author: MORIAL, Judge. LEMMON, Judge

text:
    Lawrence GALLIN and Donald Green v. The TRAVELERS INSURANCE COMPANY.
    No. 7034.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.
    Rehearing Denied Jan. 13, 1976.
    Writ Refused March 12, 1976.

      E. Howard McCaleb, III, New Orleans, for plaintiffs-appellees.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Glenn G. Goodier, New Orleans, for defendant-appellant.
    Fazande & Ware, Hilliard Fazande, II, New Orleans, for plaintiff-intervenor-ap-pellee.
    Before SAMUEL, LEMMON and MORIAL, JJ.
   MORIAL, Judge.

On March 11, 1972 an accident involving a 1967 Mercury and a McKenzie’s Bakery truck occurred at the intersection of Al-monaster and North Galvez Streets in New Orleans. The driver of the Mercury and his two passengers were injured in the collision. Donald Green, the owner and driver of the car and Lawrence Gallin, the front seat passenger, filed suit solely against the insurer of the truck, Travelers Insurance Company. On March 12, 1973 Leroy Snyder, the rear seat passenger of the car, filed a motion to intervene in the plaintiffs’ action and a motion to join McKenzie Bakery Company and/or Entrin-ger Bakeries, and Danis Murphy, the driver of the truck, as party defendants. Defendant thereafter filed an exception of no right or cause of action to the joinder and intervention. The trial judge sustained defendant’s exception as to joinder but overruled the exception as to the intervention.

After trial on the merits the court concluded that the plaintiffs’ version of the accident was more believable than defendant’s and rendered judgment in favor of all plaintiffs. Green was awarded special damages in the amount of $824.00 and general damages of $3,500.00 for the injuries suffered. Gallin was awarded $1,715.00 in special damages and $4,500.00 for pain and suffering. Snyder was awarded $490.00 for medical expenses, $576.00 for loss of wages and $8,000.00 for pain and suffering. Defendant has perfected this suspen-sive appeal alleging error in all aspects of the trial court’s judgment. We affirm except for a modification in the award to Snyder.

Defendant specifically alleges five areas in which the trial court erred. It asserts that: 1) the district court should not have overruled defendant’s exception of no right or cause of action as to Snyder’s intervention and therefore Snyder should have been dismissed from the suit; 2) the court abused its discretion in refusing to allow defendant a continuance of the trial in order to secure the testimony of the officer who investigated the accident; 3) the sole and proximate cause of the accident was the negligence of Green and accordingly, judgment should have been rendered in favor of defendant; 4) the court abused its discretion in its quantum awards to all three plaintiffs; and 5) the court should not have awarded Snyder any damages for loss of wages.

INTERVENTION

We must decide whether LSA-C. C.P. Art. 1091 is to be given a broad or strict interpretation. C.C.P. Art. 1091 provides :

“A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar relief against the defendant ;
(2) Uniting with defendant in resisting the plaintiff’s demand; or
(3) Opposing both plaintiff and defendant.” (Emphasis supplied)

In 1967 we decided Resor v. Mouton, 200 So.2d 308 (La.App. 4 Cir. 1967) which greatly restricted intervention. In that case a two car automobile accident resulted in damage to a nearby building. The car owners sued each other and the building owner sought to intervene in the action. The court disallowed the intervention stating:

“The mere fact that the alleged damage to Gros’ building resulting from the same accident which caused Resor’s damage does not in our opinion give Gros a right to intervene in Resor’s suit. While an issue necessary to be determined in the main suit (and also in any proceeding by Gros to recover his own damage) is whether the accident was caused by the negligence of Resor or Mouton or both, the resolution of this issue is not the ‘object’ of Resor’s suit but only a prerequisite to the attainment of such‘obj ect’.” At 310

This interpretation of C.C.P. Art. 1091 was severely criticized by the Louisiana Third Circuit Court of Appeal in Bellow v. New York Fire & Marine Underwriters, Inc., 215 So.2d 350 (La.App. 3 Cir. 1968). After noting the former intervention article of the Code of Practice was substantially changed by the intervention Article of the Code of Civil Procedure the court stated:

“In our view, LSA-C.C.P. Article 1091 has broadened and thus increased the usefulness of the remedy of intervention. No longer is it essential that the interve-nor have such a direct interest in the pending action that he will obtain immediate gain or suffer immediate loss. Now it is sufficient that he have a justi-ciable right ‘related to or connected with the object of the pending action against one or more of the parties thereto.’ To enforce this right he may proceed in one of the three ways listed in the code article.” At 353 (footnote omitted)

The court further noted that a prior Fourth Circuit decision, Boyd v. Donelon, 193 So.2d 291 (La.App. 4 Cir. 1966) recognized that the change in Art. 1091 was intended to liberally allow intervention.

The trial judge, in the instant case, being fully aware of this conflict among the circuits ruled that the position expressed in Bellow, sup'ra, was sound and thus permitted Snyder’s intervention. The trial judge’s ruling is correct. We believe that Snyder did in actuality have a “right related to or connected with the object of the pending action against one or more of the parties thereto” according to a correct interpretation of C.C.P. Art. 1091. See Henry G. McMahon, Civil Procedure, 22 La.L.R. 370, 371 (1962) and Work of Appellate Courts 1967-1968, 29 La.L.R. 171, 285 (1969). To the extent that Resor v. Mouton, supra, and its progeny are inconsistent with the opinion expressed herein, they are now hereby overruled.

CONTINUANCE

LSA-C.C.P. Art. 1602 specifies:

“A continuance shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; . . .” (emphasis supplied)

Defendant argues that the continuance should have been granted because it asserted the officer was hospitalized at the time of trial due to a gunshot wound from an unrelated accident. On several dates the completion of the trial was delayed to await the officer’s testimony. Each continuance was requested on the day of trial. In Perigoni v. McNiece, 262 So.2d 407, 412 (La.App. 4 Cir. 1972), we upheld the refusal of a trial judge to grant a continuance applied for one week prior to trial and concluded:

“Defendant could have asked for the continuance long before he did, however, his tardiness shows an attempt to confuse the issues by delay. We also note that adequate means were available to him to procure her testimony, by deposition or otherwise.”

The record herein does not disclose that defendant ever made any attempt to utilize the provisions of LSA-C.C.P. Art. 1428(3) (c) to secure the testimony of the officer by deposition.

Furthermore, defendant has not shown that this police officer’s testimony would have been material to the outcome of the case. The officer did not see the accident and thus could only have testified as to what he observed and not as to what he was told at the scene of the accident. Veal v. Hutchinson, 284 So.2d 60 (La.App. 4 Cir. 1973). Accordingly, the trial court acted in the best interest of the efficient administration of justice and clearly did not abuse its discretion.

PROXIMATE CAUSE

The accident occurred at an intersection with a complex traffic pattern:

Plaintiffs Gallin and Green testified they were traveling on Almonaster in the river direction when the bakery truck, traveling on Galvez toward the Industrial Canal, ran a red light at the intersection and hit them on the right side in the middle of the car. Both testified they were sure they had the green light. The other passenger in the car, Snyder, stated he was new to the area and did not know what street they were on at the time of the impact but noted that the car was going straight and that the light was green in their favor.

A disinterested witness, Mr. Lemoine testified that he was looking through the window of his shop when he saw the accident. He fully corroborated the plaintiffs’ testimonies as to direction of the vehicles and' stated from his vantage point he could see that the truck had the red light. Although an attempt was made to discredit his testimony by establishing that he had confused this accident with another one occurring three weeks later, the trial court concluded that he was not mistaken.

Mr. Murphy, the driver of the truck, testified that he was on Galvez heading toward the Industrial Canal on a green light when the Green vehicle came into his path. He stated he did not know from which direction it came but knew only that it was right before him when he first noticed it.

Two independent witnesses for defendant corroborated the fact that the truck had a green light, but their testimony was inconsistent in some respects. One witness testified that the truck was traveling on Almonaster. This was in direct conflict with Murphy’s testimony and, therefore, the court completely disregarded it. The other witness, a Mr. Lewis, was a passenger on a Public Service bus at the top of the Galvez Street overpass at the time of the accident. He stated that he saw the Green vehicle traveling on Almonaster in a lake bound direction when it quickly made a left turn and entered the “do not enter” portion of Galvez Street and thereupon collided with the truck. The court noted that this witness had great difficulty expressing himself.

After hearing all of the witnesses the court stated:

“. . . The Court is of the opinion that the testimony of the three plaintiffs, coupled with Lemoine, greatly outweighs Lewis’ testimony, outweighs it to the point where the Court is of the opinion that the plaintiffs have carried their case by a preponderance of evidence for these reasons.”

Based upon our review of the record, we cannot say that this conclusion is manifestly erroneous.

QUANTUM

The accident occurred on March 11, 1972 and all three plaintiffs were thereafter taken to Charity Hospital. Green spent the night there, Gallin remained for six to eight hours and Snyder stayed for three days.

