author: LANDRY, Judge. PER CURIAM.

text:
    Frances Joann Hill HIGGINS and Phillip Higgins v. Matthew G. JOHNSON et al.
    No. 11395.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearings Denied Aug. 24, 1977.
    Writs Refused Oct. 14, 1977.

      Elliott W. Atkinson, Jr., Baton Rouge, for plaintiff-appellant Frances Joann (Hill) Higgins.
    Robert J. Vandaworker, Baton Rouge, for defendant-appellee Matthew G. Johnson et al.
    Joseph F. Keogh, Baton Rouge, for defendant-appellee Home Ins. Co.
    Before LANDRY, EDWARDS and COLE, JJ.
   LANDRY, Judge.

Plaintiffs (Appellants), husband and wife, appeal from a jury verdict judgment rejecting their claims in tort against defendants Chart House, Inc. (Chart House), holder of the Burger King franchise for the State of Louisiana; Matthew G. Johnson (Johnson), employee of Chart House; Liberty Mutual Insurance Company (Liberty); and, Home Insurance Company (Home), insurers of Chart House. Appellants’ demands arise from an intersectional automobile collision in which a left turning vehicle being driven by Mrs. Higgins was struck by a truck belonging to Chart House and being operated by Johnson within the scope and during the course of his employment. Mrs. Higgins sues for serious personal injuries resulting in permanent partial disability and for the death of her guest passenger mother, Jessie Hill (Decedent), including funeral expenses. Mr. Higgins sues for special damages for the loss of his vehicle, medical expense and funeral expenses for Mrs. Hill. We reverse and render judgment for Appellants.

The accident occurred at about 6:30 A.M., January 5, 1974, at the intersection of Airline Highway (a major four lane highway) and Beechwood Drive (a minor two lane roadway) in the City of Baton Rouge. Airline at that point runs east and west; Beechwood runs north to south, intersecting Airline at somewhat of a sharp angle. The east and westbound lanes of Airline are each IOV2 feet wide. The opposing lanes are separated by a wide neutral ground which has been recessed to form six foot wide “islands” on each side of the intersection, thus creating a third lane for east and westbound motorists desiring to turn left to proceed north or south from Airline onto Beechwood. These left turn lanes commence about 100-150 feet from the intersection and are 10 feet wide.

The intersection is controlled by ten traffic signals operating in sequence as follows: Two lights control traffic on the through eastbound lanes of Airline and two control through westbound Airline vehicles; one controls left turns for eastbound vehicles turning north onto Beechwood; one governs left turns for westbound motorists turning south onto Beechwood; two control Beechwood north of Airline; and two control Beechwood south of the intersection. The signals are designed and coordinated to permit traffic movement on a demand flow basis, favoring Airline. The left turn lanes on Airline and all lanes of Beechwood are each provided with a demand switch which is activated when a vehicle crosses a pressure plate or treadle installed in the roadbed. In the left turn lanes of Airline, these treadles are located fifty-five feet from the end of each island. When no demands are made from either of the left turn Airline lanes or from Beechwood traffic, the lights remain favorable for Airline traffic in both directions. If a demand is made on Beechwood, the flow switches from Airline to Beechwood when the programmed cycle for Airline is completed, and, if no other demands intervene, the flow reverts to Airline. When, however, there is a demand from the left turn lanes of Airline but no demand on Beechwood, the- flow signal of Airline turns to amber or caution, then red or stop for east and westbound vehicles on Airline and the green or left turn arrows activate, thus affording protected left turns by Airline traffic. A demand on Beechwood with simultaneous demands by both left turn Airline lanes results in the green or flow signals for Airline going to red or stop; the signal for Beechwood becomes green, then amber, leaves the green for Beechwood, activates both left turn arrows on Airline with the signals for east and westbound Airline traffic remaining red. An Airline eastbound left turning vehicle activates the treadle to obtain a green left turn arrow with a simultaneous red or stop signal for westbound Airline traffic. During such a sequence, however, eastbound through traffic on Airline has a green signal unless a westbound vehicle activates the treadle for a left turn south onto Beechwood. The length of the green or flow signals for both east and westbound left turns from Airline or for Beechwood traffic crossing Airline in either direction depends on the number of cars crossing each treadle. The amber or caution signal, in either direction, is approximately four seconds.

Mrs. Higgins was proceeding easterly on Airline driving a white 1964 Chevrolet Be-laire. She'was accompanied by her mother who occupied the right front seat of the car. Johnson, traveling west on Airline, was driving a ten wheel, fourteen foot Burger King van. As Mrs. Higgins was turning left across the westbound Airline lanes and heading northeast at a rather sharp angle, her car was struck on its right front door by the right front of defendant’s truck. Mrs. Higgins contends she commenced her left turn on a favorable green arrow and was struck by defendant’s vehicle before she could complete her turn.

The following issues are presented for resolution: (1) Whether the trial court erred in its instruction to the jury as to the legal consequences of a motorist entering an intersection immediately following a light change without allowing sufficient time for preempting cross traffic to clear; (2) Whether the trial court erred in its instruction to the jury concerning the legal consequences of a motorist’s failure to look ahead and see what he can see or could have seen by the exercise of due diligence; (3) Refusal of the trial court to give requested jury instruction regarding application of the doctrine of last clear chance; and, (4) Whether the jury verdict was patently erroneous as a matter of fact.

Mrs. Higgins was on her way to a beauty parlor for standing Saturday appointments she and her mother had had for four years. She customarily traveled Airline to reach Beechwood and was familiar with the intersection. The weather afforded good visibility despite the existence of a slight haze. All vehicles on the road were using their headlights. As Mrs. Higgins approached the intersection, she pulled into the eastbound left turn lane and stopped because the light was red. While first in line waiting for a green turn arrow, she saw a truck parked facing west on the north shoulder of the opposing westbound lanes and also noted an officer standing beside the truck. Next, she noticed the truck proceed westbound through the intersection. Following this, the police car left the shoulder of the road, crossed the westbound lanes of Airline, and entered the westbound left turn lane behind a pickup truck already in that lane. She then observed the lights turn red for through westbound Airline lanes; the reflection of an amber light on Beechwood south or to her right; and a left turn arrow on the light controlling her lane. She proceeded to make her turn and has no recollection of what ensued until she was being attended later by a police officer after her vehicle came to rest. She did not see the westbound truck. At the scene, she told the investigating officer she turned on a green arrow at which time the signal was green for through eastbound Airline cars. In a statement given four days after the accident, she related that when she stopped in the left turn lane, the lights were green for through eastbound Airline traffic, the through light turned to amber, then red, then immediately back to green and her left turn arrow appeared. Defendants maintain this latter sequence is impossible except for a malfunction.

Johnson had been traveling westerly in the outside lane of Airline until he reached a point about one block from the intersection. He then switched to the inside lane, traveling at about forty miles per hour. Observing that the light was red for through westbound traffic, he shifted from sixth to second gear and slowed to a speed of about five miles per hour in anticipation of the light turning green. While he was not concentrating on the light, he frankly admitted he was definitely looking at the light and controlling his speed to avoid coming to a complete stop, but he could have stopped before entering the intersection had not the light turned green. He did not know when the light turned green, neither did he see a caution signal. When he was about fifty feet from the intersection, the light turned green for westbound Airline traffic. He then shifted to third gear and entered the intersection at 20 to 25 miles per hour. He first saw the Higgins car when it was in the center of his lane of travel and at which time it was only about five feet away. He did not observe any other cars either traveling or stopped in the eastbound lanes of Airline. No vehicle was ahead of him in the inside westbound lane of Airline. He did, however, note several cars to his right in the outside westbound lane of Airline and also noted the police car stopped in westbound left turn lane to his left. When he saw the Higgins car turning across his path, it was too late for him to take evasive action.

The accident was investigated by Officers Malcolm Kirk Devall and Charles Raymond Wallace, who occupied the aforementioned police car, and who were in route to report to a nearby station to commence their daily shift. After ticketing a vehicle, which they stopped about seventy-five to one hundred yards east of the intersection, they entered the left turn westbound lane with Officer Devall driving. Devall intended to make a U turn to proceed east along Airline. He pulled into the left turn lane behind a pickup truck waiting for a left turn signal. Officer Devall noted a green signal for westbound Airline traffic and a red signal for left turn vehicles traveling west. While waiting for a go signal he noted, out of the corner of his eye, a large truck inching up on his right toward the intersection. On the green left turn signal, the truck ahead made a left turn and he followed. After negotiating about three-quarters of his left turn, he heard a crash behind him. Looking in his rear view mirror, he noted that cars in the westbound Airline lane were starting to move into the intersection. He then backed his car across the westbound lanes to protect the accident from traffic. He did not know what color light faced through westbound Airline traffic when his green arrow appeared. When he began his turn, he saw no oncoming through traffic moving east on Airline.

Devall stated that Johnson told him Mrs. Higgins ran a red light. Mrs. Higgins explained that she had a green left turn arrow when she began her turn from a stopped position, and that when she made her turn, eastbound traffic on Airline had a green signal. He found that the collision occurred in the center of the inside westbound lane of Airline at a point eighteen feet west of the end of the westbound island and fifteen feet east of the end of the eastbound island. He also found the right bumper of the truck struck the right front door of the Higgins car, knocking that vehicle into the outside westbound lane where it came to rest. The truck came to rest in the inside westbound lane in which it had been traveling.

According to Officer Wallace, his vehicle was faced with a red turn signal as it waited in the left turn lane, at which time westbound traffic on Airline had a green signal. Just before his left turn signal turned to green, he noted Mrs. Higgins’ vehicle in the opposing left turn lane. As the police car was negotiating its left turn Wallace noted, out of the corner of his eye, a large truck coming up on his right, at which time the signals for through westbound Airline traffic were red. He was not certain, however, whether the westbound lights of Airline were red when the police car entered the intersection.

