author: STOULIG, Judge. REDMANN, Judge

text:
    Henry ARNOLD and John F. Robbert v. The BOARD OF LEVEE COMMISSIONERS OF the ORLEANS LEVEE DISTRICT et al.
    No. 7182.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10. 1976.
    Rehearing Denied March 16, 1976.
    Writ Refused April 27, 1976.

      Garon, Brener & McNeely, John F. Robbert and Luke Fontana, New Orleans, for plaintiffs-appellants.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John W. Haygood and Lucius F. Suthon, New Orleans, for The F. Edward Hebert Foundation, defendant-appellee.
    Richard J. McGinity, New Orleans, for The Bd. of Levee Commissioners of the Orleans Levee Dist., defendant-appellee.
    Before REDMANN, STOULIG and BEER, JJ.
   STOULIG, Judge.

Plaintiffs, Henry Arnold and John F. Robbert, filed a taxpayers’ suit to enjoin the F. Edward Hebert Foundation (Foundation) from building a museum and. library on lakefront property in the City of New Orleans owned by the Orleans Parish Levee Board (Board). Plaintiffs contend the defendant board and the defendant foundation, a private non-profit corporation, violated four laws in entering into a lease agreement whereby the Foundation would lease at an annual rental of $1 per acre Board property on which a public building named after Congressman Hebert would be erected. Under its provisions, the Board is obligated at the termination of the lease (30 years hence or on the contingency of Mr. Hebert’s death) to maintain the museum at public expense. Defendants’ exception of no cause of action was maintained and plaintiffs have appealed.

In essence plaintiffs petitioned to nullify the lease because (1) it was executed without advertising for bids, contrary to L.R.S. 41:1211 et seq.; (2) it contemplates naming a building on State owned land after a living person, contrary to L.R.S. 14:316; (3) it was signed without first holding public hearings and without authorization of the City Council in violation of Comprehensive Zoning Ordinance (1970), Art. 5, § 1.4(18); and (4) it requires construction of a museum on a substandard site in violation of the zoning ordinance.

In deciding these exceptions, we deem the allegations of fact in plaintiffs’ petition as true. These quoted allegations set forth the facts upon which plaintiffs rest their claim the Public Lease Law was violated :

“6
“In or about January, 1975, the Levee Board entered into a contract of lease with the Hebert Foundation whereby a certain portion of State owned land in the vicinity of the Lake Oaks Subdivision was leased by the Levee Commission to the Hebert Foundation for a term of 30 years. A copy of said lease is attached hereto and made a part hereof.
“Petitioners allege on information and belief that the lease was privately negotiated and concluded between the parties thereto and not advertised or publically bid as required by law, more particularly, La.R.S. 41:1211 et seq.”

The pertinent part of Section 41 of the Revised Statutes regulating public lands owned by the State is found in Chapter 10, entitled “Leases of Public Lands.” The terms and conditions under which a public agency may lease property of the State is set forth in this part. L.R.S. 41:1211 defines as a “ * * * ‘lessor’ * * * all * * * branches, departments or agencies of the state, or any school district, levee district, * * * or other unit or institution, deriving its authority and powers from the sovereignty of the state.” (Emphasis added.) L.R.S. 41:1212 permits the agency to lease property over which it has title for “any * * * legitimate purposes whatsoever * * L.R.S. 41 :- 1213 gives any person the right to apply for a lease of public lands and outlines the procedure to follow, while L.R.S. 41:1214 grants the agency authority to initiate lease negotiations. In both instances the proposed lease must be advertised in the official journal of the parish where the land is located “ * * * setting forth a description of the land to be leased, the time when the bids therefor will be received, and a short summary of the terms and conditions and purposes of the lease to be executed * * *

The Public Lease Law originated with Acts 1940, No. 70. The legislature, cognizant of the propensity of some elected officials to exercise a “spoils system” approach to leasing state owned property, moved to curb abuses by introducing the ■public bid concept to leasing as it had previously done in the area of public contracts. In Ellis v. Acadia Parish School Board, the Supreme Court noted a threefold purpose for the Public Lease Law, namely:

“* * * The object and intent of the Legislature in adopting Act No. 170 of 1940 was to give all persons a chance to bid on leases of the public lands, to prevent boards and other authorities from favoring' one person over others, and to produce to the various agencies of the State named therein larger revenues by requiring competitive bidding for the leases. * * * ” 29 So.2d at 465.

In the past when certain agencies have been challenged in court for failure to comply with its provisions prior to negotiating a lease, the defense raised is their powers, conferred by special statute, cannot be curbed, controlled or in any way modified by the general provisions of L.R. S. 41:1211 et seq. And so it is in this case. Defendants’ position on the public lease issue is that its power to lease, conferred by LSA-Const. Art. 16, § 7(h) (1921), gives the Board absolute power to negotiate any lease on any terms and conditions it deems proper. We quote that part of the 1921 Constitution that the Board urges confers unrestricted authority:

“(h). State land grants. To enable the said Board to perform the work herein provided for and to assist in defraying the cost and expenses thereof, and to carry out the purposes of existing laws and this Article of the Constitution, the State of Louisiana hereby grants and releases to said Board the title of the State in and to all public property necessary for the purposes hereof and all lands reclaimed or filled in within any. levee embankments, slopes, retaining walls, sea walls, and breakwaters constructed hereunder .and in and to all lands lying within the territorial limits of said project and hereby releases said land from any public trust or dedication and said Board shall have jurisdiction, power and authority to sell and lease, or otherwise dispose of such portion of the lands reclaimed and other property acquired for the purpose of said improvement, except the lands herein required to be dedicated by it for public use, together with any building, improvements or other works constructed thereon, under such terms and conditions and by such methods as said Board may deem proper * *

LSA-Const. 1974, Art. 14, § 16(A) (12) changed the partially quoted amendment to the status of statute. We note this in passing because plaintiffs and defendants both argue it is significant to support their respective positions. From the standpoint of the result we reach, the change is academic.

In any event, we cannot accept defendants’ contention the words, “ * * * said Board shall have * * * power * * * to * * * lease * * * under such terms and conditions and by such methods as said Board may deem proper * * *exempt it from compliance with L.R.S. 41:1211 et seq. We find the situation before us analogous to that considered by the Supreme Court in Hall v. Rosteet, which held the Calcasieu Parish Police Jury could not lease a public airfield, under the jurisdiction of an airport authority, without first complying with the Public Bid Law. The Airport Authority, created pursuant to L.R.S. 2:601 et seq. is regulated by the Uniform Airports Law (L.R.S. 2-131 et seq.). L.R.S. 2:135(3) permits

the local Airport Authority to lease property for a term not exceeding 25 years to private parties and is silent as to competitive bidding. The Police Jury contended this special law exempted it from the applicability of the general public lease law, because it did not contain the advertisement for bids proviso and because it was permitted to execute leases for a maximum 25-year period, whereas L.R.S. 41:1211 et seq. limits the duration to 10 years. Where the laws were in conflict (on duration), the Court held the special law superceded the general provision, but where they could be construed harmoniously, both were applied. Thus the Police Jury was enjoined from negotiating private leases without first complying with the Public Lease Law.

One of the principles enunciated by Hall is that the revised statutes were enacted by the legislature as a complete body of law adopted as a whole, thus all provisions should be read together and reconciled where possible. The statutes in question were all part of this act. In the case before us, we are dealing with what was a constitutional grant of power at the time L.R.S. 41:1211 was enacted; however the difference in status between LSA-Const. 1921 Art. 16, § 7(h) and the revised statutes do not change the result. L.R.S. 41:1211 expressly provides levee districts are included within its purview as one of the agencies “ * * * deriving its authority and powers from the sovereignty of the state.” A constitutional grant of power has as its source the sovereignty of the state, just as the revised statutes do, and in the absence of conflict between these enactments, both must be recognized. Thus, the Public Lease Law is inoperative only if the constitutional or statutory grant of power may be construed to expressly exempt the agency from its operation.

Defendants argue that L.R.S. 38:1244 and 1246, quoted below, manifest a legislative intent to exempt it from control of the Public Bid Law:

“All public levees and embankments constructed by the Board of Commissioners of the Orleans Levee District in and on the water of Lake Pontchartrain and shore adjacent thereto, full charge and control of the levees and embankments shall vest in the board until otherwise provided by law. The board shall have plenary powers for the maintenance of the property including the power to sell or lease any parts thereof, as in the judgment of the board, may not be necessary for public purposes, under the conditions and restrictions which the board may impose.” L.R.S. 38:1244
and
“The Orleans Levee Board is hereby requested and authorized to provide space at the New Orleans Lakefront Airport for hangars for small private airplanes and to make available for lease and to lease by public advertisement and bidding such space for construction of such hangars by the lessees, or the Orleans Levee Board, in its discretion, may provide the space and hangars for such purpose in any other manner by public advertisement and bidding. Such space and hangars shall conform in all respects with the rules of the Federal Aeronautics Administration. The Orleans Levee Board shall prescribe the necessary rules and regulations to carry out the purposes of this section.” L.R.S. 38:1246

Section 1244 originated with Acts 1916, No. 202, § 1 and was reenacted verbatim in the Revised Statutes of 1950. In addition to its amenability to being harmoniously construed with the Public Lease Law, we find no logical basis for holding the quoted language, written 24 years before the Public Lease Law was passed, expresses special permission for the Board to negotiate leases without compliance with L.R.S. 41:1211.

