author: DOMENGEAUX, Judge.

text:
    Sweeney BENOIT, as personal representative of William Benoit, Jr., Plaintiff-Appellee, v. FIREMAN’S FUND INSURANCE COMPANY, Stand-By Crews, Inc., and Deepwater Boats, Inc., Defendants-Appellants.
    No. 5988.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 4, 1978.
    Rehearing Denied Sept. 25, 1978.

      Camp, Carmouche, Palmer, Barsh & Hunter, Karl E. Boellert, Lake Charles, for defendants-appellants.
    Ronald J. Bertrand, Lake Charles, for appellee.
    Before DOMENGEAUX, GUIDRY, and CUTRER, JJ.
   DOMENGEAUX, Judge.

This matter is before us on remand from judgment of the Supreme Court, 355 So.2d 892 (La.1978) #60,336 on the docket of that Court, rendered March 6, 1978.

Involved is recovery for the maritime wrongful death of William Benoit, Jr., on the part of his three minor children.

Plaintiff-appellee, Sweeney Benoit, brings this action as personal representative of decedent. He alleges that Benoit drowned on March 8, 1973, in the Gulf of Mexico while a member of the crew of the “Carol Ann,” a vessel owned by Deepwater Boats, Inc., one of the named defendants, and operated and manned by Stand-By Crews, Inc., another of the named defendants. The last named defendant, Fireman’s Fund Insurance Company, is the insurer of both Deepwater Boats and Stand-By Crews. The vessel was used for stand-by purposes in connection with offshore drilling activities.

Plaintiff seeks recovery under the Jones Act, 46 U.S.C.A. Sec. 688; the Death on High Seas Act, 46 U.S.C.A. Sec. 761; and the General Maritime Law, alleging unseaworthiness and negligence.

The first time this case was before us, we resolved an issue involving the validity of a settlement on the part of the minor children. We found that the settlement was valid and reversed the trial judge’s ruling. On writ of certiorari, the Louisiana Supreme Court reversed our judgment and remanded the case back to us for a consideration of issues not reached in our previous opinion.

In a supplemental brief, filed after remand to this Court, defendants have outlined the issues to be considered at this stage. They are:

(1) The absence of any proof that William Benoit, Jr. drowned or otherwise perished as a result of the unseaworthiness of the vessel, or as a result of the negligence of the owner or operator of the vessel;
(2) The excessiveness of the award to the minor children;
(3) The refusal of the trial court to submit special interrogatories to the jury, and the lack of balance or precision as to the form actually submitted to the jury; and
(4) The prejudicial and improper conduct of plaintiff’s counsel in front of the jury.

We will discuss these issues in order.

I. UNSEAWORTHINESS AND NEGLIGENCE

Decedent disappeared during the early morning hours of March 8, 1973, while the “Carol Ann” was tied to a Mobil Oil Company offshore platform in the Gulf of Mexico. At the time of the disappearance, the “Carol Ann” was being used as a stand-by boat in the event that it would be needed for the oil rig. The vessel was manned by only two crew members, the Captain, Albert Trobl, and decedent.

Benoit was last seen by Captain Trobl between 1:00 and 3:30 A.M. Although the two had retired to their quarters at approximately 10:00 P.M., for some reason, Captain Trobl awoke during the early morning and found Benoit in the galley smoking a cigarette. After a brief conversation, Trobl returned to his quarters. When Trobl arose at approximately 6:10 A.M., he could not find Benoit. A check of Benoit’s quarters revealed that his clothing and personal belongings were still there. The entire vessel was searched. Assistance was obtained from Mobil Oil Company personnel on the rig, as well as from the United States Coast Guard. A search was conducted throughout the day; however, neither Benoit nor his body was ever found.

Defendants contend that the evidence presented in this case was insufficient to prove drowning and insufficient to prove unseaworthiness or negligence.

At the outset, we note that the scope of review of jury verdicts in maritime cases like this is the same as that of the Federal Courts. Trahan v. Gulf Crews, Inc., 260 La. 29, 255 So.2d 63 (1971). As we stated in Hocut v. Insurance Company of North America, 254 So.2d 108, 111 (La.App.3rd Cir. 1971), writ denied, 260 La. 411, 256 So.2d 292 (1972):

“. . . .In Gallick v. Baltimore and Ohio Railroad Company, 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618, the Supreme Court of the United States in quoting from Tennant v. Peoria & P.U.R. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520 defined those limits as follows:
‘ “It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences. The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. Washington & Georgetown R. Co. v. McDade, 135 U.S. 554, 571, 572, 10 S.Ct. 1044, 1049, 34 L.Ed. 235; Tiller v. Atlantic Coast Line R. Co., supra, 318 U.S. [54] 68, 63 S.Ct. [444] 451 [87 L.Ed. 610], 143 A.L.R. 967; Bailey v. Central Vermont Ry., 319 U.S. 350, 353, 354, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444. That conclusion, whether it relates to negligence, causation or any other factual matter, cannot be ignored. Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.” 321 U.S., at 35, 64 S.Ct. at 412.’
In Trahan v. Gulf Crews, Inc. [246 So.2d 280 (La.App.3rd Cir. 1971)], we quoted from Rogers v. Missouri Pacific Railway Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493, thusly:
‘It is no answer to say the jury’s verdict involved speculation or conjecture * * * Only where there is a complete absence of probative facts to support the conclusion reached does a reversible error appear * * * the appellate court’s function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.’ (Emphasis added) Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916.”

Looking to the record in this case, we find that there is no “complete absence of probative facts” which would result in reversible error.

Although it is true that Benoit’s body was never found, even after a day long search, we think that the jury could have drawn the inference that Benoit, in fact, had drowned. Caption Trobl testified at trial that the rig to which the Carol Ann was tied was 78 miles offshore. He also stated that the depth of the water in this area was about 300 feet and that the distance between the vessel and the rig was approximately 75 feet. It was also established that the “Carol Ann” had no lifeboat and that the vessel rarely drifted close to the rig.

The Captain also said that the last time he saw Benoit, Benoit was clad only in his undershorts and that a search of Be-noit’s quarters revealed that no additional clothing was missing. We think that these factors give support to the inference that William Benoit, Jr. drowned.

We also find sufficient evidence to support the jury’s finding of negligence or unseaworthiness. It was established at trial that Benoit had not been a seaman prior to his employment with Stand-By Crews, although he had been a fisherman. He also worked with rice farmers and cattlemen. He was required by neither the Captain nor Stand-By Crews to wear a life jacket, and he was not given any specialized training or instructions relative to safety procedures or precautions when he entered the ship’s service.

It was also established that the vessel only had two crew members assigned to her and did not have a watch to hear the call of seamen who might fall overboard. In addition, the Captain had no certification to operate the vessel.

Furthermore, evidence indicated that although the ship had a railing surrounding it, the railing was only approximately three feet high in the bow and two feet high in the stern.

We think that several constructions could have been placed on these raw facts by the jury in order to come up with a theory whereby the drowning of Benoit would have resulted from negligence or unseaworthiness. For example, the jury could have concluded that the employer was negligent in not requiring Benoit, an inexperienced seaman, to wear a life jacket. The jury could have concluded that the railing on the vessel was too low and that, had the railing been higher, Benoit might not have drowned. The jury could have found that the vessel was undermanned, and that, had a watch been posted, Benoit would have been rescued and would not have perished. There, perhaps, are many other constructions which could lead to a finding of liability. It is not our function to speculate as to which theory the jury chose. Our function is to examine the record in order to ascertain whether there is some basis of probative facts to support the conclusion reached.

We think there was such a basis and, accordingly, affirm the jury’s finding of liability.

II. THE EXCESSIVENESS OF THE AWARDS TO THE CHILDREN

The jury awarded Sherri Benoit $50,-000.00; Scott James Benoit $37,500.00; and Donna Benoit $25,000.00 for their loss of support. No award was made by the jury for loss of society. In a motion for a new trial, defendants alleged, inter alia, that the verdict was not supported by the evidence. In the alternative, defendants also moved for remittitur of the verdict. Both motions were denied by the trial court.

In Trahan v. Gulf Crews, Inc., supra, the Louisiana Supreme Court discussed the scope of appellate review of maritime jury awards. At page 70 of its opinion, the following is stated:

“State appellate review of jury awards under maritime law and the Jones Act is, as in the federal courts, ‘extremely limited.’ They must stand unless the appellate courts find there is no law and no evidence to sustain them, rendering them, as some courts have put it, so excessive as to be obviously punitive, motivated by prejudice, passion, partiality, or corruption. This is particularly true where the trial judge, finding the jury award is not excessive, has denied a new trial and/or remittitur. Naylor v. Isthmian S.S. Co., 2 Cir., 187 F.2d 538; Jenkins v. Associated Transport, Inc., 6 Cir., 330 F.2d 706; Sanford Bros. Boats, Inc. v. Vidrine, 5 Cir., 412 F.2d 958; Volume 2 of Norris’s Treatise on ‘The Law of Seamen’ 429 (3rd Edition, 1970); and the authorities therein cited.”

