author: GUIDRY, Judge. WATSON, Judge,

text:
    John C. HAMILTON, III, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Defendants-Appellees.
    No. 6638.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.
    Rehearing Denied Nov. 28, 1978.
    Writ Refused Jan. 26, 1979.

      Fontenot, Andrus & Preis by Vance R. Andrus, Lafayette, for plaintiff-appellant.
    McBride & Brewster by Norman P. For-et, Lafayette, for defendants-appellees.
    Ed Rubin, Lafayette, for plaintiff-appel-lee.
    Before WATSON, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

This is a tort action wherein plaintiff seeks to recover damages for personal injuries sustained as a result of an automobile-motorcycle collision which occurred in the city of Lafayette, Louisiana, on September 17, 1976. Plaintiff joined the driver of the uninsured automobile, Iris Noel, and State Farm Mutual Automobile Insurance Company (hereafter State Farm), the automobile liability insurer of his father, John C. Hamilton, Jr., as defendants, seeking to recover from the latter under the uninsured motorist provisions of its policy. State Farm filed a motion for summary judgment, seeking to have plaintiff’s suit dismissed as to it, urging in support of such motion that the pleadings on file, the deposition of plaintiff, and the policy of insurance issued by State Farm show that there is no genuine issue of fact, material to a finding that plaintiff is not an insured under the uninsured motorist provisions of the policy issued to John C. Hamilton, Jr. Specifically, State Farm urged in support of its motion for summary judgment that plaintiff is not an insured under the liability policy issued to his father because at the time of accident he was not a “resident of the same household” as that of his father. The trial court rendered summary judgment dismissing plaintiff’s suit as against State Farm. Plaintiff has appealed.

It is well settled that a party who seeks a summary judgment bears the burden of showing that there is no genuine issue of material fact. Any doubt as to granting the motion shall be resolved in favor of trial on the merits. Craft v. Trahan, 351 So.2d 277 (La.App. 3 Cir. 1977); Moreaux v. American Mutual Insurance Company, 302 So.2d 686 (La.App. 3 Cir. 1974), writ not considered, 307 So.2d 627 (La.1975).

We have considered State Farm’s motion for summary judgment and the evidence adduced in support thereof in light of the clear rule above set forth and ultimately conclude that the trial court judgment must be affirmed.

The record reflects no dispute as to any of the facts material to a determination of plaintiff’s residency at the time of accident. In fact, the activities of plaintiff for the six year period immediately preceding the accident, on which State Farm relies in order to show that plaintiff was not a resident of his father’s household, are chronicled in plaintiff’s own deposition. The facts as revealed by the evidence are as follows:

Plaintiff was 24 years old at the time of accident. Plaintiff was born in the year 1952 and resided continuously with his parents in Lake Charles, Louisiana, until his graduation from high school in the year 1970. Following his graduation from high school plaintiff attended the University of Southwestern Louisiana at Lafayette. His parents supported him during his first two years of college, during which time he resided in one of the dormitories on campus. During the remaining years of his college career, plaintiff was completely self-supporting. He resided in an apartment in Lafayette and actually put himself through school. During his entire college career plaintiff resided in Lafayette and occasionally visited his parents. In May of 1975, plaintiff graduated from USL with a degree in marketing. After graduation plaintiff continued to reside in Lafayette where he was employed as manager of the Beef and Ale Restaurant. Prior to his graduation in 1975 and up to the date of accident, on September 17, 1976, plaintiff continuously resided in an apartment complex with address of Apartment No. 5, 1215 West Congress Street, Lafayette, Louisiana, although, shortly prior to the accident plaintiff had decided to go into business for himself in the city of Lake Charles, and in furtherance of such decision he leased an apartment on Clarence Street in that city as well as a building wherein he would conduct his business. Plaintiff was in the process of moving to Lake Charles, Louisiana, just pri- or to the accident and had actually moved about 75% of his belongings, a portion of which were stored in his new apartment on Clarence Street and a portion of which (the more expensive items such as furniture, dress clothes, paintings) were stored at his parents’ home. As to the latter plaintiff candidly admitted that his parents’ home was being used as a storage area only pending his complete move to his new apartment in Lake Charles. It is not disputed that plaintiff always had a key to his parents’ home and was free to visit them at will without notice or invitation. It is equally without dispute that during the six year period preceding the accident he did visit his parents, the frequency of such visits varying from once every two weeks to once a month. That plaintiff did not consider himself as residing with his parents at the time of accident and had no intention of residing with them appears from his own candid responses in deposition:

“Q. After your graduation and before this accident, where did you consider where you were living?
A. 1215 West Congress.
Q. In Lafayette?
A. Right.
Q. Prior to the accident, had you told or indicated in any way to your parents that you planned to continue living with them?
A. No.
Q. Did you plan on residing permanently at the Lake Charles Clarence Street address?
A. Permanently?
Q. Yes.
A. No. The rent was too high. It was the only place I could find so I went ahead and rented it for the time being. I never spent one night in that place.
Q. Did you plan on — if the Clarence Street address didn’t work out to be a permanent address did you plan on finding another permanent address other than your parent’s home?
A. Yes, you know, I didn’t have any intention of livine- with them. The permanent address I now use is my business address. Anytime I need correspondence I list it now.”

The automobile insurance policy issued by State Farm to plaintiff’s father contains the standard uninsured motorist provision. For the purposes of uninsured motorist protection, the policy defines “insured” as “the named insured and any relative”. (Part IV, definitions). The term “relative” is further defined under Part I of said policy to mean “a relative of the named insured who is a resident of the same household”. (Part I, definitions). Thus, in order for plaintiff to be covered by his father’s uninsured motorist coverage, plaintiff must be a resident of the same household as that of his father.

Our review of the evidence in this case, adduced in support of State Farm’s motion for summary judgment, which evidence we have briefly set forth above, is without dispute and contains every fact material and necessary to a determination of plaintiff’s residency at the time of accident. This being so the issue presented is properly disposed of on a motion for summary judgment. Whether a person is or is not a resident of a particular place is a question of law and fact. Taylor v. State Farm Mutual Automobile Insurance Co., 248 La. 246, 178 So.2d 238 (1965). Once all the facts are marshaled, and it is made to appear that the marshaled facts are without dispute, then the ultimate conclusion as to residency becomes a question of law, i. e., whether such facts disclose residency of a particular place as a matter of law and within the meaning of the policy of insurance in question. See Ladner v. Andrews, 216 So.2d 365 (La.App. 3rd Cir. 1968) in which this very same issue was disposed of on motion for summary judgment; Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976) in which the issue of contributory negligence was disposed of on a motion for summary judgment; and, Ocmond v. Eserman, 259 So.2d 600 (La.App. 1st Cir. 1972, writ refused, 261 La. 825, 261 So.2d 230) in which the issue as to an alleged employer’s vicarious liability was disposed of on motion for summary judgment.

In the instant case it has been established that plaintiff had not resided in the home of his parents for several years prior to the accident. Although plaintiff did visit in the home of his parents during this period, we do not consider these occasional short visits as establishing a residency therein and it is clear from plaintiff’s own deposition that such was not his intention. Plaintiff’s parents were under no obligation to support him and in fact the evidence shows that he was and had been for several years preceding the accident, financially independent of his parents. Most convincing, plaintiff, by his own candid admissions did not consider himself a resident of his parents’ household at the time of accident nor did he ever intend to again establish a residence with them. Considering these undisputed facts, we determine, as did the trial judge, that plaintiff was not a resident of the household of his parents when the accident occurred and thus that he was not an insured under the State Farm policy. As stated in Cates v. Beauregard Electric Cooperative, Inc., supra:

When the evidence submitted on the motion leaves no relevant, genuine issue of fact, and when reasonable minds must inevitably conclude that the mover is entitled to judgment on the facts before the court, the motion for summary judgment should be granted (G.C.P. 966) . . .”

In the alternative the plaintiff contends that the State Farm policy is ambiguous in that such policy can be interpreted as extending uninsured motorist coverage to all relatives of the named insured. Accordingly, plaintiff argues that the policy should be interpreted in favor of coverage. We find no merit in this contention perceiving no ambiguity in the provisions of the State Farm policy.

For the above and foregoing reasons the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

WATSON, J., dissents and assigns written reasons.

WATSON, Judge,

dissents and assigns the following reasons:

The majority errs in affirming summary judgment in favor of the defendant insurer.

The trial court granted a motion for summary judgment by State Farm because: “The court finds from reading the deposition of the plaintiff herein; John C. Hamilton, III, that at the time of the accident in question he was not a resident of the household of the named insured, . . . ” (TR. 94).

Hamilton, a major, stated in deposition that he had resided in Lafayette for several years while attending college and working; he completed college a few months before the accident; he had not yet moved into his new Lake Charles apartment when the accident occurred and might have resided temporarily at his parents’ home in that city until he did; he lived with his parents for four or five months while convalescing from the accident; he has always had a key to their home and his own room; he comes and goes at will without notice or invitation; he keeps some clothes and personal belongings at his parents’ home, including all of his stereo equipment, some furniture and paintings; his parents pay for his car insurance as a gift; and he has always used his parents’ residence as his permanent address.

The question presented is whether these undisputed facts could reasonably be interpreted in more than one way by a jury. Branam v. Traders & Gen. Ins. Co., 344 So.2d 1073 (La.App. 3 Cir. 1977). If reasonable people could differ as to the appropriate conclusion to be drawn, summary judgment is not warranted. Compare Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976) cert. den., 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98. See Employers’ Surplus Line Insurance Company v. City of Baton Rouge and Parish of East Baton Rouge, 362 So.2d 561 (La.1978).

It is well established that a given set of facts can form the basis for more than one inference. Canter v. Koehring Company, 283 So.2d 716 (La.1973). “ ‘Whether a person is or is not a resident of a particular place is a question of law and fact, to be determined from all the facts of each particular case, . . .’” Taylor v. State Farm Mutual Auto. Ins. Co., 248 La. 246, 178 So.2d 238 at 242 (1965).

The trial court erred in granting State Farm a summary judgment, because the facts presented do not lead to the inescapable conclusion that Hamilton was not a resident of his father’s household.

