaluation of evidence, is that the standards of appellate review of findings of fact in Civil Service Commission cases necessarily must be the same as those which exist with regard to cases arising in the trial courts. The reviewing court must give great weight to the factual conclusions of the trier of fact. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

With regard to the burden of proof as to the various allegations made against these officers, it suffices to say that our review of the record establishes that the appointing authority in this case has successfully carried that burden with regard to most, if not all, of the charges made. This being the case, it follows that it cannot be concluded that the trier of fact below has committed error.

In the absence of error, we conclude the dismissal of both appellants from the New Orleans Police Department must be upheld. Consequently, the judgment of the Commission, with regard to both appellants, is affirmed.


author: SAMUEL, Judge.

text:
    Succession of Geraldine Anita De La Parra ELROD.
    No. 9340.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 1978.
    Rehearing Denied Oct. 24, 1978.

      Gertler & Gertler, David Gertler and Judith W. Warshawsky, New Orleans, for plaintiff-appellant.
    Kiefer, Glorioso & Fleming, Robert F. Fleming, Jr., New Orleans, for defendant-appellee.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   SAMUEL, Judge.

The appellee, a judgment creditor of the decedent, filed a rule against the adminis-tratrix of this succession, Mrs. Le Ny, seeking to have the decedent’s (the decedent in this succession, Mrs. Elrod, is usually referred to hereinafter simply as “decedent”) interest in two certain pieces of immovable property listed as assets of the succession. After a hearing, there was judgment ordering those properties included in the succession inventory as belonging to the community of acquets and gains formerly existing between decedent and her deceased husband, Samuel Floyd Elrod. The adminis-tratrix has appealed from that judgment.

On May 27, 1971, appellee obtained judgment against decedent for $9,000 for professional services rendered by him as her attorney. Decedent died on November 24, 1973, and her succession was opened by her daughter, Mrs. Le Ny, who eventually qualified as administratrix.

The inventory complained of was filed on August 24, 1973. It omitted from the succession assets the two pieces of immovable property involved herein. These properties had been declared by this court to belong to the community which formerly existed between decedent and her pre-deceased husband. In this court administratrix makes no issue regarding appellee’s status as a succession creditor. As stated above, his claim for legal services rendered to the decedent was reduced to judgment on May 27, 1971, and no dispute now appears to exist regarding either the existence, the validity or the finality of that judgment.

The issue presented is whether the trial court acted correctly in ordering the decedent’s interest in the two pieces of immovable property listed as succession assets pursuant to the rule to show cause, but without taking testimony or hearing other evidence (sought to be offered by the administratrix) to determine whether title to an interest in the properties in question belonged to the decedent’s estate or personally to Mrs. Le Ny, the administratrix.

For a proper understanding of this appeal, prior facts and litigation involving the two properties must be discussed. Mr. El-rod had been married previously, and had one son from his first marriage. That son predeceased him, leaving children (Elrod’s grandchildren). Elrod’s second marriage to decedent resulted in the birth of one child, Ercilia Elrod Le Ny, the administratrix of this succession.

The properties in dispute were purchased by decedent during her marriage with El-rod. One property is located on St. Charles Avenue, and the other is on Carondelet Street, both in the City of New Orleans. Both acts of sale recite decedent as the purchaser of the respective properties and both acts contain a declaration by Mr. Elrod that the properties were purchased with decedent’s separate and paraphernal funds and that he had no interest therein. In 1959, prior to the death of either Mr. or Mrs. Elrod, decedent sold both properties to her daughter, Mrs. Le Ny. Both sales were passed before a notary public, both set forth the consideration and terms thereof, and both near the signatures of all parties, including that of Mr. Elrod.

Later, decedent and Mrs. Le Ny became involved in a personal dispute, and decedent filed a suit against her daughter to set aside the sales by the decedent to Mrs. Le Ny for lack of consideration. The trial court dismissed decedent’s suit on her daughter’s motion for summary judgment on the ground that, absent a counter latter, a vendor is bound by statements contained in her own authentic acts and cannot later controvert them. This judgment subsequently was affirmed on appeal.

On November 2, 1961, Mr. Elrod died. His succession was opened, and his grandchildren filed suit against Mrs. Elrod and Mrs. Le Ny, seeking to have the two properties which had been transferred from Mrs. Elrod (not yet deceased) to Mrs. Le Ny declared the property of the community which existed between decedent and their grandfather, so that they could take his share of the community property by representation of their father in their grandfather’s succession. In addition, the grandchildren claimed Mrs. Elrod’s sales of the properties to Mrs. Le Ny were simulated sales or disguised donations and therefore null and void.

