text:
    INDEPENDENT MORTGAGE BROKERS, INC. v. WEST ESPLANADE CORPORATION.
    No. 8908.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Edward C. Alker, Metairie, for defendant-appellant.
    Roy, Kiesel, Patterson, Hudson & Abadie, Michael A. Patterson, Baton Rouge, for . plaintiff-appellee.
    Before STOULIG, BEER and GAUDIN, JJ.
   BEER, Judge.

This appeal results from judgment enforcing a note issued to plaintiff covering brokerage fee allegedly earned by its having secured a loan commitment in defendant’s behalf. Subsequent to delivery of the note, thirty-seven requirements for closing the loan were imposed by the committed lender but never met by defendant, who contends that there was an absence or failure of consideration for the note since the loan was never closed. Alternatively, appellant contends that there was a promise to pay the note from a specific fund (the mortgage loan proceeds) which never came into being, thus nullifying the obligation.

The trial court, in its well reasoned written opinion, stated, in part:

“It is the law of Louisiana that all negotiable instruments are deemed prima facie to have been issued for valid consideration and such presumption operates until overcome by other valid evidence. Cleveland Construction Corporation v. Thibodaux, 307 So.2d 875 (sic, 785), (La.App. 3rd Cir., 1975).
“Defendant, West Esplanade Corporation, has failed to overcome this presumption. To the contrary, the record clearly shows that the note was given for valid consideration, namely, the loan commitment from Percy Wilson Mortgage and Finance Corporation.
“The defendant’s claim of failure of consideration is without merit. For there to have been a failure of consideration, the defendant would be required to show some failure on the part of the payee (Independent Mortgage Brokers, Inc.) to perform an obligation for which the instrument was given. Plaetou (sic) v. Sobel, 185 So.2d 95 (La.App. 4th Cir., 1966). “The defendant has shown no such failure. The testimony and exhibits show that once the defendant accepted the commitment, it was the defendant’s sole responsibility to meet the requirements of the commitment to close the loan. Independent Mortgage Brokers, Inc. had no responsibility to insure that the loan would actually close.”

In our view, the factual findings of the able trial judge are supported by the record which contains clear evidence that the note was issued for valid consideration, and that it was, thereafter, the responsibility of appellant to meet the loan closing requirements.

On the question of agreement to pay from a specific fund, the trial court observed:

“Defendant also urged that the two letters from Independent Mortgage Brokers, Inc. to West Esplanade Corporation, dated May 8, 1975 (P-4, P-5), limited the fund from which the note was to be satisfied to the loan proceeds. The Court does ; not read these letters to so limit the note.
‘It must be stipulated in the wording of the agreement, or competent evidence given, that payment is confined or limited “only” to a particular fund; or that payment is to be made “only if” a particular fund is created, before an agreement to pay is found conditional on the existence of such a fund.’ Muhoberac, et al v. Saloon, Inc., 210 So.2d 572, 574 (La.App. 4th Cir. 1968). (Application denied, 252 La. 844, 214 So.2d 164.)
‘Once a debt is established, the services rendered or the consideration given to the debtor, the consent of the creditor to permit payment from a certain fund, created or to be created, is simply a gratuity on the part of the creditor which he can cancel upon reasonable notice; otherwise, the debt due him could, in effect, be cancelled by the failure ad infinitum of the mentioned fund to come in existence.’ Supra, at 575.”

We agree that the May 8, 1975 letter contains no language limiting the source of payment of the note to the loan proceeds and the record supports the conclusion that plaintiff-appellee’s willingness to be paid from the loan proceeds was simply an accommodation.

Accordingly, we affirm, at appellant’s cost.

AFFIRMED.


source: Caselaw Access Project

author: ELLIS, Judge.

license: Public Domain

text:
    T. D. SPILLER, Jr. v. Peggy Mattingly HERPEL, Individually and as Testamentary Executrix of the Succession of Ama Spiller Mattingly.
    No. 11637.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Writ Refused May 12, 1978.

      See also, La.App., 358 So.2d 960.
    Davis A. Gueymard and James H. Hynes, Baton Rouge, for plaintiff and appellant.
    Donald L. Peltier, Peltier & Peltier, Thi-bodaux, for defendant and appellee.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge.

On November 18, 1963, Mrs. Ama Spiller Mattingly executed a statutory will containing the following bequest:

“I give and bequeath to my nephew, T. D. Spiller, Jr., the sum of Ten Thousand ($10,000.00) Dollars and also all of my interest in the land and residence located at 403 Ridgefield Road, Thibodaux, Louisiana, . . . .”

