author: SAMUEL, Judge. REDMANN, Judge,

text:
    Igor MARGAN v. PRECISION MOTORS, INC., Alfa Romeo, Inc., New Jersey and Alfa Romeo, Manufacturer.
    No. 8359.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 14, 1978.
    Rehearing Denied July 26, 1978.

      Fine & Waltzer, Bruce C. Waltzer, New Orleans, for plaintiff-appellee.
    Satterlee, Mestayer & Freeman, Henry F. Mestayer, New Orleans, for defendants-appellants.
    Before SAMUEL, REDMANN and STOULIG, JJ.
   SAMUEL, Judge.

This case is before us again after remand for additional evidence. Plaintiff seeks rescission of the sale of a 1973 Alfa Romeo automobile purchased by him from defendant, Precision Motors, Inc. Also made defendants are Alfa Romeo, Inc., the vehicle’s distributor, and Alfa Romeo, the vehicle’s manufacturer.

In our original opinion we set forth the rule that, although it is not necessary for the buyer to prove the particular and underlying cause of the defect in a complicated piece of machinery, the burden of proof is upon the plaintiff to establish both the existence of a redhibitory defect and its existence at the time of the sale when the defect does not manifest itself within the three day presumptive period provided by Civil Code Art. 2530. The case was remanded for taking further evidence “[bjecause of the necessity of proof by plaintiff of a defect which existed at the time of the sale and the effect of a major disassembling of the engine upon plaintiff’s ability to determine such a defect and properly tender the vehicle back to defendants . . .."

On remand, plaintiff introduced the deposition of Jim Williams, the owner of Jim Williams Motor Company, a Fiat dealer in Laredo, Texas. The Williams’ dealership was authorized by Alfa Romeo to replace a head gasket which apparently had blown and caused lack of engine compression. Williams testified only that the head gasket was replaced, after which the engine still had no compression. He stated the engine was disassembled at his dealership and inspected by a machine shop in Laredo. He further stated that while the engine was still disassembled it was inspected by an Alfa Romeo representative. He did not state who authorized the disassembly of the engine. He did state his business records reflected neither a charge nor a payment for that service, but he also said his service department, particularly the manager thereof (who was no longer employed by him), had had several telephone conversations with the Alfa Romeo people in California.

Also on remand, defendants offered the testimony of Aquiles A. Gemba, service representative of Alfa Romeo, who inspected the vehicle’s engine when it was in a disassembled state on a workbench in the service department of the Williams company. Gemba testified he reported to his company that he “presumed” the original cause of the malfunction of the automobile was a burned out head gasket. However, he testified he based his report on information obtained from Williams and from Williams’ service manager because the head gasket was not with the automobile’s engine when he examined it.

Gemba further testified he could not determine what caused the head gasket to fail, if indeed it had, because the car’s failure could have been driver abuse, insufficient coolant in the engine, a broken hose, a leaking clamp, or a multitude of other conditions. He further testified he did not know the engine had been disassembled pri- or to his arrival at Williams’ dealership to inspect it, and he did not know who ordered its disassembly.

The evidence produced on remand eliminates the problem of proper tender. Defendants did not prove plaintiff authorized the disassembly of the engine, thereby destroying his ability to properly tender'the vehicle back to them. Because the engine’s disassembly was performed at the Williams’ dealership, where work authorized by defendants had been performed, and because there is no evidence plaintiff authorized the disassembly of the engine, we conclude plaintiff made sufficient tender and defendants were not prejudiced in their ability to defend the suit by plaintiff’s actions.

As pointed out in this court’s original opinion, the disassembly of the engine prevented anyone from giving meaningful testimony regarding the cause of the engine’s failure. Likewise, on remand, the testimony of Aquiles A. Gemba also was meaningless since he saw the engine only after it had been taken apart and candidly admitted his inability to determine the cause of the failure. The trial judge found, and we concur, that the Williams dealership acted at all times as the agent for Alfa Romeo and not for the plaintiff. Nothing in the record contradicts this finding.

Just as defendants were unable to prove the origin of the engine’s failure because of its disassembled state, plaintiff is likewise in the same position. Since the jurisprudence establishes a plaintiff who secures major engine repairs which result in his inability to return the automobile in substantially the same condition to the seller cannot rescind the sale because of improper tender, likewise the opposite rule is applicable to a dealer whose agent performs substantial work on the engine and this work renders plaintiff’s proof of the existence and nature of the defect impossible. In our original opinion, we noted testimony of the expert witnesses tended to establish that plaintiff’s engine probably would have run if properly reassembled, and the engine bore distinct markings to indicate improper tools, equipment, and procedures were used by the Fiat dealership in attempting repairs.

Considering the record as a whole, we conclude that while the plaintiff bears the burden of proving a redhibitory defect and its existence at the time of the sale, the plaintiff in this case was prevented from producing such proof by the actions of defendant’s agent, Jim Williams Motor Company, in Laredo, Texas. Consequently, plaintiff should be allowed to recover.

The only difference between the original judgment and the judgment on remand is the inclusion of Precision Motors, Inc. as a solidary obligor. In view of the Supreme Court’s decision in Media Pro. Consult., Inc. v. Mercedes-Benz of N. A., Inc., we conclude this amendment to the judgment is correct.

For the reasons assigned, the judgment of the trial court is affirmed.

AFFIRMED.

REDMANN, J., concurred with written reasons.

REDMANN, Judge,

concurring.

Because a new automobile’s engine is designed and warranted for months of normal use, failure within that time supports the inference that the failure resulted from some defect which existed at the time of manufacture and sale; Moreno’s Inc. v. Lake Charles Cath. H.S., Inc., 315 So.2d 660 (La. 1975).

The disassembly of the engine deprived the manufacturer and the seller of the opportunity to prove the nature of the defect. That the defect was not a simple blown head gasket is reasonably proved because gasket replacement didn’t restore the engine’s compression. But disassembly is not attributable to plaintiff. Therefore there is no unfairness in holding defendants to the burden of exculpating themselves in respect to the facially redhibitory defect of a nonfunctional engine (not repairable even by replacing the head gasket).

      . See Margan v. Precision Motors, Inc., La.App., 317 So.2d 664.

      . See Margan v. Precision Motors, Inc., Id., at page 668.

      . See Johnson v. H. W. Parson Motors, Inc., La.App., 231 So.2d 73.

      . See Margan v. Precision Motors, Inc., supra, note 1, at 667-668.

      . See Johnson v. H. W. Parson Motors, Inc., supra note 3; LaFleur v. Boyce Machinery Corporation, La.App., 282 So.2d 819.

      . Margan v. Precision Motors, Inc., supra, note 1.

      . 262 La. 80. 262 So.2d 377.


source: Caselaw Access Project

author: STOULIG, Judge.

license: Public Domain

text:
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS v. CITY OF NEW ORLEANS et al.
    No. 9133.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 14, 1978.
    Rehearing Denied July 26, 1978.

      William W. Irwin, Jr., Baton Rouge, Jesse S. Guillot, Louisiana Dept, of Highways, New Orleans, William Guste, Jr., Atty. Gen., State of Louisiana, Louis M. Jones, Asst. Atty. Gen., State of Louisiana, for plaintiff-appellee.
    Blake G. Arata, City Atty., Lee R. Miller, Jr., Asst. City Atty., for City of New Orleans, defendant-appellant.
    Leonard B. Levy, New Orleans, for The Hibernia National Bank in New Orleans, Trustee, intervenor and City of New Orleans, by and through New Orleans Union Passenger Terminal Committee, defendant-appellant.
    Harry McCall, Jr., New Orleans, for City of New Orleans, by and through New Orleans Union Passenger Terminal Committee, defendant-appellant.
    Before REDMANN, STOULIG and SCHOTT, JJ.
   STOULIG, Judge.

This is an appeal by the City of New Orleans (City), the City of New Orleans by and through the New Orleans Union Passenger Terminal Committee (Committee) and the Hibernia National Bank in New Orleans (Hibernia) from a judgment rejecting the City’s claim for compensation for a large segment of property expropriated by the Highway Department of the State of Louisiana to construct the Carroll-ton-Airline Interchange.

As background a brief history of the past ownership and physical development of the site for which the City claims compensation is pertinent. Originally this ground formed part of the New Basin Canal and shell roads that ran along each side of the north-south waterway that connected Lake Pontchartrain with the inner city. The State owned this strip, which measured 300 feet wide.

In 1947 the Department of Public Works of the State of Louisiana transferred to the City of New Orleans the New Basin Canal strip for a consideration of $1.00 to enable the City to contract for railroad service. We quote that part of the agreement transferring the property which states the City’s purpose and the State’s intent:

“Whereas, City, acting pursuant to authority granted to it by Act No. 385 of 1938 adopted as an amendment to the Constitution of Louisiana for 1921 as Section 31.3 of Article XIV has entered into a contract with certain railroads presently entering the City of N.O., to acquire, construct, maintain and operate a Union Railroad Passenger Terminal facility in the City of N.O. on and adjacent to portions of the property of Dept, known and designated as the property of the New Basin Canal and Shell Road * * (Emphasis added.)

and

“WHEREAS, in determining the cash consideration for the said portions of the property of DEPT, herein stipulated to be paid, the parties recognize the fact the said Union Railroad Passenger Terminal facility and related projects are public improvements which will be of great benefit to the City of N.O. and the State of La., and said cash consideration is, therefore, not to be considered as refíecting the true market value of said property * * (Emphasis added.)