On March 14, 1972 Donald Green saw a Dr. Charles Bowers for the first time. Bowers was informed the patient had been involved in a collision wherein he was thrown from an automobile and was rendered unconscious for five to ten minutes and when aroused was unable to move or raise his right arm. After examination Bowers concluded the patient had experienced a cerebral concussion, lacerations and contusions of the forehead and scalp, contusions and sprains of the right shoulder and cervical sprain (whiplash type injury). The patient was treated with analgesics, muscle relaxers, and daily diathermy and was discharged on April 20 of the same year.

Due to the injury, Green testified he missed work from March 12 through April 2 and then on intermittent days thereafter when he did not feel well. He also stated that the accident gave him blurred vision for a couple of weeks, that he still has dizzy spells and that his left shoulder still gives him trouble.

The trial court awarded Green $434.00 for medical expenses, $390.00 for loss of wages and $3,500.00 for pain and suffering. Plaintiff’s medical evidence regarding his injuries and treatment is uncontradict-ed and therefore we have no basis on which to conclude that this award is excessive.

Lawrence Gallin also saw Dr. Bowers about three days after his discharge from Charity Hospital. On March 14, 1972 the patient told Bowers he had been knocked unconscious in an automobile accident and consequently suffered from severe headaches, pain in left lower chest and back and elbow pain. The doctor noted that the patient could hardly walk and almost had to be carried into the office. He further observed numerous cuts and bruises which had been sutured or otherwise repaired and after examination concluded the patient suffered from cerebral concussion, whiplash of the cervical spine, lumbar strain, laceration of the right eyebrow and right elbow, multiple contusions and traumatic myositis. He was treated with muscle relaxants, antispasmodics, warm baths, plus diathermy and local care to the skin injuries. He was discharged on May 1, 1972.

The bill for Gallin’s treatment came to $797.00. This was considerably higher than Green’s but Bowers stated that Gal-lin’s injuries were much more severe and therefore required double the treatment, e. g., diathermy to the neck and back. The court remarked that “these fees are awfully high” but concluded it was judicially bad business to say they were high in the absence of conflicting medical testimony. Hence, the court awarded $805.00 medical representing Bowers’ bill plus $8.00 for drugs, $910.00 for loss of seven weeks wages, and $4,500.00 for pain and suffering. We cannot say the trial abused its “much discretion.”

Leroy Snyder remained in Charity Hospital for three days after the accident. On March 23, 1972 he saw a Dr. Joseph Braud and informed him he had been in an automobile accident on March 11. The doctor noted the patient had four fractured ribs, pain and discomfort in the neck and right eye, limitation of motion in all directions, multiple scratches on chest and back, swollen and discolored rib cage, and difficulty in breathing. Although he did not specifically remember, he stated he probably treated Snyder with diathermy and hot packs. The patient was thereafter discharged on June 22, 1972, after 43 office visits, and was expected to have no permanent disability.

The court concluded that broken ribs are “rather painful” in that they impair breathing and awarded $8,000.00 for pain and suffering. It also awarded $490.00 for medical expenses and $576.00 for loss of wages. Although somewhat high, the award for pain and suffering is not an abuse of the “much discretion” vested in the trial court. The award for loss of wages is, however erroneous. Both parties stipulated during trial that no claim was to be made for this element of damages. Accordingly, the sum of $576.00 is to be deleted from Snyder’s total award.

The judgment of the trial court is affirmed as to plaintiffs Green and Gallin and as to plaintiff Snyder is amended to delete the sum of $576.00. Defendant is to pay all costs.

Amended and affirmed.

LEMMON, Judge

(dissenting in part).

The combination of an overtreating physician and a perhaps overgenerous trial judge has resulted in awards to Lawrence Gallin and Donald Green which constitute an error of law.

There was no expert evidence that the medical bills of Green ($328.00 for six weeks of office treatment, consisting of daily diathermy at $10.00 each) and Gallin ($797.00 for seven weeks of office treatment) were excessive in monetary amount or that the frequency of treatment was unwarranted, although this excessiveness is patent to experienced attorneys and judges. Nevertheless, since the record does not even suggest that these plaintiffs were at fault in undertaking the excessive treatment and incurring the bills, they are entitled to recover the full amount of the medical bills. Hillebrandt v. Holsum Bakeries, Inc., 267 So.2d 608 (La.App. 4th Cir. 1972).

However, these excessive treatments and medical bills cannot be used to justify an award for pain and suffering which is otherwise unsupported by the record. Such justification is doubly unfair to defendants. The evidence, viewed favorably to plaintiffs, does not support awards greater than $1,750.00 to Gallin and $1,250.00 to Green.

The $8,000.00 award to Snyder is completely unsupported by any medical evidence. He claimed three days of hospitalization at Charity Hospital for broken ribs, but presented no hospital records or supporting evidence. He was treated by a private physician for 15 weeks, but that doctor neither took X-rays nor examined the X-rays taken at Charity. I would hold the proof insufficient as to the rib injury, on which the trial judge based the major portion of his award. Furthermore, the doctor had no records at trial except his medical report which stated a diagnosis of contusions, abr'qsions, cervical sprain and a “history of fractured ribs” and essentially had no independent recollection of the treatment. The total bill was $490.00. That evidence does not support an award greater than $2,750.00.

      . Pursuant to our administrative rules the matter of overruling Resor v. Mouton was submitted to the entire court for a determination of whether this case should be resubmitted to the entire court or whether the panel should hand down its opinion overruling Resor v. Mouton. By majority vote Stoulig, J. dissenting, the panel was authorized to hand down this opinion overruling Resor v. Mouton.

      . Snyder’s treating physician was not the doctor who treated Gallin and Green.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    Succession of Mrs. Augusta Leland, wife of George Evans BURGESS.
    No. 7057.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.

      George E. Burgess, Jr., La Combe, in pro per, plaintiff-appellant.
    Arthur L. Ballin, Frank C. Dudenhefer; Thomas B. Lemann, Monroe & Lemann, New Orleans, for Whitney National Bank of New Orleans; William A. West; George E. Burgess, Sr.; George E. Burgess, III; Jone V. Leland; Mrs. Gene Kenny Rogers; Miss Sharon Elizabeth Kenny and James B. Kenny, Jr., defendants-appellees.
    Before STOULIG, BOUTALL, and BEER, JJ.
   BOUTALL, Judge.

Mrs. August Leland, wife of George Evans Burgess, died February 28, 1971 and her succession was opened by her husband March 1, 1971. Her will was probated and in accordance with its terms, the Whitney National Bank of New Orleans and William A. West were appointed testamentary executors, and accepted the office of co-trustees of certain trusts specified in the will. On May 24, 1971 George Evans Burgess, Jr. filed a petition for a declaratory judgment, declaring the nullity of the trust and for interpretation and nullity of parts of the will, alleging in main that the will and the trusts set up in the will were in effect an attempt to effectively disinherit him and encroach upon his legitime. Following this petition there arose a series of preliminary and procedural matters which have resulted in adverse judgments to Burgess, Jr., and in two separate appeals, he has appealed three of those judgments. Because of the voluminous and conflicting nature of the record and because these are largely preliminary matters, we must consider each separately.

THE FIRST APPEAL

The first appeal was taken from two judgments, one of October 15, 1973 which struck from the record an amended petition filed April 30, 1973, and a judgment of March 4, 1974 which denied a motion for new trial on the previous judgment, refused to permit filing of other amending petitions and ruled on several other issues. Because of the nature of the amending pleadings,' we granted writs permitting a suspensive appeal. Succession of Mrs. August Leland, wife of George Evans Burgess, 295 So.2d 89 (La.App. 4th Cir. 1974). The issue there was simply whether Burgess, Jr. had a right to appeal. The issue before us now is the merits of that appeal.

The procedural posture of the case and the sequence of events is set out in the above cited case, and we see no necessity to repeat them here in detail. It is sufficient simply to state that the appeal before us concerns the right of plaintiff to file the amending petitions of April 30, 1973, October 18, 1973 and October 29, ,1973.

As previously related, the original petition was brought seeking a declaratory judgment interpreting the provisions of the will and certain testamentary dispositions and trusts set up therein, contending that they exceed the disposable portion of the estate and intrude on his legitime. The petition relates a series of facts and legal conclusions which he contends are illegal and prays that a rule nisi issue requiring the executors, the Whitney National Bank and William A. West, show cause why declaratory judgment should not be rendered: Declaring the nullity of the usufruct over his legitime given to his father; declaring null the trust imposed upon his legitime; directing the executors to deliver his legi-time free and clear of all encumbrances; and alternately, to declare parts of the trust null. The various amending petitions proposed to amend the prayer to convert the petition from one which only prays for a rule nisi into an ordinary proceeding, and cause service of petition and citation to issue to all parties. Additionally, the amending petitions add certain other grounds for nullity to various portions of the will and trusts and it makes parties defendant, not only the Whitney National Bank and William A. West, the executors and trustees, but also adds as defendants, his father, George E. Burgess, as a legatee, usufructuary and recipient of the trust income ; his children, George E. Burgess, III and Michael Burgess, who are legatees of the residual estate under a trust arrangement, and several other named individuals who are beneficiaries of special legacies,

The trial judge did not give any reasons for ordering the first amending petition to be stricken from the record and refusing to permit the others to be filed. It is apparent that under Code of Civil Procedure Article 1151 that the amendments herein may be permitted only by leave of court. The court is granted considerable discretion in its decision, and we would not disturb the orderly process of the trial court unless it appears that the decision is in error. Primarily we note that the amending petitions add the above named parties defendants whom we consider to be indispensable parties to the proceedings.

