author: HALL, Judge.

text:
    John Elbert STROUD, Plaintiff-Appellant, v. NORTHWESTERN NATIONAL INSURANCE COMPANY, Defendant-Appellee.
    No. 13566.
    Court of Appeal of Louisiana, Second Circuit.
    June 5, 1978.
    Sanders & Castete, Ltd. by Herman A. Castete, Winnfield, for plaintiff-appellant.
    Davenport, Files, Kelly & Marsh by Mack J. Marsh, Monroe, for defendant-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   HALL, Judge.

Plaintiff commenced this action to recover the value of a tractor more than three years after the date it was destroyed by fire. The issue in this case is. whether plaintiff’s action is barred by the provisions of the contractor’s equipment insurance policy issued by defendant. The district court held the action was not timely and granted summary judgment dismissing plaintiff’s suit. We affirm.

The policy provision in question provides:

“18. No suit, action or proceeding for the recovery of any claim under this policy shall be sustainable in any court of law or equity unless the same be commenced within twelve (12) months next after discovery by the Assured of the occurrence which gives rise to the claim. Provided, however, that if by the laws of the state within which this policy is issued such limitation is invalid, then any such claims shall be void unless such action, suit or proceeding be commenced within the shortest limit of time permitted by the laws of such state to be fixed herein.”

Plaintiff contends the policy provision is invalid because it conflicts with LSA-R.S. 22:629 which provides:

“A. No insurance contract delivered or issued for delivery in this state and covering subjects located, resident, or to be performed in this state, shall contain any condition, stipulation, or agreement:
* * * * * *
(3) Limiting right of action against the insurer to a period of less than one year from the time when the cause of action accrues in connection with all insurances unless otherwise specifically provided in this Code.”

Plaintiff relies on Grice v. Aetna Casualty and Surety Co., 353 So.2d 401 (La.App. 4th Cir. 1977). Grice involved a theft insurance policy which provided that no suit shall be sustained unless all requirements of the policy shall have been complied with and unless commenced within 12 months after inception of the loss. The policy also apparently contained conditions which made payment unenforceable until at least 60 days after the loss. The court held that the cause of action under the policy did not accrue until at least 60 days after the loss. Thus, the policy provision limiting commencement of the action to within 12 months after the “inception of the loss” conflicted with the minimum statutory period of one year from the time when the “cause of action accrues.” The court held the policy limitation was void and the general 10-year prescription of LSA-C.C. Art. 3544 for suits on contracts was applicable.

Under the policy provisions involved in the instant case, the Grice case is not controlling. At the latest the cause of action accrued at the expiration of the total of 90 days stipulated in the policy for submission of proof of loss and payment of claim. Even if the requirement that suit be commenced within 12 months after discovery of the loss is invalid as conflicting with LSA-R.S. 22:629, the alternative requirement that suit be commenced within the shortest period permitted by Louisiana law is valid and bars plaintiff’s action. The shortest period allowed by the statute as applied to the facts and policy involved in this case would be one year and 90 days after the date of the loss. This suit was not filed until more than three years after the date of the fire and was not timely. In the absence of a statutory prohibition, a clause in an insurance policy fixing a reasonable time to institute suit is valid. Suire v. Combined Insurance Company of America, 290 So.2d 271 (La.1974). See also Joe E. Freund, Inc. v. Insurance Company of North America, 261 F.Supp. 131 (W.D.La.1966); affirmed 370 F.2d 924 (5th Cir. 1967), which applied an identical policy provision after considering its validity in relationship to LSA-R.S. 22:629.

Neither party argues the applicability of LSA-R.S. 22:691 requiring certain standard provisions in fire insurance policies and the applicability of that statute to this case is not considered.

The judgment is affirmed at appellant’s costs.

Affirmed.


source: Caselaw Access Project

author: PRICE, Judge.

license: Public Domain

text:
    Succession of Eugene (Gennie) SHAW.
    No. 13568.
    Court of Appeal of Louisiana, Second Circuit.
    June 5, 1978.
    Forrest F. Foppe, Shreveport, for Janie Shaw O’Neal, plaintiff-appellant.
    Goode, Goode & Overdyke by D. F. Over-dyke, III, Shreveport, for Emma Lee Shaw, defendant-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   PRICE, Judge.

The primary question before us is the validity of the appeal taken by Janie Shaw O’Neal, the illegitimate child of Eugene Shaw, who seeks recognition as an heir of decedent. The surviving widow, who has been sent into possession of decedent’s estate, filed a motion to dismiss this appeal contending that there is no timely appeal from a trial court judgment for review by us.

The procedural background giving rise to this appeal is as follows: Appellant, as the illegitimate child of decedent, filed a petition for possession seeking to be recognized as the sole heir and sent into possession of an undivided one-half interest in the community property left by decedent. Appellant had a rule to show cause issued to Emma Lee Shaw, decedent’s widow, returnable October 7, 1977. The widow, through counsel and without objecting to the procedure followed, filed an exception of no cause and no right of action on September 28, 1977, based on appellant’s illegitimacy. A copy of the exception was mailed to appellant’s counsel along with a cover letter advising him that it would be agreeable to argue the exceptions on the same date that appellant’s rule was made returnable (October 7, 1977). Appellant’s counsel failed to have the rule on the petition for possession placed on the docket for October 7, so no action could be taken on that date.

A dispute exists as to whether opposing counsel came to an understanding on this date that the trial of the rule and argument of the exceptions would be fixed at a future date to be agreed upon. In any event, counsel for Emma Lee Shaw appeared in court and argued the exceptions of no right or cause of action on October 11, 1977, which was the time the exceptions automatically appeared on the docket under the rules of the district court. No appearance was made by appellant’s counsel on this date. A judgment was rendered in open court sustaining the exceptions and rejecting plaintiffs demands. The judgment was signed and filed on October 13.

On October 26, counsel for Emma Lee Shaw filed a petition for possession, and judgment was rendered ex parte on that date sending her into possession of decedent’s estate. An amended judgment to include a description of real property was filed on October 28. On this date, counsel for appellee mailed appellant’s counsel a copy of the judgment of possession and the amended judgment of possession. However, due to plaintiff’s counsel’s change in address, this correspondence was returned with a post mark “address unknown.” On November 10, counsel for appellee again mailed copies of these two judgments and the judgment sustaining the exceptions of no cause and no right of action to a new address of appellant’s counsel. This correspondence was apparently received.

On January 6, 1978, appellant filed a motion to set aside the judgment sustaining the exceptions and the judgment of possession. Appellant’s counsel contends the judgment on the exceptions dismissing appellant’s action and the subsequent judgments sending appellee into possession were improperly obtained in view of his agreement with opposing counsel; and since he did not receive knowledge of the rendition in time to apply for a new trial, the judgments should be set aside.

Appellant’s rule to set the judgments aside was made returnable on January 10, 1978. However, no service, either personal or domiciliary, was made on either appellee or her counsel. The record reveals that appellant’s counsel appeared on the return date, January 10, and that the trial judge refused to grant the relief requested. The previously prepared written judgment bears the notation: “denied W. J. Fleniken, Judge, January 10, 1978.”

The minutes of the trial court reflect that plaintiff moved for and was granted an appeal on January 11, 1978. It is not clear from the record whether appellant intends to appeal from the action taken by the trial court on January 10, 1978, or from the prior judgment of October 13, 1977, sustaining appellee’s exceptions, or of October 26 and October 28, 1977, sending appellee into possession of decedent’s estate. Assuming appellant intended to appeal from all of the prior judgments and the refusal of the trial court to grant the motion to set the judgments aside, the motion to dismiss is well taken and must be sustained. The appeal was not taken within the delays allowed by law in so far as the judgments signed on October 13, 1977, October 26, 1977, and October 28, 1977, are concerned. The delay for taking an appeal on the last of these judgments commenced to run on November 9, 1977. Appellant’s motion for an appeal on January 11, 1978, was therefore not within the sixty-day period for taking a devolutive appeal, and these judgments have become final. La.C.C.P. Arts. 2087, 2974.

There has been no appealable judgment rendered on the motion by appellant to set aside the previous judgments. We interpret the word “denied” over the signature of the judge written on the bottom of the proposed judgment which appears in the record to mean that the trial court refused to consider the matter in the absence of service of the rule on appellee or her attorney. Therefore, the issues raised by this motion are not properly before this court at this time.

For the above reasons, the appeal is dismissed at appellant’s cost.


author: MARVIN, Judge.

text:
    Thomas J. ADAIR, Plaintiff-Appellant, v. Ita Bounds COMPTON, Defendant-Appellee. Thomas J. ADAIR, Plaintiff-Appellant, v. Lizzie Bounds COOK, Defendant-Appellee.
    Nos. 13570, 13571.
    Court of Appeal of Louisiana, Second Circuit.
    June 5, 1978.
    Greene, Ayres & Mayo by James E. Ayres, Shreveport, for plaintiff-appellant.
    Ford E. Stinson, Benton, for defendant-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

Plaintiff appeals from the rejection of his demand for reformation of a deed of mineral royalty to him by the defendant in each of these consolidated cases. For the reasons we assign, we affirm.

Each royalty deed was prepared and mailed with one or more appropriate bank drafts by plaintiff to the defendant-grant- or. Except for the name of grantor and property description, the deeds were identical. Each deed recited:

“The royalty interests and rights herein sold . . . are:

“One-half (V2) of Grantor’s royalty . to be produced from lands above described, . . . ”

Each bank draft recited that it was given for a specified number of net royalty acres in this language:

“[X] net royalty acres in Section 30, Township 22 North Range 11 West, Bossier Parish, Louisiana.”

