text:
    Abell ADAMS, Plaintiff-Appellee, v. TRAVELERS INSURANCE COMPANY et al., Defendants-Appellants.
    No. 13216.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.
    Rehearing Denied May 23, 1977.
    Mayer, Smith & Roberts by Caldwell Roberts, Shreveport, for defendants-appellants.
    Lewis Weinstein, Richard C. Goorley, Shreveport, for plaintiff-appellee.
    Before PRICE, HALL and JONES, JJ.
   JONES, Judge.

Plaintiff’s employer, Reed Electric Company, and its insurer, Travelers Insurance Company, appeal from a lower court judgment awarding plaintiff workmen’s compensation benefits for total and permanent disability and casting the insurer for penalties and attorneys’ fees. We affirm.

Abell Adams was employed by Reed Electric Company to do manual labor on a construction site at Louisiana Downs in Bossier City, Louisiana. On the morning of August 21, 1975, while at work, Adams experienced a painful “popping” in his back while lifting a bag of concrete weighing approximately 75 pounds. He told two co-workers, one of whom witnessed the accident, of his pain, and then reported the accident to his supervisor, Henry James. The supervisor instructed Adams to go and sit down in the cafeteria, and then went to contact James Reed, the owner of the employing company. While seated in the cafeteria, Adams talked to Reed and informed him of the injury. Although the accident happened at approximately 9:30 A.M. and Adams stayed on the job site for the remainder of the day, he did no further work. Adams never returned to work for Reed Electric Company or any other employer following his injury.

On August 25 Adams consulted a doctor at the VA Hospital in Shreveport complaining of hip and leg pains. He told the doctor the pain had commenced as he lifted a sack of concrete at work four days earlier. The VA doctor diagnosed his injury as a “possible herniated disc”. On August 26 Adams’ attorney wrote Reed Electric advising it of the injury, the surrounding circumstances, and the diagnosis of the doctor at the VA Hospital.

On September 2 Adams was examined by Dr. James L. Zum Brunnen, an orthopedist. Adams complained of hip and back pain and gave the same history of the injury he had related at the VA Hospital. Dr. Zum Brun-nen found Adams was suffering from a herniated disc, and considered him unable to resume manual labor. Dr. Zum Brunnen believed Adams’ accident, as the facts were related to him, caused the disc injury.

On September 18, 1975, Adams’ attorney mailed a letter to the claims adjuster of Travelers Insurance Company, the workmen’s compensation insurer of Reed Electric Company, inclosing an affidavit executed by Adams which recited the facts surrounding the accident. This letter indicated the affidavit was inclosed to provide the adjuster with a statement by the claimant, since the adjuster had failed to keep an earlier appointment for the purpose of obtaining such a statement. The letter reiterated that medical examinations established Adams’ compensable disability and again requested workmen’s compensation benefits be paid.

On September 24 a second letter was written to the claims adjuster. This letter indicated an additional medical examination substantiated the earlier diagnosis of disability and again demanded compensation benefits be commenced. On October 10 a third letter was written to the claims adjuster, attaching another medical report and again demanding commencement of workmen’s compensation payments.

Suit was filed on October 29, 1975, but was subsequently dismissed without prejudice when Adams failed to appear on the date of trial. This suit was initiated on May 21, 1976.

Defendants first claim Adams has not proven by a preponderance of evidence that he suffered a compensable accident while working for Reed Electric Company, urging his failure to introduce the testimony of the co-workers who were present at the time of the accident to corroborate his testimony is prejudicial to his case. They also complain Adams’ only corroborating witness is his step-grandson.

Adams testified he attempted to contact his co-workers but they could not be found. He indicated he did not know them personally and his attempts to contact them were without avail. In light of these facts, this is not a situation where available witnesses were not called, and therefore Adams’ inability to produce these co-workers does not prejudice his case. It is also significant that although defendants knew of these witnesses, they failed to produce them for the purpose of contradicting Adams’ testimony concerning the occurrence of the accident.

It is well settled that a claimant’s testimony alone can prove an on-the-job accident where there are corroborative circumstances. Delafosse v. Industrial Painters, Inc., 199 So.2d 559 (La.App., 3d Cir. 1967). Adams’ step-grandson, who was working in the cafeteria at Adams’ place of employment, testified Adams told him of his accidental injury, and that he heard Adams relate the circumstances of his injury to Reed and Henry James while in the cafeteria shortly after the accident. Reed and James admitted plaintiff told them that he was in pain and could not work, but stated Adams attributed his disability to arthritis.

The trial judge had the opportunity to hear the witnesses and evaluate their credibility. After doing so, he resolved any conflicts in Adams’ favor, finding Adams suffered a compensable accident. The trial court’s ultimate evaluation will not be disturbed on review in the absence of manifest error. Delafosse v. Industrial Painters, Inc., supra. In any event, when all this testimony is considered along with the un-controverted evidence that Adams was satisfactorily performing his job until the time of the accident and the doctor’s testimony that Adams could not have performed any manual labor after receiving a herniated disc, it is abundantly clear Adams has established the occurrence of a compensable accident by a preponderance of the evidence.

. Travelers Insurance Company also complains the lower court erroneously held it liable for penalties and attorneys’ fees. LSA-R.S. 22:658 provides that an insurer who fails to pay compensation benefits within sixty days of receipt of proof of loss, if found to be arbitrary and capricious and without probable cause in such failure, shall be liable for 12% penalties on the total amount of the past due compensation, together with reasonable attorneys’ fees. Prior to the institution of this suit Travelers had received three demand letters from Adams’ attorney, along with Adams’ affidavit setting forth the facts and circumstances surrounding his injury. Enclosed with at least one of the demand letters was a report from Dr. Zum Brunnen. The deposition of Otis Davis, which corroborated the facts in Adams’ affidavit, was also available to Travelers prior to the institution of this suit.

Travelers states it was justified in refusing to pay benefits in reliance on statements given by Reed and Henry James that Adams had told them his pain was caused by arthritis. We believe these statements corroborate Adams in that they establish his complaints of back pain and disability occurring on the job, on the date and time of his accident. Further, there is no medical evidence Adams ever suffered from arthritis. In fact, all the medical evidence negates any question that Adams’ injury was other than a herniated disc. Travelers’ complaint that the VA Hospital records show Adams suffered similar pains several weeks prior to his employment is without merit because it was made clear at trial his illness on this earlier visit was prostatitis and had no relation whatsoever to his herniated disc.

Considering the medical reports and other surrounding circumstances which corroborated Adams’ claim, and which were known by Travelers, it could not refuse to pay compensation benefits by reliance on statements made by Adams to Reed and James (if, indeed, he made such statements) without obtaining a medical opinion which would further support their claim that Adams’ injury was merely arthritis. To hold otherwise would be to require an employee to accurately diagnose his own injury when he reported it to his supervisor.

In Poindexter v. South Coast Corporation, 204 So.2d 615 (La.App., 4th Cir. 1967) the court held the insurer acted arbitrarily and capriciously, and was liable for penalties and attorneys’ fees, because it neglected or refused to inquire into the cause of plaintiff’s disability, and requested no medical examination nor took any steps to determine the cause of the disability, instead of obtaining medical advice as to the cause. Also see Barham v. Mathieu, 198 So.2d 145 (La.App., 1st Cir. 1967).

In Gauthier v. Employers National Insurance Company, 316 So.2d 769 (La.App., 1st Cir. 1975), the court stated:

“There is no absolute rule which can be stated to apply in every case as a test of ‘probable cause.’ There must be a latitude of discretion vested in the courts and especially in the trial judge in determining this fact question. In the exercise of that discretion due regard must be given to all the circumstances surrounding the claim or alleged compensable injury and the credibility of the witnesses. The discretion of the trial judge on the point will not be overturned except where clearly abused or manifestly erroneous from a factual standpoint.” Id. p. 776-777

We find that there is ample evidence in the record to support the trial judge’s finding that Travelers’ failure to pay plaintiff compensation benefits was arbitrary and capricious and without probable cause.

The judgment of the trial court is affirmed, appellants to pay all costs of this appeal.

      . § 658. Payment of claims, policies other than life and health and accident; penalties.
      “All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payments within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney’s fees for the prosecution and collection of such amount. . . .”


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    FRANKLIN WHOLESALE, INC., Plaintiff-Appellee, v. Eddie TREADWAY d/b/a Discount Fashion, Defendant-Appellant. FRANKLIN WHOLESALE, INC., Plaintiff-Appellee, v. Lonnie "Bill" TREADWAY d/b/a Fashion Distributors, Defendant-Appellant.
    Nos. 13200 and 13201.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.
    Rehearing Denied May 23, 1977.

      Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for defendants-appellants.
    Whitten & Blake by Leon H. Whitten, Jonesboro, for plaintiff-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

Each defendant in these consolidated cases appeals from a judgment in favor of plaintiff for goods sold defendants on account. We affirm.

Defendants admitted making the respective purchases from plaintiff, but claim they had returned to plaintiff for credit which they never received, various goods which were defective so as to be unsellable. Defendants were unable to prove this defense and in the judgment against the respective defendant, the lower court reserved to each defendant the right to seek from plaintiff the goods allegedly returned or the value thereof.

Defendants purchased from plaintiff for approximately three years goods which were “seconds” or other than first quality goods. Defendants bought this type goods at prices much less than the price of first quality goods to sell in their respective retail stores. Defendants admittedly made no complaint about the quality of the goods until this dispute arose. The record supports the judgment and we adopt the lower court’s written reasons therefor.

At the cost of defendant in each case, judgment is

AFFIRMED.


author: HALL, Judge.

text:
    VAN-TROW OLDS CADILLAC, INC., Plaintiff-Appellant, v. David L. KAHN d/b/a Kahn Insurance Agency, Defendant-Appellee.
    No. 13202.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.

      Cameron C. Minard, Columbia, for plaintiff-appellant.
    Diehlmann C. Bernhardt, Monroe, for defendant-appellee.
    Before BOLIN, HALL and JONES, JJ.
   HALL, Judge.