While Section 1246 enacted in 1968 does expressly require hangar space to be publi-cally advertised and awarded after competitive bidding, we cannot assign the import to this language urged by defendants, namely, that the omission of such language in the original act drafted in 1916 is tantamount to a sanction to be exempt from the general lease law concerning public land. The Hall rationale of applying all statutes that do not conflict should prevail.

Finally, on the public lease law issue, defendants rely on this language from Hebert v. Police Jury of West Baton Rouge Parish:

“The third point as to the alleged violation of the Public Lease Law (R.S. 41:1211 to 41:1221, inclusive) and the alleged violation of the Public Contract Law (R.S. 38:2211 to 38:2217, inclusive) are likewise without merit. Recent decisions of our courts have clearly held that the provisions of the Public Lease Law are not applicable to lease agreements entered into by public bodies pursuant to express constitutional or statutory provisions. Kliebert v. South Louisiana Port Commission [La.App.], 182 So.2d 814 (1966); Wright v. Lake Charles Harbor and Terminal Dist. [La.App.], 188 So.2d 449 (1966). See also LeBlanc v. Police Jury of the Parish of Rapides, supra. * * *” 200 So.2d at 891.

In Kliebert, the right of the South Louisiana Port Commission to issue bonds for funds to construct warehouses and then privately negotiate for their leasing was put at issue. Under LSA-Const.1921 Art. 6, § 33.1, the authority was created and authorized, inter alia, to lease facilities administered by it. In holding the Public Lease Law did not apply because the constitutional grant of power was express, the court indicated this result was influenced because the type of lease at issue was too complex to be amenable to public advertisement and bid laws. (Cf. New Orleans Transfer Co., Inc. v. City of New Orleans, 284 So.2d 362 (La.App. 4th Cir. 1973), requiring public bidding on a complex waste processing and disposal contract.)

The distinction between Kliebert and this case is apparent. The lease in question was one connected with activities the Port Commission was created to administer, while the lease before us has no relation to the primary function of the Orleans Parish Levee Board. The court might reasonably construe the language of LSA-Const. 1921 Art. 6, § 33.1 to-grant express authority to lease port facilities and thus exempt that commission from compliance with the Public Lease Law, particularly after finding as a fact that “it would be an unwarranted restriction on the operation of the Commission to require it to submit an intricate agreement of the type proposed here to the rigors of the competitive bidding statute.”

The Wright case cited in Hebert need not be distinguished because the court avoided the issue of the applicability of the Public Lease Law by finding as a fact the agreement before it was not a lease.

We conclude that the lease negotiated between defendants is valid only if consummated after compliance with the provisions of L.R.S. 41:1211 et seq. While defendants concede the lease was privately negotiated, our adjudication necessarily is limited to the record before us and we can only hold that the petition does' state a cause of action in this respect.

Before passing to the second legal issue raised by plaintiffs’ petition, we note that appellants argued in brief the $l-per-annum-per-acre consideration recited in the lease is insufficient to support a valid contract of lease and cited Northeast La. Detach. of Mar. C. L. v. City of Monroe, 253 So.2d 107 (La.App. 2d Cir. 1971), in support of this argument. Because the petition has no factual allegations setting forth a deficiency in the lease for inadequate consideration, we cannot consider this argument on appeal from a judgment maintaining an exception of no cause of action.

The second ground upon which plaintiffs allege the lease is null is stated in Allegation 14 of the petition, which we quote:

“The defendants have entered into a lease agreement for a part of a public park and public recreation area owned by the State of Louisiana which has been constructed and maintained with public funds for purpose of honoring F. Edward Hebert. Furthermore, the defendants’ lease agreement is designed to expire upon the death of F. Edward Hebert or at the end of thirty years, whichever is sooner, and at the termination of the lease the Levee Board will become obligated to maintain and operate the library and museum in perpetuity at the taxpayers’ expense. The defendants’ project is, therefore, a direct violation of and a futile circumvention of La.R.S. 14:316 relative to the naming of public buildings in honor of living persons.”

In reviewing the petition and the attached lease, there is no indication the proposed library-museum will bear the name of F. Edward Hebert. As we construe L. R.S. 14:316, the prohibition is limited to the naming of a public building in honor of a living person. While both briefs indicate the intent of the parties is to name the building in honor of Congressman Hebert, we must limit our review to the well-pleaded facts of the petition. As the record is now constituted, there is no allegation of fact that the proposed construction will be named for F. Edward Hebert; therefore, a discussion of whether such action falls within the prohibition of L.R.S. 14:316 or whether an injunction may issue to restrain violation of this criminal statute would be premature. With respect to this allegation, the exception was properly maintained.

The petition sets forth two alleged violations of the Comprehensive Zoning Ordinance of the City of New Orleans as the third and fourth ground for nullifying the lease in Allegations 10 through 13, which we need not quote because plaintiffs apparently have acquiesced in the judgment that dismissed them as having stated no cause of action. An exception maintained in the lower court and not put at issue by plaintiffs in the Court of Appeal is presumed abandoned.

Appellants did argue to this court the property, previously dedicated by the Board to the City for public park purposes, could not be leased for the construction of a library without legislative consent. As with the inadequacy of consideration argument, the petition does not contain any factual allegation to put this point of law at issue and we will not pass on it.

Parenthetically, we comment that the proffer of proof submitted by defendants at the trial court’s instruction is no more admissible in the trial of an exception than is testimony or other evidence tending to support or defeat the allegations of the petition. Trial of the exception must be limited to the allegations of fact contained in the petition and any attachments thereto.

For the reasons assigned, the judgment appealed from is annulled and this matter is remanded for further proceedings consistent with the views expressed herein; imposition of costs to await the final disposition of the matter.

Annulled and remanded.

REDMANN, Judge

(concurring):

I agree that the allegations of noncompliance with the public lease law do state a cause of action and that we therefore must reverse. I do not join in the assertion, in obiter dicta, of theories under which we would not reverse.

      . The contract of lease provides for a total annual rental of $3.33 for the 3% acres leased.

      . Burns v. Genovese, 254 La. 237, 223 So.2d 160 (1969).

      .Acts 1826, No. 73 is the source of the present law requiring bids on government contracts that exceed a certain amount. As reenacted and amended it is now L.R.S. 38:2211.

      . 211 La. 29, 29 So.2d 461 (1947).

      . 247 La. 45, 169 So.2d 903 (1964).

      . 200 So.2d 877 (La.App. 1st Cir. 1967).

      . Kliebert v. South Louisiana Port Commission, 182 So.2d 814 (La.App. 4th Cir. 1966).

        . Wright v. Lake Charles Harbor and Terminal Dist., 188 So.2d 449 (La.App. 3rd Cir. 1966).

      . Sims v. Matassa, 200 So. 666 (La.App. 1st Cir. 1941).


source: Caselaw Access Project

author: LEMMON, Judge.

license: Public Domain

text:
    Henry JOHNSON v. Hubert P. LABORDE, and New Orleans Public Service, Inc. (Consolidated with No. 7264, Neeb-Kearney and Company, Inc. et al. vs. Hubert Laborde et al., Consolidated with No. 7265, Wallace Shelton vs. New Orleans Public Service, Inc. et al.)
    No. 7263.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Rehearing Denied March 16, 1976.
    Writ Refused May 11, 1976.
    Birdsall, Alvarez & Rodriquez, Benjamin J. Birdsall, Jr., New Orleans,- for plaintiff-appellee.
    Adams & Reese, Lloyd W. Hayes, New Orleans, for intervenors-appellees.
    Floyd F. Greene, New Orleans, for defendants-appellants.
    Before REDMANN, LEMMON and MORIAL, JJ.
   LEMMON, Judge.

These three consolidated appeals involve an intersectional collision between a tractor-trailer unit and a city bus operated by defendant carrier. Suit No. 7263 presents the claim of the truck driver for personal injuries. The trial court awarded damages in all three cases, and defendants appealed.

On appeal defendants concede that the awards were within the range of the judge’s discretion, but contest the finding of liability for these damages.

The accident occurred on a dry, clear day at the intersection of Louisiana Avenue and Loyola Street in the City of New Orleans. Louisiana was a north-south thoroughfare divided by an 18-foot median, the northbound portion consisting of two 11-foot lanes for traffic and a parking lane of approximately the same width. Loyola was a two-lane, two-way undivided street, 32 feet in total width. A stop sign controlled Loyola traffic entering Louisiana.

