author: BLANCHE, Judge.

text:
    Sally Stafford NELSON v. John Prewitt NELSON, Jr.
    Nos. 9707 and 9836.
    Court of Appeal of Louisiana, First Circuit.
    May 20, 1975.
    Ashton L. Stewart, Baton Rouge, for appellant.
    R. Boatner Howell Jr., Baton Rouge, for appellee.
    Before LANDRY, BLANCHE and NEHRBASS, JJ.
   ON APPLICATION FOR REHEARING

BLANCHE, Judge.

Application for rehearing was granted for the purpose of considering the correctness of our judgment insofar as we held that the defendant, John Prewitt Nelson, Jr., was entitled to compensation against the alimony owed by him to the extent of one-half of the community cash in the possession and control of the plaintiff, Sally Stafford Nelson, at or about the time of their separation. In connection with our finding, we reasoned that the said funds taken by the plaintiff were presumed to be community funds, and having thus determined their character as being community property, the defendant had a right to compensation as to one-half of such funds and no more.

The effect of such a judgment was to effect a partition of $16,699.06 of community funds, which is a subject matter over which the Family Court of the Parish of East Baton Rouge has no jurisdiction. Article 7, Section S3 of the Louisiana Constitution, which establishes the jurisdiction-of the Family Court, provides that the Civil District Court for the Parish .of East Baton Rouge shall retain jurisdiction over all proceedings involving the liquidation and partition of the community after a judgment of diyorce or separation had been rendered by the Family Court. Accordingly, we had no authority to render a judgment in a Family Court proceeding which declared the, funds community and then proceed to give plaintiff ownership of one-half thereof and the defendant ownership of the other half.

For the purposes of determining the amount of compensation allowed to the defendant, it was only necessary that we determine whether or not such funds were the separate funds of plaintiff, Sally Stafford Nelson. On a finding that such funds were the separate property of plaintiff, then the defendant would not be entitled to any credit for such funds against the past-due alimony and child support owed by him. It matters not whether the funds are community funds or the separate funds of the defendant insofar as it affects a determination of the amount of compensation he is to be given against his past-due alimony and child support obligation. That money, since it was not the wife’s separate property, whatever its character, would have been available to defendant, John Prewitt Nelson, Jr., to discharge the obligation placed upon him by virtue of the provisions of Civil Code Article 148 to support his wife as long as the marriage remained undissolved and to support his child pursuant to Civil Code Article 227; except for the fact that plaintiff, Sally Stafford Nelson, took the money, concealed it from the defendant, and used it for her own purposes. No one would doubt that defendant would have been due a credit had he borrowed $16,699.06 and paid it to the plaintiff. Further, suppose he had beaten Sally Stafford Nelson to the sources from which she obtained the money and had paid it to her. Could there be any doubt but that these funds were due as a credit against the amounts which he was required to pay his wife pursuant to the judgments ordering the alimony pendente lite and child support? We think not, and observe that our former judgment would encourage wives entertaining the thought of separating from their husbands to take all they could find before leaving, rather than awaiting a partition of the effects of the marriage in an appropriate proceeding. Only in a partition proceeding may it be determined whether alimony pendente lite is a separate, personal obligation of the husband which he must discharge without hope of reimbursement, or whether it is an advance by the husband to the wife which he may recover from her if the separation or divorce action results in a judgment of separation or divorce. See 23 La.L.Rev. 41, a note by Robert A. Pascal, concerning the amendment of Article 155 of the Louisiana Civil Code. Likewise, in a partition suit, the husband will be called upon to establish the nature of such funds as community, his separate, or otherwise, and to account for them accordingly to both the community and his former wife in community.

The foregoing considered, we find that in Appeal No. 9820 (La.App., 318 So.2d 71), the defendant is entitled to compensation in the amount of $15,699.06 against the $10,932.43 judgment making alimony pendente lite and child support executory. This allows the additional sum of $4,766.63 to be applied in compensation to the $17,532.43 judgment making alimony pen-dente lite and child support executory considered in Appeal No. 9898 (La.App. 318 So.2d 70). In Appeal No. 9898, defendant is also entitled to compensation in the amount of $1,000.00, which he proved to be in plaintiff’s possession on the trial of the second rule resulting in judgment on February 5,1974.

In this connection, we note that the first judgment (Appeal No. 9820) ordered him to pay the sum of $10,932.43 and the second judgment (Appeal No. 9898) ordered him to pay the sum of $17,532.43. Referring to the minute entry in the record, it is readily determined that the amount of the second judgment included the amount which the defendant had been previously condemned to pay in the first judgment.

Therefore, in Appeal No. 9820, we affirm the judgment rendered on November 27, 1973, and amend it to reflect a credit of $15,699.06 as set forth hereinabove. In Appeal No. 9898 we also affirm the judgment of February 5, 1974, and amend the judgment to reflect compensations in the amounts of $4,766.63 and $1,000.00 and additionally amend said judgment by ordering another credit to said second judgment in the amount of the first judgment, $10,932.-43. Concerning the last amendment of said judgment, such relief was neither sought nor prayed for, but it is ordered by us under the authority of LSA-C.C.P. Art. 2164 which gives this Court the authority to “render any judgment which is just, legal, and proper upon the record on appeal.”

Judgment is therefore rendered in No. 9898 in favor of Sally Stafford Nelson and against John Prewitt Nelson, Jr. for the amount of $833.37, together with interest thereon from the date of judicial- demand until paid.

Plamtiff-appellee to pay all costs m connection with Nos. 9820 and 9898.

Judgment in Nos. 9707 and 9836 in accordance with original decree of this Court.

Amended, and as amended, affirmed.

      . Subject matter jurisdiction of the Family Court for the Parish of East Baton Rouge has not been changed by the new Constitution which became effective January 1, 1975.


source: Caselaw Access Project

license: Public Domain

text:
    Sally Stafford NELSON v. John Prewitt NELSON, Jr.
    No. 9898.
    Court of Appeal of Louisiana, First Circuit.
    May 20, 1975.
    Ashton L. Stewart, Baton Rouge, for appellant.
    R. Boatner Howell, Jr., Baton Rouge, for appellee.
    Before LANDRY, BLANCHE and NEHRBASS, JJ.
   ON REHEARING.

BLANCHE, Judge.

For the reasons set forth in Appeal No. 9707 (La.App., 318 So.2d 68) entitled “Nelson v. Nelson,” the judgment appealed from in the instant case dated February 5, 1974, is amended to reflect credits of $4,766.63 and $1,000.00 against the amount of the judgment rendered in Appeal No. 9707. The judgment in the instant case (La.App., 311 So.2d 277) is further amended by crediting to it the amount of the judgment rendered this date in Appeal No. 9820 (La.App., 318 So.2d 71) entitled “Nelson v. Nelson,” namely, $10,932.43.

It is ordered, adjudged and decreed that there be judgment herein in favor of Sally Stafford Nelson and against John Prewitt Nelson, Jr., in the amount of $833.37, together with legal interest from date of judicial demand until paid. In all other respects, said judgment appealed from is hereby affirmed. Plaintiff-appellee is to pay all costs of this appeal.

Amended and as amended, affirmed and rendered.

Writ refused, La.Sup., 315 So.2d 39.


text:
    Sally Stafford NELSON v. John Prewitt NELSON, Jr.
    No. 9820.
    Court of Appeal of Louisiana, First Circuit.
    May 20, 1975.
    Ashton L. Stewart, Baton Rouge, for appellant.
    R. Boatner Howell, Jr., Baton Rouge, for appellee.
    Before LANDRY, BLANCHE and NEHRBASS, JJ.
   ON REHEARING

BLANCHE, Judge.

For the reasons set forth in Appeal No. 9707 (La.App., 318 So.2d 68) entitled “Nelson v. Nelson,” the judgment appealed from in the instant case dated November 27, 1973, is amended to reflect a credit of $15,699.06 against the amount of the judgment rendered in Appeal No. 9707. In all other respects, said judgment is hereby affirmed. Plaintiff-appellee is to pay all costs of this appeal.

Amended and as amended, affirmed.

Writ refused, La.Sup., 315 So.2d 39.


author: BOUTALL, Judge.

text:
    KALVAR CORPORATION v. GENERAL MICROGRAPHICS.
    No. 6936.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 5, 1975.
    Rehearing Denied Sept. 9, 1975.
    Writ Refused Nov. 14, 1975.

      Chaffe, McCall, Phillips, Toler & Sarpy, Harry McCall, Jr., James P. Farwell, New Orleans, for Kalvar Corp.
    Monroe & Lemann, Bat. P. Sullivan, Jr., Richard W. Bussoff, New Orleans, for General Micrographics.
    Before SAMUEL, BOUTALL and STOULIG, JJ.
   BOUTALL, Judge.

This is an appeal from a judgment sustaining an exception to the jurisdiction ra-tione personae. Jurisdiction was sought under Louisiana’s Long Arm Statute.

The facts are as follows: Plaintiff, Kal-var Corporation is a Louisiana domiciliary with its principal place of business in Orleans Parish. Defendant, General Micro-graphics, is a Georgia corporation with its principal place of business in Atlanta. Defendant is not qualified to do business in Louisiana, has no agents for service of process in this state, has no employees or agents in the state and does not sell or solicit business in Louisiana.