Later that year the canal was filled with the State bearing the full expense for that section from So. Claiborne Avenue to the L & A bridge (one of the parcels taken for permanent servitude is in this section); the City and State sharing the expense for the section between the L & A bridge and General Ogden Street; and the City bearing the full expense for the section between General Ogden and the Black Bridge. (The other parcels taken for permanent servitude and for temporary servitude are located in these sections.)

That same year the Pontchartrain Expressway was built on part of the filled canal. In 1948 two tracks were built from the then new railroad terminal along the New Basin site that have been used continuously since that time. The Pontchartrain Expressway became incorporated in the Interstate system in 1957. The original interchange constructed for Carrollton and Airline traffic, adequate at its inception, soon was insufficient to accommodate the increased traffic flow to and from the New Orleans business district.

By 1972, New Orleans officials were urging the director of the Department of Highways to expedite construction of a redesigned interchange to alleviate the problem. We quote a portion of the letter of Blaise M. Carriere, director of the City of New Orleans Department of Streets, to W. T. Taylor, Jr., director of the Highway Department, State of Louisiana, dated June 28, 1972:

“The fact that the proposed structure can be constructed almost totally within the existing right-of-way with the exception of the need for securing a small area of industrial property and a bare minimum of property along the existing Pontchartrain Boulevard service road is indeed significant. It should be pointed out that only one foot of property along Pontchartrain Boulevard is required and that this area is primarily being used as a roadside ditch at present. Pontchartrain Boulevard in this area is to be reconstructed as a curb and gutter section with subsurface drainage.
“The need for this improvement is readily apparent in that the now existing Carrollton-Airline Interchange was originally designed as part of a major City undertaking known as the Pontchartrain Expressway. In 1957 with the beginning of the Interstate Highway Program the Pontchartrain Expressway was incorporated into the interstate system. The basic design standards although satisfactory at that time are not sufficient to meet the demands of 1972. The interchange structure does not at present provide capacities consistent with the main approach roadways. The proposed structure will provide the needed compatibility between approach roadways and interchange.
“With the completion of the Pontchartrain Expressway-Tulane Avenue link of the Interstate 10 system, New Orleans will have for the first time a single complete expressway system. Until Interstate 610, the east-west bypass route is completed, the basic I — 10 system will be called upon to provide the only unrestricted thru route in New Orleans. It is therefore considered most important that the proposed project be undertaken as soon as possible.
“The Department of Streets therefore recommends approval of the design plans and requests that Highway Department and the Federal Highway Administration proceed as quickly as possible toward receipt of bids and undertaking construction.” (Emphasis added.)

At a cost in excess of $19 million the interchange was completed. The railroad tracks constructed in 1948 have not been disturbed.

To construct the redesigned interchange it was necessary for the State to take 9306.9 square feet outside the 300-foot-wide Basin Canal strip owned by the City of New Orleans. Conceding that this property is private property that the City had acquired for the L & A Railway that had never been dedicated to public use, the State agreed the City is entitled to $4.00 per square foot. This value is undisputed. Accordingly the trial court awarded the City of New Orleans $37,227.60 less a credit of $25.00 for the amount it deposited in the registry of court when this expropriation suit was filed.

Before considering the merits of this appeal, we note that two of the appellants, the City of New Orleans by and through the New Orleans Union Passenger Terminal Committee and the Hibernia National Bank in New Orleans, trustee, are not proper parties in that neither has a right of action in this expropriation proceeding.

The status of the Committee with respect to the property at issue has been litigated previously. In Olympia Roofing Company v. City of New Orleans, 234 So.2d 273 (La.App. 4th Cir. 1970), this court held the Committee was not the owner of the property utilized to operate rail facilities in and out of New Orleans and therefore had no authority to sell it. We concluded that the Committee was empowered to supervise or control the acquisition, construction, maintenance and operation of the facility. Therefore, it has no standing to seek damages for expropriation. The proper party is the owner — the City of New Orleans.

Likewise the Hibernia National Bank in New Orleans intervened in its capacity as trustee of the 1948 bond issue indebtedness. The bank asserts the mortgage given to secure repayment of the $15 million indebtedness includes the property in the New Basin Canal strip that the State expropriated. Without deciding what effect, if any, the mortgage may be given on the particular tract at issue, we note the improvements constructed thereon do not jeopardize the security the land represents, rather the value is enhanced. However in view of the fact we have not increased the purely nominal amount of compensation awarded by the trial court, no need exists for this court to pass upon the right of the intervenor-trustee.

As to the substantive issue, the City rests its claim on those sections of the state and federal constitutions guaranteeing that no person shall be deprived of private property without due process of law and payment of just and adequate compensation for the land taken. (LSA-Const.1921, Art. 1, § 2 and U.S.Const. Amend. 5.)

The fallacy in appellant’s position is that the property has been dedicated for public use and is therefore not private property. C.C. arts. 453, 454 and 458 define some aspects of public ownership:

“Public things are those, the property of which is vested in a whole nation, and the use of which is allowed to all the members of the nation: of this kind are navigable rivers, seaports, roadsteads and harbors, highways and the beds of rivers, as long as the same are covered with water.
“Hence it follows that every man has a right freely to fish in the rivers, ports, roadsteads, and harbors.” C.C. art. 453.
“Things which are for the common use of a city or other place, as streets and public squares, are likewise public things.” C.C. art. 454.
“Things which belong in common to the inhabitants of cities and other places, are of two kinds:
“Common property, to the use of which all the inhabitants of a city or other place, and even strangers, are entitled in common; such as the streets, the public walks, and quays.
“And common property which, though it belongs to the corporation, is not for the common use of all the inhabitants of the place, but may be employed for their advantage by the administrators of its revenues.” C.C. art. 458.

The Basin Canal strip has always been public land. In the deed of donation by the State to the City it was recognized that “ * * * Union Passenger Terminal facility and related projects are public improvements which will be of great benefit to the City * * *.” (Emphasis added.) The function of the area remains unchanged insofar as public usage is concerned, namely for highway and rail transportation. The $19 million interchange constructed at the City’s request simply facilitates vehicular traffic movement without disturbing the rails crossing the property and they are still in use.

Under our jurisprudence, this is property of the public domain. In Anderson v. Thomas, 166 La. 512, 117 So. 573 (La.1928), the Supreme Court described two types of public ownership, namely, public property within the public domain and public property in the private domain. The former is accessible to all citizens, while the latter may be used by certain groups of the public only. Anderson points out:

“The Civil Code draws a distinction between public things, the property of which is vested in the state, but the use of which is common to all the inhabitants thereof, ‘and even strangers,’ such as the seashore, river beds, highways, streets, and public parks, and public property, which is not for the common use of the inhabitants, but may be employed for their benefit, such as, for instance, the public offices, police and fire stations, markets, schoolhouses, etc. R.C.C. 453, 454, 458.” 117 So. at 579.

The significance of the site in question being characterized as property within the public domain is that the governing authority may change and modify the facilities or improvements constructed thereon for public use as long as the primary purpose for which it is dedicated is unaffected. See Landry v. Council of Parish of East Baton Rouge, 220 So.2d 795 (La.App. 1st Cir. 1969). We find the public purpose for which this land has been dedicated has not been altered.

Of course the City rests its claim on the due process guarantees to private property owners. Because this is public property, not private, their claim falls.

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

AFFIRMED.

      . Intervenor Hibernia National Bank is trustee charged with “securing $15,000,000 City of New Orleans Union Passenger Terminal revenue bonds” authorized in 1948 to construct the Union Passenger Terminal and railroad facilities necessary to put it into operation.

      . Three separate parcels were involved. Permanent servitudes for right-of-way purposes were taken on two and a temporary servitude for construction was taken on the third.


author: STOULIG, Judge. REDMANN, Judge, SCHOTT, Judge,

text:
    ILLINOIS CENTRAL GULF RAILROAD COMPANY v. INTERNATIONAL HARVESTER COMPANY.
    No. 9427.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 14, 1978.
    Rehearing Denied July 26, 1978.

      Lemle, Kelleher, Kohlmeyer & Matthews, Mack E. Barham and Sherry Marcus Wise, New Orleans, for plaintiff-appellee.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Max Nathan, Jr., and Peter S. Title, New Orleans, for defendant-appellant.
    Before SAMUEL, REDMANN, STOUL-IG, BOUTALL and SCHOTT, JJ.
   STOULIG, Judge.

Appellant, International Harvester Company (Harvester), has appealed a judgment ordering it to vacate the leased premises at 1601 Poydras Street in New Orleans; to remove the improvements; and to deliver possession to its lessor, Illinois Central Gulf Railroad Company (Illinois Central). Ap-pellee based its demand for eviction on two alleged lease violations, namely, subletting without the written consent of the lessor and permitting the sublessee to utilize the property for purposes other than those stipulated in the “exclusive use” provisions of the leases at issue.

By leases dated February 4, 1960 (# 15730) and December 11, 1961 (# 15042), Illinois Central rented two contiguous tracts of land to Harvester for the continued operation of a truck retail outlet that had been carried on at that location since 1936 under earlier lease agreements. Harvester continued in business at this site until it relocated in 1974. In the interim between the execution of the leases and vacating the property, the Louisiana Super-dome was constructed across the street and the property greatly increased in value. Cancellation of the leases due to expire in 1986 would place at the railroad’s disposal an unencumbered $2,500,000 asset that yielded a low return at the time this eviction proceeding was filed, while upholding the validity of the leases would be a financial windfall for Harvester. The litigants are large corporations that have acted with benefit of legal counsel throughout and there can be no question here that both lessor and lessee are dealing at arm’s length.