Frazier W. Mann, proceeding easterly on Airline, stopped his vehicle in the right outside lane behind either one or two cars already stopped in that lane for a red light. When the lights turned green for westbound vehicles, he noted a truck in the inside lane abreast of his own vehicle, about 20 feet from and moving toward the intersection, at which time he saw the Higgins car turning left into the intersection. He observed no vehicles ahead of the truck in the inside westbound lane. He sensed that a collision was inevitable and so exclaimed to his guest passenger son. He also stated that when the truck was passing on his left, none of the cars in the outside lane moved until after the accident, when the police directed traffic down an adjacent service road. Mann estimated the speed of defendant’s truck at 30 to 35 miles per hour at the moment of impact.

Robert Wall, owner of a service station situated at the southeast corner of the intersection, was seated behind a desk in his glass enclosed office, when the accident occurred. At the sound of impact, he looked up and noted that all lights facing him were red, namely those controlling westbound traffic on Airline and northbound vehicles on Beechwood. He was not certain as to the color of the signal for left turn traffic on Beechwood.

Appellant’s theory of the case is that Mrs. Higgins commenced her turn on a green or go arrow signal at a time when the signals were red or stop for east and westbound through traffic on Airline, and that Johnson ran a red light. Alternatively, Appellants contend Mrs. Higgins preempted the intersection by entering on a green light which changed to red after her entry, and that Johnson subsequently entered on a green light, but failed to yield to her preemption. In the further alternative, Appellants plead last clear chance.

Defendants urge that Mrs. Higgins entered the intersection on a red light. They so maintain because the record shows that the green arrows for east and westbound left turns on Airline do not necessarily activate simultaneously in all instances. Defendants theorize that Mrs. Higgins saw the opposing pickup truck and police car turning left, and assumed she also had a green turn arrow, but in fact her light was red.

The jury was thus presented totally conflicting versions regarding pertinent facts determinative of the outcome of this litigation. Appellants concede the general rule that the factual determinations of a jury are not to be disturbed on appeal save in case of manifest error. Appellants maintain, however, certain erroneous rulings by the trial court, and that the court’s failure to give certain requested instructions confused the jury, and prevented the jury’s consideration of the evidence in the light of principles of law applicable herein.

First, Appellants urge the trial court instructed the jury improperly concerning the legal consequences of a motorist’s failure to allow preempting traffic to proceed safely through a controlled intersection. The statutory duty involved is set forth in LSA-R.S. 32:232, which pertinently provides:

“Whenever traffic is controlled by traffic-control signals exhibiting the words ‘Go’, ‘Caution’, or ‘Stop’, or exhibiting different colored lights successively at a time, or with arrows, the following colors only shall be used and said terms and lights shall indicate and apply to drivers of vehicles and pedestrians as follows: (1) GREEN alone, or GO:
(a) Vehicular traffic facing the signal may proceed straight through or turn right or left unless a sign at such place prohibits either such turn. But vehicular traffic, including vehicles turning right or left, shall yield the right of way to other vehicles and to pedestrians lawfully within the intersection or an adjacent cross-walk at the time such signal is exhibited.”

The trial court read the foregoing statute to the jury and added:

“Another part of the law says: ‘A motorist’s duty to look ahead and observe never ceases and a motorist must see what he can see and in legal contemplation should have seen with the exercise of due diligence.’
“The law also says: ‘The rule is that a motorist must not enter an intersection after a red light turns to green until sufficient time is allowed for cross traffic already legally in the intersection to clear. Preemption of an intersection entitling a motorist to proceed therein and to negotiate the same means an entry into the intersection with the opportunity of clearing the same without obstruction of the path of other vehicles operating under normal and reasonable circumstances and conditions.’ ”

Appellants concede the trial court gave the jury the proper basic legal principle governing preemption. On authority of Seaton v. Widlitze, 258 So.2d 390 (La.App. 4th Cir. 1972); Bettis v. Pauisen-Webber Cordage Corp., 217 So.2d 662 (La.App. 4th Cir. 1969); and Close v. Lumbermen’s Mutual Casualty Company, 207 So.2d 571 (La. App. 3rd Cir. 1968), Appellants argue, however, the trial court erroneously declined the following requested instruction, which was essential to a full jury understanding of the legal duty of care owed by a motorist entering an intersection controlled by a traffic signal, to-wit:

“Our settled jurisprudence is that where traffic is controlled by an electric semaphore light, although a motorist generally may rely on the assumption that others will obey the traffic signals, he is guilty of negligence if he proceeds into an intersection immediately after a red light turns to green without allowing a reasonably sufficient time for vehicles in the intersection to clear the intersection, even if such vehicles are in the intersection in violation of the light.”

As a general rule, when an electric semaphore signal turns green, a motorist crossing an intersection is no longer obligated to observe traffic facing a red or stop signal, and becomes obligated to observe traffic moving in the same or the opposite direction. He may rely on the assumption that other motorists will obey the traffic signal and stop. Bourgeois v. Francois, 245 La. 875, 161 So.2d 750 (1964); Central National Insurance Company of Omaha v. Bardsley, 256 So.2d 734 (La.App. 1st Cir. 1972); Hartford Accident and Indemnity Company v. Finley, 282 So.2d 830 (La.App. 1st Cir. 1973). The foregoing rule is not, however, without its exception. Our jurisprudence has repeatedly held that where a motorist on a favored street could have avoided an accident by the exercise of the slightest degree of care and observation, he will be deemed guilty of negligence constituting the proximate cause of a resulting accident. Bourgeois v. Francois, above; Rome v. S. D’Antoni, Inc., 246 So.2d 331 (La.App. 1st Cir. 1971).

Appellants complain that the foregoing instruction of the trial court, concerning a motorist’s failure to see what could or should have been observed, was insufficient in that it did not include the legal consequences of such failure. Appellants maintain the trial court erred in failing to give the following requested charge which would have cleared this alleged deficiency:

“A motorist’s duty to look ahead and observe never ceases, and a motorist must see what he can see and in legal contemplation does see, and his failure to see what he could have seen by exercising due diligence does not absolve him from liability and resulting injuries to others.”

We find Appellants’ position well taken. In disposing of this precise issue our Supreme Court, in Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975) stated:

“[Tjhere could hardly have been any more important legal principle for the consideration of the jury than that defendant’s failure to see what he could have seen by the exercise of due diligence does not absolve him from liability. Indeed, this is the very principle of law which the jury was required to apply to whatever facts were established by the evidence. But the jury could not have applied that principle to the facts because it was not a part of the judge’s charge to them.”

The adequacy of jury instructions by a trial court must be determined in the light of the instruction as a whole. Where issues of negligence are involved and the instructions given with regard thereto are found to be confusing and misleading, or to have omitted an essential principle or element, such instructions are insufficient and constitute legal error. LSA-C.C.P. Article 1792; Gonzales v. Xerox Corporation, above; Gros v. Louisiana Power and Light Company, 288 So.2d 364 (La.App. 4th Cir. 1974). The foregoing rule is based on the principle that a trial jury must accept the law as given it by the trial court, and apply that law to the facts of the case as the jury finds them. Litigants have the right to have the evidence weighed in the light of proper jury instructions; therefore such instructions will be deemed inadequate when there is no assurance that factual findings were made pursuant to a clear understanding of applicable legal principles. Bienvenu v. Angelle, 254 La. 182, 223 So.2d 140 (La.1969); Reeves v. Gulf States Utilities Co., 312 So.2d 118 (La.App. 1st Cir. 1975).

The jury heard evidence that the Higgins car was negotiating the intersection when the truck entered the intersection, and that the truck driver did not see the Higgins car until it was five feet away. Given these circumstances to weigh, along with conflicting testimony, the jury was not given proper instruction as to the consequences of the failure of the truck driver to observe what he could or should have observed by the exercise of due diligence.

Neither was the jury afforded opportunity to weigh the facts in the light of the rule that a motorist on a favored street will be deemed guilty of actionable negligence where, by the exercise of the slightest degree of care and observation, he could have avoided the accident. Bourgeois v. Francois, above.

Appellate review in civil cases extends to fact as well as law. La.Const.1974, Article 5, Section 10(B). In considering a jury verdict judgment rendered pursuant to erroneous jury instruction by the trial court, appellate review tends to involve trial de novo for all practical purposes. In such cases, the appellate court is, in effect, a court of original jurisdiction. Bienvenu v. Angelle, above. We deem the clear import of Angelle, above, and Gonzales, above, to be that, in cases of this nature, the manifest error rule proclaimed in Canter v. Koehring Company, 283 So.2d 716 (La.1973) is inapplicable, and we so hold. Accordingly, we reach our own factual determinations without regard to the manifest error doctrine.

We find as a fact that Mrs. Higgins entered the intersection on a favorable green arrow and at a time when the signal light for westbound Airline through traffic was red. We also find Mrs. Higgins was in error when she stated four days following the accident that through westbound Airline traffic had a green signal when she began her turn on a green arrow. We so find because: (1) such a sequence is highly improbable although there is some evidence that this combination of signals could happen; (2) Officer Devall proceeded into the intersection on a green arrow while Mrs. Higgins was turning left from the opposite direction, a programmed sequence; and (3) Mr. Mann, a disinterested witness, testified Mrs. Higgins entered the intersection before the truck and that the truck got a green light just before it entered. We also find that Mrs. Higgins’ favorable signal turned to red while she was in the process of negotiating the intersection; that she was lawfully in the intersection and had the right to complete her turn. We find, additionally, that the difference between the speed of the Higgins car, which moved from a standing position, and that of the truck, which did not stop because of the driver’s anticipation of a light change, establishes beyond doubt that Mrs. Higgins’ green turn signal appeared before Johnson got the green signal. These circumstances explain the fact that Mrs. Higgins, traveling at a slower speed, proceeded only fifteen feet into the intersection before the point of impact, whereas the truck was eighteen feet into the intersection at the point of impact. We find Mrs. Higgins free of negligence.

We conclude Johnson was not maintaining that degree of care and lookout required of a motorist entering an intersection from a moving position immediately following change of a light from red to green. Johnson’s own testimony establishes beyond question that he was more concerned with entering the intersection on a favorable light, without stopping his vehicle, than with maintaining the slightest degree of care regarding a motorist who may have been in the intersection. That Johnson did not see an oncoming vehicle clearly in sight convinces us of his failure to exercise the slightest degree of care.