At the time of his death, Benoit was 34 years of age. Sherri, Scott, and Donna were ages 10,. 11, and 13 years, respectively. Benoit had been married to Harriet Ann Benoit from August of 1958 until June of 1969, at which time he was divorced. The mother had custody of the children. Benoit had been ordered to pay alimony of $100.00 per month for the children; however, there is some question as to how many payments Benoit made.

Benoit’s wages were fixed at $29.00 per day. He worked fourteen days on and fourteen days off.

Defendants contend that the children can only recover for loss of support. They maintain that the figure of $100,00 per month should be used in determining the dollar value of loss of support. Since the minors were ages 10,11, and 13 years at the time of Benoit’s death and since there was no evidence of loss beyond the point at which each child would reach the age of majority, defendants contend that the children are entitled to support for a combined total of fifteen years, or a dollar total of $18,000.00. They further argue that when this sum is discounted at the rate of six percent over five years, the maximum figure of recovery should be $15,517.67. We disagree.

The United States Supreme Court’s decisions in Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974), and Mobil Oil Corp. v. Higginbotham, - U.S. -, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978) are applicable on this issue. In Gaudet, the Supreme Court held that awards for maritime wrongful deaths under the General Maritime Law could include compensation for loss of support and services, funeral expenses, and loss of society. In Higginbotham, the Supreme Court clarified Gaudet and held that recovery for loss of society could not be had if the death occurred outside of coastal waters.

We are not concerned with loss of society in this case because the jury specifically denied recovery for this item. However, Higginbotham left unchanged the rule that recovery may be had if the death occurred outside of coastal waters, for loss of support and services. In Gaudet, the Court said that “services” would include the nurture, training, education, and guidance that a child would have received had the parent not been wrongfully killed.

We feel that the jury must have considered the loss of these “services” in making their awards. We think it evident that fixing dollar values for such items as nurture, training, education, and guidance is not subject to mathematical precision. There is no litmus paper test by which we can compare the dollar amount awarded by the jury to a predetermined scale setting forth the monetary value of a parent’s supplying of these items. We also note that the jury was careful in making their awards in proportion to the ages of the children. It is apparent that the jury did not indiscriminately award large sums of money. Considering the fact that the trial judge had an opportunity to review the award, the trial judge’s denial of a new trial and remittitur, and considering our review of the record in this case, we do not feel that the award made by the jury was excessive. Accordingly, it is affirmed.

III. JURY INTERROGATORIES

Defendants raise a bifurcated argument with regard to the third issue. They contend that: (1) The trial judge was in error by failing to submit their special interrogatories; and (2) The jury verdict lacked precision in that, although there are three defendants, the verdict was erroneously rendered against “the defendant.”

We passed upon the question of special interrogatories in maritime wrongful death cases in Hocut v. Insurance Company of North America, supra, where it was stated at page 111;

“The decision of whether or not a case will be submitted to the jury on special interrogatories is one resting exclusively within the discretion of the trial judge and there is no mandatory requirement that a case be thus submitted because a party requests it. La. Code of Civil Procedure, Articles 1811-1812; Mulkey v. Aetna Casualty and Surety Company, La. App., 210 So.2d 897.”

We adhere to this view and, therefore, reject defendants’ contention in this regard.

With regard to the jury’s verdict being rendered against “the defendant,” we feel that even though this may be an error, it is not reversible in this case. Both StandBy Crews, Inc. and Deepwater Boats, Inc. were owned by one person, Joseph Braxton Blake, Jr. Both were insured by the same insurer, Fireman’s Fund Insurance Company. Plaintiff has pointed out on appeal that from the beginning of the suit, all the defendants were considered as one. Although defendants argue that neither Deepwater Boats nor Stand-By Crews has any idea of whether one may be entitled to indemnity or contribution from the other, we note that no third party demands have been filed. Even if indemnity or contribution was sought, we fail to see the utility of such action, since both Deepwater Boats and Stand-By Crews are owned by the same person and insured by the same insurer. We, therefore, reject defendants’ contention in this regard.

IV. THE PREJUDICIAL AND IMPROPER CONDUCT OF PLAINTIFF’S COUNSEL

Defendants contend that several overly prejudicial statements, which may have had an undue influence on the jury in reaching a verdict, were made by plaintiff’s counsel during his closing arguments. We reject this contention for several reasons.

First, we note that the transcript in this case does not contain the closing arguments of either counsel. Defendants attempted to place a transcript of the closing argument of plaintiff’s counsel by filing a pleading before this Court captioned “MOTION FOR LEAVE TO FILE EXTRACT OF PROCEEDINGS.” This was to no avail. If defendants wanted to be certain that the closing arguments would be included in the record, they should have followed the procedure set forth in Article 2128 of the Louisiana Code of Civil Procedure.

Second, we note that no objections were made to the closing argument during the trial. Defense counsel has included a copy of the transcription of the argument in his brief and devoted significant portions of his original and supplemental appellate briefs to this issue. The transcription, the briefs, and the appellate record all indicate that defense counsel entered no objection at trial. The failure of defense counsel to object to statements alleged to be prejudicial constitutes a waiver of his rights to complain of them on appeal. Temple v. Liberty Mutual Insurance Company, 330 So.2d 891 (La.1976); Luquette v. Bouillion, 184 So.2d 766 (La.App.3rd Cir. 1966).

Third, if the statements made by plaintiff’s counsel were prejudicial, we believe that the trial judge took corrective measures to counteract any prejudicial effect of statements made during closing argument. The trial judge clearly stated in his instructions to the jury that the arguments of counsel were not evidence. He aíso stated that sympathy should not influence the verdict, either on the issue of liability or on the issue of quantum. The instructions also included a warning to the jury that they should not be influenced by the fact that one of the defendants in the suit was an insurance company, as well as the statement that all parties are entitled to equal justice, whether they are rich or poor, or individuals or corporations. Clearly, these would be sufficient to cure the alleged defects in the closing argument. Temple v. Liberty Mutual Insurance Company, supra.

Fourth, we note that in the motion for a new trial requested by defendants, one of the grounds alleged was that the verdict was influenced by prejudicial arguments made by counsel for plaintiff. We think the language at page 894 in the Supreme Court’s opinion of Temple v. Liberty Mutual Insurance Company, supra, is instructive:

“[C]ounsel has great latitude in argument before a jury, subject, however, to regulation and control by the court, whose duty it is to confine argument within proper bounds. The trial judge denied defendants’ motion for a new trial, which alleged, inter alia, that the prejudicial argument of plaintiffs’ counsel warranted the granting of a new trial. The trial judge is in a better position than an appellate court to determine possible prejudicial effects resulting from counsel’s argument before a jury. Therefore, his finding that counsel for plaintiffs’ argument was not so prejudicial as to warrant the granting of a new trial should be accorded much weight.”

We think the same applies in this case.

In conclusion, therefore, we do not feel that the fourth issue is grounds for reversal.

V. MISCELLANEOUS MATTERS

During oral argument, defendants raised for the first time the issue of whether they should be entitled to a setoff for the amount of the “settlement” made on behalf of the children by their mother, the natural tutrix. This was the settlement that the Louisiana Supreme Court found to be of no force and effect in the present litigation because the mother was not the personal representative and, therefore, had no capacity to settle the claim. Since this issue was not raised or discussed in the briefs and defendants did not request this relief in their pleadings at the trial level, we will not review it in this appeal. Rule IX-A, Uniform Rules — Courts of Appeal. Furthermore, we note that the mother is not even a party to these proceedings.

The final matter in this case deals with the award of interest on the judgment. The trial judge cast defendants for legal interest from the date of judicial demand. In the concluding remarks contained in their original and supplemental briefs, defendants maintain that interest should run from the date of the entry of the judgment. In maritime law, the time at which interest begins to run rests within the discretion of the trial court. Canova v. Travelers Insurance Company, 406 F.2d 410 (C.A. 5th Cir. 1969), writ denied 396 U.S. 832, 90 S.Ct. 88, 24 L.Ed.2d 84 (1969). We find no abuse of discretion.

For the above reasons the judgment of the District Court, as it relates to the award in favor of the minor children, is affirmed. Costs on appeal are assessed against the defendants-appellants.

AFFIRMED.

      . Originally, the mother of Benoit was involved to enforce her claim, but this was settled during appeal.