The provisions of the leases at issue, executed on forms furnished by the lessor railroad are:

“22. It is further agreed by the Lessee, not to underlet said premises, or any part thereof, or assign this Lease, without the written consent of the Lessor, first had and obtained.
* * * * * *
“25. If the rent above reserved, or any part thereof, shall be unpaid on the day when due, or if default shall be made by the Lessee in keeping or performing any of the covenants or agreements herein contained, then this lease shall, at the election of the Lessor, be null and void and the term provided for herein shall be ended * * (Emphasis supplied.)

(The quoted part of these clauses are identical in both leases.)

Section 6 in the 15730 lease reads:

“It is further agreed by the Lessee, that the said leased premises shall be used and occupied exclusively as a site for a Storage space.”

Section 6 in the 15042 lease provided:

“It is further agreed by the Lessee, that the said leased premises shall be used and occupied exclusively as a site for a motor truck sales and service station and warehouse.”

The uses specified in both sections when combined provide for a retail truck sales and service outlet with a warehouse for inventory. The building presently is being operated as a public parking lot.

Germane to a determination of whether there was a lease violation warranting cancellation are a series of transactions that began July 16, 1974 with a letter of that date from David Fjnegold to Harvester executive Paul Nylander expressing an interest in subletting the vacated Poydras Street location to operate a parking lot. On January 17, 1975, after receiving several similar inquiries from Finegold, Nylander wrote a letter to Rixon Irvine, Illinois Central’s general manager of real estate, to advise Harvester had vacated and to request written permission to sublease to Finegold to operate a parking lot. On January 22, 1975, Irvine responded by letter that the proposed parking lot was not a use permitted by the contracts of lease and suggested a mutual cancellation of the agreements.

On March 14, 1975, Harvester’s legal representative J. J. Ross wrote a letter to Irvine stating he reviewed the Nylander-Ir-vine correspondence of January and he concluded the lessor’s refusal to agree to the sublease was arbitrary. He pointed out Harvester’s investment in the improvements as the factor making mutual cancellation unacceptable.

Several verbal discussions followed between representatives of the lessor and lessee. Then on April 30, 1975, F. J. Rugg, Harvester’s real estate manager, proposed a cancellation of the lease accompanied by a payment of $69,886 to. Harvester for its building, to be paid when the property was sold. This offer did not ripen into an agreement and things were left unsettled.

On August 27, 1975, Harvester entered into an “operating agreement” with Fine-gold’s corporation, 1601 Poydras Corporation. 1601 obtained possession of the premises for a fixed monthly payment and agreed to indemnify and hold harmless Harvester should Illinois Central attempt to evict and 1601 elect to resist eviction. This written agreement was registered in the Orleans Parish conveyance office.

No later than September 25, 1975, the lessor learned a public parking lot was being operated on its Poydras Street property. Rixon Irvine, in New Orleans on other business, passed the site and noticed the large parking signs prominently displayed on several parts of the premises. On October 29, 1975, Irvine wrote Rugg of Harvester suggesting further discussion of the leases. On November 6, 1975, Rugg responded this way:

“Dear Mr. Irvine:
R. E. Record 761 — New Orleans, Louisiana
R. E. Record 996 — New Orleans. Louisiana
This will acknowledge receipt of your letter dated October 29, 1975, in which you briefly discussed the subject leases and an apparent problem. We’re really not sure a problem exists which would need a solution. It is our viewpoint that we will just continue with the leases and as your records will reveal, we have been paying, and will continue to pay, the rentals due per the terms of the leases.
Inasmuch as we are unaware of any existing problems needing resolution, please feel free to respond if you feel there are any areas which you consider to be a problem.
Very truly yours,
[Signed] F. J. Rugg F. J. Rugg
Real Estate Manager”

In accordance with its assertion in this letter, Harvester continued payment of the rentals and Illinois Central accepted them without any further verbal or written exchanges taking place for approximately 16 months. During this period Irvine, the former negotiator in chief for Illinois Central, was promoted and his replacement as real estate manager was Robert Dobroth. On April 21, 1977, Rugg wrote Dobroth acknowledging he had received a telephone call from Dobroth in mid-March 1977 concerning resolution of “ * * * a problem that may exist on the property we lease from you on Poydras Street * * Again Rugg denied there was a problem. Harvester continued paying the rentals due under the leases and Illinois Central continued accepting the payments. Several more verbal exchanges ensued between the litigants’ representatives and in August 1977 an Illinois Central attorney addressed a compromise offer ir. writing to Harvester’s attorney J. J. Ross permitting mutual cancellation and relieving Harvester of the obligation to remove the improvements. Harvester alerted 1601 of the imminent eviction suit after it rejected this offer.

Having reached no satisfactory conclusion to its off-and-on negotiations with Harvester, Illinois Central filed eviction proceedings in December 1977 and deposited in the registry of court all rents it had accepted for the period beyond November 23, 1977.

The Harvester contract with 1601, alluded to as an operating agreement, is beyond dispute a sublease. 1601 was given occupancy of the premises until 1986 for a fixed monthly rental payable to Harvester. C.C. art. 2674 defines a lease as “a contract by which one of the parties binds himself to grant to the other the enjoyment of a thing during a certain time, for a certain stipulated price which the other binds himself to pay.” Without belaboring the issue we conclude that the sublessee utilized the premises to operate a business totally different from the one operated by Harvester. The leases limited the exclusive use to operation of a retail sales and service truck business and 1601 operates a public parking lot. Applying the rule of interpretation that words are to be understood by their usual signification or popular use (C.C. art. 1946), we hold a public parking lot is not a retail truck sales and service business and is totally dissimilar.

Appellant nonetheless contends it is entitled to be maintained in the premises for either of two reasons: (1) plaintiff, obligated under the lease to approve a sublease that did not damage its property, wrongfully and arbitrarily withheld permission to sublet; or (2) plaintiff’s continued acceptance of rentals for 26 months and failure to initiate eviction proceedings in this period constituted an implied acceptance of the sublease.

Our conclusion that there is merit in the second contention obviates a consideration of the first. Initially Harvester sought written permission to sublease as the written contracts of lease required and within a few days the lessor unequivocally refused. After the principals to these contracts failed to reach a mutually satisfactory termination agreement, Harvester nonetheless began negotiating a sublease with 1601 which it designated as an “Operators Agreement.” Aware of its potential liability in this connection, Harvester incorporated a hold harmless and indemnification clause in it running from 1601 to them. Within approximately one month of the beginning of the parking lot operation, Irvine of Illinois Central learned of the lease. His next contact with Harvester expressed a need to further negotiate the problem between them; Harvester responded immediately that there was no problem and stated “ * * * we will just continue with the leases * * * and will continue to pay the rentals due per the terms of the leases.” Illinois Central said nothing more for 15 months and accepted the rental payments tendered.

Counsel for the lessor suggests the failure to act further is explained by the fact that it had more important things to do. Illinois Central’s real estate division, based in Chicago, has a large staff of legal and lay employees whose duties consist of supervising the ownership of the railroad’s immovable property holdings. The lessor’s planned or inadvertent silence with respect to the operation of the parking lot for 15 months from the time of Harvester’s declared intent to honor the lease and continue the rentals constitutes an implied assent to the terms of the November 1975 letter.

C.C. art. 1811 provides, inter alia, consent to a proposal may be manifested by silence or by other inaction. C.C. art. 1817 further provides:

“Silence and inaction are also, under some circumstances, the means of showing an assent that creates an obligation; if, after the termination of a lease, the lessee continue in possession, and the lessor be inactive and silent, a complete mutual obligation for continuing the lease, is created by the act of occupancy of the tenant on the one side, and the inaction and silence of the lessor on the other.”

In Moore v. Bannister, 269 So.2d 291 (La.App. 4th Cir. 1972), a sublease to which the lessor never agreed either verbally or in writing was nonetheless upheld as valid when the lessor waited nine months after it became aware of the occupancy of the sub-lessee to protest. The court reasoned:

“The requirement of approval by the lessor in writing contained in the lease is certainly a provision for the benefit of the lessor, and if he chooses to waive it by verbal consent or by his actions, we know of no reason why he could not do so. In previous similar cases we have held that a prohibition against the tenant subleasing unless the lessor yield his consent in writing, is clearly a stipulation in the interest of the lessor alone, and of course he may waive it whenever he pleases to do so; and since there is no law which requires such waiver to be in writing, it follows that the waiver may be oral and need not even be expressed. Moreira v. Heckman, 3 Peltier’s Orleans Appeals # 7842 (La.App.Orls., 1920); Dominique v. Connell, 4 Peltier’s Orleans Appeals # 8051 (La.App.Orls., 1920).
“It appears to us, as it did to the trial judge, that the actions of the plaintiffs in this case were such as to lead us to conclude that the plaintiffs had waived the requirements of approval in writing.” 269 So.2d at 293.

See also Blanchard v. Shrimp Boats of Louisiana, Inc., 305 So.2d 748 (La.App. 4th Cir. 1974). We are aware both Moore and Blanchard are distinguishable in that the lessor never refused to consent to a proposed sublease before the sublease was contracted. However, this distinction does not change the applicability of the principles enunciated to the ease before us.