On March 22, 1968, Mrs. Mattingly was interdicted by judgment of the 17th Judicial District Court, and William W. Herpel, husband of her only daughter, Peggy Mattingly Herpel, was qualified as her curator.

Prior to her interdiction and for some time thereafter, Mrs. Mattingly resided in her home, which was the property bequeathed to Mr. Spiller. After it became necessary to place Mrs. Mattingly in a nursing home, the property on Ridgefield Road stood vacant for most of the time, although it was rented for several months.

Because the property was deteriorating, Mr. and Mrs. Herpel, who were unaware of the bequest to Mr. Spiller, decided to sell it. Court authorization was properly obtained to sell the house for $32,500.00 cash, and the sale was passed on November 2, 1971. It is undisputed that the sale of the property was not necessary for the support and maintenance of Mrs. Mattingly, whose income was more than sufficient for her needs. The funds received were deposited to Mrs. Mattingly’s account, and were subsequently loaned to Mattingly Tractor & Implement Co., Inc., a family corporation, in which Mrs. Mattingly owned more than a 60 per cent interest. Mr. Herpel was the general manager of the corporation. As of Mrs. Mattingly’s death these funds had not been repaid, and stood as credits in her name on the books of the corporation.

Mrs. Mattingly died on April 9, 1975, and her will of November 18, 1963, was admitted to probate. Under the terms thereof, Mrs. Herpel was named as executrix of the estate. Thereafter, plaintiff herein made demand on Mrs. Herpel, as executrix for the delivery of the legacy of the immovable property bequeathed to him. The executrix did not accede to the demand, on the ground that the bequest had lapsed or been revoked because of the sale of the property by the curator.

Plaintiff then filed the suit against Mrs. Herpel, demanding the delivery of the legacy, or the value thereof. Alternatively, plaintiff has alleged a cause of action for unjust enrichment, under Articles 21, 1965, 2292 and 2294 of the Civil Code. After trial on the merits, judgment was rendered dismissing plaintiff’s suit, and he has appealed to this court.

The trial judge correctly decided the issues presented to him in a scholarly written opinion, which we now adopt as our own:

“It has been stipulated by the parties that the $10,000.00 particular legacy originally claimed in this litigation has been delivered in accordance with law and the only matter remaining to be resolved by this Court is the disposition of the particular legacy involving the premises located on Ridgefield Road in Thibodaux, Louisiana.

“It should be noted at the outset in this opinion that the plaintiff in his brief acknowledges the following: (1) ‘At the outset it must be understood that there is no way the executrix can be compelled to deliver the particular legacy of the residence for the very simple reason that she does not have it to deliver.’ (2) ‘Obviously, the validity of the sale to Mr. Gros has not and cannot be attacked in this proceeding. Mr. Gros is not a party to this proceeding and the validity of the judgment authorizing the sale would not, in any event, be subject to collateral attack.’ (3) ‘The reason why plaintiff has not brought a direct action to set aside the sale is also apparent. It is because such an effort would be totally futile in that there is no evidence in this proceeding nor is there any indication in the record of the interdiction to suggest that the formalities of law had not been complied with,’ and (4) ‘Our examination of the record in the interdiction proceeding leads us to conclude that all formalities of law were, in fact, complied with. For these reasons we readily agree and respectfully submit that the property itself is totally beyond the reach of plaintiff.’

“The basic Louisiana law dealing with the validity of the bequest of the premises in this case may be found in Section 6 of Chapter 6 of Title II of the Louisiana Revised Civil Code which said section is entitled ‘Of the Revocation of Testaments and of Their Caducity’ which contains Articles 1690 through 1711. The caducity or inheritable quality of a donation mortis causa can be destroyed or rendered ineffective in two ways. The first is by revocation by the testator and the second is by lapse of the legacy. Revocation by the act of the testator can be express or tacit, or general or particular. R. C. C. Article 1691. The testator by his own act can revoke a testament by (1) another testament (R. C. C. Article 1692) or (2) by the alienation of the thing bequeathed by donation or sale (R. C. C. Article 1695). An inheritance lapses by (1) the prior death of an instituted heir or the legatee (R. C. C. Article 1697), (2) where the thing bequeathed had totally perished during the lifetime of the testator (R. C. C. Article 1700), (3) when the instituted heir or the legatee rejects it or is incapable of receiving it (R. C. C. Article 1703), (4) by the subsequent birth of a legitimate child to the testator or by the subsequent adoption or legitimation of a child by the testator, unless the testator has made testamentary provisions to the contrary or has made testamentary provisions for such child (R. C. C. Article 1705), or (5) the testamentary disposition is revoked on the grounds established by law (R. C. C. Article 1710). As pointed out by the very thorough and professional briefs of the attorneys for the parties to this litigation there is no Louisiana jurisprudence directly in point to guide the Court in this case. Accordingly, we must resort to collateral authority and analogy to reach a conclusion.