This court has in the past attempted to clarify the distinction between the terms domicile and residence, as follows:

“Although a person may have only one domicile, that person may have several residences. Manuel v. American Employers Insurance Co., 228 So.2d 321 (La.App. 3 Cir. 1969); LaFleur v. Seaboard Fire & Marine Insurance Co., 296 So.2d 860 (La.App. 3 Cir. 1974). To maintain a residence a person needs only a place or premises which entitles him to return at his convenience without having to request permission of someone else. Hall v. God- chaux, 149 La. 733, 90 So. 145 (1921); Fielding v. Casualty Reciprocal Exchange, 331 So.2d 186 (La.App. 3 Cir. 1976).” Hobbs v. Fireman's Fund Am. Ins. Companies, 339 So.2d 28 at 35 (La.App. 3 Cir. 1976) writs denied 341 So.2d 896 (La.1977).
“The jurisprudence reflects that the term ‘resident’ is not to be confused with the term ‘domicile’. The word ‘domicile’ means ‘the principle domestic establishment.’ A person can have only one ‘domicile’, but may have more than one residence . . . .” Soileau v. Board of Sup’rs, St. Martin Parish, 361 So.2d 319 at 321 (La.App. 3 Cir. 1978).

Plaintiff is entitled to have his residency decided as a factual question by a jury. Since there is a disputed issue, which is a mixed issue- of fact and law, State Farm is not entitled to summary judgment. LSA-C.C.P. art. 966. Any doubt as to summary judgment is to be resolved in favor of trial on the merits. Moreaux v. American Mutual Insurance Company, 302 So.2d 686 (La.App. 3 Cir. 1974).

I respectfully dissent.


source: Caselaw Access Project

author: CUTRER, Judge.

license: Public Domain

text:
    EVANGELINE BANK & TRUST COMPANY, Plaintiff-Appellee, v. Mary GUILLORY, Defendant-Appellant.
    No. 6611.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.
    Rehearing Denied Nov. 28, 1978.
    Donald Soileau, Mamou, for defendant-appellant.
    Frugé & Vidrine by Chris B. Frugé, Ville Platte, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   CUTRER, Judge.

This is a suit by Evangeline Bank & Trust Company on two promissory unsecured installment notes against Mary Guil-lory, the maker. Defendant pleads that the interest charged was usurious.

The first note was executed on June 10, 1976, reflecting the sum of $222.36 due plaintiff, payable in 12 installments of $18.53, the first payment due July 10, 1976i The second note was executed on June 18, 1976, reflecting the sum of $389.56 due plaintiff, payable in 12 installments of $32.43, the first payment due July 18,1976. Plaintiff alleges that defendant defaulted on each note, defendant making only two payments on the first note, the last payment being made August 25,1976. Defendant made one payment on the second note on July 30, 1976. Each note provided for interest at the rate of 10% per annum from date of maturity.

The trial court rendered judgment for the balance due on both notes plus interest at the rate of 10% from maturity on each note, August 25, 1976 on the first note and July 30, 1976 on the second note, plus 25% attorney’s fees. Defendant appeals, taking the position that the 10% interest rate after maturity is usurious as it violates Civil Code art. 2924 which limits conventional interest to 8%.

Plaintiff contends that the Louisiana Consumer Credit Law (LSA-R.S. 9:3510, et seq.) is applicable, which act authorizes such interest rate.

Three issues are presented:

(1) Are the provisions of the Louisiana Consumer Credit Law applicable to these two transactions?
(2) Whether the 10% interest rate after maturity is usurious.
(3) If such interest rate is usurious, is plaintiff entitled to collect any interest?

I.

The Louisiana Consumer Credit Law (Act No. 454 of 1972), Chapter 2 of Title 9 of the Louisiana Revised Statutes, became effective on January 1, 1973, by its own provisions. Act No. 454 of 1972 Section 9 provided that the 8% limitation on “after maturity” interest was not applicable to consumer credit transactions under the provisions of the Louisiana Consumer Credit Law. If applicable the provisions of this law would prevail over Civil Code art. 2924. LSA-R.S. 9:3516(13) provides in pertinent part:

“ ‘Consumer loan’ means a loan of money . . not exceeding twenty-five thousand dollars in principal amount made by a supervised financial organization, a licensed lender, or a lender in which the debtor is a consumer . . . .”

“Supervised financial organization” includes banks in the definition set out in LSA-R.S. 9:3516(26). LSA-R.S. 9:3516(8) provides:

“ ‘Consumer’ means a natural person who purchases goods, services, or movable or immovable property or rights therein, for a personal, family, household, or agricultural purpose and includes a purchaser or buyer in a consumer credit sale or transaction made with the use of a seller credit card or otherwise, a lessee in a consumer lease, or a borrower or debtor in a consumer loan, revolving loan account, or a lender credit card. . . . ” (Emphasis added)

Under these provisions, the loans herein were “consumer loans” and the Louisiana Consumer Credit Law is applicable thereto.

II.

We turn to the Louisiana Consumer Credit Law to determine if the interest rate after maturity is usurious. LSA-R.S. 9:3529 provides in pertinent part:

“. . .if the maturity is accelerated for any reason and suit is filed, . . . , thereafter the obligation sued upon shall be deemed to bear a loan finance charge or credit service charge on the amount due not to exceed the rate previously charged on the obligation.” (Emphasis added)

LSA-R.S. 9:3522 reads:

“On all precomputed consumer credit transactions, beginning one year after contractual maturity, the loan finance charge or the credit service charge may not thereafter exceed eight percent per annum.” (Emphasis added)

LSA-R.S. 9:3516(22) defines “precomputed consumer credit transactions” as being:

“. . .A consumer credit transaction is ‘precomputed’ if the debt is expressed as a sum comprising the amount financed, or deferred additional charges, and the amount of the loan finance charge or credit service charge computed in advance.”

The notes herein were precomputed as the debt in each note is expressed as a sum comprised of the amount financed and the amount of the loan finance charge.

In summary, these sections authorize a supervised financial organization, including banks, to charge, on precomputed notes, as much interest after maturity as it charged on the original obligation. This authority, however, is limited to a period of one year. One year after maturity, the bank is not authorized to charge more than 8% interest. In the case at hand, both notes contained a charge of 10% after maturity with no limitation. Since the 10% after maturity extends beyond the one-year limitation, such interest is not authorized by law. The interest charged after maturity must be classified usurious.

III.

Having classified such interest as usurious, we examine the statutes and jurisprudence to determine the effect of same.

LSA-R.S. 9:3501 provides:

“Any contract for the payment of interest in excess of that authorized by law shall result in the forfeiture of the entire interest so contracted.”

Thrift Funds of Baton Rouge, Inc. v. Jones, 274 So.2d 150 (La.1973), cert. denied 414 U.S. 820, 94 S.Ct. 115, 38 L.Ed.2d 53 (1973), interpreted the statute to mean:

“Both the trial and the intermediate court held that the unambiguous meaning of the statute is to cause the forfeiture of all interest due on the contract, not just the usurious portion of it and not just during the period that usurious charges were exacted. They were correct in so doing.
“As the court of appeal noted, the past jurisprudence is in conflict. However, upon examination, the decisions which only disallowed the usurious portion of the interest are not persuasive or controlling. (footnote omitted) As the decision notes, the more considered and the more recent decisions have enforced the unambiguous language of the statute that all interest due under the contract is forfeited when usurious charges are exacted, in the light of the statute’s intent to penalize usurious creditors and to protect borrowers. Crane v. Beatty, 15 La.Ann. 329 (1860); Miley v. Steedley, 269 So.2d 522 (La.App. 1st Cir. 1972); Busada v. Goeders, 236 So.2d 669 (La.App. 2nd Cir. 1970); Gordon Finance Company v. Chambliss, 236 So.2d 533 (La.App. 4th Cir. 1970), certiorari denied 256 La. 869, 239 So.2d 364 (1970); Consolidated Loans, Inc. v. Smith, 190 So.2d 522 (La.App. 1st Cir. 1966), certiorari denied 249 La. 753, 190 So.2d 913 (1966).”

Accordingly, we hold that the notes are usurious, the penalty for which is the forfeiture of all interest on each note.

For the reasons assigned, the judgment appealed from is affirmed insofar as it awards the sum of the principal obligation, insurance premium and attorney’s fees. Such judgment is reversed insofar as it awards interest on the two notes. The judgment is recast to read as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of plaintiff, Evangeline Bank & Trust Company, for the sum of $486.64, plus 25% of same as attorney’s fees; all costs of these proceedings in both courts to be paid by plaintiff.

AFFIRMED IN PART; REVERSED IN PART.

      . C.C. Art. 2924 provides in part as follows:
      “Art. 2924. Interest is either legal or conventional. .

      “The amount of the conventional interest cannot exceed eight percent. . . . ”

      . Act No. 454 of 1972 § 9 provides in part:
      “The owner of any promissory note, bond or other written evidence of debt for the payment of money to order of bearer or transferable by assignment shall have the right to collect the whole amount of such promissory note, bond or other written evidence of debt for the payment of money, notwithstanding such promissory note, bond or other written evidence of debt for the payment of money may include a greater rate of interest or discount than eight percent per annum; provided such obligation shall not bear more than eight percent per annum after maturity until paid; but this provision shall not apply to a consumer credit transaction as defined by the Louisiana Consumer Credit Law. . (Emphasis added)

      . LSA-R.S. 3516(26) provides:
      “(26) “ ‘Supervised financial organization’ is a banking or similar organization organized, certified and supervised by an agency of either the United States of America or of the State of Louisiana pursuant to the banking, currency and related laws of the United States of America or of the State of Louisiana.”

      . Each of these notes stated that the annual percentage rate of 17.97% was charged on the principal obligation, which rate is less than that authorized by LSA-R.S. 9:3519. This statute provides:
      “A. The maximum loan finance charge for any consumer loan other than one made with a lender credit card that may be charged, contracted for or received by a licensed lender or supervised financial organization may equal but may not exceed the greater of either of the following:
      “(1) the total of
      “(a) thirty-six percent per year for that portion of the unpaid principal amount of the loan not exceeding eight hundred dollars;
      ******
      “(e) eighteen percent per year on the unpaid balances of the amount borrowed.”