      . Suit was filed prior to Mobil Oil Corporation v. Higginbotham, -U.S.-, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978).

      . 347 So.2d 269 (La.App.3rd Cir. 1977).

      . There was other testimony, however, which indicated that the oil rig may have been somewhat closer to the shoreline.

      . On this point, we think it worthy to note that in Davis v. Parkhill—Goodloe Company, 302 F.2d 489 (C.A. 5th Cir. 1962), the Fifth Circuit found a shipowner liable for the wrongful death by drowning of an inexperienced seaman, who had not been instructed to wear a life preserver. The Court stated in 302 F.2d at 494:
      “Whatever a shipowner might be permitted to do with respect to seasoned hands familiar with the peculiar hazards of the sea, it is plain that it could not absolve itself of the pervading obligation to furnish a seaworthy vessel and exercise a prudent care for seamen by leaving this important decision — to wear or not wear a life vest? — up to this inexperienced, untrained farm boy who had not yet begun to get his sea legs. This is but the application of the familiar principle of salt water, amphibious and land-locked jurisprudence that there is a duty to warn in an effective way of dangers not reasonably known, Pioneer Steamship Co. v. Hill, 6 Cir., 1955, 227 F.2d 262, 264, 1955 A.M.C. 1617, and a duty to take effective action in the light of the particular condition — here inexperience and ignorance of seagoing perils — of the particular seaman, Justillian v. Versaggi, S.D. Tex.1954, 169 F.Supp. 71; Reck v. Pacific-Atlantic Steamship Co., 2 Cir., 1950, 180 F.2d 866, 1950 A.M.C. 744; McDonough v. Buckeye S.S. Co., N.D.Ohio, 1951, 103 F.Supp. 473, affirmed, 6 Cir., 1952, 200 F.2d 558; Tetterton v. Artic Tankers, Inc., E.D.Pa., 1953, 116 F.Supp. 429. This was a basic fault on the part of the shipowner.”

      . Article 2128 provides:
      “The form and content of the record on appeal shall be in accordance with the rules of the appellate court, except as provided in the constitution. However, within three days, exclusive of holidays, after taking the appeal the appellant may designate in a writing filed with the trial court such portions of the record which he desires to constitute the record on appeal. Within five days, exclusive of holidays, after service of a copy of this designation on the other party, that party may also designate in a writing filed with the trial court such other portions of the record as he considers necessary. In such cases the clerk shall prepare the record on appeal as so directed, but a party or the trial court may cause to be filed thereafter any omitted portion of the record as a supplemental record. When no designation is made, the record shall be a transcript of all the proceedings as well as all documents filed in the trial court.”


source: Caselaw Access Project

author: CUTRER, Judge.

license: Public Domain

text:
    ADA RESOURCES, INC., and Emerald Oil Company v. DON CHAMBLIN & ASSOCIATES, INC., C. D. Johnston, Seaboard Pipe & Equipment Company, Employers Casualty Company, American Motorists Insurance Company, Goldrus Drilling Company, Weatherford-Lamb, Inc., W. A. Smith, Employees Mutual Liability Insurance Company of Wisconsin.
    No. 6583.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 4, 1978.
    Rehearing Denied Sept. 25, 1978.

      Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Randall C. Songy, Lafayette, for defendant-appellant.
    George H. Robinson, Jr., Lafayette, Ay-cock, Horne, Caldwell, Coleman & Duncan by Jack C. Caldwell, Franklin, for plaintiff-appellant.
    Lemle, Kelleher, Kohlmeyer & Matthews by Allen R. Fontenot, New Orleans, J. Barry Mouton and L. H. Olivier, Lafayette, Jacob D. Landry, of Landry, Watkins, Cousin & Bonin, New Iberia, Gordon, Arata, McColIam & Watters, Blake G. Arata and Sheryl Hopkins, New Orleans, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

Plaintiffs, Ada Resources, Inc. (hereinafter Ada) and Emerald Oil Company (hereinafter Emerald), instituted this action against various defendants seeking recovery for property damage allegedly sustained during the drilling of an oil well. One of the defendants, Seaboard Pipe & Equipment Company, Inc. (hereinafter Seaboard), brought a third party demand upon its insurer, Employers Casualty Company (hereinafter Employers), as a result of Employers’ refusal to defend Seaboard in the main demand. Thereafter, plaintiffs filed an amending and supplemental petition making Employers a defendant in the original demand. Employers filed a motion for summary judgment seeking a dismissal of the demands of the original plaintiffs and third party plaintiff on the grounds that Employers’ policy did not cover the liability asserted against Seaboard by the plaintiffs. From a trial court judgment in favor of Employers dismissing the demands of original plaintiffs Ada and Emerald and third party plaintiff Seaboard, Ada and Seaboard appeal.

The issue on appeal concerns the correctness of the summary judgment that Employers had no duty to defend Seaboard against the allegations contained in the original plaintiffs’ petition.

According to the evidence introduced in connection with the motion for summary judgment, plaintiffs were engaged in the drilling of an oil well in St. Martin Parish, Louisiana. After the well had been drilled to a depth of approximately 12,000 feet, it was decided that an attempt should be made to complete the well as a producing unit. On or about April 28, 1975, in preparation for the completion attempt, Emerald ordered from Seaboard a cross-over joint necessary to convert a casing string from eight (8)-round to Extreme line threads. The cross-over joint was supposed to contain eight-round threads at the pin end and Extreme line threads at the box end of the joint. Seaboard agreed to supply Emerald with the cross-over joint and in return Emerald would send a similar joint that required rethreading to Seaboard to replace the one made available to them. The crossover joint was shipped from Seaboard’s premises to the drilling location by a private trucking line. Allegedly, Seaboard sent a cross-over joint with Hydril threading at the box end instead of the Extreme line thread as ordered. The alleged mistake went undetected and as a result of the problems with the cross-over joint having the wrong thread, the casing string allegedly became stuck in the hole. When an attempt was made to extricate the casing string from the hole in order to remove the cross-over joint, the cross-over joint pulled apart at the lower end and the casing string fell into the hole. Further efforts to remove the casing were to no avail.

The allegations of negligence set forth in plaintiffs’ petition, insofar as Seaboard is concerned, can be summarized as follows:

(1) Seaboard was negligent in delivering a cross-over joint different from that which was ordered and it was also negligent in failing to properly inspect the cross-over joint requested in order to determine that it met the specifications of the joint ordered by Emerald.
(2) Seaboard was negligent in delivering a defective cross-over joint that did not meet strength or quality requirements.

Seaboard, at the time of this alleged occurrence, had in force a policy of comprehensive general liability insurance issued by Employers. The policy contains the following provisions:

“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 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, . . . .”

Exclusion No. 16 contained in the policy provides in pertinent part:

“It is agreed that such insurance as is afforded by the Bodily Injury Liability Coverage and the Property Damage Liability Coverage does not apply to bodily injury or property damage included within the Completed Operations Hazard or the Products Hazard.”

The phrase “Completed Operations Hazard” is defined in the policy as being:

“ ‘completed operations hazard’ includes bodily injury and property damage arising out of operations or reliance upon a representation of warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the named insured. ‘Operations’ include materials, parts or equipment furnished in connection therewith. Operations shall be deemed completed at the earliest of the following times:
“(1) when all operations to be performed by or on behalf of the named insured under the contract have been completed,
“(2) when all operations to be performed by or on behalf of the named insured at the site of the operations have been completed, or
“(3) when the portion of the work out of which the injury or damage arises has. been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project.
“Operations which may require further service or maintenance work, or correction, repair or replacement because of any defect or deficiency, but which are otherwise complete, shall be deemed completed.”

The phrase “Products Hazard” is defined as follows:

“ ‘products hazard’ includes bodily injury and property damage arising out of the named insured’s products or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs away from premises owned by or rented to the named insured and after physical possession of such products has been relinquished to others; ”

“Named insured’s products” are defined as:

“ ‘named insured’s products’ means goods or products manufactured, sold, handled or distributed by the named insured or by others trading under his name, including any container thereof (other than a vehicle), but ‘named insured’s products ’ shall not include a vending machine or any property other than such container, rented to or located for use of others but not sold;”

The motion for summary judgment filed by Employers was based-on Exclusion No. 16 which states that property damage liability coverage does not apply to property damage included within the completed operations hazard or the products hazard. Appellants argue that Employers has a duty to defend Seaboard based upon the allegations of plaintiffs' petition and that the policy exclusions relied upon by Employers do not unambiguously exclude coverage for purposes of a motion for summary judgment. Employers counters that the allegations contained in plaintiffs’ petition fall clearly within either the “products hazard” or “completed operations hazard” exclusions and thus the motion for summary judgment was properly granted by the trial court.