An heir is entitled to bring a declaratory action in matters concerning wills and trusts as provided in C.C.P. Articles 1871, 1872 and 1874. In such a proceeding, C.C.P. Article 1880 requires that all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceedings. If this action was brought directly as an annulment of the probated testament under the provisions of Article 2931, it would be required that the heir proceed against the legatees, the residual heirs and the executor. We perceive no difference in the requirements of this declaratory judgment suit and we hold that the defendants meet the requirements of indispensable parties set out in C.C.P. Article 641.

“Art. 641. Compulsory joinder; indispensable parties

“Indispensable parties to an action are those whose interests in the subject matter are so interrelated, and would be so directly affected by the judgment, that a complete and equitable adjudication of the controversy cannot be made unless they are joined in the action.
“No adjudication of an action can be made unless all indispensable parties are joined therein.”

Certainly the testamentary executors and testamentary trustees are indispensable parties to a suit attacking; the validity of a will and the validity of the trust. It is further not open to argument that the usufructuary of an heir’s legitime and the beneficiary of trust income are indispensable to a suit attacking the validity of the usufruct and the validity of the trust. In considering whether the other named defendants are indispensable or necessary parties (C.C.P. Art. 642), we have to consider more closely the effect of plaintiff’s suit as it relates to them. The two children of plaintiff are legatees of the residual estate. Plaintiff’s allegations are that the terms of the will have infringed upon his legitime, and he asks that his legitime be computed on a basis other than that proposed in the will and by the executors; he asks that those portions of the will which cause his legitime to bear an undue portion of inheritance taxes, etc., due by other legatees be declared null, and he seeks to declare the residual trust null. Under these circumstances the residual legatees are indispensable and not simply necessary parties, and the specific legatees other than the plaintiff’s father and children, are, more likely than not, indispensable parties. Considering the sizable amount of the estate as disclosed in the record at the present time, it really does not appear that those specific legacies could encroach upon plaintiff’s legitime. However when considered with the legacies to Mr. Burgess, Sr. and the two children, it is within the realm of possibility, dependent upon the facts, that their specific legacy might be affected. Nevertheless, we are not in a posture to be able to prejudge the effect of the present litigation upon their ultimate rights, and we are of the opinion that they should be considered as indispensable parties. We reach that result herein for two further reasons, (1) that any taxes, etc. due on their legacies. are required to be paid in the computation of the legitime, and (2) C.C.P. Art. 2931 would require them to be a party.

Concluding that the amending petitions bring these indispensable parties into the suit, we conclude that no valid judgment could be rendered without their inclusion, and hence it is error for the trial judge to have excluded the one amending petition and prohibit the filing of the others.

It is urged to us that two other grounds exist for refusal to file the amending petitions. The first of these is that they were not timely filed. As previously mentioned, the original petition contained only a prayer for a rule nisi, and it is urged to us that that rule was submitted by agreement of counsel for adjudication and is under advisement by the court. There appears in the record a minute entry stating that the matter is under advisement and there is a stipulation between the parties on July 9, 1971, which indicates that a judgment may be rendered in vacation time; that the judgment shall not be rendered until defendants have filed a memorandum of the law and authorities upon which they rely, not later than August 15, 1971; no further action shall be taken by either party in the herein Succession proceedings including the pending litigation until August 5, 1971. As we view the record, it was apparently agreed that the parties would each submit memorandums outlining their positions, and after such filings the matter would then be submitted to the court for judgment. We note that the record contains a number of pleadings subsequent to the stipulation indicating that the agreement was simply abandoned and the case never actually submitted to the court for decision. The plaintiff never submitted a memorandum and the defendant has filed a memorandum considerably later, January, 1973. It is apparent that the memoranda were to be based both on law and facts to be obtained through depositions and interrogatories and these were not forthcoming. If this were not the case, we could not explain the action of the trial judge who has never rendered an opinion in that matter over the long passage of time, but instead has been burdened by numerous pleadings concerning interrogatories, discovery, depositions, and all sorts of preliminary matters, all of which have obviously caused him considerable effort and time attempting to straighten out the issues between these parties. We should point out that there are at least ten rulings of the trial judge involved in the two appeals before us, and he has diligently handled a number of other matters not before us on this appeal.

In addition to our conclusion that the prior stipulation has been abandoned, we point to the provisions of C.C.P. Articles 641, 645, 646, and 927. Having concluded that these are necessary parties, we are compelled to still require their inclusion in the suit.

The other objection to the amendment is the change from summary proceedings to ordinary proceedings. We again mention that the original petition contained simply a prayer for a rule nisi and in effect sought summary relief. To this petition the defendants filed an exception contending that plaintiff was not entitled to relief by summary process. This exception was never disposed of, however we mention it because now by the amended petitions plaintiff seeks relief by ordinary process and the defendant now urges that plaintiff is entitled only to summary process. This we believe to be typically illustrative of the problems which faced the trial judge and now serve to perplex us.

The original petition is a declaratory action and alleges issues of fact. Where issues of fact are concerned, they are to be tried and determined in the same manner as other civil actions. C.C.P. Article 1879. Had not petitioner brought action under the declaratory judgment procedure but directly proceeded to annul a probated testament, he would have been required to file a direct action triable as an ordinary proceeding under C.C.P. Article 2931. We call attention to C.C.P. Article 851 which sets out three modes of procedure recognized in our law, ordinary, summary and executory, and point out that all actions in District Court are ordinary unless otherwise provided. Similarly, summary proceedings are those particularly enumerated in Article 2592 and the only exception of those cases in which the law permits summary proceedings. It is therefore apparent that the original petition brought by plaintiff which sought summary process was incorrect, and that his amending petitions seeking to change his proceedings to ordinary process are correct. The procedure to be followed in connection therewith is that of ordinary proceedings outlined in Book II of the Code of Civil Procedure, including, of course, service of petition and citation on all of the parties.

Accordingly, we are of the opinion that the trial judge erred in not permitting the filing of the amending petitions.

Our conclusions above are dispositive of the issues raised in the judgment of October 15, 1973. Insofar as the judgment of March 4, 1974 is concerned, our conclusions render moot: (1) the motion for a new trial on the motion to amend by adding new parties, and (2) the motion to reopen hearing. They are dispositive of the motion to recognize the proceedings as ordinary rather than summary. There is no issue before us of the denial of the motion filed on behalf of the Succession to strike abusive language which was denied. There only remains two issues which we consider in this appeal because they are related to the issue which validly forms the basis of this appeal.

The first is the motion to permit intervention of George E. Burgess, Sr., and the co-trustees, Whitney National Bank and William A. West. Burgess, Jr. attacks this intervention by virtue of exception of no right of action, ultra vires action and breach of duty. Frankly we do not understand his opposition. On one hand he seeks to implead them as indispensable parties defendant and now seeks to prevent them from intervening. Suffice it to say we have concluded they are indispensable parties and we see no reason to exclude their intervention. We affirm the trial judge’s ruling except to amend it by adding the name of William A. West as trustee.

The last issue is removal of the attorneys for the Succession and trustees. Appellant filed a motion for removal based on alleged conflicts of interest between the executors, trustees and himself, and conflicts between them and other trust beneficiaries and legatees. The trial court has . denied his motion and we agree. The interest they have is enforcing the terms of the will and the trust. That this may run counter to the claims of Burgess, Jr. is the basis of these proceedings. We see no conflict amongst the other parties whose rights flow from the testamentary dispositions. If the interests of those parties run counter to upholding the will and the trusts, they of course may retain their own counsel. The truth or falsity of the matters of fact complained of will have to be determined on the merits of the case.

Accordingly, for the reasons assigned above, it is decreed that the judgment of October 15, 1973 is reversed and the judgment of March 4, 1974 is reversed in part, amended in part, and affirmed in part, and there is now judgment rendered herein as follows: (1) Permitting the filing of the amending petitions of April 30, 1973, October 18, 1973 and October 29, 1973; (2) recognizing the proceedings as ordinary proceedings requiring citation of the various parties and governed by the provisions of Book 2 of Louisiana Code of Civil Procedure ; (3) permitting the intervention of George E. Burgess, Sr. and the Whitney National Bank of New Orleans and William A. West, trustees; (4) affirming the denial of the motion to remove the attorneys for the Succession for a conflict of interest.