Tort liability is based on duty to exercise care, the violation of which produces damages. LSA-C.C. Article 2315; Pierre v. Allstate Insurance Co., 257 La. 471, 242 So.2d 821 (1970). LSA-R.S. 32:232 purports to protect motorists who preempt an intersection. Johnson’s violation of the statute was a substantial factor without which the accident would not have occurred. It resulted in the damages upon which this action is based. His failure to see what he could and should have seen, by the exercise of the degree of care required, created the risk which caused Appellants’ damages.

Mrs. Hill and Mrs. Higgins were both taken to a hospital at about 7:00 A.M., approximately 30 minutes after the accident. Mrs. Hill was attended by Dr. C. S. McConnell who found her in shock. She remained so until shortly after 12:00 noon when she died. She sustained fracture of the jaw on both sides, fracture of the clavicle, fracture of the fourth, fifth and sixth ribs on the right side, multiple fractures of the pelvic bone, a bruised scalp and severe scalp lacerations. She did not respond to shock treatment. She was given pain medication. She remained conscious and in pain until the last stages of her ordeal. Probable cause of death was listed as cardiac arrest induced by shock. Mrs. Hill, 71 years of age, had recently undergone successful gall bladder surgery from which she had recovered completely. Her personal physician considered her to be in general good health and estimated she could have lived an additional 10 years.

We value Mrs. Hill’s survival claim at $12,000.00 and award Mrs. Higgins one third of said amount or $4,000.00 for this item of damages, pursuant to a stipulation between the parties.

Mrs. Higgins and her mother were exceptionally close. Decedent lived with her daughter prior to the daughter’s marriage, and lived with Mrs. Higgins and her husband thereafter. As a member of the household, Decedent did most of the housework and cooked the family meals while Mrs. Higgins and her husband worked. Decedent accompanied her daughter constantly. We find Mrs. Higgins entitled to $15,-000.00 for the loss of her mother.

Mrs. Higgins received initial emergency treatment consisting only of suturing of a laceration behind her right ear. The sutures were removed by her family physician, Dr. Herschel Dean, on January 11, 1974. On January 18, 1974, she returned to Dr. Dean complaining of neck discomfort. Dr. Dean prescribed muscle relaxants and pain medication. Since x-rays taken on the date of the accident revealed no fracture of the neck, Dr. Dean diagnosed the patient’s condition as acute cervical strain. Dr. Dean saw Mrs. Higgins January 25, February 7, March 1, September 6, 1974, and March 10, 1975, for neck pain which had gradually worsened. He referred her to Dr. Francis McMains, orthopedic surgeon, whom Mrs. Higgins first visited on December 11, 1974.

Dr. McMains ordered planigrams which he interpreted as revealing a healed fracture through the facet of the lower set of C-5 on the left side. Examination revealed lateral rotation of the neck to the left to be practically zero and right rotation approximately 50% normal. He again saw Mrs. Higgins on July 9, 1975, and September 15, 1975, and found her range of neck motion unchanged. Dr. McMains found osteoar-thritic degenerative changes in the lower facets of the patient’s cervical spine. Because of this condition, she suffers considerable pain and discomfort upon prolonged sitting or holding her head in one position. Dr. McMains considered this condition has resulted in a 25 to 30% total bodily disability which he deems permanent, inasmuch as Mrs. Higgins has shown no improvement since her first visit. He attributed this condition to the neck fracture which he found to have resulted from the accident.

Upon Dr. Dean’s advice, Mrs. Higgins returned to her job as head cashier for a large chain store. Because of pain and difficulty with her neck, she could not work her usual full 40 hour week. She was demoted because her duties as cashier required bodily movements she could no longer achieve without considerable pain and discomfort. She cannot turn her head left to any degree, except by turning her entire body or turning from the waist. For such injuries, including past, present and future pain, suffering and inconvenience, we find an award of $40,000.00 to be adequate.

Mrs. Higgins’ loss of earnings from the date of the accident until May, 1976 were computed at $5,032.12 by William P. Culbertson, Professor of Economics, L.S.U. His calculations were based on Mrs. Higgins’ hourly wages during the period and the number of hours missed due to disability. Culbertson also computed Mrs. Higgins’ loss of future wages on a 52 week year, allowing for an annual two week vacation and employing her last hourly wage of $5.30. He adjusted his figures to allow a 7½% annual increase in wages and then utilized a 6% discount. He thus found Mrs. Higgins, forty-three years of age, would earn a total of $286,193.00 total wages if employed until age 65, without any time lost for disability.

In awarding Mrs. Higgins loss of future earnings, we consider she has a permanent twenty-five to thirty per cent disability of the body as a whole. Such an award, however, cannot be determined with mathematical certainty and sound judicial discretion must be exercised after all pertinent factors are considered and weighed. McFarland v. Illinois Central Railroad Co., 241 La. 15, 127 So.2d 183 (1961); Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971). These include, among others, plaintiff’s condition prior to injury, work record, previous earnings and probable future earnings had the disabling injury not occurred. Viator v. Gilbert, 253 La. 81, 216 So.2d 821 (1968). We find an award of $45,000.00 will compensate Mrs. Higgins adequately for loss of futurq earnings.

We also find Appellants are jointly entitled to recover $1,302.00 funeral expenses for Mrs. Hill and that Phillip Higgins, individually, is entitled to judgment in the sum of $300.00 for the loss of his automobile and $640.00 medical expense.

Expert witness fees for Drs. Dean and McConnell are fixed in the sum of $100.00 each, and that of Dr. McMains in the amount of $150.00 and taxed as costs herein. Expert witness fee for William P. Culbertson is hereby fixed in the sum of $300.00. No expert witness fee is due Larry Oubre, called by Appellants, because the witness was not qualified as an expert.

IT IS ORDERED, ADJUDGED AND DECREED THAT:

(1) The judgment rejecting Appellants’ demands is reversed and set aside;
(2) Judgment is rendered herein in favor of Phillip and Frances Joann Hill Higgins, against defendants Chart House, Johnson, Liberty and Home, in solido, in the sum of $1,302.00;
(3) Judgment is rendered in favor of Phillip Higgins against the above named defendants, in solido, in the sum of $940.00;
(4) Judgment is rendered herein in favor of Frances Joann Hill Higgins against the above named defendants, in solido, in the sum of $109,032.12;
(5) Judgment is rendered herein awarding Appellants legal interests on all awards from date of judicial demand until paid;
(6) Expert witness fees for Drs. McConnell and Dean are fixed in the sum of $100.00 each and that of Dr. McMains fixed at $150.00 and taxed as costs herein;
(7) Expert witness fee for William P. Culbertson is fixed in the sum of $300.00 and taxed as costs herein; and
(8) The above named defendants are cast for all costs of these proceedings.

Reversed and rendered.

ON APPLICATION FOR REHEARING

PER CURIAM.

All defendants-appellees have applied for rehearing alleging errors in our findings of fact and application of law. Appellee, Home Insurance Company, excess insurer of Appellees Chart House, Inc., complains of our holding it liable in solido with the primary insurer Liberty Mutual Insurance Company.

In our original opinion we stated that the witness Mann was traveling east on Airline whereas he was in fact proceeding west. We also found that Johnson should have observed a yellow or caution light before entering the intersection. There is nothing in the record to support the finding that a yellow or caution light was part of the signal sequence from a red to green change of light for through traffic on Airline. We quoted Mrs. Higgins as saying that when she entered the intersection, through westbound traffic on Airline had a green signal. She was actually referring to the through signal for eastbound vehicles.

None of these erroneous findings affect the outcome of this litigation. We reiterate the essence of our decree, namely, Mrs. Higgins entered the intersection on a favorable signal and defendant Johnson also entered on a go signal. Johnson, however, failed to exercise even the slightest degree of care toward a motorist lawfully in the intersection. His negligence in this respect was the sole cause of the accident.

Our more careful review of the record discloses that Home Insurance Company is an excess insurer whose exposure does not attach to any judgment less than $200,-000.00. Accordingly, the judgment is amended to release Home Insurance Company from all liability herein. In all other respects the judgment is affirmed.

Rehearings by Appellees denied.


source: Caselaw Access Project

author: LANDRY, Judge.

license: Public Domain

text:
    Rachael Hotard THOMASON v. Hugh Montgomery THOMASON, III.
    No. 11396.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Granted Oct. 26, 1977.

      L. B. Ponder, Jr., Amite, for Rachael Ho-tard Thomason, plaintiff-appellant.
    Robert W. Troyer, Ponchatoula, for Hugh Montgomery Thomason, III, defendant-ap-pellee.
    Before LANDRY, EDWARDS and COLE, JJ.
   LANDRY, Judge.

Plaintiff (Appellant) appeals from judgment dismissing her suit for divorce on the ground of conviction of spouse, defendant (Appellee), of a felony, and his sentence to imprisonment at hard labor in the state penitentiary. We affirm.

Two questions are presented herein: (1) Whether a reconventional demand for divorce on ground of adultery is incidental to a main demand for divorce on ground of conviction of a felony; and, (2) Whether the trial court erred in rejecting exceptions and objections to Appellee’s reconventional demand for divorce for alleged adultery, and allowing testimony thereon.

On July 1, 1976, Appellant filed suit for divorce on the ground that Appellee had pled guilty to a charge of simple robbery and was sentenced to imprisonment in the state penitentiary for a term of five years. Appellee answered the suit, admitting the plea of guilty to a felony and the sentence of imprisonment, and reconvened for divorce on the ground of adultery. Appellant filed exceptions of no right and no cause of action in opposition to Appellee’s reconven-tional demand, based on the premise that the reconventional demand was not incidental to Appellant’s main demand. The trial court overruled said exceptions.

The parties were married on September 23,1973, of which union one child was born. On January 30, 1975, Appellee was arraigned on a charge of armed robbery. Appellant pled guilty to the charge on July 1, 1976, and was sentenced as hereinabove noted.