      . Defendant owed $200 in principal on the first note, plus an insurance fee of $2.23 for a total of $202.23. On this sum, defendant has made two payments of $18.53 each for a total of $37.06. Subtracting these payments from the total of $202.23, it is determined that the defendant now owes $165.17 on the first note.
      Defendant owed $350.00 in principal on the second note, plus an insurance fee of $3.90 for a total of $353.90. Defendant made one payment of $32.43 on this amount; therefore, she now owes $321.47 on the second note. Defendant thus owes the bank a total of $486.64 [$165.17 plus $321.47],


author: GUIDRY, Judge.

text:
    George Franklin SKINNER, Plaintiff-Appellant, v. BOISE SOUTHERN COMPANY, Defendant-Appellee.
    No. 6612.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.

      Smith & Wise by J. Wade Smith, Lake Charles, for plaintiff-appellant.
    Hall, Lestage & Lestage, H. 0. Lestage, III, DeRidder, for defendant-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

Plaintiff appeals from a judgment which dismissed his workmen’s compensation suit on a plea of prematurity.

The record reflects that plaintiff allegedly received an accidental disabling injury on September 23, 1977 while in the employ of defendant. Subsequent thereto defendant began the payment of compensation benefits to plaintiff at the rate of $93.34 weekly. Pursuant to a demand from plaintiff that he be compensated at a higher rate, defendant on December 16, 1977 increased the amount of plaintiff’s compensation payments to the sum of $108.73 and tendered an additional payment, which was accepted, bringing compensation current at the latter rate. Plaintiff filed the instant suit on December 19, 1977, alleging his total and permanent disability; that defendant has failed to pay him the maximum percent of wages to which he is entitled under the workmen’s compensation act; and, that because of defendant’s arbitrary and capricious refusal to pay the latter he is entitled to recover statutory penalties and a reasonable attorney’s fee. Thereafter, effective January 1, 1978, defendant reduced the compensation payments to the sum of $100.92 per week.

Defendant filed answer generally denying the allegations of plaintiff’s petition and by way of further answer and a simultaneously filed plea of prematurity alleged that plaintiff was being paid the maximum compensation to which he is entitled under the workmen’s compensation act and his petition should therefore be dismissed pursuant to the provisions of LSA-R.S. 23:1314.

At trial on the issue of prematurity it was stipulated that plaintiff was paid at the rate of $3.50 per hour straight time and $5.25 per hour overtime; and, for the four full weeks preceding the date of alleged injury plaintiff worked 45 hours, 41 hours, 35.5 hours, and 47 hours, respectively.

In sustaining the plea of prematurity the trial court concluded that under LSA-R.S. 23:1021(7), as amended by Act 25, Ex.Sess., of 1968, overtime pay cannot be considered in determining an injured employee’s “average weekly wage at the time of accident” and thus found that the maximum compensation to which plaintiff is entitled should be computed as follows:

Weekly hours worked for four full weeks immediately preceding the date of injury (45 - 41 - 40 - 47 = 173) divided by 4 = 43.25 x $3.50 = $151,375. 66%% of $151,375 = $100.92

In concluding as above set forth the learned trial judge reasoned that by adopting the 1968 amendment to LSA-R.S. 23:1021(7) the legislature intended to legislatively overrule the jurisprudentially established rule to the effect that overtime pay may be used in computing compensation benefits. See McPhearson v. Hunt Lumber Co., 158 So.2d 430 (La.App. 3rd Cir. 1963) and cases therein cited.

Appellant specifies error in the trial court’s determination that overtime pay cannot be considered in determining an injured employee’s “average weekly wage at the time of accident” and suggests that a proper computation of the amount of compensation to which plaintiff is entitled is as follows:

Weekly hours worked for four full weeks immediately preceding the date of injury (45 - 41 - 40 - 47 = 173) divided by 4 = 43.25.
40 hours x $3.50 = $140.00
3.25 hours x $5.25 = 17.06
Total $157.06
66%% x $157.06 = $104.70

We find error in the trial court’s conclusion that overtime pay should not be considered in determining an injured employee’s “average weekly wage at the time of accident”, however, we affirm the trial court judgment concluding that a proper computation of the amount due plaintiff under the provisions of LSA-R.S. 23:1021(7) reflects that plaintiff has been paid and continues to be paid the maximum benefits to which he is entitled under the workmen’s compensation act.

Where a statute is unambiguous and the meaning and intent of the legislature clear, the statute must be enforced as written and courts must not, under the guise of construction, rewrite it to express their views of what they think the statute ought to say. State v. Jackson Brewing Company, 146 So.2d 504 (La.App. 4th Cir. 1962, writ of certiorari denied).

We discern no ambiguity in the provisions of LSA-R.S. 23:1021(7) and find therein no expression of legislative intent to overrule the well established jurisprudential rule that overtime pay may be used in computing compensation benefits.

LSA-R.S. 23:1021(7) provides in pertinent part as follows:

" ‘Wages’ means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows: (a) If the employee is paid on an hourly basis, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the injury or forty hours, whichever is greater; . . . ”

The cited section clearly and precisely states that workmen’s compensation benefits payable to a worker, paid on an hourly basis, are calculated on an “average weekly wage” determined by multiplying his hourly wage rate by the average actual hours worked in the four full weeks preceding the date of the injury. If the “average actual hours worked” amounts to less than 40 hours, the worker is compensated on the basis of forty hours. The plain intent of the section is to compensate the hourly worker on the basis of his “average weekly wage” and this intent is frustrated if the “average actual hours worked” exceed forty hours and the worker is not compensated on the basis of his “hourly wage rate” for the average hours in excess of forty.

In the instant case the plaintiff was regularly paid an hourly wage rate of $3.50 for straight time and $5.25 for overtime. For the four full weeks preceding the date of injury he worked and was compensated on the above basis for a total of 168.50 hours. Thusly, under the statute he is entitled to the payment of compensation calculated as follows:

168.50 hours divided by 4 = 42.125
“average actual hours worked”
40 hours @ $3.50 = $140.00
2.125 hours @ $5.25 = 11.16
“Average weekly wage" $151.16
66%% x $151.16 = $100.76

Although we find that the trial court erroneously failed to consider the hourly wage rate for overtime in calculating plaintiff’s “average weekly wage”, we conclude that his ultimate determination as to the amount of compensation to which plaintiff is entitled exceeds that determined by us by 16 cents. Consequently, we determine that the trial court judgment dismissing plaintiff’s suit as premature is correct and should be affirmed. LSA-R.S. 23:1314.

The obvious difference between our calculation and that of the trial court arises as a result of the trial court’s allowance to plaintiff of 40 hours for the week in which he only actually worked 35.50 hours. This was error as the phrase in the quoted section “or forty hours, whichever is greater” modifies the phrase “average actual hours worked”, the meaning being clear that the worker is compensated on the basis of a 40 hour week only if the “average actual hours worked” are 40 hours or less.

For the above and foregoing reasons the judgment appealed from is affirmed at the cost of appellant.

AFFIRMED.

      . Presumably, plaintiffs petition instituting suit was mailed on December 16, 1977, prior to the actual receipt by plaintiffs counsel of the checks bringing compensation payments current at the rate of $108.73.

      . The record reflects that reckoning from January 1, 1978, defendant has paid and continues to pay to plaintiff compensation at the rate of $100.92 per week.

      . Presumably, the trial judge determined that under LSA-R.S. 23:1021(7) the average weekly wage at time of accident is calculated on the basis of the average actual hours worked in the four full weeks preceding the date of injury, utilizing no lesser number than 40 hours for any one week. Appellant in his suggested computation also utilizes no less than 40 hours for any one week. We find this to be error and the computations based thereon not in conformity with the provisions of Section 1021(7) as more fully explained hereafter.


author: DOMENGEAUX, Judge.

text:
    Succession of Della Gordon GWATHMEY and Gordon D. Baten. Ruby Mae Baten TAYLOR, sister and sole heir in intestacy of the Deceased, Plaintiff and Appellant, v. Floy Taylor BATEN, widow of decedent, Gordon D. Baten, Defendant and Appellee.
    No. 6616.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.
    Rehearing Denied Nov. 28, 1978.
    Writ Granted Jan. 19, 1979.

      Raymond A. Beyt, Lafayette, for plaintiff-appellant.
    Thomas J. Sibley, Beaumont, Tex., for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   DOMENGEAUX, Judge.

Decedent, Gordon D. Baten, died testate at his domicile in Beaumont, Jefferson County, Texas, on February 2, 1974, leaving separate immovable property situated in Louisiana. He was survived by his widow, Floy Taylor Baten, and his sister, Ruby Mae Baten Taylor. There were no ascendants or descendants.

The testament, valid in form under the laws of the State of Texas, contained the following dispositive provision:

“2.
I give, devise and bequeath all of my property, real, personal or mixed, wheresoever located to my beloved wife, Floy Baten, should she be living at my death.
3.
In the event my said wife shall have predeceased me, or should my said wife and I die under circumstances that there is not sufficient evidence to determine the order of our deaths or if she shall die within a period of thirty (30) days after the date of my death, then all bequests, devises and provisions made herein to or for her benefit shall be void; and my estate shall be administered and distributed in all respects as though my said wife Floy Baten had predeceased me.
4.
In the event of any of the happenings set forth in paragraph numbered 3 of this my will, I then give, devise and bequeath all of my property, real, personal or mixed, as follows:
(a) An undivided one-fourth (Vi) thereof to Virgil Taylor, Box 3283, Radford, Virginia;
(b) An undivided one-fourth (Vi) thereof to Jon Taylor, who is the son of Virgil Taylor, and who teaches at the University of Jacksonville, Florida;
(c) An undivided one-fourth (Vi) to Dan Taylor, Radford, Virginia;
(d) An undivided one-fourth (Vi) to Bill Taylor, who resides in the State of Oregon.”