Plaintiff filed suit against defendant on December 22, 1975, for $619.43 as the cost of repairs allegedly done on defendant’s automobile between February 4, 1975 and October 3, 1975, and obtained a writ of sequestration pursuant to LSA-R.S. 9:4501. Defendant moved to dissolve the writ of sequestration as wrongfully issued and reconvened for damages. Defendant paid for the items shown on plaintiff’s statement of account except for $436.22 for repairs completed in August, for which defendant denied liability, alleging that the repairs were faulty.

After trial, the trial court awarded judgment for plaintiff for the repair work, but found that the sequestration was wrongful, awarded defendant $250 attorney’s fees as damages, and cast plaintiff with costs. Plaintiff appeals from that part of the judgment awarding defendant attorney’s fees and casting plaintiff with costs. For the reasons expressed in this opinion we affirm the judgment of the trial court.

The privilege asserted by plaintiff on which the writ of sequestration was based is established by LSA-R.S. 9:4501 which, prior to its amendment in 1976, provided:

“Any person operating a garage or other place where automobiles or other machinery are repaired, or parts therefor are made or furnished, has a privilege upon the automobile or other machinery for the cost of repairs made, parts made or furnished, and labor performed. This privilege is effective for a period of ninety days from the last day on which the repairs were made, or parts made or furnished, or the labor performed. For the purposes of this section, it is immaterial where the automobile or other machinery may have been located at the time or by whom the parts may have been attached.
“This privilege may be enforced by the writ of sequestration, without the repairman having to furnish security therefor. This privilege has no effect against a vendor’s privilege, a chattel mortgage previously recorded, or against a bona fide purchaser to whom possession has been delivered and who has paid the purchase price without previous notice of the existence of the privilege.”

All of the charges sued upon accrued more than 90 days prior to filing of suit, with the exception of an item dated October 3, 1975 for $14.65. No evidence was offered by plaintiff to establish that this charge was for repairs, parts, or labor furnished to the seized automobile. An invoice attached to plaintiff’s petition, which was not offered in evidence, shows the charge was for floor mats. There was no evidence that the floor mats were installed in the seized Toyota; defendant owned another Toyota at that time. The privilege created by the statute exists only upon the particular automobile which is repaired or for which parts are made or furnished. Domingue v. Huval, 261 So.2d 88 (La.App. 3d Cir. 1972). Furthermore, floor mats are not “parts” within the meaning of the statute creating the repairman’s privilege upon automobiles. The sale of a minor accessory which is not attached to the automobile does not amount to the furnishing of parts.

No repairs were made, labor performed, or parts furnished, including particularly the major repairs completed in August which were the essence of this lawsuit, within 90 days preceding the filing of suit. The privilege created by the statute is effective only for a period of 90 days from the last day on which the repairs were made, parts furnished, or labor performed. Plaintiff had no privilege upon the automobile and the writ of sequestration was wrongfully issued. The award of $250 attorney’s fees as damages and the casting of plaintiff with costs were well within the sound discretion of the trial court.

These conclusions, which support the judgment of the trial court, make discussion of other issues raised by the parties unnecessary.

The judgment is affirmed at appellant’s costs.

Affirmed.


author: PRICE, Judge.

text:
    J. George NOMEY et al., Plaintiffs-Appellants, v. JACKSON PARISH POLICE JURY and Honorable Lyman "Red” Watkins, Sheriff, Jackson Parish, Defendants-Appellees.
    No. 13204.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.
    Rehearing Denied May 23, 1977.
    Writs Refused May 25, July 1, 1977.
    Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for plaintiffs-appellants.
    Leon H. Whitten, Dist. Atty., Jonesboro, for defendants-appellees.
    Before BOLIN, PRICE and MARVIN, JJ.
   PRICE, Judge.

This is a suit attacking the validity of a local option election in Wards 1, 3, 4, 5, 6, 7, 8, and 9 of Jackson Parish.

Although there are different party plaintiffs (other than J. George Nomey) in this case, the appeal presents the identical factual and legal issues decided by this court in the opinion handed down under docket No. 13,130 on February 14,1977, in Nomey et al. v. Jackson Parish Police Jury et al., reported at 343 So.2d 315 (La.App.2nd Cir. 1977).

For the reasons given in our above cited opinion, the judgment is affirmed at appellants’ costs.


text:
    Curtis WILSON, Plaintiff-Appellant, v. DIXIE AUTO INSURANCE COMPANY et al., Defendants-Appellees.
    No. 13206.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.
    Lewis Weinstein, Richard C. Goorley by Lewis Weinstein, Shreveport, for plaintiff - appellant.
    Cook, Clark, Egan, Yancey & King by Charles G. Tutt, Shreveport, for defendants-appellees Marie Farris and Dixie Auto Ins. Co.
    Lunn, Irion, Switzer, Johnson & Salley by James B. Gardner, Shreveport, for defendant-appellee Ins. Co. of North America.
    Before BOLIN, PRICE and MARVIN, JJ.
   PRICE, Judge.

Curtis Wilson was awarded $5,560.54 in damages for personal injuries and related medical expenses resulting from a vehicular collision in Shreveport on November 30, 1974. He appealed asking for an increase in the amount awarded. The multiple defendants which were cast in judgment have not appealed, nor answered plaintiff’s appeal. Therefore, our review is limited to the adequacy of the trial court’s award.

The medical evidence shows the injuries received by Wilson were an acute cervical strain, an irritation of the occipital nerve which caused frequent headaches, and a contused right knee.

Wilson fully recovered from the cervical strain and contused knee within a reasonable period of time after the accident. Relief from the complaint of repeated headaches was accomplished by a bilateral occipital neurectomy, a minor operative procedure in which the major occipital nerve is severed and the ends are clipped in surrounding tissue by use of metal clips.

Approximately one year after the accident, plaintiff suffered a fall at his place of employment and reinjured his head and cervical region. Although plaintiff contends he had not fully recovered from the effects of the car accident at the time he sustained the industrial accident, the medical evidence is to the contrary.

The neurosurgeon who performed the occipital neurectomy was of the opinion no significant disability resulted from this procedure and assigned a maximum of one per cent permanent disability to the body as a whole.

Although no written reasons were assigned by the trial court showing the proration of the total award to specific elements of damage, counsel agree in brief the court awarded $3,560 for special damages (medical expenses) and $2,000 general damages. The amount of medical treatment received does not necessarily reflect the severity or seriousness of the injury. While it may well be that the trial court’s award for general damages is minimal, we should not disturb it in the absence of an abuse of the court’s discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). From our review of the evidence and applying the guidelines set forth in Coco, we do not find an abuse of the court’s discretion.

Plaintiff’s claim for loss of wages was properly denied for a lack of corroborating evidence on which to base such an award.

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


author: JONES, Judge.

text:
    Succession of Harmon A. BARRON et ux.
    No. 13207.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.
    Rehearing Denied May 23, 1977.

      Campbell, Campbell & Johnson by John T. Campbell, Minden, for appellant, Miss Luella Oden.
    Cook, Clark, Egan, Yancey & King by Herschel E. Richard, Jr., Charles G. Tutt, Shreveport, for appellant, third party plaintiff Aetna Cas. & Sur. Co.
    Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for appellees, Misses Mattie L. Barron and Cloma Barron.
    Before BOLIN, HALL, and JONES, JJ.

       Marvin, J., recused.

   JONES, Judge.

In this proceeding, consolidated on appeal with Succession of Barron, 345 So.2d 998 (La.App., 2d Cir. 1977) Luella Oden and Aetna Casualty and Surety Company appeal from a trial court judgment holding Aetna liable on its surety bond provided for Luella Oden.

Luella Oden was appointed administra-trix of the Successions of Harmon A. Barron and Emma 0. Barron on September 22, 1970. The administration of these successions was nearing completion and the proposed tableau of distribution and the final accounting had been homologated on August 13, 1974.

On November 12, 1974, Miss Mattie L. Barron and Miss Cloma Barron filed a pleading in the succession proceedings in Bienville Parish, asking that the judgment homologating the tableau of distribution be nullified, and judgment be rendered against Luella Oden, individually and as adminis-tratrix, and Aetna Casualty and Surety Company, as her surety, in favor of Mattie Barron for $1,367.82 and Cloma Barron for $865.40, along with attorneys’ fees of $5,000. In this pleading they prayed for a rule to show cause why the relief sought should not be granted. An order was signed setting a hearing for November 15. This rule was never served on Luella Oden. Aetna filed an exception of no right or cause of action on November 27.

On December 4,1974, the Barrons obtained a new order setting the matter for a hearing on December 13, 1974. Examination of the sheriffs return on this rule shows it was not served on Luella Oden until December 14, the day after the hearing date. Luella Oden never received a citation, either with the belated service of the rule, or at any other time. The only hearing held on December 13 dealt solely with Aetna’s exception, and on which judgment was deferred until memorandums were submitted.

While Aetna filed the exception of no right or cause of action prior to the hearing date, Luella Oden filed no responsive pleadings either before or after December 13. The Barrons took a preliminary default against Luella Oden on February 11, 1975, and took a default judgment against her on February 28.

On October 1, 1975, the Barrons amended their petition with reference to their claim against Aetna, to state they had obtained judgment against Luella Oden on February 28, 1975, that this judgment was made ex-ecutory in Webster Parish and a writ of fi. fa. was issued, but no funds were obtained to satisfy their judgment.

On November 25, 1975 a judgment was signed overruling Aetna’s exception of no cause or right of action, on December 1, 1975, Aetna filed dilatory exceptions of unauthorized use of summary proceedings and prematurity, alleging the default judgment against Luella Oden was null because of insufficiency of service. On April 26, 1976, a judgment was signed overruling these exceptions. On April 28, Aetna filed an answer, and a third party demand against Luella Oden for indemnification in the event it was held liable to the Barrons.

On June 30, 1976, Luella Oden filed an answer to the original petition and to the third party demand, generally denying liability. Aetna then amended its answer to the rule to specifically plead the nullity of the February, 1975, default judgment because of a lack of citation on Luella Oden.