Sometime prior to July, 1973, Kalvar and General Micrographics entered into long distance communications concerning the sale of film. It appears that General Mi-crographics was bidding on a U. S. Government contract which included film such as Kalvar manufactured. On July 9, 1973, Mr. Lowery, president of General Micrographics, was invited to New Orleans by Kalvar for the purpose of inspecting the manufacturing facilities and discussing the contract terms. Mr. Lowery, his wife and a General Micrographics technician stayed two days in Louisiana and then returned to Georgia. During their stay some of the contract terms and price were discussed, but no formal agreement was confected. During August of 1973 a Kalvar representative traveled to Atlanta where the contract for the sale of the film was negotiated further, a letter was written setting out the contingency of the sale, based on General Micrographics getting the government bid, and the formal contract was signed.

Kalvar now wishes to subject General Micrographics to the jurisdiction of Louisiana courts by means of our Long Arm Statute, LSA R.S. 13:3201, specifically subdivision (a).

“§ 3201. Personal jurisdiction over nonresidents
“A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s
“(a) transacting any business in this state; * * *

Defendant resists the jurisdiction of our courts on the grounds that it would be a denial of due process as set forth in International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) and McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957).

The cases of International Shoe and McGee set out the requirement of minimum contacts with the forum state so that the principles of fair play and substantial justice embodied in the due process article of the U. S. Constitution will be met. We note in our own jurisprudence that the requirement of minimum contact is to be applied flexibly utilizing the particular facts of each case. Drilling Eng., Inc. v. Independent Indon. Amer. Pet. Co., 283 So.2d 687 (La.1973). We further note that the requirement of minimum contacts is differently applied by our jurisprudence depending upon whether the nonresident defendant is a seller or a buyer. Fisher v. Albany Machine and Supply Company, 261 La. 747, 260 So.2d 691 (1972) and Riverland Hardwood Co. v. Craftsman Hardwood Lumber Co., 259 La. 635, 251 So.2d 45 (1971).

Kalvar hinges its argument in favor of jurisdiction principally on two cases, Drilling Eng., Inc. v. Independent Indon. Amer. Pet. Co., supra, and Dodson v. Fontenot, 285 So.2d 328 (La.App. 3rd Cir. 1973). Defendant relies upon the case of Riverland Hardwood Co. v. Craftsman Hardwood Lumber Co., supra. We find defendant’s argument to be persuasive.

We find plaintiff’s cited cases distinguishable on their facts. In Drilling the contract was not a contract for the sale of goods, but rather a contract for services. Also the contract in Drilling was partially performed and much of this performance occurred in Louisiana, thus establishing a continual business activity in the state.

In Dodson the court was construing the Texas Long Arm Statute which is admittedly similar to our own. However, again the facts of that case show much greater contact with the State of Texas than General Micrographics had with Louisiana. In Dodson the nonresident buyer traveled to Texas specifically to purchase, which he did. The sal© was completed in Texas and payment madp there. Other acts were also done in Texas, such as arranging delivery to Louisiana of the purchased horses and arranging registration and breeding certificates to be delivered to Louisiana.

In this case we are also dealing with a nonresident purchaser of goods, as was the case in Riverland. In that case the defendant sent a mail order into Louisiana and received shipment of the goods in the foreign state. This act was the only contact with the state, absent some evidence of past dealings with other Louisiana lumber dealers. In the case at bar all relevant parts of the transaction occurred either at long distance (the mail order situation) or in Georgia. The only contact with this state was a brief visit here on invitation of plaintiff to inspect plaintiff’s physical plant and since Mr. Lowery was here contract terms were discussed, but they were not decided upon in Louisiana.

The facts in this case lead us to the conclusion that General Micrographics, a nonresident purchaser, does not have sufficient minimum contacts with Louisiana to allow us to subject it to our jurisdiction, particularly since the only visit to Louisiana was at the invitation of the seller.

While we find this case is controlled by the principles of law set down in Riverland, we must also note that this case has recently been criticized by various law review commentators. See 34 La.L.Rev. 691 (1974); 18 Loy.L.Rev. 452 (1972); 45 Tul.L.Rev. 1081 (1971). The thrust of their argument against the holding in Riv-erland is that it is illogical to have a different standard of minimum contacts for nonresident sellers and nonresident buyers for profit. We can readily see that the courts wish to protect the nonresident buyer who buys for his own consumption or use. However, it is difficult to see the need of extending that same protection to the nonresident business purchaser engaged in interstate commerce. It seems to us that the same rule should apply to such purchasers as we apply to business sellers, and the extra protection discussed in Fisher, supra 260 So.2d at page 695, should be granted only to nonresident buyers that are also consumers. However, Riverland admits of no distinction between nonresident buyers and therefore we must follow it as the last expression of the Supreme Court in this area.

For the above reasons we affirm the judgment of the trial court. Plaintiff-Appellant is to pay all costs.

Affirmed.


author: SCHOTT, Judge. PER CURIAM.

text:
    Wendelaus KELLY, Jr., Individually and as Administrator of the Estate of his minor son, Wendelaus Kelly, III v. Louis B. MESSINA, Jr., et al.
    No. 6889.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 8, 1975.
    Rehearing Denied Sept. 9, 1975.

      Lambert J. Hassinger, New Orleans, for plaintif f-appellant.
    Porteous, Toledano, Hainkel & Johnson, Christopher E. Lawler and James L. Donovan, New Orleans, for defendants-appel-lees.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a dismissal of his suit for damages arising out of an accident which occurred when his almost eleven year old son on a bicycle was struck by an automobile driven by defendant Louis B. Messina, Jr., owned by his father, also a defendant, and insured for liability by defendant Allstate Insurance Company. At the time of the accident Messina, Jr., was 17 years of age and resided with his father.

Generally, the facts are not in dispute. Kelly had been riding his bike accompanied by three other youngsters on Wisner Boulevard in a northerly direction, in the City of New Orleans. They had traversed an overpass over Florida Avenue, proceeding in single file in the left-hand lane until they came to a point where Wisner had leveled off on the north side of the overpass. Wisner Boulevard consisted of two lanes of traffic for each direction separated by a neutral ground area. The linear distance between the crest of the overpass and the point at which the overpass came to grade on the north side was 870 feet.

After the boys had made their descent in single file with Kelly fourth in line at least two of the boys got up onto the neutral ground with the third intending to follow them. At this point Kelly turned his bicycle into the right lane where he was struck by the Messina automobile. Messina applied his brakes but struck the rear of Kelly’s bike, whereupon Kelly was thrown into the air on top of the hood or roof of Mes-sina’s automobile.

The principal factual issues for a resolution at the trial were the speed at which Messina had descended from the overpass and was traveling when he realized Kelly was entering his lane of traffic and Messi-na’s distance from Kelly when he changed lanes.

The trial judge, in reasons for judgment, after objectively summarizing the testimony of all of the witnesses concluded “that the plaintiff was contributorily negligent in the operation of his bicycle in that he failed to maintain a proper lookout, and he improperly changed lanes at such a time when it was not reasonable to do so, and, therefore it was his negligence which caused the accident, . . . . ”

Plaintiff’s case on speed rests on the testimony of an accident reconstruction expert, plaintiff himself and an investigating officer. The expert testified that the production of skid marks of 100 to 110 feet would indicate that defendant had been traveling in excess of 49 miles per hour, and that an automobile traveling at 35 miles per hour would have left 54 feet of skid marks. Plaintiff, the father of the injured boy and a policeman, testified that he came to the scene shortly after the accident and saw skid marks which he visually estimated to be 100 feet long. An investigating officer came to the scene sometime after the accident at the request of a first officer who was sent to make the official investigation because the first officer did not have a measuring tape. This, officer who made the measurements passed them on to the first officer and testified that he recalled that the right skid mark was 107 feet while the left was 120 feet. He made no notes and despite the facts that this measurement was made three years prior to the trial, and that he had made numerous other measurements in the meantime which he could not recall, he was able to recall these specific measurements' at the time of the trial. This police officer had known plaintiff as a police officer for ten years.

Young Kelly testified on this question of Messina’s speed that prior to his changing lanes he looked over his shoulder and saw Messina approaching but at such a distance that there was no danger involved in his changing lanes had Messina not been traveling at an excessive rate of speed.

In opposition to this testimony, defendant testified that he had been going 30 to 35 miles per hour, one of defendant’s passengers, Raymond Pécora, testified that they had been proceeding at 35 miles per hour, and another witness, Frank Prieto, who had been in the left lane of traffic on top of the overpass, going 30 miles per hour, said that defendant passed him traveling at 35 to 37 miles per hour.

The contradiction between the testimony of plaintiff, the policeman and the accident reconstruction expert on the one hand, and that of defendant and his two witnesses, on the other hand, presented a conflict as to whether defendant was proceeding at what might be deemed a highly excessive rate of speed of 50 miles per hour or a speed of 30 to 37 miles per hour. On considering the trial court’s reasons for judgment, we find no indication as to how this conflict in the testimony was resolved. The trial judge only summarized the testimony of each witness who testified and concluded that the boy was contributorily negligent without a finding as to the negligence of the driver or any call as to the credibility of the witnesses. Therefore, our task in examining this record is not simply to determine whether there is manifest error in the trial judge’s findings. Nor do we have the advantage of any credibility calls which he could have made.

Defendant testified that he saw the skid marks but did not notice their length so that plaintiff’s evidence on this point was uncontradicted. If we accept that evidence the conclusion necessarily follows that defendant was traveling far in excess of the speed limit. But even accepting the testimony from the best possible point of view of defendant, it seems clear that he was driving at an excessive rate under the circumstances prevailing prior to the collision.