Probate proceedings were commenced in Texas, in which the will was approved and given effect. Ancilliary proceedings were commenced in the Fifteenth Judicial District Court of Louisiana, in and for Lafayette Parish, there being immovable property situated there. The Louisiana proceedings actually involved two successions: that of decedent’s and that of his aunt, Della Gordon Gwathmey, who died testate in Texas approximately one year before him. Mr. Baten was bequeathed immovable property in the aunt’s will, some of which was located in Lafayette Parish. However, since the aunt’s will was not probated in Louisiana until after the death of Mr. Baten, the two successions were handled together. On January 19, 1977, a judgment of possession was rendered in Louisiana, recognizing decedent as a legatee of the aunt and placing the property bequeathed to him from her into his succession; and also recognizing Floy Taylor Baten as his surviving spouse, and, under his testament, entitled to the ownership of all Louisiana property belonging to him.

On October 14, 1977, decedent’s sister, Mrs. Ruby Mae Baten Taylor, filed a petition in the Louisiana proceedings, seeking to have the decedent’s testament annulled and that portion of the judgment of possession recognizing the wife as decedent’s legatee set aside. She alleged that the testament contained a prohibited substitution in violation of Article 1520 of the Louisiana Civil Code, and, as such, should be found to be invalid in Louisiana. She sought to be placed in possession of the property in Louisiana as decedent’s sole heir in intestacy.

The matter was tried on a joint stipulation of fact. Judgment was rendered against Mrs. Taylor, rejecting her demands, and she appeals.

The language in the testament that forms the basis of plaintiff’s argument is the provision which specifies that Virgil Taylor, Jon Taylor, Dan Taylor, and Bill Taylor are to receive undivided one-fourth interests in the property at the time of the wife’s death, provided that she die within thirty days.

Our careful review of Louisiana cases involving substitutions has revealed no case in which a similar provision in a testament was litigated, although it appears that such provisions are frequently found in wills in common law jurisdictions.

We hold that this type of conditional bequest is prohibited under Louisiana law.

At the outset, we find that the first difficulty encountered in the legacy involves our concepts of seizin and le mort saisit le vif. By his very terms, the testator attempted to keep title to his property in abeyance for an indefinite period following his death. Under a literal interpretation of the will, no one would get title to the property until either one of two things occurred: (1) The expiration of thirty days, or (2) The death of the wife. This does not conform to our law on successions.

In Louisiana, the concept of seizin demands that title to succession property vest in an ascertainable and readily indent-ifiable person from the moment of death. Civil Code Articles 940, et seq. See generally Nathan, Common Disasters and Common Sense in Louisiana, 41 Tulane Law Review, 33, 34-39 (1966); Oppenheim, supra, Section 51.

The Civil Code provides that either the legal heir, testamentary heir, instituted heir, or universal legatee be considered seized of the succession from the moment of death by operation of the law alone. Since the wife is made the universal legatee under the testament, it must be considered that she gets seizin to the property, notwithstanding the attempt of the testator to suspend the title. See Nathan, supra, at pages 36-37.

However, if the wife is considered seized of the property under the testament from the moment of the testator’s death, a second difficulty arises because the will then contains a prohibited substitution in violation of Article 1520 of the Civil Code.

Article 1520 provides:

“Substitutions are and remain prohibited, except as permitted by the laws relating to trusts.
Every disposition not in trust by which the donee, the heir, or legatee is charged to preserve for and to return a thing to a third person is null, even with regard to the donee, the instituted heir or the legatee.”

It is generally stated that a prohibited substitution consists of three things:

1.A double disposition of the property in full ownership;
2. A charge imposed on the instituted heir to preserve and transmit the property to the substitute heir; and
3. A successive order such that the property leaves the patrimony of the instituted heir and enters the patrimony of the substitute heir, without any act on the part of the instituted heir.

In an oft-quoted opinion, Succession of Reilly, 136 La. 347, 67 So. 27, 32-33 (1914), the Supreme Court stated:

“ . . . The essential elements of the prohibited substitution are that the immediate donee is obliged to keep the title of the legacy inalienable during his lifetime, to be transmitted at his death to a third person designated by the original donor or testator. Such a disposition is null even with regard to the original do-nee or legatee. . . . A substitution is an attempt on the part of the donor or testator to make a testament for his do-nee or legatee along with his own will, and to substitute his own will for the legal order of succession from his donee or legatee. If permitted, the effect of the substitution would be to tie up the title and keep it out of commerce during the lifetime of the first donee, during which time neither he nor the person designated to receive the title at the do-nee’s death could alienate it.”

And in Succession of Simms, 250 La. 177, 195 So.2d 114, 132 (1966), it was stated:

“It is obvious, . . . , that a prohibited substitution exists when a testator places the title of the property bequeathed in the first named legatee (referred to as the instituted heir) at his death, and directs that, at the end of a specified period, usually but not necessarily at the death of the instituted legatee, this title is to be turned over, transmitted, or passed to a second legatee (referred to as the substitute heir), with the result that both parties take their title directly from the testator, the title of the institute being one that he cannot alienate because of the charge that he is to transmit it to the substitute at some time in the future and the title of the substitute being one that the substitute cannot alienate because it does not exist until some date in the future when the property is to eventually ‘vest’ in him. Marshall v. Pearce, 34 La.Ann. 557. In thus indicating a desire to give the property away ‘twice’ to two named legatees, the testator, as pointed out in Succession of Reilly, supra, not only makes his own will, but attempts also to make the will of the instituted legatee, thus endeavoring to determine the law of successions by substituting ‘his own will * *, For the legal order of succession from his donee or legatee.’ ”

We think that the disposition in the instant case is properly characterized as a prohibited substitution. The legacy contains a double disposition of the same property; full ownership is left to the wife, but upon her demise within thirty days, it is left to other legatees specified in the will. The wife, as instituted heir, could be said to be burdened with a charge in favor of the second set of substitute heirs. She could not alienate the property in any manner, because if she should die within the thirty day period, the property would have to go to the substitute heirs of the testament. Also present is the establishment of a successive order of beneficiaries. Upon the demise of the wife within thirty days, the property passes from the wife to the second set of legatees without regard to the desire of the wife and without any action on her part.

The testator in this case attempted to control his property for thirty days after his death, for whatever reason. This he could not do. We are loathe to usurp his power to determine the devolution of his property and to frustrate his last wishes by declaring the nullity of the disposition. However, under the mandates and prohibitions of our law, we are given no choice.

There is simply no basis in our law for drawing a distinction between a provision in a will bequeathing property to A and, upon his death, to B, which is the classic prohibited substitution; and a provision bequeathing property to A, and upon his death within thirty days, to B, which is the situation presently before us. If the latter provision would be permissible, Article 1520 and the strong body of jurisprudence developed around it, would be rendered meaningless. A testator could extend the time period to thirty, fifty, or even one hundred years.

It is now well established that the effect of a prohibited substitution is to invalidate the entire disposition, and not merely the charge or direction as to the ultimate disposition of the donation or legacy, as is the situation with the simple fidei commissum. Succession of Walters, 261 La. 59, 259 So.2d 12 (1972). Since the property in Louisiana was stipulated to be separate, it will devolve in accordance with our laws on intestate successions.

The record, as it now stands, is insufficient under the Louisiana Code of Civil Procedure to allow us to declare the sister the sole heir in intestacy of the decedent. The case will be remanded in order that the required procedure can be followed.

For the above reasons, the judgment of the District Court, rejecting the demand of appellant, which seeks to set aside the judgment of possession, is reversed. The judgment of possession rendered by the District Court, insofar as it recognizes Floy Taylor Baten entitled to the ownership and sent into possession of the Louisiana property belonging to the deceased, is also reversed. The case is hereby remanded to the District Court for further proceedings in accordance with law and consistent with the views expressed in this opinion. All costs on appeal are to be borne by the appellee, Floy Taylor Baten.

REVERSED AND REMANDED.

      . Professor Oppenheim of the Tulane Law School states:
      “There are two reasons for such a provision: first, successive taxation in rapid succession may be avoided, and second, the property will be transmitted to the testator’s heirs rather than in accordance with the other spouse’s will.”
      Oppenheim, 10 Louisiana Civil Law Treatise, Successions and Donations, § 128, p. 252 (1973) [hereinafter cited as Oppenheim].

      . We note that Professor Oppenheim, in his treatise on successions and donations, reaches conclusions similar to ours. He states:
      “ . . . Under the civil law doctrines of sei-sin and le mort saisit le vif, the rights of legal heirs vest at the moment of the death of the testator. Therefore, it is not possible to have title in a state of suspense for it must be vested in an identifiable or ascertained owner at all times. This established doctrine has been fully adopted by the Louisiana Civil Code. . To illustrate this vesting principle, H would not be permitted to bequeath property to W subject to the provision that if W does not survive him for at least 30 days the property will pass to C. During the thirty day period, the title neither vests in W nor C, thereby leaving the title in a state of suspense. The doctrine of seisin would render such disposition invalid since title must vest in a definite and ascertainable person at the moment of the testator’s death. This disposition could also be invalidated on the theory that it is a substitution as prohibited by Article 1520. Such a double liberality appears when H attempts to control the disposition beyond W, his immediate legatee.”
      Oppenheim, supra, § 128, pp. 252-253 [Footnotes omitted].


author: FORET, Judge.

text:
    Venton COBURN, Plaintiff-Appellant, v. VERNON PARISH SCHOOL BOARD, Defendant-Appellee.
    No. 6631.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.
    Rehearing Denied Nov. 28, 1978.

      F. Clay Tillman of Tillman & Mitchell, Leesville, for plaintiff-appellant.
    Edwin L. Cabra, Asst. Dist. Atty., Lees-ville, for defendant-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   FORET, Judge.

Venton Coburn instituted this suit against the Vernon Parish School Board seeking reinstatement as Principal of Ana-coco High School, a position which he held from September 5, 1974, until his removal by the School Board on August 15, 1977. Judgment was rendered in favor of defendant School Board, dismissing plaintiff’s demand. He has perfected this devolutive appeal from said judgment.

Plaintiff was initially hired by the Vernon Parish School Board in July, 1961, as a teacher and continued in this position until his appointment as Assistant Principal of Anacoco High School in September, 1973; one year later, in September of 1974, he was promoted to the position of Principal at Anacoco. At a meeting of the Vernon Parish School Board on July 26,1977, the Board passed a resolution calling for a hearing to be held on August 11, 1977, concerning demotion of plaintiff to the position of teacher. On the same date, the Vernon Parish School Superintendent, C. Creighton Owen, delivered a letter to plaintiff informing him of his immediate demotion to a teaching position at Anacoco High School. The next day, July 27, 1977, the superintendent mailed a letter to plaintiff setting forth nine specific reasons for the recommended demotion. After a hearing on August 15 (delayed from August 11 at plaintiff’s request), the Board officially demoted plaintiff from his position of principal to the position of assistant principal, his former position.