At trial, the lower court refused to consider the alleged invalidity of the February, 1975, default judgment against Luella Oden, and refused to allow any evidence in connection with it to be presented. The reasoning for this refusal was the court’s belief that if the service on Luella Oden was deficient, this created only a relative nullity, and was not subject to collateral attack. The trial court rendered judgment in favor of the Barrons and against Aetna, reserving both the Barrons’ and Aetna’s rights, if any, against Luella Oden. Aetna and Luella Oden appeal.

We find the lower court erred in refusing to consider the invalidity of the February, 1975 default judgment against Luella Oden. She has never received a citation in connection with this proceeding. It is fundamental to our system that an ordinary proceeding begun without proper citation is a nullity. LSA-C.C.P. art. 1201 provides:

“Citation and service thereof are essential in all civil actions except summary and executory proceedings. Without them all proceedings are absolutely null. “The defendant may expressly waive citation and service thereof by any written waiver made part of the record.” (emphasis added)

See also LSA-C.C.P. art. 2002(2). Since C.C.P. art. 1201 states such a proceeding is an absolute nullity, it may be attacked by anyone against whom it is interposed and whenever and wherever it is asserted. Board of Commissioners v. Hollybrook Land Company, 191 So.2d 724 (La.App., 2d Cir. 1966); Decuir v. Decuir, 105 La. 481, 29 So. 932 (1901).

The Barrons also argue that service of the rule satisfied the requirement of citation. This argument is without merit. The rule served was not in the form required for citation, C.C.P. Art. 1202, for the reason it did not contain “. . . [a] statement that the person cited must either comply with the demand contained in the petition or make an appearance, either by filing a pleading or otherwise, in the court issuing the citation within the delay provided in Art. 1001 under penalty of default.” Since there was no valid citation, the default judgment taken against Luella Oden was an absolute nullity.

The Barrons alternatively assert this is a summary proceeding which does not require citation. C.C.P. Art. 1201, supra.

While it is true a summary proceeding does not require citation, if this is a summary proceeding the Barrons could not have validly taken a default judgment against Luella Oden. The articles relating to default judgments are inapplicable to summary proceedings. They apply only to ordinary proceedings where an answer is required but has not been filed, C.C.P. Arts. 1701, 1702, 1843, and an answer is not required in summary proceedings, C.C.P. Art. 2593. If this is a summary proceeding, the taking of a judgment by default was improper and without effect.

Since the trial court judgment against Aetna on Oden’s surety bond must necessarily have been based on the validity of the default judgment, the judgment against Aetna Casualty and Surety Company must be reversed. Once the nullity of the judgment is recognized Aetna’s exceptions of no cause of action should have been sustained based upon the provisions of C.C. Art. 3066.

For the foregoing reasons we reverse the judgment of the trial court and recognize the February 28, 1975, default judgment against Luella Oden, administratrix, to be an absolute nullity and of no force and effect. We sustain Aetna Casualty and Surety Company’s exception of no cause of action and dismiss the demands of plaintiffs against Aetna Casualty and Surety Company. All further proceedings below with regard to the administratrix shall be consistent with this opinion. Appellees are to pay all costs, below and on appeal.

Reversed, rendered in part, and remanded.

      . LSA-C.C.P. Art. 1202(5).

      . “Art. 3066. Benefit of discussion not available; proceedings against surety

        “A judicial surety can not demand the discussion of the property of the principal debtor.
      “But no suit shall be instituted against any surety on any appeal bond, nor on the bond of any administrator, tutor, curator, executor, or syndic, until the necessary steps have been taken to enforce payment against the principal.
      “The mode of proceeding against sureties on official bonds, is prescribed by special laws.”


text:
    Succession of Harmon A. BARRON et ux., Plaintiffs-Appellants, v. Luella ODEN, Defendant-Appellee.
    No. 13232.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.
    Rehearing Denied May 23, 1977.

    Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for appellants Mattie L. Barron, Cloma 0. Barron.
    Campbell, Campbell & Johnson, John T. Campbell, for appellee, Luella Oden.
    Before BOLIN, HALL and JONES, JJ.

       Marvin, J., recused.

   JONES, Judge.

In this proceeding, consolidated on appeal with Succession of Barron, 345 So.2d 995 (La.App., 2d Cir. 1977) (# 13,207), Mattie L. Barron and Goma Barron appeal from a Webster Parish district court judgment which declared a default judgment earlier rendered against Luella Oden in Bienville Parish to be null and void, and permanently enjoined the Barrons from executing upon it or otherwise enforcing it.

On April 8, 1975, Mattie L. Barron and Cloma Barron filed suit in Webster Parish to make executory a default judgment they obtained against Luella Oden in Bienville Parish on February 28, 1975. An ex parte order was signed recognizing the Bienville Parish judgment and making it executory. Pursuant to this a writ of fi. fa. was issued and a petition to examine Luella Oden as a judgment debtor was filed.

Luella Oden filed a petition, directly attacking the validity of the February, 1975, default judgment on the grounds she never received a citation in that proceeding, and asked for injunctive relief to restrain the Barrons from enforcing the judgment. A temporary restraining order was issued to which the Barrons filed a motion to dissolve, along with exceptions of improper venue, improper cumulation of actions, and unauthorized use of summary proceedings. After a hearing, the exceptions were overruled and a preliminary injunction was issued.

After trial on the merits, judgment was rendered granting a permanent injunction and decreeing the Bienville default judgment to be null and void for lack of citation as required by LSA-C.C.P. art. 1201. We affirm.

The Barrons urge that even if the Bienville Parish default judgment is a nullity, as held in the consolidated case, Succession of Barron, 345 So.2d 995 (La.App., 2d Cir. 1977) (# 13,207), Webster Parish is not the proper venue in which to attack it, under LSA-C.C.P. Art. 2006. This article applies only to judgments that are relatively null, not to those which are absolutely null and are subject to collateral attack. Board of Commissioners v. Hollybrook Land Company, 191 So.2d 724 (La.App., 2d Cir. 1966). If a judgment is an absolute nullity, such nullity may be invoked by anyone against whom it interposed and whenever and wherever it is asserted. Board of Commissioners v. Hollybrook Land Company, supra; Decuir v. Decuir, 105 La. 481, 29 So. 932 (1901).

As discussed in the consolidated case, proceedings begun without citation are absolute nullities under the express provisions of C.C.P. Art. 1201.

For the foregoing reasons, the judgment of the trial court annulling the February, 1975, Bienville Parish default judgment against Luella Oden, and permanently enjoining its enforcement is affirmed, appellants to pay all costs of this appeal.

Affirmed.

      . “Art. 2006. Court where action brought
      “An action to annul a judgment must be brought in the trial court, even though the judgment sought to be annulled may have been affirmed on appeal, or even rendered by the appellate court.”


author: BOLIN, Judge.

text:
    C. B. WEATHERS, Plaintiff-Appellant, v. PULLIG & SON, INC., et al., Defendants-Appellees.
    No. 13208.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.

      Wilson & Veatch by Thomas A. Wilson, Shreveport, for plaintiff-appellant.
    Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for defendants-appel-lees.
    Before BOLIN, PRICE and MARVIN, JJ.
   BOLIN, Judge.

In March 1974, plaintiff injured his back during the course and scope of his employment; the employment was hazardous; workmen’s compensation payments were made to plaintiff by defendants for approximately one month; payments were discontinued in April 1974; and plaintiff sued for additional benefits, penalties and attorney fees. These demands were rejected and plaintiff appeals. We affirm the judgment.

The issues are: (1) whether or not plaintiff is entitled to receive additional benefits beyond those paid by defendants; (2) if so, were defendants arbitrary and capricious in discontinuing compensation payments after receiving a report of an orthopedist that plaintiff was able to return to work.

Immediately after the injury plaintiff was hospitalized for a period in excess of one week. He was later examined and treated by two orthopedists whose testimony was contradictory as to plaintiff’s ability to return to work. In a written opinion the trial court found plaintiff failed to prove he was disabled beyond April 23, 1974.

The record before us supports this conclusion and the judgment is affirmed at plaintiff’s cost.


text:
    Everett Elton THOMAS, Plaintiff-Appellee, v. George HOLLAND d/b/a Holland’s Tractor Sales & Service, Defendant-Appellant.
    No. 13209.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.
    Rehearing Denied May 23, 1977.

      James M. Dozier, Jr., Farmerville, for defendant-appellant.
    Truett L. West, Farmerville, for plaintiff-appellee.
    Before BOLIN, HALL and JONES, JJ.
   HALL, Judge.

Plaintiff filed this workmen’s compensation suit after being injured in a fall during construction of an addition to defendant’s business establishment. The trial court found plaintiff to be totally and permanently disabled, and rendered judgment in his favor. Defendant appealed, and we affirm.

Defendant sells and repairs tractors under the name of Holland’s Tractor Sales & Service. He hired plaintiff to supervise and aid in the construction of an addition to his repair shop. Plaintiff was to be paid $130 per week until the building was finished. He did a significant amount of manual labor in carrying out his duties. While he was hired primarily to work on the building, plaintiff also did some minor welding repair work for defendant’s customers. He received no extra compensation for this work. Plaintiff was expected to work the same 5V2 day week as defendant’s regular employees.

While working on the addition to the repair shop, on August 7, 1973, plaintiff slipped and fell about 18 feet onto a concrete floor. Although his arm was also injured, his most serious injury was a severe dislocation of his left ankle. The foot was placed in splints, and plaintiff was on crutches for several weeks. He returned to work in October, mostly in a supervisory capacity, but continued to have problems. X-rays in December, 1973, showed evidence of the development of arthritis in the joint immediately below the left ankle. The attending physician testified that arthritis was a frequent consequence of this type of dislocation. At the time of plaintiff’s last examination in April, 1975, his physician concluded that plaintiff could not do work which involved walking over irregular ground, or climbing ladders, or walking narrow beams.