According to defendant and his witnesses he was driving between 30 and 37 miles per hour as he approached plaintiff, so that he was going at or near the stated speed limit despite the fact that he saw the boy in the left lane of the road ahead of him for the entire 870 feet of his descent from the top of the overpass.

When defendant observed the presence of plaintiff he was placed under the highest duty of care and should have anticipated that plaintiff was possessed of limited judgment and his action was likely to be sudden and unpredictable. Ates v. State Farm Mutual Automobile Ins. Co., 191 So.2d 332 (La.App. 3rd Cir. 1966).

Applying this principle to the facts of the instant case, we know the maximum legal rate of speed defendant could have proceeded under any circumstances was 35 miles per hour, so it necessarily follows that he should have reduced his speed to some extent below that speed limit in order to meet the standard of care imposed upon him. Thus, his negligence clearly consisted in his driving at an excessive rate of speed under the circumstances.

But the question remains as to whether the negligence of the defendant was the proximate cause of the accident or, stated conversely, whether the accident would have occurred even had defendant exercised the proper degree of care in reducing his speed to some reasonable extent under the circumstances. His own testimony was that he had the boy under continuous observation from the time he was at the crest of the overpass but that the boy suddenly cut in front of him when he was but 10 to 15 feet away. Had this occurred, he could not have avoided the accident regardless of his speed. But Pécora testified that the boy cut in front of Messi-na when he was 40 feet away and Prieto, when Messina was 50 feet away from the boy. Then there is the mute uncontradict-ed evidence of skid marks of over 100 feet. Surely this evidence preponderates to the effect that defendant was well over 15 feet away from Kelly when he realized that the boy was putting himself in danger. Plaintiff’s expert testified that at 35 miles per hour a driver requires some 92 feet in which to bring his vehicle to a stop. If plaintiff’s witness’s testimony of 100 feet of skid marks is accepted it would follow that defendant could have avoided the accident had he been traveling at some speed under 35 miles per hour.

Under the circumstances of this case, it was incumbent upon defendant to show by some evidence that even if he had reduced his speed to 20 or 25 miles per hour he still could not have stopped his automobile in time, and we find no evidence to support such a conclusion. The circumstances indicate otherwise.

In Tate v. Hill, 197 So.2d 107 (La.App. 3rd Cir. 1967) the Court applied the principle which places a high degree of care on a motorist when children are observed on or near a road. Several cases in which injured children were of sufficient ages to be held contributorily negligent were analyzed by the Court, but the Court noted that in all of these cases the childrens’ conduct and acts of negligence were held not to be contributing causes. In each case “the doctrine of last clear chance was applied and the defendants in each were held to have had sufficient time to avoid the accidents notwithstanding continuing negligence on the part of the youths involved.”

The high degree of care imposed upon the motorist who sees the presence of young children on the road as did defendant in the instant case imposes upon him the duty to anticipate that the child will be negligent, and a finding that he was negligent does not necessarily lead to a conclusion that the child was guilty of such contributory negligence as would defeat his recovery. See Ates v. State Farm Automobile Insurance Association, supra. In order for a child’s negligence to constitute such contributory negligence he must have acted knowingly and heedlessly with reckless disregard for the consequences. Freeman v. Wilcox, 303 So.2d 840 (La.App. 1st Cir. 1974).

As in the Tate case, we are not called upon here to reverse the judgment of the trial court on a question of fact but we find that the district judge committed an error of law in his failure to decide the case on the basis of the principles we have discovered. His dismissal of plaintiff’s suit on the basis of the boy’s negligence was an over simplification of the law, which in this case permits recovery despite the boy’s negligence.

Young Kelly suffered multiple bruises and lacerations of the scalp, head, mouth, chin and knees. Plaintiff incurred $463.63 in medical expenses for an initial hospitalization for 24 hours after the accident and active treatment by a physician until January, 1973. Complications developed in the boy’s left knee which became infected as a result of particles of shell being imbedded in the knee. The physician who last saw the boy just before trial explained that the skin, now scar tissue, on the boy’s knee was “paper thin” so that it was susceptible to splitting open and readily becoming infected. The doctor opined that the condition was permanent and would cause a restriction in the boy’s activities because of his vulnerability to re-injury of the knee. Plaintiff stipulated that he was seeking a maximum recovery of $10,000, the limit of the policy insuring defendant. We have concluded that an award in that amount would do substantial justice in this case.

Accordingly, the judgment appealed from is reversed and set aside and there is judgment in favor of plaintiff, Wendelaus Kelly, Jr., and against defendants, Louis B. Messina, Jr., Louis B. Messina, Sr. and Allstate Insurance Company, jointly and in solido in the sum of $10,000 with legal interest from date of judicial demand until paid, and all costs of these proceedings.

Reversed and rendered.

PER CURIAM.

In their application for rehearing appel-lees have cited a portion of our opinion as indicative that we erred in requiring them to bear the burden of proof on a theory of last clear chance.

In order to clarify our opinion we intended to find, and now amplify those findings to the effect that had Messina been traveling at a speed which was reasonable under circumstances, i. e., with young children on bicycles in and near the roadway ahead, Messina could have avoided striking young Kelly. We did not mean that appellees had the initial burden of proof on this issue, but once plaintiff established his case by a preponderance of the evidence it did become appellees’ burden to defend themselves. One defense was that even had Messina been traveling at a reasonable rate of speed he could not have avoided the accident. We said and we reiterate that the circumstances as a whole reveal otherwise.

The application for rehearing is denied.


author: PRICE, Judge.

text:
    Tommy EUBANKS, Plaintiff-Appellant, v. Isaac BRASSEAL et al., Defendants-Appellees.
    No. 12380.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 3, 1975.
    Due & Dodson by Paul H. Due, Baton Rouge, for plaintiff-appellant.
    Theus, Grisham, Davis & Leigh by R. L. Davis, Jr., Monroe, for defendants-appel-lees.
    Before PRICE, HALL and DENNIS, JJ-
   PRICE, Judge.

Tommy Eubanks brought this action for personal injuries and related expenses alleged to have been caused by the collision of his vehicle with a tank transport on U. S. Highway 165 in Caldwell Parish, Louisiana, on November 18, 1971. Plaintiff named as defendants Isaac Brasseal, driver of the transport; his employers, Rose Oil Company of Dixie; Rose Oil Transport, Inc., and their liability insurer, Travelers Insurance Company.

The trial court rejected plaintiff’s demands on finding he was guilty of negligence which contributed to the cause of the accident. On appeal this court affirmed the judgment of the trial court, 300 So.2d 500. The Supreme Court granted writs of review and reversed the judgment of this court, 310 So.2d 550.

The matter is now before us on remand for the purpose of assessing the amount of damages due plaintiff.

Plaintiff claims substantial damages for personal injuries allegedly resulting from the accident associated with an injury to the cervical and lumbar region of his back. He seeks recovery for pain and suffering endured in the treatment and surgical correction of his spinal injuries; permanent disability and impairment of physical function; loss of earnings, both past and future, and medical expenses incurred in connection with his injury.

The principal issues in dispute in determining damages are:

1. Whether a herniated disc ultimately diagnosed as causing plaintiffs continuation of symptoms of pain and the resultant degree of disability caused by surgical correction thereof was causally related to the accident.
2. Whether the evidence is sufficient to show plaintiff is permanently disabled to perform the manual labor involved in the trade of a pipefitter, which he contends is the usual occupation for which he is best suited by training and experience.

A favorable finding to plaintiff on both of these issues would necessitate a larger award than he would otherwise be entitled. The evidence relating to plaintiff’s injury and his subsequent course of treatment as shown by the record is summarized as follows :

Plaintiff, who was 25 years of age, was self employed at the time of the accident and was driving a one-ton truck with a flat metal bed. The tank transport driven by defendant, Brasseal, struck the rear of plaintiff’s truck with a minimum degree of impact, causing negligible damage to each vehicle. According to his testimony plaintiff developed a rather severe headache immediately after the accident, which he attributed to his head having struck the rear window of the truck cab. As the headaches continued tor the next two days following the accident, plaintiff sought medical attention from Dr. John M. Coats at Mer Rouge. Dr. Coats testified that plaintiff showed symptoms of spasm of the lumbar vertebrae and some minimal loss of the normal curvature of the spine.

Plaintiff was admitted to the Morehouse General Hospital in Bastrop where he remained for 13 days. He was treated by Dr. Coats with cervical and pelvic traction and muscle relaxant drugs. His lumbar region was also treated with deep heat by use of a “sonolator.”

After plaintiff’s discharge from the hospital on December 16, 1971, Dr. Coats continued to treat him for lumbar pain as an outpatient for several weeks. In January, 1972, plaintiff, after consulting with Dr. Coats, sought the services of an orthopedic surgeon, Dr. Robert D. Hightower of Shreveport. Dr. Hightower examined plaintiff initially on January 27, 1972, and concluded at that time his continued complaints of pain in the lumbar region were caused by a lumbosacral strain. Plaintiff was given instructions for flexion exercises to strengthen back muscles and to reduce spasm. He was prescribed muscle relaxant drugs and referred back to Dr. Coats for periodic observation during the anticipated period of recovery.

Plaintiff returned to Dr. Hightower in October, 1972, and a myelogram was performed on his spine by Dr. W. S. Bun-drick, an associate of Dr. Hightower, to determine if plaintiff’s continued symptoms were being caused by a bulging disc. Positive indications received from the myelo-gram resulted in surgery being performed by Dr. Bundrick on October 20, 1972, at Bossier General Hospital. A soft bulging disc was removed at the L 4-5 interspace. Subsequently, on December 18, 1972, a second operative procedure was performed by Dr. Bundrick to remove a recurrent disc on the opposite side of the same L 4-5 disc space.