At the trial, Appellant objected to introduction of evidence to establish her alleged adultery either as a defense to her main demand or in proof of Appellee’s reconven-tional demand. Over Appellant’s objection, the trial court allowed proof of the alleged adultery. In this connection, the record contains Appellant’s admission that she presently has two children, the younger of which is not the child of Appellee, but rather the child of another man with whom Appellant has been residing as man and wife since September, 1975. Appellant’s living in adultery is also attested to by Appellant’s mother. The trial court found the parties mutually at fault, and dismissed both the main and reconventional demand.

Appellant contends the reconven-tional demand filed herein for divorce on ground of adultery should have been dismissed because it is not incidental to the main demand. This same issue was before us in Kinchen v. Kinchen, 147 So.2d 761 (La.App. 1st Cir. 1962), in which the main demand for divorce on ground of living separate and apart for more than two years was opposed by a reconventional demand for divorce on ground of adultery. The trial court rejected defendant’s reconven-tional demand in reliance on Dowie v. Becker, 149 La. 160, 88 So. 777 (1921), which authority was grounded on former Code of Practice Article 375. We held, in Kinchen, above, that LSA-C.C.P. Article 1061 now permits any reconventional demand in opposition to the main demand, regardless of connexity between the principal and recon-ventional demands. We so concluded on finding that Article 1061, above, expressly overruled former Code of Practice Article 375. On this premise, we remanded Kin-chen, above, to the trial court for introduction of evidence in proof of defendant’s reconventional demand. We adhere to our ruling in Kinchen that, pursuant to Article 1061, above, a reconventional demand need bear no relation to the main demand.

Relying on McCaa v. McCaa, 163 So.2d 434 (La.App. 2nd Cir. 1964), and Perry v. Perry, 207 So.2d 819 (La.App. 1st Cir. 1968), Appellant also contends that once her main demand was presented and the evidence showed she should prevail thereon, judgment should have been rendered in her favor, and evidence in support of the recon-ventional demand should not have been received.

The main demand in McCaa, above, was for divorce on ground of adultery. Defendant reconvened for divorce on ground of two years voluntary separation. Plaintiff produced proof of adultery and was granted a divorce on that ground. On appeal, it was held the trial court did not err, under the circumstances, in allowing the main demand to prevail over the reconventional demand.

In disposing of this issue, we note Torto-rich v. Maestri, 146 La. 124, 83 So. 431 (1919), in which the Supreme Court considered a reconventional demand for divorce on ground of adultery in opposition to an action pursuant to Act 25 of 1898 (presently LSA-R.S. 9:302), which allowed divorce after one year of judicial separation, (two years if suit brought by party against whom the separation was granted). In awarding plaintiff divorce on the main demand, the court noted the statute was enacted for the sole benefit of the “sinner” against whom judgment of separation was rendered. The court also held that in such cases, the only relevant facts are that a judgment of separation has been granted; that two years elapsed from the date of such judgment; and, that there has been no reconciliation. The court noted further that while such a judgment based on said statute (now LSA-R.S. 9:302) was proper, there might be instances where, “in view of the relation of the reconventional demand to the main demand, it would be unwise . to give judgment upon the one separately from the other . . . We find this latter observation peculiarly applicable to a case of the nature before us, namely, an action in which the main demand for divorce is on one of the grounds specified in LSA-C.C. Article 139, other than voluntary separation.

Predicated on Tortorich, above, our jurisprudence has established the rule that a party suing for divorce on the ground of voluntary living apart, as provided in LSA-R.S. 9:301, will be granted a divorce, regardless of which spouse is at fault in causing the separation. This however, does not preclude adjudication of fault in such proceedings in the event alimony is sought or might be sought. LSA-C.C. Article 160; Lee v. Lee, 343 So.2d 425 (La.App. 3rd Cir. 1977); Jones v. Floyd, 154 So.2d 604 (La.App. 3rd Cir. 1963). When, however, a party seeks divorce following judgment of separation in which fault has been judicially determined, the issue of fault may not be relitigated. LSA-R.S. 9:302; Fulmer v. Fulmer, 301 So.2d 622 (La.1974).

As a general rule, divorce is the remedy available to the offended party against the offender, and for those substantially without fault. Where both litigants are equally at fault, our doctrine of comparative rectitude dictates that neither shall prevail. Mutual, equal fault which bars relief to either party, means degrees of fault of similar nature and gravity, and proportional to the extent as to render it difficult to ascertain which party is principally at fault. Eals v. Swan, 221 La. 329, 59 So.2d 409 (1952).

Here the issue of adultery was first presented in defense to the main demand for divorce on the ground of defendant’s sentence to imprisonment in the state penitentiary. The trial court properly received evidence of the alleged adultery in keeping with our comparative rectitude doctrine.

Our jurisprudence recognizes that, in determining the degree of fault where fault is a viable issue, adultery is a greater fault. See J. F. C. v. M. E., 6 Rob. 135 (1843); Abshire v. Hanks, 119 La. 425, 44 So. 186 (1907).

Appellee has, however, failed to take an appeal herein or answer Appellant’s appeal. Accordingly, the judgment dismissing his reconventional demand is res judicata. Appellant, having committed adultery, may not prevail merely because she was first to reach the courthouse and seek divorce because of her spouse being sentenced to the penitentiary.

The judgment of the trial court is affirmed at Appellant’s cost.

Affirmed.


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    In the Matter of the Succession of Marie Scioneaux BASKIN.
    No. 11399.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Refused Oct. 26, 1977.

      Anthony J. Clesi, Jr., Baton Rouge, plaintiff-in-rule-appellant Elphedge Joseph Scioneaux, Jr.
    Roland C. Kizer, Baton Rouge, defendant-in-rule-appellee Alfred J. Loupe.
    Before LANDRY, SARTAIN and EDWARDS, JJ.
   LANDRY, Judge.

Elphedge Joseph Scioneaux, Jr. (Appellant), appeals from judgment sustaining an exception of no right of action filed by Alfred J. Loup, Jr., Executor of the estate of Marie Scioneaux Baskin (Testatrix), in opposition to Appellant’s petition for recognition as an alleged legatee of Testatrix. The question presented is one of identity, namely, whether Appellant is the “E. J. Scioneaux” named in Testatrix’s will. The trial court held he was not. We affirm.

The salient issues are: (1) Where doubt exists as to which of two persons is the intended legatee, may evidence be received for any other purpose than establishment of the identity of the intended legatee; (2) Alleged trial court error in allowing an omission in the will to negate a positive assertion therein; and (3) Whether the trial court erred in not following the first and natural impression rule applicable to testamentary interpretation.

Testatrix died September 29, 1975, leaving no forced heirs. Her statutory will, dated August 23, 1966, was duly probated and her above named Testamentary Executor (Executor) confirmed. The testament pertinently provides:

“I will and bequeath all of my stock in Roselawn Development Association, Inc.; all of my stock in Investors Mutual, Inc.; all of my stock, whether full paid or optional share accounts, in Home Savings & Loan Association and in Citizens Savings & Loan Association; all of my accounts, whether savings or checking, in the American Bank & Trust Company of Baton Rouge and the Fidelity National Bank of Baton Rouge, of which I die possessed to the Fidelity National Bank of Baton Rouge, Baton Rouge, Louisiana, as Trustee, in trust for the following persons in the proportions herein set forth, to wit:
One-fifth (Vfc) to Edna S. Loup, Sr.
One-fifth (Vfc) to E. J. Seioneaux
One-tenth (Vio) to Corinne S. Levy
One-tenth (Vio) to Gladys S. Hunt
One-tenth (Vio) to Beatrice S. Schaeffer
One-tenth (lAo) to Effie S. Savignole
One-tenth (Vio) to Alfred Seioneaux
One-tenth (Vto) to Clifton Seioneaux
I do not intend this to be a conjoint legacy.”

Additionally, special bequests were made to a number of legatees, among them:

“29) E. J. Seioneaux
My personal automobile
* * * * * *
42) I bequeath to E. J. Seioneaux my Shell Oil Company royalty interest.
* * * * * *
47) The remainder of my estate not herein disposed of, I leave to those of the following named persons who are living at the time of my death:
Edna Loup Effie Savignole
Edna Hunt Beatrice Schaeffer
Corinne Levy E. J. Seioneaux”

The controversy over the E. J. Seioneaux named in Testatrix’s will arose because Testatrix’s brother, E. J. Seioneaux died June 25, 1962, (prior to the date of the will), leaving as his sole descendant, E. J. Scion-eaux, Jr., an adopted child. Appellant’s rule to show cause why he should not be recognized as the legatee was opposed by Executor on the ground that Appellant was not the E. J. Seioneaux named in the will, but is the adopted child of the intended legatee. After receiving parol and other evidence on the identity issue, the trial court found that Testatrix intended her brother, E. J. Seioneaux, not appellant, to be the intended legatee and that the legacy had lapsed due to the death of the intended legatee.

The following codal provisions are germane:

LSA-C.C. Article 1697:
“The testamentary disposition becomes without effect, if the person instituted or the legatee does not survive the testator.”
LSA-C.C. Article 1712:
“In the interpretation of acts of last will, the intention of the testator must principally be endeavored to be ascertained, without departing, however, from the proper signification of the terms of the testament.”
LSA-C.C. Article 1714:
“In case of ambiguity or obscurity in the description of the legatee, as, for instance, when a legacy is bequeathed to one of two individuals bearing the same name, the inquiry shall be which of the two was upon terms of the most intimate intercourse or connection with the testator, and to him shall the legacy be decreed.”
LSA-C.C. Article 1715:
“When, from the terms made use of by the testator, his intention cannot be ascertained, recourse must be had to all circumstances which may aid in the discovery of his intention.”

Relying on Article 1714, above, Appellant contends he is the intended legatee because Testatrix was aware (as the record conclusively establishes) that her brother died pri- or to the signing of Testatrix’s will. Additionally, Appellant and his mother testified that Testatrix always referred to her brother as “Elphedge” and Appellant as “E. J.”. Appellant also testified he was very close to Testatrix during his childhood. He also testified he left Louisiana about nine years before Testatrix’s death and that Testatrix contacted him frequently by telephone and sent him money on occasion. He conceded he saw decedent last in either 1969 or 1970.