Had Illinois Central acted to eject Harvester or taken some further action within a reasonable period after receipt of the November 1975 letter to express disapproval, the silent assent could not be implied from the inaction of the lessor. However when it continued to accept rental payments for 26 months after one of its chief executives saw the sublessee in operation, this in itself is sufficient to constitute a waiver of its lease rights quod sublease as well as assent to the terms specified by Harvester in November. See Major v. Hall, 251 So.2d 444 (La.App. 1st Cir. 1971).

For the reasons assigned the judgment appealed from is reversed and plaintiff’s rule for possession is hereby dismissed at its cost.

REVERSED AND RENDERED.

REDMANN, J., concurs with written reasons.

SCHOTT, J., dissents with written reasons.

BOUTALL, J., dissents for reasons assigned by SCHOTT, J.

REDMANN, Judge,

concurring.

First, because the lessor no longer has railroad trackage adjacent to the leased land, the lessor can no longer claim that the stipulation that the property be used for “storage space” and for motor truck sales and service and warehouse was for the lessor railroad’s benefit. (Previously, the railroad may have derived added benefit from shipping the motor trucks and parts and other goods to be stored or warehoused.) Accordingly, the railroad should not be heard to complain that the property is being used in violation of the lease. If automobile parking is not “storage” or “warehousing”, the railroad no longer has any proprietary concern in insisting on more traditional storage or warehousing.

Second, the lessor has no right to refuse arbitrarily to consent to a sublease. See Gamble v. New Orleans Housing Mart, Inc., La.App. 4 Cir. 1963, 154 So.2d 625.

Accordingly, on neither ground should the lessor be allowed to terminate the lease.

SCHOTT, Judge,

dissenting.

I do not subscribe to the theory that Illinois Central’s conduct constituted an implied acceptance of the sublease under the circumstances of this case. To me it is significant that Harvester requested consent to enter into the sublease and this consent was specifically refused. Whereupon Harvester went into the sublease agreement knowing full well that there was some risk, because in the sublease agreement between Harvester and 1601 Poydras Corporation these parties recognized that there might be an attempt on the part of Illinois Central to eject Harvester from the premises and they made provisions for this contingency. From January until September, 1975, these parties were in touch with each other, attempting to make an amicable settlement of this problem. Considering the size of these companies and the fact that this problem was relatively unimportant to both companies, I do not attach a great deal of significance to the fact that so much time went by before Illinois Central decided to take action. That there were changes in its corporate management with new people coming in adequately explains why it did not act with normal diligence.

In my opinion, C.C. Arts. 1811 and 1817 are not controlling in this situation because Illinois Central was not silent after Harvester attempted to sublet the premises. It specifically refused consent, and then engaged Harvester to negotiate to bring about a settlement.

Likewise, Moore v. Bannister is not controlling. That case ultimately turned on the wording of the lease which prevented the lessor from unreasonably withholding his consent. There is no such language in the lease between these parties. Perhaps more important is the fact that there were no equitable considerations in Harvester’s favor as there were in favor of the tenant in the Moore case. There, the tenant had spent in excess of $1200 renovating and redecorating the premises and had made some other improvements with respect to wiring. When the landlord, fully aware that these improvements were going to be and were being made, stood by and took no action until after all the improvements were made there was a strong case of equitable estoppel running against him. In the present case, Harvester simply turned over the property to 1601, both fully realizing that they had no permission from Illinois Central and 1601 operated the parking facility without changing the premises one whit. There is no evidence of any expenditures incurred by Harvester or 1601 except perhaps the cost of signs on the lot.

Other considerations lead me to dissent. These are both giant corporations, as pointed out in the majority opinion, and Harvester was at no disadvantage whatsoever. Its real estate manager testified that he was handling more than 1,000 leases for Harvester around the country. Both of these parties entered into these leases in 1960 and 1961 with the commitment that they would be stuck there until 1986 unless, in Harvester’s case, it was willing to remove its building in exchange for an early termination. In the face of these contractual provisions, Harvester decided for its own reasons, probably because it was convenient or economically desirable, to move from this location. Yet it was unwilling to face up to the obligations which went along with cancellation of the lease. The value to Harvester of the building was approximately $70,000 which was the amount it was willing to risk in making its move without Illinois Central’s consent and in the face of a probable lawsuit, which it might eventually lose.

Prom the standpoint of Illinois Central they were surely unhappy with this lease because of the great appreciation in the value of the property. They were anxious to terminate this lease and sell or lease it on more profitable terms. In this case, they had an advantage in the lease in that Harvester had agreed not to sublet without permission. I see no equitable reason whatsoever to penalize the railroad and reward Harvester by letting Harvester disregard the plain terms of the lease which was voluntarily entered into by it and which was the law between the parties. I would affirm the judgment of the trial court.

BOUTALL, J., dissents for the reasons assigned by SCHOTT, J.

      . Lease # 15730 was extended to November 30, 1986. Parenthetically we note the extension includes “ * * * the right of the Lessor or Lessee to terminate the lease at any time upon giving one year’s notice to the Lessee or Lessor * *

      . Expert realtor Omer Kubel assigned this value.


author: FORET, Judge. CULPEPPER, Judge,

text:
    Elsie W. POE, Gayle Wallace and Lanell Jones, Plaintiffs-Appellees, v. STATE FARM GENERAL INSURANCE CO., Defendant-Appellant.
    No. 6520.
    Court of Appeal of Louisiana, Third Circuit.
    June 23, 1978.

      Gist, Methvin & Trimble, DeWitt T. Methvin, Jr., Alexandria, for defendant-appellant.
    Gravel, Roy & Burnes, Chris J. Roy, Alexandria, for plaintiff-appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   FORET, Judge.

This suit was instituted by the widow and two major daughters of Claude E. Poe, seeking damages for his wrongful death. The defendant is State Farm General Insurance Company, the homeowner liability insurer of Herbert J. Wallace, whose mobile home slipped off its concrete block supports and crushed Mr. Poe. The Ninth Judicial District Court rendered judgment for the plaintiffs to the limits of the insurance policy as stipulated by the parties. The judgment of the trial court was based upon Louisiana Civil Code Article 2317 as interpreted in Loescher v. Parr, 324 So.2d 441 (La.1975). The defendant perfected this suspensive appeal from that judgment.

At the time of the accident, the decedent was assisting his son-in-law, the insured, in jacking up the mobile home in an effort to level the home. The two men were operating jacks from beneath the home. The insured had gone to check the effect of the adjustment on the level of the home when the trailer slipped at one end and killed the decedent.

The appellant first claims the trial court manifestly erred in applying the strict liability of Louisiana Civil Code Article 2317 as interpreted in Loescher v. Parr, supra. We do not reach this issue, however, because we feel the case may be decided on the basis of general negligence under Louisiana Civil Code Article 2315.

The first element in our analysis is whether the conduct complained of bears a causal connection to the accident. The conduct in question in the instant case is the insured’s failure to discover improper blocking of the mobile home and to either correct the condition or warn others. The record sufficiently reflects that had the mobile home been properly blocked and supported, the accident would not have occurred. Thus, the evidence indicates that the failure to discover and correct or warn of the improper blocking was the substantial factor in the accident. Implicit in the trial court’s holding was the finding of a causal relationship. We see no manifest error in this finding.

The next point of our analysis is a determination of whether a duty was owed by the insured homeowner to protect against the risks involved in the instant case. Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406 (La.1976). A review of the record leads us to the conclusion that the insured homeowner owed the decedent a duty to discover any unreasonably dangerous conditions in the foundation, and to either correct the condition or warn him of its existence. Shelton, supra; Vidrine v. Missouri Farm Ass'n, 339 So.2d 877 (La.App. 3 Cir. 1976), writ refused.

Our courts have never given a precise definition of what constitutes an unreasonably dangerous condition (perhaps none can be given). A brief review of the jurisprudence, however, makes the standard more lucid. In Greene v. Catalytic, Inc., 341 So.2d 1172 (La.App. 1 Cir. 1976), writ refused, the court held that there was no unreasonable danger created by a completely visible air hose on a workshop floor. In Vidrine, supra, we held that the use of boards upon the ground as a temporary walk was not unreasonably dangerous. The Court, in Loescher, supra, although interpreting La. Civil Code Article 2317, held that an internally rotten tree presented an unreasonable danger. The danger was not observable because the tree had a normal-appearance. Shelton, supra, upon which we based our opinion in Vidrine, involved a condition caused by the residue of a paint remover which was upon the ground. The Court held it created only a reasonable danger, inasmuch as the substance should have been observed by the victim. Clearly, the degree to which the danger may be observed by a potential victim, and thus provide self-protection, is one factor in the determination of whether the condition created an unreasonable danger.

Additionally, we believe that the magnitude of the risk of danger created by the condition is to be considered in determining whether the danger is unreasonable.

We conclude the danger presented by the condition in the instant case was unreasonable. The evidence is sufficient to conclude that the danger was not so apparent to the average person to enable him to protect himself. Furthermore, the magnitude of the risk clearly was unreasonable. Proper construction of the foundation would, it seems, be no more expensive or difficult than the method used in the instant case. The condition existed under a. home in which several persons lived. Under the home several items were stored and children wandered. The mobile home required occasional leveling adjustments because of the contour of the land. Clearly the magnitude of the risk presented by the dangerous condition was unreasonable. We hold that the insured breached his duty to discover the unreasonably dangerous condition in the foundation and to either correct or warn the decedent of its existence.