THE SECOND APPEAL

The second appeal filed in this case by appellant, George E. Burgess, Jr. is from three judgments, all dated November 1, 1974, most of the rulings therein being on preliminary and interlocutory matters. The only matters contained therein which are of interest on this appeal are those concerning the conflict of interest alleged against the attorneys for the succession and trusts.

Appellant complains to us concerning a number of apparent rulings that the trial judge has made in reference to interrogatories and depositions, but the judgments appealed from contained only the ruling that the appellant is required to proceed in his discovery processes in accordance with the Rules of the Code of Civil Procedure. We are not disposed to consider this matter at all because it is not an appealable issue under the definition of C. C.P. Article 2083, and we do not feel that it is appropriate to consider this type of issue until the matter would be considered by us on the final merits of the case. For us to consider this matter now would greatly hamper and interfere with the orderly processes of the trial court and litigation would never proceed. In this regard it is worthy to note that this present litigation has been proceeding for several years and is still only in the preliminary stages. While this is an unfortunate situation, considering the desire of both parties to bring the matter to a final conclusion, if we were to entertain appeals on such matters, another several years would elapse without any progress being made in the suit.

The main issue put forth in his appeal from these judgments of November 1, 1974, is appellant’s contention that he is entitled to a hearing on the motion to dismiss the attorneys for the executor and the trustees for conflicts of interest. We note that the motion considered in this judgment has basically the same issues put forth Li the prior motion to dismiss that was considered and ruled upon in the judgment of March 4, 1974. The procedural situation is that while the appeal was progressing from the judgment of March 4, 1974, plaintiff, on September 11, 1974, filed a new motion to discharge the attorneys and broadened the basis for discharge, adding numerous detailed allegations. This pleading was met with a number of exceptions and answer filed, the one worthy of note here is exception to the jurisdiction of the trial court, inasmuch as the matter was then pending on appeal and the trial court had been divested of jurisdiction. The trial court maintained the exception to the jurisdiction and reserved the rights of all of the parties in the succession pending further proceedings.

Although there is serious question in our minds as to whether this judgment may be appealed at all, it appearing interlocutory in nature, in view of the fact that the matter was inextricably bound with the first appeal, we consider that we should entertain it as a part of the prior appeal. We affirm the ruling of the trial judge. The matters presented in the new motion are basically upon the same ground as the matters in the motion and judgment previously appealed. However, the second motion contains more detailed factual allegations covering a broader spectrum of alleged conflicts. The trial judge apparently considered that this was basically the same matter reviewable under the first appeal, and that he was divested of jurisdiction by the timely filing of the appeal bond under C.C.P. Article 2088. We note that he cautiously considered that perhaps new issues are alleged, or that the allegations of fact were better detailed, and that there may be a difference in the handling of this new motion. In any event we do not rule upon the validity of the motion to dismiss for conflict of interest, but simply say that the trial judge was correct in concluding that he had no jurisdiction to entertain it pending the present appeal.

For the above reasons, limited to our discussion above, the judgments of November 1, 1974 are affirmed.

The costs of these appeals shall be divided equally between appellants and appel-lees. All other costs shall await a final determination in the case.

Reversed in part, amended in part, affirmed in part.


author: GULOTTA, Judge.

text:
    Henry E. INGRAM et al. v. KAISER ALUMINUM & CHEMICAL CORP. (GRAMERCY WORKS) and United Steel Workers of America, AFL-CIO, Local 5702.
    No. 7133.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.
    Rehearing Denied Jan. 13, 1976.

      Joseph J. Laura, Jr., New Orleans, for plaintiffs-appellants.
    Taylor, Porter, Brooks & Phillips, F. W. Middleton, Jr., Baton Rouge, for defendant-appellee, Kaiser Aluminum & Chemical Corp. (Gramercy Works).
    Dodd, Barker, Boudreaux, Lamy & Gardner, W. H. Boudreaux, Jr., Jerry L. Gardner, Jr., New Orleans, and Cooper, Mitch & Crawford, John C. Falkenberry, Birmingham, Ala., for defendant-appellee, United Steel Workers of America, AFL-CIO, Local 5702.
    Before SAMUEL, REDMANN and GULOTTA, JJ.
   GULOTTA, Judge.

Plaintiffs appeal from a judgment maintaining an exception of no cause of action. The matter came before the State trial judge on remand from the United States District Court following removal to the Federal court and adjudication of Federal questions. Defendants are Kaiser Aluminum & Chemical Corporation (Gramercy Works) and The United Steel Workers of America.

Three plaintiffs, all hourly workers at Kaiser Aluminum & Chemical Corporation and members of a bargaining unit represented by the Union, seek damages consisting of loss of wages, mental anguish and impairment of future earning capacity based on allegations that defendants entered into a conspiracy to unjustly fire plaintiffs. The petition alleges that plaintiffs were promoted from laborers to salaried supervisory positions (foremen) at Kaiser; that under a contract between Kaiser and the Union in existence at the time that plaintiffs were promoted, they continued to accumulate seniority as hourly laborers which permitted them to return to their former capacities in the event their supervisory positions were terminated ; that they were terminated as supervisors because of “reduction in force”; that without notice to them they were deprived of their vested seniority rights by a supplemental agreement between Kaiser and the Union entered into in July, 1971, subsequent to their promotion, but prior to their termination on September 24, 1971; that the supplemental agreement did not provide for accumulation of seniority when an hourly worker was promoted to a supervisory job and returned to his hourly employment. According to plaintiffs, the supplemental agreement prevented their return to hourly employment with Kaiser and thereby deprived them of employment without due process of law and also deprived them of their vested seniority-rights.

The United States District Court rendered a summary judgment in favor of defendants on those matters involving Federal questions. In written reasons, the Federal trial judge stated the following issues were presented:

1. Were the petitioners deprived of due process of law by the change in the seniority agreement of 1971 ?
2. Did the Union violate any duty it owed petitioners by negotiating this change ?
3. Are seniority rights accrued under a contract “vested” so that they cannot be altered by a later agreement ?
4. Was there any duty on the part of either Kaiser or United Steel Workers to notify petitioners of the 1971 negotiations or the seniority changes made therein?

In an opinion handed down on May 24, 1973, and a supplemental opinion dated October 25, 1973, the Federal trial judge decided the questions enumerated above against the plaintiffs. See Ingram v. Kaiser, Civil No. 72-2680 (E.D.La. May 24, 1973). The opinion went on to say that plaintiffs’ claims that defendants conspired to unjustly fire them raise allegations of a tort under state law. The matter was then remanded to the state court for consideration of the tort claim. No appeal was taken from that judgment. The same enumerated issues raised in the Federal District Court were raised in the state trial court and are reurged on appeal.

Because the issues relating to plaintiffs’ contractual and seniority claims have been disposed of and are now res judicata, we are confronted with the now narrow remaining issue, i. e., whether or not plaintiffs were unjustly terminated without cause.

LSA-C.C. art. 2747 provides:

Art. 2747. Contract of servant terminable at will of parties
“A man is at liberty to dismiss a hired servant attached to his person or family, without assigning any reason for so doing. The servant is also free to depart without assigning any cause.”

In conformity with the foregoing Codal provision, the courts of this state have enunciated the principle that in those instances where the hiring of an employee is for an indefinite period, the contract is terminable at the option of either employer or employee, and the services of the employee may be discontinued by the employer at any time with or without cause. Senac v. L. M. Berry Company, 299 So.2d 433 (La.App., 4th Cir. 1974); Baker v. Union Tank Car Company, 140 So.2d 397 (La.App., 1st Cir. 1962). Only where a contract of employment has been entered into for a definite term is good and just cause required for termination during that term. See LSA-C.C. art. 2748. No allegation is made, nor do plaintiffs contend, that they were employed for a definite term.

Plaintiffs’ petition fails to state a cause of action. The judgment is affirmed.

Affirmed.

      . Plaintiffs do not seek reinstatement.

      . Henry E. Ingram was promoted on August 1, 1967. Evans Alleman was promoted on July 1, 1970, and Louis F. LeBlane, the third plaintiff, was promoted on December 15, 1969.

      . See Transamerica Insurance Company v. Whitney National Bank of New Orleans, 251 La. 800, 206 So.2d 500 (1968); Swope v. St. Mary Parish School Board, 256 La. 1110, 241 So.2d 238 (1970). Res judicata, among other things, was raised in argument. Whether or not res judicata was properly plead is problematical. However, we find no necessity of considering this question because clearly the petition fails to set forth sufficient facts upon which to base a cause of action in tort in a state court. Furthermore, the insufficiency cannot be cured by amendment since plaintiffs’ claim is based on employment for an indefinite term.


author:
MORIAL, Judge.
      REDMANN, Judge

text:
    Succession of Clifford Joseph TROXLER.
    No. 7012.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.
    Rehearing Denied Jan. 13, 1976.
    Writ Refused March 12, 1976.
    George W. Gill, Jr., New Orleans, for plaintiff-appellee.
    Becnel & Kliebert, Thomas J. Kliebert, Vacherie, for defendant-appellant.
    Before REDMANN, BOUTALL and MORIAL, JJ.
   MORIAL, Judge.