Defendant contends (1) that plaintiff is an independent contractor and not covered by workmen’s compensation; (2) that the accident did not arise out of the employer’s regular trade, business, or profession; (3) that the evidence does not support a finding of permanent and total disability; (4) that proper credit was not given for payments to plaintiff; and (5) that plaintiff was precluded from recovering permanent disability benefits by taking an earlier default judgment for partial disability benefits.

Coverage Under The Workmen’s Compensation Act

LSA—R.S. 23:1021(5) provides:

“ ‘Independent contractor’ means any person who renders service, other than manual labor, for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter.”

Plaintiff was not an independent contractor. He was paid by the week, was expected to keep the same hours as defendant’s other employees, and his work was partially supervised by defendant during construction. Furthermore, even if he was an independent contractor, his construction work involved a substantial amount of manual labor, which would bring him within the scope of the Act.

Defendant argues that plaintiff was not injured in the performance of the employer’s regular business, and is, therefore, not covered by the Act. The Supreme Court held in Speed v. Page, 222 La. 529, 62 So.2d 824 (1952) that where an employer engaged in a hazardous business undertakes to repair the building housing that business or the equipment therein, his employees are protected by the workmen’s compensation laws. That holding applies to the instant case. The addition was intended to house the repair business operated by defendant. This business is hazardous and within the scope of the Act. Caldwell v. George Sproull Co., 184 La. 951, 168 So. 112 (1936), relied on by defendant, is inconsistent with the holding in the more recent Speed case.

The other cases cited by defendant are distinguishable. Edwards v. Stafford, 153 So.2d 106 (La.App. 1st Cir. 1963) involved a nonhazardous business, and the court in Edwards distinguished Speed on that basis. Stigler v. Bell, 276 So.2d 799 (La.App. 4th Cir. 1973) involved a workman converting a storeroom into a playroom for the employer’s children. That work was completely unrelated to the employer’s business.

Extent of Disability

The trial judge awarded benefits for permanent and total disability. The Supreme Court recently reviewed the legal requirements for a finding of compensable total disability in Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977). Lucas states that an injured employee is totally and permanently disabled if he cannot perform the same or similar work to that performed before the accident without unusual difficulty or danger. A skilled worker, although he may be able to obtain other types of skilled work, is disabled if he cannot perform a substantial portion of the work incident to his special occupation. By reason of the work-caused disability, the employee is placed at a disadvantage in securing employment in the labor market.

The summary in Lucas is appropriate to the instant case. Plaintiff, a general construction worker, can no longer perform without serious difficulty those tasks which involve climbing. The attending physician confirmed that plaintiff’s work should not involve climbing, as it would be difficult and dangerous. His condition is not likely to improve. The testimony establishes that climbing is an integral and substantial portion of plaintiff’s occupation, and that he has been handicapped in obtaining work by his inability to climb. Plaintiff is entitled to compensation for permanent and total disability. See Lawless v. Steel Erectors, Inc., 254 La. 37, 222 So.2d 849 (1969); Blappert v. Boh Brothers Construction Co., 292 So.2d 910 (La.App. 4th Cir. 1974).

Credit

Defendant contends that the $2,470 which he paid plaintiff between the time of the injury and the time the job was completed should be credited against the amount of compensation due. However, credit for wages paid is computed by deducting from the total number of weeks for which compensation is due those weeks when the employer paid the injured employee any amount which at least equaled the compensation due. Amounts paid weekly in excess of the compensation due cannot be credited as payment for future weeks. Futrell v. Hartford Accident & Indemnity Company, 276 So.2d 271 (La.1973). Furthermore, any amounts paid which are actually earned after the injury cannot be credited against the amount due. Gonzales v. Coastal Wire Warehouse, Inc., 328 So.2d 923 (La.App. 4th Cir. 1976). Only unearned payments are credited.

The trial judge allowed seven weeks credit for the seven payments which defendant made between the accident and plaintiff’s return to work. This determination was correct.

Effect of Default Judgment

Prior to the trial of the instant case, plaintiff had obtained a default judgment for partial disability. That judgment was overturned when the trial judge granted a motion by defendant for a new trial “in the interest of justice.” Defendant contends that the default judgment for partial disability acted as a remission of any claim over that amount. However, the motion for new trial was timely filed, and the judgment never became final. Plaintiff’s petition properly alleges permanent and total disability, and the default judgment, which never became final, does not preclude him from recovering those benefits to which he is entitled by the evidence and applicable legal principles.

The judgment is affirmed at appellant’s costs.

Affirmed.


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    James W. WALLACE et ux., Plaintiffs-Appellants, v. STATE FARM FIRE & CASUALTY INSURANCE COMPANY, Defendant-Appellee.
    No. 13212.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.
    Rehearing Denied May 23, 1977.

      Charles W. Robinson, West Monroe, for plaintiffs-appellants.
    Hudson, Potts & Bernstein by Jesse D. McDonald, Monroe, for defendant-appellee.
    Before BOLIN, HALL and JONES, JJ.
   JONES, Judge.

Plaintiffs, James W. Wallace and Billie Alderman Wallace, brought suit against State Farm Fire and Casualty Insurance Company for payment under the terms of a homeowner’s insurance policy for destruction of their house and furnishings by fire, and for penalties and attorney’s fees based upon State Farm’s arbitrary and capricious refusal to pay the claim after proper notice. State Farm denied liability, claiming the fire was caused by arson for which plaintiffs were responsible, and reconvened for those amounts which it had paid to the mortgagees of the house, and for which it had been subrogated. From a trial court judgment upholding State Farm’s defense of arson, and awarding State Farm those amounts -for which it had reconvened, plaintiffs appeal. We reverse.

James Wallace, a self-employed contractor, was judicially separated from his wife, Billie Alderman Wallace. When they separated, Billie and the children moved into a home owned by her brother some seven or eight blocks from the former marital domicile. Although James’ employment was in New Orleans he returned to West Monroe almost every weekend and stayed in the former marital domicile, entertaining the children and visiting with his wife.

James was staying in the house on the weekend of October 21, 1975. He had his son clean the yard and arranged to have it mowed on Saturday. He spent most of the day Sunday with his son and daughter, and a neighbor’s child, vacuuming and cleaning, washing dishes and generally straightening the house. James left the house about 6:30 p.m. that night with his son, taking him to church, and then went to his wife’s residence for supper. He left his wife’s house about 8:00 p.m. to travel to New Orleans, where he was working. He stopped in Baton Rouge about 11:00 p.m. to visit a friend for several hours, as he did every few months, and continued on to New Orleans, where he stayed with his brother.

At 1:30 a.m. that morning James’ house was discovered ablaze by neighbors. The fire department responded quickly but was only able to prevent approximately one-half of the house from burning to the ground.

James was contacted by his wife later that day but was unable to return to West Monroe until the morning of October 23. James’ wife, Billie, contacted their insurer, State Farm, regarding the fire. An adjuster, Paul Farmer, met with her and viewed the remains of the house. When James arrived, he also met with Farmer. Both Wallaces cooperated with Farmer, giving him all information he requested. Over the next month, both of the Wallaces met with Farmer several times in connection with submitting a proof of loss to State Farm. The formal proof of loss was submitted on November 27, 1975.

After Farmer first viewed the house, he contacted a deputy state fire marshal and asked him to inspect the site. After so doing the fire marshal told Farmer he felt the fire was caused by arson.

In early January, State Farm informed plaintiffs it would not pay the value of the policy because the fire was the result of arson and it believed James Wallace was responsible for the fire. When State Farm had not paid the claim within 60 days of the submission of the formal proof of claim plaintiffs filed this suit. Subsequent to this, State Farm paid the two mortgagees of the house named in the policy, and against whom the policy provided no defense of arson. Upon being subrogated to these amounts, State Farm reconvened against the plaintiffs.

On appeal, plaintiffs assert the trial court erred both in finding the fire was caused by arson and in finding James Wallace responsible for it.

At trial, State Farm qualified a deputy state fire marshal and an independent investigator as experts on arson, who testified as to the causes of fires. Both stated they were of the opinion this fire was caused by arson. While they found no direct evidence of accelerants (e. g., gasoline, fuel oil, kerosene, etc.), they stated the manner that the house burned, and an examination of the debris indicated the use of accelerants. These included evidence of a “splash pattern” and the intensity of the fire. They explained a “splash pattern” is formed by the use of accelerants and is evidenced by a fairly clear demarcation in the effect of the fire on the structure, and is also evidenced by several small areas, detached from the main blaze, evidencing signs of a more intense flame for no obvious reason. They also pointed out the way the fire burned straight through the roof instead of spreading out when it reached the attic evidenced an intense heat. They stated the width and depth of the cracks in the large timbers (“alligatoring”) here also evidenced an intense heat, as did the fact that several metal articles were pitted or melted. They emphasized such intense heat was caused by the use of accelerants.

These experts also testified the only ignition sources present in the area of the fire were a television set, electrical connections and a gas space heater. They stated an inspection of the inside of the television and its location with reference to the area of origin of the fire indicated it was not the source of the fire. The independent investigator testified he examined the debris and could find no evidence of fused wire which would indicate any other electrical fixture caused the fire. Both experts testified they examined the space heater after the fire and it had no indication of leaking or other defect.

Laboratory tests made by defendant’s experts on the ashes found no evidence of accelerants, although defendant’s experts stated this was expected since the samples were not taken until several months after the fire. The evidence also did not show any of several other indications of arson such as fire breaking out at several points at once, or remains of incendiary materials placed in the house, or visual evidence of accelerants in the water surrounding the house after the blaze, nor did any of plaintiffs’ neighbors or the firemen notice any odor of accelerants at the fire. See Wells v. Twin City Fire Insurance Company, 239 La. 662, 119 So.2d 501 (1960).