Just prior to the accident the bus, headed west on Loyola, had reached the intersection and stopped at the corner to discharge passengers, with the front of the bus approximately four feet from the intersection. The bus driver testified: Intending to cross the northbound lanes of Louisiana and then to turn left and proceed south on Louisiana, he closed the door while stopped, noticing that southbound Louisiana traffic approaching from his right “looked all right.” He then looked to his left and saw plaintiff’s truck about three-fourths of a block away, traveling at a normal speed. He moved forward, but realized while in the intersection that he would have to stop for southbound traffic, and he lifted his foot from the pedal and began to brake. About the same time, he heard the loud blasting of a horn from the left, butmever looked back in that direction prior to impact. He brought the bus to a stop with the front inside the neutral ground area, and the impact occurred about one second after he completed the stop. He estimated that approximately four to five seconds elapsed between the start from the stopped position and the impact.

That the 40-foot long bus, in the location at time of impact, blocked both lanes of travel on Louisiana was established by evidence showing the measurements of the 18-foot median and two 11-foot lanes. Other evidence established that the truck was located in the right hand lane at time of impact and that the right front of the truck struck the left side of the bus, just behind the rear wheel. (Scale measurement of a photograph exhibit shows the point of major damage about eight feet from the rear).

The investigating officer contradicted the bus driver to some extent, stating that the bus driver told him he didn’t see the truck approaching from the left. The officer further confirmed that there were no obstructions to the view of either driver.

The truck driver testified: He was traveling in the right lane at 25 to 30 miles per hour, having just shifted to tenth gear. When he was about even with a certain building (determined by later measurement to be 125 feet from the intersection), he first saw the bus near the curb on Loyola, “creeping out”. He sounded his horn, but when the bus continued coming out into the intersection “pretty fast” and apparently was not going to stop, he shifted down to slow his speed, started applying the brakes, and “laid on” the horn. He “got over” to the right slightly, but was apprehensive about hard braking or swerving because the type of cargo in his trailer (45,000 pounds of green coffee) could shift upon sudden movement and cause complete loss of control and possible overturning of the trailer, with possible injury to people in the area. At impact the front of the bus was located near the east edge of the median and the bus was stopping but still moving slightly. His speed at impact was 10 to 15 miles per hour.

Subsequent testing showed that the bus took 6.2 seconds to move across Louisiana Avenue from a stopped position near the stop sign to a stopped position within the cut in the neutral ground. Testimony by other witnesses added little information of value, except for the general consensus that the bus at time of impact was either still moving or had just stopped.

Defendant driver’s negligence was essentially established by his own testimony that he saw the truck approaching at a normal speed and that the impact occurred only a second after he stopped in the neutral ground area. A motorist facing a stop sign is required not only to stop, but also to remain stopped and to yield the right of way to vehicles approaching so closely as to constitute an immediate hazard. R.S. 32:123; New Orleans City Code, 1956 § 38-97. The bus driver apparently either misjudged the closeness of the approaching truck or, more probably, had enough time when he entered the intersection to make the complete crossing, but was forced to make an unanticipated stop when he realized he had misjudged traffic approaching from the right. In either event he suddenly and unsafely blocked both northbound traffic lanes and created an emergency situation for plaintiff, to whom he should have accorded the right of way.

The other evidence argued in support of defendants’ position essentially bears upon the issue of contributory negligence.

Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, the standard being that of a reasonable man under like circumstances. Smolinski v. Taulli, La., 276 So.2d 286 (1973). Under plaintiff’s version of the incident his conduct was entirely reasonable. This version was supported to some extent by other evidence and was accepted as credible by the trial judge, who found:

“When it became apparent that the bus was pulling out, it was simply too late to stop the heavy rig without substantial risk to the driver and any vehicles that may have been around. Faced with a sudden emergency not of his own making the driver’s efforts to avoid the collision were entirely reasonable.”

We note that the time required to travel 125 feet, moving at 36 feet per second (25 miles per hour) and slowing over the distance to 14 feet per second (10 miles per hour — the driver estimated his speed at impact at 10 to 15), is consistent with the time required (according to the tests) for the bus to travel the distance it did. However, under all of the circumstances of this case, we agree that the time (after it was apparent the bus was pulling out) simply was not sufficient to allow plaintiff to avoid the accident. A contrary conclusion would place too great a duty on the motorist with the right of way, who had no reason to anticipate that a vehicle would suddenly enter and block his path of travel.

The judgment is affirmed.

Affirmed.

      . Suit No. 7264, 327 So.2d 504, presents the claim of the truck driver’s employer and insurer for property damage and workmen’s compensation benefits. Suit No. 7265, 327 So.2d 505, presents the personal injury claim of a bus passenger.


text:
    NEEB KEARNEY AND COMPANY, INC. and Aetna Insurance Co. v. Hubert LABORDE and New Orleans Public Service, Inc. (Consolidated with No. 7263, Henry Johnson vs. Hubert P. Laborde et al., Consolidated with No. 7265, Wallace Shelton vs. New Orleans Public Service, Inc. et al.)
    No. 7264.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Rehearing Denied March 16, 1976.
    Adams & Reese, Lloyd W. Hayes, New Orleans, for plaintiffs-appellees.
    Floyd F. Greene, New Orleans, for defendants-appellants.
    Before REDMANN, LEMMON and MORTAL, JJ.
   LEMMON, Judge.

This case was consolidated for trial and for argument on appeal with the case of Johnson v. Laborde, 327 So.2d 502, decided this date. For the reasons assigned in Johnson v. Laborde, the judgment is affirmed.

Affirmed.


text:
    Wallace SHELTON v. NEW ORLEANS PUBLIC SERVICE, INC., et al. (Consolidated with No. 7263, Henry Johnson vs. Hubert P. Laborde, et al., Consolidated with No. 7264, Neeb-Kearney and Company, Inc., et al. vs. Hubert Laborde et al.)
    No. 7265.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Rehearing Denied March 16, 1976.
    Donald F. Deboisblanc, New Orleans, for plaintiff-appellee.
    Floyd F. Greene, New Orleans, for defendants-appellants.
    Before REDMANN, LEMMON and MORIAL, JJ.
   LEMMON, Judge.

This case was consolidated for trial and for argument on appeal with the case of Johnson v. Laborde, 327 So.2d 502, decided this date. For the reasons assigned in Johnson v. Laborde, the judgment is affirmed.

Affirmed.


author: MILLER, Judge.

text:
    Joseph RAGGIO, Plaintiff-Appellee, v. VOLKSWAGEN INSURANCE COMPANY et al., Defendants-Appellants.
    No. 5342.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 18, 1976.

      See also, La.App., 327 So.2d 512.

      Cook, Clark, Egan, Yancey & King by Steven H. Beadles, Shreveport, for defendant-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Jack E. Carlisle, Jr., Shreveport, for defendant-appellee.
    Makar & Whitaker by John B. Whitaker, Gerard F. Thomas, Jr., Natchitoches, for plaintiff-appellee.
    Before MILLER, WATSON and CU-TRER, JJ.
   MILLER, Judge.

Defendant Reliance Insurance Company appeals an award of $1,741.90 to plaintiff Joseph Raggio made under Reliance’s uninsured motorist coverage. Alternatively it appeals the dismissal of its demand for contribution by another uninsured motorist carrier, defendant Safeco Insurance Company. Finally, it appeals the dismissal of its claim for indemnity from the underin-sured tortfeasor, defendant Eugene La-Cour. We affirm all holdings except the denial of Reliance’s third party demand against the underinsured tortfeasor.

James LaCour, minor son of defendant Eugene LaCour, ran a stop sign while entering Highway 1 from a side road. Plaintiff Joseph Raggio was a passenger in the pickup truck which struck the LaCour automobile. The trial court found La-Cour’s negligence to be the sole legal cause of the accident and the appeal does not question that determination.

The owner of the pickup truck in which Raggio was riding carried uninsured motorist coverage with defendant Reliance with $5,000 per person limits of liability. Raggio owned an automobile on which he carried uninsured motorist coverage with defendant Safeco Insurance Company with $5,000 per person limits of liability.

The issues are:—

1) Is the award for general damages manifestly excessive?
2) Under the 1972 amendment to LSA-R.S. 22:1406, will an “insured” motorist be considered “uninsured” by virtue of being “underinsured” when the limits of uninsured motorist coverage carried by plaintiff did not exceed tortfeasor’s liability limits? And can plaintiff “stack” the uninsured motorist limits of a policy carried by him with similar limits on a policy not carried by him to meet the criteria for application of uninsured motorist coverage?
3) Can an insured under an uninsured motorist policy recover from his insurer sums which he is not legally entitled to recover from the tort-feasor ?
4) If “stacking” is allowed for uninsured motorist coverage, does Reliance’s other insurance “excess” clause apply or should the loss be prorated between the uninsured motorist coverage carriers?

QUANTUM

Raggio sustained a compound comminut-ed fracture of the nasal septum, extensive intranasal lacerations, a full thickness laceration of the lip, floor of the nose and the left cheek, together with multiple larcera-tions, bruises and abrasions about the head, shoulders, neck, chest, arms, and hands. The surgical repair was successful but some visible scarring remains. The trial court awarded $5,000 as general damages and $1,741 in special damages. LaCour’s insurer, defendant Volkswagen Insurance Company, paid the limit of its $5,000 liability and is not before us.

