text:
    Dale E. McDERMOTT, Individually and on behalf of, and as Administrator of the estate of his minor son, Troy Michael McDermott, Plaintiff and Appellant, v. Charles J. SMITH and Travelers Insurance Co. (Amended 3-10-77 Steven Smith _ _ _ Amended 4-4-77 Travelers Indemnity), Defendant and Appellee.
    No. 12141.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1978.
    Rehearing Denied Nov. 20, 1978.

      R. Scott Ramsey, Jr., McElroy & Ramsey, Berwick, for plaintiff and appellant.
    Patrick T. Caffery, Caffery, Duhe, Oubre & Gibbens, New Iberia, for Travelers Ins. Co.
    Michael Aloise, Jr., Morgan City, for Charles J. Smith & Stephen Smith.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

This action by Dale E. McDermott (Appellant) seeks damages for dog bite injuries to his minor son Troy, allegedly inflicted by an animal owned by Steven Smith, son of defendant Charles J. Smith, which animal was kept on premises occupied by Charles J. Smith at the time of the incident in question. The premises occupied by Smith were owned by Mrs. Eddie Guarisco, an interdict, whose curator is Anthony J. Guarisco, Sr. The named defendants are Charles J. Smith and the Travelers Indemnity Company (Travelers), alleged insurer of Smith. Both Appellant and Travelers filed motions for summary judgment on the issue of Smith’s alleged coverage under a policy issued to Anthony J. Guarisco, Sr. From judgment dismissing plaintiff’s motion for summary judgment, sustaining Travelers’ motion and dismissing Travelers from the action, plaintiff has appealed.

The sole issue presented is that of Travelers’ alleged coverage of defendant Smith. The motions were submitted on the pleadings, depositions of Smith and Guarisco and an affidavit filed on behalf of Smith.

It is undisputed that Mrs. Eddie Guarisco, sister-in-law of Anthony J. Guarisco, Sr., owned a residence situated at 3003 Catherine Street, Morgan City, Louisiana. On April 4, 1975, Anthony J. Guarisco, Sr. was appointed provisional curator of his sister-in-law, which appointment was made permanent on February 18, 1976. Guarisco, a man of apparent means and varied business interests, had his personal properties, business interests and numerous vehicles insured by Travelers pursuant to a policy entitled Special Business Policy which provided general and automobile liability coverage of Mr. Guarisco. After becoming curator of his sister-in-law, in October, 1975, Guarisco had the policy endorsed to insure himself and “anyone acting as a real estate manager of Anthony J. Guarisco, Sr., and/or the premises located at 3003 Catherine Street, Morgan City, Louisiana”.

The depositions disclose that on May 1, 1975, defendant Charles J. Smith was employed as manager of an incorporated supermarket located in Morgan City and operated by Terry Guarisco, son of Anthony J. Guarisco, Sr. Although the elder Guarisco owns a large share of the corporate stock, he took no part in the operation of the supermarket. From April, 1975, until November, 1975, Smith resided, rent free, in a house owned by Anthony J. Guarisco, Sr., which residence is located in Morgan City. In November, 1975, Smith moved into the residence located at 3003 Catherine Street pursuant to a verbal agreement with Anthony J. Guarisco to purchase the property when Guarisco was confirmed as curator of his sister-in-law and title to the property could be legally conveyed.

Appellant’s original petition named only Smith and Travelers as defendants and alleged that Travelers’ policy covered Smith, Mrs. Eddie Guarisco and/or Anthony J. Guarisco, Sr. By supplemental petition, Appellant alleged that Anthony Guarisco, Sr. had allowed Smith to live in the Eddie Guarisco home rent free and gratuitously. It also alleged that Anthony J. Guarisco, Sr. was Smith’s benefactor and that Guarisco should have inspected the premises and discovered known and unknown dangers. By a subsequent supplemental petition, Appellant alleged that Smith was acting as real estate manager of the Catherine Street property for Anthony J. Guarisco, Sr.

Mr. Guarisco’s deposition recites that a short time before the accident, which occurred February 18,1976, he allowed Smith to live in the Catherine Street property rent free in accordance with a verbal agreement to sell the premises to Smith when Guarisco was in a position to transfer title as curator of the owner. Guarisco did not charge Smith any rent; he imposed no obligation of care or maintenance on Smith; and, gave Smith no instructions concerning use or maintenance of the property. Guarisco assumed that Smith would maintain the premises as a prospective buyer and he considered Smith as owner from the day Smith occupied the premises. Guarisco deposed that he had his personal policy endorsed to cover the subject property solely to protect himself from personal liability for any accident happening on the premises.

Smith’s deposition, in effect, confirms that of Guarisco. It acknowledges that he moved into the Catherine Street residence pursuant to a verbal agreement with Guar-isco to buy the property. He paid no rent, nothing was said about a lease. Immediately upon occupying the residence, he applied for a loan to finance the sale which was agreed to take place when Guarisco was in a position to sell as curator of the owner. He was given no instructions as to care or maintenance of the premises and was not obligated in any way to repair or preserve the property. He conceded that before the sale, he repaired the utility room and painted the entire inside of the residence in anticipation of becoming owner.

In an affidavit filed in the trial court, Smith reiterated the substance of his deposition which he concluded with the self-serving declaration that “at the time of the accident, namely, February 18, 1976, I was simply managing the property for Mr. Anthony J. Guarisco, Sr.”

Appellant and Travelers both rely upon Savoy v. Action Products, Inc., 324 So.2d 921 (La.App.3d Cir. 1975), in urging their respective motions for summary judgment. Savoy defines a real estate manager as “one who manages real estate for another”. In applying this definition to the facts before it, the court, in Savoy, noted:

“While the definition of real estate manager, as we stated earlier, is a question of law, whether in this case Mrs. Higginboth-am is included within that definition is a question of fact. We conclude that Mrs. Higginbotham was a mere lessee and not a real estate manager. All of the acts performed by her in connection with the property leased were simply acts consistent with her obligations under the law of lease. She had no relationship with Sentry’s insured other than as lessee of the property. The evidence considered by the trial court on the motion for summary judgment shows clearly that Mrs. Higgin-botham was not a ‘real estate manager.’ Thus, there was no ‘genuine issue of material fact’ as to this question.”

Whether or not one is a real estate manager who manages real estate for another is a question of fact to be determined in the light of the circumstances of each particular case.

The trial judge found in this instance that there was no dispute as to the material facts attending the relationship between Guarisco and Smith. He also found that the facts show that Smith occupied the premises as permittee of Guarisco, for Smith’s own benefit inasmuch as Smith was to become the owner within a short time and that Smith was under no instruction from or obligation to Guarisco as regards maintenance and care of the property.

A motion for summary judgment may properly be rendered when there is no genuine dispute as to an issue of material fact, and on the basis of the undisputed facts, movant is entitled to judgment as a matter of law. All reasonable doubt in such instances must be resolved in favor of trial on the merits. La.C.C.P. Article 966; George & George v. Bennett, 329 So.2d 793 (La.App. 1st Cir. 1976).

We find no dispute as to material fact in the depositions of Smith and Guaris-co. Both show the same nature of Smith’s possession and occupancy of the premises in question. From the undisputed facts, only one legal conclusion is possible, namely, that Smith’s occupancy was not in the capacity as manager for Guarisco but for Smith’s own use and benefit as a prospective purchaser. The self-serving affidavit filed by Smith terminating with the statement that Smith was simply managing for Guarisco does not alter the result. The declaration that Smith was managing is not a statement of fact but a conclusion which does not put in dispute a material issue of fact. Whether or not Smith was a real estate manager is an issue which will be determined in the light of the undisputed facts attending the relationship between Guaris-co and Smith, not by Smith’s unilateral self-serving conclusion, as to the relationship which the facts establish as a matter of law.

We concur in the trial court’s findings that there is no genuine dispute as to material fact and that the undisputed material facts establish that Smith was not a real estate manager for Guarisco. Consequently, Smith was not an insured under Travelers’ policy.

The judgment is affirmed at Appellant’s cost.

Affirmed.


source: Caselaw Access Project

author: LANDRY, Judge.

license: Public Domain

text:
    Vincent BROCATO, Jr. v. Elosia Ann Babin BROCATO. Elosia Ann Babin BROCATO v. Vincent BROCATO, Jr.
    Nos. 12146, 12147.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1978.

      Kenneth L. Riche, Baton Rouge, of counsel, for Vincent Brocato, Jr. in both cases.
    Richard C. Cadwallader, Baton Rouge, of counsel, for Elosia Ann Babin Brocato in both cases.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Defendant (Appellant), Elosia Ann Babin Brocato, appeals from judgment awarding temporary care, custody and control of the minors Monette Brocato and Trey Brocato, ages eleven and seven, respectively, issue of the marriage between Appellant and Plaintiff (Appellee), to Appellee and placing the children in the physical custody of their paternal grandparents, Mr. and Mrs. Vincent Brocato, Sr., who reside in Nashville, Tennessee. We affirm.

Both parties hereto filed suits for separation alleging cruelty and habitual intemperance on the part of the other and each alleging the other to be unsuitable to have custody of the children. The actions were consolidated for trial and, after numerous hearing days, were submitted to the trial judge and taken under advisement on August 3, 1977. On October 14, 1977, Appellee moved to reopen the case for the purpose of presenting evidence of events occurring subsequent to the case having been taken under advisement. Appellant opposed the motion to reopen which motion was then heard contradictorily and allowed by the trial judge. Two additional trial days were held and the matter again taken under advisement. Following resubmission, counsel for Appellant wrote a letter to Appellee’s counsel complaining of incidents which transpired after the matter was resubmitted, namely, occasions on which Appellee allegedly refused to surrender the children to Appellant. A copy of this letter was sent to the trial judge who had the case under advisement. In refutation of the charges, Appellee submitted to the trial judge a copy of a police report which detailed the facts of one of the alleged incidents.