While plaintiffs offered the testimony of two experienced firemen who stated they did not feel this fire was caused by arson, and otherwise disagreed with, portions of the testimony given by defendant’s experts, the trial judge felt the evidence and testimony was sufficient to establish that the fire was of incendiary origin (i. e., arson). When such a conflict is presented by the testimony at trial, the determination of the trial judge is accorded great weight and will not be modified in the absence of manifest error. While we might not have reached the same conclusion from this evidence as did the trial judge, we cannot hold the trial judge committed manifest error and therefore his finding in this respect will not be disturbed.

Plaintiffs also assert the trial court erred in finding defendants proved Wallace had sufficient motivation to commit arson, was the only person with such a motive, and was therefore presumed to have been responsible for this fire.

To sustain the defense of arson, the insurer has the burden of proving by a preponderance of the evidence that (1) the fire was of incendiary origin, and (2) plaintiff was responsible for it. Proof may be, and invariably is, by circumstantial evidence. When proof is circumstantial, the evidence must be so convincing that it will sustain no other reasonable hypothesis but that plaintiff was responsible for the fire. Sumrall v. Providence Washington Insurance Company, 221 La. 633, 60 So.2d 68 (1952); Baghramain v. MFA Mutual Insurance Company, 315 So.2d 849 (La.App., 3d Cir. 1975); Artigue v. Louisiana Farm Bureau Mutual Insurance Company, 339 So.2d 880 (La.App., 3d Cir. 1976).

Defendants contended the following circumstances establish that-Wallace had sufficient motivation to commit arson:

1. The insured had a substantially decreased need for the premises; (2) the house was overinsured; (3) the insured was in dire financial circumstances.

State Farm asserts plaintiffs had a substantially decreased need for the house because of their separation. This is unsupported by the evidence. Wallace lived in the house almost every weekend, driving up from New Orleans to visit his children and his wife. That Wallace considered his home an important part of his life style is shown by his continuing maintenance of the house and yard. Even the trial court stated it was not impressed with this argument.

State Farm also asserts the house was substantially overinsured, which presents an additional motive. The trial court recognized the house was currently worth $13,000 to $14,000, but was insured for $21,981. However, it is significant this policy was purchased over four years prior to the fire at a face amount of $15,000. All additional coverage was provided by an inflationary coverage endorsement, which was indexed to the composite construction cost index published by the U.S. Department of Commerce. The trial court very clearly recognized there was no evidence the insured was actually aware of this increased coverage, but found there was a legal presumption of such knowledge.

While we agree Wallace may be presumed to know the value of the policy on his home, we do not feel the fiction of presumption should be used to establish an insured’s motivation to commit arson. Therefore, we do not feel this presumption extends to impute to him knowledge that the house was overinsured. When the initial face value of the policy is reasonably within the value of the house at the time it is insured, we do not see how the insurer can validly complain of overinsurance when they sell the insured a policy endorsement having as its only purpose to increase the value of the policy by an amount sufficient to keep the house from becoming underin-sured. This would seem to be especially true in light of public policy as evidenced by the “valued policy” law, LSA-R.S. 22:695.

A careful study of the trial court’s reasons for judgment indicates it principally relied upon a finding that the insured was in dire financial trouble, and this gave him a motive to commit arson. After a thorough examination of the evidence as to the financial condition of Wallace, we hold the trial court was in error in finding James Wallace was in such dire financial condition as to give him such a motive.

A financial statement was introduced into evidence which reflected Wallace had a net worth of some $16,000. A review of this statement indicates the assets listed may be slightly overvalued, but no more than by $2,000. Of the listed debts, only $3,700 was secured by mortgages on his home.

The holder of the first mortgage, First Federal Savings and Loan, was owed a balance of $2,424.50, payable in monthly installments of $44.35, and contrary to the trial judge's findings, was current on the date of the fire.

The holder of the second mortgage, American Acceptance Associates, was owed a balance of $1,287.57, payable in monthly installments of $183.08, and at the time of the fire was two months past due. However, it was brought out at trial that Wallace was regularly behind in his payments, and had in fact been two months behind on this account some 14 separate occasions. The manager of this company testified he had no intention of commencing legal action because of this arrearage.

The only other obligation which was two months delinquent was $1,173.64, owed to Pico Finance payable at $90.28 per month. This debt was secured by a chattel mortgage on furniture, and while there was evidence Pico was contemplating legal proceedings, there is no evidence it had conveyed this information to Wallace.

State Farm also claimed James Wallace had two judgments against him. One of these, of which James denied knowledge, is a judgment of seizure and sale creating no personal liability on James, and relating to an automobile purchased by James’ son-in-law, upon which James was an accommodation endorser on the loan. The other was a judgment of $506 taken 20 months prior to the fire. Testimony at trial established $300 had been paid on this judgment, and no further efforts had been taken to collect on it.

The evidence reflects Wallace had no “regular” job but did small contract type repair work which resulted in his having a spasmodic income. His creditors were all aware of this and over the years all of them had accepted his payment on obligations in a spasmodic manner. The various loan company managers with whom he dealt indicated Wallace did not seem to become disturbed by his mere delinquency in payment of debts. They all testified that although he was not punctual paying his debts, he always paid them off eventually.

While it was true Wallace apparently earned only $8,000 the year preceding the fire, he inherited $7,000 during that year, and won a Cadillac automobile which he sold for $7,500. Under these two circumstances his failure to sufficiently dedicate himself to his business to earn a larger sum is understandable. Certainly when considering the totality of the facts, there is no reason to believe Wallace would not earn a greater sum the following year. When all these circumstances are known, the insured cannot be considered in such dire financial condition as to motivate him to commit arson merely because of the date of the fire he had only $100 cash in his pocket and had monthly obligations of approximately $500.

The law requires the insurer to prove the insured was responsible for the fire in order to rely on a defense of arson. There is no direct evidence in the record to establish this fact. The insured’s home was located in an area in west Ouachita Parish where many low income people reside. There was evidence of vandalism in one school and one home not far from insured’s residence. .There was evidence that a stranger had entered the home of his next door neighbor through a window. All of these incidences occurred at a time not far distant from the burning of plaintiff’s residence. Near plaintiff’s home is a levee across which is located a wooded area habitually used by people for camping and camp fire burning. While there is no evidence any vandal in the area was guilty of setting the fire, certainly this is not an unreasonable possibility considering the location of plaintiff’s home, especially in light of testimony that the house was often unlocked because it was used by Wallace’s children in his absence.

We hold the trial judge’s finding that James Wallace was in the house alone for 15-20 minutes on the night of the fire, before going to eat supper with his wife, was erroneous. James denied he was alone in the house and the record contains no evidence which contradicts him.

We do not feel State Farm has shown the dire financial condition or other motivation required for us to say it is more probable than not Wallace was responsible for the destruction of his home, thereby attempting to defraud State Farm and committing the crime of arson. The judgment of the trial court must be reversed.

It is stipulated the value of the policy is $21,981 and the house is obviously a total loss, since the cost of repair was approximately the amount of the policy. Plaintiffs have also shown losses to moveables contained in the house in an amount of $5,146.82, and temporary living expenses of $490. The policy in the record provides plaintiffs are entitled to recovery of these amounts, less a $100 deductible on the damage to the house. State Farm is entitled to a credit of $3,712.10, which it paid to American Acceptance Corporation and First Federal Savings and Loan as mortgagees, as of the date of this payment.

Plaintiffs also ask for penalties and attorney’s fees under LSA — R.S. 22:658, for State Farm’s arbitrary and capricious refusal to remit the proceeds of the policy within 60 days after proof of loss was submitted. Considering the findings of arson and the prima facie financial trouble of James Wallace, we do not think State Farm’s refusal to pay was arbitrary and capricious. Hope v. South Texas Lloyds, 171 So.2d 837 (La.App., 2d Cir. 1965).

With regards to plaintiff’s request that we set expert witness fees in this matter, we set the fee of Dr. Frank J. Bruscato in the amount of $150, and the fee of Bobby G. Foley in the amount of $75, to be taxed as costs. We reject plaintiffs’ request for expert witness fees for those witnesses who were not qualified by the trial court as experts.

For the foregoing reasons the judgment of the trial court is reversed, and judgment is rendered in favor of James W. Wallace and Billie Alderman Wallace, and against State Farm Fire and Casualty Insurance Company in the amount of Twenty Seven Thousand Five Hundred Seventeen and 82/100 ($27,517.82) Dollars with 7% interest from judicial demand until paid, less a credit of Three Thousand Seven Hundred Twelve and 10/100 ($3,712.10) Dollars as of February 25,' 1975. State Farm Fire and Casualty Insurance Company is assessed with costs, below and on this appeal, including the expert fees mentioned above.

Reversed and rendered.


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    WILLAMETTE INDUSTRIES, INC., Plaintiff-Appellant, v. William Huey MELTON, Defendant-Appellee.
    No. 13213.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.
    Waltman, Napper & Madden by O. L. Waltman, Jr., Ruston, for plaintiff-appellant.
    Bice, Russell & Allen by Charles B. Bice, Winnfield, for defendant-appellee.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

This appeal involves the factual question as to whether or not Willamette Industries, Inc., overpaid William Melton for standing timber which Willamette purchased from Melton. For written reasons the lower court resolved this question in favor of defendant. Plaintiff appeals and we affirm.

Defendant sold timber to plaintiff from two tracts of land, and separate but similar timber deeds were executed for each tract. The deeds provided that defendant was to be paid on the basis of $135 for each thousand feet of timber cut by plaintiff. However, the parties executed a counter letter, contemporaneously with each timber deed, guaranteeing that defendant would receive a minimum payment for each tract regardless of the amount of timber actually cut by plaintiff.

There is no dispute as to the total amount of timber cut from both tracts. Plaintiff contends the overpayment resulted because it erroneously designated certain timber as having been cut from tract No. 1 when it actually was cut from tract No. 2. If plaintiff’s contention is correct then defendant was overpaid by approximately $8,000.

The trial judge received and evaluated both the testimony of the witnesses and the accounting procedure used by plaintiff. He concluded plaintiff had failed to prove it erroneously allocated certain timber that resulted in overpayment to defendant.