Having concluded that the insured breached his duty, we now consider whether the insurer has an affirmative defense based upon the fault of the decedent. The determination of whether a plaintiff has assumed a risk is made by a subjective inquiry, whereas contributory negligence is determined objectively under the reasonable man standard. Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971).

The plaintiff’s expert testified that when a trailer is properly blocked, it is not unusual to adjust a mobile home while beneath it. The insured’s family had lived there for about 18 months. Furthermore, the insured had conducted the same maneuver before, without incident. Under the circumstances, we conclude that a reasonable person would not have observed or appreciated the dangerous condition of the foundation. McInnis v. Fireman’s Fund Insurance Co., 322 So.2d 155 (La.1975).

Assumption of the risk, under a subjective test, involves the victim’s actual ap-predation or knowledge of the risks inherent in the act or situation which leads to injury and the voluntary subjection of oneself to the risk. A person who places himself in the position of the decedent beneath a mobile home assumes only such risks as are ordinarily incidental thereto. He does not assume the risk of negligence on the part of the homeowner. We note the analogy of the instant situation to that presented in Brantley v. Brown, 277 So.2d 141 (La.1973). There is no evidence to indicate that the decedent embraced a known danger with that consent required by law to bar the recovery of the plaintiffs.

Accordingly, we hold that the results reached by the trial court are correct. We base our decision, however, on the application of La.C.C. Article 2315 rather than Article 2317 as interpreted by Loescher.

Costs of this appeal are assessed against the defendant-appellant.

AFFIRMED.

CULPEPPER, J., dissents and assigns written reasons.

CULPEPPER, Judge,

dissenting.

I cannot reconcile the holdings by the majority that the insured was negligent in not knowing the dangerous condition, but the decedent was not. Both were thoroughly familiar with the manner in which the sixteen piers of concrete blocks supported the mobile home. As the majority states in its opinion, the insured and the decedent were working together in jacking up the home at the time of the accident. If the danger was apparent to the insured, it was equally apparent to the decedent. Thus, the decedent was contributorily negligent.

The majority has chosen not to base its decision, as did the district judge, on LSA-C.C. Article 2317 and Loescher v. Parr, 324 So.2d 441 (La.1975). In my view, the Loescher case, in which our Supreme Court, by a three to three decision, with an assigned justice concurring, sets forth a version of a strict liability rule, is distinguished from the present matter on the facts. In Loescher, the defendant’s magnolia tree, which was rotten on the inside but outwardly appeared to be without defect, fell on the plaintiff’s automobile. Nothing was being done by either the defendant or the plaintiff to cause the tree to fall. In the present case, even assuming that there was a defect in the manner in which these concrete block piers were laid, the immediate cause of the mobile home falling was the action by the insured and the decedent in jacking it up to level it. The mobile home had been safely resting on these piers for about 18 months. It would not have fallen on this occasion, had it not been for the actions of the two men.

For the reasons assigned, I respectfully dissent. Plaintiffs’ suit should be dismissed.


author: FORET, Judge.

text:
    John Edward BILLEDEAUX, Plaintiff-Appellant, v. O. J. ADAMS et al., Defendant-Appellees. TRAVELERS INSURANCE COMPANY, Intervenor-Appellant, v. O. J. ADAMS et al., Defendants-Appellees.
    No. 6288.
    Court of Appeal of Louisiana, Third Circuit.
    June 28, 1978.

      Baggett, McCall, Singleton & Ranier, by Homer C. Singleton, Jr., Lake Charles, for plaintiff-appellant.
    Don L. Broussard, Lafayette, for interve-nor-appellant.
    Woodley & Fenet, Robert W. Fenet, Lake Charles, for defendant-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   FORET, Judge.

When this executive officer suit was initially before us on appeal we reversed the trial court judgment and rendered judgment in favor of plaintiff, John Edward Billedeaux and against O. J. Adams, and his insurer, Charter Oaks Fire Insurance Company, in solido, in the amount of Seven Thousand Five Hundred and no/100 ($7500.00) Dollars. Although, it was stipulated at trial below that the insurer of plaintiff’s employer, Travelers Insurance Company, had paid medical expenses on behalf of plaintiff in the sum of $3471.52, we declined to award plaintiff judgment for these medical expenses because Travelers had intervened seeking reimbursement for compensation benefits and medical expenses paid, and the trial court judgment failed to dispose of Travelers’ intervention. Under the recited circumstances we considered that Travelers’ intervention was still viable and precluded any award to plaintiff for the stipulated medical expenses. From our aforesaid judgment plaintiff, John Edward Billedeaux, made application for certiorari or writ of review to the Louisiana Supreme Court, 358 So.2d 640, (Supreme Court Docket No. 62136), which writ was granted and the following order entered:

“Granted. Case remanded to Court of Appeal to consider award of special damages to plaintiff, in view of the fact that the intervention was not before the Court of Appeal; without prejudice to any right of the intervention’s claim to be recognized.”

In the interim between rendition of our aforesaid judgment and the granting of the aforesaid writ, the trial court on March 9, 1978, rendered judgment dismissing the intervention of Travelers Insurance Company, from which latter judgment Travelers appealed. This appeal was assigned the same docket number, i. e., 6288, and was consolidated for hearing with this matter on remand.

Plaintiff argues that he is entitled on remand to an award for lost wages as well as an award for the total amount of medical expenses stipulated to have been paid by Travelers on his behalf. Intervenor-appel-lant seeks reversal of the trial court judgment which dismissed its intervention urging that under LSA-R.S. 23:1103 and 23:1162 it is entitled to judgment reimbursing it for all benefits, including medical expenses, paid to or on behalf of plaintiff, including those paid subsequent to judgment.

With regard to plaintiff’s claim for lost wages, suffice it to say that we gave due consideration to this claim when this matter was initially before us. Proof in the record reflects that plaintiff was discharged by his doctors as able to return to work some twelve weeks post accident. During this period plaintiff did lose wages amounting to approximately $1500.00, however, this sum was included in the total award made by us in the amount of $7500.00. The record in our opinion does not support an award for future lost wages.

With regard to the medical expenses actually incurred by plaintiff, we conclude that plaintiff is entitled to judgment for the stipulated amount paid, subject however to intervenor’s right to reimbursement. Finally, intervenor is clearly entitled to a reversal of the trial court judgment which ordered dismissal of its intervention. LSA-R.S. 23:1103 and 1162; Billeaud v. United States Fidelity and Guar. Co., 349 So.2d 1379 (La.App. 3rd Cir. 1977).

In view of the foregoing we recast the judgment initially rendered by us in the captioned matter as follows:

In accordance with the above, the judgment of the trial court is hereby reversed, and judgment is rendered in favor of the plaintiff, John Edward Billedeaux and against defendants, O. J. Adams and Charter Oaks Fire Insurance Company, jointly, severally, and in solido, in the amount of TEN THOUSAND NINE HUNDRED SEVENTY-ONE AND 52/100 ($10,971.52) DOLLARS, with legal interest thereon from date of judicial demand, and for all costs of these proceedings in both the trial court and this Court, less the amount awarded hereinafter to intervenor, Travelers Insurance Company.

IT IS FURTHER ORDERED, Adjudged and decreed, that there be judgment in favor of Travelers Insurance Company, in-tervenor herein, and against O. J. Adams and Charter Oaks Fire Insurance Company, in solido, in the full sum of the amount Travelers Insurance Company has actually paid, or will actually pay prior to the date of the satisfaction of this judgment, to or on behalf of John Edward Billedeaux as weekly workmen’s compensation benefits and medical expenses, plus interest at the rate of 7% per annum on the amount of each payment of benefit which was or will be made by defendants from the date of each payment until payment of the amounts awarded in this judgment, the sum to be paid to Travelers Insurance Company to be paid by preference and priority out of the award made herein to plaintiff, John Edward Billedeaux.

It is finally ordered, adjudged and decreed that such portion of the amount of the judgment herein in favor of John Edward Billedeaux which exceeds the amount which Travelers Insurance Company is entitled to be paid shall be credited against any obligation which Travelers Insurance Company may owe to John Edward Billedeaux for future workmen’s compensation benefits, medical expenses, or otherwise, accruing after the date of the satisfaction of this judgment.

REVERSED AND RENDERED.


author: CULPEPPER, Judge.

text:
    Curt E. BOWERS, Plaintiff and Appellee, v. D. C. GREENE and Greene’s Marine Products, Inc., Defendant and Appellant.
    No. 6523.
    Court of Appeal of Louisiana, Third Circuit.
    June 28, 1978.

      Charles L. Bull, Jr., Welsh, for defendant-appellant.
    Marcantel & Cassidy by Bernard N. Mar-cantel, Jennings, for plaintiff-appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   CULPEPPER, Judge.

The plaintiff, Curt E. Bowers, filed this suit for $1,800 representing two months past due rent on a building leased to defendants for use as a boat manufacturing plant. Plaintiff obtained a writ of sequestration of movable property in the building on the basis of his lessor’s privilege and an allegation that defendants would dispose of the equipment during the pendency of the suit. Plaintiff also obtained a writ of attachment on the basis that defendants are nonresidents and that rent totaling $107,100 will become due under the terms of the 10-year lease.' Although defendants are nonresidents, they were personally served through service on D. C. Greene in Louisiana. Defendants filed a motion to dissolve the writs of attachment and sequestration. The district judge dissolved the writ of sequestration on the ground that by the time of the hearing the past due rent in the sum of $1,800 had been paid. However, he maintained the writ of attachment on the grounds that defendants are nonresidents and that they are obligated to pay the rent which is not yet due under the lease. Defendants appealed.