The drafts do not state the price per acre.

After production was obtained and division orders were circulated, plaintiff learned that each defendant had previously sold one-half of her royalty by a recorded royalty deed and that he or his assigns were being credited with only one-fourth royalty. These suits followed.

Before filing the suits for reformation, plaintiff deeded the whole of his royalty interest, permanently in most part and temporarily in the remaining part to Smack-over Producing Company. This company was not made a party to the suits. The lower court did not reach the merits of the demand for reformation but rejected plaintiff’s demand because plaintiff in each case had “failed to establish the actual ownership of all the mineral royalty in the defendant at the time of the sale.” We shall consider the merits of the evidence in support of the demand.

Plaintiff is experienced in oil and gas transactions. He claims that it was made clear to each defendant that he desired to purchase all of defendant’s royalty rights or 20.5 acres under each defendant’s property for $200 per acre. Plaintiff explained that his only examination of the public records was for the purpose of determining who owned what acreage in the area of plaintiff’s interest.

Defendants are elderly ladies in their seventies. They were generally aware of oil and gas activity in the area and that adjacent landowners and relatives were negotiating in various ways with their respective mineral rights. They denied any discussion with plaintiff or his landman before they received the deeds and drafts by mail. Plaintiff’s brief acknowledges that there “were little or no personal negotiations between the parties prior to the execution of the royalty deeds.”

After the deeds were executed, defendants did have some contact with plaintiff to secure for one defendant a portion of the $4,050 total consideration in cash ($2,000), with the remainder being paid in two bank drafts. The other defendant also requested that her consideration be paid in two drafts. Two drafts were desired by each defendant, dated in separate years, for income tax purposes. Defendants denied plaintiff’s testimony that he dealt with them on the basis of their assertion they owned all of the royalty and that they were receiving $200 per acre. They stated they disregarded the notations on the drafts about a specific number of “net royalty acres” because they did not fully understand the terminology. One of these ladies, who obviously counseled with each other, was released from a hospital only a short time before signing the deed. Indeed it is difficult for us to understand the terminology plaintiff employed in the drafts and in the royalty deed. See portion of deed quoted in footnote one.

The action to reform a contract on grounds of error or mistake is recognized in many Louisiana cases. The error or mistake sought to be corrected or reformed must be shown to have been mutual as to the contracting parties by clear proof of the strongest possible type. Reynaud v. Bullock, 195 La. 86, 196 So. 29 (1940). This is plaintiff’s burden which is “heavier than that in an ordinary civil case.” Bray v. Davis, 236 So.2d 827 (La.App. 2d Cir. 1970).

This burden was met under the circumstances in Evangeline Refining Company v. Nunez, 153 So.2d 886 (La.App. 3rd Cir. 1963).

The burden has not been met under the circumstances here.

At appellants’ cost, judgment in each case is AFFIRMED.

      . “The royalty interests and rights herein sold, . are:
      “One-half (V2) of Grantor’s royalty on oil, gas and other minerals in and under and to be produced from the lands above described, which royalty has been or may hereafter be reserved and retained by Grantor, . in any present or future mineral lease affecting said lands .
      “This sale and transfer is not limited to royalties accruing under any lease presently affecting said lands but the royalty rights granted herein shall remain a charge and burden on the land herein described and binding on any future owners or lessees of said lands. In the event that any present lease should terminate and in the event Grantor, or Grantor’s heirs, successors or assigns acting for themselves, as mineral owners, without the granting of a mineral lease, should develop said lands and produce oil, gas or other minerals therefrom, the royalties to be delivered and/or paid to Grantee hereunder shall be one-fourth (’Ath) of the whole of any oil, gas or other minerals produced from said land by said mineral owner. “Grantor reserves the right to grant future leases affecting the above lands so long as there shall be included therein, the reservation of royalty rights not less than ‘/ath of 8/a ths of the oil, gas and other minerals produced, saved and marketed from said lands under the terms of such future lease and the Grantor further reserves the right to collect and retain all bonuses and rentals paid in connection with any present or future lease.”


author: BOLIN, Judge.

text:
    Henry L. BUTTS et al., Plaintiffs-Appellants, v. Dr. Anna D. CUMMINGS et al., Defendants-Appellees.
    No. 13574.
    Court of Appeal of Louisiana, Second Circuit.
    June 5, 1978.
    Gamm, Greenberg & Kaplan by Jack H. Kaplan, Shreveport, for plaintiffs-appellants.
    Wilkinson, Carmody & Peatross by Arthur R. Carmody, Jr., Shreveport, for defendants-appellees.
    Before BOLIN, PRICE and MARVIN, JJ.
   BOLIN, Judge.

The only issue before us is whether, under the particular facts of this case, the trial court abused its discretion in dismissing with prejudice plaintiffs’ action against a defendant as a sanction for plaintiffs’ failure to comply with a previous court order compelling answers to interrogatories propounded by that defendant. Plaintiffs appeal the trial court’s order of dismissal and we set aside the order and remand.

In December 1975 plaintiffs filed a medical malpractice suit against certain pediatricians, the Sisters of Charity of the Incarnate Word, and their insurers. In March 1976 defendant physicians and their insurer propounded interrogatories to plaintiffs. Answers were not forthcoming until February 1977, and then only after these defendants had obtained an order compelling discovery within twenty days, and had moved to dismiss the action as to them due to plaintiffs’ failure to obey that order. The record shows plaintiffs were living in Florida when they signed these answers.

Defendants Sisters of Charity propounded interrogatories in April 1977, seeking substantially the same information contained in the answers filed in the record two months before. This second set of questions was served on plaintiffs’ counsel by mail. One month later the trial court granted a continuance of all proceedings based on the illness of plaintiffs’ attorney.

On October 5, 1977, the Sisters of Charity moved to compel answers to their interrogatories. Although a copy of this motion was mailed to plaintiffs’ counsel, the record does not reflect plaintiffs or their counsel were notified of the date set for hearing on the motion.

The minutes of the trial court contain the following:

Oct. 17, 1977
Motion to compel answers to interrogatories and to assess cost argued and submitted by counsel for Defendant, only and sustained, and Plaintiff is ordered to pay $150.00 attorney fees.

On November 8, 1977, defendant Sisters of Charity filed a motion asking to be dismissed as a defendant and attaching a certificate from the clerk of court which certified plaintiffs had not responded to their interrogatories. On the same day, the trial court signed an order dismissing with prejudice the Sisters of Charity from the lawsuit. The motion and order of dismissal were personally served on plaintiffs’ counsel the next day.

On January 16, 1978, plaintiffs’ former counsel withdrew; present counsel was enrolled and immediately appealed the November order of dismissal.

Articles 1469-1474 of the Louisiana Code of Civil Procedure provide means for the enforcement of discovery. These provisions grant the trial court the power to compel discovery and the discretion to impose various sanctions on a party or his attorney for unjustified failure to comply with the statutory scheme (Art. 1469) or to obey' an order compelling discovery (Art. 1471).

Since under our discovery provisions the grant of relief against a recalcitrant party rests within the trial judge’s discretion, we will not disturb his imposition of a sanction unless the record shows a clear abuse of this discretion. Employers Overload Co. v. Employers Overload Co., N.O., 266 So.2d 546 (La.App. 4th Cir., 1972).

We hold the sanction imposed by the trial court, i. e., dismissal of a party defendant from the lawsuit, is so harsh under the facts of this case as to constitute an abuse of discretion. We reach this decision after considering the following circumstances: the unanswered set of interrogatories sought information similar to that contained in answers filed of record before the Sisters of Charity moved to compel answers; the lawsuit was continued indefinitely at the time defendant moved for enforcement; any lack of diligence is to be attributed not to plaintiffs, who were residing in another state, but to their former counsel; the record leaves substantial question whether plaintiffs or their former counsel were properly cited and given an “opportunity for hearing” (C.C.P. Art. 1469) before the order compelling answers; neither is there evidence to indicate plaintiffs received notice of the fine imposed and the time limit in which they were ordered to answer.

When a party has been given sufficient notice and opportunity to be heard prior to the imposition of a penalty, the sanction of dismissal or judgment by default may be within the bounds of the trial court’s discretion. See Precision Motors, Inc. v. Beder, 273 So.2d 650 (La.App. 4th Cir., 1972); Hulion v. John Bradshaw Company, 217 So.2d 454 (La.App. 1st Cir., 1968). However, the absence of proper citation and notice to the plaintiffs in this case, along with other mitigating circumstances previously mentioned, leads us to conclude that a penalty other than dismissal of defendant Sisters of Charity would have been proper.

The order dated November 8, 1977, dismissing plaintiffs’ suit as to defendant Sisters of Charity of the Incarnate Word, Shreveport, Louisiana, is set aside and the case is remanded for further proceedings. Costs are to await final determination of the cause.

      . Originally plaintiffs named Schumpert Memorial Hospital as a defendant. Since the hospital was not a legal entity, plaintiffs amended their petition to substitute the Sisters of Charity, a religious association which operates the hospital.

      . Art. 1469.
      A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:
      (1) An application for an order to a party or a deponent who is not a party may be made to the court in which the action is pending.
      (2) If a deponent fails to answer a question propounded or submitted under Articles 1437 or 1448, or a corporation or other entity fails to make a designation under Articles 1442 or 1448, or a party fails to answer an interrogatory submitted under Article 1457, or if a party, in response to a request for inspection submitted under Article 1461, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he applies for an order.
      If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Article 1426.
      (3) For purposes of this Subdivision an evasive or incomplete answer is to be treated as a failure to answer.
      (4) If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
      If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney’s fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
      If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.