Dr. Bundrick last examined plaintiff on May 23, 1973, at which time he had satisfactorily recovered from his surgery which apparently had relieved plaintiff’s symptoms of pain.

Defendants primarily contend the evidence is insufficient to show that the herniated disc in plaintiff’s lumbar spine, which was not diagnosed until October of 1972, was caused by the accident which occurred on November 18, 1971. They argue that the extent of the injury to plaintiff which may be causally related to the accident is a strain of the musculature of the cervical and lumbar spine from which he recovered with no resultant disability.

Defendants contend it was just as possible plaintiff sustained the disc injury when he attempted to return to work in May of 1972 performing pipeline work for a period of approximately one month and thereafter driving a produce truck for a short period of time. This work was attempted by plaintiff after the initial X-rays taken by Dr. Hightower failed to disclose the cause of continued pain in the lumbar region was an injured disc. Plaintiff testified his symptoms of pain were present when he undertook to return to work and that the labor involved merely increased the intensity to such an extent he was forced to quit and return home for further medical treatment.

There is no evidence of any further injury to plaintiff during this period, and although it is admitted that a herniated disc can result from normal or usual activities, the medical testimony is unanimous in the instant case that plaintiff’s disc injury more probably originated with the accident.

In his testimony given by deposition, Dr. Hightower explains clearly the factors which influenced his medical opinion that the herniated disc resulted from the accident and we quote the pertinent testimony as follows:

“Q. Now, Dr. Hightower, would you tell me if you could the reason that it was your impression when you first saw him that it was a lumbo-sacral strain and an illeolumbar ligament strain, whereas, the second time you felt it was more indicative of a herniated disc?
"A. Well, the first time I saw him, I couldn’t put my finger on anything specific which is quite frequently the case in injuries or discs like this. Nothing particularly showed except that he did have some spasm in his lumbar area. And he had some questionable hyperthesia or loss of sensation, which was certainly not a clearcut disc. That was the reason that I had the opinion at that time that this was probably a lumbosacral strain. But most lumbosacral strains will subside within a period of six months to nine months and that sort of thing. A.
The second time I saw him he continued to have his pain and he was having leg radiation, and he had a positive straight leg raising test and was still tender in the same areas and was having the same problems that he had before, and this was approximately eleven months later, so I thought that further investigation should be done.
‘Q. Is it fair to say that in general your practice, given these symptoms, is to take a more conservative view at first as to the injury and then that if the symptoms persist to consider something more serious ?
'A. Yes, sir, it is.
‘Q. Was there anything, looking back now. inconsistent or not suggestive of the herniated intervertebral disc at the time you first saw this man on January 27th?
‘A. No, sir.
‘Q. I gather on this particular type disc it can — physicians such as yourself sort of have to look and see how long the symptoms persist before you resort to something as drastic, shall we say, as surgery, or even myelography ?
“A. Yes, sir, that is correct.”

In Jordan v. Travelers Insurance Company, 231 So.2d 678 (La.App. 1st Cir. 1970) the evidence necessary to establish a causal relation of an injury with an accident is discussed as follows:

“For plaintiff to recover for these injuries he must establish that there is a causal relation between the two and that the injuries complained of did in fact result from the accident. In shouldering this burden of proof, probabilities and possibilities are not enough; however, neither is plaintiff required to prove this causal relation beyond a reasonable doubt. The amount of proof required, therefore, involves a question of degree. The answer thereto is one of reasonableness. This is so because not all injuries are susceptible of proof by testimony that is beyond legitimate quandary. It is for this reason that our jurisprudence has provided that the legal requirement for the burden of proof is satisfied when plaintiff has established to a reasonable certainty that the negligent act caused his injuries. To prove less is not enough but to require more would make a plaintiff’s task an unreasonable one and in many cases impossible.”

We think the evidence presented by plaintiff shows to a reasonable certainty that the herniation of the disc was caused by the injury received in the accident of November 18, 1971.

Plaintiff contends he is entitled to a substantial award for loss of past and future earnings as he can no longer carry out the duties of a pipefitter, which is the principal trade for which he has been trained. Although he had not followed his trade for over a year prior to the accident, he contends he is nonetheless entitled to be compensated for this limitation on his ability to return to this work for which he is best trained and suited. Defendants do not take issue with this premise but strenuously argue the evidence does not show plaintiff is unable to perform the duties of a pipefitter or any other related trade requiring some manual labor.

The testimony of Dr. Bundrick, the orthopedic surgeon who performed the two operations on plaintiff, is the principal evidence in the record relating to the issue of physical disability. His supplemental medical report of May 23, 1973, the date he last examined plaintiff, describes plaintiff’s degree of recovery and resulting disability as follows:

“This patient is now five months postoperative excision of recurrent herniated lumbar disc. He states he has mostly back pain in the morning when he arises and is also stiff in the low back when he arises. This gradually improves during the day. He has had no significant leg pain.
“Examination of the back today revealed a moderately good range of motion in all planes, and there is no muscle spasm or tightness. There is some tenderness about the surgical scar. Straight leg raising tests are negative bilaterally. Neurological examination is normal. He is able to squat and recover without difficulty. Heel and toe walk is normal.
“The patient appears to be improving well from the two disc surgeries, but I do not think he will be able to return to any type of manual labor which requires heavy lifting or standing for long periods of time. He also would have difficulty with any excessive bending or stooping. He would be best suited for a sedentary or semi-sedentary occupation.”

There is no evidence to show plaintiff has returned to Dr. Bundrick since May 23, 1973, through the date of trial on February 28, 1974, with any further complaints or symptoms of pain. Plaintiff’s testimony indicates he has begun a course in refrigeration service, although he had not become gainfully employed at the time of trial.

Plaintiff contends the damages he has suffered should entitle him to an award in excess of $100,000 and cites the cases of Edwards v. Sims, 294 So.2d 611 (La.App. 4th Cir. 1974), Breaux v. State Farm Insurance Company, 267 So.2d 230 (La.App. 3rd Cir. 1972), and Reeves v. Louisiana and Arkansas Railway Company, 304 So.2d 370 (La.App. 1st Cir. 1974), in support of this position. In the cited cases in which awards exceeding $100,000 were made, the injured plaintiffs suffered substantially more serious injuries or a greater disability than did plaintiff herein. For this reason we do not find those decisions applicable to mandate a comparative award.

Nor do we find the several cases cited by defendants in which plaintiffs suffering disc injuries were awarded sums in the $12,000 to $25,000 range are sufficiently factually analogous to the instant situation to be used as the criteria for damages to plaintiff herein.

We are of the opinion the sum of $50,000 would be an appropriate award for general damages to plaintiff. In determining this amount we have given consideration to the fact that plaintiff has undergone two operative procedures and has endured some pain and suffering for the period extending from November 18, 1971, through May, 1973. Also, we recognize he has suffered some degree of physical disability relating to his total ability to perform the full range of related trades for which he has had previous work experience and at which he had earned approximately $9,000 per year. The specific degree of disability is of course impossible to determine with certainty. In addition, he is entitled to special medical expenses totaling $5,070.85, which are stipulated in the record.

It is ordered, adjudged and decreed that there be judgment in favor of plaintiff, Tommy Eubanks, and against defendants, Isaac Brasseal, Rose Oil Company of Dixie, /Rose Oil Company Transports, Inc., and the Travelers Insurance Company, in the full sum of $55,070.85, together with legal interest thereon from date of judicial demand until paid, and for all costs of these proceedings. The witness fees of the medical experts testifying by deposition are fixed as follows:

Dr. Hightower $75.00
Dr. Bundrick $50.00
Dr. Coats $75.00

The court reporter’s costs for taking depositions of the foregoing physicians in the sums of $52.50, $50.00 and $79.40, respectively, are hereby taxed as costs.


author: HOOD, Judge.

text:
    Robert RICHARD, Plaintiff-Appellant, v. ZURICH INSURANCE COMPANY et al., Defendants-Appellees.
    No. 5113.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 5, 1975.

      Dubuisson, Brinkhaus, Guglielmo and Dauzat, by Jimmy L. Dauzat, Opelousas, for plaintiff-appellant.
    Allen, Gooch & Bourgeois, by Paul J. Breaux, Lafayette, Gist, Methvin & Trim-ble, by H. B. Gist, Jr., Alexandria, William J. Doran, Jr., Baton Rouge, for defendants-appellees.
    Before HOOD, CULPEPPER and MILLER, JJ.
   HOOD, Judge.

Robert Richard seeks to recover damages sustained by him as the result of a motor vehicle collision. Defendants are Allstate Insurance Company, Peter Pickens, Zurich Insurance Company, and Louisiana Department of Highways. A summary judgment was rendered by the trial court dismissing the suit as to defendant Allstate. Plaintiff appealed.

The issue presented is whether Richard is entitled to recover from Allstate under the uninsured motorist coverage provided in an automobile liability policy which Allstate had issued to plaintiff.

Richard sustained personal injuries as the result of a motor vehicle collision which occurred in LaSalle Parish on September 2, 1973. At the time of the accident, he was riding as a guest passenger in an automobile which was owned and was being driven by Peter Pickens. The Pick-ens automobile crossed the center line of the highway and collided with a station wagon which was being driven in the opposite direction by David T. Shively. Plaintiff alleges that the accident was caused solely by the joint negligence of Pickens and the Louisiana Department of Highways.