Appellant contends the trial judge erred in: (1) considering a police report of an incident involving the parties subsequent to submission of the case for decision on the merits because: (a) the report is hearsay, and (b) the trial judge was limited to consideration of evidence adduced at trial in deciding the case on its merits; (2) awarding custody to the father contrary to the rule which prefers the mother in cases involving custody of children, especially children .of tender years; (3) awarding the temporary custody to persons living outside the state, and (4) permitting Appellee to reopen the case after trial and submission for decision.

Concerning the trial judge’s reopening of the case, it is well settled that such a matter is within the sound discretion of the trial court and the exercise of such discretion will not be disturbed on appeal except in case of a showing of an abuse of that discretion. Hyatt v. Hartford Accident and Indemnity Company, 184 So.2d 563 (La.App. 3rd Cir. 1966). Appellant contends the case was improperly reopened because the motion to reopen did not detail the grounds upon which the motion was based and was not verified by Appellee’s affidavit as required by La.C.C.P. Article 1975. Conceding, arguendo, that such a motion must be verified by movant’s affidavit, no such objection to reopening the matter was made by Appellant in the trial court. So far as the record shows, Appellant objected to the reopening solely on the ground that the matter had been submitted for decision and that the trial judge should not have received evidence of events occurring after the matter had been taken under advisement. Custody is a matter which may be inquired into at any time if the interest or welfare of the children involved so requires. It lay within the sound discretion of the trial judge to reopen this matter to receive additional evidence which he felt might aid in his decision. Appellant, having failed to advance in the trial court the technical objection urged on appeal, is deemed to have waived such objection.

Under the circumstances, we find no error on the part of the trial judge in considering the police report submitted after this matter was taken under advisement. As already noted, Appellant’s counsel wrote a letter to Appellee’s attorney, subsequent to submission of the case, a copy of which was sent to the trial judge. The letter criticized severely certain alleged actions of Appellee subsequent to the trial judge’s taking the matter under advisement. The police report was submitted to counter the allegations in the letter. Appellant, being the first to convey to the trial judge evidence of actions occurring after the matter was submitted, is in no position to equitably complain of Appellee’s similar conduct. Moreover, it is evident from the trial judge’s written reasons for judgment that he did not rely on the police report in reaching his decision.

As argued by Appellant, our jurisprudence establishes that the mother is preferred in custody cases unless she has been shown to be morally unfit. McManus v. McManus, 250 So.2d 498 (La.App. 1st Cir. 1971). Such preference, however, is not absolute and unqualified. The primary concern in custody cases is the welfare of the child or children involved and courts may award custody to a person other than the mother when the welfare of the child or children concerned so requires. Gulino v. Gulino, 303 So.2d 299 (La.App. 1st Cir. 1974).

In custody cases much discretion is vested in the trial judge whose determination will not be disturbed on appeal except in case of a showing of an abuse of such discretion. Malbrough v. Malbrough, 267 So.2d 265 (La.App. 1st Cir. 1972).

No useful purpose would be served by detailing the voluminous evidence concerning the alleged immorality and unsuitability charged by each party herein against the other. It suffices to state that the reasons for judgment assigned by the trial judge indicate clearly that while he questioned the suitability of both parents, he nevertheless deemed the best interest of the children would be served by placing them in the temporary care and custody of their father. Based on the record, we find no abuse of trial court discretion in this instance.

Appellant relies on Fayard v. Fayard, 181 So.2d 304 (La.App. 4th Cir. 1965) and Sachse v. Sachse, 150 So.2d 772 (La.App. 1st Cir. 1963), in support of her argument that the trial court erred in granting custody to the father and allowing the paternal grandparents to temporarily take the children to Nashville, Tennessee. The cited authorities recognize that children generally should remain within the jurisdiction of the state but that in exceptional circumstances the party granted custody may be allowed to remove a child to another jurisdiction. Later authorities appear to have broadened the above rule to allow more freedom with regard to removing children from the jurisdiction of the court. See Pattison v. Pattison, 208 So.2d 395 (La.App. 4th Cir. 1968) and Broomfield v. Broomfield, 283 So.2d 839 (La.App. 2d Cir. 1973).

The maternal grandmother, who lives in Louisiana, was willing to accept custody of the children. The trial judge’s reasons for judgment indicate that he found the maternal grandmother as suitable as the paternal grandparents to have temporary physical possession of the children but that he preferred the paternal grandparents because the maternal grandmother worked. The trial judge’s reasons for judgment demonstrate clearly that in his considered opinion the best interest of the children would be served by their being temporarily placed in the physical possession of the paternal grandparents even though they might reside outside of the state until the matter of their permanent custody could be resolved: Under the circumstances peculiar to this case we find no abuse of discretion on the part of the trial judge.

The judgment is affirmed at Appellant’s cost.

Affirmed.


text:
    Robert CREADEUR v. DEPARTMENT OF PUBLIC SAFETY, DIVISION OF STATE POLICE.
    No. 12150.
    Court of .Appeal of Louisiana, First Circuit.
    Oct. 9, 1978.
    Rehearing Denied Nov. 20, 1978.

      Robert G. Levy, Baton Rouge, for appel-lee.
    Thomas W. McFerrin, Baton Rouge, for appellant.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

The Department of Public Safety, Division of State Police (Department), appeals from judgment of the State Civil Service Commission (Commission) which reversed the action of the Department, as appointing authority for plaintiff Robert Creadeur, dismissing Creadeur from the permanent status of State Police Trooper for insubordinate refusal to obey the direct order of a superior to take a polygraph or lie detector test incident to an investigation concerning alleged misconduct on Creadeur’s part. We reverse.

Plaintiff’s termination is predicated solely upon a letter charging him with insubordination for declining to submit to either a polygraph (lie detector) or PSE (stress) test during the course of an investigation of certain non-criminal charges against him. Prior to being requested to take the test, plaintiff was advised by his superior, Lt. Colonel J. C. Willie, that plaintiff would be terminated if the test indicated plaintiff was not telling the truth or was guilty of any wrongdoing. The unrefuted testimony of Colonel Willie establishes that he did so inform Appellant but then immediately corrected his position and stated that the result of the test would not be used to discharge Appellant “or anything like that but to channel the investigation, to show us in what direction we should follow.” Plaintiff appealed his dismissal and the Commission ordered his reinstatement upon finding that plaintiff’s refusal to take the tests was not an act of insubordination.

The Department alleges error on the part of the Commission in (1) concluding that plaintiff’s refusal was not an act of insubordination; (2) erroneously finding, based on the human experience of the Commission’s members, that polygraph and stress tests are not infallible; (3) failing to follow our jurisprudence which holds that Civil Service Employees may be required to take such tests incident to investigations involving either themselves or others.

Assuming, arguendo, the Commission erred in concluding that polygraph tests are not infallible based on the human experiences of the Commission’s own members, said ruling was nevertheless correct as a matter of law. We know of no instance in which polygraphs have been admitted in evidence absent prior consent of the party adversely affected. On the contrary, the overwhelming weight of authority is that such tests are inadmissible because the results thereof lack sufficient reliability to fully justify and support the opinions of experts predicated thereon. In other words, the tests are not infallible or totally conclusive. This rule is recognized by some of the authorities relied upon by the Department in support of its contention that failure of an employee to take such a test constitutes insubordination. See Frazee v. Civil Service Board of Oakland, infra. Our own jurisprudence also holds such tests inadmissible in evidence. State v. Schouest, 351 So.2d 462 (La.1977).

We next consider the Department’s contention that plaintiff’s failure to take the test amounted to insubordination violative of Louisiana State Police Procedural Order 505.2, Section B, Paragraph 6, which provides:

“No member of the Division shall willfully disobey any lawful command or order, either verbal or written, of any officer senior in rank.”

Also pertinent is Article 10, Section 8, Louisiana Constitution 1974, which states, in part:

“(A) Disciplinary Actions. No person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing . . . The burden of proof on appeal, as to the facts, shall be on the appointing authority.”

The Department insists that the Commission erred in failing to follow established jurisprudence, including our own, which holds that refusal to take such a test constitutes insubordination. More particularly, the Department cites and relies upon McCain v. Sheridan, 160 Cal.App.2d 174, 324 P.2d 923 (1958); Frazee v. Civil Service Board of Oakland, 170 Cal.App.2d 333, 338 P.2d 943 (1959); Coursey v. Board of Fire and Police Commissioners, 90 Ill.App.2d 31, 234 N.E.2d 339 (1967); Fichera v. State Personnel Board, 217 Cal.App.2d 613, 32 Cal.Rptr. 159 (1963); Clayton v. New Orleans Police Department, 236 So.2d 548 (La.App. 4th Cir. 1970); Callahan v. New Orleans Police Department, 171 So.2d 730 (La.App. 4th Cir. 1965); Roux v. New Orleans Police Department, 223 So.2d 905 (La.App. 4th Cir. 1969); Lemoine v. Department of Police, 348 So.2d 1281 (La.App. 4th Cir. 1977).

Notwithstanding the infallibility of lie detector tests, the foregoing authorities, including our own, do indeed recognize the right of an employer to require a civil service police employee to submit to a polygraph or similar test with respect to a matter under investigation whether the subject of investigation be the conduct of the officer himself, an internal departmental matter, or a crime or offense concerning which the police officer sought to be questioned is a witness or regarding which he has knowledge. The cases recognize, however, that the rule is not unqualified and is subject to the exception that an officer is not required to submit to such an order which is unreasonable or when legitimate reason exists for refusal to obey such an order. See Frazee, above.

Relying greatly on Fichera, above, our Fourth Circuit held in Roux, above, that a police officer was insubordinate in refusing to undergo a polygraph concurrent with his interrogation regarding the victim of a murder investigation, which victim was known by the officer. The officer was informed that the test was requested “to insure the integrity of the Police Department.” The officer was also informed that he was not a suspect, was not charged with any crime and would not be subject to dismissal if the test proved adverse and that he would not be requested to waive immunity from prosecution.