“The commentators on the French Civil Code and the leading authority on Succession Law in the State of Louisiana are of the opinion that a revocation of a testamentary bequest can only be made by the act of the testator himself personally, either express or tacit, and cannot be made by a third person or someone acting on his behalf. See Aubry and Rau, Civil Law Translations, Volume 3, Section 725; Planiol, Civil Law Treatise, Volume 3, Part 2, No. 2843; 22 Demolombe, Cours de Code Napoleon, des donations entre vifs et des testaments (1876) No. 238; and Oppenheim, Successions and Donations, 10 Louisiana Civil Law Treatise, Section 141 at page 264 (1973). Since the sale of the premises in question was accomplished by the curator of the testatrix, and since the testatrix did not personally give her consent or approval to the sale at the time of its consummation, it must be the holding of this Court in accordance with the above cited authorities that this action did not constitute a revocation as contemplated by the pertinent articles of the Louisiana Civil Code.

“The next issue to determine is whether or not the bequest of the testatrix lapsed pursuant to law. Article 1700 of the Civil Code provides that ‘The legacy falls if the thing bequeathed has totally perished during the lifetime of the testator.’ Here again we find no Louisiana jurisprudence to guide us on the issue of whether or not the sale of an interdict’s property by her curator is equivalent to a loss of the thing bequeathed under the provisions of Article 1700. As is admitted in the brief of the plaintiff, the residence is gone forever and there is no legal means to recover it. It would appear that the leading authority in Louisiana and the majority of the French commentators support the view that the alienation of the thing bequeathed by the curator of an interdict observing all legal formalities and in due course of his administration caused the legacy to lapse, so that the legatee can claim neither the value thereof nor the price still due. In Oppenheim, Successions and Donations, 10 Louisiana Civil Law Treatise, Section 141 at page 264 appears the following wherein the author quotes with approval from 8 Planiol, Civil Law Treatise, No. 2837 (LA. State Law Inst. Transl. 1959) as follows:

‘In discussing tacit revocation by alienation of bequeathed property, as provided in Article 1083 of the Code Napoleon, Planiol states:
‘Tacit revocation also results from alienation of the object of the bequest (Art. 1038). Every alienation implies revocation, even if it is not final, for instance if it is made with the right of repurchase (remere). Although the testator-seller may use his option and own the object at the time of his death, the bequest still remains revoked. The effect is the same as if the property had returned into the testator’s possession because of annulment of the alienation. Art. 1038 provides for this case expressly, so as to decide the controversies which existed in the old law. All this means that the simple intention to alienate brings about the revocation. Thereafter the ultimate fate -of the alienation means little.
‘It follows that: (a) if the alienation is made with a suspensive condition, the bequest is revoked only when the condition materializes; (b) no revocation results if the alienation was not voluntary (for instance, expropriation for public purpose; or sale by the tutor of a testator who has become an interdict). But the legatee still does not gain anything, since the bequest lapsed. (Emphasis added.)

“In Aubry and Rau, Civil Law Translations, Volume 3, Section 725 at page 507 appears the following:

‘Finally, the alienation of the things bequeathed gives rise to a presumption of revocation of legacies only when the alienation is the voluntary act of the testator. The presumption of revocation attaches neither to a sale at the instance of creditors nor to the sale by licitation provoked against the testator by his co-owners. Therefore, if the testator again becomes the owner of the things bequeathed under any other title, the legacy should be executed; otherwise, the legacy will be considered as having lapsed. This is what would occur when a thing bequeathed by an insane person by a testament executed prior to his interdiction has been subsequently alienated by his tutor during his interdiction.’