      .See note 3 on page 536.

        3. Art. 1471.
      If a party or an officer, director, or managing agent of a party or a person designated under Articles 1442 or 1448 to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under Article 1469 or Article 1464, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
      (1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.
      (2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence.
      (3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.
      (4) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination.
      (5) Where a party has failed to comply with an order under Article 1464, requiring him to produce another for examination, such orders as are listed in Paragraphs (1), (2), and (3) of this Article, unless the party failing to comply shows that he is unable to produce such person for examination.
      In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including- attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.


author: EDWARDS, Judge.

text:
    Lefty CHERAMIE et al. v. Ella Cheramie ARCHER et al. Minor CHERAMIE et al. v. Ella Cheramie ARCHER et al.
    Nos. 12023, 12024.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 1978.

      Maurice J. Serpas, Galliano, for plaintiffs and appellees in Nos. 12023 and 12024.
    Edward T. Diaz, Golden Meadow, for defendants and appellants in No. 12023 and defendants-defendants and appellants Ella Cheramie Archer, Mrs. Abigail Cheramie Davenport in No. 12024.
    Robert D. Morvant, Thibodaux, for defendant, Mónita Barrios Guidry.
    Stanley L. Perry, Galliano, for Pierre Vegas and Evelia C. Vegas, defendants and appellants.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

On March 16, 1977, plaintiffs filed these suits against the numerous defendants, as owners in indivisión of the respective properties in question, to effect a partition by licitation of the properties. Personal service of process was made on each defendant, with the exceptions of Pierre Vegas and Mona Rae Cheramie Chouest who received domiciliary service. Three defendants, Mónita Barrios Guidry, Abigail Chera-mie Davenport and Ella Cheramie Archer (individually and on behalf of the Estate of Loretta Cheramie), filed answers. The remaining defendants did not answer, and preliminary defaults were entered against them.

On May 31, 1977, these consolidated cases were tried on the merits and on confirmation of default. That same day, without taking the matter under advisement, the trial court rendered judgment ordering that the properties be partitioned by licitation and providing inter alia.:

“That the fee of Maurice J. Serpas be and the same is hereby fixed at the sum of five (5) per cent of the gross amount of the sale attributable to the interests of the plaintiffs and the unrepresented defendants, which fee is to be charged to the mass as costs except that the fee shall not be charged to the shares of Mónita Barrios Guidry, Ella C. Archer, individually and as Executrix of the Succession of Loretta Cheramie, and Abigail Cheramie Davenport.”

Notice of judgment was mailed, on June 3, 1977, to all attorneys of record, however, notice was not sent to the unrepresented defendants. No application for a new trial was filed.

On June 30,1977, plaintiffs filed a motion to amend the judgment to exclude from the partition sale a portion of the properties which had been expropriated by the State. Thereafter, the previously unrepresented defendants employed counsel, who filed motions to refix the attorney’s fees awarded in the judgment. On July 8, 1977, the trial court rendered an “amended” judgment, deleting the expropriated properties. The trial court denied defendants’ motion to refix attorney’s fees by judgment rendered on October 17, 1977. A judgment of homolo-gation was rendered on November 18, 1977.

Ten of the defendants obtained an order of appeal on November 22, 1977. Appeal bonds were filed on November 23, 1977.

The defendants state in their petition for appeal that they “desire to appeal suspen-sively from the final judgment rendered in the above entitled and numbered cause.” However, they do not indicate which “final” judgment they are appealing. There are two appealable judgments in this matter: the judgment of partition and the judgment of homologation. An examination of the brief filed in this court by the defendants reveals that the sole issue in contest is the matter of plaintiffs’ attorney’s fees, which were taxed as costs pursuant to LSA--C.C.P. art. 4613 in the judgment of partition.

However, the only judgment of partition which is valid is the one rendered on May 31, 1977; the amended judgments are invalid for the reason that they constitute substantive alterations in the trial court. Such changes can be made by a trial court only pursuant to a timely motion for a new trial. Flack v. Federal Crop Insurance Corporation, 309 So.2d 760 (La.App.3rd Cir. 1975); Houston Oil Field Material Co., Inc. v. Pioneer Oil & Gas Co., Inc., 236 So.2d 536 (La.App. 4th Cir. 1970), writ denied, 256 La. 866, 239 So.2d 363 (1970); Consolidated Credit Corporation of Baton Rouge, Inc. Forkner, 219 So.2d 213 (La.App. 1st Cir. 1969); LSA-C.C.P. art. 1951. The delay for appealing this judgment with respect to all the defendants except Pierre Vegas and Mona Rae Cheramie Chouest, who were entitled to notice of judgment under LSA -C. C.P. art. 1913, commenced on the following day and expired on August 8, 1977. LSA - C.C.P. arts. 1974 and 2087. The judgment taxing plaintiffs’ attorney’s fees as costs was final and determinative after that date. Consequently, the appeal taken by these defendants in November, 1977, was untimely and will be dismissed.

Regarding Pierre Vegas and Mona Rae Cheramie Chouest, who were entitled to notice of judgment and who were not afforded notice, the delay for appealing has not commenced and has not expired. LSA - C.C.P. arts. 1913, 1974 and 2087. Their appeal is therefore timely.

Nonetheless, we find that the appeal of Mona Rae Cheramie Chouest has not been properly perfected, as she has not obtained an order of appeal. LSA- C.C.P. art. 2121. There being no order of appeal contained in the record we must dismiss the purported appeal. Davis v. Funderburk, 274 So.2d 781 (La.App. 3rd Cir. 1973).

The only appeal properly before this court is that of Pierre Vegas.

ON THE MERITS

Plaintiffs’ attorney’s fees were taxed as costs of court pursuant to LSA-C.C.P. art. 4613, which provides:

“When there is no contest of the partition proceeding by any defendant, the court shall allow the attorney for the plaintiff a reasonable fee for his services. Except as provided in the second paragraph of this article, the fee shall be taxed as costs of court and paid out of the mass of the funds or the property partitioned, or the proceeds of the latter if sold.
“No portion of the fee may be paid out of the share of any party represented in the proceeding by an attorney, whether appointed by the court or selected by the party.”

Counsel for appellant argues that the phrase “no contest of the partition proceeding by any defendant” should be interpreted in a multi-defendant situation, such as the instant case, to prevent the assessing and taxing of plaintiffs’ attorney’s fees if any one, but less than all, of the defendants contests the partition.

Such an interpretation would render the second paragraph of the Article nugatory. The better view of the Article commands that plaintiffs’ attorney’s fees may be taxed against any of the numerous defendants who do not contest the proceeding. Appellant, Pierre Vegas, falls into this category and was properly taxed with a portion of the attorney’s fees under Article 4613.

For the above reasons, the appeals of all the defendants, except Pierre Vegas, are dismissed.

Further, the judgment of the trial court is affirmed insofar as it taxed plaintiffs’ attorney’s fees against the share of the proceeds of the partition belonging to Pierre Vegas.

Costs of this appeal are to be paid by appellants.

AFFIRMED.


author: LANDRY, Judge.

text:
    In the Matter of the Succession of Lorraine Roberts KERR.
    No. 11993.
    Court of Appeal of Louisiana, First Circuit.
    June 12, 1978.
    William R. Weatherford, Baton Rouge, of counsel, for plaintiff-appellant Sara Roberts Fryoux.
    Victor A. Sachse, Jr., Baton Rouge, of counsel, for defendant-appellee, Fidelity National Bank.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

The heirs (brothers and sisters) of Lorraine Roberts Kerr (Decedent), appeal from judgment decreeing valid a testamentary trust established by Decedent’s olographic will, confirming Fidelity National Bank of Baton Rouge as Trustee and confirming Decedent’s sister, Sara Fryoux, as provisional administratrix of Decedent’s estate. We affirm.

The sole issue presented is whether Decedent established a testamentary trust by her will or whether the testament attempted to modify or terminate a prior inter vivos trust contrary to the provisions of La.R.S. 9:2051.

The testament, which is stipulated to be valid in form, provides as follows:

“ Baton Rouge La.
Oct. 25,1976.
3/8/77
This is my last will and Testament. Naming Fidelity National Bank as Trustee of my estate. I would like my trust fund irrevocable. My house, car and .anything of value to be sold and the proceeds deposited to the trust. Savings certificate at Baton Rouge Savings and Loan when it matures will also go into the Trust. Brother Emory A. Roberts, Dolores Jones, to share the earnings equally, by year Dec. 31.
My rings I valued about $6,000 and one at $1,000.
March 11, 1977 — Adjusted
S/ M. Lorraine R. Kerr
S/ Maeta L. Roberts Kerr”

Prior to executing the aforesaid testament, Decedent, on July 30, 1974, established an inter vivos trust. It is stipulated that this inter vivos trust was valid and it is also stipulated that it contained the following pertinent terms and provisions: Decedent named herself as both income and principal beneficiary; Fidelity National Bank (Appellee) was named Trustee; the corpus consisted principally of shares of stock in several corporations; the trust was revocable by Settlor at any time and, if not revoked previously, was made revocable on Settlor’s death; and, Trustee was required to distribute the corpus to Settlor’s heirs if the trust were terminated by Settlor’s death.

In addition to stipulating the validity of Decedent’s olographic will, it is also stipulated that Decedent “had deleted the names of Doska Eaves and Ella R. Jones by striking through them and putting in the margin ‘3/8/77’ and added above her signature ‘March 11, 1977 — adjusted M. Lorraine R. Kerr.’ ”

There can be no question but that a valid olographic will may be the instrument for creation of a testamentary trust.