Since we agree with the trial judge’s written opinion we adopt it, and the judgment is affirmed at appellant’s cost.


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    Olivia S. LEWIS, Plaintiff-Appellant-Appellee, v. Ben LEWIS, Jr., Defendant-Appellant-Appellee.
    No. 13214.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.
    Rehearing Denied May 23, 1977.

      Lewis Weinstein, Shreveport, for plaintiff-appellant-appellee Olivia S. Lewis.
    Gamm, Greenberg & Kaplan by Jack H. Kaplan, Shreveport, for defendant-appellant-appellee Ben Lewis, Jr.
    Before PRICE, HALL and JONES, JJ.
   HALL, Judge.

The plaintiff-wife sued the defendant-husband seeking (1) a separation from bed and board on allegations of cruel treatment, including an allegation that defendant packed his clothes and left the family domicile; (2) custody of a minor daughter born prior to the marriage between plaintiff and defendant, it being alleged that defendant acknowledged the minor as his child and that the child lived with the parties in the family domicile; and (3) child support and alimony. Defendant answered generally denying the allegations of plaintiff’s petition; denying paternity of the child; and reconvening for a separation on the grounds of technical abandonment by reason of plaintiff having ordered him to move from the matrimonial domicile. After trial the district court found that the husband was justified in moving and awarded him a separation; found that plaintiff proved defendant was the father of the child; awarded custody of the child to the plaintiff; and ordered defendant to pay child support in the amount of $90 per month beginning October 15, 1976.

Plaintiff appealed contending the trial judge erred (1) in beginning child support on October 15, 1976, rather than the date of judicial demand, December 31, 1975; and (2) in granting a separation to the defendant because of lack of evidence and his failure to produce a corroborative witness.

Defendant also appealed contending the trial judge erred (1) in recognizing him as the father of the child; and (2) in awarding child support.

Defendant moved out of the matrimonial domicile, a home owned by plaintiff, in December, 1975. Plaintiff testified defendant left after telling her, in effect, that he was tired of living with her and wanted a divorce. Defendant testified he left because of an argument he had with his wife’s major daughter about her living in the home and after the wife took sides with the daughter. The evidence is very sketchy and both versions are basically uncorroborated. The only proven fact is that defendant moved out of the matrimonial domicile and has not returned. He and his wife had no contact from the date he left until the date of the trial several months later. Defendant did not prove a lawful cause for leaving — a lawful cause under Civil Code Article 143 being more than an atmosphere of friction and unpleasantness. Burnett v. Burnett, 324 So.2d 622 (La.App. 2d Cir. 1975); Hatch v. Hatch, 335 So.2d 707 (La.App. 2d Cir. 1976) writ refused La., 338 So.2d 113.

Even accepting defendant’s version as true, he has not established legal grounds for a separation. The facts do warrant a separation for the wife on the grounds of abandonment by the husband. We reverse and award the wife a separation on the grounds of abandonment on the basis of the allegations of the petition, the enlargement of the pleadings by the evidence which was not objected to, and under the authority of Code of Civil Procedure Article 2164, which allows this court to render any judgment which is just and proper under the law and evidence.

Paternity was clearly established under the provisions of Civil Code Article 209(2). Defendant orally acknowledged the minor as his child on numerous occasions and referred to the child as his own in one written communication to the Bureau of Vital Statistics requesting that a new birth certificate be issued showing him as the father. The child lived with her mother and the defendant in their home after the time they were married and was held out as the child of defendant. The trial court correctly found that defendant was the father of the child, granted custody of the child to the mother, and awarded child support.

Defendant argues that the woman was of dissolute manners and that LSA-C.C. Art. 210 prevents the use of Article 209 to prove paternity. Besides the sketchy evidence supporting this contention, the Supreme Court has squarely held to the contrary in McConkey v. Pinto, 305 So.2d 469 (La.1974), which held that “the disqualifying provision is applicable only to proof of paternity by oath of the mother and cohabitation. It is inapplicable to proof under Article 209 of the Louisiana Civil Code.”

Defendant complains that the award of $90 per month for child support is excessive. Defendant earns in excess of $12,000 per year. Although he has substantial debts and although the mother is also employed, the award for child support is well within the sound discretion of the trial court.

Suit was filed on December 31, 1975. Trial was held in October, 1976. Due to the interval between judicial demand and trial, and in view of the financial circumstances of the defendant, it was within the trial judge’s discretion to order child support to commence October 15, 1976. Hatch v. Hatch, supra.

For the reasons assigned, the judgment of the district court is affirmed in all respects except that the judgment awarding defendant a separation from bed and board from the plaintiff is reversed and there is now judgment in favor of the plaintiff, Olivia S. Lewis, and against defendant, Ben Lewis, Jr., awarding plaintiff a separation from bed and board from the defendant.

As partially reversed and amended, the judgment is affirmed at defendant’s costs.


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    Linda S. COOK et al., Plaintiffs-Appellees, v. CENTRAL MUTUAL INSURANCE COMPANY, Defendant-Appellant.
    No. 13215.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.
    Rehearing Denied May 23, 1977.
    Writ Refused June 30, 1977.
    Bodenheimer, Jones, Klotz & Simmons by Harry D. Simmons, Shreveport, for defendant-appellant.
    T. K. Giddens, Jr., Wm. Robert McKenzie by T. K. Giddens, Jr., Shreveport, for plaintiffs-appellees.
    Before PRICE, HALL and JONES, JJ.
   PRICE, Judge.

The liability insurer of a homeowner appeals from the judgment awarding plaintiff, individually and as tutrix of her five-year-old son, $25,000 for injuries sustained by the child in a fall in the back yard of the insured’s premises.

Mr. and Mrs. Paul C. Mitchell, Jr., live in the residence at 222 W. 70th Street in Shreveport and are insured by Central Mutual Insurance Company.

On the date of the accident, October 2, 1975, the Mitchells were entertaining several members of their family. Among the guests were Mrs. Linda Cook and her five-year-old son, John E. Hancock, Jr.

Soon after arriving at the Mitchell home about 7:30 p. m., John went into the back yard to play with several dogs kept by the Mitchells. Darkness was approaching, and a floodlight had been turned on at the rear of the house. The child suddenly began screaming and was found lying on his back in a grassy area of the yard with his left leg twisted underneath him. He was taken to a hospital and found to have a spiral fracture of the upper shaft of the left femur.

Plaintiff contends the injury was caused by the child’s foot being caught in a hole as he was running with the three dogs. Plaintiff further contends the insureds were negligent in permitting the child to play in the back yard without warning him or his mother of the presence of holes dug by the dogs. The holes were partially concealed by the San Augustine grass sod. Plaintiff contends the Mitchells knew of the presence of the holes and had reason to believe the child would run in the yard and play with the dogs as he had done on other occasions while he was visiting their residence.

There are two issues on which liability hinges: 1) Did the plaintiff sustain the burden of proving the cause of the injury was the child stepping in the hole? 2) Did the Mitchells violate a duty owed to the child which would place them at fault and their insurer liable for the injuries?

Although the trial judge did not give reasons for judgment, he found the evidence sufficient to resolve both of these issues for plaintiff.

No one saw the child fall. However, the circumstances shown by the evidence lead to a reasonable conclusion that he did step in a hole about five inches long, three inches wide, and three to four inches deep which caught his left foot and suddenly stopped his momentum. The orthopedic physician who treated John testified this was consistent with the tortion-type force which would have been required to cause the unusual fracture which resulted.

We have no difficulty finding sufficient evidence to establish that the injury was more probably than not caused by the child stepping into a shallow hole.

The trial court has erred, however, in concluding as a matter of law that the Mitchells were negligent. The duty owed by a home owner or occupant to a social gu,est is to protect against an unreasonable risk of foreseeable harm. Taylor v. National Indemnity Co., 215 So.2d 203 (La.App. 3rd Cir. 1968). As a general rule, there must be some inherently dangerous condition on the premises which the owner should have been aware of that could fore-seéably cause harm to an unsuspecting guest. The condition should be one that would not ordinarily be expected.

There is nothing unusual about the maintenance of dogs in an enclosed rear yard of residential premises. It is reasonable to expect that a yard where dogs are kept will have holes or depressions.

The risk of serious harm to a child playing in the yard under the conditions at the Mitchell home is not so great that it would justify a finding of negligence on the part of the homeowner or occupier for failure to give a warning.

The judgment is reversed, and the demands of plaintiff are rejected. All costs including this appeal are assessed to plaintiff.


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    OUACHITA NATIONAL BANK IN MONROE, Plaintiff-Appellant, v. A. L. ROWAN et al., Defendants-Appellees.
    No. 13235.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.
    Rehearing Denied May 23, 1977.

      Hudson, Potts & Bernstein by Donald L. Kneipp, Monroe, for plaintiff-appellant.
    Thompson, Sparks, Cudd & Dean by George B. Dean, Jr., Monroe, for defendants-appellees.
    Before PRICE, MARVIN and JONES, JJ.
   MARVIN, Judge.

The principal issue is whether the increased homestead exemption in the 1974 Louisiana Constitution impairs the obligation of contracts of indebtedness which preexisted the constitution, but which were reduced to judgment and executed after the constitution became effective.

The lower court allowed the increased exemption to the judgment debtor ($15,000) and the judgment creditor (Bank) appeals. We affirm.

As a preliminary issue, the Bank contends the existence of encumbrances in this case which contain homestead waivers and which are superior to the Bank’s judgment, entirely exhaust or deplete the homestead (in whatever amount), and therefore, nothing should have been allowed the homestead claimant by the lower court. In effect, the Bank would have us reduce the total indebtedness owed to creditors who enjoy homestead waivers by the amount of the homestead. Thus, under this approach the proceeds of the sale would not benefit the homestead claimant unless the total indebtedness of creditors with homestead waivers was less than the amount of the homestead.

The law favors and has designed an approach, however, for the protection of the homestead. Under the correct approach, the homestead claimant is recognized as a creditor with other claimants to the proceeds of a judicial sale and all claimants are paid according to their respective ranking after payment of costs.