Defendants first contend the attachment is invalid because plaintiff did not follow the procedure set out in LSA-C.C.P. Article 3502 as follows:

“A writ of attachment or of sequestration may issue before the petition is filed, if the plaintiff obtains leave of court and furnishes the affidavit and security provided in Article 3501. In such a case the petition shall be filed on the first judicial day after the issuance of the writ of attachment or of sequestration, unless for good cause shown the court grants a longer delay.”

The evidence shows that on Saturday, September 17, 1977, Mr. Greene learned that defendants had moved certain equipment from another building in the area, so plaintiff consulted his attorney as to protective measures, as a result of which, plaintiff parked a large tractor in front of the door to the leased building and employed a guard to watch the building, for the apparent purpose of preventing defendant from removing the contents. On Monday, September 19, 1977, plaintiff filed the instant suit and obtained the writs of attachment and sequestration, which were duly served by the sheriff of Jefferson Davis Parish.

Defendants contend that plaintiffs actions on Saturday constituted an unlawful seizure without a court order, that plaintiff did not follow the procedure set forth in LSA-C.C.P. Article 3502, and, therefore, the attachment and sequestration issued on Monday is also illegal. We find no merit in this argument. Even assuming for the sake of argument that there was an unlawful seizure on Saturday, this would not cause the seizure on Monday to also be unlawful. If the seizure on Saturday was unlawful, plaintiff could seek any damages resulting therefrom. He has not prayed for such damages in these proceedings, and that issue is not before us.

Defendants next argue that the nonresident attachment is unlawful because plaintiff did not secure the appointment of an attorney at law on whom service could be made in compliance with the procedures set forth in LSA-C.C.P. Articles 9 and 5091. As stated above, defendants were personally served by service on D. C. Greene in Louisiana.

In Roper v. Brooks, 201 La. 135, 9 So.2d 485 (1942) and Poulan v. Gallagher, 147 So. 723 (2d Cir. 1933) the courts held that personal service on the nonresident in Louisiana does not defeat a nonresident attachment. The rationale stated is that if the rule were otherwise, an absentee could always obtain dissolution of the attachment by making a personal appearance. Although these cases were decided under Article 240 of the Code of Practice, no change was made in this regard under the new Code of Civil Procedure. See Johnson, Attachment And Sequestration: Provisional Remedies Under The Louisiana Code Of Civil Procedure, 38 Tulane Law Review 1, at pages 3 and 5, where the Poulan and Roper cases are cited, without any indication that the rule established in these cases was changed.

Defendants’ next argument is that a bond for only $250 was posted at the time plaintiff filed this suit and obtained the writs of attachment and sequestration. Defendants contend that although the bond may have been sufficient for the nonresident attachment, a bond of at least $1,800 should have been posted for the sequestration.

The answer to this argument is that at the hearing on the motion to dissolve the writs of attachment and sequestration, the trial judge raised the bond to $50,000, which plaintiff has posted. Therefore, this issue is now moot.

Defendants’ final argument is that plaintiff’s petition for writs of sequestration and attachment does not allege any specific acts by defendants justifying a belief by plaintiff that defendants would conceal or dispose of the movables in the building, pending the litigation of this suit. It may be that plaintiff’s allegations were not sufficient for the issuance of the writ of sequestration. See Wright v. Hughes, 254 So.2d 293 (4th Cir. 1971). However, the writ of sequestration in the present case has been dissolved and the question of its validity is not at issue on this appeal.

As to the attachment, it was originally issued and, after hearing, was maintained on the grounds that defendants are nonresidents and that future rents of $900 per month will become due under the lease. LSA-C.C.P. Article 3543 expressly provides that “A writ of attachment may be obtained before the debt sued upon is due. If the debt is paid when it becomes due, the costs of the seizure shall be paid by the plaintiff.” See the discussion in 38 Tulane Law Review 1, at page 11. We find the attachment is valid.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendants-appellants.

AFFIRMED.


author: GUIDRY, Judge.

text:
    PAR-CO DRILLING, INC., Plaintiff-Appellee, v. FRANKS PETROLEUM INC., et al., Defendants-Appellants.
    No. 6530.
    Court of Appeal of Louisiana, Third Circuit.
    June 28, 1978.
    Hargrove, Guyton, Ramey & Barlow, Thomas J. Wyatt and Ray A. Barlow, Shreveport, for defendants-appellants.
    Brouillette & Kelly, Michael F. Kelly, Marksville, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

In this suit plaintiff, hereafter Par-Co, seeks a money judgment against defendant, Franks Petroleum Inc., hereafter Franks, in the principal sum of $61,901.00 and recognition of a lien and privilege (LSA-R.S. 9:4862), on all oil or gas produced and accruing to the working interest in a certain well designated as the “Franks Petroleum, Inc. — Southwestern Improvements No. 1 Well in Section 7, T. 2 N., R. 7 E., Avoyelles Parish, Louisiana”. The sum sued for, plus ten percent attorney’s fees, is the balance allegedly due plaintiff under a certain drilling contract dated August 4, 1976 entered into between Par-Co, as contractor, and Franks, as operator. Franks resists payment of the amount claimed urging that plaintiff is not entitled to be paid such sum under the terms of the contract and in the alternative that the sum claimed represents expenses incurred as a result of plaintiff’s negligence in the drilling of the aforesaid well for which plaintiff cannot claim reimbursement. The trial court rendered judgment in favor of plaintiff and defendants have suspensively appealed. On appeal defendants assert error in the trial court’s construction of the contract and in the alternative urge that the trial court erred in not finding plaintiff’s performance under the contract unworkmanlike.

We have carefully reviewed the record and conclude that the able trial judge, in his written reasons, accurately set forth the facts of this case and correctly disposes of all of the issues presented. Accordingly, we take the liberty of adopting as our opinion the excellent reasons of the trial court:

“The Plaintiff filed this suit to enforce a privilege on certain properties in Avo-yelles Parish, arising out of its drilling an oil and ga§ well on the property of Defendants. The Plaintiff claims the sum of SIXTY-ONE THOUSAND, NINE HUNDRED ONE and 00/00 ($61,901.00) DOLLARS as a balance due. The work and labors of Plaintiff were performed under a written contract signed by the original owner of the property who subsequently assigned its rights to other owners. All are joined as Defendants.
The court finds from the agreement, that Plaintiff was to drill to a certain depth, 7900 feet, at which time the well was to be logged and side-wall cores made. After this, the Defendant owners would have twenty-four hours to decide whether to set pipe in the hole for production, or to plug and abandon the hole. There seems to be no argument between the parties, that up to this decision point, the hole was at the risk and expense of Plaintiff. The argument here, arises in what took place after Defendants made the election to set pipe or production casing in the hole, and so notified Plaintiff.
In this case, as Plaintiff proceeded to go back into the hole, which had been drilled to 7916 feet, in order to condition it to set production casing, the drill pipe got stuck; the amount of money herein claimed by Plaintiff, is the total of the additional expenses, incurred in getting the drill pipe ‘unstuck’ and other expenses leading to the making of a producing oil well.
The Plaintiff contends that after the defendants made the decision to set pipe for production, the day rate specified in the contract applied, and all expenses thereafter were to be paid by Defendants. On the other hand, Defendants contend, that under the contract, this well was to be a so-called “turn key” job, and all expenses were to be paid by Plaintiff, excepting the costs of the production casing.
The written contract used is apparently standard in the industry for this area. The testimony supports this view. The great preponderance of the evidence is to the effect that the risk of the hole shifts to the operator-owner once the last core provided for by the contract is furnished. At that point, in time the only other service to be provided is daywork — rental of rig and equipment. The operator-owner may take 100 sidewall cores if he wants. He may want to drill deeper, or, he may decide to abandon the hole, in which case, the contractor-driller is to plug and abandon. But, if it takes the operator-owner three days to decide, he gets the first 24 hours of rig time ‘free’. If it takes three days or 30 days to run production casing, the first day only is ‘free’.
The control of the hole shifts as well. Prior to reaching contract depth the contractor-driller ‘controls’ the hole, and the risks to be taken. Once the last core is furnished, the operator-owner makes all decisions. As Mr. Whitehead so convincingly testified, the contractors absolutely will not place the drill pipe back in the hole unless directed to do so by the operator-owners.
The risks encountered once the drill string is placed back in the hole are enormous. The purpose of doing so is to ‘condition’ the hole. The logging tool and the sidewall cores scar and break the mud cake which supports the hole. At this time it may be 12-16 hours since the hole has been circulated with mud.
Nowhere does the contract state that the drilling contractor turnkeys a hole conditioned to accept production casing. Clearly the custom of the industry is that such-a risk is the operator’s unless the drilling contractor expressly assumes the risk. The contractor has the duty to condition the hole if instructed to do so by the operator but only on a daywork basis with all risk of the operation to be borne by the operator.
There is an additional defense made here, and that is that the contractor-driller was negligent in conditioning the hole for the production casing. Therefore, under the contract the additional expenses claimed by Plaintiff are to be its loss. This is not supported by the evidence and the court finds no negligence here.
The various items claimed by Plaintiff are supported by cancelled checks which it paid. Defendant agrees (sic) in brief, that Plaintiff’s paying these, without first submitting same to the defendant operator-owners, show that Plaintiff considered this as its obligations under the contract. The Court cannot accept this view. Plaintiff is in the business of drilling for oil. It contacted other specialists to get the drill pipe free. Its credit and reputation must be maintained. To make these subs wait for their money would be grossly unfair to them. They had a right to look for payment from the one who contacted and employed them. To conclude that these prompt payments by the contractor-driller, of the people whom he contacted for work, is an indication that it considered this its obligation under the contract with Defendants, is not a fair or legal conclusion.
The court believes and holds that Plaintiff has made due proof of its demands and is entitled to judgment as prayed for by it.”