While Roux, above, adopted and applied the rule espoused in Fichera, above, the following language appearing in Roux indicates clearly that the rule is not unqualified:

“We are guided to a great extent in our holding in the present case by what the Court said in the Fichera case, and we say also that there may be many circumstances wherein a superior’s order that a subordinate officer submit to a polygraph test would be unreasonable.” 223 So.2d at 911.

We are in agreement with Roux, above, that as a general rule a police officer may be required to take a polygraph or similar test where the request is reasonable and bears sound relationship to police work, lawful departmental policy or interdepartmental matters, but that the rule is not absolute and is subject to the exception of reasonableness under the circumstances of each case.

Applying this pertinent concept to the case at hand, we find the request in this instance was reasonable. Plaintiff was first advised that he was under investigation for alleged misconduct and would be discharged if the polygraph proved adverse to him. This admonition was corrected immediately by his superior, who stated that Appellant would not be discharged, nor would any similar disciplinary measures be taken but that the result of the test would be used to channel the further direction of the investigation. Appellant was not requested or ordered to relinquish any rights, civil or criminal. We find the facts and circumstances of this case remarkably similar to Roux, above.

The judgment of the Commission is reversed and set aside and judgment rendered herein affirming the action of the Department of Public Safety, Division of State Police, dismissing plaintiff Robert Creadeur from the permanent classified position of State Trooper for insubordination, all costs of these proceedings to be paid by plaintiff.

Reversed and rendered.


text:
    Donald A. BREAUX and Julia A. Breaux, Plaintiffs and Appellees, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY (Traders & General Insurance Company) Defendant & Third Party Plaintiff, Defendant and Third Party Plaintiff-Appellants.
    No. 12154.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1978.
    Writ Granted Dec. 8, 1978.

      Michael J. Samanie and Robert L. Barrios, Houma, for plaintiffs and appellees.
    David E. Walle, New Orleans, for defendant and third party plaintiffs-appellants.
    Felix R. Weill, Baton Rouge, Keith M. Whipple, Houma, for defendant and appel-lee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Defendant Traders and General Insurance Company (Traders) appeals from judgment awarding Traders’ insured, plaintiffs herein, $37,204.65 in general and special damages pursuant to the uninsured motorist clause in Traders’ liability policy on plaintiffs’ automobile, which coverage the trial court found applicable to an accident in which plaintiffs’ minor daughter sustained fatal injuries while riding as guest passenger in another vehicle insured by Government Employees Insurance Company (GEICO). The judgment also rejected Traders’ third party demand against GEI-CO for indemnification. We reverse.

Mary Ann Breaux, minor daughter of plaintiffs Donald A. and Julia A. Breaux, died March 4, 1976, of injuries sustained the previous day in an automobile accident. The mishap occurred when a vehicle owned by Samuel Ayo, insured by GEICO, and being driven by Ayo’s daughter, Gayle, collided head-on with another vehicle. It is conceded the accident, which occurred due to Miss Ayo’s negligence, resulted in the deaths of two passengers in the Ayo vehicle, including that of plaintiffs’ daughter, and injuries to the three remaining occupants, including the driver.

GEICO’s policy provides liability coverage of the Ayo vehicle with bodily injury limits of $50,000 per person and $100,000 for each accident and also uninsured motorist protection in similar limits. Applicability of GEI-CO’s uninsured motorist coverage is the prime issue on this appeal.

On the day of the accident, Traders had in effect a policy covering a vehicle owned by plaintiffs, which vehicle was not involved in subject accident. Traders’ policy provided liability coverage in limits of $10,-000-$20,000 and uninsured motorist coverage in limits of $5,000-$10,000.

Plaintiffs initially sued GEICO seeking recovery under the liability coverage of GEICO’s policy. By amendment, Traders was joined as defendant from whom recovery is sought under the uninsured motorist coverage of Traders policy. Plaintiffs amicably settled their claims against GEICO for $39,700, and, on November 5, 1976, released GEICO from all liability, with prejudice. The release expressly relinquished all claims against GEICO under the liability as well as the uninsured motorist coverage of GEICO’s policy but reserved plaintiffs’ rights against GEICO’s insured, Gayle Ayo. The settlement received by plaintiffs from GEICO was a portion of the liability coverage of GEICO’s policy, the remainder of the $100,000 limits having been depleted through distribution to other parties injured in the accident. Plaintiffs then pursued their own insurer, Traders, and obtained judgment against Traders in the sum of $76,904.65 pursuant to Traders’ uninsured motorist coverage of plaintiffs’ automobile. The judgment, however, credited Traders for the amount received by plaintiffs in settlement with GEICO, thus resulting in judgment against Traders in the sum of $37,204.65. Traders’ third party demand against GEICO for indemnity, based on the contention that the uninsured motorist coverage of GEICO’s policy was available to plaintiffs, was dismissed on GEICO’s exceptions of no right and no cause of action.

Conceding its uninsured motorist coverage of plaintiffs, Traders maintains said coverage is excess insurance because it protects its insured while occupying a non-owned vehicle. On this premise Traders contends that both the liability and uninsured motorist coverage of GEICO’s policy must be exhausted as primary insurance before Traders’ excess insurance may be invoked. More precisely, Traders argues that although plaintiffs have a judgment for $37,204.65, plaintiffs may not proceed against the uninsured motorist coverage of its policy until plaintiffs have first exhausted the primary coverage afforded by the uninsured motorist coverage of the GEICO policy. Traders’ position is extended by the argument that plaintiffs, having released GEICO from liability under the uninsured motorist coverage of GEICO’s policy, must give Traders credit for the amount available to plaintiffs under such coverage, which source of recovery plaintiffs, for plaintiffs’ own reasons, saw fit not to pursue. We find Traders’ argument reasonable and persuasive, provided GEICO’s policy affords uninsured motorist protection to plaintiffs’ daughter.

The GEICO policy pertinently states:

“The company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury’ sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile. . . . ” (emphasis added)

Also pertinent is that portion of Part IV, Coverage J (Protection against Uninsured Motorists) of GEICO’s policy, which defines Insured as follows:

“. . ‘Insured’ means:
(1) • • •
(2) Any other person while occupying an insured automobile; and,
(3) . . . .

Based on GEICO’s definition of insured under the uninsured motorist coverage provision of its policy, plaintiffs’ daughter while an occupant of the Ayo vehicle, which was insured by GEICO, was protected by the uninsured motorist coverage stipulated by GEICO. The policy in effect provides that GEICO agrees to pay “all sums which the insured (Mary Ann Breaux) or [her] legal representatives (plaintiffs) shall be legally entitled to recover as damages from the owner or operator (Gayle Ayo) of an uninsured automobile because of bodily injury . . . including death resulting therefrom . . . .” The phrase “legally entitled to recover” has been interpreted by the Supreme Court to mean “simply that the plaintiff must be able to establish fault on the part of the uninsured motorist which gives rise to damages and prove the extent of those damages.” Booth v. Fireman’s Fund Insurance Company, 253 La. 521, 218 So.2d 580 (1968). See also Guillot v. Travelers Indemnity Company, 338 So.2d 334 (La.App. 3d Cir. 1976); Gremillion v. State Farm Mutual Automobile Insurance Company, 302 So.2d 712 (La.App. 3d Cir. 1974). Plaintiffs and their decedent meet the requirements of establishing fault and proving damages.

The salient question, however, is whether the Ayo vehicle was “uninsured” within the definition of the term appearing in the GEICO policy. In briefs filed in this court, counsel for plaintiffs as well as GEICO show that GEICO’s policy specifically excludes an “insured automobile” from the definition of “uninsured automobile” and that an insured automobile is defined as an automobile “described in the schedule as an insured automobile to which bodily injury liability coverage of the' policy applies.” Simply put, plaintiffs and GEICO contend that, by policy definition, the Ayo vehicle cannot be deemed an uninsured automobile because it is an automobile insured under GEICO’s policy.

We reject appellees’ interpretation of the uninsured motorist clause of GEI-CO’s policy because such construction ignores and is contrary to the applicable provisions of LSA-R.S. 22:1406(D)(2)(b), as amended by Act 154 of 1974. The cited statute includes within the definition of an uninsured motor vehicle “an insured motor vehicle when the automobile liability insurance coverage on such vehicle is less than the amount of damages suffered by an insured and/or the passengers in the insured’s vehicle at the time of the accident . . .” To the extent that the provisions of the GEICO policy are in derogation of the mandatory coverage requirements provided by LSA-R.S. 22:1406(D)(2)(b), they must be declared invalid and of no effect. Deane v. McGee, 261 La. 686, 260 So.2d 669 (1972); Graham v. American Casualty Company of Reading, Pennsylvania, 261 La. 85, 259 So.2d 22 (1972); Guillot v. Travelers Indemnity Company, supra.

The record discloses that collective damages sustained by passengers in the Ayo vehicle, including the $39,700.00 received by plaintiffs herein, amounts to $117,354.65, which exceeds GEICO’s $100,-000 liability coverage. It follows that the Ayo vehicle was underinsured and is therefore a statutorily defined uninsured vehicle. The GEICO policy affords uninsured motorist protection in limits of $50,000-$100,000. That plaintiffs have received a portion of their claim under the liability coverage of GEICO’s policy is a matter of no concern.

We agree with the decision of our brothers of the third circuit which held that a guest passenger may recover under both the liability and uninsured motorist coverage of the host driver’s policy. See Guillot v. Travelers Indemnity Company, supra. In contending otherwise, plaintiffs and GEICO rely upon Arado v. Central National Insurance Company of Omaha, 337 So.2d 253 (La.App. 4th Cir. 1976). We find Arado distinguishably inapplicable inasmuch as the facts giving rise to that litigation occurred prior to the 1974 amendment of LSA-R.S. 22:1406(D)(2)(b), which expanded the legislative definition of an uninsured motor vehicle.

We now consider Traders’ liability to plaintiffs under Traders’ uninsured motorist coverage. The trial court rendered judgment for plaintiffs against Traders in the sum of $37,204.65. We note our finding that GEICO’s policy affords plaintiffs’ decedent uninsured motorist coverage in limits of $50,000 — $100,000. Both policies contain identical “other insurance” clauses which provide as follows:

“Other Insurance: With respect bodily injury to an insured while occupying an automobile not owned by the named insured, the insurance under Part IV 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 limits of liability of such other insurance.”