It is well established that an insurer’s duty to defend its insured is broader than its liability for damage claims. Likewise, the duty to defend depends upon the allegations of plaintiff’s petition, and the insurer must defend unless the allegations unambiguously exclude coverage. The applicable test in such instances is if, assuming plaintiff’s allegations are true, there is both coverage under the policy and liability to the plaintiff, the insurer is obligated to defend regardless of the outcome of the case. American Home Assurance Co. v. Czarniecki, 255 La. 251, 230 So.2d 253 (La.1969); Employers Commercial Union Insurance Company v. Bertrand, 306 So.2d 426 (La.App. 3rd Cir. 1975); and Benoit v. Fuselier, 195 So.2d 679 (La.App. 3rd Cir. 1967).

Guided by these principles of law, we must now consider if Employers had the duty to defend Seaboard in this instance.

As to the alleged negligence of Seaboard in delivering the wrong joint and in failing to inspect the joint before delivery, we conclude that the decision rendered by this circuit in Cooling v. United States Fidelity and Guaranty Company, 269 So.2d 294 (La.App. 3rd Cir. 1972), writ refused La., 272 So.2d 373 (1973) is controlling. In Cooling, plaintiff Cooling filed suit against his insurer, U.S.F. & G., seeking reimbursement for attorney’s fees expended to successfully defend two tort suits brought against the plaintiff earlier. The insurer had refused to defend these earlier suits due to “produce hazard” and “completed operations hazard” exclusions in its comprehensive liability policy issued to plaintiff. The facts in Cooling reveal that Cooling had sold diesel engines to a person named Fruge and had failed to warn or suggest to Fruge the need for inclusion of adequate safety devices which would make the operation of the machine safer. Upon being injured in an accident involving these diesel engines, Fruge sued Cooling alleging the failure to warn and to suggest that the engines needed safety devices constituted actionable negligence. The question before the court was whether Cooling’s alleged negligence was included within the exclusions in the U.S.F. & G. policy.

In affirming the trial court’s judgment that there was coverage under the policy and thus the insurer owed a defense, the court in Cooling in part stated:

“The definitions of products hazard and completed operations hazard do not mention omissions or failure to warn when there is no affirmative duty to do so. The definitions of products hazard and completed operations hazard do include injuries arising out of representations or warranties. But the converse, the failure to represent is not included in these definitions. If the parties intended to limit the liability of the insurer by excluding coverage for omissions and failure to warn when there is no affirmative duty to warn, the insurer could have so provided.
“Inasmuch as the insurer has the duty to express clearly his obligation, Kendrick [Kendrick v. Mason, 234 La. 271, 99 So.2d 108], supra, and also because ambiguities are to be construed against the insurer, Albritton [Albritton v. Fireman’s Fund Ins. Co., 224 La. 522, 70 So.2d 111], supra, we hold that the intent of the parties as evidenced by the language of the exclusions as well as by the failure of the insurer to expressly limit its liability to exclude coverage for torts of omission or failure to warn is to include such coverage. LSA-C.C. Arts. 1947, 1957; Seguin v. Continental Service Life & Health Ins. Co., 230 La. 533, 89 So.2d 113 (1956), 55 A.L.R. 1014; Conner v. Motors Insurance Corporation, 216 So.2d 555 (La.App. 3rd Cir. 1968).”

Thus, the court in Cooling construed the identical “completed operations” exclusion and a “products hazard” exclusion as not encompassing omissions or failure to make representations. In another part of the decision, the court further rejected the notion that all claims connected to the sale of the product should result in non-coverage under the “products hazard” exclusion regardless of how indirectly they were connected to the sale of the product.

In the present case, neither the “products hazard” nor “completed operations” exclusions specifically include omissions or failures to make representations. The allegations concerning Seaboard’s negligence in delivering a cross-over joint other than the one ordered and in failing to discover such mistake can be characterized as acts of omission. It is not alleged in plaintiff’s petition that there was any affirmative representation or warranty made with respect to this joint; rather, Seaboard merely furnished Emerald a cross-over joint with the wrong threading. This alleged negligence amounts to simple negligence in the delivery of a product different from that which was ordered. The Employers policy contains broad coverage for property damages and provides that the company will defend any suit against the insured seeking damages for such losses. The exclusions relied upon do not specifically delete from coverage the alleged negligent omissions attributable to Seaboard. This negligence is in the nature of a general risk of doing business which comprehensive general liability policies seek to cover. Cooling, supra. Therefore, following the rationale of the Cooling case, we conclude that this type of risk was covered by the policy and Employers has a duty to defend Seaboard as to these allegations.

The remaining allegation in plaintiffs’ petition concerns Seaboard’s negligence in delivering a defective joint' that did not meet strength or quality requirements. Appellants argue that the transaction in question does not fit within the “products hazard” exclusion because it does not meet the definition of “named insured’s product”. In the alternative, appellants argue that the policy definition is ambiguous.

The trial judge found that there was no genuine issue of material fact as to the nature of the transaction between Emerald and Seaboard. Although stating that there was evidence indicating that the joint was not sold but merely exchanged, the trial judge found that there was no genuine issue of material fact on this point since the rules relative to contracts of sale apply to contracts of exchange citing LSA — C.C. art. 2667. We do not dispute this finding.

Since this transaction in question was a sale or equivalent to a sale, the furnishing of the cross-over joint by Seaboard fits the definition of “named insured’s products” contained in the policy. The defective joint allegation further fits within the “products hazard” exclusion since the property damage arose out of the furnishing of the joint, occurred away from Seaboard’s premises, and after Seaboard had surrendered physical possession of the joint to others. Therefore, we agree with the trial judge that the defective joint allegation falls within the “products hazard” exclusion.

For the above reasons, the judgment of the trial court is affirmed insofar as it holds that Employers has no duty to defend as to the allegation that Seaboard negligently supplied plaintiffs with a defective joint that did not meet strength or quality requirements. The trial court judgment is reversed and set aside insofar as it holds that Employers had no duty to defend the remaining allegations of negligence against Seaboard. The matter is remanded for further proceedings in accordance with the views expressed herein. All costs of this appeal are assessed to defendant-appellee Employers.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

      . Although the “products hazard” exclusion in the U.S.F. & G. policy was not set forth in the Cooling opinion, the “completed operations” exclusion is the same as that contained in the present Employers policy.


author: GUIDRY, Judge.

text:
    C. Edward KARST, Plaintiff-Appellant, v. Joe E. FRYAR, Defendant-Appellee.
    No. 6603.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 4, 1978.
    Rehearing Denied Sept. 25, 1978.

      Sandoz, Sandoz & Schiff by Leslie J. Schiff, Opelousas, David A. Sheffield, Alexandria, for plaintiff-appellant.
    J. Minos Simon, Lafayette, Joe J. Tritico, Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

The above numbered and entitled matter was consolidated at trial level and on appeal with the case of Fryar v. Karst et al., our Docket No. 6604, 361 So.2d 1347, in which case we this day render a separate decision.

Basically both suits concern the validity and binding effect of several documents, two acts of sale purportedly executed by Joe E. Fryar, as vendor, in favor of C. Edward Karst, as vendee, conveying to the latter an undivided one-half interest in certain immovable properties, with improvements thereon, situated in the City of Alexandria, Louisiana; a compromise agreement dated July 23,1975, executed by both Karst and Fryar, which purports to settle all of Karst’s claims against Fryar, for the sum of $600,000.00; and, a promissory note in the amount of $600,000.00 delivered by Fryar to Karst in connection with the compromise agreement.

In the suit which bears our docket number 6603 Karst sued Fryar seeking judgment recognizing that the settlement agreement of July 23, 1975 was but a partial settlement; the enforcement of such agreement; and, a money judgment in connection with the compromise agreement and additional claims arising out of certain alleged business activities involving Karst and Fryar. Fryar filed answer generally denying any indebtedness whatever to Karst and reconvened seeking a judgment declaring the documents above referred to to be null, void and of no effect for having been secured as a result of fraud, violence and threats on the part of Karst and a money judgment for all sums of money received by Karst from Fryar since the year 1970.

In the suit which bears our docket number 6604 Fryar seeks essentially the same relief demanded in his reconventional demand in suit number 6603. David A. Sheffield is joined as a party defendant in the suit which bears our docket number 6604 under allegations that Sheffield, without knowledge of Karst’s fraudulent schemes and extortionist conduct, represented Karst in connection with Karst’s negotiation of the alleged compromise agreement. As compensation for his services Karst assigned to Sheffield a ten percent interest in the fruits of that compromise agreement, i. e., the promissory note of $600,000.00. Karst filed answer generally denying the allegations of plaintiff’s petition and reconvened seeking essentially the same relief demanded in the suit filed by him against Fryar. Sheffield filed answer generally alleging that the compromise agreement and related promissory note were executed in good faith and for a valid consideration and sought judgment rejecting Fryar’s demands insofar as the compromise agreement and related documents are concerned. In addition Sheffield filed exceptions of es-toppel, accord and satisfaction and res judi-cata based upon the compromise agreement of July 23, 1975.