“In Aubry and Rau, Civil Law Translations, Volume 3, Section 726 at page 512 appears the following:

‘Likewise, the alienation of the thing bequeathed during the life of the testator without his participation in the matter and for legitimate purposes and according to law, should be assimilated to the loss thereof. Thus it is that, where the testator has been interdicted after the confection of the testament, the alienation of the things bequeathed made by his tutor observing all legal formalities and in due course of his administration, causes the legacy to lapse, so that the legatee can claim neither the value thereof nor the price still due. So it is also, that the expropriation for public purposes of the immovable bequeathed during the life of the testator, causes the lapse of the legacy, the legatee having no right to the indemnity paid for the expropriation.’ (Emphasis added.)

“It would also appear from the brief of the plaintiff that Demolombe concurs with the above stated view while Troplong holds the contrary opinion. See Demolombe, XXII, 339; Troplong, IV, 2096.

“The record of the interdiction proceedings shows that all of the formalities of law were complied with and this is admitted in the brief of the plaintiff. It is well settled in our law that a curator may sell the property of an interdict “for any purpose.” See Articles 4301 and 4554 of the R.C.C.P. It is also well recognized in our law that a tutor or curator acts for and on behalf of the person for whom he is appointed. See R. C. C. Articles 31, 32, 337, 389, 404, and 415. An interdict as a matter of law is incapable of acting and of administering his estate and the curator acts and administers it for him and stands in his shoes. In the case of Converse v. Dicks, 179 La. 339, 154 So. 17 (1934) the Louisiana Supreme Court held that where a plaintiff obtained a money judgment against a defendant interdict that the interdict’s curator could not be a garnishee under the judgment because the curator was not a third person as required by law. In reaching this conclusion and reversing the trial court and setting aside the garnishment proceedings the Louisiana Supreme Court noted as follows:

‘An interdict, in law, is incapable of acting and of administering his estate. There is nothing which he is capable of doing legally. His curator acts and administers for him. In all matters pertaining to the possession, keeping, care, administration, and preservation of the interdict’s estate, the curator stands in his place and stead. In such matters, the interdict has no legal existence, except through his curator, in whom ‘he lives, moves and has his being.’ His curator is substituted for him, is the human agency through whom the interdict acts, and the two are legally inseparable. Therefore the curator of the interdict is not a third person, as to the interdict, and hence the exception must be sustained, for it is only third persons to the suit in which the moneyed judgment is rendered who may be garnisheed, and not parties to the suit.’ (Emphasis added.)

“The plaintiff claims that even if it is held that the legacy has lapsed in accordance with law that nevertheless since the money received from the sale of the residence was part of a sum borrowed by the Mattingly Tractor and Implement Co., Inc., for operating capital and is represented by a promissory note which formed part of the testatrix’s estate and has remained due to the estate that under these circumstances he should be entitled to a proportionate amount of the proceeds to compensate him for the amount of the purchase price of the intended legacy. Once again there appears to be no Louisiana jurisprudence on the issue of whether or not a legatee would be entitled to money remaining in the testator’s estate from a lapsed legacy. However, there is jurisprudence in Louisiana dealing with that question as applied to revoked legacies. In the Succession of Batchelor, 48 La Ann 278, 19 So. 283 (1896), the testator bequeathed a promissory note which was later collected by him a short time before his death. The Louisiana Supreme Court in this case held that the legacy was the note and not a sum of money and that accordingly the legatee was not entitled to the money remaining from the note. In reaching this conclusion the Court at page 284 of the Southern Reporter made the following pertinent observations:

‘A thing is regarded as having perished, not only when it has been destroyed, but also when it has been changed into another thing or substance.
‘The requirement in regards to intention to substitute the money collected for the note also applies as in sales. In each— the sale, or the collection of the note — the thing bequeathed has undergone an absolute change, insofar as relates to title and the character of the property owned. The principle has been illustrated as follows: If the testator has bequeathed wool, with which he subsequently made cloth, the legacy is extinguished; and it is the same if, having bequeathed boards, he used them in making an armoir, or in the construction of a ship.’

“See also Succession of Locarno, 206 La. 284 [384], 19 So.2d 175 (1944) (House sold and purchase price partially used by testatrix) and Succession of McBurney, 162 La. 758, 111 So. 86 (1927) (Residual legacy of money in bank partially withdrawn and invested in bonds). Since it has been held that a particular legatee is not entitled to the proceeds of the sale of a revoked legacy, it would seem therefore that by analogy the same rule must also be applicable in the situation of a lapsed legacy. This would be especially true in the instant case where the original premises were converted into cash which was thereafter converted into a promissory note.