The issue of the relationship between similar applicable other insurance clauses in cases of this nature was considered by the Supreme Court in Deane v. McGee, supra. In Deane, as in the present case, plaintiffs had available uninsured motorist coverage under both the host driver’s policy and plaintiffs’ own policy, covering a vehicle not involved in the accident. Both policies contained other insurance clauses substantially similar to those found in subject policies. In determining that the injured party must first exhaust all coverage under the policy covering his host’s vehicle, the court stated:

“The relationship which these clauses create is that of an ‘excess’ and ‘primary’ insurer — that is, an insured who is injured while occupying a nonowned automobile must first look to the insurer of the automobile he occupies as ‘primary’ insurer. In this case, therefore, Hanover and Allstate, as insurers of the Dunetz’ automobile would be ‘primary’ insurers. A person’s own insurance, when he is not occupying his own automobile, under this clause, is considered ‘excess’ insurance over and above such primary insurance, and then only to the extent that the limits of liability of his policy exceed the limits of liability of the primary policy. In the context of this case this clause makes State Farm Deane’s excess insurer.” 260 So.2d at 671.

We find, therefore, that the uninsured motorist coverage of the Traders policy is excess coverage to both the liability and uninsured motorist coverage of the GEICO policy. We note in passing that althouglrit is inapplicable herein, a 1977 amendment of LSA — R.S. 22:1406(D)(l)(c) dealing with primary-excess coverage, mandates the result herein reached.

The remaining question concerns plaintiffs’ right to judgment against Traders notwithstanding plaintiffs’ having released GEICO, after settlement, from all liability under GEICO’s uninsured motorist coverage without having exhausted such coverage. This identical issue was considered by the Supreme Court in Futch v. Fidelity & Casualty Company, 246 La. 688, 166 So.2d 274 (La.1964). Futch affirmed trial and appellate court judgments which gave the excess insurer credit for the amount of primary insurance available to plaintiffs therein.

The limits of GEICO’s primary uninsured motorist coverage is $50,000 per person and $100,000 per accident. By analogous consideration of the settlement effected by plaintiffs and GEICO under GEICO’s identical liability coverage, plaintiffs’ share of the uninsured motorist coverage would be at least $39,700.00. Traders, as excess insurer, is entitled to credit of $39,700.00 against the judgment in favor of plaintiffs. It follows that the judgment in favor of plaintiffs and against Traders in the amount of $37,204.65 must be reversed.

Our disposition obviates the need to consider Traders’ alternative complaint that the judgment rendered against it exceeds the exposure limits of its uninsured motorist coverage.

The judgment of the trial court in favor of plaintiffs against Traders is annulled, reversed and set aside and judgment rendered herein in favor of Traders rejecting plaintiffs’ demands, at plaintiffs’ cost.

Reversed and rendered.


text:
    Lasson LEGROS, Appellant, v. DEPARTMENT OF PUBLIC SAFETY, DIVISION OF STATE POLICE, Appellee.
    No. 12157.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1978.
    Rehearing Denied Nov. 20, 1978.
    Writ Refused Jan. 12, 1979.

      Walton J. Barnes, Baton Rouge, for appellant.
    Thomas W. McFerrin, Baton Rouge, for appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

This appeal by Lasson B. LeGros (Appellant), is from a ruling of the State Civil Service Commission (Commission), confirming Appellant’s dismissal from the permanent-status, classified position of sergeant, Louisiana State Police. We affirm.

The issues are: (1) Whether the Department of State Police (appointing authority) abused its discretion in imposing disciplinary measures disproportionate with the gravity of Appellant’s admitted offense of taking materials (lumber valued at about $19.00), and converting same to Appellant’s own use, and (2) whether the Commission committed reversible error in declining, for procedural reasons, to allow Appellant to offer testimony concerning alleged discrimination against Appellant.

By letter dated September 8,1977, Appellant was duly notified by Grover W. Garrison, Deputy Secretary, Office of State Police, of Appellant’s dismissal for having ordered a subordinate to take materials belonging to the Department and deliver them to Appellant’s residence where they were incorporated into a building Appellant was erecting. The notice charged further that Appellant’s unsuitability as a state police officer was additionally demonstrated by Appellant’s service record which contained a history of eight prior disciplinary actions consisting of four suspensions without pay and four reprimands between March 18, 1970, and January 26, 1977. The notice also recited that Appellant’s record indicated a “cumulative pattern of unacceptable behavior” justifying Appellant’s discharge.

The Commission heard Appellant’s appeal on January 10, 1978, at which time, when called by the Commission, Appellant admitted having taken the materials with intent to return them in kind. Appellant also attested to having made restitution. The Commission then closed its case. By way of defense, Appellant reiterated his testimony given when called by the Commission and attempted to testify concerning other instances in which employees charged with similar conduct were not dismissed from service. Appellant argued that, being an employee with more than ten years service, he was discriminated against in that other long term employees were not discharged for similar infractions. Counsel for the appointing authority objected to such testimony on the ground that Appellant had not laid the proper foundation for such testimony by complying with Commission Rule 13.-11(d), adopted February 18, 1976, which pertinently provides:

“A notice of appeal must . . .(d) contain a clear and concise statement of the actions complained against and a clear and concise statement of the basis of the appeal. Where discrimination is alleged to be a basis for appeal, specific facts supporting the conclusion of discrimination must be alleged in detail; and . . (Emphasis supplied by the court)

The Commission sustained the objection to Appellant’s offer of testimony regarding alleged discrimination. Counsel for Appellant conceded his familiarity with the rule and acknowledged that the notice of appeal was factually inadequate as regards alleged discrimination.

We, as did the Commission, find no abuse of the appointing authority’s discretion in dismissing Appellant under the circumstances of this case. Our jurisprudence is well established that an appointing authority is under the duty to take appropriate disciplinary action and the Commission has the corresponding obligation to uphold such action when the conduct or performance of an employee bears a real and substantial relation to and has a detrimental effect upon the efficient operation of the public service. King v. Department of Public Safety, 234 La. 409, 100 So.2d 217 (1958); Barnes v. Department of Highways, 154 So.2d 255 (La.App. 1st Cir. 1963).

Appellant was not discharged solely for taking the materials. The notice of disciplinary action issued herein makes it quite clear that Appellant’s dismissal was the cumulative result of a long history of disciplinary measures taken against Appellant and that the incident involving materials was merely the “straw that broke the camel’s back.” In our judgment, Appellant’s employment record warrants dismissal.

Incidental to this issue is Appellant’s complaint that the Commission failed to make an independent factual determination of the charges involving the taking of materials. It suffices that both in his notice of appeal and in his testimony before the Commission Appellant conceded taking the materials and rested his defense on the grounds of alleged discrimination and abuse of appointing authority discretion.

Regarding the allegation of discrimination, Appellant’s notice of appeal recites the following:

“—Furthermore, from information given to me, it appears that others similarly situated have been accorded a more reasonable penalty in the disciplinary process of the department. By this, I mean that the department has been discriminatory in its practices, specifically for the reason that other employees who have been charged with equal or worse offenses have not been released from their employment; that they were reprimanded or suspended but not denied, after years of service, their professional status.”

In contending that the Commission erred in refusing to allow evidence of alleged discrimination, Appellant cites and relies upon Smith v. Board of Commissioners of the Port of New Orleans, 262 La. 96, 262 So.2d 383 (1972), and Meaux v. Department of Highways, 274 So.2d 486 (La.App. 1st Cir. 1973). We note that these authorities were decided before adoption of Civil Service Commission Rule 13.11(d), above.

The rules of the Commission have the force and effect of law. La.Const.1974, Article 10, Section 10(A)(4); Pelletier v. Executive Department, Division of State Buildings and Grounds, 331 So.2d 72 (La.App. 1st Cir. 1976).

The Commission is a quasi-judicial body and so long as its rules are reasonable and do not violate basic constitutional rights, they must be recognized and enforced by the courts. Heinberg v. Department of Employment Security, 256 So.2d 747 (La.App. 1st Cir. 1971).

Appellant’s allegations of discrimination do not meet the requirements of Rule 13.-11(d) which we find to be a valid exercise of the Commission’s rule making authority. The obvious purpose of Rule 13.11(d) is to insure the appointing authority the same degree of specificity concerning its alleged discrimination as the employee is entitled to receive with respect to the charges on which the disciplinary action is predicated. The requirement is reasonable in that it relieves the appointing authority of the disadvantage of having to defend against vague and unspecified charges of discrimination and thereby clearly defines the scope of the hearing before the Commission.

We are mindful of our holding in Meaux v. Department of Highways, supra, that an employee must be afforded a full, complete and fair hearing before the Commission, including the right and opportunity to establish any material issue properly raised. In this instance, Appellant did not properly raise the issue he now seeks to have us review.

Nor is our decision affected by the fact that Appellant’s notice of appeal contains the following:

“If for any reason, further information may be required in order to perfect this appeal under the current rules of the Commission, the writer as attorney for Sergeant LeGros, respectfully requests the opportunity to provide such information before a hearing shall have been fixed for the purpose of considering the merits of this employee’s appeal.”

As previously noted, counsel for Appellant acknowledged at the hearing that he was familiar with the Commission’s rules and realized his notice of appeal was factually inadequate concerning allegations of discrimination.

Appellant’s failure to timely comply with Rule 13.11(d) resulted in a waiver of his claim of alleged discrimination. Toms v. Louisiana Health & Human Resources Administration, Division of Management, 349 So.2d 941 (La.App. 1st Cir. 1977); Civil Service Commission Rule 13.12(a), (d).

The Commission’s ruling is affirmed at Appellant’s cost.