The sole question in this case touches the caducity of the last will and testament executed by Clifford Joseph Troxler, who died on September 11, 1974.

The testator in his will of January 9, 1969 bequeathed to his children named in the testament “ * * * their forced or legitimate portion of my [his] estate * * * it js admitted that a legitimate child was born to the testator on December 28, 1971. In the will no provision is made for the subsequent birth of a child.

LSA-R.C.C. Article 1705, except to the extent that it permits a testator to make provision to avoid the statutory revocation of his testament, is absolute and imperative. We see nothing in the record to warrant the inapplicability of the clear mandate of LSA-R.C.C. Article 1705.

The judgment of the district court is affirmed.

Affirmed

REDMANN, J., dissents.

REDMANN, Judge

(dissenting).

A testator whose will leaves to his wife the entire disposable portion and to his four children only their forced portion unmistakably sets forth — beyond argument— that he does not want those four children to have their full intestate share of his estate if his wife survives him. Therefore, at least by inescapable implication, the testator has “declared in the testament” or made “testamentary provision” against applying a statutory rule which would give those four children an intestate share at the expense of the wife’s legacy.

The question is whether this testamentary declaration or provision is sufficient within C.C. 1705 to prevent, at least in part, the revocation of the will by the birth of a fifth child three years after the will was written. The wife (who was also named executrix) appeals from a judgment declaring, on demand by the testator’s major child of a first marriage, that the will was entirely revoked by the subsequent birth.

Art. 1705’s provision for revocation is not found in the 1804 Code Civil of France; see Planiol, Civil Law Treatise (La.Law Inst, trans.), Ill, 2852; Aubry & Rau, Testamentary Successions & Gratuitous Dispositions (La.Law Inst, trans.), § 724. In Louisiana, neither the 1808 Digest nor the 1823 Projet provides this revocátion. It does appear in the 1825 Code, art. 1698. Its apparent source is the 13th century Las Siete Partidas, Bk. 6, tit. 1, law 20, which had force in Louisiana prior to the 1825 Code; see Comment, 15 Tulane L.Rev. 272, 275 (1941); Succession of Carbajal, 1923, 154 La. 1060, 98 So. 666; Succession of McRacken, 1926, 162 La. 443, 110 So. 645.

Carbajal refused to apply the unqualified revocation rule of the unamended text of Art. 1705: “The testament falls by the birth of legitimate children of the testator, posterior to its date.” Carbajal’s testator had six children and his wife was expecting the seventh when he wrote his will, leaving to his wife his movables and the usufruct of his immovables, and providing, the court said, “that his unborn child should share equally with the others in the remainder of his estate.” 98 So. at 668.

The pivotal reasoning in Carbajal is that “we are not compelled to give literal effect to words of a law, when the result would be to deny a particular class a fundamental right [that of testation] enjoyed by all other citizens, when the reason or underlying cause for the distinction has ceased to exist.” (On Carbajal’s narrower factual situation, the class denied testation would have been only parents expectant at the time of writing a will.)

The I960 and 1974 amendments to art. 1705 have conformed the article to Carba-jal and additionally allowed testamentary prohibition of revocation even if no testamentary provision is made for the after-born child.

In my view the reasoning of Carbajal remains applicable: the right of testation is fundamental; it cannot be defeated by revocation for a cause that does not justify revocation.

Especially since the amendment of art. 1705, an unprovided-for after-born child does not justify revoking the will, except to the extent that the providing of an intestate share for that child requires revocation.

In every case, the patent reason for revocation by subsequent birth is the natural supposition that the testator would no longer intend his estate to be distributed under a will which made no provision for his child because executed when the child did not exist; Lewis v. Hare, 1853, 8 La.Ann. 378; McRacken, supra; Carbajal, supra.

However, not even in Las Siete Partidas was the rule of revocation absolute: after-born (or after-adopted) children only revoked wills “in which they have not been established as heirs.” Thus if the testator’s intent were that the will should govern despite the subsequent birth (as shown by his will’s provision making the after-born child an heir), the Partidas’ law of revocation by its own terms did not apply.

The 1966 amendment to C.C. 1705 has recognized anew and given greater force to the basic principle that it is the testator’s intent which governs (compare C.C. 1712), and now, to the extent that the testator’s intent is clear, the law need no longer supply “by its own foresight the want of foresight of the testator” (Lewis, supra, 8 La.Ann. at 379).

Our testator did not have the foresight to give, in his will, complete instructions: but he has at least provided that, rather than pure intestacy resulting in each of his children inheriting a fifth, he wanted the first four children to have only one-fourth each of the two-thirds forced portion, and he wanted everything else that those four children would otherwise inherit to go to his widow. It is unclear whether he would have wanted each of those four to have only a fifth of the forced portion, since at the time of his will “their” forced portion was a fourth each of the overall two-thirds forced portion: it is certain that he considered that fourth adequate for those four, but it is not certain that he wanted his widow to have the entire disposable portion even if her having it would reduce the share of those four from a fourth of the two-thirds forced portion to a fifth. (Compare C.C. 1722’s rule on the time as of which legacies should be construed.)

Therefore the subsequent birth of the fifth child cannot have the effect of complete revocation, including increasing the share of the four pre-existing children who were provided for in the will. The birth of the fifth child inescapably revokes the will only to the extent necessary to provide an intestate share of one-fifth to be inherited by the after-born child. The resulting partial revocation cannot reduce the legacies to the four other children, because full revocation would bring those children a larger share: therefore the rule providing revocation cannot, by limiting its effect, be construed to bring them a smaller share. The partial revocation can only reduce the legacy to the wife — which would be reduced to zero were revocation to produce intestate distribution. The wife’s legacy must therefore be limited to the disposable portion less the after-born child’s inheritance of a fifth (which, insofar as composed of community property, is subject to the wife’s usufruct, C.C. 916).

One last point: the interpretation of C. C. 1705 to declare ineffective the will’s appointment of an executor or attorney, or directions for disposition of the testator’s remains or the like, is unconstitutional because it provides a capricious and whimsical result in no way related to C.C. 1705’s legitimate purpose. Carbajal’s principles oblige us not to deny the executrix-naming aspect of testation to our testator, irrespective of whether after-born children’s inheritance rights prevented the effectiveness of legacies of the disposable portion. The after-born child, at least during minority, cannot be executor (or attorney or mortician or clergyman): why, then, should his birth defeat the testator’s provisions on these matters?

      . At the time of confection of decedent’s testament and the posterior birth of his child R.O.C. Article 1705 provided:
      “A testament is revoked by the posterior birth of a child to the testator or by the subsequent adoption of a child by the testator, unless the testator has declared in the testament that such an event shall not revoke the testament; provided however, that in no event shall this article be interpreted in such a manner as to impinge upon the legitime of a forced heir.”
      Acts of 1974, No. 209, which was effective at the time of the testator’s death, amended and reenacted R.O.C. Article 1705 to provide:
      “A testament is revoked by the subsequent birth of a legitimate child to the testator or by the subsequent adoption or legitimation of a child by the testator, unless the testator has made testamentary provision to the contrary or has made testamentary provision for such child.”
      Insofar as applicable here we deem the provisions are in substance identical. ‘

      . The text of C.C. 1705, at the time of the birth of the fifth child and at the time of the testator’s death, are found at n. 1 of the majority opinion.

      . “en que non ouissen seydo establescidos por herederos.”

      . A significant difference in wording occurs in Spain’s 1889 Código Civil, art. 814: the omission from the will of any'existing or after-born child annuls “the institution of heir” (“la institución de heredero”) but not the will itself, and specifically not the testamentary directions (“mandas,” presumably including directions as to who was to be executor or attorney) nor provisions for extra portions (“mejoras”). See Manresa, Comentarios al Código Civil, VI, 375-380.

      . On the other hand, partial revocation of the legacy of the disposable portion does not result in a “portion of the succession remaining undisposed of” which falls to the intestate heirs (all of the children) under C.C. 1709. The testament did dispose of all of the testator’s property.