La.R.S. 9:1751 provides:

“A testamentary trust may be created only in one of the forms described by the laws regulating donations mortis causa.”

Conceding Decedent’s testament to be an olographic will valid as to form, Appellants maintain, nevertheless, that the testament does not establish a testamentary trust but is rather an ineffective attempt to modify, terminate or revoke the prior inter vivos trust. More particularly, Appellants contend that the will does not conform to the rules governing modification, termination and revocation of trusts as set forth in La.R.S. 9:2051, which states:

“A modification, termination, or revocation of a trust by the settlor, or a modification or termination by the person to whom the right has been delegated shall be by authentic act or by act under private signature executed in the presence of two witnesses and duly acknowledged by the settlor or by the person to whom the right to modify or to terminate has been delegated or by the affidavit of one of the attesting witnesses. Modification, termination, or revocation is not effective as to the trustee until a copy of the authentic act or a copy of the acknowledged act is received by him.”

We find nothing in the language of Section 2051 indicative of intent to alter the requirements of form applicable to creation of a testamentary trust. We note the comment to R.S. 9:2051, which states that the formalities governing modification, termination, or revocation of trusts are the same as those imposed by La.R.S. 9:1752 respecting creation of inter vivos trusts and the alienation or encumbrance of a beneficiary interest.

We find that the trial court properly rejected Appellants’ contention that the testament sought merely to modify, terminate or revoke the prior inter vivos trust. We so find because the inter vivos trust, by its own provisions, terminated upon Decedent’s death. We agree with the trial court’s determination that the language in Decedent’s will established an entirely new testamentary trust whose terms differ greatly from those of the former inter vivos trust. In her testament, Decedent placed all of her assets in trust, whereas the inter vivos trust included only certain stocks. Additionally, we find that the language employed in the testament meets the requirements of La. R.S. 9:1753 concerning the terminology required to indicate intent to create a trust as follows:

“No particular language is required to create a trust, but it must clearly appear that the creation of a trust is intended. A trust instrument shall be given an interpretation that will sustain the effectiveness of its provisions if the trust instrument is susceptible of such an interpretation.”

The rule of interpretation applicable in cases of this nature is that the courts should construe a trust instrument to sustain the validity of the trust if such a construction is reasonable in view of the language appearing therein. Achille Guibet v. St. Amant, 253 La. 243, 217 So.2d 385 (1968).

In this instance, the language of the trust instrument is clearly to the effect that testatrix intended to create a testamentary trust.

The judgment of the trial court is affirmed, Appellants to pay all costs incident to this matter both in the trial court and on appeal.

Affirmed.


author: BOUTALL, Judge.

text:
    Mrs. Bertha M. Lalonde, w/o and Doris J. LALONDE v. Gavin E. WEAVER, Highlines Construction Company and Employers Mutual Liability Ins. Co. of Wisconsin.
    No. 8936.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Rehearings Denied July 26, 1978.

      Lawrence D. Wiedemann, Wiedemann & Fransen, New Orleans, for Gavin E. Weaver, et al., defendants-appellants.
    James C. Cockfield, Cockfield & Gravolet, New Orleans, for Mrs. Bertha M. Lalonde, w/o and Doris J. Lalonde, plaintiffs-appel-lees.
    Before BOUTALL, SCHOTT and GAR-SAUD, JJ.
   BOUTALL, Judge.

Doris J. Lalonde and his wife Bertha Lalonde sue for personal injuries and damages as a result of an automobile collision. The trial court rendered judgment in their favor, and the defendants have appealed. They have answered the appeal seeking an increase in judgment.

On September 4, 1972 at shortly after 8:00 P.M., Doris J. Lalonde was operating his automobile on Louisiana Highway 23 in Plaquemines Parish, travelling north towards New Orleans. His wife Bertha accompanied him as guest passenger. At that same time Gavin E. Weaver was operating an El Camino Chevrolet owned by his employer, Highlines Construction Company and used in the scope of that employment. He was also travelling north and came upon plaintiff’s vehicle from the rear and collided with it. The cause of the collision is at issue.

The testimony of plaintiffs is that they were proceeding in a northerly direction on the highway at a speed of about 45 miles an hour, when they were run into from the rear by defendant’s automobile in a rather violent fashion, throwing their automobile off of the highway, causing it to spin around and come to rest against a telephone post alongside the highway. The defendant disputes that they were travelling in this fashion, but testifies that they were stopped or nearly stopped in the roadway at an angle towards the right with the front of the car actually off of the paved portion of the road. It is contended that plaintiff driver was in the process of making a “U” turn in the roadway to retrace his path, and that this was the cause of the collision. Defendant testified that he was going approximately 55 miles an hour (the speed limit was 60 at that time) and that he saw the vehicle 100 feet or so ahead, and was unable to avoid the collision, although attempting to slow down and turn to the left. His testimony is supported in general by the two passengers accompanying him.

The issue of liability thus presented was necessarily resolved by the trial court in a determination of the credibility of the witnesses. The testimony is in direct conflict. We reach the same result as the trial judge, and we conclude that the record supports that result.

Photographs of the Lalonde vehicle were placed in evidence showing the damages sustained by that vehicle. Except for the side of the vehicle where it struck the telephone post, the damage is on the rear, most heavily toward the left side. These damages corroborate the explanation given by plaintiffs, and is at variance with the theory of the Lalonde car being at an angle to the right. Additionally, the investigating officer testified concerning his findings in the case, and the physical facts as expressed by him, that is the point of collision, a lack of skid marks, and relative positions of the vehicles after the collision, all tend to reinforce plaintiffs’ testimony.

It is also noted that as a result of the collision, the officer caused Weaver to be charged with driving while intoxicated and negligent injuring, to which charges Weaver pleaded guilty. The officer testified that when he took Weaver to the hospital he noticed an odor of alcohol about him, and an intoximeter test was performed by another officer. The results of that test showed a .20 reading on the scale. Weaver concedes that hg had had four bourbon and water highballs shortly before the accident, but contends that this had no effect upon him. His companions corroborate this testimony, pointing out that they simply relaxed for an hour or so after being required to work this particular Labor Day. However, we note that Weaver only saw the Lalonde vehicle when he was 100 feet away, when there was no impediment to his view on the highway in front of him except the darkness of the evening. His fellow passengers testified that he did not begin to slow until after one of them, Nata, yelled that there was a car in the road ahead of them. Considering these circumstances, together with the other facts discussed above, we conclude that the collision was attributable to the negligence of Weaver, and the defendants are liable for plaintiffs’ damages.

DAMAGES OF MR. DORIS LALONDE

The trial judge awarded the following-amounts to Mr. Lalonde.

1. Medical and Drug Bills for both Mr. and Mrs. Lalonde $4,730.59
2. Future Medical and Drug Bills 7,638.40
3. Property Damage 100.00
4. Loss of Past Wages 23,332.07
5. Loss of Future Wages 38,547.78
6. Cervical Strain 750.00
7. Lumbo Sacral Strain 5,000.00
8. Hernia 2,500.00
9. Permanent Disability to Right Leg 20,000.00
10. Conversion Reaction 25,000.00 for a total of $127,598.84.

Recounting the facts of the accident, the Lalonde vehicle was struck from the rear, knocking it off the road, swinging it around 180° into a utility pole. The force of the collision was such that the front seat broke and plaintiffs were jolted backwards, then forwards again when the vehicle hit the utility pole. Mr. Lalonde complained of blows and injury to his neck, back, abdomen and leg. Mr. Lalonde was taken to the Plaquemines Parish General Hospital for examination, and was released with instructions to seek orthopedic treatment. The next day he went to Ochsner Foundation Hospital where he was examined for possible treatment. However he testified that he did not have much faith in Ochsner Foundation and instead was treated by Dr. Vernon Kroll, whom he first saw on September 14. Dr. Kroll treated him for a period of over 2 years.

In the initial examination, Dr. Kroll determined that Mr. Lalonde had suffered a cervical strain and a lumbo-sacral strain and diagnosed a right inguinal hernia. Appellant makes no serious issue as to the cervical and lumbo-sacral strain, but argues that the hernia was a developmental condition and not caused by the accident. Dr. Kroll agreed that such a hernia could be caused either by trauma or by repeated inter-abdominal pressure over a period of time, and that the past history of the patient would be a determinative factor as to the occurrence of the hernia. He was given no prior history relating to hernia by Mr. Lalonde, and the evidence preponderates that there was none. The doctor concluded that the trauma (Mr. Lalonde testified that when the seat was flipped back up he struck his stomach on the steering wheel) either caused the hernia or aggravated a pre-existing weakened condition into the patently symptomatic condition he discovered. Accordingly, we would affirm the award for the cervical strain, lumbo-sacral strain and hernia.

The course of treatment of Mr. Lalonde is not the usual one. Dr. Kroll noted that by December 28, 1972, the cervical area was symptom free and needed no further treatment, but that the lumbar-sacral sprain was still giving problems and necessitated further treatment. The pain was resolving however, and it seemed to Dr. Kroll that after the plaintiff had undergone surgery for the inguinal hernia, that most of the back complaints were resolved by March 1973 and he was considering the discharge of the patient. However the patient returned to his office with peculiar complaints which he really didn’t have before. Dr. Kroll noted that he was now limping and complaining of pain and that he could find no basis for the complaints. Mr. Lal-onde was referred to Dr. Jack Wickstrom, an orthopedist, and to Dr. Lindsay Graham, a psychiatrist, for consultation in regard to these complaints. None of the doctors could find any physical basis for Lalonde’s complaints, and it was noted that the leg presented a case of hypalthesia, or stocking anesthesia, and that Lalonde’s entire spine listed to the left, all indicating a conversion reaction and the necessity for psychiatric treatment.