Roland Kizer, Attorney-at-law, testifying on behalf of Executor, stated he advised Testatrix in the drafting and execution of her will. Over Appellant’s objection, Mr. Kizer stated he had been a close friend of Testatrix and her husband for many years. Testatrix’s predeceased husband owned stock in Roselawn Memorial Cemetery, Baton Rouge, of which concern Mr. Baskin was manager. After Mr. Baskin’s death in 1953, the Board of Directors of the cemetery association attempted to persuade Testatrix to donate or sell her husband’s cerne-tery stock to the cemetery’s perpetual care fund to protect the fund. Testatrix, however, wished to leave the stock to her full brother Elphedge Joseph Scioneaux, her full sister Edna S. Loup, Sr., and her half sisters and brothers Corinne S. Levy, Gladys S. Hunt, Beatrice S. Schaeffer, Effie S. Savignole, Alfred Scioneaux and Clifton Scioneaux. Testatrix told Kizer she wanted them “to have everything we worked hard for all our lives”. Accordingly on Kizer’s advice, Testatrix decided to leave her cemetery stock to her siblings in trust. Testatrix expressed concern as to the legal effect of one such legatee predeceasing her. Kizer advised that to avoid a portion of the stock falling to the heirs of a predeceased legatee, the legacies would be declared non-conjoint so that the share of a predeceased legatee would lapse and go to those siblings Testatrix had indicated she wished to be her residuary legatees. The first portion of the will, the whole of which comprises five typewritten pages, was prepared by Kizer between 1954 and 1956. Testatrix came frequently to Kizer’s office, indicating changes she wished to make in the proposed testament. Kizer informed Testatrix he would prepare the will only once and Testatrix had to make up her mind what she wished to do. Eventually, in 1966, Testatrix informed Kizer she was going to Europe and wished to execute her will with some changes. Kizer again informed Testatrix he would write the will once only. Decedent replied:

“Well, we won’t do anything now. I’ll just sign the will. And when I get back from Europe, if I live, then if I want to make any changes, I’ll make it. In the meantime, I want that will just exactly like you got it and I want you to do it.”

Kizer was not aware of E. J. Scioneaux’s death until the time the will was actually executed. He also stated he never heard of E. J. Scioneaux, Jr. until this litigation arose. In rebuttal, however, Appellant produced testimony to the effect that Testatrix, accompanied by E. J. Scioneaux’s widow, called on Kizer and requested his recommendation of an attorney to handle Mr. Scioneaux’s estate. Mr. Kizer could not recall such a visit.

Executor testified that upon Testatrix’s return from Europe, she requested that he assist her in making some changes on a carbon copy of her will which she had in her possession. In his presence, Testatrix made an “x” mark next to the name E. J. Scion-eaux appearing in the will, explaining that she did so because that person was deceased. Testatrix also requested him to write on the will copy certain changes she wished to make but could not do so because her hands were so shaky she could not write well. Loup added that he knew E. J. Scion-eaux, Jr., and had heard Testatrix refer to him as a “no good boy”.

Other witnesses produced on behalf of Executor testified in essence that Testatrix was unhappy with her nephew, E. J. Scion-eaux, Jr. They also stated that Testatrix placed long distance calls to Appellant to request that he get in touch with his mother whom Testatrix felt he was neglecting.

Appellant suggests that because Testatrix knew her brother was dead at the time Testatrix signed her will, and because Appellant was the only living person named E. J. Scioneaux when the will was signed, the omission of “Jr.” from the name of the legatee is a matter of no moment. He adds that since his father’s death he signs his name frequently without adding “Jr.” thereto.

Such an omission may not be assumed especially where, as here, the same legacy names a co-legatee designated as “Edna S. Loup, Sr.”. Carter v. Succession of Carter, 332 So.2d 439 (La.1976). It appears that Testatrix was aware of the identities of intended legatees insofar as concerns Jrs. and Srs. Had she intended E. J. Scioneaux, Jr., to be the legatee, she would have indicated so by adding the “Jr.”. In addition, the record indicates that Appellant did affix “Jr.” to his signature after his father’s demise. In this regard, Appellant’s mother testified that E. J. Scioneaux was sometimes referred to as Senior; she did not know if he ever signed his name as such.

The primary rule of testamentary interpretation is that courts must endeavor to ascertain the testator’s intention. All other rules of interpretation are merely tools or means to accomplish the principal goal. Succession of Carter, above, and authorities cited therein.

When identity of a legatee is doubtful, courts may resort to extrinsic evidence to identify the intended heir. Where two or more persons bear the same name as a legatee, identity may be established by determining which of the two was most intimate with the testator. In case of doubt, recourse may be had to all circumstances which may aid in discovering testator’s true intent. LSA-C.C. Articles 1714, 1715; Burthe v. Denis, 31 La.Ann. 568 (1879); Succession of Pugh, 129 La. 415, 56 So. 352 (1911); Sisters of Charity of Incarnate Word v. Emery, 144 La. 614, 81 So. 99 (1919); Succession of Blaum, 236 La. 1046, 110 So.2d 95 (1959).

Appellant contends it would be illogical to hold that Testatrix knowingly intended to make her predeceased brother legatee, therefore the only reasonable interpretation of the will is that she intended Appellant as legatee. This argument ignores the attending circumstances. The record reflects that a substantial portion of the ill was drafted prior to the demise of Testatrix’s brother, E. J. Scioneaux. As previously noted, Testatrix consulted Mr. Kizer on numerous occasions concerning changes she wished to make in the draft of the will before she ultimately executed the instrument. It also appears that rather than leave intestate, on a trip to Europe, she signed the will as it existed before her departure. At this time, she knew her intended beneficiary E. J. Scioneaux was deceased, but believed this circumstance was a matter of no concern because, under the will she signed the lapsed legacy would revert to her residuary legatees according to her wishes.

We find the trial court ruled correctly in holding that the identity of the E. J. Scioneaux named in the will could not be determined from the instrument itself. No person bearing the precise name E. J. Scion-eaux existed. The party claiming to be legatee was E. J. Scioneaux, Jr. The question then became whether Testatrix intended E. J. Scioneaux, Jr. to be the E. J. Scioneaux she named. As regards the issue of closeness, the record reflects that Testatrix was much closer to her brother than her nephew. Under the circumstances, admission of evidence regarding the circumstances attending preparation and confection of the will was proper. LSA-C.C. Article 1715; Succession of Rusha, 158 La. 74, 103 So. 515 (1925); Succession of Thorame, 12 La.Ann. 384 (1857); Planiol et Ripert, Traité pratique de droit civil frangais V (1933) No. 171, p. 176 and No. 597, p. 627; Josserand, Cours de droit civil positif frangais, III (2 éd. 1933) No. 1522, p. 866.

As contended by Appellant, the first and natural impression conveyed by a testament’s terms is entitled to great weight. Garter v. Succession of Carter, above; Succession of Bobb, 41 La.Ann. 247, 5 So. 757 (1889). In applying the rule, the jurisprudence establishes that great weight should be accorded the first and natural impression obtained from reading the will as a whole. A testator is deemed not to be posing riddles, but rather conveying his intention to the best of his ability as to be understood at first view. Succession of Carter, above. The question here is who is E. J. Scioneaux? We find that a reading of the will as a whole does not convey the first and natural impression that E. J. Scioneaux, Jr. is the intended legatee.

To establish his claimed heirship, Appellant offered proof of the prior demise of his father E. J. Scioneaux. If Appellant had to resort to extrinsic evidence to establish himself as the intended legatee, we deem it elementary that Executor should have the privilege of rebuttal.

Appellant’s final argument is that Testatrix intended him to be the intended legatee because she was aware of her brother’s prior death and wished to provide for Appellant considering other nieces and nephews would inherit from their parents the legacies left them. We find no merit in this argument. The intent of a testator must be determined from the will as a whole, and effect must be given every part of the will so far as the law permits. Article 1712, above; Succession of Carter, above; Succession of La Barre, 179 La. 45, 153 So. 15 (1934). In this instance, the latter part of Testatrix’s will names as residuary legatees certain siblings who may survive her. The extrinsic evidence, considered in conjunction with the will’s provisions, indicates that the legatee named was not intended to be Appellant.

The judgment is affirmed, Appellant being cast for all costs of these proceedings.

AFFIRMED.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Georgina Duet TERREBONNE et al.
    No. 11401.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Refused Oct. 14, 1977.

      Johnie E. Branch, Jr., Charles A. O’Brien, III, Asst, to Gen. Counsel, Baton Rouge, for plaintiff and appellant.
    Stanley L. Perry, Galliano, for defendants and appellees.
    Before LANDRY, EDWARDS and COLE, JJ.
   LANDRY, Judge.

Plaintiff (Department) appeals from judgment awarding defendants (Owners) $28,548.12, an increase over the $5,234.00 deposited in court by the Department, as compensation for two parcels of land expropriated for relocation of La. 1, Golden Meadows, Lafourche Parish, which award exceeds the amount for which Owners prayed, and also awarding Owners $5,000.00 attorney’s fees. We amend.

The properties taken are designated as Parcels 19-2 and 17-6, State Project 64-04-20 comprising portions of two separate tracts belonging to Owners. Parcel 19-2 is from a parent tract measuring 77 feet in width commencing 1,617 feet west of present La. 1 and running back to the 40 arpent line. From La. 1, a road leads westerly toward this tract a distance of 1,000 feet. This parcel, containing .350 acres, is situated 2,200 feet west of La. 1 and is part of a tract which Owners have gradually developed into a subdivision by selling residential lots therefrom. As each residential site is sold, Owners clear an extension of the road thereto which road is then improved by local governing authorities at no cost to Owners.

Parcel 17-6 is part of a parent tract measuring 511 feet front on the west side of La. 1 and extending westerly to the 40 arpent line, containing 90 acres. The two parent tracts are approximately 1,200 feet apart. Parcel 17-6, also situated 2,200 feet west of La. 1, contains 2.337 acres. Owners’ residences are situated on this parent tract near La. 1, but said residences are not affected by the taking.