If the ranking creditor enjoys a homestead waiver, the proceeds available are subject to his claim and the amount of the homestead is not deducted or taken into consideration. If at the time his claim is considered according to rank, the creditor does not enjoy a homestead waiver, the homestead claimant legally outranks him and the amount of the homestead is deducted from the proceeds which are available to satisfy his claim. Thus, the homestead claim is ranked above the claim of a creditor who does not enjoy a homestead waiver. Under this application, the purpose of the homestead exemption is fulfilled instead of frustrated. See: LSA Const.1974, Art. XII, § 9; LSA Const. 1921, Art. XI, § 1; Vol. XXXVII, Transcript of Constitutional Convention, January 10, 1974, pp. 38-44; Engstrom’s of Alexandria, Inc. v. Vaughn, 138 So.2d 672 (La.App. 3rd Cir. 1962); State v. Code, 215 La. 485, 41 So.2d 62 (1949); Consolidation Credit Corp. of Baton Rouge v. Forkner, 219 So.2d 213 (La.App. 1st Cir. 1969); Barlow v. Estate of Carr, supra.

While earlier judicial pronouncements lend support to the contentions of the Bank, the latest cases of the United States Supreme Court and the Louisiana Supreme Court are to the contrary. Earlier cases held that if a remedy formerly available to enforce a contract was abrogated or substantially affected by state action, then the contract itself was impaired. Art. I, § 10, U.S.Const.; Art. XIV, § 23, La.Const.1974. Courts then began to concern themselves with fine distinctions between remedy and obligation until the second half of this century.

In Simmons, the U. S. Supreme Court summarized the development of the law in this language:

“The City [of El Paso] seeks to bring this case within the long line of cases recognizing a distinction between contract obligations and remedy and permitting a modification of the remedy as long as there is no substantial impairment of the value of the obligation. [Citations omitted]
* * * * * *
“We do not pause ... to chart again the dividing line under federal law between ‘remedy’ and ‘obligation’ . For it is not every modification of a contractual promise that impairs the obligation of contract under federal law, any more than it is every alteration of existing remedies that violates the Contract Clause. [Citations omitted] . . . ”
“The decisions ‘put it beyond question that the prohibition is not an absolute one and is not to be read with literal exactness like a mathematical formula,’ as Chief Justice Hughes said in Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 428, 54 S.Ct. 231, 236 [78 L.Ed. 413]. The Blaisdell opinion, which amounted to a comprehensive restatement of the principles underlying the application of the Contract Clause, makes it quite clear that ‘[n]ot only is the constitutional provision qualified by the measure of control which the state retains over remedial processes, but the state also continues to possess authority to safeguard the vital interests of its people. It does not matter that legislation appropriate to that end “has the result of modifying or abrogating contracts already in effect." [Citations omitted] Not only are existing laws read into contracts in order to fix obligations as between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order * * * This principle of harmonizing the constitutional prohibition with the necessary residuum of state power has had progressive recognition in the decisions of this Court.’ [Citations omitted] Moreover, the ‘economic interests of the state may justify the exercise of its continuing and dominant protective power notwithstanding interference with contracts.’ [Citations omitted] The State has the ‘sovereign right * * to protect the * * * general welfare of the people * * *. Once we are in this domain of the reserve power of a State we must respect the “wide discretion on the part of the legislature in determining what is and what is not necessary.”’ [Citations omitted] As Mr. Justice Johnson said in Ogden v. Saunders, [12 Wheat 213, 6 L.Ed. 606] ‘[i]t is the motive, the policy, the object, that must characterize the legislative act, to affect it with the imputation of violating the obligation of contracts.’ [Citations omitted]
“Of course, the power of a State to modify or affect the obligation of contract is not without limit. ‘[W]hatever is reserved of state power must be consistent with the fair intent of the constitutional limitation of that power. The reserved power cannot be construed so as to destroy the limitation, nor is the limitation to be construed to destroy the reserved power in its essential aspects. They must be construed in harmony with each other. This principle precludes a construction which would permit the state to adopt as its policy the repudiation of debts or the destruction of contracts or the denial of means to enforce them.’ ” 85 S.Ct. 581-585, Footnotes omitted, Emphasis supplied.

Following this reasoning is Hooter v. Wilson, 273 So.2d 516 (La.1973), by the Louisiana Supreme Court.

C.C. Art. 1968 reads in part:

“[T]he property of the debtor shall be liable for all consequences attending their non-performance; but this right can not be exercised, unless the contract be broken, nor until judgment be obtained for the recovery of what is due in consequence of its breach.” Emphasis supplied.

Until judgment was rendered in favor of the Bank (which was after the homestead exemption was increased), it had at best only an inchoate, and not a vested interest in its debtor’s property. The record reflects that the bank’s debtor possessed assets including interests in a business and in real estate, in addition to his homestead, at the time the contracts of indebtedness were executed. The Bank had no vested interest in the homestead of its debtor at least until it obtained its judgment and recorded it in the mortgage records, and we are not convinced that the debtor’s contract with the Bank was “impaired” by the increase in the homestead exemption. In Wilson, the Louisiana Supreme Court said:

“Even if we were to assume arguendo that the judgment of the creditor against the garnishee is a vested right, the general constitutional principles enunciated in relation to the states’ authority to impair contracts would apply. Any right the creditor has acquired is subject to a proper exercise of the police power for legitimate purposes when the exercise of the power is not unreasonable.” 273 So.2d 522. Emphasis supplied.

It is also contended that the result below is a retroactive application of the homestead exemption contrary to Art. 14, Section 26, La.Constitution 1974. The homestead sections of the constitution provide:

“Exemptions From Seizure and Sale. The legislature shall provide by law for exemptions from seizure and sale, as well as waivers of and exclusions from such exemptions. The exemption shall extend to at least fifteen thousand dollars in value of a homestead, as provided by law." Art. 12, Sec. 9.
“Exemption from Seizure and Sale. The provisions of Article XI of the Constitution of 1921 shall be continued as a statute until the legislature enacts the law required by Article XII, Section 9 of this constitution, but the amount of the exemption shall be fifteen thousand dollars in value until otherwise fixed by law.” Art. 14, Sec. 34.

The Constitution became effective before the Bank obtained and recorded its judicial mortgage. The homestead exemption was not a new creation of the 1974 Constitution but was a continuation and mere modification or increase of the existing exemption. We have found that the modification (or increase) does not impair the contracts at issue (the contracts of indebtedness from the debtor to the Bank), but even should our finding be otherwise, we also would find “the economic interests of the state [to] justify the exercise of its continuing and dominant protective power notwithstanding interference with contracts.” Simmons, supra, 85 S.Ct. at page 584. The result here does not repudiate the “. . . debts or the destruction of contracts [executed by the debtor to the Bank before the 1974 Constitution] or [deny to the Bank the] the means to enforce them.” ibid.

“When the state changed the remedy by increasing the exemption, it did not abrogate the remedy; it did not make the remedy any less certain than it was at the time of the contract; it simply in the interest of public welfare increased the debtor’s exemption so that he and his family might be saved from being a charge upon the state.” Wilson, supra, 273 So.2d 522.

The Bank’s last argument in brief states that “. . . all of the cases dealing with increases in homestead exemptions have held that the increases have no application to obligations incurred prior to the increase.” The debtor’s obligation to the Bank before the 1974 Constitution was to pay the indebtedness as contracted, and nothing more. The Bank’s judicial mortgage, as it affected the homestead, did not arise until after the increase in the exemption. Our holding does not do violence to the holdings of the cases referred to by the Bank under the respective factual circumstances there present. Those cases were not decided under circumstances or in light of the authority present here.

At appellant’s cost, judgment is

AFFIRMED.

      . Art. XI, § 1, La.Const.1921, provided a homestead exemption to the value of $2,000, which was increased by amendment in 1938 to $4,000. The 1974 Constitution, Art. XII, § 9; Art. XIV, § 34, which increased the homestead exemption to $15,000, became effective January 1, 1975.

      . In Barlow v. Estate of Carr, 292 So.2d 721 (La.App. 2d Cir. 1974), we recognized:
      “The whole theory of the exemption of the homestead is that the obligation of the debtor to those whom he owes the duty to support is a higher obligation than the payment of his debts. The purpose of the framers of the law was to secure a home beyond the reach of financial misfortune, around which gather the affections of the family; the greatest incentive to virtue, honor, and industry. Hebert v. Mayer, 48 La.Ann. 938, 20 So. 170.”

      . See City of El Paso v. Simmons, 379 U.S. 497, 85 S.Ct. 577, 13 L.Ed.2d 446 (1965) and Hooter v. Wilson, 273 So.2d 516 (La., 1973).

      . Edwards v. Kearzey, 96 U.S. 595, 24 L.Ed. 793 (1878); Waggoner v. Flack, 188 U.S. 595, 23 S.Ct. 345, 47 L.Ed. 609 (1903); Bank of Minden v. Clement, 256 U.S. 126, 41 S.Ct. 408, 65 L.Ed. 857 (1921).

      . In Daniel v. Thigpen, 194 La. 522, 194 So. 6, (1940), Daniel’s property was encumbered by a mortgage which had been recognized and reduced to judgment in 1935. The amount of the homestead was increased from $2,000 to $4,000 in 1938. The court did not allow the increased homestead exemption because it “impaired” the conventional mortgage and the judgment which pre-existed the increase.

      . This section reads: Except as otherwise specifically provided in this constitution, this constitution shall not be retroactive and shall not create any right or liability which did not exist under the Constitution of 1921 based upon actions or matters occurring prior to the effective date of this constitution.”


text:
    C. C. CARPENTER, Jr., Plaintiff-Appellee, v. LEON E. WERNTZ & ASSOCIATES, INC., Defendant-Appellant.
    No. 13236.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.
    Rehearing Denied May 23, 1977.