In this suit by Mr. Elrod’s grandchildren, Mrs. Elrod was named as a defendant with Mrs. Le Ny. In that posture she was not bound by the technical evidentiary rules prohibiting her from contradicting the statements in her authentic acts which caused her own suit against her daughter to fail. Mrs. Elrod was allowed to testify the sales were made to her daughter without consideration and that the properties were purchased with community funds in spite of the contrary declaration by herself and Mr. Elrod in each document. This court held that testimony admissible in a dispute between the grandchildren of Mr. Elrod and his daughter by his second marriage, even though not admissible between Mrs. Elrod and her daughter to contradict the statements of Mrs. Elrod in her authentic acts. We further pointed out that the jurisprudence is replete with cases interpreting Civil Code Articles 2239, 2444 and 2480 to stand for the proposition that forced heirs are regarded as third persons when attacking an act of sale made by those from whom they inherit. Accordingly, we held that the properties had been acquired by and belonged to the community of acquets and gains formerly existing between Mr. Elrod and decedent and that the purported sales by decedent to Mrs. Le Ny were simulations and therefore null and void. That judgment has become final.

The basis of appellant’s argument is that the trial judge incorrectly applied the doctrine of res judicata or estoppel by judgment by granting appellee’s motion on the basis of this court’s final judgment in Succession of Elrod v. Elrod and by refusing to take evidence regarding decedent’s interest or lack thereof in the property at the time of her death. The factual portion of this argument may or may not be correct; the record before us fails to indicate one way or another. However, our appreciation of the facts revealed by the record makes this issue immaterial.

A succession representative is a fiduciary who must at all times act as a prudent administrator. The representative, being in possession of all succession property, must enforce all obligations owed to the succession, must preserve and protect the succession property, and must defend all actions brought against him to enforce claims against the succession. These duties are clearly set forth in the following articles of the Code of Civil Procedure (Article 3191 is quoted only in pertinent part):

“A succession representative is a fiduciary with respect to the succession, and shall have the duty of collecting, preserving, and managing the property of the succession in accordance with law. He shall act at all times as a prudent administrator, and shall be personally responsible for all damages resulting from his failure so to act.” LSA-C.C.P. Art. 3191.
“A succession representative shall be deemed to have possession of all property of the succession and shall enforce all obligations in its favor.” LSA-C.C.P. Art. 3211.
“A succession representative shall preserve, repair, maintain, and protect the property of the succession.” LSA-C.C.P. Art. 3221.
“The succession representative shall defend all actions brought against him to enforce claims against the succession, and in doing so may exercise all procedural rights available to a litigant.” LSA-C. C.P. Art. 3249.

The motion which resulted in the judgment here appealed from is directed and was heard contradictorily against Mrs. Le Ny only in her capacity as administra-trix. Under the facts and circumstances involved here, particularly the final judgment in Succession of Elrod v. Elrod, which annulled the sales of the properties by decedent to Mrs. Le Ny and held the properties belonged to the community of acquets and gains formerly existing between the decedent and Mr. Elrod, it was the duty of Mrs. Le Ny as administratrix to list the decedent’s interest in those properties as thus judicially decided and it was her further duty to protect and defend that status and listing. Instead of so acting, she has refused to list that interest as an asset of the succession and she is contesting such a listing, claiming that interest in the properties as her own.

This action is in direct conflict with her duties as the succession representative. The law prohibits her from refusing to make the requested listing and from making such a contest or claim on her own personal behalf and against the interest of the succession she represents; because she is the administratrix of the succession, she has no right to so refuse or so claim.

A secondary issue presented by the ad-ministratrix on this appeal is her claim that it is impossible to execute the trial court’s judgment regarding the Carondelet Street property because that property allegedly was sold by court approved private sale in the succession of Mr. Elrod. We say “allegedly” because the sale of the Carondelet Street property is not in evidence in this proceeding. As the record does not contain any evidence showing sale of that property, we cannot consider this secondary issue.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . The services were rendered in Elrod v. Le Ny, La.App., 193 So.2d 299, to which reference will be made later in this opinion.

      . Succession of Elrod v. Elrod, La.App., 218 So.2d 83. This decision also will be discussed later in this opinion.

      . Elrod v. Le Ny, supra, note 1; see C.C. Arts. 2236, 2237, and 2276. Appellee’s claim for attorney’s fees arose from this suit.

      . Succession of Elrod v. Elrod, supra, note 2.

      . Supra, note 2.

      . We are aware of what this court said in the case of In re Mulqueeny’s Succession, La.App., 156 So.2d 317, but that case is distinguishable. In pertinent part that case involved a contest between the executrix and a forced heir. The heir obtained a court order directing the executrix to return certain homestead accounts to the succession, which accounts the executrix claimed as her own. The judgment in Mul-queeny was that the executrix had properly made the transfer. However, the decedent’s last will had specifically left those homestead accounts or stock to the executrix and thus the executrix was only performing one of the duties of her office as specifically stated in C.C. Art. 1672, requiring that the testamentary executrix “see the testament faithfully executed.”