After a lengthy trial of some three and one-half weeks the learned trial judge concluded, for oral reasons transcribed in the record, that there existed no business association of any kind between Karst and Fryar; the purported sales, without regard to whether one was or was not a forgery, are void ab initio for, among other reasons, having been secured by fraud and being pure simulations; the compromise agreement and $600,000.00 promissory note were secured as a result of extortion and fraud and were likewise void ab initio; and, the sums of money received by Karst from Fryar since the year 1970 were secured by extortion. Accordingly, judgment was rendered as follows:

“IT IS ORDERED, ADJUDGED AND DECREED that the petition and claims of C. Edward Karst as asserted in Karst v. Fryar, bearing docket number 97,685, and Karst’s reconventional demand in Fryar v. Karst, bearing docket number 97,699 of this court, be and the same hereby are dismissed with full prejudice. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Joe E. Fryar as prayed for in his petition of Fryar v. Karst, bearing docket number 97,699, and as prayed for in his reconventional demand in Karst v. Fryar, bearing docket number 97,685, and accordingly,
(a)The promissory note executed by Joe E. Fryar in favor of E-D Oil & Refining Company in the principal amount of Six Hundred Thousand ($600,-000.00) Dollars, bearing interest at the rate of 8V2% per annum, together with all ancillary instruments, documents and/or purported agreements, be and the same hereby are declared null and void ab ini-tio.
(b) The purported Act of Sale dated July 15, 1972, recorded in Book 868 at Page 344, under Registry Number 648368 of the Office of the Clerk of Court of Rapides Parish, Louisiana, whereby Joe E. Fryar purportedly sold to C. Edward Karst an undivided one-half interest in the tract of land therein described and the improvements thereon situated; and the purported Act of Sale dated July 12, 1970, and recorded in Conveyance Book 858 (sic) at Page 346, under Registry Number 648369, of the Office of the Clerk of Court of Rapides Parish, Louisiana, whereby Fryar purportedly conveyed to Karst an undivided one-half interest in the tract of land therein described and all improvements thereon situated, be and the same hereby are declared null and void ab initio, and hereby ordered cancelled and expunged from the Conveyance Records of Rapides Parish aforesaid, the Clerk of Court being hereby authorized and directed to accordingly cancel and expunge from the Conveyance Records aforesaid said instruments, and to mark said documents as void.
(c) Joe E. Fryar do recover from C. Edward Karst the sum of ONE HUNDRED THIRTY NINE THOUSAND TWO HUNDRED SIX and no/100 ($139,-206.00) DOLLARS, together with legal interest from date of judicial demand until paid.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all claims of a personal nature against David Sheffield be and the same hereby are dismissed.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that C. Edward Karst pay all costs of these proceedings in both Karst v. Fryar and Fryar v. Karst.”

Karst has perfected these devolutive appeals from said judgment. Sheffield also perfected a devolutive appeal and answered Karst’s appeal. Fryar has neither appealed nor answered the appeal of Karst and Sheffield.

The principal issue on appeal is whether the trial judge erred in finding that Karst’s demands against Fryar are baseless, without foundation, and totally without merit as a result of fraud and extortion.

Allegations of fraud present an issue of fact. Musser v. Copping, 325 So.2d 681 (La.App. 4th Cir. 1975). Fraud is never presumed and must be proven by clear and convincing proof not simply by a preponderance of the evidence. Valvoline Oil Company v. Krauss, 335 So.2d 64 (La.App. 3rd Cir. 1976); Capital Bank & Trust Company v. Core et al, 343 So.2d 284 (La.App. 1st Cir. 1977), writ refused. The trial court’s finding on an issue of fact is entitled to great weight and should not be disturbed on appellate review absent manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

We have carefully reviewed the voluminous records in these cases, in light of the settled principles above set forth, and conclude that they afford clear and convincing proof supporting the judgment rendered by the trial court.

There is no merit to Mr. Sheffield’s contention that the compromise agreement of July 23, 1975 has the force equal to the authority of the thing adjudged and bars any action by Fryar to rescind same. A compromise may be rescinded in cases where there exists fraud or violence and if rescinded for that cause it cannot form the basis for a plea of estoppel, res judicata or accord and satisfaction. LSA-C.C. Articles 3079 and 3081. Although the record reflects that Mr. Sheffield is totally innocent of any wrong doing, the compromise agreement and promissory note being null and void ab initio by reason of Karst’s fraud and extortionist conduct, Mr. Sheffield, as assignee of Karst, has no enforceable interest therein.

For the above' reasons we likewise overrule and dismiss the exception of res judica-ta filed in this court on behalf of C. Edward Karst.

For the. reasons assigned the judgment appealed from is affirmed at the cost of appellant, C. Edward Karst.

AFFIRMED.

      . Fryar also attacked the validity of the sale dated July 12, 1970 as being a forgery.


text:
    Joe E. FRYAR, Plaintiff-Appellee, v. C. Edward KARST et al., Defendants-Appellants.
    No. 6604.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 4, 1978.
    Rehearing Denied Sept. 25, 1978.
    David A. Sheffield, Alexandria, for defendants-appellants.
    Sandoz, Sandoz & Schiff, Leslie J. Schiff, Opelousas, for defendant-appellee.
    J. Minos Simon, Lafayette, Joe J. Tritico, Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

For the reasons assigned in the companion matter of Karst v. Fryar, our Docket No. 6603, 361 So.2d 1344 the judgment appealed from is affirmed at the cost of appellant, C. Edward Karst.

AFFIRMED.


text:
    Beulah H. LOUETTE, Plaintiff-Appellant, v. SECURITY INDUSTRIAL INSURANCE COMPANY, Defendant-Appellee.
    No. 6605.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 4, 1978.
    Rehearing Denied Sept. 25, 1978.
    Landry, Poteet & Landry (John G. Po-teet, Jr.), Lafayette, for plaintiff-appellant.
    Normann & Normann by Frank S. Nor-mann, New Orleans, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

Plaintiff brought this action individually and on behalf of a class seeking to recover benefits under a burial insurance policy issued by the defendant. The defendant filed exceptions of prescription and improper use of a class action. From a judgment dismissing the suit, plaintiff appeals.

Plaintiff is the beneficiary under a burial insurance policy issued on the life of Rosemary Henry. Under the terms of the policy, defendant agreed to furnish a specified funeral service for the insured upon receipt of proof of death. On November 3, 1976, the insured died with the policy being in full force and effect. The demand for benefits under the policy was timely made by plaintiff. Suit was instituted by the plaintiff on November 17, 1977, or more than one year after the death of the insured. Plaintiff’s petition was styled as a class action seeking judgment for herself and other beneficiaries who had been denied benefits under the defendant’s burial policies.

The policy of insurance issued by the defendant contains the following clause:

“LEGAL ACTION AND PRESCRIPTION: No action at law or in equity shall be brought to recover on this policy prior to the expiration of sixty days after proof of loss has been filed in accordance with requirements of this policy. Nor shall any action at law or in equity be brought at all unless brought within one year from the date of loss or death. The sixty day period referred to in this clause during which time no action shall be brought to recover on this policy shall not extend the period during which such action must be brought.”

The trial judge, in his reasons for judgment, found that under the terms of the insurance policy, plaintiff’s action had prescribed as the suit was filed more than one year after the death of the insured. He also found that the use of the class action was not warranted under the circumstances.

The issues on appeal are whether the trial court erred by sustaining the defendant’s plea of prescription and by finding that the use of the class action was improper in this case.

PLEA OF PRESCRIPTION

In the absence of a statutory prohibition, a clause in an insurance contract fixing a reasonable time to institute suit is valid, and such time limitation will be enforced against a beneficiary unless there is a legal basis for excusing compliance. Suire v. Combined Insurance Company of America, 290 So.2d 271 (La.1974) and eases cited therein.

We find such a statutory prohibition. LSA-R.S. 22:629 provides in pertinent part:

“A. No insurance contract delivered or issued for delivery in this state and covering subjects located, resident, or to be performed in this state, shall contain any condition, stipulation, or agreement:
******
“(3) Limiting right of action against the insurer to a period of less than one year from the time when the cause of action accrues in connection with all insurances unless otherwise specifically provided in this Code.
“B. Any such condition, stipulation, or agreement in violation of this Section shall be void, but such voiding shall not affect the validity of the other provisions of the contract.”