The sole issue presented on this appeal is whether plaintiff was properly demoted by the Vernon Parish School Board.

Under Louisiana R.S. 17:444, a teacher who has attained-tenure but who is thereafter promoted, must serve a probationary period of three years before acquiring tenure in the position to which he is promoted. However, the tenure acquired in his former position is retained during his subsequent probationary period. In addition, a teacher who has not acquired tenure in his former position before promotion can do so by combining the years served in both positions to obtain tenure in his former position. Thus, under the facts of the instant suit, it is clear that Mr. Coburn, already a tenured teacher, acquired tenure as assistant principal since he had three years combined experience as assistant principal and principal. It is equally clear that Mr. Coburn did not acquire tenure as principal since he had only held that position for approximately two years, eleven months at the time of his demotion. The distinction is important as the procedure for demotion of a probationary principal under La.R.S. 17:442 differs substantially from the procedure for demoting a tenured principal. R.S. 17:441,17:463.

The procedural requisites for the demotion of a probationary principal consists of a written recommendation by the superintendent of the parish school board accompanied by valid reasons therefor. Under the provisions of R.S. 17:442, only the school board has the authority to dismiss or demote a probationary employee. Thus, the letter delivered to plaintiff on July 26, 1977, by the school superintendent informing him of his demotion to the position of classroom teacher was violative of the procedure for demotion of a tenured assistant principal. We are of the opinion, however, that the Vernon Parish School Board could act on the superintendent’s letter of July 26, 1977, and demote the plaintiff from the principal-ship to the position of assistant principal inasmuch as plaintiff was a probationary principal. To accomplish this end, it was not necessary under the provisions of LSA— R.S. 17:442 for the School Board to actually hold a hearing.

Appellant implies that another letter should have been written by the superintendent to the School Board recommending that he be demoted to assistant principal, as a prerequisite to the Board’s demoting him. We find no merit in this contention. In our opinion, the School Board had the authority to disregard the superintendent’s recommendation of the demotion of plaintiff to that of classroom teacher, and instead to demote him to his next tenured position, that of assistant principal. We do not find that it was necessary for the School Board to require the superintendent to write another letter recommending plaintiff’s demotion to assistant principal, and accordingly, we reject appellant’s contention in that regard.

The reasons for dismissal or demotion of a teacher (or principal) are largely in the sound discretion of the school board and unless it has been clearly shown that it has abused that discretion, the court will not interfere. Cook v. Natchitoches Parish School Board, 342 So.2d 702 (La.App. 3 Cir. 1977); State ex rel. Piper v. East Baton Rouge Parish School Board, 213 La. 885, 35 So.2d 804 (1948); Lewing v. DeSoto Parish School Board, 238 La. 43, 113 So.2d 462 (1959). As there was no requirement for it under R.S. 17:442, the hearing held by the Vernon Parish School Board on August 15 was unnecessary to legally demote the plaintiff and whatever its deficiencies may or may not have been, should not be a cause for complaint. Foreman v. Vermilion Parish School Board, 353 So.2d 471 (La.App. 3 Cir. 1977), writ denied 1978; Castille v. Evangeline Parish School Board, 304 So.2d 701 (La.App. 3 Cir. 1974), writ denied, 309 So.2d 342 (La.1975); Fleming v. Concordia Parish School Board, 275 So.2d 795 (La.App. 3 Cir. 1973).

Appellant further contends that since he has served three scholastic years as principal, that he is tenured as a principal. However, the Louisiana Supreme Court has held, in State ex rel. Piper v. East Baton Rouge Parish School Board, supra, that the word “year” as used in the teachers’ tenure law providing that each teacher shall serve a probationary term of three years means the calendar year of twelve months from the date of his first appointment, and not a scholastic year. Since plaintiff did not serve as a principal for three calendar years, his contention in this regard has no bearing.

For the foregoing reasons, we affirm the judgment of the trial court which dismissed plaintiff’s suit.

Costs of this appeal are assessed against the plaintiff. .

AFFIRMED.

      . July 26, 1977 — Resolution of Vernon Parish School Board:
      “WHEREAS, the Vernon Parish School Board has been advised that, for the best interest of the educational program at Anaco-co High School, Mr. Venton Cobum, a nontenured principal, should be relieved of his responsibilities as principal and returned to his tenured position as classroom teacher, and
      WHEREAS, the Superintendent of Schools, Mr. C. Creighton Owen, has recommended to the Board that the charge of lack of professional growth in the position as outlined for a principal be presented against Mr. Cobum, now
      “THEREFORE BE IT RESOLVED, that the Vernon Parish School Board does hereby set the date of August 11, 1977, fifteen (15) days from this date that said charges were presented to Mr. Cobum, as the date for a formal hearing on said charges.”

      . August 15, 1977 — Resolution of Vernon Parish School Board removing Mr. Cobum as Principal:
      “THEREFORE BE IT RESOLVED, that the Vernon Parish School Board, after conducting a formal hearing on this date and after hearing evidence on all charges made against Mr. Venton Cobum by the Superintendent of Vernon Parish Schools, Mr. C. Creighton Owen, at a regular meeting of the School Board on July 26, 1977, and enumerated in a letter, dated and delivered to Mr. Venton Co-bum from his non-tenured position as Principal of Anacoco High School.
      BE IT FURTHER RESOLVED, that Mr. Ven-ton Cobum shall be returned to his former position held at Anacoco High School prior to his appointment as Principal of Anacoco High School on September 5, 1974.”

      . § 444. Promotions; probationary periods and tenure
      Whenever a teacher who has acquired permanent status, as set forth in R.S. 17:442 and 17:443, in a parish or city school system is promoted by the employing school board by moving such teacher from a position of lower salary to one of higher salary, such teacher shall serve a probationary period of three years in the higher position before acquiring permanent status therein, but shall retain the permanent status acquired in the lower position from which he or she was promoted.
      During the probationary period in the position to which promoted a teacher shall not be disciplined, removed or demoted to the lower position from which he or she was promoted except in compliance with the provisions of R.S. 17:442. At the expiration of the probationary period in the higher position, a teacher, unless removed or demoted in accordance with R.S. 17:442, shall automatically acquire permanent status in the higher position and thereafter may not be disciplined, removed or demoted from such higher position except in compliance with the provisions of R.S. 17:443.
      Where a teacher has not completed the probationary period for teachers as required by R.S. 17:442, or for a particular promotional position as established herein, and is promoted to a higher position, the probationary period, either as a teacher or in the previous promotional position, shall continue to run and at the end of such three year probationary period the teacher shall automatically acquire permanent status in the previously held position until permanent status in the new position is acquired by compliance with the provisions of this Section.
      Amended by Acts 1968, No. 494, § 1.

      . § 442. Probation and tenure of parish or city school teachers
      Each teacher shall serve a probationary term of three years to be reckoned from the date of his first appointment in the parish or city in which the teacher is serving his probation. During the probationary term the parish or city school board, as the case may be, may dismiss or discharge any probationary teacher upon the written recommendation of the parish or city superintendent of schools, as the case may be, accompanied by valid reasons therefor.
      Any teacher found unsatisfactory by the parish or city school board, as the case may be, at the expiration of the said probationary term, shall be notified in writing by the board that he has been discharged or dismissed; in the absence of such notification, such probationary teacher shall automatically become a regular and permanent teacher in the employ of the school board of the parish or city, as the case may be, in which he has successfully served his three year probationary term; all teachers in the employ of any parish or city school board as of July 31, 1946 who hold proper certificates and who have served satisfactorily as teachers in that parish or city for more than three consecutive years, are declared to be regular and permanent teachers in the employ of the school board of that parish or city.


author: WATSON, Judge. GUIDRY, Judge,

text:
    FLEUR de LEIS APARTMENTS, Plaintiff-Appellee, v. DAVIDSON SASH AND DOOR COMPANY, INC., et al., Defendants-Appellants
    No. 6640.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.
    Rehearing Denied Nov. 28, 1978.
    Writ Refused Jan. 19, 1979.

      Scofield, Bergstedt & Gerard by Robert L. Hackett, Lake Charles, for defendants-appellants.
    J. Fred Patin, Lake Charles, for plaintiff-appellee.
    Carl H. Hanchey of Jones, Patin, Harper, Tete & Hanchey, Lake Charles, for defendant-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   WATSON, Judge.

The only remaining defendant in this lawsuit, Masonite Corporation, has appealed from a judgment in favor of the plaintiff partnership,. Fleur de Leis Apartments, resulting from certain defects in hardboard siding manufactured by Masonite. The jury concluded that Masonite had breached both its implied warranty of fitness and a specific guarantee of its product. The $45,-000 awarded was the cost of repainting the siding and amounts to a reduction in the price rather than redhibition. LSA-C.C. art. 2543.

The issues are: (1) prescription; (2) manifest error; and (3) the effect on the jury of remarks by plaintiff’s counsel, which are alleged to have been prejudicial.

PERTINENT TESTIMONY

The Fleur de Leis Apartments is a partnership in commendum between Paul Guil-lory and his three children with Guillory as the managing partner. Guillory acted as general contractor for construction of the 176 unit Fleur de Leis apartment complex. Nolan Conner was the subcontractor on a cost plus basis. Guillory stated that he began making complaints about the deterioration of the siding on the apartments within six months to a year after completion, although a problem with flaking paint was noted before that time. The apartments were completed around March 15, 1973. Guillory testified serious defects appeared in the siding between that date and March 15, 1974. After Guillory complained to Davidson Sash & Door Company, Inc., which had sold the siding, representatives of Masonite began arriving to observe the siding. Guillory said that he thought the product was guaranteed for 25 years and was not aware the guarantee only covered hail damage. In his opinion, excessive moisture in Lake Charles caused the problems with the siding; he thought the product was not suitable for this climate. Guil-lory testified that Bob Anderson of Masonite assured him that something was going to be done about his problem and Guillory had faith in Masonite.