The expropriations were filed November 21, 1975. It is conceded the best and highest use of subject parcels is for residential development. In determining market value of Parcel 19-2 the trial court used as com-parables, prior sales by Owners of residential sites from the parent tract, and fixed value accordingly. In fixing the value of Parcel 17-6, the trial court used as compa-rables, two sales made by Owners from its parent tract, and a voluntary sale by the owner of Parcel 16-6 to the Department on May 2,1975, said Parcel 16-6 being situated 708 feet south of Parcel 17-6 and the same distance west of La. 1.

The Department maintains the trial court erred in: (1) disregarding the Department’s experts and substituting its own judgment as to land values; (2) selecting inapplicable comparables in valuing Parcel 19-2; (3) utilizing a sale to the Department as a comparable in establishing the value of Parcel 17-6; (4) awarding a greater land value than that for which Owners prayed; and (5) awarding attorney’s fees without proof of the value of such services.

The Department’s appraisers, Carr T. Do-well and Lewis Derbes, testified in effect that they worked together in examining the records of Lafourche for comparable sales to establish market value of subject tracts. In a helicopter, they flew together over both properties before making their appraisals. In valuing Parcel 19-2, they each used the same 3 comparables. The first was a sale, by Serpas to Horton, of a parcel beginning 750 feet from La. 1 and running back to the 40 arpent line. This transaction, in December, 1972, was for a unit price of $1,640.00 per acre. Their next comparable was a sale, from Cheramie to Eymard, of a tract 60 feet wide commencing 1,400 feet from La. 1, by a depth to the 40 arpent line. This tract, a completely enclosed estate with no road access and one tract removed from the Serpas sale, sold in October, 1975 for $910.00 per acre. Their third comparable was a sale of a 44 foot wide tract beginning 530 feet from La. 1, and extending to the 40 arpent line. This tract, sold by Eymard to Chapert in November 1973, brought a unit price of $1,160.00 per acre.

Making adjustments for inferior drainage on Owners’ tracts, allowing for what he believed to be lack of road access to subject parcels, and employing the front lands, rear lands formula (by which the front, middle and rear portions of a tract are valued differently), and allowing an annual appreciation factor of about 5%, Dowell valued Parcel 19-2 at $1,700.00 per acre or $595.00 for the .350 acres taken. He valued Parcel 17-6 at $2,100.00 per acre or $4,908.00 for the 2.337 acres involved.

Making similar but not identical adjustment, Derbes valued Parcel 17-6 at $1,700.00 per acre or $3,972.00, and Parcel 19-2 at $1,500.00 an acre or $525.00. Both Dowell and Derbes considered a tract with a width of one and one-half arpents to be ideal for residential subdivision in the area and that tracts of greater widths to be of less value for this purpose. For this reason, they downgraded Owners’ wider tract. Using these same 3 comparables, they valued properties along a five mile stretch of the proposed highway. Derbes and Dowell both admitted they did not consider as com-parables numerous prior sales (hereinafter mentioned) of residential sites made by Owners from their 77 foot wide strip which originally extended to La. 1 before Owners made sales therefrom. In addition, Derbes and Dowell stated that after making their appraisals, they went upon subject parcels, following Owners’ clearing a path to facilitate their inspection. This inspection, however, did not change their appraisals.

Appellees, contending they could not obtain a local appraiser because all such experts were in the Department’s employ, sought to establish values by comparable sales. As regards Parcel 19-2, Owners introduced 7 sales made from their 77 foot wide strip prior to the taking, as follows: (1) June 16, 1975, lot 150 by 60 feet in depth, located 1,467 feet from La. 1, and 446 feet from Parcel 19-2, for $2,700.00 or 30 cents per square foot; (2) September 13, 1972, lot 150 by 60 feet in depth, located 1,217 feet from La. 1, for $2,700.00 or 30 cents per square foot; (3) September 13, 1972, lot 225 by 60 feet in depth, 1,092 feet from La. 1 for $4,050.00 or 30 cents per square foot; (4) August 13,1973, lot 100 by 60 feet in depth for $1,800.00 or 30 cents per square foot; (5) September 13, 1972, lot 25 by 60 feet in depth for $450.00 or 30 cents per square foot; (6) March 12, 1971, lot 100 by 60 feet in depth for $1,800.00 or 29.5 cents per square foot; and (7) January 5, 1968, lot 275 by 60 feet in depth for $4,950.00 or 36 cents per square foot, this lot being 492 feet from La. 1.

To establish the value of Parcel 17-6, Owners introduced as comparables the following: (1) Sale from Owners to Duet, September 13, 1972 of lot 100 by 50 feet in depth, taken from the parent tract, for $1,500.00 or 30 cents per square foot; (2) Owners to Hunter, October 17, 1972, of lot 100 by 50 feet in depth, taken from the parent tract, for $1,500.00 or 30 cents per square foot; and (3) sale by Duet to the Department on May 2, 1975, of Parcel 16-6 for Project 64-04-20, containing 20,148.95 square feet for $5,440.00 or 26.99 cents per square foot, which comparable is the same distance from La. 1 as Owners’ Parcel 17-6, and which comparable is situated 708 feet south of Parcel 17-6. Parcel 16-6 is part of a residential development but there are no residences in its immediate vicinity. Parcels 17-6 and 16-6 are both situated within the same forced drainage district which drains into a large canal at the 40 arpent line.

The trial court rejected the testimony of the Department’s experts regarding the value of Parcel 19-2 because the witnesses did not consider the sales made by Owners from the parent tract prior to the taking. Concluding that sales from the parent tract indicated the value of residential sites sold therefrom, the trial court arrived at a value of 30 cents per square foot for this parcel. It then discounted this figure 3 cents per square foot for clearing brush from the land and established the value of Parcel 19-2 at 27 cents per square foot or $4,116.42 for the .350 acres taken.

In determining the value of Parcel 17-6, the trial court rejected the testimony of the Department’s experts and relied upon the sales from that parent tract and the voluntary sale by Duet to the Department of tract 16-6, which latter transaction involved a price of 27 cents per square foot. Making a 3 cents per square foot adjustment for clearing and draining, the trial court fixed the value of Parcel 17-6 at 24 cents per square foot or $24,432.00 for the 2.337 acres taken.

The Department correctly maintains a trial court may not rely on its own opinion in fixing values in expropriation cases, and may not substitute its own judgment for that of experts. The court may, however, take judicial notice of facts within the common knowledge of persons of ordinary understanding. State Through Department of Highways v. Thurman, 231 So.2d 692 (La.App. 1st Cir. 1970). It is significant that the trial court noted it is a matter of common knowledge that the scarcity of residential sites in lower Lafourche Parish (where subject parcels are situated) has abnormally increased land values to the point that available residential sites are selling for premium prices.

Testimony of experts must be given effect if it appears reasonable and well founded. State, Through Department of Highways v. Stoer, 238 La. 718, 116 So.2d 498 (1959); State, Through Department of Highways v. Dodge, 168 So.2d 430 (La.App. 3rd Cir. 1964).

The weight of opinion testimony is determined by the professional qualification and experience of the expert, the facts and studies upon which his opinions are based, and, in the case of land appraisals, his familiarity with the location. LSA-R.S. 48:443; State, Through Department of Highways v. McPherson, 261 La. 116, 259 So.2d 33 (1972).

Expert opinion may be disregarded if it impresses the court unfavorably. State, Through Department of Highways v. Stoer, above; State, Through Department of Highways v. Dodge, above.

The trial court found the Department’s experts were not familiar with land values and the factors affecting such values in the lower Lafourche area. The trial court was particularly unimpressed with the opinion of the Department’s experts to the effect that wider tracts are less valuable for residential subdivision development in the vicinity of this taking. Additionally, the trial court rejected the Department’s experts’ valuation of Parcel 19-2 because they did not consider prior sales from the parent tract.

We find no merit in the Department’s argument that the trial court erred in using the voluntary sale of Parcel 16-6 to itself as a comparable in determining market value of Parcel 17-6. Our jurisprudence holds that a voluntary sale by an owner under threat of imminent expropriation is relevant in establishing market value, especially where it indicates the expropriated property is not worth less than the sum voluntarily paid by the expropriating authority. State, Through Department of Highways v. Covington Interstate, Inc., 295 So.2d 828 (La.App. 1st Cir. 1974); State, Through Department of Highways v. Cartlidge, 258 So.2d 175 (La.App. 2d Cir. 1972); State, Through Department of Highways v. Dodge, above. Such transactions, while not controlling, may be considered in fixing market value. Under the circumstances, we find the trial court properly fixed the value of Parcel 17-6, based on the two sales from the parent tract, and the voluntary sale by another owner to the Department of a similar parcel situated only 708 feet distant.

Owners prayed for judgment in the sum of $21,400.00 as compensation for the taking of their lands. The Department urges trial court error in awarding Owners $28,-548.42 because the award exceeds the amount for which Owners prayed.

An award may exceed requested damages when otherwise inadmissible evidence of such an excess is admitted without objection. LSA-C.C.P. Article 1154. In this instance, the acts of sales introduced by Owners were admissible in proof of damages for which Owners prayed. Being thus admissible, these offerings cannot be considered to have enlarged the pleadings. Sterkx v. Gravity Drainage District No. 1 of Rapides Parish, 214 So.2d 552 (La.App. 3rd Cir. 1968). Accordingly, the amount awarded must be reduced to the $21,400.00 for which Owners prayed.

We find no merit in the Department’s claim that the trial court erred in awarding attorney’s fees despite Owners’ failure to offer evidence of the value of services rendered herein. LSA-R.S. 48:453(E) permits an award of attorney’s fees where compensation is awarded in excess of the deposit by the Department at the time of taking. Such fees may not exceed 25% of the difference between the deposit and the court’s award.

It is well settled that a trial court is capable of assessing attorney’s fees without proof of the value thereof where such services are performed under the eye of the court. Cain v. Employers Casualty Company, 236 La. 1085, 110 So.2d 108 (1959); Thigpen v. Thigpen, 231 La. 206, 91 So.2d 12 (1956). In making awards for attorney’s fees, the trial court is vested with considerable discretion, the exercise of which will not be interfered with save in a case of clear abuse.