This provision, contained in a chapter of the Louisiana Insurance Code dealing with insurance contracts in general, prohibits insurance policies from limiting the right of action against the insurer to a period of less than one year from the time when the cause of action accrues unless otherwise specifically provided for in the Insurance Code. It also mandates that any condition, stipulation or agreement in violation of this section shall be void.

The defendant in this case is an industrial insurer organized and functioning under the provisions of LSA-R.S. 22:251-260. These statutes to do not establish any limitation of time for bringing actions against industrial insurers. Since the Insurance Code does not otherwise specifically provide time limitations for industrial insurance policies such as the one here, we find that such policies are governed by the provisions of LSA-R.S. 22:629 A(3), supra.

Having found that the provisions of Section 629 A(3) govern, we must next consider whether the present policy contains a limitation period shorter than that provided by the statute. As stated previously, Section 629 A(3) prohibits insurance policies from containing a prescriptive period of less than one year from the accrual of the cause of action. The policy provision in this case provides that all actions are barred unless brought within one year from the date of loss or death. If the cause of action “accrues” later than the “date of loss or death”, then the policy provision contravenes Section 629 A(3) and is void under Paragraph B of this Section.

A cause of action does not “accrue” until suit may be legally instituted upon it, that is, when it becomes immediately enforceable. Grice v. Aetna Casualty and Surety Company, 353 So.2d 401 (La.App. 4th Cir. 1977), reversed on other grounds, 359 So.2d 1288 (La.1978), rendered June 19, 1978; Roques v. Continental Casualty Co., 17 La. App. 465, 135 So. 51 (La.App.Orl.1931). Webster’s Third New International Dictionary (1961 ed.) defines the term “accrue” in pertinent part as:

“to come into existence as an enforceable claim: vest as a right [a cause of action has accrued when the right to sue has become vested].”

In the present case, the policy prohibits institution of any action to recover benefits prior to sixty days after the proof of loss has been filed in accordance with the policy requirements; thus, suit to recover benefits cannot be legally instituted until at least sixty days after the proof of loss has been filed. Applying the definition of “accrue” as set forth above, plaintiff’s cause of action does not “accrue” until at least sixty days after the loss or death. Since the policy provision applies a shorter time limitation on actions than that permitted by Section 629 A(3), we void the policy’s limitation requiring actions to be brought within one year from the date of loss or death.

Having voided the policy’s time limitation based upon the requirements of Section 629 A(3) and further observing that this section does not establish a maximum period for instituting suits, we conclude that the ten-year prescriptive period established in the Civil Code for contractual actions applies.' LSA-C.C.P. art. 3544. Since this suit was instituted well within ten years, we find that the action for recovery of benefits under this burial insurance policy was timely filed.

USE OF THE CLASS ACTION

Appellant next urges the availability of the class action in this case. The trial judge, after discussing the prerequisites for a class action, ruled that the use of the class action was improper.

LSA-C.C.P. art. 591 authorizes only the true class action. Williams v. State of Louisiana, 350 So.2d 131 (La.1977), Stevens v. Board of Trustees of Police Pension Fund, 309 So.2d 144 (La.1975), and LSA-C.C.P. art. 591, Official Revision Comment (c).

Under LSA-C.C.P. arts. 591(1) and 592, parties seeking to bring a class action must meet the following requirements: (1) a class so numerous that joinder is impossible; (2) the joinder as parties to the suit one or more parties who are (a) members of the class, and (b) so situated as to provide adequate representation for absent members of the class; and (3) a “common character” between the rights of the representatives of the class and the absent members of the class. Williams v. State of Louisiana, supra; Stevens v. Board of Trustees of Police Pension Fund, supra.

The right to institute a class action is neither absolute nor without qualification. Plaintiff in a class action must allege and establish the existence of the factors which entitle him to bring suit in such a manner. McClure v. A. Wilbert’s Sons Lumber and Shingle Company, 232 So.2d 879 (La.App. 1st Cir. 1970).

In support of the class action, plaintiff’s petition contained the following assertion:

“Petitioner alleges that there is a large number of beneficiaries under Whole Life Funeral Policies issued by the defendant, who have wrongfully and illegally been denied benefits in contravention of LRS 22:253.”

Paragraph B of Section 253, provides that if the beneficiary for any reason does not avail himself of the contractual services provided in the policy, he can recover a cash payment which cannot be less than 75% of the face amount of the policy.

The third requirement, necessary to maintain a true class action, is not met under the allegations and circumstances of this case. Plaintiffs allegations, at most, show that the only common right sought to be enforced is a recovery of benefits based on the defendant’s refusal to pay under Section 253 B. Undoubtedly, the insurer will have different reasons for refusing to pay the benefits in each case. Other than mere denial of benefits allegedly due under Section 253 B, the common questions of law or fact do not exist. Accordingly, we affirm the decision of the trial court that the use of the class action was improper in this case.

For the above reasons, the judgment maintaining the exception of prescription and dismissing plaintiff’s suit is hereby reversed and set aside. The sustaining of the exception for the use of the class action by the trial court is affirmed. The petition of plaintiff insofar as it relates to her personal demand is remanded to the trial court for further proceedings. Costs of this appeal are assessed to defendant-appellee.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

      . LSA-C.C.P. art. 591 provides:
      “A class action may be instituted when the persons constituting the class are so numerous as to make it impracticable for all of them to join or be join as parties, and the character of the rights sought to be enforced for or against the members of the class is:
      “(1) Common to all members of the class; or
      “(2) Secondary, in the sense that the owner of a primary right refuses to enforce it, and a member of the class thereby becomes entitled to enforce the right.”

      . LSAM2.C.P. art. 592 provides:
      “One or more members of a class, who will fairly insure the adequate representation of all members, may sue or be sued in a class action on behalf of all members.”

      . Plaintiffs interrogatories attached to the petition ask the following questions:

        “Interrogatory No. 1

      “Please state how long SECURITY INDUSTRIAL INSURANCE COMPANY has been writing Whole Life Funeral Policies?

        “Interrogatory No. 2

      “Have you ever refused to pay benefits in violation of LRS 22:253?

        “Interrogatory No. 3

      “If your answer to the above question is ‘yes’, then pleas list the following information:
      “A. Names of the insureds.
      “B. Policy Nos. and amounts of insurance.
      “C. Beneficiaries, their name, ages and addresses.
      “D. Dates that benefits were requested and the amount paid, if any.”

      . LSA-R.S. 22:253, at the time this action was commenced read:
      “A. Every funeral policy shall state the dollar value of the funeral to be furnished and shall specify therein those benefits which shall constitute the funeral to be furnished.
      “B. If for any reason the beneficiary does not avail himself of the contractual services as set forth in the funeral policy, in lieu thereof, the policy shall provide for a stated cash payment, which shall not be less than 75% of the face amount of the policy.”
      Act 116, § 1 of the 1977 Legislature, effective January 1, 1978, amended Paragraph B to provide for a cash payment of not less than 100% of the face value of the policy.


text:
    Succession of Arthur LaHAYE. Velma LaHAYE (Guillory), Plaintiff-Appellant, v. Julia Hollier LaHAYE and Marie LaHaye (Stelly), Defendants-Appellees.
    No. 6608.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 4, 1978.
    Rehearing Denied Sept. 25, 1978.

      Scofield, Bergstedt & Gerard, J. Michael Veron, Lake Charles, for plaintiff-appellant.
    Louis B. Viviano, Opelousas, Dubuisson, Brinkhaus & Dauzat, William A. Brinkhaus, Opelousas, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY, and CUTRER, JJ.
   DOMENGEAUX, Judge.

This suit involves the validity of a compromise agreement entered into during the succession proceedings of Arthur LaHaye.

Plaintiff, Velma LaHáye, is the only living child born during the marriage existing between her mother, Julia Hollier LaHaye, also the surviving spouse, and decedent, Arthur LaHaye. She has one sister, Marie LaHaye, who was purportedly adopted in 1930 by decedent and his wife, the surviving spouse.

The father died intestate on December 10, 1971. Prior to his death, he had instructed an attorney, C. Kenneth Deshotel, to prepare a will providing for the distribution of his property, one-half to Velma and one-half to Marie, subject to the usufruct in favor of the mother. However, the will was never signed because when Mr. Desho-tel called at the hospital in which Mr. La-Haye was confined in order to execute the document, Marie, the adopted daughter, advised Mr. Deshotel that her father was too ill to complete the will at that time.