“In this case the alienation of the thing bequeathed was done in accordance with the provisions and formalities required by law and no fraud has been alleged or proven. The evidence in the instant case shows that Mr. and Mrs. Herpel were not aware of the legacies made to Mr. Spiller by Mrs. Mattingly until after her death. In his brief the plaintiff concedes that Mr. Herpel complied with all of the formalities required by law in the sale of the particular bequest, and the evidence shows that Mr. Herpel felt that he was acting in a prudent manner and in the best interest of Mrs. Mattingly when he recommended the sale of the property which was subsequently approved by the Court.

“It is well settled in the law that in the absence of forced heirs, a lapsed legacy passes to the universal legatee. Willis v. McKeithen, 184 So.2d 748 (La.App. 2d Cir, 1966); Succession of Abraham, 136 So.2d 471 (La.App. 3rd Cir, 1962); R. C. C. Arts. 1605, 1606, 1609, 1625, and 1697; and Oppenheim, Successions and Donations, 10 Louisiana Civil Law Treatise, Section 151 at page 269. Since Mrs. Herpel is a forced heir and the universal legatee it would appear under the law that she is entitled to the benefit of the lapse of the legacy. To hold otherwise would be to create a distinction in the law of the State of Louisiana that has not heretofore existed and would further place an intolerable burden on the curators of interdicts. If such were the law curators would in effect be prevented from making alienations of an interdict’s property for fear that there may be a legacy for which the proceeds would be accountable pending the death of the interdict and the final disposition of his estate. Such a holding would interject substantial inflexibility on the ability of the curator to manage the interdict’s affairs when the trend of the public policy of this state in this area has been to the contrary.. Accordingly it is the holding of this Court that under the facts and circumstances of this case that the particular legacy of the residence located at 403 Ridgefield Road in Thibodaux, Louisiana made by Mrs. Mattingly to the plaintiff in this case has lapsed and the proceeds of the sale of this legacy devolve to the universal legatee, the defendant herein.

“With reference to the actio de in rem verso claim, counsel for the plaintiff has presented a detailed and thorough analysis of the applicable Louisiana cases, and counsel for the defendant has acknowledged this in his brief. Oil Purchasers, Inc. v. Kuehling, 334 So.2d 420 (La.1976); Edmonston v. A-Second Mortgage Company of Slidell, Inc., 289 So.2d 116 (La.1974); Brignac v. Boisdore, 288 So.2d 31 (La.1974); Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967); Sylvester v. Dupre, 333 So.2d 447 (La.App. 3rd Cir, 1976); Landesman v. Ford Motor Co., 331 So.2d 196 [106] (La.App. 1st Cir, 1976); State ex rel Guste v. Estate of Himbert, 327 So.2d [698] (La.App. 1st Cir, 1976); Cameron Crew Boats, Inc. v. Twin Disc, Inc., 325 So.2d 684 (La.App. 1st Cir, 1976); Cowley v. Logan, 324 So.2d 500 (La.App. 2nd Cir, 1975); V-8 Taxi Cab Service, Inc. v. Hayes, 322 So.2d 442 (La.App. 4th Cir, 1975); United States Fire Ins. Co. v. Lawson, 317 So.2d 217 (La.App. 4th Cir, 1975); Hoover v. Hoover, 313 So.2d 358 (La.App. 4th Cir, 1975); Coleman v. Bossier City, 305 So.2d 444 (La.1974); State Farm Fire and Casualty Co. v. Cities Service Oil Co., 251 So.2d 201 (La.App. 3rd Cir, 1971); Joslyn v. Manship, 238 So.2d 20 (La.App. 1st Cir, 1970); Louviere v. Shell Oil Co., 509 F.2d 278 (5th Cir, 1975); and Brenham v. Southern Pacific Co., 238 [328] F Supp 119 (WD La, 1971). As pointed out there are five prerequisites to the successful suit by actio de in rem verso: (1) there must be an enrichment, (2) there must be an impoverishment, (3) there must be a connection between the enrichment and resulting impoverishment (4) there must be an absence of justification or cause for the enrichment and impoverishment, and finally, (5) the action will only be allowed when there is no other remedy at law. A review of the above cited cases indicates that this type of action has never been applied to anything similar to the situation in the instant case. It is further the opinion of this Court that the plaintiff does not meet the prerequisites required by law for the reasons hereinafter stated.