In this instance, the pertinent statute limits an award to 25% of the difference above noted. The trial court’s award of $5,000.00, predicated on the award granted, was not an abuse of its discretion. Since, however, we have reduced the award, we must apply the statutory limitation. Accordingly, we reduce proportionately the award of attorney’s fees from $5,000.00 to $3,500.00.

The judgment is amended to reduce the compensation awarded Owners from $28,-548.12 to $21,400.00, and to reduce attorney’s fees awarded from $5,000.00 to $3,500.00. The Department is cast for all costs for which it is legally accountable.

Amended and rendered.


author: EDWARDS, Judge.

text:
    Cecil E. TOMS v. LOUISIANA HEALTH & HUMAN RESOURCES ADMINISTRATION, DIVISION OF MANAGEMENT.
    No. 11411.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Refused Oct. 14, 1977.
    Joel B. Dickinson, Baton Rouge, for appellant Cecil E. Toms.

      George F. McGowin, Baton Rouge, for appellee.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

This is an appeal by Cecil E. Toms, a permanent-status classified civil service employee in the Louisiana Health and Human Resources Administration, Division of Management, from a decision of the Louisiana Civil Service Commission upholding his demotion from the position of Internal Auditor V to the position of Internal Auditor III. We affirm.

The reasons for appellant’s demotion were stated in a letter dated, April 14,1976, as follows:

I.“Inability to function as an audit supervisor.
A. “The audit of the Title XIX contract between the Division of Family Services and the Easter Seal Society of Louisiana had glaring errors which should have been brought to the attention of the auditor, Frank Martone. The contract specifically states that Easter Seal Society of Louisiana will be paid a fee for services of $7.50. The audit contains schedules of the direct cost to provide the services. The schedule of costs reflects 20% of direct costs as administrative costs, for which there is no documentation of the validity of this cost. The audit recommends a reimbursement of all costs as though the contracts were on a cost reimbursement basis.
“The three contracts were for the following periods:
1. February 1, 1974 through June 30, 1974
2. July 1, 1974 through December 31, 1974
3. January 1, 1975 through June 30, 1975
“The audit reports for the aforementioned contracts were prepared in the same manner as previously stated. The total improperly reimbursed based on your recommendation was $3,239.89. The erroneous audit report for the contract period of January 1, 1975, through June 30, 1975 recommended reimbursement of an additional $9,156.25.
“Your duties as an audit supervisor were to review the work of your subordinates and either approve the report or reject and make recommendations for corrections. You, as an experienced auditor and supervisor, should realize that when preparing to review an audit, the first step is to read the contract and make notes of the specifications of that contract. Had you properly reviewed this contract and audit report, you would have realized that there were no provisions for the reimbursement suggested by Mr. Martone.
B. “The audit report of the Title XIX contract between the Division of Family Services and Pan American Life Insurance Company for the year ended December 31, 1971 was sent to you for your review approximately October 29, 1975. You held that audit report until Mr. Prados (appellant’s supervisor) was informed that it had been prepared and he requested it approximately February 20,1976. You had not taken action to correct, approve, or reject the audit report.
“After reviewing the audit report, Mr. Prados requested in a memorandum dated February 24, 1976, that you submit in writing on March 5, 1976 an answer to the questions Mr. Prados attached to that memorandum. To this date, Mr. Prados had not received those answers in writing.
“When the deadline was not met, a meeting was held on March 8,1976 and the answers were given verbally, at which time you and your employees were requested to correct the audit report.
II. “Acts of Insubordination.
A. “On Friday, February 13,1976 at 4 p. m., Mr. Prados gave very specific verbal instructions to review the budget justification for your Title XIX Audit Unit and prepare a schedule of your manpower needs for the fiscal year 1976-77. You were informed that this was an extraordinary situation that would require weekend work. Mr. Prados was very specific about having this prepared for typing at 8 a. m., Monday, February 16, 1976. You did not come to the office until 9 a. m., Monday and you had not completed the assignment.
B. “On January 13, 1976, you were requested to provide Mr. Prados with a schedule of your manpower needs with a division by auditing districts. The memorandum was specific that you have this completed by February 13, 1976. You did not.
“On February 17, 1976, Mr. Prados requested your written response listing the reason for not having completed this request. You did not respond in writing.
“On February 24, 1976, you submitted the schedules as originally instructed, but the information was inaccurate. Mr. Prados then returned these inaccurate schedules and requested by memorandum dated February 25, 1976, that you correct and return them within a week (March 3, 1976).
“You did not submit the correct schedule until March 5, 1976.”

This letter bears the signature of Ben Jeffers, the Undersecretary of the Louisiana Department of Health and Human Resources.

On May 12, 1977, the appellant filed a Petition of Appeal with the Civil Service Commission denying the allegations contained in the letter of demotion and alleging discrimination in the failure to promote appellant to the position of Health Service Audit Director, a position for which he had applied.

A public hearing was held before four members -of the Civil Service Commission on November 4, 1976. The Commission refused to hear evidence on appellant’s charges of discrimination because the allegations contained in his petition were too vague and did not afford the appointing authority an opportunity to prepare a defense.

After the hearing, the commission, by a 3 to 1 vote, sustained appellant’s demotion based on the numerous deficiencies in performance proven by the appointing authority and consequently denied appellant’s appeal.

Appellant contends that the Civil Service Commission erred in denying his appeal because:

(1) The letter of demotion was inherently defective as it was not signed by the appointing authority;

(2) The audits complained of were all approved by appellant’s superiors at the time the audits were conducted;

(3) The appeal was heard by only four (4) members of the seven (7) member Civil Service Commission and all four of those sitting did not agree on a decision, therefore, appellant argues, their action does not represent a judgment by a majority of the seven member commission; and

(4) The appellant was not allowed to present evidence regarding his charges of discrimination.

Appellant’s first specification of error maintains that his demotion is invalid because the disciplinary letter was not signed personally by Ben Jeffers, who is admittedly the appropriate appointing authority.

Counsel for the Department of Health and Human Resources argues that this issue is not properly before this Court, as it is an issue which should have been raised and submitted to the Commission on a motion for summary disposition under Rule 13.14. Counsel maintains that appellant’s failure to raise this issue in his petition or to submit the issue on summary disposition to the Commission renders our review inappropriate.

“It is also questionable whether the failure to timely object to the enumerated irregularities listed in Rule 13.14 amounts to a waiver of such objections.” Duncan v. L. H. H. R. A., Division of Family Services, 341 So.2d 1217, 1219 (La.App. 1st Cir. 1976). '

In any event, assuming arguendo that appellant’s contention is properly before us, appellant’s specification is still without merit.

Rule 12.3(a) of the Civil Service Commission states:

“In every case of removal, demotion or reduction in pay for cause of a permanent employee, the appointing authority or his authorized agent shall furnish to the employee at the time such action is taken, or prior thereto, a statement in writing giving detailed reasons for such action. The appointing authority shall furnish the Director a copy of such statement within 15 calendar days of the date the employee is notified.” (emphasis supplied.)

Ben Jeffers, the appointing authority, testified at the hearing that it was his decision to take disciplinary action against the appellant. He stated that this decision was based on recommendations made by appellant’s immediate superior. He further testified that the letter of demotion was written under his authority and that his signature was affixed to said letter with his approval by his deputy.

Accordingly, we find that the notice of demotion satisfies the requirements of Rule 12.3, above.

Secondly, appellant contends that the evidence presented at the hearing was insufficient to support his demotion, as the audits complained of had all been approved by his superiors when each audit was conducted.

The evidence in the record unquestionably establishes that appellant approved three audits made of the Easter Seal Society for Crippled Children and Adults of La., Inc., which provided for reimbursements from the State in excess of the amounts provided by the applicable contract between the Easter Seal Society and the State. Approval of the first two of these audits resulted in an overpayment by the State to Easter Seals in the amount of $3,239.89. No funds were paid under the third audit.

While we appreciate the fact that these audits were ultimately approved by appellant’s superiors, it is clear from the record that appellant had the primary responsibility for supervising and verifying these audits. The approval of the audits, containing reimbursement schedules at variance with the amounts provided by the appropriate contract, amounted to a deficiency in appellant’s performance sufficient to warrant the action taken in demoting him.

We stated in Ragusa v. Department of Public Safety Division of State Police, 238 So.2d 193 (La.App. 1st Cir. 1970), writ refused 256 La. 885, 239 So.2d 542 (1970), that charges of improper conduct condoned by an employee’s superior may nevertheless be grounds for disciplinary action brought by a subsequent occupant of the superior position. This statement contains a corollary to the effect that the charges of improper conduct must be the real motive for the disciplinary action.

In the instant case, we find that appellant’s deficiencies in performance with regard to the audits of Easter Seals constituted the real motive for his demotion. Additionally, we note that the record contains ample evidence of the other deficiencies in performance found by the Commission. We, therefore, reject appellant’s second contention.

Appellant’s next contention is that the 3 to 1 decision denying his appeal does not represent a majority opinion of the seven member Civil Service Commission.

Article X, Section'3(A) of the 1974 Constitution reads:

“The State Civil Service Commission is established and shall be domiciled in the state capítol. It shall be composed of seven members who are electors of this state, four of whom shall constitute a quorum. No more than one appointed member shall be from each congressional district.” (emphasis supplied)

This Court stated in Alonzo v. Louisiana Department of Highways, 268 So.2d 52 (La. App. 1st Cir. 1972) in construing the corresponding provision of the 1921 Constitution that when a quorum of the State Civil Service Commission is present, the actions of the majority of those present are constitutionally valid.

The record is clear that the requisite four member quorum was present at appellant’s hearing on November 4, 1972. Therefore, appellant’s contention is wholly without merit.

Finally, appellant contends that the Commission erred in refusing to receive evidence on his charges of discrimination.

Rule 13.11 of the Civil Service Commission provides:

“A notice of appeal must .
(d) Contain a clear and concise statement of the actions complained against and a clear and concise statement of the basis of the appeal. Where discrimination is alleged to be a basis for appeal, specific facts supporting the conclusion of discrimination must be alleged in detail; and . . . ”

Failure to comply with the requirements of Rule 13.11(d) renders the appeal ineffective. See Civil Service Commission Rule 13.12(a).