After Mr. LaHaye’s death, Mr. Deshotel was engaged to handle the succession. At this time, Mr. Deshotel had an opportunity to review the original 1930 Act of Adoption of Marie. On December 27, 1971, the various parties gathered in Mr. Deshotel’s office in order to discuss and finalize the succession. Among other things, Mr. Deshotel read the unsigned will and also expressed doubts as to the validity of Marie’s 1930 adoption. After a discussion, it was decided that a compromise settlement be drawn up by Mr. Deshotel and executed by Velma LaHaye and Marie LaHaye, which we quote as follows:

COMPROMISE SETTLEMENT
STATE OF LOUISIANA
PARISH OF ST. LANDRY
BEFORE ME, the undersigned authority, personally came and appeared VELMA LAHAYE, wife of Edward Lee Guillory, a resident of Port Arthur, Jefferson-County, Texas, who declared that her father died at the Opelousas General Hospital, Opelousas, Louisiana, on December 10, 1971; appearer further declared that she is the only survivor of the marriage between her father, Arthur Lahaye and her mother, Julia Hollier Lahaye; appearer further declared that on July 1, 1930, her mother and father appeared before J. L. Domec, Justice of the Peace for St. Landry Parish, Louisiana, and executed an Act of Adoption between them and Felici Guillory, mother of Marie Philonese Leblanc (sometimes known as Philonese Leblanc or Marie Philonese Lahaye), wife of Elie Stelly, Jr., a resident of Port Arthur, Jefferson County, Texas; that it is not certain as to whether or not the said Act of Adoption which was signed on July 1,1930, was ever recorded, but that appearer and the said MARIE PHILONESE LAHAYE, was always reared as the two (2) daughters of Arthur Lahaye and Julia Hollier Lahaye, and in order to prevent any litigation, appearer and the said MARIE PHILONESE LEBLANC LAHAYE STELLY, have agreed to compromise this matter and have decided to each take as a legitimate child from the Succession of Arthur Lahaye because of this act of adoption, also, because the wishes and desire of their father, Arthur Lahaye, was that they share equally in his estate; that the last wishes of their deceased father, Arthur Lahaye, was that they do share equally as evidenced by a last will and testament he had his attorney draw up but died before he was able to sign said last will and testament.
And now comes and appears the said MARIE PHILONESE LEBLANC LAHAYE STELLY, who agrees to this compromise settlement and agrees to take as QA) of the decedent’s estate with her sister, Velma Lahaye Guillory taking other (14) subject to the usufruct of their mother, Julia Hollier Lahaye.
THUS DONE AND SIGNED at Opelousas, St. Landry Parish, Louisiana, on this 27th day of December, 1971, in the presence of the undersigned notary and the undersigned competent witnesses after a due reading of the whole.
WITNESSES:
/s/ Louis B. Viviano /s/ Marie Philonese L. Stellv_
MARIE PHILONESE L. STELLY
/s/ Alzier H. Viviano /s/ Velma L. Guillory_
VELMA LAHAYE GUILLORY
_/s/ C. Kenneth Deshotel_
C. KENNETH DESHOTEL
Notary Public

Also at this time, a new Act of Adoption was entered into by Julia LaHaye, in order to clear any doubts as to whether Marie could be considered her daughter in the future.

The next day, on December 28, 1971, a judgment of possession was rendered in which Velma LaHaye and Marie LaHaye were recognized as the sole heirs of Arthur LaHaye. It should be noted that the compromise agreement was not filed into the succession proceedings.

Four years after the rendering of the judgment of possession, in the Spring of 1975, some immovable property involved in the succession was sold, and all persons, including plaintiff, acquiesced in the sale. She received her share from the proceeds of the sale.

Approximately five years after the judgment of possession, on January 15, 1976, Velma LaHaye instituted this suit against Julia LaHaye and Marie LaHaye in order to have the judgment of possession set aside. She alleged that, upon the death of her father, she was informed: (1) that he had executed a will bequeathing equal portions of his property to her and Marie LaHaye; (2) that Marie was legally adopted by her father; and (3) that subsequent information revealed that the above was untrue. She therefore prayed that the original judgment of possession be set aside and a new judgment of possession be rendered, declaring her the sole heir of Arthur LaHaye. It should be noted that the petition does not mention or question the sale of the property in 1975. To plaintiff’s petition, defendant raised exceptions of estoppel and res judica-ta, citing as grounds the compromise agreement set forth above. These exceptions were referred to the merits.

Trial on the merits centered around the compromise agreement. Plaintiff argued and attempted to prove that the validity of the adoption and the will were “knowingly and willfully” concealed from her. She also attempted to show that she signed the compromise agreement without knowledge of its contents. The trial judge found that plaintiff failed to prove her case, and also found that the evidence proving that she knowingly signed the compromise agreement with full knowledge of the circumstances was overwhelming. From a judgment rejecting her demands, plaintiff appeals.

At the outset, we note that plaintiff has apparently abandoned her argument concerning fraud and concealment surrounding the execution of the compromise agreement. Her argument before this Court is largely confined to the legal issue of whether the compromise agreement is invalid for lack of supporting consideration. She also reurges her argument that the 1930 Act of Adoption is invalid, and requests that this Court set aside the original judgment of possession and declare her the sole heir of her father.

For the reasons set forth below, we find that the compromise agreement is valid, and, therefore, we do not reach a determination of the validity of the 1930 Act of Adoption.

We start with the general proposition that compromises are favored in the law. Through this device potential litigants can reach a satisfactory resolution of their differences without undergoing an often expensive and time-consuming law suit. It is in the interest of the state that there be an end to or an avoidance of litigation. Such settlements are not invalidated lightly in the absence of bad faith, error, or fraud. 1 Litvinoff, Obligations, Sec. 389 in 6 Louisiana Civil Law Treatise 389 (1969).

Compromise agreements are expressly treated in Book III, Title XVII of the Louisiana Civil Code. Article 3071 defines compromise agreements as follows:

“A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
This contract must be reduced into writing.”

Article 3078 states the effect of a compromise agreement:

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

Velma LaHaye’s argument is that she had nothing to gain by signing the compromise agreement. She maintains that there was no balancing of the hope of gaining against the danger of losing as contemplated by Article 3071, and, therefore, the agreement has no supporting consideration.

We feel that Velma LaHaye did gain something by signing the compromise agreement. In addition to avoiding the legal fees and court costs which would have been incurred had the validity of the 1930 Act of Adoption been litigated, it is obvious that the judgment of possession was rendered without undue delay, and, hence, Velma LaHaye had control of her portion of the property sooner, by setting at rest any dispute concerning the adoption. This may have been a real and tangible financial benefit to appellant at that time.

Other than the benefit of obtaining an immediate judgment of possession, we feel that there were other non-financial benefits which can be considered in upholding the compromise agreement. When the 1930 adoption was questioned, Velma was faced with the proposition that Marie, who was considered her sister and a member of the family for many years preceding the father’s death, might not receive anything from his succession.- Furthermore, although unexecuted, the will did express an intent on behalf of the decedent to divide the succession equally between what he considered to be his two daughters, Velma and Marie, which may not have occurred if the validity of the 1930 adoption was litigated. We think it reasonable to assume that Velma may have wanted to avoid this result and derive the personal satisfaction of knowing that the succession would be divided equally, regardless of the validity of Marie’s adoption.

In short, we feel that appellant has not given any reason for invalidating the compromise agreement some five years after its execution and after the sale of some of the succession property in which she acquiesced. A compromise agreement needs no other cause or consideration than an adjustment of differences and a desire to set at rest all possibility of litigation. Collier v. Administrator, Succession of Blevins, 136 So.2d 774 (La.App. 4th Cir. 1962). The compromise agreement in the instant case was adequately supported by consideration, as shown above.

For the above reasons, the judgment of the District Court is affirmed at appellant’s costs.

AFFIRMED.

GUIDRY, J., concurs in the result.

      . Prescription was raised in a general and nonspecific allegation contained in defendants’ answer. However, considering that the issue was not pursued in the trial court and was not included as an error in the appellate briefs, we will not reach the issue. Rule IX-A, Uniform Rules — Courts of Appeal.

      . See Work of the Louisiana Appellate Courts for the 1974-1975 Term — Contracts in Particular, 36 La.Law R. 417, 431 (1976), wherein Professor Litvinoff of the LSU Law Faculty states, in a different factual context involving compromises:
      “[Olbtaining immediate payment of a debt or payment within an agreed delay, as an advantage over the institution of procedures for the execution of a judgment, is a valid cause for a transaction, as the interest of the creditor may be satisfied in a better way by taking this sort of shortcut rather than facing the difficulties a judicial execution may present.” [Footnote omitted]


text:
    Vicky FONTENOT, Plaintiff-Appellee, v. Joseph Ronald DAIGLE, Defendant-Appellant.
    No. 6548.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 15, 1978.