Affirmed.


author: PONDER, Judge.

text:
    STATE of Louisiana In the INTEREST OF Scotty Lynn COLLUM.
    No. 12163.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1978.
    Walter K. Naquin, Jr. and Jerome J. Barbera, III, Asst. Dist. Attys., Thibodaux, for plaintiff and appellee.
    R. Dwain Blakley and Wilson F. Walters, Denison, Tex., and Fred J. Kleppner, Me-tairie, for defendant and appellant.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

Defendant, a juvenile, appealed from the judgment denying his motion to suppress a confession.

The issue is the admissibility of taped confessions and statements taken purportedly in violation of the United States Constitution and the Louisiana Constitution and of LSA-R.S. 13:1577(C).

We reverse and remand.

Admittedly, Scotty Lynn Collum, a thirteen year old, was given the Miranda warnings several times by the California law enforcement officials who questioned him. Admittedly, also the juvenile was questioned without being allowed to consult with an attorney interested in the juvenile’s welfare or an adult interested in the juvenile’s welfare and fully advised as to the juvenile’s rights before giving the confession. The State, however, contends that the juvenile waived his rights to counsel and against self-incrimination.

In the case of State, In the Interest of Dino, 359 So.2d 586 (La.1978) the court said:

“. . . the purported waiver by a juvenile must be adjudged ineffective upon the failure by the State to establish any of three prerequisites to waiver, viz., that the juvenile actually consulted with an attorney or an adult before waiver, that the attorney or adult consulted was interested in the welfare of the juvenile, or that, if an adult other than an attorney was consulted, the adult was fully advised of the rights of the juvenile.”

We hold, therefore, that the purported waiver was ineffective and the confession and inculpatory statements should have been suppressed.

The State contends that the Dino holding should not be given a retroactive effect. The Supreme Court, in granting a writ and reversing in State of Louisiana, In the Interest of Leander Jones, 360 So.2d 1181 (La.1978), gave instructions to reconsider in light of the Dino case. The relevant facts in the Jones case are indistinguishable from those in the present case.

While the procedure employed, that is of acceptance of a guilty plea with reservation of right to appeal the denial of the motion to suppress, is unusual, it has been approved in criminal cases. See State v. Crosby, 338 So.2d 584 (La.1976). We approve the use in juvenile cases.

We do not reach the question of the purported violation of LSA-R.S. 13:1577(C), in view of the above conclusions.

The judgment overruling the motion to suppress is reversed. The case is remanded to the juvenile court for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

      . U.S.Const., 5th Amendment:
      “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

      . La.Const. of 1974, Art. 1 § 13.
      “When any person has been arrested or detained in connection with the investigation or commission of any offense, he shall be advised fully of the reason for his arrest or detention, his right to remain silent, his right against self incrimination, his right to the assistance of counsel and, if indigent, his right to court appointed counsel. In a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him. At each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment. The legislature shall provide for a uniform system for securing and compensating qualified counsel for indigents.”

      .LSA-R.S. 13:1577(C):
      “Except as hereinafter provided, no child shall be confined in any police station, prison or jail, or be transported or detained in association with criminal, vicious or dissolute persons. A child fifteen years of age or older may be placed in a jail or other place of detention for adults, but in a room or ward entirely separate from adults.”


author: CHIASSON, Judge.

text:
    Clarence L. MURPHY, Appellant, v. HURDLE PLANTING & LIVESTOCK CO., INC. and Lamar Golman, Appellees.
    No. 12172.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1978.
    Rehearing Denied Nov. 20, 1978.
    Writ Refused Jan. 12, 1979.

      See also, La.App., 331 So.2d 566.
    Charles W. Wilson, III, of Watson, Blanche, Wilson & Posner, Baton Rouge, for plaintiff, appellant.
    Robert J. Vanda worker of Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendant, appellees.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   CHIASSON, Judge.

Plaintiff, Clarence L. Murphy, appeals a judgment in favor of defendant, Hurdle Planting & Livestock Co., Inc. (Hurdle), dismissing his suit on the grounds of abandonment. Murphy filed suit on November 22, 1968. Hurdle, on January 6, 1969 answered the suit and propounded interrogatories. On January 4, 1974, a motion to set the case for trial was filed with the Clerk of Court of the Eighteenth Judicial District Court. On July 14, 1976, Hurdle filed a motion to dismiss the suit on the grounds of abandonment and this motion was granted.

The chronology of this case is set out in detail in Murphy v. Hurdle Planting & Livestock, Inc., 331 So.2d 566, (La.App. 1st Cir. 1976) and we need not repeat it here. To briefly bring this action up to date, we note that from the trial court’s judgment dismissing the entire action, this court in the above cited case, amended the judgment to dismiss the case only as to Lamar Gol-man. After rehearing was denied and writs refused, defendant Hurdle filed the instant motion for dismissal of the suit on the grounds of abandonment. Obviously, during the time the question of the dismissal of the entire suit was being litigated, plaintiff could do nothing to further the prosecution of his action.

Code of Civil Procedure, Article 561 provides in part:

“An action is abandoned when the parties fail to take any steps in its prosecution or defense in the trial court for a period of five years. This provision shall be operative without formal order, but on ex parte motion of any party or other interested person, the trial court shall enter a formal order or dismissal as of the date of its abandonment. . . .”

A step in the prosecution or defense of an action within the meaning of the above cited article is a formal move or action before the trial court intended to hasten judgment. Melancon v. Continental Casualty Company, 307 So.2d 308 (La.1975); Gros v. Houma Medical and Surgical Clinic, 343 So.2d 1115 (La.App. 1st Cir. 1977).

“There is no doubt that a Motion to Fix Case for Trial, properly filed, is clearly one that is intended to hasten the suit to judgment . . . ” Coastal Erection Co., Inc. v. Milan Engineering Co., 305 So.2d 713 (La.App. 4th Cir. 1974). See also Schutz- man v. Dobrowolski, 191 La. 791, 186 So. 338 (1939); Cocke v. Cavalier, 175 La. 151, 143 So. 33 (1932); Crabtree v. Reed, 224 So.2d 64 (La.App. 3rd Cir. 1969); Loftus v. Grain Dealers Mutual Insurance Company, 195 So.2d 747 (La.App. 1st Cir. 1967).

Article 253 of the Code of Civil Procedure provides:

“All pleadings or documents to be filed in an action or proceeding instituted or pending in a court, and all exhibits introduced in evidence, shall be delivered to the clerk of the court for such purpose. The clerk shall endorse thereon the fact and date of filing, and shall retain possession thereof for inclusion in the record, or in the files of his office, as required by law.”

The motion to fix for trial is timestamped as being received in the Clerk of Court’s Office of the Eighteenth Judicial District Court on January 4, 1974, within the prescriptive period. We hold that the motion was properly filed and interrupted the running of prescription.

The trial judge also relied upon the local rules of the Eighteenth Judicial District Court to support his finding that the action had been abandoned by plaintiff. The trial judge interpreted said rules to require the presentation of a motion to fix for trial to the judge in open court or personally for the judge’s signature. Motions for assignment in the Eighteenth Judicial District Court are required to be “made by motion in open court or by written motion transmitted to the court. ” (Emphasis supplied). We find that a properly filed motion to set for trial is one transmitted to the court. Under La.CCP art. 253 the method of bringing this pleading before the court is its filing with the clerk of court.

The trial judge also found the motion to fix for trial defective because it was signed by an attorney who did not represent the plaintiff.

In this case the motion to set trial was signed by an attorney who was not, at the time of signing, appellant’s counsel of record. Mr. Grevemberg was plaintiff’s original attorney. Plaintiff went to see Mr. Kimball, another attorney, to negotiate representation. Mr. Kimball testified that he checked the case, found that prescription was about to run, contacted Mr. Grevem-berg and filed the motion to set for trial. Mr. Kimball asked Mr. Dawson, an attorney he sometimes associated with on cases, to sign the motion due to an apparent conflict of interest Mr. Kimball might have with the case. The motion was filed on January 4, 1974 with Mr. Dawson’s signature at the request of Mr. Kimball. Mr. Dawson was therefore indirectly authorized to file the motion by plaintiff and his counsel of record. See Kanuk v. Pohlmann, 338 So.2d 757 (La.App. 4th Cir. 1976), writ denied 341 So.2d 420.

For these reasons the judgment of the District Court is reversed and the case is remanded for further proceedings.

Costs of this appeal are to be paid by appellee, Hurdle Planting & Livestock Co., Inc., and all other costs are to await the final disposition of the case.

REVERSED AND REMANDED.


author: LOTTINGER, Judge.

text:
    NATIONAL SAFE CORPORATION v. BENEDICT & MYRICK, INC.
    No. 12186.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1978.

      Thomas R. Elkins, and Donna D. Fraiche, Baton Rouge, for plaintiff-appellee Nat. Safe Corp.
    Victor A. Sachse, Baton Rouge, for defendant-appellant Benedict & Myrick, Inc.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is an appeal by the defendant-plaintiff in reconvention, Benedict & Myrick, Inc., from the granting of a partial summary judgment as to one allegation of the recon ventional demand. Plaintiff, National Safe Corporation, sued for money due and owing on merchandise sold to the defendant. Benedict & Myrick, Inc. answered and reconvened alleging, in part at paragraph 11 of the answer and recon ventional demand, that plaintiff had induced an employee of the defendant to leave its employ as follows:

“Benedict & Myrick, plaintiff in recon-vention, further alleges that the arrangements made by National Safe to induce Sibley to leave the employ of Benedict & Myrick while both National Safe and Sib-ley were still under contract to Benedict & Myrick was an active breach of their contract, which by its nature obligated both parties to fair dealing with the other and this action has caused damage to Benedict & Myrick through the loss of future business of not less than FIFTY THOUSAND AND NO/100 DOLLARS ($50,000.00).”

The trial judge granted a partial summary judgment “dismissing the claim or claims set out by Benedict & Myrick, Inc., as Plaintiff in reconvention, as more particularly stated in the Answer in [sic] Reconventional Demand, paragraph 11, * * * ”.

The appellant basically argues that there is a genuine issue of material fact, and the trial judge was in error in following Roussel Pump & Electric Co. v. Sanderson, 216 So.2d 650 (La.App. 4th Cir. 1968).