We consider it necessary to amplify the trial court’s excellent reasons in order to dispose of certain arguments made by able counsel for appellants on appeal.

Appellants argue that since the drill pipe became stuck during the 24 hour period for which Par-Co was to furnish “free rig time to run casing or to P & A” under the contract, that the sum sued for is an expense incurred while the risk of the hole was Par-Co’s. We discern no merit in this contention. There is no relationship between the provision allowing 24 hours free rig time and “risk of the hole”. The 24 hours free rig time is simply a credit which is allowed under the contract to the Operator on any subsequent daywork charges incurred while the Operator is making a decision to run production casing or plug and abandon the well and/or while either of the latter tasks are in progress. The contract in question is not specific as to precisely when the “risk of the hole” shifts from the Contractor to the Operator. To that extent the contract is ambiguous. The trial court concluded, on the basis of clear, convincing and uncontradicted evidence, that according to custom in the industry, the risk of the hole shifts from the contractor to the operator once the last core provided for by the contract is furnished unless the contract specifically provides otherwise. Accordingly, he determined that the additional expenses were incurred at a time when the risk of the hole was the Operator’s. We discern no error in this conclusion. It is well settled that custom of the place and the usual and customary manner of fulfilling like contracts is persuasive in determining the intention of the parties under a contract not specific in its wording. Terrell v. Alexandria Auto Co., 12 La.App. 625, 125 So. 757 (La.App.2nd Cir. 1930); Fontenot’s Rice Drier, Inc. v. Farmers R. Mill Co., Inc., 329 So.2d 494 (La.App.3rd Cir. 1976); R.C.C. Article 1964. Additionally, in this connection we observe that, according to the evidence, the phrases in the contract giving rise to this ambiguity were authored by Frank’s or its representative and accordingly, any doubt arising therefrom for want of necessary explanation must be resolved in favor of Par-Co. R.C.C. Article 1958.

In the alternative appellants argue that the “risk of the hole” was impliedly on Par-Co until such time as the hole is conditioned to receive production casing. In support of this contention appellants cite the case of J. C. Trahan Drilling Contractor, Inc. v. Cockrell, 225 So.2d 599 (La.App. 1st Cir. 1969), writ refused 228 So.2d 482, 254 La. 922. The cited case is not authority for the contention espoused. In Trahan, unlike the instant case, the contract specifically imposed upon the contractor the obligation to produce a well bore capable of accepting casing.

Finally, with regard to appellants contention that plaintiff performed in an unwork-manlike manner, suffice it to say that we discern no error in the trial court’s conclusion on this purely factual issue.

For the above and foregoing reasons the judgment appealed from is affirmed at appellants costs.

AFFIRMED.


author: CUTRER, Judge.

text:
    Linda BRODAY, Plaintiff-Appellant, v. William S. BRODAY, Defendant-Appellee.
    No. 6533.
    Court of Appeal of Louisiana, Third Circuit.
    June 28, 1978.

      Watson, Murchison, Crews & Arthur, R. Raymond Arthur, Natchitoches, for plaintiff-appellant.
    John S. Stephens, Coushatta, for defendant-appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   CUTRER, Judge.

This action involves a suit by plaintiff to have a California judgment for arrearages of maintenance and support recognized and made enforceable in this state. Defendant filed exceptions of no right of action and prescription. The trial court overruled the no right exception but rendered a judgment sustaining defendant’s plea of 3-year prescription. From a refusal of a new trial application, plaintiff appeals.

The evidence reveals that divorce proceedings were instituted between the parties in the Superior Court of the State of California for the County of San Diego in the matter entitled “In re the marriage of Linda Broday and William S. Broday, Docket No. 257,003”. The California court ordered that, beginning in August, 1962, the defendant was to pay to plaintiff the sum of $1,000 per month for maintenance and support plus attorney’s fees and costs. Upon defendant’s failure to pay these amounts, plaintiff, in 1976, sought a judgment in the same California court to fix arrearages. In a judgment dated December 6, 1976, the California court, after finding personal service on the defendant, affixed arrearages in the amount of $245,813.32. In April, 1977, plaintiff filed suit in Louisiana seeking to have this California judgment recognized and enforceable as a Louisiana judgment.

The plaintiff argues in this appeal that the trial court erred by sustaining defendant’s exception of prescription based on the three-year prescriptive period for alimony arrearages under LSA-C.C. Article 3538. Plaintiff contends that the 1976 California judgment fixing arrearages for maintenance and support payments is entitled to full faith and credit in this state. The defendant, on the other hand, contends that prescription is a remedial action governed by the law of this state, and that Louisiana’s application of its three-year prescriptive period on actions for alimony arrearag-es does not violate the Full Faith and Credit Clause of the U. S. Constitution.

The trial judge sustained defendant’s exception of prescription, based on LSA-C.C. Article 3538, saying that he accepted the testimony of defendant that he had never paid any of the alimony ordered by the California court on August 8, 1962. In denying plaintiff’s motion for a new trial, the trial court relied on the case of Lawyers Title Services, Inc. v. Boyle, 308 So.2d 479 (La.App. 4th Cir. 1975).

LSA-C.C. Article 3538 provides that actions for arrearages of alimony prescribe in three years. The term “arrearages of alimony”, as used in the above article, refers to the amount becoming due after alimony payments have been fixed by the court. Miller v. Miller, 207 La. 43, 20 So.2d 419 (La.1944).

U.S.Const. art. IV, § 1 requires the states to give full faith and credit to final judgments of their sister states. Although we find no Louisiana cases nor has counsel cited any Louisiana cases wherein the cause of action sued upon was barred by statutes of limitation under the law of the state where the judgment was sought to be enforced, at least one U. S. Supreme Court decision has dealt with the constitutional requirements of full faith and credit in a similar situation. In Christmas v. Russell, 5 Wall. 290, 18 L.Ed. 475 (1866), the defendant who was a resident of Mississippi issued a promissory note in that state in 1840. Mississippi law provided that actions to enforce promissory notes prescribed after six years. In 1853, the defendant went to Kentucky and was sued based upon the note. Defendant was served with process, defended the suit, and judgment was rendered in Kentucky in favor of the plaintiff for the amount of the note. In 1854 the plaintiff instituted suit in Mississippi to enforce the Kentucky judgment. Defendant, among other pleas, defended on the basis that the promissory note, at the commencement of the suit in Kentucky, was barred by the Mississippi statute of limitations. Defendant further argued that a Mississippi statute provided that judgments recovered in other states against Mississippi citizens shall not be enforced in Mississippi courts if the cause of action which was the foundation of the judgment would have been barred in Mississippi by her statute of limitations. The U. S. Supreme Court found that the Mississippi statute could not affect the right of the plaintiff to enforce a valid Kentucky judgment. The Supreme Court held that it was not competent for any other state to authorize its courts to open the merits and review the cause of action or to enact a provision that such judgment shall not receive the same full faith and credit that by law it had in the state court from which it came.

Other U. S. Supreme Court decisions have required states to give full faith and credit to judgments of sister states even though the cause of action upon which the judgment was based was not recognized or was against public policy in the foreign state. See Kenney v. Supreme Lodge of the World, Loyal Order of Moose, 252 U.S. 411, 40 S.Ct. 371, and 64 L.Ed. 638 (1920) (an Alabama judgment in a death action was enforceable in Illinois even though such an action could not have been originally brought in Illinois under its statutes), and Fauntleroy v. Lum, 210 U.S. 230, 28 S.Ct. 641, 52 L.Ed. 1039 (1908) (a Missouri judgment on a gambling contract was enforceable in Mississippi, even though Mississippi prohibited such suits in its courts).

In the area of recognition of foreign judgments concerning alimony and child support, it is the general rule that such judgments are entitled to full faith and credit as to accrued installments where these are not subject to modification at the discretion of the court under the law of the state rendering the judgment. Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905 (1910); Barber v. Barber, 323 U.S. 77, 65 S.Ct. 137, 89 L.Ed. 82 (1944); Weston v. Weston, 177 La. 305, 148 So. 241 (La.1933); Baldwin v. Baldwin, 337 So.2d 245 (La.App. 3rd Cir. 1976); Folds v. Folds, 160 So.2d 251 (La.App. 2nd Cir. 1964); and Devore v. Devore, 172 So.2d 923 (La.App. 4th Cir. 1965), writ refused 247 La. 1015, 175 So.2d 301 (1965). Defendant herein does not complain that the California judgment fixing alimony arrearages was subject to modification.

Defendant contends that the cases of Lawyers Title Services, Inc. v. Boyle, supra, and Park v. Markley, 17 So.2d 459 (La.App. 1st Cir. 1944), rehearing refused, 18 So.2d 73 (1944), are dispositive of the issue before this court. The Lawyers Title Services, Inc. ease involved a situation where plaintiff was attempting to make a 1961 Florida money judgment executory in Louisiana by filing suit here in 1974. The Florida judgment, under Florida law, was enforceable for 20 years, while under Louisiana law, such judgments were not enforceable after 10 years. The Fourth Circuit applied the 10-year Louisiana prescriptive period and dismissed plaintiff’s suit despite the Full Faith and Credit Clause of the United States Constitution. In Park, a judgment creditor brought suit in Louisiana in 1940 to have a 1923 Texas judgment recognized in Louisiana. The First Circuit, in affirming the trial court’s dismissal of the suit, applied the Louisiana 10-year prescriptive period on judgments and stated that such action did not violate the requirements of full faith and credit.