      Nelson & Achee Ltd. by Dale G. Cox, Shreveport, for defendant-appellant.
    Booth, Lockard, Jack, Pleasant & LeSage by Joe C. LeSage, Jr., Shreveport, for plaintiff-appellee.
    Before PRICE, MARVIN and JONES, JJ.

       BOLIN, J., recused.

   MARVIN, Judge.

Defendant (Werntz) appeals from a judgment on a contract for the sharing of insurance commissions with plaintiff. We affirm.

The insurance premiums were paid Werntz by a doctor for whom Werntz had devised a pension plan which would qualify under federal law and allow the doctor’s contributions to be deducted from his taxable income. Werntz and plaintiff, Carpenter, were among several insurance agents who negotiated with the doctor about a pension plan for the doctor’s medical clinic. Carpenter, who enjoyed the doctor’s confidence, had served previously as the doctor’s insurance agent and had done preliminary work on a plan for the doctor’s consideration.

While Werntz was licensed to sell insurance, its apparent sales technique and method of conducting its business was to charge the client an hourly rate for actuarial and other services in establishing and implementing a plan. Werntz informed the doctor that the charge for its services could be less than the insurance commission, arid if so, the excess commission after deduction of Werntz’s charges, could be paid to any insurance agent the doctor desired. The doctor agreed to Werntz’s proposals and directed that the excess commission be paid to Carpenter.

Werntz prepared the eventual contract with Carpenter shortly after it had contracted with the doctor. The Werntz-Car-penter contract, dated November 12, 1973, reads in part:

“Werntz . . . will receive commissions equivalent to the fees charged for . services in establishing the pension plan and other consulting services performed for [the doctor].
. The total . . . fees will be deducted from the [insurance] commissions paid Werntz . . . with the remainder paid by Werntz ... to . Carpenter. * * *
“There will be deducted from the total renewal commissions paid to the actuary [Werntz] for . . . annual work on the pension plan at . $35.00 per hour. The time estimated for this work is 10 to 12 hours. After this fee has been paid the remaining commission will be divided equally between Werntz and . . . Carpenter.”

On December 17, 1973, Werntz sent Carpenter its check for $1,500 as Carpenter’s portion of the initial insurance commission of $5,924. Carpenter thrice demanded of Werntz an accounting as to the apportionment of the commission. Carpenter filed suit in June 1974, contending that Werntz’s hourly charges should not have exceeded $2,000, and seeking judgment and an accounting of the policies written, the premiums received, and the number of hours worked by Werntz.

Werntz attempted to establish that its employees worked 171 hours ($5,985) and that no commission remained for payment to Carpenter. An expert witness called by Carpenter testified that the work could have been done in approximately ten hours. The lower court found that 52.5 hours had been worked by Werntz and rejected all other hours claimed by Werntz because Werntz was admittedly working on an estate plan for the doctor. See Annotation, “. . . [E]state Planning Activities as Illegal Practice of Law”, 22 ALR 3d 1112; R.S. 37:213.

The contract sued on contemplates Werntz’s services in establishing the pension plan and performing other consulting services. It also contemplates 10-12 hours “annual work” which will be paid from the renewal commission. It is arguable as to whether or not the contract contemplates estate planning work. The matter is further complicated by R.S. 22:1214(A)(8) which forbids an agent to the rebate of any part of a commission received for the sale of a life insurance policy. The ambiguity as to whether or not estate planning services are contemplated by this contract must be construed against Werntz, who prepared the contract. C.C.Art. 1957; Kuhn v. Stan A. Plauche Real Estate Co., 249 La. 85, 185 So.2d 210 (1966); Edwards v. Terminix 57, Inc., 292 So.2d 851 (La.App.2d Cir., 1974).

The pleadings do not raise the issue of Werntz’s engaging in the unauthorized practice of law. Werntz argues here that all estate planning does not constitute the unauthorized practice of law and that Werntz should be paid for work clearly authorized by the American Bar Association and the National Association of Life Underwriters in a joint Statement of Principles With Respect to the Practice of Law. We commend the able trial judge for his diligence to the profession, but find it unnecessary for us to decide what items of work by Werntz on the estate plan were or were not authorized by the Statement of Principles, supra, because we have construed the contract as to its coverage of estate plan charges against Werntz.

Werntz lastly contends Carpenter is a third-person or stranger to the contract between Werntz and the doctor, and is therefore without standing to assert that Werntz, being guilty of the unauthorized practice of law, cannot charge for the hours worked on the estate plan, citing Placid Oil Company v. Taylor, 306 So.2d 664 (La.1975). This contention is also rendered moot because we have held the contract not to have contemplated charges for estate planning for the doctor by Werntz.

The contract between Werntz and Carpenter has, as its basis, or cause, the agreement between Werntz and the doctor. The Werntz-Carpenter contract expressly provides that it may be terminated at any time by the doctor. We see no great injustice resulting to the doctor from the result below. Indeed the result achieves substantial justice and is without manifest error.

At appellant’s cost, judgment is

AFFIRMED.


text:
    Edward Lee ARNOLD, Plaintiff-Appellant, v. Nancy Rai Cox ARNOLD, Defendant-Appellee.
    No. 13238.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 1977.

      James L. Fortson, Jr., Shreveport, for plaintiff-appellant.
    Booth, Lockard, Jack, Pleasant & Lesage by H. F. Sockrider, Jr., Shreveport, for defendant-appellee.
    Before PRICE, MARVIN and JONES, JJ.
   PRICE, Judge.

Edward Lee Arnold filed suit on August 23, 1976, against Nancy Rai Cox Arnold for a divorce, or alternatively, a separation, custody of children, and a dissolution of the community of acquets and gains. Mrs. Arnold reconvened for similar relief and for attorney’s fees. By supplemental pleadings, Arnold alleged that the community had previously been dissolved by a default judgment of separation granted him on March 20, 1963. Although he and his wife reconciled shortly after the judgment, no affidavit was executed re-establishing the community as required by La.C.C. Art. 155. He therefore contends that Mrs. Arnold has no right or interest in any of the property acquired after the 1963 decree of separation.

Mrs. Arnold contends the 1963 judgment never became a definitive judgment, and the reconciliation caused it to become extinguished or abated. Therefore, she contends the community continued in existence without the necessity of the parties executing an affidavit to re-establish it.

This position is based on the contention that service of process in the 1963 separation proceeding was domiciliary, and she was never served with a notice of the default judgment as required by La.C.C.P. Art. 1913.

Responsive pleadings asserting this position were filed in both suits by Mrs. Arnold. She requested they be consolidated for consideration of this issue.

The consolidation was ordered, and following trial, judgment was rendered granting the parties a separation on mutual fault and other ancillary relief not pertinent to the issues before us. The court further rendered judgment in both suits upholding Mrs. Arnold’s contention that the 1963 separation had not become a definitive judgment, and the community continued in existence.

Arnold perfected an appeal from the judgment recognizing the continuation of the community. There is a dispute as to whether the appeal of one consolidated case brings the other case before us for review. A further question is raised as to whether the trial court could order the 1963 case consolidated after it had proceeded to judgment.

We do not find it necessary to resolve these procedural questions as the record in the 1963 proceedings was filed in evidence in the later case as an affirmative defense and may be considered by us.

Mrs. Arnold answered the appeal requesting an increase in the award made to her of attorney’s fees for work performed on this appeal, and that the judgment be modified to cast appellant personally liable for her attorney’s fees.

We find no error in the judgment, and affirm for the reasons given hereafter.

The record in the 1963 separation proceeding verifies Mrs. Arnold was not personally served with the petition initiating the action. Judgment against her was by default and no notice of the judgment has ever been served as required by La.C.C.P. Art. 1913. Actual knowledge of the separation judgment does not begin the running of the delay for applying for a new trial or taking an appeal. Hampson v. Hampson, 271 So.2d 898 (La.App.2nd Cir. 1972). Therefore, under the provisions of La.C.C.P. Arts. 1974, 3942, and 2087, the delay for applying for a new trial or taking an appeal had not begun to run when the reconciliation took place.

Such a judgment is in abeyance until these delays have expired. Hill v. Hill, 114 La. 117, 38 So. 77 (1905).

The reconciliation of the parties pri- or to the judgment becoming definitive has the effect of extinguishing or abating the judgment. This conclusion is supported by the decision of the Supreme Court in D’Antoni v. Geraci, 224 La. 818, 70 So.2d 883 (1954). In that case, the court held an action of divorce was extinguished or abated by a reconciliation during the pendency of an appeal from a judgment granting a divorce.

Appellant argues the 1963 judgment of separation was a “final judgment” consistent with the definition of this term in La.C.C.P. Art. 1841, and that it dissolved the community of acquets and gains under La.C.C. Art. 155.

We do not believe this is the proper interpretation of Art. 155. In providing that “The judgment of separation from bed and board carries with it the separation of goods and effects . . . .”, Art. 155 requires the judgment to be both final, as defined by Art. 1841, and definitive, as defined by Art. 1842.

The trial court was correct in holding that the community of acquets and gains continued to exist after the 1963 separation judgment and was in effect when the second action was filed.

Appellee concedes her only authority for requesting appellant be held personally liable for her attorney’s fees is the Supreme Court decision in Creech v. Capital Mack, Inc., 287 So.2d 497 (La.1974) in which the court enabled the collection of community debts from the entirety of the husband’s property.

We do not construe Creech as affecting the prior jurisprudence which has consistently rejected personal assessment of attorney’s fees against the husband. See Lagarde v. Connell, 279 So.2d 239 (La.App.4th Cir. 1973).

Appellee also asked for an increase in the attorney’s fees awarded to compensate for time spent on this appeal. In view of the limited resources of the community shown by the record, we are constrained to hold that the sum previously awarded in this instance is adequate for the entire proceeding including this appeal.

Appellee also contends the trial court erred in assessing the costs of court equally rather than taxing them entirely against the appellant. There does not appear to have been any abuse of the discretion vested in the trial judge under La.C.C.P. Art. 192 in casting both parties for costs of the proceeding in the trial court.

The judgment is affirmed. Costs of this appeal are to be paid by appellant.