Though there may be factual issues involved as to whether National Safe induced defendant’s employee, Sibley, to leave the employment and conceding all of the facts in favor of defendant, i. e. National did induce the employee to leave the defendant’s employment, we find no clause within the contractual agreement previously existing between plaintiff and defendant prohibiting such an activity. Thus, since this action cannot be brought in contract, it must be ex delicto.

Louisiana does not recognize as a tort the inducement of the breach of an employment contract. Roussel Pump & Electric Co. v. Sanderson, supra, and the cases therein cited. Appellant argues that Louisiana is one of two states that still adheres to this outdated rule, and thus, since we are out of step with the rest of the nation, this court should change this rule.

The change of this rule is properly left to our Supreme Court. Johnson v. St. Paul Mercury Insurance Company, 256 La. 289, 236 So.2d 216 (1970).

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

AFFIRMED.


author: SARTAIN, Judge.

text:
    F. C. WILLIAMS REAL ESTATE v. John M. HAYDEL, Jr.
    No. 12187.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1978.
    John G. Morgan, Baton Rouge, of counsel for plaintiff-appellee F. C. Williams Real Estate.
    Randall J. Cashio, Baton Rouge, of counsel for defendant-appellant John M. Haydel, Jr.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   SARTAIN, Judge.

In this suit for a real estate commission, defendant appeals from an adverse judgment of the district court. We affirm.

It is undisputed that on October 13, 1976, John M. Haydel, Jr. (Haydel) signed a written listing agreement with F. C. Williams Real Estate (Williams) granting the latter the exclusive right to sell his home until the expiration date of December 31, 1976. The contract also provided that in the event the property was sold within an additional one hundred eighty days to anyone to whom Williams had offered the property, Haydel agreed to pay the stipulated commission of six percent of the sale price.

On March 4,1977, within the one hundred eighty day period, Haydel sold his home to Mr. and Mrs. Eugene Givens, Jr. The fact that Mr. and Mrs. Givens were purchasers procured through the efforts of Williams is not contested.

Williams’ right to the commission on the sale depends on the effect given to the words “Conventional or Assumption Only” which were written across the top of the listing agreement on the insistence of Hay-del by Mr. Douglas Caulfield, an agent of Williams. Parol evidence was admitted to clarify the conceded ambiguity created by the addition of these words. The admissibility of such evidence is not presently disputed.

According to the testimony of both Hay-del and Caulfield the words were added to show Haydel’s desire for conventional financing or assumption of his loan because of his (Haydel’s) concern about having to pay discount points if the purchaser obtained either VA or FHA financing. Haydel’s sale to Givens was financed by a VA loan.

Caulfield testified that the words were added merely to indicate Haydel’s preference as to financing. He stated that he had explained to Haydel that all interested persons would be shown the house but that Haydel would have the right to determine if' a buyer was acceptable to him.

Haydel’s testimony was to the effect that he had the words inserted because he did not want the purchase price reduced by both a broker’s commission and the discount points of VA or FHA financing and felt that it would be a waste of time for plaintiff to show the house to such persons.'

The issue thus presented is whether, according to the provisions of the listing agreement, Haydel can make a VA financed sale to a purchaser procured by Williams and not incur an obligation to pay the stipulated commission.

Haydel contends that the insertion of “Conventional or Assumption Only” on the listing agreement created a suspensive condition which suspended his obligation to pay a commission until Williams procured a purchaser who would either assume his existing loan or use conventional financing and that the sale of the home with VA financing did not satisfy the suspensive condition. C.C. art. 2043.

Williams, on the other hand, maintains that the inserted words merely expressed a preference of the seller, the effect of which was to give him (Haydel) the right to refuse an otherwise qualified buyer, who had VA or FHA financing, without incurring liability for a commission; but, if Haydel were to accept such a buyer then a commission would be due. The trial judge agreed with the view expressed by Williams.

The party relying upon a suspensive condition as a defense bears the burden of proving the existence of the condition and the failure of the occurrence of the event upon which the conditional obligation depends. C.C.P. art. 857. Dales Jewelers, Inc. v. Rice, 316 So.2d 416 (La.App. 2d Cir. 1975).

As noted above, each of the parties to the listing agreement attached a different meaning to the words “Conventional or Assumption Only.”

Our Civil Code, on the subject of the interpretation of ambiguous contracts, provides as follows:

Art. 1957. In a doubtful case the agreement is interpreted against him who has contracted the obligation.
Art. 1958. But if the doubt or obscurity arise for the want of necessary explanation which one of the parties ought to have given, or from any other negligence or fault of his, the construction most favorable to the other party shall be adopted, whether he be obligor or obligee.

We find that under these rules of interpretation the ambiguity should be construed against Haydel.

Although Williams prepared the written form for the listing agreement and would be responsible for any ambiguity in the form itself, the words “Conventional or Assumption Only” were a modification added at the insistence of Haydel, who must properly bear the responsibility for any uncertainty caused by their insertion as he was in a better position to see that his condition was expressed in a clear and unequivocal manner. We conclude that the “want of necessary explanation” was the fault of Haydel. C.C. art. 1958, above. Rozas v. Evangeline Parish Police Jury, 322 So.2d 403 (La.App. 3d Cir. 1975). It does not appear reasonable to expect that a real estate broker would show property to persons when he has no hope of receiving a commission from a sale to them. It is even less likely that an agent would undertake the sale of a home when the owner could accept the purchaser procured by the agent but avoid the obligation of a commission under the theory advanced by Haydel.

We agree with the interpretation propounded by Williams that the addition of the words “Conventional or Assumption Only” simply gave Haydel the right to refuse a buyer with VA or FHA financing without incurring liability for the stipulated commission.

By way of analogy, similar treatment has been accorded the clause containing the list[ed] price. Generally, the owner has a right to refuse to sell at a lower price, but if he accepts a reduced price the broker is entitled to his commission. Grace Realty Co. v. Peytavin Planting Co., 156 La. 93, 100 So. 62 (1924); Pasternack v. Louisiana and Arizona Lands, Inc., 254 So.2d 142 (La.App. 3d Cir. 1971). Cf. Meyers v. Davidson, 196 So.2d 546 (La.App. 4th Cir. 1967), writ refused 250 La. 746, 199 So.2d 182 (1967). The same considerations of fairness apply in the case at hand.

Accordingly, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

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

      . C.C.P. art. 857.
      “In pleading the performance or occurrence of suspensive conditions, it is sufficient to allege generally that all such conditions have been performed or have occurred. A denial of performance or occurrence shall be alleged specifically and with particularity.”


text:
    Donald Ray MILTON, Plaintiff and Appellant, v. Mary McGowan MILTON, Defendant and Appellee.
    No. 12198.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1978.
    Rehearing Denied Nov. 20, 1978.
    Writ Refused Jan. 19, 1979.

      Michael W. Lee, Livingston, for plaintiff and appellant.
    Joel B. Dickinson & Associates, Baton Rouge, for defendant and appellee.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   SARTAIN, Judge.

Donald R. Milton petitioned the court for a partition by licitation of certain immovable property alleged to have formed a part of the community of acquets and gains which previously had existed between him and his former wife, Mary McGowan Milton. Mrs. Milton answered denying that one of the tracts of land listed in the petition was community property and claimed that the tract in question was part of her separate estate, having been donated to her by her father. Mr. Milton now appeals from a judgment of the district court which ordered a partition by licitation but excluded therefrom the disputed tract as the separate property of Mrs. Milton. We affirm.

The parties were judicially separated on January 18, 1974, and divorced on April 18, 1977.

On July 19, 1966, during the existence of the marriage between the parties, Julius C. McGowan, defendant’s father who is now deceased, executed before a notary and two witnesses an act denominated a cash sale. By this act, he purported to convey to Donald R. Milton and Mary M. Milton the disputed tract of and consisting of approximately two acres. The act recited a cash consideration of $800.00.

Mrs. Milton, over the timely objection of Mr. Milton, used interrogatories on facts and articles in open court and parol evidence to prove that the cash sale .by her father was actually a donation in disguise in that the recited consideration was never paid and was never intended to be paid as the motive for the conveyance was to give her an advance on her inheritance. When called on cross examination for interrogation on facts and articles in open court, Mr. Milton admitted that no consideration had been paid.

The testimony of Mrs. Milton and various members of her family revealed that Mr. McGowan owned thirty-two acres of land which he wanted to divide equally upon his death among his four daughters. While he was still alive, the daughters drew lots to determine which of the four tracts each would receive. The two acre tract now in dispute is part of the eight acre tract drawn by Mrs. Milton. She testified that her husband’s name was added to the act of transfer at her request, that her husband was not present at the notary’s office, and that she signed his name to the document. Mr. Milton acknowledged that he had not signed the instrument.

We are not favored with either oral or written reasons for judgment. However, Mr. Milton contends on appeal that the judgment of the district court should be reversed because the trial judge erred (1) in failing to find that Mrs. Milton was es-topped from seeking to reform judicially the act of cash sale; (2) in its determination that the acquisition of immovable property in the names of the husband and wife did not create a conclusive presumption of community ownership; (3) in admitting parol evidence and use of interrogatories on facts and articles to contradict the clear terms of an authentic act of sale and to substitute in its place a contract of a different nature, a donation to his wife; and, alternatively, (4) that if parol evidence was admissible, such evidence failed to establish by clear and convincing proof that the property was acquired for Mrs. Milton’s separate estate, and (5) that if such evidence was sufficient to prove an act of donation, then the trial judge erred in failing to determine that it was a donation to and accepted by the community of acquets and gains existing between himself and his wife.

The plea of estoppel is based on the alleged judicial confession made by Mis. Milton in her petition for a judicial separation filed on December 21, 1973, wherein she averred that the community included “some land” acquired during the marriage. Her petition contained no further description of the community immovable property.

We find this statement entirely too vague to be the basis of a judicial confession as to the common nature of the particular tract now in dispute. C.C. art. 2291. As was brought out in the testimony, there were other tracts albeit of small dimensions, acquired during the marriage that were unquestionably community property.