The apartment complex is under the supervision of the U. S. Department of Housing and Urban Development (HUD). Guil-lory was advised by a HUD report dated February 25, 1976, that the masonite siding in the complex was fading.

Michael Nugent, a resident of the apartment complex from June of 1973 until June of 1976, testified that the appearance of the siding had deteriorated so much after his second year that he was ashamed to have guests. According to Nugent, they were still doing completion work on the north end of the complex in June of 1973.

Ebbe Mauritz Lundquist testified as an expert building inspector. He inspected the Fleur de Leis Apartments for HUD between January of 1974 and July of 1975 when he retired. His first report on the Fleur de Leis apartment project, dated April 4, 1974, made no special mention of the condition of the exterior siding, but his February 27, 1975, report noted fading col- or; Lundquist testified that the siding had also deteriorated at that time. The February report states in part:

“The masonite sidings are fading, this material is guaranteed for 25 years, recommend contact the Masonite Corporation, Chicago, Ill.” (TR.207)

After making this report, Lundquist called the Masonite Corporation; a Bob Anderson with Masonite came to his office to discuss the Fleur de Leis project and said the problem would be taken care of by Masonite. Lundquist called Guillory; Anderson spoke to Guillory on the phone in Lundquist’s presence and told him the same thing about correcting the problem. Lundquist understood Anderson to mean that Masonite would fix the siding to satisfy HUD and Guillory. Lundquist thought there was a 25 year guarantee on the Masonite material, but, after he examined the siding in February of 1975, he and Guillory examined the 25 year guarantee and discovered that the small print limits it to hail damage; Lund-quist said this was his first knowledge of the limitation.

Abel J. Walker, a contractor, worked as a construction examiner and representative for HUD from 1955 through 1972. Walker examined the Fleur de Leis apartments in June or July of 1972 while with the HUD office in New Orleans. At that time he noted nothing unusual about the masonite siding. In his opinion, the condition of the siding at the time of trial was the result of improper application of the factory finish or stain. Walker thought that the siding had a 25 year warranty and did not learn otherwise until the day of trial when he read the limitation which refers only to hail damage.

Nolan Conner testified that he built the Fleur de Leis, as well as fourteen other apartment complexes in Lake Charles, during more than 25 years in the construction business. Conner said a salesman from Masonite Corporation came to the job site and instructed his men about application of the siding. Conner did not read the installation instructions but went by what the salesman told him to do (TR.633). Conner thought the man’s name might have been Gormley. According to Conner, David Van Netta of Davidson was also at the job site frequently and the FHA Inspector came weekly. Conner’s daily job reports show David Van Net-ta, Harold Bachrack and Carl Conrad of Davidson as visitors to the site on February 25, 1972; and other representatives from Davidson on April 3rd, May 8th, June 15th; and June 29th. Conner testified that neither the FHA Inspector, the Masonite representative nor any one from Davidson ever said that the siding was being installed improperly. Conner had not worked with this particular material before or since.

Paula Hirsch, a daughter of Guillory and a member of the Fleur de Leis Apartments’ partnership, testified that she participates in the partnership’s management. Paula said the siding looked attractive initially, but, after a lot of rain in 1973, was beginning to look bad by the Spring of 1974.

Joyce McKeehan, another of Guillory’s daughters and a partner in the Fleur de Leis, testified that she took an active part in supervising the construction. The choice of siding was made after David Van Netta of Davidson recommended a product by Masonite, which was represented as the newest and best thing which could be used. This siding was selected because it would not require repainting and had a 25 year guarantee.

David Van Netta, an employee of Davidson Louisiana, Inc., a successor company to Davidson Sash & Door Company, Inc., testified that he has worked for the company for 23 years. During 1972, he was branch manager in Lake Charles and sold the ma-sonite siding in question to Paul Guillory. Van Netta testified that he did not represent that the product was maintenance free or that it had an unlimited 25 year warranty. The sidings used, Woodsman and Bayside, were new in the Lake Charles area. Both were primed and prestained at the factory. Van Netta admitted being enthusiastic about the product; saying there was a 25 year guarantee; and omitting to mention that the guarantee was limited to hail damage (TR.783). Van Net-ta, as the result of complaints from Guillo-ry, sent a letter to a Masonite Corporation representative, Jan Anderson, on November 6, 1974. Van Netta had had no complaints prior to November of 1974. After sending this letter, Van Netta contacted the district manager of Masonite, Jim Sheets, in Memphis asking what had been done on Van Netta’s request for an inspection of the apartments.

Stuart Lynn Greenberg testified that, shortly after he became Davidson’s Lake Charles manager in March of 1975, some Masonite representatives came to the City to look at the Fleur de Leis. One of them, John Grafton, is with the quality control division of Masonite. Greenberg subsequently received a letter from J. M. Sheets, regional manager of Masonite, in April of 1975 which states that:

“Masonite does not guarantee the finish on its pre-stained sidings.” (TR.202)

Greenberg sent a copy of this létter to Guillory by Connie Burleson. Guillory then told Greenberg that he had forwarded his copy of the letter to the HUD office in New Orleans, as Greenberg had advised. In 1976, Greenberg accompanied two representatives from Masonite, Bob Anderson and Paul Hill, to the apartment complex to take samples of the siding.

Paul E. Hill, an employee of Masonite, is general manager for Masonite’s national account department. Hill testified that all masonite sidings are called X-90. X-90 Woodsman and Bayside sidings, those used on the Fleur de Leis, are available pres-tained. Colorlok is the only masonite siding that comes with a 15 year guarantee on the finish. Colorlok siding is more expensive than Woodsman and Bayside, because it has a baked on factory finish, but the substrate of the board is the same. Bayside was released for sale by Masonite in January of 1971 and Woodsman in January of 1972. The Woodsman siding shipped for the Fleur de Leis on April 14, 1972, was the first shipment of that product. The Fleur de Leis used 3300 panels: % Woodsman; Vs Bayside. Virtually all of the Woodsman siding sold by Masonite in 1972 went into that project. Hill was asked to obtain samples of the Fleur de Leis apartment siding by Mr. Demaree of Masonite’s quality control department in September of 1976. Hill admitted that the color of the material had faded. Hill had first become aware of complaints about the Fleur de Leis siding in July of 1975 when he became regional manager in Memphis, Tennessee, replacing Jim Sheets.

Jack Wallace Brown, a contractor in Lake Charles, testified that he replaced some of the masonite siding on the Fleur de Leis apartments a few months before trial. According to Brown, some of the nailing was inadequate; the nails had missed the studs in some places. Brown noticed some fading of the siding, particularly in the areas exposed to weather.

Robert G. Anderson testified that he was employed in 1975 as a sales representative for Masonite in the New Orleans area. His immediate supervisor at the time, Jim Sheets, sent him a note on June 6, 1975, requesting that he explain Masonite’s siding guarantees to the HUD office in New Orleans. Anderson then discussed Masonite’s guarantees with Ebbe Lundquist of HUD on June 11, 1975. Anderson admitted that a telephone call was placed from Lund-quist’s office to Guillory in Lake Charles and Anderson also talked to Guillory. Anderson testified that he told Guillory he would contact whoever in the Masonite organization was responsible for the status of Guillory’s claim and see that Guillory received some answer or communication about the situation. Anderson denied telling Guillory and Lundquist that he would take care of Guillory’s problem.

Larry A. Demaree, a products’ performance manager for Masonite, testified as an expert in wood and wood products. He gave a detailed narrative about the manufacturer of masonite siding. Demaree also testified about extensive tests done on samples of siding from the Fleur de Leis apartment complex. Demaree summarized his tests results as showing that: all of the panels met the product standards of Mason-ite; and there were no deficiencies in the siding. Demaree indicated that some of the siding panels were improperly applied but said the problem was not “gross” (TR.1277).

Oren N. Smith, Jr., a maintenance engineering technician for the management department of HUD, testified that he inspected FHA insured projects from a maintenance standpoint. He identified a physical inspection report of the Fleur de Leis complex made by him February 25, 1976, which required that exterior painting be done within one year.

Dr. Shelby F. Thames testified as an expert in the field of polymer science with a specialty in coatings. He was contacted by Masonite in December of 1976 to run tests on the siding. Samples of the Fleur de Leis siding were taken; he took half the samples and Demaree took half. Dr. Thames referred to the stain or finish on the siding as a coating. The finish was an acrylic stain which he would expect to last in the Lake Charles area between one to three years, a minimum of one year and a maximum of three. In Thames’ expert opinion, the stain on the Fleur de Leis complex was reacting just as he would have anticipated.

Russell L. Thibodeaux testified as an expert painting contractor that the Fleur de Leis complex could probably be repainted for $45,000.

PRESCRIPTION

The original defendant, Davidson Sash & Door Company, Inc., filed a peremptory exception of prescription, 'which was referred to the merits, as was a plea of prescription on behalf of Masonite. These exceptions were argued before the trial judge during the jury’s deliberations and he concluded that the action had prescribed as to Davidson but not as to Masonite. The jury also concluded on the merits that Davidson was not liable. Separate judgments were rendered in favor of Davidson. Both the judge and the jury apparently concluded that Davidson was a seller in good faith and unaware of any vice in the siding. The judgments in favor of Davidson are not at issue in this appeal, except as they establish a lack of solidary liability between Davidson and Masonite.

Plaintiff’s first petition, filed December 2, 1975, alleged that the siding had been purchased from Davidson during 1972 and was manufactured by Masonite Corporation but did not name Masonite as a defendant. In the absence of solidary liability, the filing of this suit did not interrupt prescription as to Masonite. Majesty v. Comet-Mercury-Ford Co. of Lorain, Mich., 296 So.2d 271 (La.1974); Compare Small v. Caterpillar Mfg. Corp., 319 So.2d 843 (La.App. 1 Cir. 1975). Subsequently, on April 21, 1976, Davidson filed a third party demand against Masonite. Masonite was then cited and served with the original petition of plaintiff and other pleadings as required by LSA-C.C.P. art. 1114. Filing of the third party demand advised Masonite of the claim and its basis. LSA — R.S. 9:5801. Allstate Ins. Co. v. Louisiana Gas Serv. Co., 344 So.2d 386 (La.App. 4 Cir. 1977); affirmed at 354 So.2d 503 (La.1978) points out that:

“When it has been established that the defendant has been judicially notified, so as to acquire sufficient knowledge of the rights which are sought to be enforced against him by a suit, there results a legal interruption in favor of those to whom the rights may belong.” 344 So.2d 389.