The basic treatment for Mr. Lal-onde’s condition after June 1973 was in the nature of psychiatric or psychological treatment, and it was determined that not only did he have a conversion neurosis, but that additionally he suffered a depressive reaction which encompassed a complete change in his lifestyle, making him become withdrawn and suffering from a sense of general loss and hopelessness. All of the medical testimony is in agreement with the tragic effect that this accident has had upon Mr. Lalonde’s living situation. A number of experts were produced who examined Mr. Lalonde for his condition and who recommended various forms of therapy. The evidence preponderates that his present condition was brought on by the accident and the resulting injuries. Under these circumstances he is entitled to an award for his suffering and disability.

In considering that aspect of damages, the court awarded $20,000 for permanent disability to the right leg and $25,000 for a conversion reaction. It is argued to us that the award is not based upon proper medical foundation, but, as noted above, we conclude otherwise. It is next argued that the award for permanent disability to the right leg is included within the award for a conversion reaction since it is one of the results of the conversion reaction. This proposition causes us some concern because, although the trial judge made specific awards, he did not give any reasons to support those awards. The doctors point out there was a difference between the conversion reaction and the depressive reaction, and that the conversion reaction encompassed such results as the hypalthesia of the leg, while the depressive reaction encompassed his lifestyle. Plaintiff makes this point to us in arguing that the trial judge failed to award anything for the depression, although he made an award for depression of a less severe nature to Mrs. Lalonde. The evidence is clear that the only disability to Mr. Lalonde’s right leg is that resulting from the conversion reaction. Thus we are faced with a possibility that the trial judge erred in considering the leg disability and the conversion reaction to be separate. On the other hand, considering the evidence of the difference between the conversion reaction and the depressive reaction, we are faced with the possibility that the trial judge erred in not making an award for the depressive reaction. Faced with this, we have considered the appropriateness of a remand to the trial court to ascertain the precise basis upon which he made the award so we could determine if error is present. We have rejected that solution, because the appeal to us is on fact as well as law, and all of the evidence is in the record for us to make a determination as to the extent of damages suffered by this plaintiff.

We are required to abide by the “much discretion” rule set out in Louisiana Civil Code Article 1934(3) which accords much discretion to the trial judge in fixing the amount of general damages. We choose to consider these two awards, of $20,000 and $25,000, to be one general award of $45,000 for the neuroses suffered and the physical effects resulting and to determine if that award falls within the much discretion rule. The medical evidence preponderates that although there is no physical basis for Mr. Lalonde’s suffering and pain, that nevertheless it is real to him and he does experience it just as if it were physically motivated. Additionally he has suffered a complete change in lifestyle, he is disabled from work, and suffers from a general feeling of loss and futility, withdrawing himself from society and the pursuits he formerly enjoyed. He has been taking therapy over a long period to alleviate his situation, which necessitated at trial time, treatment 5 days per week at a daycare center. The doctors express doubt that he will ever be cured and be able to resume his former level of either physical, mental or social activity. We believe the award of $45,000 to be within the discretion of the court and are not able to say that it is manifestly too high or too low.

At this time we point out that the awards for past medical and drug bills and future medical bills are justified by the record. These items have been objected to mainly on the basis of inclusion of those applicable to the inguinal hernia and the conversion reaction and depressive reaction discussed above. Since we conclude that these are properly attributable to the accident we affirm those awards.

The remaining issue as to Mr. Lal-onde’s damages are the awards for past wages and future wages. Initially, we conclude that Mr. Lalonde was disabled from working from the time of the accident and continues to be disabled for the future. By the time that he had recovered from the physical effects of the accident, that is the cervical strain, lumbo-sacral strain and hernia, he began suffering from the emotional effects of the accident, and was considered disabled by the preponderance of medical opinion.

Mr. Lalonde was born October 11, 1913, and the pertinent trial date was March 17, 1976, at which time the testimony of Dr. Melville Z. Woolfson, an economist, was taken. Dr. Woolfson determined the net annual earnings of plaintiff to be $6,587.91, or $548.99 per month during the year 1972. On that basis, he computed the loss of net earnings over the past 42V2 months prior to trial to be $23,332.07. He further computed a future loss of net earnings of $38,547.78 based on the work life expectancy of 6.4 years of Mr. Lalonde, plus a 6% growth factor and minus a 5% discount. He computed several alternate propositions, but this is the one that was accepted by the trial judge and awarded to plaintiff.

There is no contradictory evidence disputing these figures. Instead it is argued that as a legal matter the worklife expectancy would only be three years, ending at age 65, instead of the 6.4 years used by Dr. Woolf - son. However, the proof in this case shows that this man has led an active work life throughout his adult years, and had been holding two positions during a large part of that time. At the time of the accident he was working for his son in a supermarket, and testified it was his intention to work there for the rest of his life provided he could do so. The economist computed that his life expectancy was 14.9 years, but considered that his effective work life would only be 6.4 years. Based on these facts, we agree with the trial judge’s acceptance of his conclusion. Similarly, we point out that no evidence is presented to show that a 6% growth factor and a 5% discount are not reasonable under the circumstances. No one can determine these figures with preciseness, and although on other occasions the appellate courts may have accepted other figures, the evidence in this case shows the figures to be reasonable.

THE AWARD OF DAMAGES TO MRS. BERTHA LALONDE

The trial court awarded the following damages to Mrs. Bertha Lalonde:

1. Cervical Strain $7,500.00
2. Lumbo Sacral Strain 7,500.00
3. Disability to body as a whole, including the knee 30,000.00
4. Depression 10,000.00

for a total of FIFTY-FIVE THOUSAND AND NO/100 ($55,000.00) DOLLARS.

Appellants contest this award of damages contending that it is excessive, that the various items of the award are repetitious and should be included in the one award for disability as a whole, and that the depression is not causally related to the accident.

As a result of the collision, Mrs. Lalonde was thrown backwards and forwards in the automobile, and was taken to the Plaque-mines Parish General Hospital complaining of injuries to her neck and shoulder, lower back, and right leg. The next day she accompanied her husband to Ochsner Foundation Hospital where she was examined and a course of treatment recommended. She then sought the services of Dr. Vernon R. Kroll and began a history of long and intensive treatment. Following his initial examination of September 14, 1972, Dr. Kroll diagnosed Mrs. Lalonde’s injuries as cervical strain, lumbo-sacral strain and contusions, abrasions and lacerations of the right knee. He also noted that Mrs. Lalonde was suffering from pulmonary congestion, the cause of which was not related to the accident, but which caused complications in treating the strains. Dr. Kroll placed her on a regime of conservative treatment and physiotherapy, advising her to continue wearing the cervical collar recommended by Ochsner. He noted that Mrs. Lalonde had degenerative disease in the area of the 5th cervical vertabra, minor spurring in the lumbar region, and minimal spurring in the area of the right knee. He also determined that there was spasm of both trapezial muscles and the paraspinus musculature in the cervical area, and that there was some spasm of the paraspinus muscles in the lumbar area. His conclusion was that although she had had some degenerative disease in her spine, that the cause of the severe symptoms that he discovered was the collision.

During the course of the treatment by Dr. Kroll Mrs. Lalonde began to improve, but only slowly, and Dr. Kroll was concerned particularly with the cervical area because the persistent pulmonary condition caused coughing which in turn caused aggravation of that area and continued pain. In any event towards the end of December she began to improve more rapidly, but still continued to have pain and symptoms during the months of January through March. At that time he determined that she should be hospitalized in an attempt to afford her hospital traction treatment, and to make an effort to determine the cause of her continued pain and a probable course of treatment. She was hospitalized from April 27 to May 11, 1973 by Dr. Kroll in consultation with Drs. Saer and Richardson. All of them concluded that her cervical condition would not be helped by surgery, and decided to continue conservative treatment. She was then given a surgical traction device to use at home and a lumbo-sacral back support, together with advice on medication. At this time she improved somewhat from her original injury, but the doctors concluded it was uncertain how long she would continue to have symptoms. Dr. Kroll saw her again in July, 1973, at which time she continued to complain of pain in her neck and back. It must also be noted that in September, 1973 she was examined by Dr. Jack Wickstrom who determined that she still had some spasm in the cervical region and restriction of motion, together with tenderness along her lumbo-sacral area. He determined that these were the residuals of the cervical and lumbo-sacral spinal strains which she suffered in the accident. He particularly examined her right knee and found some crepitus and chondromala-cia. Dr. Wickstrom assigned a 20 to 25% disability of the neck, 10% disability of the back and 20% disability of the knee. He concluded that she suffered 30% disability to the body as a whole, plus 20% disability to the knee.

However, Mrs. Lalonde still continued to have complaints despite the treatment afforded her, and Dr. Kroll eventually came to the conclusion that she had basically recovered to large degree from her physical injuries, but that her strong emotional overlay caused continued problems which made it difficult to treat. She was then referred for psychiatric examination and treatment by Dr. Graham.

Dr. Graham examined her in April, 1975 and was most impressed by her general feeling of depression and hopelessness. He determined that she was suffering from a depressive reaction, neurotic type, which was precipitated by the accident, and he felt that there was a chance she could respond to hospitalization for a month or so or perhaps could reach resolution of her problems by attending a social worker for a couple of months. He referred her to a psychologist and also to the social worker but was unable to resolve her problems. Shortly thereafter she was attended by Dr. Marvin Miller, who was also attending her husband. He noted that she had physical complaints of pain yet, but that mainly she was suffering from a depressive reaction resulting in such things as insomnia, inability to attend to her usual household duties, and suffered chronic annoyed malcontentment. He concluded that her situation was such as to render her disabled from attending her household work and other duties and that she needed regular, consistent treatment over a long period in order to resolve her problems. The conclusions of these doctors are reinforced by the testimonies of others to whom they were referred. We conclude that she did indeed suffer a neurosis as a result of the accident and she is entitled to damages in compensation thereof.