Since the judgment against Reliance is a relatively small portion of the award, Reliance seeks to avoid liability at the outset by contending the $5000 award for general .damages was manifestly excessive. Appellant contends the award is “twice the amount” of prior awards in similar cases:’ Raggio has cited prior awards of larger sums in what he contends to be similar cases.

In reviewing trial court awards we are admonished to require appellant to establish an apparent abuse of discretion on the specific facts of the case. Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974); Bitoun v. Landry, 302 So.2d 278 (La.1974). Although we might have made a different award, a review of the record does not indicate an abuse of the trial court’s much discretion. Bradford v. Brewton Butane Company, 319 So.2d 892 (La.App. 3 Cir. 1975); Clayton v. Wiley, 325 So.2d 642 (La.App. 3 Cir. 1975).

UNDERINSURED MOTORIST

Reliance also contends its uninsured motorist coverage is inapplicable since the tortfeasor had insurance with the same limits that Reliance had on its uninsured motorist coverage. Volkswagen Insurance had $5000 bodily injury coverage on La-Cour’s vehicle which it paid. Since Reliance’s uninsured motorist limits are in the same amount, Reliance contends LaCour was not underinsured.

Raggio contends Reliance’s $5000 limit can be stacked with the $5000 uninsured motorist coverage available to him through Safeco’s policy covering his own automobile. By stacking he claims to have $10,000 in uninsured motorist coverage available and LaCour is underinsured in the amount of $5,000.

The term “stacking” is used when uninsured or underinsured coverages under multiple policies or multiple vehicles covered under one or more policies are cumulat-ed to determine coverage available to the injured party. At least three different problem areas are involved: — other insurance provisions, exclusionary clauses, and the definition of an underinsured motorist.

Graham v. American Casualty Co. of Reading, Pa., 261 La. 85, 259 So.2d 22 (1972) is the fountainhead. Graham was a guest passenger in a vehicle involved in an accident. There was no liability insurance covering the vehicle at fault''and no uninsured motorist coverage on the vehicle in which Graham was riding. However, Graham had a policy on his own automobile and as a member of the household was an insured under two policies owned by his father. He was awarded damages of $25,000 and attempted to recover $5,000 on each of the three uninsured motorist policies. The insurance companies contended the policy provisions restricted their liability by reducing their coverage proportionately with the coverage afforded by other insurance (the pro-rata clauses). Therefore they contended contribution of all three should be limited to the $5,000 coverage required by the Motor Vehicle Safety Responsibility Law. This contention was rejected and the court refused to reduce the mandatory minimum coverage of each policy.

This result was predicated on an interpretation of LSA-R.S. 22:1406. The minimum uninsured motorist coverage must be included in Louisiana policies and is supplemental to liability insurance. The court found the statute to embody public policy and refused to give effect to provisions of the insurance contract which would bring about a contrary result.

Graham was allowed to recover “the minimum” from all three insurers which collectively was more than the minimum liability the uninsured motorist was, required to carry.

In Deane v. McGee, 261 La. 686, 260 So.2d 669 (1972) another type of other insurance provision was considered. Plaintiff was a guest passenger in a vehicle involved in a collision with an uninsured motorist. The vehicle in which he was riding had uninsured motorist coverage through two policies totaling $10,000 ($5,000 each). Plaintiff also had uninsured motorist coverage in the amount of $10,000 on his personal automobile as required by Florida law. The Florida insurer contended the “excess” provision in its policy required the Louisiana insurance to be primary coverage and since that satisfied the $10,000 minimum required by Florida law, the Florida insurer should have no liability. It was held that Florida law, like Louisiana law, would not recognize provisions reducing the minimum coverage required by statute. It was reasoned there where two or more policies have actually been issued and premiums for uninsured motorist coverage paid, the mandatory minimum coverages required by statute were available for damage claims under each policy.

This line of reasoning was followed by this court’s holding “minimum coverage” to be available as to coverage afforded each vehicle even if there was only one insurance policy. Wilkinson v. Fireman’s Fund, 298 So.2d 915 (La.App. 3 Cir. 1974).

The second problem was encountered in Crenwelge v. State Farm Mutual Automobile Insurance Company, 277 So.2d 155 (La.App. 3 Cir. 1973). The provision of the insurance policy at issue was an exclusion. Although the literal meaning of the terms of most exclusionary clauses would result in avoiding coverage without regard to the availability of other insurance, the cases in point involved recovery under other insurance.

Crenwelge had uninsured motorist coverage through a policy on another vehicle he owned as well as the one he was driving when injured by an uninsured motorist. The exclusion was to apply “to bodily injury to an insured while occupying an automobile (other than an insured automobile) owned by the named insured or a relative, or through being struck by such an automobile.” Under terms of the policy insured automobiles must be described in the policy. The insurance company therefore argued that Crenwelge was excluded from coverage. The argument was rejected because, under the-facts, the effect of the exclusionary clause would eliminate the minimum coverage mandated by statute.

We note that courts have also rejected policy exclusions which required written consent from the company before settlement could be effected with an insured co-tortfeasor. Hebert v. Green, 311 So.2d 223 (La.1975). The exclusion of amounts paid under the workmen’s compensation law have likewise been rejected. Landry v. State Farm Mutual Automobile Insurance Company, 320 So.2d 254 (La.App. 3 Cir. 1975).

In summary, courts have consistently resisted attempts to reduce or avoid the statUr-torily required $5,000 minimum coverages paid for each uninsured motorist coverage.

LSA-R.S. 22:1406 was amended in 1972, adding to D(1)(a) the words “or underin-sured” and adding clauses D(l)(b) and D(2)(b). D(1)(b) permits the insured to purchase additional uninsured motorist coverage equal to the limits of liability coverage carried by him. D(2)(b) defines “uninsured motorist” to include “underin-sured motorist.”

In addition to the question as to whether “stacking” would be applied in the case'of “underinsured” as well as “uninsured” motorists, a new issue emerged. Should the “underinsured” status be determined on the basis of coverage afforded individually, policy by policy, or on the basis of all coverages collectively?

This issue was presented in Rascoe v. Wilburn, 295 So.2d 201 (La.App. 3 Cir. 1974). In Rascoe, plaintiff’s father was fatally injured by a motorist with $5,000 personal injury liability coverage. As members of the household plaintiffs contended they were entitled to recover by virtue of uninsured motorist coverage under three policies, two owned by the father covering his two vehicles and one owned by his daughter who was a co-plaintiff. On the basis of the Crenwelge decision, this court rejected defendants’ argument that coverage could not be “stacked.”

Defendants next contended they had no exposure because there was liability insurance equal to the coverage afforded by each uninsured motorist carrier. They argued the legislature intended to condition the expanded coverage on the insured’s exercise of his option to elect increased coverage. After an analysis of the relation of the wording of the amendment in relation to the statute, this court found coverage had been expanded. It was reasoned that if the legislature intended to condition application of the definition of uninsured motor vehicle contained in § D(2)(b) upon the exercise of the option [contained in D(l) (b)] by the injured victim with uninsured motorist protection, that intent was not so stated. Instead of so stating, the legislature chose to introduce the concept of underinsured motorist to Louisiana.

Subsequently in Barbin v. United States Fidelity and Guaranty Company, 302 So.2d 631 (La.App. 3 Cir. 1974), we were again presented with the issue of cumulation of uninsured motorist coverages to allow recovery of minimum limits per vehicle covered. The insurer’s defense was grounded on language in the 1972 amendment which this court believed to limit this coverage so that it can not exceed the limits of automobile liability coverage carried by the insured. The Supreme Court reversed. Barbin v. United States Fidelity & Guaranty Co., 315 So.2d 754 (La.1975).

Appellants insurers rely on different policy language — the term here presented is “carried by the insured” rather than “not in excess” which was before the court in Barbin. But the result they seek is the same. They wish for the statute to be interpreted with reference only to premiums paid by the injured insured. The Barbin decision requires us to reject the contention because this is not the apparent legislative intent in adopting the statute.

Reliance further contends “carried by” means “bears the charges of.” Reliance reasons “carried by” establishes the legislative intent to restrict underin-sured coverage to insurance which the injured insured has purchased. Reliance reads the statute to say “personally carried by.” But the statute’s language is not that narrow.

This interpretation is inconsistent with the common principal of all interpretations of uninsured motorist coverage requirements : — for each coverage for which a premium is paid, public policy requires the minimum limits to be in force. Coverage obtained by the owner of the vehicle for the benefit of passengers in his insured vehicle is within the intent of coverage “carried by” the passenger.

Reliance’s position is also inconsistent with our decision in Rascoe. Reliance’s interpretation would deny protection to a person having uninsured motorist protection unless that person is injured while driving his insured vehicle. Also uninsured motorist coverage for a passenger under the vehicle’s policy would depend not on the law or policy provision, but upon the fortuitous circumstance of the limits of an unrelated policy.