A call in warranty, essentially what Davidson’s third party demand against Masonite amounted to, is sufficient to interrupt prescription. Note the Official Revision Comments under LSA-C.C.P. art. 1111. South Arkansas Lumber Co. v. Tremont Lumber Co., 146 La. 61, 83 So. 378 (1919): See 14 Tulane Law Review 601. A legal interruption of prescription occurred in favor of plaintiff, as well as Davidson, when the third party demand was filed. Fleur de Leis amended its original petition on September 9, 1977, to name Masonite as a defendant and allege a breach of its manufacturer’s warranty.

The prescriptive question is whether the demand against Masonite on April 21, 1976, was timely. The Davidson invoice on the siding was dated August 31, 1972, and this can be regarded as the approximate date of sale.

Masonite, as a manufacturer, is presumed to know of any vice in the thing made or constructed. Radalec, Incorporated v. Automatic Firing Corp., 228 La. 116, 81 So.2d 830 (1955); Spillers v. Montgomery Ward & Company, Inc., 294 So.2d 803 (La.1974). The one year prescriptive period provided by LSA-C.C. art. 2534 does not commence to run in favor of a manufacturer until the defect is discovered by the buyer and/or all attempts at repair are abandoned by the seller. LSA-C.C. art. 2546; Rey v. Cuccia, 298 So.2d 840 (La.1974); Moreno’s Inc. v. Lake Charles Catholic H. Schs., Inc., 315 So.2d 660 (La.1975); White v. Martin GMC Trucks, Inc., 359 So.2d 1094 (La.App. 3 Cir. 1978).

Here, as to Davidson, a seller in good faith, prescription began at the date of sale. Prescription in favor of the manufacturer, Masonite, presumed to be in bad faith, would run from discovery of the defect or defects by Fleur de Leis. The burden of proving when the buyer discovered the defect or defects rested with the manufacturer, Masonite.

There is a reasonable evidentiary basis for the jury to conclude that, while Guillory might have observed some defects in the siding within six months to a year of the project completion, other defects not apparent to resident Nugent or expert Lundquist as late as April of 1974 required correction as of February 27, 1975. Davidson’s employee, Van Netta, testified that his first complaints about the siding came in November of 1974. Thereafter, in June of 1975, Anderson made representations, which were understood by Guillory and Lundquist to mean that Masonite would make good on the problem with the siding. Even if Anderson merely assured Guillory that he would receive some communication from Masonite, as Anderson testified, this was sufficient to lull Guillory into a false sense of security and interrupt prescription. Davidson’s third party demand against Ma-sonite on April 21, 1976, was a timely interruption of prescription.

MANIFEST ERROR

There is evidence from which the jury could reasonably have concluded that Guillory bought the siding in question because he believed it would not require maintenance or repainting. LSA-C.C. art. 2529 . Even if the siding was free of any vices or defects, as the Masonite experts testified, the jury could have found that Van Netta’s representation that the siding had a 25 year guarantee was a principal motive for the purchase of the siding. Reiners v. Stran-Steel Corporation, 317 So.2d 657 (La.App. 3 Cir. 1975), writ denied, La., 320 So.2d 914. The jury apparently concluded that Guillory would not have purchased the siding had he known it would require repainting within a few years and this established a vice sufficient to warrant a reduction of the price. A misrepresentation by a seller that a thing sold has some quality which it does not possess is imputed to the manufacturer regardless of any express or implied warranty to the contrary. Peoples Fur. & G. v. Carson Hicks/Friedrichs Ref., Inc., 326 So.2d 919 (La.App. 3 Cir. 1976); Radalec, Incorporated v. Automatic Firing Corp., supra; Moreno’s Inc. v. Lake Charles Catholic H. Schs., Inc., supra.

PREJUDICE

Counsel for Masonite contends that various remarks by plaintiff’s counsel during the trial improperly influenced the jury. While counsel for plaintiff was unduly argumentative with some of the witnesses, his remarks were not so prejudicial as to deprive Masonite Corporation of a fair trial. Even if he did improperly influence the jury, our independent review of the facts supports the jury’s verdict. Temple v. Liberty Mutual Ins. Co., 330 So.2d 891 (La.1976).

For the foregoing reasons the judgment of the trial court herein is affirmed. All costs of this appeal are assessed to defendant-appellant, Masonite Corporation.

AFFIRMED.

GUIDRY, J., dissents and assigns written reasons.

GUIDRY, Judge,

dissenting.

Although I respect the views of my esteemed brethren of the majority, I am unable to agree to an affirmation in this case because, in my opinion, the record clearly reflects that plaintiff’s cause of action for redhibition and/or violation of an express warranty prescribed long prior to the institution of suit against Masonite.

It appears to be well settled that the prescription of one year applies both to actions in redhibition and actions based upon the violation of an express warranty. See 42 T.L.R. 374 and cases cited in Fusilier v. Ardoin, 266 So.2d 531 (La.App. 3rd Cir. 1972). It is equally well settled that a manufacturer is presumed to know of the defect in its product and thus is presumed to be in bad faith. A redhibitory action and/or an action for violation of express warranty against one in bad faith must be instituted within one year of the buyer’s discovery of the defect, although this prescription is interrupted by the seller’s and/or manufacturer’s attempts at repair, prescription under the latter circumstances running anew from the date on which attempts to cure or remedy the defect are abandoned. White v. Martin GMC Trucks, Inc., 359 So.2d 1094 (La.App. 3rd Cir. 1978). Finally, I observe that it is generally held that “whatever is notice enough to excite attention and put the owner on his guard and call for inquiry is tantamount to knowledge or notice of every thing to which inquiry may lead and such information or knowledge as ought to reasonably put the owner on inquiry is sufficient to start the running of prescription”. Cartwright v. Chrysler Corporation, 255 La. 598, 232 So.2d 285 (1970).

Considering these general rules I am of the opinion that the entire record, including the testimony of Paul Guillory, managing partner of plaintiff, clearly shows that prescription on any claim in redhibition or for violation of an alleged express warranty as to quality accrued long prior to the institution of suit against Davidson and certainly prior to the filing of Davidson’s 3rd party demand against Masonite.

The record shows that the siding was completely installed by the fall of 1972 (Tr. pg. 419). The invoice from Davidson for all siding furnished is dated August 31, 1972 and as the majority states this can be regarded as the approximate date of sale. Guillory testified that he noticed deterioration of the siding “long before the buildings were complete”. The following testimony of Guillory (see page 441 et seq. of transcript) is I believe significant with regard to his knowledge that the siding was defective and the date on which he acquired this knowledge.

“Q. So when was the first siding put up, approximately?
A. Well I’d say the summer of ’72.
Q. So by the end of 1972, you noticed you had a problem?
A. Yes sir.
Q. And you stated that you complained to Mr. Davidson at that time?
A. Mr. Van Netta
Q. To Mr. Van Netta at that time.
A. Yes.
Q. So you would estimate by the end of 1972 you were complaining?
A. Yes sir.
Q. You thought you had a problem?
A. I thought I had a problem, yes.
Q. And you thought you had some defective siding?
A. Sure did.”

The record leaves no doubt but that neither Masonite nor Davidson ever made any attempt to repair or remedy the defect complained of. In this regard Mr. Guillory testified as follows: (Tr. page 421)

“Q. I believe you stated yesterday that Masonite made no effort whatever to make any repairs on the siding?
A. No sir.
Q. Am I correct they made no effort whatever?
A. You’re correct.
Q. Did Davidson ever make any effort to repair your siding?
A. No sir.
Q. Did Davidson ever indicate to you that Davidson was going to do anything about your siding?
A. No sir.”

Finally, it is clearly shown by the record that the first notice of any kind that Ma-sonite had with regard to plaintiff’s complaints came by way of a letter from the seller dated November 6, 1974, over two years following completion of the sale; installation of all siding; and, discovery of defects by Guillory sufficient to evoke complaints from him. Considering the above it appears to me that plaintiff’s claim in red-hibition and/or violation of express warranty of fitness has prescribed.

The majority finds otherwise, as did the trial judge, concluding that although defects were noted as early as late 1972 such defects did not reach redhibitory dimensions until much later. I cannot agree with this conclusion. A defect in a product sold may be said to be of a character warranting redhibition, when such defect renders the thing sold either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice. LSA — C.C. Article 2520. Certainly, it must be said that a defect is of a character warranting redhibition if it is of such severity and causes such inconvenience as to evoke complaints from the buyer and requests that the seller remedy the defect. Under such circumstances, in my view, when the complaints fall on deaf ears and the seller and/or manufacturer undertakes no repairs and promises none, the buyer must be held to know that the defects are of redhibitory dimensions. Cf. Woodward-Wright & Co., Ltd. v. Engel Land & Lumber Co., 123 La. 1093, 49 So. 719 (1909). In the instant case plaintiff’s managing partner candidly admits that as early as late 1972 he knew he had purchased some defective siding; he complained about the defects; but, the seller made no effort to repair the siding and never indicated to the buyer that it would do anything about the siding. Under such circumstances I would conclude that the buyer must be held to have had knowledge of the defect at that time and that such defect was of a character warranting redhibition. To hold otherwise is to ignore the general legal principle that whatever is notice enough to excite attention and put the owner on his guard is tantamount to knowledge or notice of every thing to which inquiry may lead and is sufficient to start the running of prescription. Under the circumstances of this case I would conclude that plaintiff’s cause of action against Masonite has clearly prescribed under the provisions of LSA-C.C. Article 2546. Since in my view the plea of prescription is well founded I would not reach the other issues raised by appellant and express no opinion with regard to the disposition of these issues by my brethren of the majority.

For the above and foregoing -reasons I respectfully dissent.

      . LSA-C.C. art. 2543:
      “The purchaser who has contented himself with demanding a reduction of the price, can not afterwards maintain the redhibitory action. But in a redhibitory suit, the judge may decree merely a reduction of the price.”