Plaintiff next argues that the acquisition during the marriage of immovable property in the name of both spouses without the inclusion of the “double declaration” creates an irrebuttable presumption of community property such as to prohibit defendant from trying to prove its separate nature. The basis for plaintiff’s position is C.C. art. 2404 and the jurisprudential rule that precludes the husband from proving the separate nature of immovable property acquired in his name during the marriage unless he includes in the act of sale a declaration that he is acquiring the property with his separate funds for his separate estate. Lewis v. Clay, 221 La. 663, 60 So.2d 78 (1952); Perry v. Perry, 282 So.2d 752 (La.App. 1st Cir. 1973). This declaration is not required in a sale in the name of the wife. Southwest Natural Production Co. v. Anderson, 239 La. 490, 118 So.2d 897 (1960).

While it is true that the husband is bound by the presumption of community in such a conveyance, it does not follow, as Mr. Milton argues, that he can use the double declaration rule to block his wife’s attempt to prove the separate ownership of the property. One of the purposes of the doctrine is to protect the wife who has a relatively powerless position in the administration of the community. To allow the husband to refashion the wife’s shield into a sword to be used against her would be contrary to the rationale of the jurisprudential rule. Primeaux v. Libersat, 307 So.2d 740 (La.App. 3d Cir. 1975), reversed on other grounds at 322 So.2d 147 (La.1975).

We turn now to the defendant’s use of interrogatories on facts and articles and parol evidence to prove that the act of sale was a donation in disguise and then only as an advance on her inheritance.

In opposition to the use of parol evidence, plaintiff cites numerous cases which disallow such evidence where the object was not only to vary the terms of an authentic act but also to substitute in its stead a contract of a different nature. An examination of the cited cases will disclose that while the rule of law adhered to in each prohibited the use of parol evidence, the supporting facts are inapposite to those in the case at bar. Particularly, in the vast majority of the cited cases, the attempted use of parol evidence was not preceded by admissions to interrogatories on facts and articles.

The use of interrogatories on facts and articles is a jurisprudential extension of the general rule that proof of fraud or error, or a counter letter (C.C. art. 2239) may be used by a party to assail the verity of an authentic act. Jones v. Jones, 214 La. 50, 36 So.2d 635 (1948). This procedure affords one the right and opportunity of “probing the conscience” of his adversary. However, when such a procedure is employed, the plaintiff becomes bound by defendant’s unfavorable answers and parol evidence can not be used to further contest the authentic act. Barnett v. Barnett, 339 So.2d 495 (La.App. 2d Cir. 1976), writ refused 341 So.2d 1127 (1977). The fact, as in the instant case, that the interrogatories on facts and articles were propounded and answered in open court does not preclude the use of this procedure. Sexton v. Waggoner, 66 So.2d 634 (La.App. 2d Cir. 1953).

Mr. Milton frankly and candidly admitted in response to the. interrogatories that no consideration was paid and that the four daughters of Mr. McGowan had drawn lots for the four tracts. These admissions opened the door to further evidence, albeit parol, in support of the contention that the instrument itself was a donation in disguise and an advance to Mrs. Milton on her inheritance. Accordingly, we hold that the parol evidence of Mrs. Milton and the testimony of her family concerning the nature of the transaction is admissible as an exception to the parol evidence rule noted above.

The fact that the purported act of sale was a donation in disguise was established beyond any peradventure of a doubt. This leaves us then to a consideration of what legal effect is to be given such an instrument. The remaining assignments of error asserted by plaintiff are basically one and the same, that is, whether the donation was made to Mrs. Milton alone.

We are not unmindful of the sanctity that should be accorded an authentic act, even a donation originally appearing in the form of a cash sale. But, accepting the act as a donation, we can see no logical reason why the act can not be assailed in the same manner as any other authentic act, that is first by the use of interrogatories on facts and articles and, if affirmative, then by corroborative parol evidence.

We note that Mr. Milton, whom the record reflects to be a very honest and forthright person, does not in the slightest degree even hint that Mr. McGowan intended to donate the contested property to him (Milton) and his wife. Rather, Mr. Milton is saying, “if the law says it is half mine, I want it.” We do not fault him for this position. But, it is based strictly on technical legalistic presumptions and evidence that he claims to be inadmissible. Not at one time during the course of the hearing did Mr. Milton say, suggest or infer that the donor intended to give the property to him and his wife. Rather, he continues to assert that defendant seeks to modify a clear and unambiguous instrument by purely self-serving declarations. While self-serving declarations are in themselves weak proof of a claim, it is a matter of weight to be accorded such testimony once its admissibility is sanctioned. Yet, this self-serving testimony stands alone not only unrebutted but also corroborated.

The record reveals that three days prior to his purported sale of the contested tract to Mr. and Mrs. Milton, Mr. McGowan transferred another two acre tract to another daughter and her husband, Mr. and Mrs. Marsh, under the same circumstances, i. e., a donation in disguise. This latter tract was also a portion of a larger two acre tract that was previously drawn by Mrs. Marsh. After Mr. McGowan’s death, Mrs. Milton and Mrs. Marsh received by inheritance the balance of six acres each whereas the remaining two daughters of Mr. McGowan received their respective eight acre tracts. All of this occurred prior to the instant controversy. Considering all of the above, we find that there is clear, convincing and ample proof to sustain Mrs. Milton’s contention as to the separate nature of the following described property, to-wit:

A certain tract or parcel of ground, together with all the buildings and improvements thereon, situated in the Parish of Livingston, State of Louisiana, in the southwest quarter (SW Vi) of the southeast quarter (SE Vi) of Section Thirty-six (36), Township Six (6) South, Range Three (3) East, containing 2.15 acres, more or less, and being more particularly described as follows, to-wit: From the Southwest corner of said Section 36, measure North Eighteen (18) feet, North Two Thousand Eight Hundred Seven (2807') feet and East Seventy-Five (75') feet to point of beginning; thence North 0 deg. 18 min. East One Hundred Sixty (160') feet and comer; thence North 70 deg. 12 min. East Three Hundred Twelve (312') feet and comer on the Western margin of Louisiana Highway No. 447; thence along same West Six Hundred Five and 5/10 (605.5') feet back to the point of beginning; LESS AND EXCEPTING THEREFROM that portion of the above described property sold by Julius C. McGowan to the Louisiana Department of Highways.

Accordingly, for the above reasons, the judgment of the district court is affirmed. All costs relating to this appeal are to be borne by plaintiff-appellant. All other costs relating to the partition by licitation are to be paid out of the funds derived from the sale of the property to be partitioned.

AFFIRMED.

      . The McGown to Marsh sale and testimony relative to the same were placed in the record under a proffer of evidence. C.C.P. art. 1636. The objection raised to this evidence pertains more to the weight to be accorded it than it does to its admissibility. The objected to evidence should have been ruled admissible as corroborative of the previously admitted parol evidence concerning the McGowan to Milton sale, the division of the thirty-two acres, and the subsequent acquisition of the four tracts of land by the daughters of Mr. McGowan.


author: ELLIS, Judge:

text:
    Rene MARTIN v. Ambroise H. LANDRY, Recorder of Mortgages and Clerk of Court. Alonzo KLING v. Ambroise H. LANDRY, Recorder of Mortgages and Clerk of Court.
    Nos. 12199, 12200.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1978.
    Rehearings Denied Nov. 20, 1978.
    Writ Refused Jan. 12, 1979.
    David L. Levy, Metairie, Larry P. Bou-dreaux, Thibodaux, for plaintiff and appellant.
    Ambroise H. Landry, defendant, in pro. per.
    Charles B. Johnson, New Orleans, and John T. Bourgeois, Thibodaux, for interve-nor Nathaniel B. Rosenberg.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge:

By these two consolidated suits, plaintiffs Rene Martin and Alonzo J. Kling seek a writ of mandamus to compel Ambroise Landry, Clerk of Court for Lafourche Parish, to cancel from the mortgage records of his office two notices of lis pendens bearing against certain property belonging to 90 West Corporation. From judgments dismissing their suits, plaintiffs have appealed.

On January 15, 1973, N. B. Rosenberg wrote the following letter to the plaintiffs:

“In view of the favors previously done for you, it is now understood that, other than your operations connected with the Golden Star Plantation, it is agreed that I am to participate in 10 percent of your personal gross profits before taxes on all of your real estate and contracting operations.
“It is perfectly clear that I would get 10 percent of your part of the gross profits even if you were to do business with two or three other parties.
“I would be pleased to have you acknowledge this contract by signing at the bottom and returning a copy to me.”

Both Mr. Martin and Mr. Kling signed the letter at the bottom as requested.

On January 7, 1977, 90 West Corporation sold to plaintiffs undivided interests in the oil, gas and other minerals under certain property owned by it in Lafourche Parish.

On March 8, 1977, Nathaniel B. Rosenberg filed suits against Mr. Martin and Mr. Kling, alleging their indebtedness to him under the above letter contract. The suit alleges that Messrs. Martin and Kling had received various sums of money from operations covered by the contract, and also alleged the receipt of the foregoing mineral interests. The notice of lis pendens, bearing against the property in which plaintiffs own mineral interests, was filed in connection with the said suits.

These two suits were filed, alleging that Mr. Rosenberg did not have an interest in the said properties legally entitling him to file a notice of lis pendens. Mr. Rosenberg intervened in both suits to protect his interest.

Article 3751 of the Code of Civil Procedure states:

“The pendency of an action or proceeding in any court, state or federal, in this state affecting the title to, or asserting a mortgage or privilege on, immovable property does not constitute notice to a third person not a party thereto unless a notice of the pendency of the action or proceeding is made, and filed or recorded, as required by Article 3752.”

We fail to see in what manner the letter contract between Mr. Rosenberg and plaintiffs affects the title to the property in question, or asserts a mortgage or privilege thereon.