Reliance argues that Doucet v. Insurance Company of North America, 302 So.2d 731 (La.App. 3 Cir. 1974) supports their position. But the court there distinguished Rascoe as resulting from the statute’s effect “where the liability coverage was less than the available uninsured motorist coverage.” We distinguish Doucet where there was no uninsured motorist coverage available in excess of the liability coverage.

In the present case, the insurance companies wish to assert their $5000 policy limits separately and reason that their policy does not exceed the tortfeasor LaCour’s $5,000 liability coverage. They wish to read their policy limits to create an exclusion of coverage where the liability policy does not have lower limits. This is not the statutory language. The legislature could have used the term “limits” had this been the legislative intent. Instead the term “coverage" was used.

Premiums are paid for uninsured motorist coverage to benefit driver and passengers as well. The rationale of the uninsured motorist and underinsured motorist decisions is that where premiums are paid for coverage, each coverage will be given full effect. Under this rationale, where multiple premiums are paid, the coverages are to be cumulated for the benefit of the injured insured.

As a guest passenger, Raggio is an insured and the premiums paid for uninsured motorist coverage on the pickup in which he was riding were paid for his.benefit. He paid uninsured motorist premiums on his personal vehicle for his own benefit. The statute requires that uninsured motorist coverages be cumulated for his benefit. The motorist is underinsured where the liability insurance available is less than the total uninsured motorist coverage available to the insured tort victim. Rascoe, supra; Phillips v. Barraza, 320 So.2d 587 (La. App. 4 Cir. 1975). We therefore reject this assignment of error.

INDEMNITY

The trial court based its denial of the third party claim against LaCour on his impecunious condition. The son who caused the accident had no property and only minimum wages, and the father was $77,000 in debt. The trial judge found both to be “judgment proof.”

The trial court may consider defendants’ impecunious condition in assessing damages. See Urk v. Southern Farm Bureau Casualty Ins. Co., 181 So.2d 69 (La.App. 2 Cir. 1965), and the extensive citations at 70, 71. However the trial judge abused his discretion in denying all liability on that finding. The tortfeasor’s inability to satisfy a judgment is a factor in mitigation to lessen damages but not a means of escape. LaCour was employed at the time of the accident and had been employed at the same job for eighteen years. He had some properties and the record does not show to what extent his debts exceed his assets.. The amount at issue, $1741.90, does not seem unduly burdensome.

CONTRIBUTION

On the issue of contribution between the two uninsured motorist carriers, both Reliance (the uninsured motorist carrier on the car in which Raggio was riding) and Safeco (the uninsured motorist carrier on Raggio’s own car) have practically identical provisions with respect to other insurance. The relevant provisions state:—

Other Insurance: With respect to bodily injury to an insured while occupying an automobile not owned by the named insured, the insurance under the Protection Against Uninsured Motorists section shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance.
Except as provided in the foregoing paragraph, if the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and SAFECO shall not be liable for a greater proportion of any loss to which this coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.

In Deane v. McGee, 261 La. 686, 260 So.2d 669 (1972) similar provisions were interpreted to require an insured who is injured while occupying a non-owned automobile must first look to the insurer of the automobile he occupies as “primary” insurer. 260 So.2d at 670, 1. The court voided the excess clause because it was in conflict with the minimum coverage requirements of law. Since the amount here at issue is less than the applicable policy limits, the trial court properly held Reliance liable for the entire $1741.90 as Reliance provided the uninsured motorist coverage on the vehicle in which Raggio was riding.

Reliance argues that if their coverage is held to be primary, they are entitled to credit for the amount paid on the judgment by LaCour’s insurer. We do not reach the question as to whether the reduction of limits clause of the uninsured motorist coverage applies to payments made under liability coverage of another policy, because the effect would be to reduce the uninsured motorist coverage limits below the statutory minimum. This result has been rejected when courts refused to apply such clauses as between uninsured motorist and uninsured motorist coverages. We therefore refuse to apply the reduction in limits clause (the pro-rata clause) as between liability and uninsured motorist coverage.

We reverse the trial court’s rejection of Reliance’s third party demand against Eugene LaCour. Reliance Insurance Company is awarded judgment against third party defendant Eugene LaCour in the amount of Seventeen Hundred Forty-One and 90/100 ($1741.90) Dollars together with legal interest from judicial demand until paid. Court costs at trial and on appeal are taxed half to Reliance Insurance Company and half to Eugene LaCour. All other holdings of the trial court are affirmed.

Affirmed in part; and in part reversed and rendered.


author: WATSON, Judge. MILLER, Judge

text:
    Tommie Joe SEATON, Plaintiff-Appellee, v. Conrad E. KELLY et al., Defendants-Appellants.
    No. 5372.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 18, 1976.
    Rehearing Denied March 11, 1976.
    Writ Granted April 23, 1976.

      Gist, Methvin & Trimble by DeWitt T. Methvin, Jr., Alexandria, for defendant-appellant.
    James S. Gravel, and Cora R. Schley, Alexandria, for plaintiff-appellee.
    Edward E. Rundell, of Stafford, Ran-dow, O’Neal & Scott, Alexandria, for defendant-appellee.
    Before MILLER, WATSON and CU-TRER, JJ.
   WATSON, Judge.

Plaintiff, Tommie Joe Seaton, filed this suit against defendants: Lod Hayes, Jr.; Conrad E. Kelly; State Farm Mutual Automobile Insurance Company; and Government Employees Insurance Company, to recover damages for personal injuries received in an automobile accident. On August 18, 1973, plaintiff Seaton was a passenger in an automobile owned and driven by defendant Kelly when it collided with a left-turning vehicle owned and occupied by Lod Hayes, Sr. and driven by defendant, Lod Hayes, Jr. State Farm was made defendant as the liability insurer of Kelly and Government Employees as the uninsured motorist insurer of plaintiff. State Farm and Government Employees filed third party demands against Lod Hayes, Sr. and Lod Hayes, Jr.

The trial court concluded that the sole cause of the accident was the negligence of the uninsured motorist, Lod Hayes, Jr., who was acting on behalf of his passenger father, Lod Hayes, Sr. Judgment for $12,283.65 was rendered against State Farm and for $10,000 against Government Employees, both in solido with the Hayes, Sr. and Jr. Additionally, there was judgment against the Hayes, Sr. and Jr., for $15,000. State Farm and Government Employees were given judgment over against the Hayes, Sr. and Jr.

State Farm has appealed from the trial court’s judgment, contending that it errs in allowing plaintiff to stack driver-owner Kelly’s uninsured motorist coverage under two separate policies insuring two separate automobiles.

Plaintiff’s damages are $37,283.65: $35,000 in general damages and loss of wages; and $2,283.65 in medical expenses. There is no question that the damages exceed the total of all the uninsured motorist coverage available.

Lod Hayes, Jr. .was operating an uninsured vehicle when he made a left turn in front of the Kelly vehicle, occupied by passenger Seaton. Government Employees Insurance Company had issued Seaton policies on two automobiles with uninsured motorist coverage of $5,000 per person on each. Government Employees paid Seaton $10,000 on these two policies prior to judgment and is not involved in this appeal.

Kelly had $5,000 per person uninsured motorist coverage in a policy written on the 1972 Ford Courier involved in the accident, together with medical expense coverage of $5,000. State Farm paid $5,000 under the uninsured motorist coverage and $2,283.65 under the medical coverage. State Farm also has a separate policy issued to Kelly on a 1968 Volkswagen automobile. The trial court awarded plaintiff the $5,000 uninsured motorist coverage on the policy insuring the Volkswagen. State Farm contends^ that plaintiff is not an insured under the second policy, based on the undisputed facts that plaintiff is not the named insured or a relative and was not an occupant of the Volkswagen at the time of the accident. State Farm attempts to distinguish Barbin v. United States Fidelity and Guaranty Co., 315 So.2d 754 (La.1975), because there the automobiles involved were covered by one policy.

The sole issue on appeal is whether the plaintiff-passenger can recover under the uninsured motorist coverage of both policies issued to Conrad Kelly, although one policy insured an automobile not involved in the accident.

The principal thrust of State Farm’s argument is that plaintiff was not an “insured” under the second or Volkswagen policy.

State Farm’s position is not in accord with the language of its policies. An insured is defined in both policies, as follows :

“PART IV — PROTECTION AGAINST UNINSURED MOTORISTS
******
“(b) any other person while occupying an insured automobile; . . . ”
(Emphasis ours)

An insured is not limited by the policies to an occupant of the insured automobile but of an insured automobile. The plaintiff here was occupying an insured automobile, the Ford Courier. The fact that the two automobiles were insured under different policies, rather than under one as in Bar-bin is immaterial. The decisive factor in Barbin was that the injured party was entitled to all coverage for which a premium has been paid. Therefore, we find that Barbin is not authority for State Farm’s position.

State Farm’s contention is also contrary to the other jurisprudence dealing with “stacking”.