      .(1) The effect of this construction of C.C. 1705 is similar to that long given to C.C. 3061 by cases such as Saulet v. Trepagnier, 1847, 2 La.Ann. 427.
      C.C. 3061 provides that “The surety is discharged when by the act of the creditor, the subrogation to his rights, mortgages and privileges can no longer be operated in favor of the surety.” (Emphasis added.) However, Saulet and its progeny read art. 3061 to provide, in effect, that “the surety is discharged to the extent prejudiced . . . . ”
      The effect of the proposed construction of C.C. 1705 is to read it to provide that “A testament is revoked to the extent necessary to provide an intestate share for any after-horn children . . . . ”

      (2) The basic effect of this reading of C.C. 1705 is to partially revoke legacies to persons who would not take intestate, in order to provide the intestate share of after-born children. Since this reading of art. 1705 gives the after-born a right to claim an intestate share analogous to the right of every omitted forced heir to claim a legitime, the articles on reduction of testamentary donations (C.C. 1510-1514) could provide principles applicable by analogy, and thus the basic rule could be “the reduction [the partial revocation] shall be made pro rata, without any distinction between universal dispositions and particular ones,” C.C. 1511.
      (3) Of some interest, by analogy, is our 1808 Digest, p. 224, art. 74 (see West’s LSA-Civil Code, Compiled Ed.C.C. of La., Vol. 17, p. 757), providing that “all donations inter vivos made by persons having neither children, nor descendants actually living at the time of the donation, . . . shall continue revoked of right [demeureront révoquées de plein droit] by the birth of children to the [donor] . . . .” [Compare Spain’s Código Civil art. 644’s similar provision.] By thus limiting complete revocation to cases of no pre-existing children (following C.N. 960), the 1808 Digest recognized that complete revocation in cases of pre-existing children was a non-sequitur: the donor who already has children yet donates to the prejudice of those children cannot be supposed not to have realized that his children would be prejudiced by the donation. See Planiol, III §§ 2657-2676; Aubry & Rau, § 709.
      Louisiana’s 1808 Digest (like the French Code) did not, however, have a provision similar to today’s C.C. 1705. When the 1825 Code redactors included the substance of today’s C.C. 1705 (from Spanish sources), they modified the quoted 1808 rule, to revoke inter vivos donations only to the extent the disposable portion was exceeded; C.C. 1556 (1825). This 1825 revocation-rule was wholly unworkable while the donor lived, since it is impossible to determine the disposable portion before the testator is dead (by which time fortune good or bad may have altered his estate drastically). Moreover, the 1825 revocation-rule was an unnecessary duplication of every forced heir’s right of reduction of excessive donations, irrespective of whether the forced heir pre-existed the donation. Presumably these considerations prompted the 1870 Code’s redactors to omit any provision similar to the 1825 Code’s art. 1556.
      (4) Finally, it is noted that the subsequent birth of a child where none previously existed requires 100% of the estate to give that child his intestate share — as would the birth of two subsequent children if there pre-exist one, two, three or four other children.
      In all other cases, however, the birth of one or even two children would not require 100% of the net estate to satisfy the after-born children’s intestate shares: some fraction will be left which could still go to the legatees of the disposable portion without conflicting with the raison d’etre of C.C. 1705. (For example, if five or more children pre-existed, their testament-time forced portion would have been two-thirds, and two after-born children would together take two-sevenths or less, which is less than the remaining third, thus leaving some fraction available for the other legatees.)

      . In Spain — the ancient source of C.C. 1705 —the 1889 Codigo Civil, art. 814, avoids such a result; see n. 3, supra. See also Green v. Baptist Church of Shreveport, 1875, 27 La. Ann. 563, which rejected the demand of an after-born child to annul a sale by an executor named in the (revoked by C.C. 1705?) will. (The succession was insolvent; the court reasoned “we do not see how [the child] has been injured by the sale of which she complains.”)


author: SCHOTT, Judge.

text:
    Mrs. Leonard LEVY v. Mrs. Gayle K. DUCLAUX and Mrs. Patsy Desforges, d/b/a the Lazybug Shop, Defendants-Appellants, and Employers-Commercial Union Insurance Company of America, Appellees.
    No. 7117.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.
    Rehearings Denied Jan. 13, 1976.
    Writs Refused March 9, 1976.

      Stephen R. Plotkin, New Orleans, for plaintiff-appellee.
    Henican, James & Cleveland, C. Ellis Henican, New Orleans, for defendants-appellants.
    Drury, Lozes & Curry, Rene A. Curry, Jr., New Orleans, for defendant-third party defendant-appellee.

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

This action for damages arose out of an incident which occurred on September 30, 1971, in a shop owned and operated by defendants, Duclaux and Desforges, where plaintiff was accused of shoplifting by one of defendants’ employees. The primary defense was immunity from liability by virtue of LSA-C.Cr.P. Art. 215 and the comment thereunder. Defendant insurer also defended on the basis that its policy of insurance on the shop owners did not protect them against the loss pleaded and proved at the trial. Mrs. Duclaux and Mrs. Desforges also filed a third-party demand against the insurer seeking indemnification and cost of their defense.

The trial judge awarded to plaintiff judgment for $3,250 against Duclaux and Desforges but dismissed the main and third-party demand against the insurer. Mrs. Duclaux and Mrs. Desforges have appealed and plaintiff answered the appeal, seeking an increase in quantum, but the judgment dismissing the main demand against the insurer is final.

Plaintiff’s evidence mainly consisted of her own testimony and that of two other customers who were in the store at the time of the incident. Defendants’ evidence mainly consisted of the testimony of Mrs. Duclaux, her sister, an employee and another customer. As usual, there are numerous minor discrepancies in the testimony of these various witnesses but certain facts are uncontradicted.

The store operated by defendants was a small ladies dress shop, containing approximately 1,000 square feet of floor space. On the evening of the incident the store was conducting a “midnight sale” during which the purchase of two dresses would entitle the purchaser to a third one free. Plaintiff entered the store in the company of her four year old child, and after making several selections from a dress rack she stood in a line of customers who were waiting to enter dressing rooms where they could try on the garments they were considering purchasing. Stationed at the head of this line was Carol Johnson, an employee of the store, who had the duty of counting the garments each customer had prior to her entering the dressing room and counting the garments each customer had on her exit from the dressing room so as to eliminate the possibility of a theft occurring while a customer was inside a dressing room. Johnson recorded these numbers on a pad.

At this point the evidence is somewhat conflicting. According to plaintiff, she had selected and had with her five garments with hangers when she arrived at the head of the line and was confronted by Johnson. But Johnson testified that she then counted six garments with hangers at which time plaintiff told her that she had only five. Thus, Carol Johnson was then aware of a serious and significant discrepancy between the number she had counted and entered on her record and the number which plaintiff was saying she had. Yet Johnson said and did nothing to resolve this discrepancy, but, instead, permitted plaintiff to enter a dressing room.

Upon her exit from the dressing room plaintiff had five garments as she had indicated before she went in. She returned the garments to Johnson and returned to the dress rack a few feet away for the purpose of selecting a third garment to go with two of the others which she intended to purchase. At some point in this period of time she was approached by Johnson with questions as to whether plaintiff had taken merchandise belonging to the store. Johnson was apparently convinced that plaintiff had a sixth garment all along since before she entered the dressing room. Plaintiff and her two witnesses testified that Johnson was joined by another- store employee, that they grabbed plaintiff while Johnson continued to question her and that they tugged at her purse. This testimony on physical restraint was contradicted by Johnson and another customer called by defendants, but a sister of the store owner who was stationed at the front door of the premises admitted that she stopped plaintiff in an attempt to prevent her from leaving and to enable Johnson to question plaintiff. There is also a conflict as to whether plaintiff left the store or not with plaintiff and her two witnesses saying that she never left the store and defendants’ witnesses testifying that she did leave with Johnson right behind her, both to return a few minutes thereafter. Whether she left or not plaintiff then emptied her purse on the floor of the store and raised her blouse and lowered her slacks within sight of the store owner and everyone else in the shop to show the absence of any garment beneath her own clothing. During these events there were from 40 to 60 people in the store and plaintiff became progressively excited to the point of crying and becoming hysterical.

The trial judge in reasons for judgment made a number of factual determinations and resolutions of conflict in the testimony of the witnesses which are accepted by us, since there is no manifest error with respect to these determinations. He found that the trial revolved around the testimony of the various witnesses “as to whether or not there was ... an accusation against the plaintiff, a search of the plaintiff and/or a detention of the plaintiff . . . ” He summarized the facts as follows :

“The defendants’ witness testified that she was checking the customers prior to the time that they went into the dressing room, and, when she reached the plaintiff, she counted the garments and allegedly counted six garments. The employee then asked the plaintiff how many garments she had, and the plaintiff indicated that she had five garments and not six. It would appear to this Court that, since the checker was there and the purpose of the checker being there was to avoid any sort of shoplifting, that the checker should have, at that time, called to the attention of the plaintiff an error, if one existed, as to the number of pieces. The evidence indicated from the testimony of the defendants’ witness that she jotted down the number six without calling to the attention of the plaintiff the discrepancy. The plaintiff testified that she picked out five pieces of clothing, but there was a long waiting line at the time that she got there of some five or six people, that she knew they were checking the number of pieces for each person who went inside the dressing room and told the checker that she had five pieces.
“It is from this incident alone that appears to have stemmed the whole incident. The dresses evidently were placed back on the rack, the defendant, believing the plaintiff to have six pieces rather than five, followed her through the store, through the aisles, . . .
“. . . the plaintiff . . . after a series of, evidently, confrontations or conversations with the defenc^mt, or its employees did certain gestures such as dumping her purse on the floor to show that she had nothing that belonged to the defendants, pulled her pants down some four inches to show, evidently, that she had nothing under her pants which might belong to the defendants, and, as indicated by most people, became extremely hysterical and did not completely recover until her husband arrived and calmed her down. ...”