Profit means “the excess of returns over expenditure in a transaction or series of transactions.” Webster’s Third New International Dictionary, G. & C. Merriam Company, Springfield, Massachusetts, 1966. See also Muhoberac v. Saloon, Inc., 210 So.2d 572, 575 (La.App. 4th Cir. 1968).

Mr. Rosenberg may be entitled to an accounting from plaintiffs, and the accounting may include the value of the mineral interests purchased from the 90 West Corporation, but there is nothing in the record from which it can be reasonably concluded that Mr. Rosenberg has met any of the requirements of Article 3751, supra. Mr. Rosenberg argues that the existence of the letter contract and the acquisition of the mineral interests by plaintiffs during its existence, justifies a reasonable conclusion that the suits filed by him affect the title to the mineral interests. No legal basis is advanced for this novel proposition, and our research has failed to reveal any.

The judgments appealed from are therefore reversed and set aside, and there will be judgment herein in favor of plaintiffs and against defendant, ordering that the notices of lis pendens filed in the case of Rosenberg v. Kling, No. 23,010 of the docket of the 23rd Judicial District Court for the Parish of Ascension, bearing entry number 442012; and in the case of Rosenberg v. Martin, No. 12491 of the docket of the 23rd Judicial District Court for the Parish of St. James, bearing entry number 442,013, be cancelled and erased from the records of the Parish of Lafourche, at the expense of Nathaniel B. Rosenberg. All costs of these proceedings shall be paid by Intervenor.

REVERSED AND RENDERED.


text:
    W. E. DICKINSON and Lorene Dickinson v. MARYLAND CASUALTY COMPANY.
    No. 12207.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1978.
    Rehearing Denied Nov. 20, 1978.
    Writ Refused Jan. 12, 1979.

      Joel B. Dickinson, Baton Rouge, of counsel for plaintiffs-appellants W. E. Dickinson and Lorene Dickinson.
    John S. White, Jr., Baton Rouge, of counsel for defendant-appellee Maryland Casualty Co.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge:

This suit was filed by W. E. Dickinson and Lorene M. Dickinson against Maryland Casualty Company, for damages arising out of an accident between an automobile driven by Mrs. Dickinson and an automobile driven by Jerome R. Ducote, in which Mrs. Dickinson suffered physical injuries.

Mr. Ducote, a resident of Texas, was insured by Maryland American General Insurance Company, a member of the American General Companies, which is a Texas corporation, not doing business in Louisiana. Maryland Casualty Company is another member of the American General Companies, which does business in Louisiana, and which maintains an office in Baton Rouge.

The accident happened on July 29, 1975. At the scene, Mr. Ducote gave Mrs. Dickinson a slip of paper on which he had written his name and address and the name of his insurer. On July 31, 1975, Grover H. Stephens, claims manager of the Baton Rouge office, wrote to Mr. Dickinson relative to the accident. The letterhead used had “Maryland Casualty Company” in large type across the top of the page, and immediately beneath, in small type, a list of the American General Companies. All other correspondence between Mr. Stephens and the plaintiffs, or their attorney, was on stationery headed “The Maryland” in large type, with no other corporate designation. Across the bottom of the page in small type there is “Maryland Casualty Company, Baltimore — Member of the American General Group.” All letters on this letterhead, except the first, were written after suit was filed on February 27, 1976.

A settlement for the property damages suffered by plaintiffs was reached, and, on August 5, 1975, a draft was issued for $175.17 to Mr. Dickinson. The drawer of the draft was identified by the words “The Maryland” in large type, followed by “Maryland Casualty Companies, Baltimore, members of the American General Group” in small type.

On February 27, 1976, this suit was filed against Maryland Casualty Company. Settlement negotiations continued for some time thereafter with Mr. Stephens, who at no time advised plaintiffs or their attorney that they had sued the wrong company. The matter was finally turned over to its attorney by the defendant, and an answer in the form of a general denial was filed by Maryland Casualty Company on June 7, 1976.

On August 19, 1976, Maryland Casualty Company moved for summary judgment in its favor, based on the fact that it did not insure Jerome R. Ducote. It was at this time that plaintiffs discovered for the first time that they had not sued the insurer of Mr. Ducote. Also at that time Mrs. Dickinson remembered the slip of paper given her by Mr. Ducote, and gave it to her attorney. On September 17, 1976, plaintiffs filed a supplemental petition, making Maryland American General Insurance Company a defendant, and alleging that Mr. Stephens had led them to believe that Maryland Casualty was Mr. Ducote’s insurer.

Thereafter, Maryland American filed a peremptory exception of prescription, which was overruled. Maryland Casualty’s motion for summary judgment was denied. Maryland American then filed an answer which put at issue, inter alia, the question of prescription, and the matter was tried by a jury.

At the trial, the defendants stipulated the fault of Mr. Ducote in causing the accident, so that the only questions before the jury were the liability of Maryland American, and quantum. The jury found that the action against Maryland American was prescribed by the liberative prescription of one year, and rendered a general verdict for the defendant. Judgment dismissing plaintiffs’ suit was signed, and plaintiffs have appealed.

The action for an offense prescribes in one year. Article 3536, Civil Code. This prescription may be interrupted as to a debtor by citation to appear before a court of justice; if the debtor acknowledges the right of the creditor; and by citation on a debtor in solido. Articles 3518, 3520, 3552, Civil Code. None of these factors are present in this case.

However, a major exception to the foregoing principles was made in Jackson v. American Employers’ Ins. Co., 202 La. 23, 11 So.2d 225 (1942), which established the following rule:

“Where three insurance companies were doing business as a group under the title “The Employers’ Group of Boston, Mass.”, letterheads of which bore the names of all three companies, having the same office for their claim department, the same telephone, same manager and same employees in that department, the filing of suit against one of the companies under mistaken belief it was insurer under policy covering automobile causing injury, after plaintiff’s attorney had been led to believe by letter from manager of claim department that the company sued was the company which had issued the policy, was sufficient to interrupt the one-year period of prescription against the company which had issued the policy. Act No. 39 of 1932.”

In the later case of Martin v. Mud Supply Company, 239 La. 616, 119 So.2d 484 (1959), the Supreme Court said:

“Our research has not revealed any jurisprudence which holds that knowledge alone of the filing of a suit against a closely associated person or company constitutes an interruption of prescription as to one not cited within a prescriptive period.
‘Citation to a defendant, which is the judicial notice to him to appear and answer the demand that is being made against him, is the only form of notice which will interrupt prescription. Civil Code, Art. 3518. Actual notice will not suffice. Agnelly v. Goodheit, 6 La.App. 121.” Achord v. Holmes, La.App., 34 So.2d 807, 808.
‘One of the well known rules relative to prescription is, that it becomes interrupted, when the party in favor of whom the time necessary to acquire it is running, has been cited to appear before a court of justice, on account of the right or claim to which the prescription would apply. This is called a ‘legal interruption,’ and it matters not whether the suit has been brought before a court of competent jurisdiction, or not. Civil Code, arts. 3482, 3484, and 3516. It is, therefore, necessary that the party should be cited; and it cannot be controverted, that any other means of knowledge of the proceedings instituted against him, brought home to the party against whom the prescription is sought to be legally interrupted, would not be sufficient to operate as a legal interruption in the true sense of the law. * * * ’ Hill v. Barlow, 6 Rob. 142.”

This holding would seem to be contrary to that of the Jackson case, supra. However, in the Martin case, the court distinguished the Jackson case, and stated that the syllabus above quoted correctly sets forth the rule of the case. The facts of the Jackson case are indistinguishable from those of the instant case, even to the point that the plaintiff’s attorney was misled as to the name of the insurer by the letterhead of the claims adjuster.

We therefore hold that, under the rule of the Jackson case, prescription was interrupted as to Maryland American General Insurance Company by the filing of suit against Maryland Casualty Company, and service of citation upon that legal entity. The suit was therefore timely as to Maryland American, and the jury was legally in error in finding otherwise.

Mrs. Dickinson was injured on July 29, 1975, and saw Dr. F. C. McMains, an orthopedic surgeon, on August 5, 1975. After the accident, Mrs. Dickinson suffered dizziness and neck pains, but by the time she saw Dr. McMains, her primary complaint was of pain in the lumbar spine. X rays showed a compression fracture of the second lumbar vertebra. Dr. McMains prescribed a dorsal lumbar support.

Mrs. Dickinson continued to wear the support, and to see Dr. McMains, until October 26, 1976. During most of this period, her complaint was of pain in her low back radiating into the leg. Her activities were restricted to the extent that she could not ride in a car for any distance, and was unable to carry out such routine chores as mopping and sweeping.

Dr. McMains diagnosed her injuries as a fracture of the second lumbar vertebra and aggravation of degenerative disc disease at the lumbosacral joint. He referred Mrs. Dickinson to Dr. James A. Poche, a neurosurgeon.

Dr. Poche tried conservative treatment for a while, then hospitalized Mrs. Dickinson for a myelogram, which was within normal limits. When plaintiff failed to improve further, he performed a lumbar lami-nectomy, in April, 1977, removing the disc at the lumbosacral joint.

Mrs. Dickinson’s condition did not improve after the operation, and, as of June 8, 1977, Dr. Poche considered her prognosis guarded. At the time of the trial, in January, 1978, Mrs. Dickinson’s condition had not improved. Her husband had died after the accident, and she testified that she needed to go to work, but was unable to do so because of the condition of her back. Prior to her marriage to Mr. Dickinson in 1971, plaintiff had been employed as a dental assistant, but had stopped working when she married. We are not enlightened as to Mrs. Dickinson’s age, although the record does reveal her to have been the grandmother of a five year old child at the time of the accident.

Considering the foregoing we are of the opinion that $50,000.00 should fairly compensate plaintiff for her pain and suffering and disability. Special damages totalling $3640.15 were proven.

The judgment appealed from is reversed, and there will be judgment herein in favor of plaintiff, Mrs. Lorene Dickinson, and against defendant Maryland American General Insurance Company for $53,640.15, together with legal interest thereon from date of judicial demand until paid, and for all costs of these proceedings.

REVERSED AND RENDERED.