Applying our findings to the judgment awarded Mrs. Lalonde, we conclude that she is entitled to recovery for her physical pain and suffering as well as her neurosis. The trial judge gave her an award in four categories as mentioned above, and our examination of the record causes us to conclude that he erred in duplicating some of the awards. We note that he awarded an amount of $7,500 for cervical strain, $7,500 for lumbo-sacral strain, and $30,000 for disability to the body as a whole, including the knee. As we understand the evidence, we believe the disability to the body as a whole to include not only the knee but also the cervical strain and lumbo-sacral strain. We refer for example to the summation of Dr. Jack Wickstrom who concisely summed up his opinion that the neck and back injuries constituted a 30% disability of the body as a whole, along with a 20% disability of the knee. We conclude that the individual awards for the strain and the disability of the body as a whole are indistinguishable and duplicatory, and that the awards of $7,500 each for the cervical strain and the lumbo-sacral strain should be eliminated and the total award reduced accordingly. See Kogos v. Rittiner, 228 So.2d 62 (La.App. 4th Cir. 1969).

Insofar as the award for $10,000 for the depression neurosis, having found that it was caused by the accident and is a compensable item of damages, we cannot find the amount of that award exceeds the much discretion awarded to the trial court.

DECREE

For the reasons above assigned, the judgment in favor of Doris Lalonde is affirmed. The judgment in favor of Bertha Lalonde is amended to delete therefrom the amount of $15,000 for cervical strain and lumbo-sacral strain, reducing the total award to the sum of $40,000, and as thus amended the judgment is affirmed.

AMENDED AND AFFIRMED.


text:
    Lewis T. BLAND v. GOVERNMENT EMPLOYEES INSURANCE COMPANY et al.
    No. 8966.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Rehearing Denied July 26, 1978.

      Reed, Reed & D’Antonio, Bruce G. Reed, J. D., Metairie, counsel for Lewis T. Bland, plaintiff-appellee.
    John I. Hulse, IV, of Hammett, Leake, Hammett, Hulse & Nelson, New Orleans, counsel for Government Emp. Ins. Co. and Adrian Panquerne, defendants-appellants.
    Before GULOTTA, STOULIG and BOU-TALL, JJ.
   BOUTALL, Judge.

The appeal in this suit for personal injuries and damages comes before us on procedural issues of remittitur under C.C.P. Article 1813, as well as issues of liability and quantum on the merits. The case was tried before a jury which gave verdict in favor of plaintiff Lewis T. Bland in the sum of $28,-000. After lengthy and complex legal proceedings, the trial judge granted remittitur reforming the judgment to $7,500. The defendant has appealed and the plaintiff has answered the appeal.

At the outset it is necessary to consider the procedural posture of this case because there is a serious issue before us as to whether this appeal should be entertained on the merits or remanded to the district court for a new trial. The judgment of remittitur is not in conformity with C.C.P. Article 1813 and did not offer the alternative of a new trial as therein provided. See for example Lynch v. Derryberry, 341 So.2d 902 (La.1977) reversing the judgment of the Court of Appeal reported in 339 So.2d 507, and remanding to the trial court for compliance with C.C.P. Article 1813. However, we believe that our case may be distinguished from that case, and it is necessary to consider the involved procedural matters that led up to its present appearance in this court.

After trial the jury found the verdict in favor of plaintiff Bland for $28,000 on the 27th day of November, 1974. That same day the court rendered a judgment in accordance with the jury verdict. Within the delay period for a new trial the defendants filed a motion for remittitur of judgment and alternatively a motion for a new trial, praying for remittitur to the sum of $3,500 plus all proved special damages and court costs. The trial judge granted a new trial. Plaintiff then sought to appeal from this decision and the court denied the appeal stating its reasons. The court said that there was no remittitur and the new trial was granted because of the excessiveness of the award, that far too much weight was apparently given to the testimony of Dr. Blaise Salatich by the jury and their award was excessive. The court then noted that this was an appeal only from a judgment granting a new trial which was not an appealable judgment. However, the plaintiff shortly thereafter filed another petition for a devolutive appeal and for some reason the devolutive appeal was granted on February 20, 1975. The defendant countered with a motion to dismiss the appeal, and this court in a per curiam decision on April 15, 1976 dismissed the appeal.

After unsuccessfully applying to the Supreme Court for writs from dismissal of his appeal, the plaintiff then on November 15, 1976 filed a motion for reconsideration of the interlocutory order by reason of change of circumstance. In this motion the plaintiff alleged that Dr. Salatich, who was the treating physician of plaintiff, had since the trial become permanently disabled from the practice of medicine and is completely prohibited by his own physician from testifying concerning any former patients. He prayed that the order of new trial previously granted be recalled and the defendant’s motion for remittitur or alternatively new trial be reconsidered. The trial judge granted plaintiff’s motion, and the resulting judgment granting remittitur and reforming the verdict of the jury and the prior judgment to the sum of $7,500 is the subject of the present appeal.

We present herewith the pertinent reasons for judgment of the trial judge which offers a full explanation for his judgment and the basis upon which it was rendered.

“Now, the plaintiff this time has asked for a reconsideration of the Court’s order ordering a new trial and suggests that remittitur be again considered. This Court does not know of any precedent which would either permit or deny the plaintiff’s motion for a reconsideration of the remittitur or new trial order.
“The Court had previously suggested that remittitur be considered, because the Court was of the opinion that the jury verdict was excessive and because the jury placed too great weight on the testimony of Dr. Blaise Salatich. It has developed since the trial that Dr. Salatich is himself seriously ill, and cannot appear to testify again. It is apparent that if a second jury trial was had, the same evidence would be presented, and in this regard, the testimony of Dr. Salatich at the original trial would be considered perpetuated and merely read to the jury.
“In the interest of justice, obviating the necessity for a second jury trial, with the testimony of all witnesses already taken and transcribed, which can be reviewed by appellate courts, and since the law looks favorably upon ultimate disposition of cases and upon settlement or remittitur, and finally since both parties at one stage of the proceedings or another have asked for remittitur, this Court has decided to grant the plaintiff’s motion for remittitur.
“The Court is of the opinion that remit-titur is in order, and will grant same, reforming the jury’s verdict and its prior judgment thereon to read judgment in favor of the plaintiff and against the defendants in the sum of $7,500.00 with legal interest from judicial demand until paid and for all costs. In other words, the jury’s verdict and the Court’s judgment thereon are reformed to the extent of reducing the principal thereof from $28,000.00 to $7,500.00.
“In their respective motions for remit-titur, neither party has suggested a figure to which this judgment should be reduced. The Court, in exercise of its discretion, with full knowledge of all that has transpired in this case and having presided over the jury trial itself, has reduced the judgment as indicated above to $7,500.00.”

Basically C.C.P. Article 1813 gives a clear picture of remittitur and its application in the trial court. The court indicates the amount of remittitur and the time granted for consent. If no consent is granted, the judge orders a new trial. The judgment on defendant’s motion seems to be correct in form. However the judgment on reconsideration did not follow this format and simply reformed the judgment without the consent of either party and without ordering new trial for the stated reasons.

It is apparent that the judgment appealed from has not complied with the procedures stated in Art. 1813. The Supreme Court of Louisiana in the case of Miller v. Chicago Insurance Company, 320 So.2d 134 (La.1975) has offered a detailed commentary on the application of that law, and has attempted to rectify the considerable appellate confusion as to the application to appellate review. Although the judgment does not comply with the guide lines laid down, nevertheless, we feel that we must consider this matter on its merits and bring final resolution to this dispute between the parties tried some three had a half years ago.

As the trial judge points out, the main basis for his belief that the jury verdict was excessive was because of the testimony of Dr. Salatich, who cannot testify on a second trial, and yet, whose testimony is vital to a consideration of plaintiff’s injuries. Any new trial could only result in the use of his transcribed testimony being read to the new trier of fact, and since the Constitution of Louisiana provides us with authority to review both law and fact, we think that the same goal of avoidance of delay espoused by C.C.P. Article .1813 requires us to consider the merits of this case now, rather .than remand for new trial.

We now pass to a consideration of the issue of liability. Appellants contest the finding of liability on its driver on the basis of a sudden emergency not his fault and the contributory negligence of the plaintiff driver. The collision between the automobiles took place on a wet, rainy morning in the City of New Orleans at the intersection of Carondelet Street and Louisiana Avenue, which is controlled by electric semaphore signals. Plaintiff was proceeding on Carondelet Street in a downtown direction parallel to the river with cars in front and behind, all proceeding across the intersection on the green light. The defendant was driving on Louisiana Avenue proceeding in the direction of the river, perpendicular to plaintiff and ran into the left rear quarter panel of plaintiff’s automobile. Defendant concedes he had the red light, but seeks to excuse himself from the accident by testifying that as he sought to apply his foot brakes to stop in obedience to that signal, the brakes unexpectedly failed to work and he could not stop in time to avoid the accident. However, the investigating police officer reported that the defendant driver had told him that he had been having trouble with his brakes for several days and had added extra brake fluid to make the brakes operable. This was corroborated by plaintiff, who testified that he heard the defendant make the statement to the police officer. Although the defendant denies making such a statement, he concedes that the police officer did make a test on the brakes in his car and found the brake pedals went nearly to the floorboard. Accordingly, his defense of sudden emergency, if it was available to him in this case, has been disproven by the evidence.