There was in effect at the time of the collision an automobile liability insurance policy issued by Zurich Insurance Company to defendant, Pickens, which provided liability coverage to Pickens, with limits of $5,000.00 per person and $10,000.00 per accident. There also was in effect at that time an automobile liability policy issued by defendant Allstate to plaintiff Richard, which provided uninsured motorist coverage to plaintiff, with limits of $5,000.00 per person and $10,000.00 per accident.

After the above accident occurred, several suits for damages, besides this one, were filed by other parties against Pickens and his insurer, Zurich, all of which suits arose out of the same accident. Plaintiff alleges that all of those claims have resulted, or will in the future result, in the exhaustion of the limits of the policy which had been issued by Zurich to Pickens, and that Pick-ens thus was an “uninsured motorist,” as that term is used in the policy. He contends that in view of those circumstances, he is entitled to recover from his own insurer, Allstate, under the uninsured motorist coverage provided in the policy issued to him by that defendant.

Pursuant to a motion filed by defendant Allstate, the trial court rendered a summary judgment dismissing the suit as to Allstate on the ground that the liability coverage provided in the policy issued by Zurich to Pickens was not less than the uninsured motorist coverage provided in the policy which Allstate issued to plaintiff. The court held that under those circumstances the Pickens automobile could not be held to be an “uninsured motor vehicle,” and that the loss or injury sustained by plaintiff thus was not covered by the uninsured motorist provision of the policy issued by Allstate. It based that decision on LSA-R.S. 22¡1406(D)(2)(b), as amended by Act 137 of 1972, which provides:

“For the purposes of this coverage the term ‘uninsured motor vehicle’ shall, subject to the terms and conditions of such coverage, also be deemed to include an insured motor vehicle when the automobile liability insurance coverage on such vehicle is less than the uninsured motorist coverage carried by an insured.”

The above section of the Revised Statutes was amended again by Act 154 of 1974, but that amendment is not applicable here, because the accident occurred before the amending statute was enacted.

In the instant suit the automobile liability coverage on the Pickens vehicle was for the same amount as the uninsured motorist coverage carried by plaintiff. We assume for the purpose of disposing of the motion for summary judgment that the other claims for damages which are being asserted against Pickens will exhaust the limits of the liability coverage provided in the Zurich policy. The question presented is whether the “liability insurance coverage” of Pickens, under those circumstances, must be considered to be “less than” the “uninsured motorist coverage” carried by plaintiff, as those terms are used in LSA-R.S. 22¡1406(D)(2) (b), as amended in 1972. If the liability coverage is found to be less than the uninsured motorist coverage, then plaintiff is entitled to recover under the uninsured motorist provisions of the policy issued to him by Allstate.

The issue which is before us here is identical to that which was presented in Doucet v. Insurance Company of North America, 302 So.2d 731 (La.App. 3 Cir. 1974). In that case the plaintiff and her daughter were injured in a collision which occurred while they were riding as passengers in a pickup truck being driven by Ar-telon Chapman, who also was injured. The driver of the other vehicle had liability insurance, with limits of $5,000.00 for one person and $10,000.00 for one accident, and that insurer paid the maximum limit of its liability, $10,000.00, to the three injured persons. Chapman had uninsured motorist coverage on his own vehicle, with limits of $5,000.00 for one person and $10,000.00 for one accident. Plaintiff sought to recover from Chapman’s insurer, under the uninsured motorist coverage provided in the policy which it had issued, on the ground that the amount of the damages which she and her daughter had sustained exceeded the amount of liability coverage. The issue presented in that case, as we saw it, was:

“May plaintiff have the benefit of uninsured motorist coverage even though there was liability coverage in effect equal to the amount of the uninsured motorist coverage?”

We held that the Chapman vehicle was not an “uninsured motor vehicle,” as that term is used in LSA-R.S. 22:-1406(D)(2)(b), as amended in 1972, since the liability coverage carried by the other driver equalled the amount of uninsured motorist coverage carried by Chapman. We concluded that no coverage was provided under the uninsured motorist provisions of the policy, even though the liability coverage carried by the other driver was partially depleted by a payment to another claimant.

The plaintiff in Doucet argued, as plaintiff does here, that the intent of the Legislature was to expand the definition of “uninsured motorist” to include an “insured motor vehicle,” so as to allow the insured to recover up to the full limits of his own uninsured motorist coverage, where the limits of the liability policy have been wholly or partially depleted. We rejected that argument in Doucet, and for the reasons which we assigned in that case we reject the same arguments which are made here.

We believe that in this case, as in Dou-cet, plaintiff would have had a cause of action under the uninsured motorist coverage in the Allstate policy if the 19/4 amendment to LSA-R.S. 22:1406(D) (2) (b) had been in effect at the time of the accident. That amendment was not in effect when the accidents involved in both of those suits occurred, however, and we have concluded that the 1974 act cannot be applied retrospectively.

Our conclusion is that the Pickens vehicle was not an “uninsured automobile,” as that term is used in the Allstate policy issued to plaintiff, and that plaintiff is not entitled to recover under the uninsured motorist coverage provided in that policy. The trial judge did not err, therefore, in rendering a summary judgment dismissing the suit as to Allstate.

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

Affirmed.


text:
    ACADIANA PROPERTIES, INC., Plaintiff-Appellant, v. CONTINENTAL INSURANCE COMPANY et al., Defendants-Appellees.
    No. 5004.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 5, 1975.
    Rehearing Denied Oct. 1, 1975.
    Writ Refused Nov. 18, 1975.
    jumonville, Hartley, Plauche & Broad-hurst, by William C. Broadhurst, Lafayette, for plaintiff-appellant.
    Davidson, Meaux, Onebane & Donohoe, by Edward C. Abell, Jr., Lafayette, for defendants-appellees.
    Before FRUGE, HOOD and WATSON, JJ.
   HOOD, Judge.

Acadiana Properties, Inc., seeks to recover amounts alleged to be due under seven fire and extended coverage insurance policies issued to it by defendants, as the result of the collapse of a part of the front wall of a two story brick building owned by plaintiff. The defendants are: Peninsular Fire Insurance Company; Central Mutual Insurance Company; Gulf Insurance Company; Pennsylvania Millers Insurance Company; Continental Insurance Company; St. Paul Fire and Marine Insurance; and Employers Commercial Union Insurance Company. Judgment was rendered by the trial court in favor of defendants. Plaintiff appealed.

The issues presented are (1) whether a windstorm occurred in the City of Crowley on April 17 or 18, 1973, and (2) whether the collapse of a part of the front wall of plaintiff’s building was caused by the direct action of wind.

Plaintiff is the owner of a two story brick building located on the west side of one of the principal business streets in the City of Crowley. It has owned that building for at least 12 years, and during all of that time the building has been leased to and occupied by Nichols, Inc., for the operation of a clothing store.. The building is relatively old, having been built in 1900. Its exterior walls are constructed of brick, while the interior walls are made of wood.

Shortly after 1:00 P.M. on April 18, 1973, the top six or eight feet of the front or east brick wall of the building collapsed and fell to the ground. The weight of the falling bricks destroyed a sidewalk canopy, smashed display windows and caused other damages. The damages have been repaired, and the parties have stipulated as to the expenses which were incurred in making those repairs.

The building was about 60 feet wide and from 120 to 160 feet long. It had a 5-ply, hot mopped, built up roof, which was at least 16 years old. The roof sloped from the front to the rear of the building, the elevation of the roof at the front being two to three feet higher than the elevation at the rear. The slope was designed to facilitate drainage, and the evidence shows that the grade was adequate to prevent water from standing on the roof. Several scuppers were located in the back parapet to allow water to run off the roof.

The brick walls on all four sides of the building extended above the roof, the east or front wall extending about three feet above the part of the roof which abutted that wall. The east wall, which was about 16 inches thick, was not a bearing wall, it obviously having been constructed for decorative purposes, forming a sort of facade for the building. The outside of that wall was exposed masonry, while the inside or back of it was coated with the same type membrane as that which was on the roof. The roof and the backside of the east facade were covered with several layers of roofing felt, which formed a continuous membrane covering the roof and extending up the backside and to the top of the east wall.

The building was examined by experts shortly after the top part of the front wall collapsed, and they determined (1) that the part of the wall which fell had not been “tied” to the inner wall of the building as it should have been, (2) that the mortar used in constructing the wall was “lime mortar,” which had deteriorated to the point where it had become “dead” or “cheesy,” and that the mortar crumbled easily and did not adhere to the bricks, (3) that at some time prior to the collapse of the wall the roofing membrane had broken or cracked along the line where the roof joined the front parapet, and (4) that water had seeped through the crack in the roofing membrane to the wood structure supporting the roof and to the lime mortar which had been used in constructing the front brick wall.

The experts explained that “lime mortar” becomes “dead” or “cheesy” when it is exposed to water, and that when that occurs the mortar crumbles easily and does not adhere to the bricks. That type of mortar has become obsolete and is no longer used in construction work.