An examination of appellant’s petition in the instant case reveals that the allegations of discrimination are general and vague, and do not satisfy the requirements of Rule 13.11(d), above. Accordingly, the Commission properly granted the appointing authority’s motion for summary disposition and properly excluded evidence on the issue of discrimination.

We find no merit in any of appellant’s contentions.

For the above reasons, the decision of the Civil Service Commission is affirmed at appellant’s cost.

AFFIRMED.

      . Ben Jeffers did not personally sign the letter, rather it was signed by a deputy acting with Mr. Jeffers’ authority and in his stead.


author: COLE, Judge.

text:
    Daphine Sterling ETHERIDGE v. UNION NATIONAL LIFE INSURANCE COMPANY.
    No. 11416.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Granted Oct. 26, 1977.

      Donald S. Zuber, Baton Rouge, of counsel for plaintiff-appellee, Daphine Sterling Etheridge.
    F. Charles McMains, Jr., Baton Rouge, of counsel for defendant-appellant, Union Nat. Life Ins. Co.
    Before LANDRY, EDWARDS and COLE, JJ.
   COLE, Judge.

Union National Life Insurance Company is an insurance company organized under the laws of the State of Louisiana. On October 1, 1970, Union National issued its policy number 70900004 insuring the life of Nelson Etheridge, a resident of the State of Mississippi. The beneficiary named in the policy was Daphine Sterling Etheridge, his wife at the time of issuance. Monthly premiums in the amount of $22.06 were paid up until September 10, 1975.

On October 8, 1975, a cash surrender application was filled out, the policy was surrendered, and a receipt was issued by the company. Subsequently, the surrendered policy was sent to Union National’s home office in Baton Rouge, Louisiana. On October 24, 1975, Union National issued a check in the amount of $600 as payment for the cash surrender value. This check was sent to Union National’s District Manager for delivery to the former policyholder. Prior to delivery of the check, on November 2, 1975, Nelson Etheridge was killed in an automobile accident.

Daphine Sterling Etheridge, the beneficiary named in the policy, brought suit on February 16, 1976, claiming that the policy benefits of $10,000 and the accidental death benefits of an additional $10,000 should be paid to her. She also claimed that, as the company refused to pay its obligations under the policy, she was entitled to statutory penalties.

Union National answered denying liability, claiming cancellation of the policy by its surrender for the cash surrender value. Union National also argued that, should it be liable to pay the $10,000 policy benefits, the accidental death benefits would still not be payable since there had been no payment of the policy premiums which would keep these benefits in force beyond a month following the last payment in September of 1975.

The matter was submitted to the trial court for judgment on a written joint stipulation of facts, exhibits attached to the stipulation, and a memorandum by Union National. Both plaintiff and defendant agree that the law of Mississippi is applicable herein. The trial court ruled in favor of Daphine Sterling Etheridge, holding Union National liable for payment of the full $20,-000 claimed, but the court found no arbitrary action on the part of the insurer and so applied no penalties.

The court agreed with the plaintiff’s claim that the following language of the policy was ambiguous:

“Surrender for Cash. The owner may surrender the policy to the Company and receive the net cash value. The policy will then terminate. The Company may defer paying the cash surrender value for a period not exceeding 6 months from receipt of request.”

The court then reasoned that the meaning of this section of the policy was that the obligations between the parties to the contract varied from that normally the case under the law of Mississippi and that there could be no cancellation of the policy (and so no cancellation of the company’s obligation to pay the benefits thereunder) until the insurer had actually paid the full amount of the cash surrender to the policy owner. In making this finding, the court distinguished the language in the policy from the language of the policy in the case of Mutual Life Insurance Company v. Kaiser, 193 Miss. 581, 10 So.2d 766 (1942).

In determining the meaning of a portion of a contract and the obligations created thereby, it is necessary to consider the whole agreement and read together all portions bearing on the question. The above-quoted language is the only section of the policy considered by the court below; in preceding sections the policy also contains the following language: “Termination. This agreement will terminate:

“2. On surrender of this policy for cash
jfc Sft !(S ‡ !{«
“This agreement may be terminated by written request accompanied by the policy for endorsement.”

When all of these sections are considered, the ambiguity claimed by plaintiff could be found only by straining the construction of the policy in order to arrive at the intentions of the parties. This is to be avoided under the common law as under the civil law. Mid-State Homes, Inc. v. Cherokee Insurance Company, 51 Ala.App. 247, 284 So.2d 274 (1973); La.-C.C. art. 1945, et seq.

The general rule of law, in Mississippi as in other common law jurisdictions, must obtain in this case:

“The privilege to exercise the quoted option [to surrender the policy for payment of the cash surrender value] was one which was bought and paid for by the insured, and was at all times irrevocable by the company so long as the policy remained in force. When the insured elected to exercise the option by an unqualified notification to the company to that effect, the obligation of the company became thereupon a matured indebtedness to the insured for the amount of the cash surrender value, and any contingent liability thereby came to an end. The company would have no right or option or privilege to reject the unconditional notification of the exercise by the insured of his right to accept the cash surrender value, and when so notified in unqualified terms the obligation of the company to pay the cash surrender value became then and there a fixed and perfected obligation, — a matured debt with all other obligations merged into it. * * * ” (Mutual Life Insurance Company v. Kaiser, 193 Miss. 581, 10 So.2d at 766, 767)

See, also, Occidental Life Insurance Company of California v. Templeton, 219 Ga. 39, 131 S.E.2d 530 (1963), and Green v. American National Insurance Company, 452 S.W.2d 1 (Tex.Civ.App.1970).

Alternatively, even assuming, but not so holding, that the language of the policy is ambiguous as to the point at which the insurer’s obligation to pay the policy benefits ceases, there was a subsequent agreement entered into between the parties which, under the law of Mississippi and that of other common law jurisdictions, results in cancellation of the company’s obligation no matter what terms for cancellation were agreed upon between the parties in the policy. An agreement subsequent to and independent of the policy could have the effect of altering, modifying, or rescinding any rights the parties would have had under the prior agreement, i. e., the policy. Chatham v. Occidental Life Insurance Company of California, 248 Miss. 328, 158 So.2d 735 (1963); United States Fire Insurance Company v. Coggins, 195 So.2d 482 (Miss. 1967); General Insurance Company of America v. Killen, 120 So.2d 887 (Ala.1960); Allstate Insurance Company v. Doody, 193 So.2d 687 (Fla.App.1967).

In the case now before this Court, the cash surrender application contains the following language:

“I hereby apply for the cash surrender value of the above described policy. In consideration of the payment to be made to me of the cash surrender value I herewith surrender the policy to the company for cancellation of all insurance hereunder, and hereby release and forever discharge the company from all claims under said surrendered policy.”

This document, signed by the insured, modifies the agreement between the parties by obligating the insurer to pay the cash surrender value and by limiting the claim under this later agreement to the right to receive this cash surrender value. The obligation of the insurer to pay the policy benefits and the right of the beneficiary to claim such benefits is cancelled.

For the foregoing reasons, the judgment of the trial court is reversed. The costs of these proceedings are assessed to the appel-lee.

REVERSED AND RENDERED.


author: SARTAIN, Judge.

text:
    Richard Wayne STEVENS, Plaintiff-Appellant, v. REX CHAINBELT, INC., Defendant-Appellee.
    No. 11422.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Refused Oct. 14, 1977.
    Michael W. McKay, Baton Rouge, for plaintiff.
    Wood Brown, III, New Orleans, for defendant.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

In this products liability case plaintiff appeals from an adverse jury verdict. We affirm.

On March 22, 1974, plaintiff sustained serious injuries to his right hand and fingers when they became entangled in a fan belt on a cement mixer manufactured by the defendant.

The mixer, which is portable and known as Model No. 6-S, was manufactured by the defendant in 1949-51. The motor is housed in a metal enclosure. Access thereto is through a side panel which hinges from the bottom. The fan belt which caused the injury may be likened to a fan belt in a typical automobile.

While there is some conflict in the testimony as to how the accident occurred, we will accept plaintiff’s version. He states that because there was no exterior cutoff switch to stop the motor, it was necessary to take a board or stick and press a metal tab against the motor housing to short out the magneto. He had picked up a stick to do just this when he tripped over a water pipe near the machine. This caused him to fall forward. The side panel was down at this time and his right hand went through the opening and came in contact with the fan belt.

Plaintiff contends that the mixer was improperly designed and therefore defective in four particulars. (1) There was no exterior kill switch. (2) There was no guard over the fan belt. (3) The side panel should have been hinged from the top so that the weight of the panel would keep it closed. (4) There was no interlock device, that is a safety feature which would have stopped the motor when the panel door was opened and the motor exposed.

The record amply supports the following findings of fact: The machine was purchased second hand by plaintiff’s employer and during the course of the latter’s ownership it had undergone numerous repairs with certain modifications. When the mixer was manufactured it contained a fan guard. This very guard was found on the ground near the mixer after the accident. It was also equipped with interior and exterior kill switches. The latter had long since been discarded by either the present or a previous owner.

An interlock device can best be described as a mechanism that will kill the motor when a moving part is exposed. If such a device were placed on an automobile, it would kill the motor of the vehicle when the hood is raised. Many heavy industrial machines are now equipped with one. However, plaintiff’s own expert conceded that there were no interlock devices in 1949 and 1950.

With respect to the side panel, the testimony shows that it could not be closed at the time of the accident because several hoses which were attached to the motor were routed through this particular opening. Plaintiff’s expert testified that the design of the panel was defective because had the panel been hinged from the top, it would have prevented exposure of the motor in spite of the presence of the hoses. The unalterable fact remains that the attachment of the hoses in the manner utilized by the owner at the time of the accident was a modification not contemplated in the original design.

For liability to attach in a products liability case, it is essential that the defect complained of exist at the time the product left the possession of the manufacturer. Frey v. Travelers Insurance Company, 271 So.2d 56 (La.App. 4th Cir. 1972), writs refused, 273 So.2d 840 (La.1973).

The verdict of the jury clearly reflects the clear preponderance of the evidence and the law applicable thereto.

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

AFFIRMED.