      . LSA-C.C.P. art. 1114.
      “A citation and a certified copy of the third party petition shall be served on the third party defendant in the manner prescribed by Articles 1231 through 1293. Unless previously served on or filed by the third party defendant, certified copies of the following pleadings shall also be served on him in the same manner: the petition in the principal demand; the petition in the reconventional demand, if any; and the answers to the principal and reconventional demands filed prior to the issuance of citation in the third party action.”

      . LSA-R.S. 9:5801.
      “All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, including minors or interdicts, by the commencement of a civil action in a court of competent jurisdiction and in the proper venue. When the pleading presenting the judicial demand is filed in an incompetent court, or in a improper venue, prescription is interrupted as to the defendant served by the service of process.”

      . LSA-C.C. art. 2534:
      “The redhibitory action must be instituted within a year, at the farthest, commencing from the date of the sale.
      This limitation does not apply where the seller had knowledge of the vice and neglected to declare it to the purchaser.
      Nor where the seller, not being domiciliated in the State, shall have absented himself before the expiration of the year following the sale; in which case the prescription remains suspended during his absence.”

      . LSA-C.C. art. 2546:
      “In this case, the action for redhibition may be commenced at any time, provided a year has not elapsed since the discovery of the vice.
      This discovery is not to be presumed; it must be proved by the seller.”

      . LSA-C.C. art. 2529:
      “A declaration made in good faith by the seller, that the thing sold has some quality which it is found not to have, gives rise to redhibition, if this quality was the principal motive for making the purchase.”

       Van Netta was the district manager of Davidson in 1972.


text:
    Edgar CRIPPS, Jr., Plaintiff-Appellant, v. Robert Lee KENNEDY et al., Defendants-Appellees.
    No. 6645.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.
    Rehearing Denied Nov. 28, 1978.
    Writ Refused Jan. 26, 1979.

      Gravel, Roy & Burnes, Chris J. Roy, Alexandria, for plaintiff-appellant.
    Gist, Methvin & Trimble, David A. Hughes, Ralph W. Kennedy, Jr., Antoon & Dalrymple, Joseph T. Dalrymple, Alexandria, for defendants-appellees.
    Before WATSON, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

This litigation arose as the result of an automobile accident which occurred when plaintiff’s vehicle was struck in the rear after having executed a right turn from a parking lot onto Main Street in the City of Alexandria.

Plaintiff, Edgar Cripps, Jr., instituted this suit against Robert Lee Kennedy, the driver of the vehicle which struck him, and Kennedy’s alleged insurer, Industrial Fire and Casualty Company (Industrial). Plaintiff also brought suit against his own insurer, American Employers Insurance Company (American) and his employer’s insurer, Royal Globe Insurance Companies (Royal Globe), pursuant to the under insured motorist coverage provisions of their respective policies.

American and Royal Globe answered, denying liability to plaintiff alleging principally that he was guilty of contributory negligence. Industrial answered denying liability and further alleging that the policy of insurance which it had issued to Robert Lee Kennedy had been cancelled prior to the date of the accident.

A petition of intervention was filed by Maryland Casualty Company (Maryland), the workmen’s compensation insurer of plaintiff’s employer, Garrett Office Supply, seeking judgment for amounts theretofore paid to plaintiff and reserving the right to claim additional benefits.

Plaintiff filed a “MOTION TO APPOINT A CURATOR AD HOC” to represent defendant Robert Lee Kennedy, alleging that he had been unable to cite and serve the defendant with a copy of the petition in this matter. Pursuant to this motion, the court appointed an attorney to represent Kennedy-

On September 8, 1977, a trial was held before the judge alone, limited to the issue of insurance coverage under the policy of Insurance issued by Industrial to Robert Lee Kennedy. The trial judge determined that this policy of insurance had not been cancelled and was in effect on April 17, 1975.

A declinatory exception was filed on December 6, 1977 by the attorney appointed to represent Robert Lee Kennedy, alleging that the court was without jurisdiction in personam over the defendant. After a hearing this exception was referred to the merits.

Trial was held before a jury on December 7 and 8, 1977. The parties, except defendant Kennedy, entered into a stipulation in favor of Maryland, recognizing its subrogation rights under the Louisiana Workmen’s Compensation Act. The jury, through special interrogatories, returned a verdict finding defendant Kennedy guilty of negligence which was a proximate cause of the accident. The jury, however, found that the plaintiff, Edgar Cripps, was contributorily negligent in the operation of his automobile and that his contributory negligence was also a proximate cause of the accident. Accordingly, judgment was rendered in favor of all defendants and against plaintiff and intervenor rejecting all of their demands and further decreeing that plaintiff pay all costs.

On December 9, 1977, the court rendered judgment sustaining the declinatory exception which had been filed on behalf of the absent defendant, Robert Lee Kennedy.

Plaintiff’s application for new trial was denied for oral reasons assigned February 7, 1978. Plaintiff thereafter perfected a de-volutive appeal to this court, to which Industrial alone has submitted an answer.

The issues presented on appeal are:

(1) Was plaintiff guilty of contributory negligence which was a proximate cause of the accident;

(2) Did defendant Kennedy have the last clear chance to avoid the accident;

(3) Did the trial court commit reversible error in inadvertently charging the jury twice concerning the statutory duty imposed on a motorist making a right hand turn (LSA-R.S. 32:101(1));

(4) Insurance coverage of Robert Lee Kennedy under the policy issued by Industrial; and,

(5) Quantum, if plaintiff is entitled to recovery.

The accident occurred at 2:42 P.M., April 17, 1975 in the City of Alexandria, Louisiana. Weather conditions were described as clear and dry. The collision took place on Main Street near its intersection with Cas-son Street. Main Street is a two-lane, one-way street, the direction of travel being from east to west.

The record reflects that immediately pri- or to the accident, plaintiff executed a right hand turn onto Main Street from a parking lot located north of and adjacent to Main Street. In negotiating this maneuver, plaintiff crossed the northernmost lane of travel and entered the southernmost or left lane of travel. After observing a traffic signal ahead, he decelerated and was thereupon struck from behind by the Kennedy automobile which was being driven in a westerly direction in the southernmost lane of Main Street. The record reflects that the Kennedy automobile was being driven at a rate of speed greatly in excess of the posted speed limit.

The first issue for our determination is whether the plaintiff was contributorily negligent in causing this accident.

When plaintiff entered directly into the left lane of travel upon executing a right-hand turn onto Main Street, he did so in violation of LSA-R.S. 32:101(1), which provides in pertinent part:

“The driver of a vehicle intending to turn at an intersection shall proceed as follows:
(1) Right turns. Both the approach for a right turn and a right turn shall be made as close as practicable to the right-hand curb or edge of the roadway. . ."

Additionally, the record reflects that plaintiff’s vehicle was struck approximately 48 feet from the point at which he entered the highway. This being uncontroverted we find applicable LSA-R.S. 32:124 which provides in part as follows:

“The driver of a vehicle about to enter or cross a highway from a private road, driveway, alley or building, shall . yield the right of way to all approaching vehicles so close as to constitute an immediate hazard."

LSA-R.S. 32:124 obviously grants a privilege of immediate use of the road to thru traffic on a highway and imposes a concomitant duty upon a driver making a right hand turn onto a highway (as did the plaintiff herein) to yield to vehicles already traveling on the road.

It is well settled that the primary duty of avoiding a collision rests with the driver of a vehicle entering a public highway from a secondary roadway, and such a driver is required to keep a lookout for vehicles upon the highway and to desist from entering until it is apparent to a reasonably prudent person that such can be done in safety. Duplechien v. McNabb, 260 So.2d 789 (La.App. 4th Cir., 1972); DiPaola v. Fernandez, 270 So.2d 893 (La.App. 4th Cir., 1972), reh. den. Jan. 15, 1973.

We have reviewed the record in this case in light of the cited sections of the Highway Regulatory Act and the jurisprudence interpretative thereof and conclude that there is ample evidence supportive of the jury’s determination that plaintiff was guilty of contributory negligence which proximately caused the accident.

The next issue to be considered is whether Robert Lee Kennedy had the last clear chance to avoid a collision with plaintiff’s vehicle. Testimony adduced at trial indicates that Kennedy was driving greatly in excess of the posted speed limit and was apparently intoxicated at the time of the accident. Following the accident, his vehicle came to rest in such a position as to indicate that he had swerved to the right in an apparent attempt to ¿void the collision.

Before the doctrine of last clear chance can be invoked, the party asserting its application must establish by a clear preponderance of the evidence that, 1) he was in a position of peril of which he was unaware or from which he was unable to extricate himself; and, 2) the party against whom the doctrine is to be invoked actually had discovered, or by the exercise of reasonable care should have discovered such position of peril, and COULD HAVE AVOIDED THE ACCIDENT by the exercise of reasonable care. Deo Garcias v. Collins, 236 So.2d 295 (La.App. 4th Cir., 1970) and authority cited therein.

Under the facts of this case, we conclude that at the point at which Kennedy realized, or with the exercise of reasonable care should have discovered that plaintiff’s vehicle would violate his right-of-way, he could not by the exercise of reasonable care have avoided the accident. The only reasonable actions which a person in his position could take would be to apply his brakes and swerve away from the preceding vehicle. The record reflects that both measures were attempted by Kennedy prior to the accident, but were unsuccessful in preventing the collision. We find, therefore, that Kennedy did not have the last clear chance to avoid this accident.

The next question before us is whether the trial court committed reversible error when it charged the jury twice on the statutory duty imposed on a motorist making a right hand turn. We find that, in light of the totality of facts produced at trial, such an inadvertent statement did not so prejudice the jury as to give rise to reversible error.

In light of our conclusion with regard to the first three issues presented, it is not necessary that we consider the question of quantum or coverage under the insurance policy issued to Robert Lee Kennedy by Industrial.

For the above and foregoing reasons the judgment appealed from is affirmed at appellant’s costs.

AFFIRMED.

WATSON, J., dissents being of the opinion that the doctrine of last clear chance is applicable.

      . Plaintiff alleged that he had been acting within the course and scope of his employment at the time of the accident.