The policies issued by defendants in this case insure plaintiff against direct loss of the above building by windstorm. Each policy contains the following pertinent provision :

“This Company shall not be liable for loss to the interior of the building(s) or the property covered therein caused: (a) by rain, snow, sand or dust, whether driven by wind or not, unless the building(s) covered or containing the proper ty covered shall first sustain an actual damage to roof or walls by the direct action of wind or hail and then shall be liable for loss to the interior of the building(s) or the property covered therein as may be caused by rain, snow, sand or dust entering the building(s) through openings in the roof or walls made by direct action of wind or hail; or (b) by water from sprinkler equipment or from other piping, unless such equipment or piping be damaged as a direct result of wind or hail.” (Emphasis added).

It is apparent from the above provision contained in each policy that plaintiff cannot recover in this action unless it establishes that the insured building sustained an actual damage to the roof or walls “by the direct action of wind.”

The evidence shows that the weather in Crowley was clear and calm and that there were no high winds in or near that city on April 18, 1973, the day on which the wall of this building collapsed. There was a heavy rainfall in Crowley on April 17, the day before the wall fell, however, and the record shows that some high winds and two tornadoes occurred a few miles south of the city limits on that day. There were no significant winds or windstorms within the city itself, however, either on the day the wall collapsed or on the previous day.

Mrs. Mary Cole, who lives about six miles south of Crowley, testified that when she returned to her home from Crowley on the afternoon of April 17, she found that the weather was bad and that her tin garage had been blown down and her pump shed had been moved by high winds. She, however, found no damage to her garden, to her telephone lines or to any other buildings in that vicinity. Joseph L. Hains, who lives about two miles south of Crowley, testified that his garage also was blown down by high winds on April 17. His garage was located about 30 feet from his home, and he stated that the winds did not disturb his telephone lines and did not damage even the shingles on his house. The Crowley newspaper reported that a tornado dipped down at points south of Crowley on April 17, and we think the evidence supports that observation. The evidence is equally convincing, however, that there were no high winds or tornadoes of any kind within the city limits of Crowley on that day.

The trial court found that plaintiff had , failed to prove the occurrence of a windstorm in the City of Crowley on April 17 or 18, 1973, and on the basis of that finding he rendered judgment in favor of defendants, rejecting plaintiff’s demands. We agree with the trial court that the evidence fails to show that a windstorm occurred in the City of Crowley on either of those days.

Plaintiff contends, however, that the evidence nevertheless establishes that the most probable cause of the damage was the wind. It argues that the wind, at some time in the past, had caused the front wall of the building to move slightly forward, that that in turn had caused the roof membrane to crack along the line where the roof joined the front parapet, and that water thereafter seeped through the crack in the roofing felt to the wood which supported the roof and to the mortar which had been used in constructing the wall. It takes the position that the water which seeped through the above crack caused the lime mortar to deteriorate and the wood to swell, and that the swelling of the wood pushed the wall forward beyond its center of gravity and caused it to fall. Plaintiff argues, therefore, that the collapse of the wall is attributable to wind damage at some time in the past.

Robert E. Barras, an architect called by plaintiff, examined the building within an hour after the wall collapsed. Jesse A. Stafford, Jr., a construction superintendent called by defendants, examined the building a little later that afternoon. Both of these witnesses were qualified as experts, and both agreed that some time prior to the collapse of the wall the membrane which covered the roof had cracked along the line where the roof abutted the front parapet. They felt that water had seeped through that crack to the wood and to the lime mortar in the front brick wall, causing the wood to swell and the lime mortar to deteriorate. These experts agreed that the expansion of the wood pushed the wall forward, and that this pressure, combined with the weakened condition of the wall and the fact that it was not tied to the wood framework of the building, caused the wall to collapse when it reached the point where it was off balance.

Both of these experts also agreed that the roof was old, and that roofing membranes of that type deteriorate with age, wear, heat and weather conditions, and that in time the membrane cracks. They stated that the most likely place for a roofing membrane to crack is in a place where it is bent, such as the place where the roof on plaintiff’s building had cracked. They were unable to speculate as to how long the crack had existed in the roof of the building involved here before the wall collapsed, but they stated that it could have occurred one day or several weeks before the damage was done.

Barras felt that the crack in the roofing membrane had been caused by the wind. He" expressed the view that a “previous wind” had pushed the brick wall slightly and had caused the roof membrane to crack. His testimony, in part, is that:

“. . . . And my opinion is that a previous wind had pushed this wall some, in order to break this membrane, and the water getting in on the ends of these board, perhaps extending them a little bit, perhaps doing some damage to some inferior mortar, may have been contributory. But my feeling is that the initial force of the wind, at some previous time, is what was the primary cause of all of this taking place.”

Barras conceded that a “soil change” or the weakened mortar alone could also have caused the wall to move and the roof membrane to be broken. He admitted that if a wind had caused the wall to move enough to crack the roof membrane on April 17, the wall probably would have fallen on that date rather than on April 18. He knew that there had been no significant wind in Crowley on April 18, and he was unable to testify as to when the roof leak occurred or whether it occurred during a windstorm in that area. We think his conclusion that the collapse of the wall could be attributed to wind damage is based on speculation which is not supported by the evidence.

Stafford attributed the crack in the roof membrane to the age of the roof, to wear and to weather conditions. He stated, for instance, that:

“. . . .it was a ten-year-or-better aged roof, and after fifteen, eighteen, twenty years, the roof, it needs a new roof on it; and this is weather beat, this is weather beat. It could be water-holding.
“. . . . Now contraction- or expansion can cause this roof to either age, well, have something to do with it; sun would crack it, cold weather would cause it to crack or some — ”

His opinion as to the cause of the damage to the building is summed up by the following part of his testimony:

“I’d say the flashing accumulated the leak and from that leak the water got back into the brickwork, got back into the wood, and caused the brick, the mortar inbetween the brick to eat away some more causing a weakness there; and then the wetting, getting the lumber wet —which is the decking, the trusses— causing an expansion, causing the truss to expand, centermatch to expand. That caused the pressure to be put on the walls.”

Plaintiff alleges in its petition that the collapse of the wall of the building was caused solely by “sustained extensive windstorm damage during the unusually turbulent weather” which occurred on or about April 18, 1973. The trial judge found, and we agree, that no windstorm or turbulent weather occurred in Crowley on or about the above date. Plaintiff thus has failed to establish that the building was damaged by the “direct action of wind” on that date.

We conclude that the evidence also fails to show that the collapse of the wall was caused by a “previous wind” or by a wind which occurred “at some previous time,” as surmised by Barras and argued by plaintiff.

This was an extremely heavy wall, and we assume that a relatively strong wind would be required to move it. The evidence shows that it was in a weakened condition and that it was not tied to the framework of the building at the time it collapsed. We believe that if the wall had been forced by wind pressure to move enough to tear the roofing membrane, as contended by plaintiff, the weakened and unsecured wall would have collapsed at the time it was subjected to that pressure. It it improbable, we think, that the wall would remain standing after being subjected to such strong winds, and then collapse on a clear, calm day. It is more probable that the crack in the roofing membrane was caused by the age of the roof, and by heat, wear and weather conditions, rather than by windstorm.

Our conclusion is that the evidence fails to establish that the loss sustained by plaintiff was caused by the direct action of wind. We thus find no error in the judgment rendered by the trial court.

The judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellent.

Affirmed.


author: MILLER, Judge.

text:
    John S. SCHOELEN and Rosemary Fath Schoelen, Plaintiffs-Appellees, v. FIDELITY & CASUALTY COMPANY, Defendant-Appellant.
    No. 5111.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 5, 1975.
    Rehearing Denied Oct. 1, 1975.
    Writ Refused Nov. 18, 1975.

      Watson, Blanche, Wilson & Posner by David W. Robinson, Baton Rouge, for defendant-appellant.
    Domengeaux & Wright by Jack C. Frugé, Jr., Lafayette, for plaintiff-appellee.
    Saumel H. Collins, New Orleans, for 3rd party plaintiff-appellee.
    Before HOOD, CULPEPPER, and MILLER, JJ.
   MILLER, Judge.

Defendant Fidelity & Casualty Company appeals the award of penalties and attorney fees to its insured plaintiffs John S. and Rosemary Fath Schoelen for F & C’s refusal to pay uninsured motorist coverage until the uninsured motorist was found negligent and without a defense to plaintiffs’ claim. We reverse.

Plaintiffs’ daughter was a passenger in an uninsured motorist’s Toyota. While in Nevada (under Nevada R.S. 41.180, the operator of a vehicle incurs no liability to a guest occupying his' automobile unless the accident was proximately caused by intoxication, willful misconduct or gross negligence of the person operating the vehicle), the uninsured motorist went to sleep at the wheel, lost control of his car, and caused the accident which took the life of plaintiffs’ daughter. To obtain recovery against the uninsured motorist in Nevada, plaintiffs would have had the burden of proving the guest passenger statute did not relieve the uninsured motorist of liability.

Since the uninsured motorist and plaintiffs were domiciled in Louisiana, plaintiffs made demand on their insurer F & C for $10,000 in uninsured motorist benefits written on plaintiffs’ two cars, each of which was covered for $5,000. On its medical benefits coverage F & C had paid $1,000, but plaintiffs demanded an additional $1,000 in medical expenses contending this coverage should also be stacked. At trial plaintiffs dismissed this portion of their claim.

Prior to filing suit, plaintiffs directed F & C’s attention to Jagers v. Royal Indemnity Company, 276 So.2d 309 (La.1973) and pointed out that as in Jagers, plaintiffs’ claim presents a false conflict of law question — one which occurs when only a single state has an interest in the application of its law, and the other state has no interest in the application of its law. See Jagers, 276 So.2d at 311. When F & C received this demand, they referred the file to Louisiana counsel. F & C was advised that if suit was filed in Louisiana the Nevada Guest Statute would not apply. However, F & C was advised that to protect its subrogation rights against the uninsured motorist, he would have to acquiesce in this procedural issue either by consent or by judgment after trial.