In the recent case of Phillips v. Barraza, 320 So.2d 587 (La.App. 4 Cir. 1975), an injured rider in her own vehicle was permitted to stack the uninsured motorist coverage of a policy carried by the driver on another vehicle. Thus, uninsured motorist coverage on a vehicle not involved in the accident was stacked with the insurance coverage of the owner-passenger. Writs were denied in Phillips at 323 So.2d 476 and 478, because the judgment was not final.

In Crenwelge v. State Farm Mutual Automobile Ins. Co., 277 So.2d 155 (La.App. 3 Cir. 1973), this Court stated:

“Under the Graham and Deane cases it is clear that where two or more policies have actually been issued and the premiums for uninsured motorist coverage paid, the mandatory minimum coverages,” as provided by the statute, must be awarded under each policy.” 277 So.2d 158

In Wilkinson v. Fireman’s Fund Insurance Co., 298 So.2d 915 (La.App. 3 Cir. 1974), writ granted to Wilkinson at 302 So.2d 304, writ denied to Fireman’s Fund Insurance Company at 302 So.2d 306, writ denied to Lumbermen’s Mutual Casualty Company at 302 So.2d 308, writ dismissed on joint motion at 309 So.2d 657, this Court made it clear that, if the insurer of an automobile in which plaintiff’s deceased son was a guest passenger had issued three separate policies rather than one family policy, there would be no question the coverage in all three policies could be stacked.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed against defendant-appellant, State Farm Mutual Automobile Insurance Company.

Affirmed.

MILLER, J., dissents and assigns written reasons.

MILLER, Judge

(dissenting).

I respectfully submit the majority’s reliance on the Graham-Deane rationale is misplaced. Two uninsured motorist premiums were paid by Kelly to State Farm on Kelly’s behalf, but not with respect to plaintiff Seaton,' a non-related guest passenger. The issue here is not “stacking” but instead, is plaintiff Seaton an insured under Kelly’s policy written on Kelly’s Volkswagen, his second car ?

We held in Raggio v. Volkswagen Insurance Company, 327 So.2d 505 (La.App. 3 Cir. 1976) that premiums can be paid for a third person’s benefit as well as paid by that person. However, to find premiums were paid for a third person’s benefit, the intent to benefit the third person must appear.

The coverage intended by the policy provision in dispute is well understood. As to Kelly’s VW, Kelly purchased benefits for passengers physically in the VW. That is the common sense understanding of the policy provision affording coverage to persons “occupying an insured automobile.” It is not realistic to find additional coverage for another abstract class of “occupants of insured automobiles.” Premiums are set and paid in terms of contemplated risks. Kelly did not pay a premium for his VW insurance to insure guest passengers in Kelly’s Courier against injuries from uninsured motorists.

Grammatical analysis is insufficient to justify this decision. “An” instead of “the” may fail to exclude Seaton from coverage, but it does not demonstrate intent to provide coverage for him. The analysis disregards, without explanation, the policy definition of “an insured automobile.”

The public policy involved is that uninsured motorist coverage shall be available in the full amount of the minimum requirement for each coverage purchased. But this public policy does not require an extension of this coverage to persons not specifically included as insureds.

Seaton was allowed to stack coverages and has recovered his uninsured motorist coverage on both his cars and that decision was not appealed. He has also been allowed to stack and recover under the uninsured motorist coverage provided by his host Kelly on the Courier in which Seaton was riding when the accident occurred. Kelly’s policy provisions on his VW do not include this plaintiff as an insured.

I therefore respectfully dissent.


author: COVINGTON, Judge.

text:
    Joseph H. MAJOR and James P. Rupp v. The LOUISIANA DEPARTMENT OF HIGHWAYS.
    No. 10681.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    Rehearing Denied March 1, 1976.

      Anthony J. Bonfanti, Baton Rouge, for Louisiana Dept, of Highways.
    James A. Wood, Baton Rouge, for James P. Rupp.
    Sam J. D’Amico, Baton Rouge, for Joseph H. Major.
    Before LANDRY, COVINGTON and BARNETTE, JJ.
   COVINGTON, Judge.

This is á motion to dismiss the appeal filed by the Department of Highways on the grounds that the Department, appellant, had acquiesced in the judgment of the Louisiana Civil Service Commission. The basis for this dismissal is Article 2085 of the Louisiana Code of Civil Procedure. This procedural article provides that a party against whom a judgment has been rendered can not appeal if he has voluntarily and unconditionally acquiesced in the judgment.

In Parker v. Harvey, La.App., 164 So. 507 (2 Cir. 1935), the Court held that for an acquiescence to take away the right of appeal, there must be an unconditional and voluntary acquiescence by the appellant, with an intent to acquiesce in the judgment and to abandon the appeal. Acquiescence is never presumed. It must be established by evidence which leaves no doubt regarding acquiescence. Kendrick v. Garrene, 231 La. 462, 91 So.2d 603 (1956). The reason for this is that appeals are favored in law and aided by the courts. Zeringue v. Administrator, Division of Employment Security, Department of Labor, La.App., 127 So.2d 91 (4 Cir. 1961).

We have two consolidated cases under consideration on this appeal. In the first case Joseph R. Major, a classified civil service employee, was discharged from his job as scale operator II in the Department of Highways. Major filed a petition with the Louisiana Civil Service Commission protesting his dismissal, and also filed a motion for summary disposition on the grounds that the letter of dismissal failed to specify the acts of which he was accused. In the second case James P. Rupp, who was also a classified civil service employee working as scale operator II in the Department of Highways at the time of his dismissal, filed a petition and also a similar motion for summary disposition with the State Civil Service Commission.

After hearing, the Commission sustained the motion for summary disposition and ruled on August 18, .1975, that the dismissal letters failed to specify the reasons for dismissal as is required under civil service rules in order to constitute proper notice, and ordered reinstatement of each employee with back pay. On August 25, 1975, the Department reinstated Major; and on September 1, 1975, reinstated Rupp. On August 28, 1975, the Department gave the two employees their back pay. Then on September 16, 1975, the Department took this appeal. Afterwards Rupp retired from his job, with approval of the Department.

It is the position of the appellees that by reinstating Major and Rupp and paying them back pay, the Department of Highways has acquiesced in the judgment of the Commission, and consequently, this appeal should be dismissed. The appellees rely primarily upon the case of Adolph v. Sewerage & Water Board Pension Committee, La.App., 202 So.2d 644, 670 (4 Cir. 1967), particularly the statement:

“An appeal cannot be taken by a party who voluntarily and unconditionally acquiesced in a judgment rendered against him and voluntary payment of an adverse judgment by the party cast, without reservation of the right to appeal, constitutes such an acquiescence.”

Although the Adolph case does state that voluntary payment without reservation amounts to an acquiescence in the judgment, the effect of the Adolph case has been minimized by the decision of this Court in Charles C. Cloy General Contractors, Inc. v. DiVincenti Brothers, Inc., La.App., 308 So.2d 493, 495 (1 Cir. 1974), wherein we said:

“We find no merit in Contractor’s contention that where payment is made, acquiescence is established by appellant’s failure to reserve in writing, or otherwise, his right to appeal. The tenor of recent decisions establishes the rule that payment, even payment without express reservation of the right to appeal, does not per se constitute voluntary and unconditional acquiescence within the meaning of the term as employed in Article 2085, above. The unmistakable import of the latest decisions is that payment must be accompanied by intent to abandon the appeal, and that proof of such intent rests upon the party alleging abandonment.
“Following payment, the appeal was in fact perfected by lodging the transcript in the appellate court. We conclude that payment was not accompanied by the required intent to abandon the appeal in . this instance.”

As in the Cloy case, following payment in the instant case, the Department of Highways perfected this appeal. There is no evidence in the instant case to suggest that the Department of Highways ever intended to abandon its appeal. The Department in fact denies that it has directly or indirectly abandoned its appeal, or acquiesced in the decision of the Commission. On the contrary, it is clear from the record that the Department considered that it was merely obeying the law and rules in carrying out the Commission’s order to reinstate the two employees and to pay all back pay due them.

Although Article 10, Section 12, of the Louisiana Constitution of 1974, grants a right of appeal from a commission’s decision, it does not grant a suspensive appeal or suspension of the execution of a commission’s decision. After the decision of the commission and pending the appeal, the parties affected by the commission’s decision must comply with that decision. Such a decision is final and not subject to rehearing under the civil service rules. See Civil Service Rule 13.28 and 13.33. It is only by means of a stay order, which is discretionary, from the appellate court that the execution of a commission’s decision can be suspended. See Rule 16, Section 6, Uniform Rules of Courts of Appeal. Hence, in the instant case there was no legal method by which the Department could definitely suspend the execution of the judgment of the Commission; therefore, the Department was compelled to comply with the judgment or subject itself to penalty for contempt. Cf. State ex rel. Duffey v. Mississippi River Bridge Authority, La.App., 126 So.2d 656 (4 Cir. 1961). It appears to us that it was only in obedience to the mandate of the Commission that the Department restored the appellees to their jobs and salary.