Concerning the issue of contributory negligence, defendant contends that plaintiff should have somehow, been able to avoid the accident and suggested speeding up, turning, etc. The record lends no support whatsoever to any of the hypotheses advanced by defendant, and we see no need to discuss this matter in detail. The plea has no basis in fact.

ON THE ISSUE OF QUANTUM

The issue of quantum is necessarily bound up with the first issue discussed, the remittitur. As noted above, although there are some problems with the judgment of remittitur, basically it stands as a judgment of remittitur and the award was $7,500. Both plaintiff and defendant rejected the amount of the award and the defendant has appealed. In accordance with the principles set forth in Miller v. Chicago Insurance Company, supra, the review is therefore limited to the final judgment of the court reflecting the remittitur to determine if that award is within the “much discretion” contemplated by C.C. 1934. The plaintiff has answered the appeal asking for an increase in the award, and that issue is also under consideration before us in accordance with Miller, approving a prior decision of this circuit in Spizer v. Dixie Brewing Company, 210 So.2d 528 (La.App. 4th Cir. 1968).

At the time of the collision, plaintiff Bland made no complaints of injury. It was not until later that night while at work at the U.S. Public Health Service Hospital as a boiler mechanic, that Bland began feeling the results of the collision. He began noting pain in his neck and low back generally, which became more severe as the night wore on. The next day he consulted an attorney, who referred him to Dr. Blaise Salatich for examination and treatment. Bland contends it was five or six days post accident that he first saw Dr. Salatich, although Dr. Salatich testified that he was seen the day after the accident. Dr. Sala-tich’s physical examination showed muscle spasms in the neck with complaints of pain, limitation of motion and tenderness, and found some limitation of motion in the lower back and noted some tenderness there. He diagnosed a “traumatic whip lash” to the neck with stretching and tearing of ligaments and muscles and possible hemorrhage, and diagnosed a similar but less severe condition in the low back. X-ray examinations by a Radiologist, Dr. Hopkins, showed some asymmetry and flattening of the curvature of the neck, but noted nothing remarkable in the low back. Subsequent x-rays were interpreted to the same effect but to a lesser degree.

Plaintiff embarked upon .a course of treatment with Dr. Salatich until April 22, 1972, a period of a month and a half, which consisted of physical therapy, hot showers and baths at home, restriction of physical activity, and aspirin for the relief of pain. Dr. Salatich related that he did not consider that the plaintiff had been cured or rendered symptom free at the time of his last treatment, but that this man was required to work for a living, preventing his return for further treatment.

For whatever reason, the plaintiff received no further treatment for his injuries, but continued to work as a boiler mechanic for the Public Health Service Hospital and suffered no loss of time from his job. He does insist that he was prevented from doing his work completely and that it was only through the grace of co-workers that he was able to keep up with his job. He still complains of pains in his neck rather constantly, some days being much worse than others, and of pain on occasions in his lower back when his activities are much greater. In support of his continued pain and disability, he offered the testimony of several lay witnesses to show restriction of his social activities and a change in personality from a good natured happy individual to an irritable one. He contends he is entitled to not less than the award made by the jury of $28,000, and insists that his pain and suffering justifies an even greater award.

In opposition to this evidence, the defendant showed that the plaintiff has never lost any time off from work, and that even though his job consisted of occasionally lifting weights of 100 pounds or more, and was sometimes very strenuous in the maintenance of boilers, he has been able to do that work continuously. Defendant has produced an orthopedic surgeon, Dr. Hyman Sobo-loff, who testified that his examination of plaintiff showed no objective signs of injury, and who upon examination of the x-rays produced by plaintiff, explained that the asymmetry demonstrated in the later x-rays was probably due to mispositioning of plaintiff’s head during the x-ray process. At this time we should note that the interpretation of these x-rays is not based upon precise measurements, but to a large degree upon judgment calls by the examiner based upon his experience and expertise. However, we note that plaintiff was also examined by Dr. Thomas Oelsner, a specialist in internal medicine, who not only examined plaintiff for hemorrhoids which later developed and were alleged to be traumatically caused by the accident, but also performed a complete medical examination of the neck and back. Dr. Oelsner testified that Bland demonstrated on his examination a full range of motion in the neck and back and exhibited no pain or discomfort in those areas.

Corroborating the findings of these doctors, we further note that plaintiff underwent several annual physical checkups at the U.S. Public Health Service Hospital in connection with his job, and was also admitted to the hospital for treatment as a patient for burns suffered to his arm. At no time did any of these examinations ever disclose any problems with plaintiffs neck or back, and plaintiff informs us that he made no reference to any such injuries or residual pain, because he was fearful of his job. The result of all of this evidence, taken in total, is to lead us to conclude that plaintiff suffered a soft tissue injury to the ligaments and muscles of his neck and back for a period of about 2 months, with some occasional residual pain thereafter. We conclude that the award of the trial judge of $7,500 was generous, but that it is within the range of discretion accorded him. We comment that the record discloses ample justification for his exercise of remittitur.

For the reasons above expressed, we affirm the judgment appealed from insofar as it awards judgment in favor of Lewis T. Bland against the defendants in the amount of $7,500, together with legal interest from date of judicial demand until paid and assess all costs of these proceedings against defendants.

AFFIRMED.


author: STOULIG, Judge. BOUTALL, Judge,

text:
    Curtis J. DUGAS v. ROYAL GLOBE INSURANCE COMPANY et al.
    No. 8968.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Rehearing Denied July 26, 1978.

      Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Thomas M. Nosewicz, New Orleans, for plaintiff-appellant.
    Bernard, Micholet & Cassisa, Walter M. Babst, Metairie, for Royal Globe Ins. Co., defendant-appellee.
    Henry G. Sullivan, Jr., New Orleans, for Frank Tucker, personally, Frank Tucker, Inc., Frank Tucker Playtime Vehicles, and Frank Tucker, d/b/a Playtime Vehicles, defendants-appellees.
    Before GULOTTA, STOULIG and BOU-TALL, JJ.
   STOULIG, Judge.

Plaintiff, Curtis J. Dugas, has appealed a judgment dismissing his suit to recover the value of a motor coach that was never returned by one Robert Young after he purportedly leased it from plaintiff’s agent. Defendant Royal Globe Insurance Company relied on an exclusion in the theft policy it issued to plaintiff to deny coverage and defendant Frank Tucker, Inc., the broker, denied any negligence in turning the vehicle over to the alleged lessee who never returned it.

We first consider the insurer’s defense mindful of the evidentiary rule that having pleaded the exclusion, it must prove the facts to support its position. Hartford Fire Insurance Co. v. Roger Wilson, Inc., 252 So.2d 161 (La.App.3d Cir. 1971); Givens v. Southern Farm Bureau Casualty Ins. Co., 197 So.2d 380 (La.App.2d Cir. 1967).

The clause in the contract of insurance relied on by the insurer provides:

“(o) under Coverage D, to loss to the entire vehicle or any part thereof, due to conversion, embezzlement or secretion by any person in lawful possession of the automobile.”

The key phrase is “in lawful possession” and therein the dispute lies. Appellant argues Young’s possession was unlawful ab initio, while appellee insurer insists the vehicle was legally turned over to Young under a valid contract of lease.

On June 5, 1975, in response to his inquiry Young was advised in a telephone conversation with Frank Tucker, majority stockholder of defendant broker, that a mobile home was available. Young appeared at the broker’s place of business, inspected the coach, signed a one-week rental agreement, made a $100 deposit and agreed to pick up the vehicle the next day. When Young returned on June 6, Elizabeth Tucker, Frank’s wife, handled the arrangements, which included taking his driver’s license and checking the picture to see if it matched the identity of the holder. She copied on the lease form the address, license and Social Security numbers from Young’s driver’s license. Young paid the $274 rental and then left with the trailer which he was purportedly leasing for a week. The trailer was never returned. Ultimately it was learned he attempted to obtain a California driver’s license but withdrew his application when California officials returned his Louisiana license to the Louisiana Department of Public Safety.

From these facts we are unable to determine whether a lease was in fact confected. C.C. art. 2670 states three things must concur before a valid lease is confect-ed, namely the thing, the price and the consent. If Young accepted the vehicle with the intent of returning it when the lease period ended, there was a lease. If, however, he intended to steal the vehicle and went through the motions of signing a lease to gain possession, then there was no lease.

C.C. art. 1797 requires the contracting parties to mutually agree to the terms of a contract. In this case it would require that the broker’s intent to let for a week must concur with the lessee’s intent to use it for this period and return it. If, however, the broker’s consent to deliver the vehicle was procured through fraud or through error in motive in that Young failed to convey his intent not to return the vehicle, then the consent to lease induced by fraud destroys the validity of the contract. See C.C. art. 1819. A similar result was reached in Gomez v. Security Insurance Company of Hartford, 314 So.2d 747 (La.App.4th Cir. 1975).

In the case before us, proof of Young’s intent is not available. The evidence suggests elements of subterfuge when Young initially took possession, but we need not speculate on probabilities because defendant, to prevail, has the burden of proving lawful possession. This it failed to do and the insurer finds itself in the position of many litigants who almost certainly lose their cases when the burden of proof rests on them in instances where direct and circumstantial proof are not available to make a prima facie case or support an affirmative defense. The insurer is liable.

As to the defendant broker, plaintiff has alleged but failed to prove negligence. The plaintiff has not established that it set any special requirements with the broker insofar as screening prospective lessees nor do we think that Mr. or Mrs. Tucker departed from any standard procedures used by companies who rent vehicles. The fact that the address listed on the valid Louisiana driver’s license Young produced is erroneous is not proof of negligence, absent the owner’s requiring and the broker agreeing to personally verify the residence of the applicant.