F & C was informed that if the insurer paid the claim and then filed suit against the uninsured motorist, F & C’s claim might be defeated on the basis that the facts in Jagers (both parties being Louisiana domiciliaries) might not apply where an insurance company domiciled elsewhere was seeking recovery from a Louisiana domiciliary. Brinkley & West, Inc. v. Foremost Insurance Company, 499 F.2d 928 (5th Cir. 1974) was cited to support the possibility that the general language in Jagers would permit a different decision under the facts of this case.

F & C’s counsel quoted the language of LSA-R.S. 22:1406(D) which suggests in subsection 4 the means by which an insurer making payment under the uninsured motorist coverage may recover payment from the uninsured motorist — out of the proceeds of a judgment or settlement obtained by the insured.

Counsel for F & C also discussed these matters with plaintiffs’ counsel and suggested plaintiffs file suit against the uninsured motorist to determine whether the uninsured motorist would defend on these procedural points.

Plaintiffs filed suit against F & C. F & C’s answer raised Nevada’s guest statute defense against plaintiffs’ claim, and F & C third partied the uninsured motorist. The uninsured motorist filed an exception of no cause of action. F & C amended its petition. Thereafter, the uninsured motorist filed a general denial to F & C’s third party claim.

When the case was called for trial, plaintiffs dismissed their claim for the second $1,000 of (stacked) medical benefits. The uninsured motorist confessed judgment in favor of F & C, and F & C confessed judgment for $10,000 ($5,000 of uninsured motorist coverage on each of plaintiffs’ two cars).

The case proceeded to trial on one issue — are plaintiffs- entitled to penalties and an attorney’s fee under LSA-R.S. 22:658 where the insurer’s right of recovery from the uninsured motorist could only be resolved by institution of litigation and establishment of that right by stipulations or by judgment? The trial court concluded, in effect, the stipulations at trial related back to the date the claim was filed, and concluded insurer’s refusal to pay prior to trial was unreasonable and arbitrary.

The insurance policy is not in the record. Since plaintiffs recovered, it is assumed the policy provided coverage under Louisiana’s standard automobile policy and conformed to LSA-R.S. 22:1406(D). The policy therefore provided protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom. When an insurer makes payment under this coverage, it is entitled to the proceeds of any settlement or judgment resulting from the exercise of rights or recovery of such person against any person or organization legally responsible for the bodily injury for which payment is made, up to the amount paid by insurer.

Unlike collision coverage which is also subject to subrogation, the uninsured motorist insurer is liable only if the third party is liable. The additional issue of the uninsured motorist’s legal liability must be established before insurer is obligated to make payment.

As pointed out in State Farm Mutual Automobile Insurance v. Hecker, 271 So.2d 895 (La.App. 4 Cir. 1973) at 897, the insurer is required to prove both liability and damages to recover against the uninsured motorist.

When the case was called for trial, F & C learned for the first time it could pay the claim with assurance the case would not he removed to Nevada. It agreed to pay the claim the same day. F & C’s refusal to pay prior to that time was not unreasonable and arbitrary;

Finally, F & C’s refusal to pay its insureds the additional $1,000 in medical benefits was vindicated when plaintiff dismissed this claim. There was nothing arbitrary about that action.

. , . , ,. The trial court judgment awarding pen- , . , , . , , alties and attorney s fees is reversed and „ ; . . , , set aside. Costs of this appeal are taxed to plaintiffs appellees.

Reversed and rendered.


author: FRUGÉ, Judge.

text:
    Francis E. MIRE, Plaintiff-Appellant, v. TRAVELERS INSURANCE COMPANY, Defendant-Appellee.
    No. 5082.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 5, 1975.
    Rehearing Denied Oct. 1, 1975.
    Writ Refused Nov. 14, 1975.
    Francis E. Mire, Lake Charles, for plainti f f-appellant.
    Holt & Woodley, by Edmund E. Wood-ley, Lake Charles, for defendant-appellee.
    Before FRUGÉ, DOMENGEAUX, and WATSON, JJ.
   FRUGÉ, Judge.

Plaintiff is an attorney who successfully represented a client in a tort action. He sues Travelers Insurance Company for attorney’s fees in the amount of one-third of the amount recovered by Travelers in an intervention in the tort action. The trial court rendered judgment in favor of the defendant and plaintiff appeals.

This suit is an outgrowth of Simmons v. Travelers Insurance Company et al., 295 So.2d 550 (La.App. 3rd Cir. 1974). In that case the plaintiff herein, Francis Mire, represented Jack C. Simmons who was plaintiff in that case. The defendants, among others, were various executive officers of Nat G. Harrison Associates, Inc. and Travelers Insurance Company. Ultimately the plaintiff Simmons secured a large judgment against Mississippi Valley Structural Steel Company, Randolph M. Foster, and Travelers.

During the course of that suit Travelers, who also provided workmen’s compensation insurance to Nat G. Harrison Associates, Inc., intervened to recover the compensation and medical expenses which it paid to Simmons. Eventually, Travelers recovered $21,026.62 on its intervention claim. The same attorney represented Travelers in both the intervention and its defense to the liability claim.

Under a contingency fee contract with Simmons, Mire, the plaintiff herein, received a fee of $94,820. This was one-third of the total amount collected on behalf of the plaintiff. In this suit Mire contends that he is entitled to one-third of the amount paid to Travelers on its intervention claim.

In substance plaintiff alleges that the success of the intervention was due entirely to his own efforts, that Travelers took no steps to prosecute the intervention claim, but, in fact, attempted in every possible way to defeat Simmons’ entire lawsuit. Plaintiff therefore claims that Travelers was enriched by $21,026.62 through his efforts and through no effort of its own. He contends that it constitutes unjust enrichment for Travelers to .receive the benefit of his work without paying for it. Alternatively, plaintiff contends that he is entitled to recover under the “fund doctrine” or on the basis of quantum meruit.

The trial court found as a matter of fact that the plaintiff’s factual contentions were proven. Travelers’ attorney merely filed the petition of intervention but did nothing to actively prosecute the claim. Plaintiff relied particularly on the cases of Broussard, Broussard & Moresi, Ltd. v. State Auto & Casualty Underwriters Co., 287 So.2d 544 (La.App. 3rd Cir. 1973); Chouest v. A & P Boat Rentals, Inc., 472 F.2d 1026 (5th Cir. 1973); and In Re Interstate Trust & Banking Co., 235 La. 825, 106 So.2d 276 (La.1958). As the trial judge recognized, the decisions in these cases do recognize that in some circumstances an attorney for one party may recover attorney’s fees from another party without the benefit of a contract of representation when the other party has benefited from the attorney’s services. However, the trial court found that none of the theories of recovery urged by plaintiff applied under the facts and granted judgment in favor of the defendant, Travelers.

We agree with the judgment of the trial judge and quote from his written reasons for judgment, as follows :

“However, there remains one significant distinction between the instant case and those cited, including In Re Interstate Trust & Banking Co., 235 La. 825, 106 So.2d 276, that prevents plaintiff’s recovery. While there may be other distinctions, the one overriding distinction is that in each of the instances in which a party was required to pay a fee to an attorney it had not retained, the party had been benefited by the services of the attorney. In this case, that was not true. While it is true that it was solely through Mire’s actions that Travelers collected some $21,000.00, it is also true that it was solely through Mire’s actions that Travelers had to pay $100,000.00. I cannot apply the moral maxim of the law as stated in LSA-C.C.1965 that no one ought to enrich himself at the expense of another to this situation. Under any of the theories of recovery advanced, unjust enrichment, quantum mer-uit, or the fund doctrine, that criterion of benefit is essential.”

The trial judge went on to conclude that in the present case Travelers was hurt much worse by Mire’s actions in representing his client than it was helped. In actuality the result of Mire’s actions was a loss of Travelers rather than a benefit. The trial judge concluded that since the net results of Mire’s actions did not benefit Travelers the legal principles relied on by the plaintiff could not be applied. Finding no error on the part of the trial judge in applying the applicable law to the facts presented in this case, we affirm the judgment of the trial court.

For the reasons assigned, the judgment of the trial court is affirmed, at plaintiff-appellant’s cost.

Affirmed.

WATSON, J., concurs, feeling committed to the views expressed in Baron v. Peter, 286 So.2d 480 (La.App. 1 Cir. 1974), which are adverse to plaintiff’s theory.

      . Travelers was held solidarity liable with Foster up to its policy limits of $100,000.

      . The judgment in favor of Simmons was for $247,500.00
      The total collected including interest was: $305,483.83
      Travelers’ share of the judgment: -21,027.00
      Total collected on behalf of plaintiff $284,356.83
      Mire received a fee of one-third of $284,-356.83.

      . To apply these principles to the present factual situation a benefit must be bestowed on Travelers. See Edmonston v. A-Second Mortgage Co. of Slidell, Inc., 289 So.2d 116 (La.1974) and Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967)—unjust enrichment; In Re Interstate Trust & Banking Co., 235 La. 825, 106 So.2d 276 (1958) — fund doctrine; Louisiana State Mineral Board v. Albarado, 248 La. 551, 180 So.2d 700 (1965)—quantum meruit.


author: SCHOTT, Judge. BOUTALL, Judge LEMMON, Judge

text:
    Lawrence W. HEASLIP, Jr. v. John S. TREEN et al.
    No. 7312.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 10, 1975.
    Writ Refused Sept. 16, 1975.