On our own motion, we have considered the status of the case relative to James P. Rupp and the question of it having become moot as to him.

C.C.P. art. 2164 reads, in part:

“The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.”

We have the right, ex proprio motu, to consider the possibility that a matter has become moot; Behler v. Louisiana State Racing Commission, 251 La. 959, 207 So.2d 758 (1968). Indeed, under the cited codal article, we have that duty.

The general proposition of law applicable to the instant situation is succinctly stated in the case of State ex rel. Guste v. Louisiana Milk Commission, 297 So.2d 750, 752 (La.App. 1 Cir. 1974):

“ . . . (M)oot questions will not be considered on appeal.”

As the record reflects that Rupp has already retired with the approval of the Department, this matter has become moot as to him and any ruling which we would make would “. . . serve no useful purpose and can give no practical relief.” Ardoin v. Ardoin, 306 So.2d 476, 477 (La.App. 3 Cir. 1975).

Accordingly, the appeal is dismissed as to James P. Rupp.

However, finding no acquiescence within the intendment of the law relative to the abandonment of an appeal, the motion is denied as to Joseph H. Major.

Granted in part, denied in part.


author: JULIAN E. BAILES, Judge Pro Tem.

text:
    Clyde WATSON et ux. v. ILLINOIS CENTRAL GULF RAILROAD et al.
    No. 10633.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    Rehearing Denied March 1, 1976.
    Writ Refused April 9, 1976.

      Paul H. Due, Baton Rouge, for plaintiffs-respondents.
    Frank W. Middleton, Jr., Baton Rouge, for Gulf States.
    Wm. G. Whatley, Baton Rouge, for State.
    Boris F. Navratil, of Breazeale, Sachse & Wilson, Baton Rouge, for Illinois Central Gulf.
    Before SARTAIN, COVINGTON, JJ., and BAILES, J. Pro Tern.
   JULIAN E. BAILES, Judge Pro Tem.

The merits of this case, through which relator has made application for writs, involves an action wherein plaintiffs seek damages for the alleged wrongful death of their daughter at a grade crossing collision between the vehicle driven by plaintiffs’ daughter and an Illinois Central Gulf train.

After a partial trial of the merits on March 18, 1975, the court and the parties agreed that the testimony of the remaining witnesses would be taken by deposition. One of the remaining witnesses whose testimony was sought by defendant railroad was Mr. Neal M. Wright. After eliciting his testimony on direct examination, this witness was tendered to plaintiffs’ counsel for cross-examination. During the cross-examination of Mr. Wright, plaintiffs’ counsel asked him a question which relator’s counsel considered objectionable and the witness was instructed not to answer. Thereupon, plaintiffs’ counsel stated to those present that he was adjourning the deposition to seek a court order directing the witness to answer the question.

Thereafter plaintiffs did file a rule directed to defendants to show cause why the said witness should riot be compelled to answer the question and why defendants should not be taxed with all costs of these proceedings, including reasonable attorney’s fees.

After hearing on the rule, the trial court ordered that plaintiffs are “permitted to pursue the line of questioning which was being attempted but to which objection was made by trial attorney for defendants in rule and deponent Neal M. Wright is ordered to answer such questions.” Further, the trial court condemned defendants to pay all court costs incident to the summary proceeding, including an attorney’s fee in favor of plaintiffs’ attorney in -the principal sum of $500, with legal interest thereon from date of judicial demand until paid.

The relators made application to this court for supervisory and remedial writs of certiorari, prohibition and mandamus, contending that such judgment of the trial court was in the nature of a contempt judgment from which no appeal is available and that relators would suffer irreparable injury unless this court exercised its supervisory jurisdiction.

On October 20, 1975, this court issued an alternative writ of mandamus commanding the trial court to recall the judgment dated September 18, 1975, assessing attorney fee in favor of plaintiffs’ attorney and against relator herein in the amount of $500, or for the trial judge and the respondents, Clyde Watson and Marjorie Watson, to show cause why this writ should not be made peremptory.

The alternative was exercised by respondents and a writ of certiorari issued directing that the record herein be sent to this court to the end that the validity of the proceedings may be ascertained. All further proceeding against relators in the trial court were stayed and suspended.

We are concerned herein only with the propriety of the trial court awarding the plaintiffs’ counsel an attorney’s fee of $500 in the summary proceedings. .

Specifically, the issue before us is whether, in the taking of evidence by deposition for completion of a trial, a party who instructs a witness not to answer a question which such party believes is objectionable, is liable for reasonable expenses, including attorney’s fee, incurred in obtaining an order compelling the deposed witness to answer the propounded question. Insofar as we can determine this issue is res novo.

It cannot be seriously contended that the testimony sought was for discovery purposes or that the instruction of relators’ counsel to the witness being deposed was within the purview of C.C.P. Article 1511. By its terms, Article 1511 covers the taking of a discovery deposition and is limited in its application to pretrial production of evidence. In the rule respondents herein sought an order to force the witness to answer the question and to recover costs and attorney’s fee under Article 1511. The provisions thereof do not apply to the instant situation.

Respondents argue in their brief that C.C.P. Article 1454 empowers the trial court to award attorney’s fee as it did herein.

Our consideration of Article 1454 leads us to conclude that LSA-C.C.P. Article 1454 controls the issue. This Article, inter alia, provides a procedure whereby an aggrieved party, such as plaintiffs, may seek a protective order of the trial court to either limit or suspend the examination.

For Article 1454 to be available to either a party or the deponent, there must be a showing that the examination was being conducted in bad faith, or in such manner as unreasonably to annoy, embarrass or oppress the deponent or party. If such a showing is made the court is empowered to issue such order as is necessary to correct the abuse. The court may order the officer conducting the examination to cease the taking of the deposition, or it may limit the scope and manner of the taking of the deposition as provided in Article 1452. This Article provides the means for limiting or ceasing an overly broad interrogation of a witness by either the witness or the party aggrieved by such examination. And, as in the instant matter, the court may issue an order directing the witness to answer the question asked by plaintiffs’ counsel.

Under the provisions of C.C.P. Articles 1426 and 1429, relators were fully protected.by an overly broad examination or cross-examination insofar as the competency, relevancy or materiality of such testimony is concerned. With the relators fully protected by these codal provisions, we deem it oppressive to plaintiff-respondents for relators’ counsel to instruct the witness not to answer the question he thought objectionable. This unreasonably provoked the suspension of the deposition. Under LSA-C.C.P. Article 1454, the court was empowered to impose upon the relators the obligation of paying the cost of filing the motion and a reasonable attorney’s fee. Cf., Brasseaux v. Girouard, 214 So. 2d 401 [410-411] (La.App. 3rd Cir. 1968), writs refused 253 La. 60, 216 So.2d 307.

Accordingly, for the foregoing reasons the writ heretofore issued is recalled, annulled and set aside. All court costs are assessed against relators.

Writ recalled.

      . The deposition in question was for completion of the trial.


author: LANDRY, Judge.

text:
    Mrs. Peggy Jo Hilsmeyer BERRY v. METROPOLITAN LIFE INSURANCE COMPANY et al.
    No. 10586.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    Rehearing Denied March 1, 1976.
    Writ Refused April 9, 1976.

      Ashton L. Stewart, Baton Rouge, for appellant.
    W. Arthur Abercrombie, Jr., Baton Rouge, for Metropolitan Life Ins. Co., and others.
    J. David McNeill, III, Baton Rouge, for Barbara Sue Berry.
    Before LANDRY, COVINGTON and BARNETTE, JJ.
   LANDRY, Judge.

Plaintiff Peggy Jo Hilsmeyer Berry (Appellant) appeals from judgment dismissing her claim against defendants, Ethyl Corporation (Ethyl), employer of Appellant’s former and now deceased husband, Doss H. Berry, Jr. (Decedent); Metropolitan Life Insurance Company, Inc. (Insurer) ; and Barbara Sue Berry (Beneficiary), sister of Decedent, for one-half of the proceeds of a term life insurance policy issued by Insurer to Decedent pursuant to a group coverage plan embracing Ethyl’s employees, which policy named Miss Berry beneficiary at the time of Decedent’s death. We affirm.

The operative facts are uncontroverted. On November 2, 1960, during the marriage between Appellant and Decedent, Decedent entered Ethyl’s employ and joined the group life plan offered by Ethyl to its employees through Insurer. From the inception Appellant was named beneficiary in the policy which initially insured Decedent for $33,000, and which sum on March 1, 1971, was augmented in the supplemental amount of $16,500.

On June 22, 1971, Appellant obtained a divorce from Decedent. Shortly thereafter Decedent filed with Ethyl’s personnel office the requisite change of beneficiary forms to name his sister, Miss Berry, beneficiary under the policy. Decedent died March 22, 1973. On April 4, 1973, after Beneficiary’s submission of the required proof of death and other necessary documents, Insurer paid Beneficiary the proceeds of the policy.