The court found that plaintiff was “an extremely high strung individual, evidently easily taken to becoming extremely nervous in any sort of situation of stress” and that she did become “anywhere from loud to hysterical.” He concluded that plaintiff suffered damage consisting of humiliation and embarrassment in the presence of a crowd of between 40 and 60 people, for which she was entitled to compensation in the amount of $2500 and mental pain and suffering, which he found from her testimony persisted until the trial began in October, 1973, and ended in April, 1974, for which he awarded her $750.

In this Court defendants contend, as they did in the trial court, that they are immune from liability by virtue of LSA-C.Cr.P. Art. 215 and comment (e) thereto which provide as follows :

“A peace officer, merchant, or a specifically authorized employee of a merchant, may use reasonable force to detain a person for questioning on the merchant’s premises, for a length of time not to exceed sixty minutes, when he has reasonable cause to believe that the person has committed theft of goods held for sale by the merchant, regardless of the actual value of the goods. The detention shall not constitute an arrest.”
$ ‡ ‡' sfc ‡ ‡
“OFFICIAL REVISION COMMENT
“(e) The special provision in former R. S. 15:84.6, granting immunity from criminal and civil liability to a peace officer, merchant, or merchant’s specifically authorized employee, who detained a person for questioning, is not included. If the detention is authorized under the first paragraph, immunity from both criminal and civil liability will naturally follow. If the peace officer, merchant, or employee does not comply with the terms of the first paragraph, the detention will not be authorized and there should be no immunity.”

Defendants argue that there is an implicit error in the trial judge’s reasons in that he did not make a factual determination that defendants did not have reasonable cause to believe that plaintiff had committed a theft before they detained her for question. They contend that they had such reasonable cause and were therefore clothed with the immunity from civil liability discussed in the comment (e).

While the reasons for judgment do not in so many words find that defendants did not have reasonable cause to believe that plaintiff had committed a theft we think this finding is implicit in the reasons. Furthermore, our own review of the evidence convinces us that they had no reasonable cause to believe that plaintiff had committed a theft. There is no suggestion by any of the witnesses that anyone was suspicious of plaintiff before she reached the head of the dressing room line. Only when the discrepancy in the number of garments developed did plaintiff come to the attention of any of defendants’ employees for the first time. So the question is whether this event and those immediately following provided a reasonable cause for defendants to believe that plaintiff had committed a theft.

When Carol Johnson discovered the discrepancy before plaintiff entered the dressing room it was incumbent upon her then and there to straighten out the matter. Otherwise, the purpose of the counting procedure would be defeated. Its obvious purpose was to prevent a customer from secreting a garment either on her person, beneath her clothes, or inside of her purse while she was inside of and protected by the privacy of the dressing room. If a customer came out of the dressing room with fewer garments than she had when she entered Carol Johnson might have reasonable cause to believe that the customer had committed a theft. But here Johnson permitted plaintiff to enter the dressing room already knowing about the discrepancy and then accused plaintiff of theft on the basis of a discrepancy which was bound to exist after plaintiff left the dressing room. Under these circumstances defendants did not have reasonable cause and were not immune from liability for their actions which followed.

Our conclusion on this point is consistent with those in Stewart v. J. C. Penney Co., 267 So.2d 925 (La.App. 1st Cir. 1972), Williams v. F. W. Woolworth Co., 242 So. 2d 16 (La.App. 4th Cir. 1970) and Chretien v. F. W. Woolworth Co., 160 So.2d 854 (La.App. 4th Cir. 1964) writ refused, 246 La. 75, 163 So.2d 356. The facts of the instant case are in sharp contrast with Lasseigne v. Walgreen, 274 So.2d 480 (La. App. 1st Cir. 1973), Durand v. United Dollar Store of Hammond, Inc. 242 So.2d 635 (La.App. 1st Cir. 1970) and Eason v. J. Weingarten, Inc., 219 So.2d 516 (La.App. 3rd Cir. 1969) where opposite conclusions were reached and the merchants were found to have reasonable cause to believe that thefts had been committed.

Defendants’ actions consisted of detaining plaintiff and the evidence preponderates to the effect that this detention consisted of physical restraint on plaintiff. But the gravamen of plaintiff’s case is that defendants accused plaintiff of theft and made it appear to a large number of people that she was a suspect if not an actual shoplifter. Since defendants had no evidence of plaintiff’s guilt and not even reasonable cause to believe her guilty their conduct was unjustified and actionable for any damages plaintiff sustained. Obviously, this was humiliating and embarrassing to plaintiff, and the record supports the trial judge’s finding that she suffered mental anguish, pain and suffering. See An-not. 29 A.L.R.3d 961 (1971).

Defendants have cited many cases to show that the judgment of the trial court is excessive especially since plaintiff never consulted a physician and lost no time from her job after the incident. But the trial judge’s findings quoted above are supported by the evidence and defendants have not demonstrated that he abused his discretion in setting the amount of the award. See Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974). The same disposition must be made of plaintiff’s contention that the judgment is inadequate. See Bitoun v. Landry, 302 So.2d 278 (La.1974).

The question of the insurer’s liability is perhaps the most difficult one in the case. Defendants, as third-party plaintiffs, contend that the insurance company is liable to them at least for the cost of defense if not for indemnification as well. To solve the problem, the first consideration must be the wording of the policy itself.

An “Owners’ Landlords’ and Tenants’ Liability” policy, it purports to insure defendants as tenants of the premises where the incident occurred as follows:

“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
Coverage A. bodily injury or
Coverage B. property damage
to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use of the insured premises and all operations necessary or incidental thereto, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, . . . ”

The policy contains the following definitions :

“ ‘bodily injury’ means bodily injury, sickness or disease sustained by any person;
‡ ‡ ‡ s|c ü¡t
“ ‘occurrence’ means an accident including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured;”

The focal point of the insurer’s defense is on the terms “bodily injury” which it maintains was neither alleged nor proved by the plaintiff.

In determining whether the insurer had a duty to defend in this case we have the following statement from American Home Assurance Company v. Czarniecki, 255 La. 251, 230 So.2d 253:

“Generally the insurer’s obligation to defend suits against its insured is broader than its liability for damage claims. And the insurer’s duty to defend suits brought against its insured is determined by the allegations of the injured plaintiff’s petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage.”

In plaintiff’s petition the following allegations are included:

“5.
That after examining a number of dresses, plaintiff was forcibly and violently seized, assaulted and laid hold of by an employee of the defendant, acting within the course and scope of her employment, and at that time and place, falsely, publicly and maliciously accused the plaintiff of having stolen from the defendant some of the dresses on sale.
“8.
That said employee/owner refused to release the plaintiff, but on the contrary, then and there in the performance of their duties and acting within the scope of their authority, without any probable or reasonable cause therefor, threatened plaintiff with prosecution for the alleged theft, and with the knowledge and consent of the defendants, again forcibly and violently seized, assaulted, and laid hold of the plaintiff and against her will and consent, falsely and maliciously detained and imprisoned the plaintiff and compelled her to submit to a search or examination of her clothing and person at the hands of the employees of said defendant, for the alleged purpose of dis.covering the property claimed to have been stolen from the defendant, without any reasonable or probable cause and contrary to the laws of this State.
“9.
That by reason of said assault and said false and malicious arrest, detention and imprisonment of the plaintiff, plaintiff was subjected to great indignities, humiliation and disgrace, and was compelled to walk the entire length of defendant’s store surrounded by a huge crowd of shoppers who were made aware that the plaintiff had been arrested, detained and was going to be charged with a theft.
“10.
That by reason of such exposure, arrest, detention, imprisonment and search of the plaintiff by said defendants, or their agents, acting within the scope of their employment and with the knowledge and consent of the defendant, the plaintiff was greatly injured in her credit and circumstances, and was then and there hindered and prevented from performing and transacting her necessary affairs and business and was caused to suffer much pain in both mind and body.
“12.
That as a result of said incident, plaintiff became shaken, upset, disturbed, humiliated and embarrassed, resulting in her being reduced to violent fits of crying at the time of the accident and thereafter, as well as, the crying and violent, uncontrollable, emotional reaction expressed by her minor daughter as a result of this humiliation.
“13.
That plaintiff was detained for approximately one and one-half (1^4) hours before she was permitted to leave, and although she insisted that the defendants call the police, the defendants failed to and/or refused to call said New Orleans Police Department to investigate the incident.
“14.
That it was necessary for plaintiff’s husband to come to the defendant’s premises and convey his wife and child to the family home, because said plaintiff was unable, due to her emotional condition caused by the acts of the defendant, to drive the family vehicle home and as a result thereof, said plaintiff has been forced to use tranquilizers and other medication for relaxing purposes to forget this outrageous incident.

“IS.