      Kenneth C. Hughes, Metairie, and John C. Combe, Jr., New Orleans, for defendants-appellants.
    John R. Martzell, New Orleans, for plaintiff-appellee.
    Before SAMUEL, REDMANN, LEM-MON, GULOTTA, STOULIG, BOU-TALL, SCHOTT, MORIAL and BEER, JJ.
   SCHOTT, Judge.

Defendants, John S. Treen, Kenneth C. Hughes, and The Jefferson Parish Republican Qualification Committee, have appealed from a judgment in favor of plaintiff on his objection to the candidacy of Treen for Councilman, Districts 3 and 4, of the Parish of Jefferson. Plaintiff’s objection was on the basis that Treen did not have the residence requirements prescribed by the Home Rule Charter for Jefferson Parish.

The last day upon which these candidates could file notification of their intention to become such was August 7, 1975, and plaintiff’s suit was filed on August 18. Thus, the threshold issue is whether or not plaintiff’s suit should have been dismissed since it was not filed within five calendar days after August 7 as required by LSA-R.S.' 18:396.

In. the trial court this issue was raised in defendants’ answer and in an exception of prescription. The trial judge 'considered the problem as one of prescription and overruled the exception on the basis of the doctrine of contra non valentem which provides that prescription will not defeat a cause of action if the plaintiff did not have sufficient information ’to sustain a claim during the original prescriptive term and such lack of information was not the result of his negligent or willful inaction and/or that such inaction was induced in part by the party pleading the prescription.

Pretermitting the question of whether this is a problem of prescription- or peremption, we do not find that the. facts support the application of the doctrine of contra non valentem. As we stated in Tassin v. Allstate Insurance Co., 310 So.2d 680 (La.App. 4th Cir. 1975), writ refused, La., 313 So.2d 836, the facts in any case must be compelling to bring the case within that class of sitation adequate to suspend the running of prescription and plaintiff’s evidence was not such. The gist of his testimony was that he did not become suspicious that defendant was not a resident until the five day period had already run. But this does not excuse him from conducting a timely investigation. We perceive that the legislature intended for those who would object to the candidacy of others to be required to make a rapid investigation and prepare themselves to file suit with no delay whatsoever as a condition for bringing a formal objection to another’s candidacy.

Plaintiff’s argument that his position is supported by Jones v. Texas & Pacific Ry. Co., 125 La. 542, 51 So. 582, is likewise without merit. The doctrine emerging from that case is to the effect that while the facts supporting a cause of action may exist, prescription does not run where the cause cannot be successfully prosecuted. Plaintiff contends that because R.S. 18:396 requires that an objection to one’s candidacy must “contain, in detail, the reasons for the objection,” the time element was such that it was impossible for such detailed reasons to be discovered and elucidated in a petition. Like the doctrine of contra non valentem we find that the principle is not supported by plaintiff’s facts. The evidence is not convincing that plaintiff could not have discovered the information on which he relies had he investigated Treen’s background with more promptness and diligence.

In any event, we do not view plaintiff’s problem as one of prescription but rather of peremption. In Guillory v. Avoyelles Ry. Co., 104 La. 11, 28 So. 899, the Court discussed the distinction:

“When a statute creates a right of action and stipulates the delay within which that right is to be executed, the delay thus fixed is not, properly speaking, one of prescription, but it is one of peremption. Statutes of prescription simply bar the remedy. Statutes of peremption destroy the cause of action itself. That is to say, after the limit of time expires the cause of action no longer exists; it is lost. Taylor v. Coal Co., 94 N.C. 525; Cooper v. Lyons, 9 Lea, 596.”

In the instant case plaintiff’s cause of action under R.S. 18:396 was lost after the passage of five days because of per-emption and the exceptions to the law of prescription do not apply to his case.

The more troublesome argument advanced by plaintiff against dismissing his suit because it was not filed timely is that the five day limitation on objections is unconstitutional. Art. 6, § 4 of the Constitution of 1974 clothes the Home Rule Charter of Jefferson Parish with continued authority and viability. Section 2.03A. of that Charter provides that ‘‘All Council members shall reside in and be qualified voters of the Parish, and those elected from Council Districts shall reside in and be qualified voters of their respective Districts.” There are no provisions in the Charter requiring that challenges to one’s candidacy on the basis of these residential requirements must be brought within a certain time or otherwise lost. Thus, plaintiff asserts that R.S. 18:396 (Act 1 of 1975) is an unconstitutional infringement by the legislature upon the Jefferson Parish Home Rule Charter in violation of Art. 6, § 6 of the Constitution which prohibits the legislature from changing or affecting the structure and organization of the Jefferson Parish government. Plaintiff argues that if the statute prevents him from bringing to the Court’s attention defendant’s lack of residence qualifications, defendant, who was otherwise allegedly unqualified, became qualified because of the passage of five days and that the legislature cannot do indirectly by R.S. 18:396 that which it is prohibited from doing directly.

The answer to plaintiff’s argument is several fold. In the first place the fact that there are residence requirements in the Charter suggests that there must be some method available for challenging the candidacy of one who does not possess these qualifications. The silence of the Charter and the same silence in the Constitution with respect to state offices indicate that it was the intention of the framers of the Constitution to leave the mechanics or the remedy to the legislature. In the second place, to suppose that the framers of the Constitution intended otherwise would lead to the absured conclusion that the framers of the Constitution intended that challenges as to qualification of candidates could be made at any time before, on and after election day with consequences adverse to and perhaps disruptive of a free and orderly election process. Finally, in the absence of a specific legislative act providing the courts with jurisdiction over these disputes it is certainly arguable that the courts would have no jurisdiction at all. That which the legislature has provided in the way of jurisdiction can certainly be provided under certain conditions and within certain limitations. It is for the courts to operate strictly within the bounds of such limitations under these circumstances.

We have considered the case of O’Keefe v. Burke, 226 La. 1026, 78 So.2d 161, which upon initial examination appears to support plaintiff’s argument that the five day limitation is inconsistent with the Constitution. In the first place, the cited case can be distinguished on its facts as discussed by this Court in Labouisse v. Koppel, 229 So.2d 161 (La.App. 4th Cit. 1969), writ refused, 254 La. 1165, 229 So.2d 350. In the second place the cited case was concerned with the failure of a candidate to file a protest with a Committee within five days following the last day for qualification, vis-a-vis, the right of the court later to consider a suit contesting such qualifications whereas the instant case is concerned with a statutory limitation on the time within which the suit itself may be brought before the court.

Having concluded that plaintiff’s suit was not timely filed, we do not reach the merits of his case attacking the candidacy of Treen on the basis of his alleged lack of residence in Jefferson Parish. Because he did not bring his suit within five days after August 7, 1975, as required by the statute upon which he relies plaintiff was precluded from bringing his suit.

Accordingly, the judgment of the trial court is reversed and set aside and there is judgment in favor of defendants - and against plaintiff dismissing his suit at his cost.

Reversed and rendered.

BOUTALL and LEMMON, JJ„ concur with written reasons.

BOUTALL, Judge

(concurring).

I concur. I agree that the present suit must have been brought within 5 days to be sustained, time being of the essence to ensure orderly election. However I believe that this is a matter of prescription and not peremption. If this is peremption, an unqualified candidate is forever safe from attack. In such event, the rationale of the case of O’Keefe v. Burke, 226 La. 1026, 78 So.2d 161 would be applicable, bearing in mind the change in the laws and constitution since then.

The present statute, Act 1 of 1975, provides both for objections to candidacy (RS 18:396) and election contests (RS 18:420). Although § 396 states the time of objection to candidacy to be 5 days, it further recites at the end of that section:

“The jurisdiction of the court, the time within which suit must be filed, the delay for answering, the method of procedure and trial, the time within which a decision shall be rendered by the lower court, the time within which an appeal may be taken and prosecuted, and the time within which the appellate court must render a decision shall, as far as practicable, be as is hereinafter provided for contesting elections.”

It would thus appear that the contestant would still have a legal remedy under § 420.

LEMMON, Judge

(concurring).

As to the applicability of “contra non valentem”, the relevant event which gives rise to a cause of action for challenging the qualifications of a candidate is the filing of qualifying papers during the prescribed period, an event of which the public has general knowledge. While perhaps at the time of this relevent event Heaslip lacked knowledge of the facts surrounding Treen’s lack of qualifications, these facts were discoverable. The overall legislative scheme of allowing five days after the close of the qualifying period within which to investigate a candidate’s qualifications and to challenge his candidacy is not unreasonable.

As to the unconstitutionality of the five-day limitation on objections to candidacy, I agree with Heaslip’s contention that an unqualified person (such as a nine-year old candidate for senator or a non-lawyer for judge) cannot become qualified by the passage of five days. Nevertheless, although R.S. 18:396 gives opposing candidates and other qualified electors this limited period for challenges immediately after the qualifying period, the passage of the challenge period does not result in the unqualified candidate’s election, nor does the passage bar other methods of preventing the candidate from ultimately assuming office. See dissenting opinion in O’Keefe v. Burke, supra.

The determination of lack of qualifications often involves close and vigorously contested questions of fact. The legislature has apparently decided that litigation should be limited in point of time, rather than freely allowed at any time where one party or the other can take advantage of the publicity surrounding the litigation or can disrupt the normal election process.