Appellant claims one-half of the policy proceeds on the premise that the policy belonged to the community of gains which previously existed between Appellant and Decedent, because the policy was taken out during the existence of their marriage. On this basis Appellant contends that upon dissolution of the community, she became vested with a one-half interest in the policy, and that Decedent was without legal right or authority to change the beneficiary to Appellant’s half thereof. Appellant contends that as co-owner, she alone possessed the exclusive right to exercise all incidents of ownership of her one-half interest, including the naming of a beneficiary to her one-half of the proceeds. Appellant also asserts that the change of beneficiary by Decedent was ineffective insofar as it purported to change the beneficiary to Appellant’s one-half of the policy proceeds.

It is conceded that the policy in question was a term life policy with no cash surrender value and contained no provision for payment of annuities during the lifetime of the insured. It is also acknowledged that the sole benefits payable were the death benefits payable to the named beneficiary upon Decedent’s demise.

Appellant asserts liability on Ethyl’s part on the ground that Ethyl had knowledge of the divorce and nevertheless authorized payment of total policy proceeds to Beneficiary. Insurer’s liability is alleged on the ground that Ethyl’s knowledge of the divorce is imputable to Insurer, and that Insurer therefore illegally paid Appellant’s half of the policy proceeds to Beneficiary.

The lower court exonerated both Ethyl and Insurer from liability herein on the alleged ground of mispayment of policy proceeds upon finding that said parties were protected by LA-R.S. 22:643 and 23:638. The cited statutes provide in effect that when an employer pays benefits according to the terms of a death or other employee benefit plan, or an insurer pays policy proceeds according to the policy terms, such an employer or insurer is protected from adverse claims unless written notice of the claim was received by the employer or insurer prior to payment. In rejecting Appellant’s claim against Beneficiary, the lower court found that Appellant never had the right to name the beneficiary to any part of the proceeds because the policy expressly gave Decedent the sole right to designate the beneficiary.

Appellant correctly argues that the policy in question was part of the community which existed between her and Decedent. Our jurisprudence is well established to the effect that the nature of a life insurance policy, that is, whether the policy is the separate property of the insured or belongs to the community of gains existing between the insured and his or her spouse, is determined by the marital status of the owner at the time the policy is issued. Standard Life Insurance Company of the South v. Franks, La., 278 So.2d 112; In Re Moseman, 38 La.Ann. 219; Comment, Insurance and the Community, 25 La.L.Rev. 492 at 494.

Equally well settled, however, is the rule that death benefits or proceeds of a life insurance policy with a named beneficiary other than the estate of the insured owner, do not form part of the owner’s estate, either separate or community, but belong exclusively to the validly designated beneficiary. Standard Life Insurance Company of the South v. Franks, above; T. L. James & Co., Inc. v. Montgomery, 308 So.2d 481; Smith v. Succession of Smith, 298 So.2d 146.

The divorce obtained by Decedent on June 22, 1971 terminated the community of gains which existed between Decedent and Appellant, effective as of March 11, 1971, the date on which the divorce action was instituted. No citation of authority is needed to support the holding that the judgment of divorce vested in Appellant an undivided one-half interest in all property belonging to the community, subject to payment of community debts and liabilities. Although subject policy is not listed among the community assets in the divorce proceeding, nevertheless, the above cited authorities clearly support the proposition that a one-half interest in the policy vested in Appellant as a result of the termination of the marriage. Additionally, since the record contains no evidence of a partition of this particular asset, it must be presumed that Appellant continued as one-half owner of the policy until Decedent’s death on March 22, 1973.

An analysis of the problem thus presented requires clear distinction between ownership of the lifetime benefits payable under an insurance policy and ownership of the death benefits or proceeds. The lifetime benefits are those exercisable by the owner and/or insured, pursuant to policy terms and provisions, during the lifetime of the owner and/or insured. Such benefits usually include the right to cash surrender value, receive dividends, assign or pledge policy proceeds, borrow against the policy, name and change the beneficiary, and execute conversion rights. See Comment 25 La.L.Rev. 492, above.

As previously noted, subject policy is strictly a term life coverage and therefore has no cash surrender value. It has no loan value and may. not be pledged as security for debt. The only assignment permitted is by gratuitous donation executed with the prior written consent of the employer and insurer. The right to name a beneficiary is vested by the policy exclusively in the insured employee, except when the policy has been assigned by the employee with prior written consent of the employer and insurer.

Unquestionably, Appellant owns an undivided one-half interest in the policy itself, as distinguished from the proceeds payable upon the death of the insured. Whatever rights vested in Appellant as a result of this ownership of the policy, our jurisprudence establishes that she can in no manner exercise rights of ownership contrary to the provisions of the policy itself. In this instance the policy vests in the named insured employee the exclusive right to name the beneficiary or to assign the policy with prior written consent of both employer and insurer. In this instance the named beneficiary is a person other than Appellant. Additionally, the record is devoid of a proper assignment by Decedent to Appellant. Consequently, under the policy provisions, Appellant has no right or claim to the proceeds payable upon Decedent’s death.

As owner of a one-half interest in the policy, Appellant may have a right to proceed against Decedent’s heirs for the value thereof, but that issue is not before us in this instance. We merely hold that Appellant’s rights in and to the policy as a community asset, whatever the value of such rights may be, do not include the privilege of either naming a beneficiary to any portion of the proceeds payable upon the death of the insured or preventing the named insured employee from changing the beneficiary according to the policy provisions.

We conclude that the designation of Miss Berry as beneficiary was valid and entitled her to the entire policy proceeds payable upon Decedent’s death.

Our conclusion that the payments to Miss Berry were valid obviates the necessity of considering the alleged liability of Ethyl and Insurer for averred mispayments of policy proceeds.

The judgment of the trial court is affirmed; all costs of these proceedings to be paid by Appellant Peggy Jo Hilsmeyer Berry.

Affirmed.


author: SMITH, Judge.

text:
    Sherry Ann Blackwell McDONALD, Plaintiff-Appellant, v. Hugh Stephen McDONALD, Defendant-Appellee.
    No. 12813.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 9, 1976.
    Rehearing Denied March 15, 1976.

      Jack & Jack, by Wellborn Jack, Jr., Shreveport, for appellant. '
    Scott & Powell, by Michael W. Powell, Shreveport, for appellee.
    Before BOLIN, MARVIN and SMITH, JJ.
   SMITH, Judge.

This is an appeal from a judgment of the lower court reducing the amount of support received by the mother of three young children from their father.

In March of 1974 Sherry Ann McDonald filed a suit for a legal separation from her husband, Hugh Stephen McDonald, based on abandonment and cruelty. She was awarded $90 per week pendente lite support for herself and the three minor children of the marriage. In- April of 1975, Mrs. McDonald filed suit for final divorce, praying for continuance of the $90 per week support payment. Mr. McDonald answered alleging that the $90 per week was unreasonable and excessive.

After a trial on the merits, judgment was rendered awarding Mrs. McDonald a divorce, custody of the three minor children of the marriage, and $60 per week child support. It is from that portion of the judgment awarding child support that Mrs. McDonald has perfected this appeal.

There is no dispute as to the circumstances surrounding this litigation. Mr. McDonald is a coach and teacher at a private school in the Shreveport area. His net salary is $132 per week or $572 per month. As a benefit of his employment he is allowed to live on the school grounds in an apartment with one room and a bathroom. He is allowed the use of a school truck but must furnish his own gasoline and maintenance. He is given some lunches at the school and medical insurance is provided for him at no cost. He has earned some supplementary amounts on an irregular basis by acting as a substitute bus driver.

Mr. McDonald estimated his monthly expenses at $140 which included $40 a month for transportation, $80 a month for food, $10 a month for clothes, and $10 a month for personal grooming.

Mrs. McDonald is employed as a secretary. Her salary after deductions is $449.-42 per month. This is supplemented by a monthly Social Security benefit of $122.67 for one of the children who has a birth defect. Mr. McDonald has relinquished to his former wife all rights in the community of gains which included a. three bedroom home and furnishings. Mrs. McDonald has assumed the obligations of the community. She submitted a very detailed list of expenses for herself and the children totaling $1,148.96 per month.

Article 227 of the Louisiana Civil Code sets forth the obligation of both the father and the mother to support their children. Articles 230 and 231 state this duty to support children of the marriage extends to whatever is “necessary for the nourishment, lodging and support” of the child and shall be granted in “proportion to the wants of the person requiring it, and the circumstances of those who are to pay it.” Frazier v. Frazier, 318 So.2d 625 (La.App., 2d Cir. 1975).

The trial judge must examine the needs of the children and the situation of those responsible for their support. In fixing an amount for a parent to pay for the support of his children, the trial judge is granted much discretion and the award will not be disturbed unless there is a clear abuse of discretion. Frazier, supra; Jackson v. Jackson, 275 So.2d 456 (La.App., 2d Cir. 1973).

We find no abuse of- discretion by- the trial judge. Accordingly, the judgment is affirmed at appellant’s cost.

Affirmed.

      . Assuming 4.333 weeks per month.

      . After correction for miscalculated “maid, sitter and/or nursery school” expense.