Park and Lawyers Title are readily distinguishable from the case at hand. Those cases involved judgments which were more than 10 years old and thus prescribed under the provisions of LSA-C.C. 3547. The courts in those cases were concerned with whether the judgment itself had prescribed. They were not ruling on a prescriptive period that would go to the merits of the original out-of-state suit. In the case at hand, no judgment prescriptive period is applicable as this is a 1976 California judgment sought to be enforced in Louisiana the following year.

The trial court, by applying Louisiana’s 3-year prescriptive period on actions for alimony arrearages, effectively reliti-gated the merits of the California judgment. The Full Faith and Credit Clause contained in U.S.Const. art. IV, § 1 requires, with very few exceptions, that sister states not relitigate the merits of a foreign judgment.

In the court below, defendant also contended that the California judgment was not entitled to full faith and credit as that court had no personal jurisdiction over the defendant. The issue of lack of jurisdiction of the California court was raised by an exception designated as “No Right of Action” which stated as follows:

“That petitioner has no right of action herein in that the California court rendering the judgment upon which petitioner bases this action had no jurisdiction ra-tione personae over Exceptor in that he was not a resident when suit was filed in California or when the judgment was rendered.

The issue of lack of jurisdiction of the California court raised by the exception was tried wherein testimony was presented and a copy of the California proceeding was filed. The trial judge found that the California court had jurisdiction and the exception was overruled.

The method used in presenting the issue of lack of jurisdiction raises procedural questions, but under the particular circumstances present we conclude that a resolution exists.

Defendant’s exception was improperly labeled “No Right of Action”. The exception does not urge either lack of interest or lack of capacity in the plaintiff to file this suit, and these are the only objections which should be raised in the exception of no right of action. See LSA-C.C.P. Article 927 and the Official Comments thereunder.

Lack of jurisdiction of the California court to render the judgment against the defendant is a defense to the merits of this suit filed by the plaintiff under LSA-C.C.P. Article 2541 to have the California judgment recognized and made the judgment of the Louisiana court. Such a defense should be raised by answer to plaintiff’s petition and should be tried on the merits. The record in the present case shows that after the exception of “No Right of Action” was tried the defendant did file an answer in which he reurged his defense that the California court lacked jurisdiction.

In the interest of judicial economy, we will apply the rule that the courts may treat pleadings as what they are, rather than what counsel labels them. Davis v. Southern Farm Bureau Casualty Insurance Company, 324 So.2d 468 (3rd Cir. 1975), and the cases cited therein; LSA-C.C.P. Articles 865 and 5051. In the present case, we will treat defendant’s exception of “No Right of Action” as an answer alleging the defense to the merits that the California court lacked jurisdiction. We will treat the evidence introduced at the hearing on the exception of “No Right of Action” as evidence introduced on the merits. Both parties had a full opportunity to introduce all of the evidence they desired on the issue, and it would, therefore, be repetitious and unnecessary to remand this case for another trial on the merits.

Furthermore, although the issue of the California court’s jurisdiction was not argued by defendant on appeal, we conclude that we should, in the interest of justice, consider this issue. LSA-C.C.P. Article 2164 authorizes the appellate court to render any judgment which is just, legal and proper upon the record on appeal.

The record reflects that in 1962 an interlocutory judgment of dissolution was granted by the California court. This judgment expressly reserved jurisdiction to award plaintiff alimony. In August, 1962, the California court awarded plaintiff alimony. In this latter judgment, the court found that defendant was a resident of California at the time the cause of action arose and was personally served with a copy of the pleadings. Noting that the interlocutory judgment had expressly reserved jurisdiction to award alimony, the court found that in personam jurisdiction had been obtained over the defendant. The 1976 judgment for arrearages revealed that there was personal service on the defendant.

In this case defendants presented no evidence to show what the law of California was on this issue. Therefore, we apply the well-established presumption that the applicable foreign law is the same as the law of our own state on the subject matter in question. Welch v. Jacobsmeyer, 216 La. 333, 43 So.2d 678 (La.1949); Cambre v. St. Paul Fire & Marine Insurance Company, 331 So.2d 585 (La.App. 1st Cir. 1976); writs denied, 334 So.2d 434, 435 (1976); and Johnson v. McCorvey, 344 So.2d 448 (La.App. 2nd Cir. 1977).

Louisiana courts have recognized the continuing jurisdiction concept in child support and alimony matters where an increase or modification of the award is desired against the non-resident defendant. Under this theory, the court having jurisdiction to grant such an award retains jurisdiction over the non-resident defendant to modify the award or to enter an award for arrearages. See Imperial v. Hardy, 302 So.2d 5 (La.1974); Heaton v. Garvin, 314 So.2d 363 (La.App. 3rd Cir. 1975); Anthony v. Anthony, 288 So.2d 694 (La.App. 4th Cir. 1974); Dupre v. Guillory, 216 So.2d 327 (La.App. 3rd Cir. 1968); and Webb v. Webb, 357 So.2d 1288 (La.App. 3rd Cir. 1978).

Applying the above rules of law to the facts of this case, we find that the California court had personal jurisdiction over the defendant to render the judgment herein sought to be recognized, and that the plaintiff is entitled to have the California judgment recognized and made the judgment of the Louisiana court.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment herein in favor of the plaintiff and against the defendant recognizing the hereinabove described California judgment and making that judgment the judgment of the Tenth Judicial District Court for the Parish of Natchitoches, State of Louisiana. All costs in the trial court as well as the costs of this appeal are assessed against the defendant.

REVERSED AND RENDERED.

      . Two of the most notable exceptions are where the foreign state whose judgment is sought to be enforced lacks jurisdiction and where the foreign judgment is procured through fraud.

      . The defendant also reurged this exception as a defense in his answer which was filed later.


author: WATSON, Judge.

text:
    John LANGSTON, Individually, etc. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
    No. 6539.
    Court of Appeal of Louisiana, Third Circuit.
    June 28, 1978.
    Gravel, Roy & Burnes, James J. Brady, Alexandria, for plaintiff-appellant.
    Stafford, Randow, O’Neal & Smith, Hodge O’Neal, III, Gist, Methvin & Trim-ble, DeWitt T. Methvin, Jr., Alexandria, Fusilier, Pucheu & Soileau, L. 0. Fusilier, Ville Platte, for defendant-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   WATSON, Judge.

Plaintiff, John Ray Langston, individually, and on behalf of his two minor children, Latonia Kay and John Ray, Jr., filed this suit to recover damages for the death of his wife Judith and personal injuries of the two children in an automobile accident on March 18, 1977. At the time of the accident, Judith was driving a Langston family Mercury automobile. The driver of the other vehicle involved in the accident, Alpha Manuel, was insured by defendant, State Farm Mutual Automobile Insurance Company, but was alleged to be an underinsured motorist. The trial court granted a motion for summary judgment by defendant, Toledo National Insurance Company, which insured another Langston automobile, a 1976 Ford pickup, not involved in the accident. Plaintiff Langston has appealed.

The only issue is whether there is uninsured motorist coverage under the Toledo policy.

The Toledo policy states that the designated person insured for uninsured motorist coverage is John R. Langston but also provides uninsured motorist coverage for the spouse and relatives of the named and designated insured residing in the same household. [Section C — 11(a)]. Thus, Judith Langston was covered by the terms of the policy unless otherwise excluded.

Toledo’s counsel contends that Judith Langston was excluded by C — 1(b) of the uninsured motorist section of the policy, which states:

“This insurance does not apply:
* * * * * *
“(b) to bodily injury to an insured while occupying a highway vehicle (other than an insured highway vehicle) owned by the named insured, any designated insured or any relative resident in the same household as the named or designed insured, or through being struck by such a vehicle, but this exclusion does not apply to the named insured or his relatives while occupying or if struck by a highway vehicle owned by a designated insured or his relatives;”

Since the above quoted exclusion does not apply to the relatives of the named insured, here Mrs. Langston and the two children, while occupying a vehicle owned by the designated insured, here John Langston, the policy by its terms provides uninsured motorist coverage to Judith Langston and the two minor children. Counsel for Toledo relies on Thomas v. Allstate Insurance Company, 321 So.2d 808 (La.App. 4 Cir. 1975). However, the claimant in Thomas was not a person insured under Allstate’s uninsured motorist coverage and contended that she had uninsured motorist coverage under LSA-R.S. 22:1406.D because insured under the liability provisions of the policy. Here, uninsured motorist coverage is provided by the policy rather than the statute. Since there is uninsured motorist coverage under the Toledo policy, the trial court erred in granting Toledo’s motion for summary judgment.

For the foregoing reasons, the judgment of the trial court herein is reversed and the matter is remanded for further proceedings. All costs of the motion for summary judgment and this appeal are assessed to defendant-appellee, Toledo National Insurance Company; other costs to await final disposition.

REVERSED AND REMANDED.

      . The pertinent statute in the instant case is LSA-R.S. 22:1406.D, prior to its 1977 amendment, effective September 9, 1977.