Petitioner itemizes her damages as follows :

1. Humiliation and embarrassment $25,000.00
2. False imprisonment and/or detention 25,000.00
3. False search and seizure 25,000.00
4. Mental pain and suffering (past, present and future) 25,000.00
$100,000.00”

Defendant insurer would have us confine this inquiry to the allegations of paragraph 15 which do not seem to allege bodily injury although concepts of detention and false searching and seizure certainly connote some injury to one’s body. Nonetheless the rule of the last cited Supreme Court case is that the insurer has the obligation to furnish the defense “unless the petition unambiguously excludes coverage” and when all of these allegations are taken together the only conclusion can be that the petition may be ambiguous but it does not unambiguously exclude coverage. The policy required defendant to defend its insured even if the allegations had proved to be “groundless, false of fraudulent,” so that defendant is liable to Mrs. Duclaux and Mrs. Desforges for their cost of defending the suit.

They seek the sum of $3500, but the sole basis for that figure is the contract entered into between them and their present counsel. This figure is not controlling on defendant insurer and the only sound basis for recovery is the fair value of services performed by defendants’ counsel during conduct of this litigation. Since the record does not contain any evidence as to the amount of time required in the investigation and trial of the case along with a fair unit value for the attorney’s services, the case must be remanded to the trial court so that evidence can be taken which would provide the trial judge with a proper basis for making an award to defendants against the insurer of attorney’s fees and costs.

On the question of its liability for indemnification under the policy, the insurer contends that plaintiff suffered no bodily injury whatsoever and that the humiliation, embarrassment, mental anguish and anxiety suffered by plaintiff cannot be equated with bodily injury as defined in the policy.

The insurer relies heavily on Carimi v. Saia, 301 So.2d 895 (La.App. 4th Cir. 1974) and Nickens v. McGehee, 184 So.2d 271 (La.App. 1st Cir. 1966) to support its position in this regard.

In the Carimi case this Court held that a plaintiff was not entitled to recover damages for emotional distress he suffered over damages done to his automobile where he was not physically injured and was not even present when his parked car .was damaged. A distinction was made as to Cooper v. Christensen, 212 So.2d 154 (La.App. 4th Cir. 1968) and Holmes v. Le Cour Corp., 99 So.2d 467 (La.App. Orl. Cir. 1958), in both of which there was medical evidence of illness or bodily harm accompanying mental distress. In Carimi the Court considered the result to be consistent with Todd v. Aetna Casualty & Surety Company, 219 So.2d 538 (La.App. 3rd Cir. 1969), writ refused 254 La. 13, 222 So.2d 66, where recovery was denied for wrongful death of an automobile owner who suffered a heart attack and died upon seeing his damaged car recovered from a ditch,

The instant case can be distinguished from Carimi in several respects: Our plaintiff was present and was herself the victim of some physical abuse by being grabbed. She was subjected to immediate mental distress upon being accused a shoplifter in the presence of many people. While such an emotional experience operates primarily on the mind of a victim such suffering cannot be isolated from the body. Some physical effects must flow from the experience even if only confined to increased perspiration or adrenaline in the system. Like the Cooper and Holmes cases, in the instant case plaintiff had evidence, though not corroborated by a medical witness, that she suffered after effects, testifying that she took medication and her ability to work was lessened following the incident. The latter was to some extent corroborated by testimony of her employer. The Todd case can be distinguished because the result was unforeseeable but where a merchant accuses one of shoplifting, especially in the presence of others, emotional stress on the part of the accused customer is certainly foreseeable.

The foregoing is not directly concerned with the problem at hand which is not the right of plaintiff to recover against the defendant merchants but rather the liability of the merchants’ insurer under its insurance policy. But the insurer argues that the same restriction made on recovery for damages without bodily injury in Carimi and Todd provides an insight into the proper definition of “bodily injury” in its policy. We have concluded that these cases when analyzed indicate that bodily injury does encompass the kind of injury suffered by plaintiff in the instant case.

But more pertinent to the issue is the Nickens case in which the Court construed a liability policy affording indemnity against claims for bodily injury to exclude coverage for mental anguish sustained by lessees over the destruction of their personal effects in a fire. The Court said:

“In its usual significance the term ‘bodily injuries’ is understood to mean hurt or harm to the human body or some member thereof by contact with some external force or violence either accidental or intentional. In this respect the terms ‘bodily injury’ and ‘physical injury’ appear to be synonymous considering each contemplates actual physical harm or damage to a human being. However, mental distress, unaccompanied by bodily injury resulting from the application of some external force to an individual, is not generally regarded as physical or bodily injury. It is, nevertheless, within the purview of the term ‘personal injuries’ which classification is not confined to ‘physical or bodily injuries’ but extends to injuries to one’s feelings and emotional distress or disturbance resulting from abuse, slander or libel, Martin v. Derenbecker, 116 La. 495, 40 So. 849; and in some instances from breach of contract, Lewis v. Holmes, 109 La. 1030, 34 So. 66, 61 L.R.A. 274.”

When this language is analyzed particularly in the light of the facts of the Nickens case as opposed to the instant case, we reach the conclusion that the term bodily injury in the policy of our insurer does include plaintiff’s injuries. In the Nickens case there is absence of any contact between an external force or violence and distress plaintiffs sustained over the loss of their personal effects. There the plaintiffs were not at the premises at the time of the fire. In the instant case, the plaintiff was personally exposed to some minimal physical abuse as well as the external force of being accused a shoplifter in front of many witnesses. The damage instantly resulted from the application of that force. This situation is entirely different from one where a hypothetical plaintiff might hear that a hypothetical defendant had some weeks previously said that plaintiff was a thief, because the sudden humiliation, embarrassment and mental anguish did not set in immediately upon the direct application of the accusation. Perhaps the distinction being drawn can be made clearer by framing the Nickens case in a hypothetical variation of its facts. Suppose they made their exit from the premises without any physical injury but suffered such shock that sometime thereafter they experienced nightmares and deep mental anguish as a result of the experience. Query: Would the result of the Nickens case have been the same? The facts of our case show that plaintiff’s mental distress was accompanied by immediate external physical manifestations of crying and hysteria and her functions were outwardly affected for some time after the incident. Therefore, this case is distinguishable from the Nickens case and there is coverage.

In support of its position, the insurer proffered the testimony of an underwriter to show that it was not the intention of the insurer to include damages such as those sustained by plaintiff in its indemnification against “bodily injury.” There was also an attempt made to demonstrate the distinction made in such insurance policies between “bodily injury” and “personal injury” as discussed in the Nick-ens case. The trial judge properly excluded this testimony. An insurance policy is a contract between the company and its insured and its interpretation must be based upon what an ordinary person would understand from the words of the policy. It cannot avail the insurer any consolation if it intended something which is not clearly expressed. Any ambiguity must be construed against the insurer.

We attach significance to the fact that the policy defines bodily injury to mean “sickness or disease” in the instant case. These broad terms must include mental distress which persists over a period of time and necessitates the taking of some medication and interferes with one’s performance at work. In this regard, the policy in question seems to be broader than it would have been had that definition not included the words “sickness or disease.” For instance, in 44 Am.Jur.2d 72, Insurance § 1223, it is said that “the words ‘bodily injury’ are commonly and ordinarily used to designate an injury caused by external violence, and they are not used to indicate disease,” apparently referring to policy definitions which do not equate bodily injury with sickness or disease.

We are unable to separate a person’s nerves and tensions from his body. It is common knowledge that worry and anxiety can and often do have a direct effect on other bodily functions. In the instant case, plaintiff’s humiliation brought physical manifestations, such as tears and hysteria, which were observed and attested to by numerous witnesses. She testified that she took medication thereafter and produced the testimony of her employer who corroborated her own testimony that her ability to perform her work as a typist was adversely affected by her mental condition after this incident. We have concluded that plaintiff’s humiliation, mental anguish, pain and suffering, were within the purview of coverage against bodily injury and defendants, as third-party defendants, are entitled to indemnity under the policy.

Accordingly, the judgment in favor of Mrs. Leonard Levy and against the defendants, Mrs. Gayle K. Duclaux and Mrs. Patsy Desforges, d/b/a The Lazybug Shop, is affirmed.

The judgment on the third-party demand in favor of Employers Commercial Union Insurance Company of America and against Mrs: Gayle K. Duclaux and Mrs. Patsy Desforges is reversed and set aside, and there is judgment in favor of Mrs. Gayle K. Duclaux, Mrs. Patsy Desforges, d/b/a The Lazybug Shop, and against the defendant Employers Commercial Union Insurance Company of America in the sum of $3,250.00 with interest from date of judicial demand until paid and for all costs.

There is further judgment in favor of Mrs. Gayle K. Duclaux and Mrs. Patsy Desforges, d/b/a The Lazybug Shop, for costs and attorney’s fees incurred by them in the defense of this suit, and the case is remanded to the trial court for the limited purpose of assessing the amount of such costs and attorney’s fees in accordance with the views expressed herein.

Affirmed in part, reversed in part and remanded.