Plaintiff’s request for statutory penalties and attorney fees authorized by R.S. 22:658 is denied. Before this section may be successfully invoked, the insured must establish the insurer acted arbitrarily and capriciously. We will not hold that under the present circumstances the defendant acted unreasonably in putting the exclusion at issue as a defense, even though it did not prevail.

For the reasons assigned, the judgment appealed from is affirmed insofar as it dismisses plaintiff’s suit against Frank Tucker, Inc., and reversed insofar as it dismisses the suit against the insurer, and it is now ordered that there be judgment in favor of Curtis J. Dugas and against defendant Royal Globe Insurance Company in the sum of $10,950, with legal interest from judicial demand and for all costs of these proceedings.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

BOUTALL, J., concurs with written reasons.

BOUTALL, Judge,

concurring.

I concur in the reversal of judgment against Royal Globe Insurance Company in result only. For the reasons given by the trial judge I would hold that the lease was valid. However, the exclusionary clause at issue goes beyond that determination. It provides:

“(o) under Coverage D, to loss to the entire vehicle or any part thereof, due to conversion, embezzlement or secretion by any person in lawful possession of the automobile.”

The question is was Young “in lawful possession”? Young’s residence address was noted on the lease as 5922 Airline Highway, Metairie, which was shown to be a vacant lot, obviously a false address. At the time of the lease, June 6, 1975, R.S. 14:220 provided that a person who in leasing a motor vehicle obtained possession by means of a false representation as to his residence committed a misdemeanor. If Young gave that address, then his possession was unlawful and illegal. If the false address was due to another reason, such as incorrect entry by Mrs. Tucker, his possession was lawful.

In resolving this issue the trial judge held that it was not proven at trial that the address was copied correctly from Young’s driver’s license. My view is that the burden of proof was upon the insurer to show the facts supporting the application of the exclusion of policy coverage. It was not the obligation of the plaintiff to prove that the address on the lease was copied correctly from Young’s driver’s license. Instead, upon the plaintiff showing that the address on the lease was in fact false, it was the duty of the insurer to show that Young had given a correct address. Under' this proposition the judge should have found in favor of plaintiff.

In short, the insurer is required to show lawful possession. The plaintiff is not required to show unlawful possession.

Additionally, it should be noted that on motion for new trial, plaintiff sought to offer the State’s copy of Young’s license, which showed the address to be in fact 5922 Airline Highway as written on the lease.

Accordingly, I concur in result of the reversal.


author: DeSONIER, Judge.

text:
    ASSOCIATED EXECUTIVE CONTROL, INC. v. BANKERS UNION LIFE INSURANCE COMPANY.
    No. 9017.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Rehearing Denied July 26, 1978.
    Chaffe, McCall, Phillips, Toler & Sarpy, Harry McCall, Jr. and Norris S. L. Williams, New Orleans, for plaintiff-appellant.
    Stone, Pigman, Walther, Wittmann & Hutchinson, Harry M. Zimmerman, Jr., New Orleans, for defendant-appellee.
    Before REDMANN, GARSAUD and De-SONIER, JJ.
   DeSONIER, Judge.

Plaintiff filed suit against defendant for $50,000 which it asserts defendant owes pursuant to a brokerage contract for the sale of corporate stock. Plaintiff alternatively seeks damages on a quantum meruit basis.

Defendant filed exceptions of no cause of action and prematurity, both of which were maintained by the district court. Plaintiff appeals from the dismissal of its suit.

For the purpose of an exception of no cause of action, the facts well pleaded in the petition must be accepted as true. The facts set forth are that on January 30,1974 defendant agreed to pay plaintiff $50,000 as a finding and servicing fee if it procured the consummation of the sale of the stock of defendant’s wholly owned subsidiary, Security Guaranty Life Insurance Company. Plaintiff negotiated a sale for the stock with one Ronald E. Smith and forwarded a copy of the proposed purchase agreement to plaintiffs agent. On April 14, 1975 plaintiff’s agent delivered a $10,000 deposit on the sale to defendant in Denver, Colorado. Plaintiff’s agent sought to obtain defendant’s signature .on the final purchase agreement. The agreement required some modification with regard to representations made with regard to the stock in question, and defendant agreed to make the required revisions and send the final agreement to New Orleans for Smith’s signature.

On April 24,1975, defendant’s attorney in Denver forwarded a stock purchase agreement which contained the following statement:

“Buyer further represents that he has not had any deals with, nor has he been influenced by the firm of Associated Executive Control, Inc., 1501 American Bank Building, New Orleans, Louisiana, or any of its agents, or P. D. V. de la Barre in connection with the transaction contemplated by this Agreement. On the basis of such representation, Seller agrees to pay any valid claim of Associates Executive Control, Inc. or F. D. V. de la Barre for a finder’s fee or brokerage fee, commission or other compensation on account of Seller’s dealings with such persons in connection with the transaction contemplated by this Agreement and to indemnify, defend and save Buyer harmless from any such claim.”

The petition alleges Smith could not in good faith make the representation required in the quoted statement, so the contract was never signed and the transaction was never consummated.

Defendant relies almost exclusively on the wording of the contract between it and plaintiff and heavily relies on language which states the commission would only be owed plaintiff upon consummation of the sale. The agreement provides, in pertinent part, as follows:

“We (Bankers Union) agree to pay you (Associated) a consulting, finding and servicing fee totalling $50,000 in the event that a sale is consummated for all of the stock of Security Guaranty Life Insurance Company (‘Security Guaranty’) which is owned by Bankers Union Life Insurance Company as of this date, in the event that you are a moving force in the consummation of a transaction which is acceptable in the full and absolute discretion and approval of Bankers Union Life Insurance Company. It is expressly understood that there are no exclusive rights granted by this letter for you to seek out and find a buyer, and Bankers Union Life Insurance Company shall be totally free to seek out a buyer independently of any efforts by you.
In the event that such sale is consummated, which shall mean that the matter has been closed and all other aspects of the same shall be completed to the satisfaction of the company, then one month thereafter the aforementioned fee shall be due and payable to you.”

The terms of the agreement leave little doubt regarding the intent of the parties. Plaintiff was to be paid a fee if it were a moving force in the “consummation” of a sale in a transaction which was acceptable at the full and absolute discretion and satisfaction of defendant. The contract does not provide plaintiff receives a fee upon either finding a purchaser or upon execution of preliminary contracts. It clearly provides plaintiff is entitled to a fee only when the sale of the stock has been completed.

Payment to plaintiff of a fee was subject to a suspensive condition, and the obligation cannot be enforced until the condition occurs. Article 2021, Louisiana Civil Code, provides:

“Conditional obligations are such as are made to depend on an uncertain event. If the obligation is not to take effect until the event happen, it is a suspensive condition; if the obligation takes effect immediately, but is liable to be defeated when the event happens, it is then a resolutory condition.” LSA -C.C. Art. 2021.

Article 2043, Louisiana Civil Code, provides:

“The obligation contracted on a suspen-sive condition, is that which depends, either on a future and uncertain event, or on an event which has actually taken place, without its being yet known to the parties.
In the former case, the obligation can not be executed till after the event; in the latter, the obligation has its effect from the day on which it was contracted, but it can not be enforced until the event be known.” LSA-C.C. Art. 2043.

In Sugar Field Oil Co. v. Carter, defendant sellers agreed with plaintiff broker that if the broker procured a willing purchaser defendant would negotiate and consummate the sale and plaintiff would be paid “if and when such sale was consummated.” The trial judge dismissed the plaintiff’s suit as premature, and the Supreme Court affirmed, holding that the contractual claim was premature because plaintiff’s right to recover was predicated on the consummation of the sale of the property to the purchaser obtained by it.

Likewise, in Jordy v. Salmen Brick & Lumber Co. the defendant seller granted a prospective purchaser an option to buy timberland. Because the parties had been introduced by plaintiff broker, seller entered into an agreement providing that in the event of the sale of the property within 12 months, plaintiff broker would be paid a commission. The prospective purchaser and seller agreed orally on the terms of a contract to sell, but seller refused to sign a written contract and the option expired. The written contract was later executed between the parties, and $10,000 in earnest money was deposited. Nevertheless, the sale was never consummated. Broker sued for his commission, and the lower court maintained defendant’s exception of no cause of action. The Supreme Court affirmed, noting that plaintiff’s petition did not allege defendant obligated itself to sell the property or that the property was ever sold. On the contrary, the Supreme Court maintained the exception of no cause of action because the contract provided plaintiff would receive a commission only in the event the property was sold. Because the property was not sold, plaintiff was therefore not entitled to a commission.

In both the cited cases, the commission was conditioned upon the actual sale of the defendants’ property. Defendants in both cases carried out their own negotiations and they were under no obligation to sell the property. In both cases the defendants entered into preliminary contracts, one an option and the other an agreement to sell. Because the commission agreements in each case were subject to a suspensive condition that the properties be sold before the commission was earned, the Supreme Court denied recovery. In the case now before the court defendant neither executed a preliminary agreement nor consummated a sale of the stock in question. We therefore hold plaintiff’s suit to enforce an obligation contracted on a suspensive condition before the occurrence of the condition is subject to defendant’s exceptions of prematurity and no cause of action.

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

AFFIRMED.

      . See Sporl v. New York Indemnity Co., 176 La. 363, 145 So. 771.

      . 207 La. 453. 21 So.2d 495.

      . 121 La. 457. 46 So. 572.