      Vidrine & Wimberly, Andrew J. Yidrine, Church Point, for defendant-appellant.
    Cline, Miller, Richard & Miller; Jack Derrick Miller, Rayne, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   DOMENGEAUX, Judge.

MOTION TO DISMISS

We issued, ex proprio motu, a rule to show cause why defendant-appellant’s appeal should not be dismissed due to his failure to timely move for an appeal. Appellant has not answered the rule.

We dismiss the appeal in part and maintain the appeal in part.

On October 6, 1977, the trial court signed a judgment making past due alimony exec-utory, and denied defendant’s request for a decrease in alimony pendente lite. On December 7, 1977, defendant applied for and obtained an order for a devolutive appeal. No bond was required since defendant is proceeding in forma pauperis. LSA-C.C.P. arts. 5181 and 5185.

Notice of judgment was mailed by the clerk of court on October 6, 1977. Since no new trial was requested, the delay for perfecting an appeal began on October 18, 1977. LSA-C.C.P. art. 2087.

An appeal from a judgment denying a rule to decrease alimony must be taken within 30 days from the applicable date provided in LSA-C.C.P. art. 2087(1)-(3). LSA-C.C.P. arts. 3943 and 3942. Zaunbrecher v. Zaunbrecher, 338 So.2d 797 (La.App. 3rd Cir. 1976). Thus, defendant had until November 16, 1977 within which to perfect his appeal as to this aspect of the judgment. Since the appeal was not perfected until December 7, 1977, this portion of the appeal must be dismissed.

However, the appeal is timely as to that aspect of the judgment making past due alimony executory. Such a judgment is not limited to thirty days under the provisions of LSA-C.C.P. art. 3943. Mertens v. Mertens, 308 So.2d 506 (La.App. 3rd Cir. 1975).

For the reasons assigned, the appeal from that portion of the judgment rejecting the request for a decrease in alimony is dismissed. As to that portion of the judgment making past due alimony executory, the appeal is maintained.

Appeal maintained in part, and dismissed in part.


author: FORET, Judge.

text:
    Daniel POPPS, Plaintiff-Appellant, v. Dorene Mouilla POPPS, Defendant-Appellee.
    No. 6769.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 17, 1978.
    John H. Weinstein, Opelousas, for plaintiff-appellant.
    Thistlethwaite & Thistlethwaite, by Hugh Wm. Thistlethwaite, Jr., Opelousas, for defendant-appellee.
    Before CULPEPPER, WATSON and FORET, JJ.
   FORET, Judge.

Ex proprio motu, we issue a show cause order questioning this court’s jurisdiction because the plaintiff’s appeal from a custody judgment was not perfected within the thirty (30) days required by LSA-C.C.P. art. 3943. The appellant has not answered the rule.

We dismiss the appeal.

A formal judgment was read and signed on April 18, 1978, changing custody of the minor child from the defendant-in-rule to the plaintiff-in-rule. Since the matter was taken under advisement, notices of judgment were mailed to all counsel by the Clerk on April 18, 1978, as required by LSA-C.C.P. art. 1913. On June 13, 1978, defendant-in-rule, Daniel Popps, moved for and was granted a devolutive appeal returnable to this court on August 12, 1978. The appeal was timely lodged.

An appeal from a judgment involving custody must be taken within thirty (30) days from the applicable date provided in LSA-C.C.P. art. 2087(l)-(3). LSA-C.C.P. arts. 3943 and 3942, Zaunbrecher v. Zaunbrecher, 338 So.2d 797 (La.App.3d Cir. 1976). Thus, the appellant had until May 29, 1978 within which to perfect his appeal. Since his appeal was not perfected until June 13,1978, his appeal must be dismissed.

For the reason assigned, the appeal of the appellant and defendant-in-rule is hereby dismissed at his cost.

APPEAL DISMISSED.


author: ELLIS, Judge.

text:
    George L. JOHNSON v. BATON ROUGE MUNICIPAL FIRE & POLICE CIVIL SERVICE BOARD and Maxie E. Cox, State Examiner of Municipal Fire & Police Civil Service.
    No. 12299.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 21, 1978.
    Sam J. D’Amico, Baton Rouge, for appellant. :
    Joseph F. Keogh, City Parish Atty., C. E. Pilcher and Frank Gremillion, Asst. City Parish ,Attys., Baton Rouge, for appellees.

      Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge.

Plaintiff, George L. Johnston, who holds the rank of Major in the Baton Rouge Police Department, is seeking by this suit to compel the Baton Rouge Municipal Fire and Police Civil Service Board to permit him to take the promotional test for the rank of Colonel. From an adverse judgment in the trial court he has appealed.

The facts of the case are all stipulated. In 1976, Major Malcolm Ballard gave notice that he intended to retire from the Baton Rouge Police Department, after using up his accumulated leave. Major Johnston was given a temporary appointment as Major Ballard’s substitute on April 16, 1976. Apparently after Major Ballard’s retirement became effective, plaintiff received a probationary appointment as major, on September 16, 1976, and commenced his working test period. On March 16, 1977, his appointment as a regular major was confirmed.

In 1978, Colonel William Louis Gunby, Sr., of the Baton Rouge Police Department gave notice of his intention to start his sabbatical leave on June 29, 1978, and to retire as of the close of business on December 31, 1978. The Board then announced that it would give a promotional test for the position of Colonel on May 22,1978. On April 14, 1978, plaintiff applied to take the said test, but his application was rejected by the Board, by a vote of three to two.

Thereafter, plaintiff brought this suit for injunctive relief to prevent the giving of the test, and praying that the Board be ordered to permit him to take the test. The matter was heard on the prayer for a preliminary injunction to prevent the giving of the test. After the hearing, judgment was rendered denying the preliminary injunction, and plaintiff has appealed. This court has issued a stay order to maintain the status quo pending the resolution of the issues presented hereby.

Among the qualifications for holding the rank of Colonel of the Baton Rouge Police Department is the following:

“Must have ten years of police experience in law enforcement and crime prevention work, including two years experience at the rank of Major (two years to begin at date of probational appointment).”

The Board was of the opinion that, since plaintiff did not begin his probational appointment until September 16, 1976, he would not have the required two years service as Major at the time the test was given, and was therefore not eligible to take it.

R.S. 33:2493, provides, in part, as follows: “Admission to tests shall be as follows: “A. Admission to a promotional test shall be limited to regular employees of the class next lower from that for which they are to be examined. However, the rules may provide for admission to be extended to applicants from any one or more of the next lower classes.
“B. Admission to competitive tests shall be open to all persons who meet the requirements provided by this Part and the rules.
“C. Any applicant admitted to a test shall be a citizen of the United States of America and, if of legal age, shall be a qualified elector of the State of Louisiana.
“D. Special requirements or qualifications for admission to tests, or for eligibility for appointment, such as age, education, physical requirements, etc., may be established by the rules adopted by the board, after consultation with the appointing authority. Any applicant must be, at the time of his appointment to a position in the classified service, of good health, good moral character, and of temperate and industrious habits.
“E. The board may reject the application of any person for admission to tests of fitness, or refuse any applicant to be tested, or may cancel the eligibility of any eligible on any employment list, who
“(1) Is found to lack any of the qualifications prescribed, or which may be legally prescribed, as requirements for admission to the tests for the class for which he has applied; .

It is obvious, particularly from Subsection D, supra, that there is a difference between qualifications for admission to take a test and eligibility for appointment to a position. Absent some special rule, formally adopted by the Board, the only legal qualifications for admission to tests are that the applicant be an employee “of the class next lower from that for which (he is) to be examined,” and that he be a citizen of the State. He must also be, at the time of his appointment, “of good health, good moral character and of temperate and industrious habits.”

There is no evidence before us of any rule which requires that an applicant fulfill all of the qualifications for a position at the time he takes the test, and the law, quoted above, does not make that requirement. We do not believe that the Board can supply such a requirement without adopting a formal rule to that effect. Nor can we see any logical reason for denying an applicant the opportunity to take a promotional test, when, as in this case, he will be in all other respects eligible at the time the position falls vacant. Certainly plaintiff will suffer irreparable harm if the test is given before this matter can be finally resolved on its merits.

The judgment appealed from is therefore reversed, and there will be judgment herein in favor of plaintiff and against defendants, granting a preliminary injunction restraining the defendants from administering the promotional test for the position of Colonel pending the final resolution of this case on its merits; and remanding the case to the trial court for further proceedings in accordance with law. Defendants shall pay all costs of this appeal for which they may be legally liable, with all other costs to await final resolution of the case on its merits.

REVERSED AND REMANDED.