“There was no enrichment of the defendant and impoverishment of the plaintiff in this case because at the time that the object of the particular legacy was sold, neither the plaintiff nor the defendant had any right, title or interest in said object. A donation mortis causa does not vest in the particular legatee any property right at the time that it is executed by the testator. The title to the bequeathed property remains in the testator until his death and he can do with it as he pleases. Succession of Batchelor, supra. Under the general provisions of Article 940 of the Louisiana Revised Civil Code the title to the property of a deceased is not vested in his heirs until his death at which time title passes immediately and by operation of law. This article incorporates the maxim le mort saisit le vif and means that the legal rights of the testator go to his heirs independently of any act on their part. For an excellent discussion of this legal proposition see Oppenheim, Successions and Donations, 10 Louisiana Civil Law Treatise, Section 51 at pages 126, et seq. However, this general rule is not applicable to particular legacies. R. C. C. Article 940. Under the provisions of Article 1626 of the Louisiana Revised Civil Code ‘the particular legatee can take possession of the thing bequeathed . only from the day the demand of delivery was formed, according to the order herein before established or from the day on which that delivery was voluntarily granted to him.’ It appears clear under the law that particular bequests of cash or specific property to a legatee are legacies under particular title or particular legacies in the contemplation of the law. See Jones v. Mason, 124 So.2d 795 (La.App. 2nd Cir, 1960); Succession of Moore, 196 So. 79 (La.App. Orleans, 1940). It is further clear that pursuant to the provisions of Article 1630 of the Louisiana Revised Civil Code that the “delivery of legacies under a particular title must be demanded of the testamentary executor, who has the seizin of the succession.” Thus it is clear that at the time of the sale of the property in question neither the plaintiff nor the defendant had any right, title or interest in same since Mrs. Mattingly was still alive and accordingly the defendant was not enriched and the plaintiff was not impoverished.

“It would further seem that the requirement of connexity is not present even if we were to assume the enrichment and the impoverishment. The civil law actio de in rem verso is grounded upon the general theory of quasi-contractual obligations founded upon the unjust enrichment. The plaintiff has not established a quasi-contractual obligation between the plaintiff and the defendant. Mrs. Herpel was not the curator of Mrs. Mattingly’s estate and person. As the testamentary executrix of the succession, Mrs. Herpel is not responsible for the handling of the succession until the moment of her mother’s death, at which time the property in question had already been sold pursuant to an order of the Court. Just because the legacy lapsed in accordance with law, does not create a quasi-contractual obligation between the parties to this litigation.

“The plaintiff has failed to show a lack of justification or cause. When Mrs. Mattingly became unable to manage her own affairs she was interdicted in accordance with law. Thereafter when the curator deemed it advisable to sell the particular legacy which is the subject of this suit the application for authority and the judgment of the Court authorizing the sale were provided for by law. Apparently the sale was trans-' acted in accordance with law since it has not been attacked and the plaintiff concedes its validity. After Mrs. Mattingly passed away, her succession was opened, her will was probated and the testamentary executrix was appointed, all in accordance with law and for the reasons above assigned this Court has now ruled that the particular legacy has lapsed as a matter of law and that under the law when a particular legacy lapses it or the proceeds devolve as a matter of law to the forced heirs and/or the universal legatee. For these reasons there is a lawful cause or justification for the result reached in these proceedings.

“Accordingly, it is the holding of this Court that the actio de in rem verso does not lie in favor of the plaintiff and against the defendant in these proceedings.”

The judgment appealed from is, therefore, affirmed, at plaintiff’s cost.

AFFIRMED.


text:
    Ulas M. WILLIAMS v. SOUTHERN BUILDERS, INC. and American Insurance Company.
    No. 11831.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Writ Refused May 5, 1978.

      R. Gray Sexton, Baton Rouge, of counsel, for plaintiff-appellee, Ulas M. Williams.
    James E. Moore, Baton Rouge, of counsel, for defendant-appellant, Southern Builders, Inc., et al.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge.

This suit for workmen’s compensation benefits was brought by Ulas M. Williams against his employer, Southern Builders, Inc., and its insurer, American Insurance Company, alleging that he was permanently and totally disabled as a result of an alleged accident which happened on October 11, 1976. Mr. Williams died on June 3, 1977, and his wife and minor daughter were substituted as parties plaintiff. After trial on the merits, judgment was rendered in favor of plaintiffs for death benefits, medical expenses and burial expenses, and defendants have appealed.

The incident which precipitated this lawsuit is described by the stipulation of the parties as follows:

“6
“On October 11,1976, plaintiff arrived at the jobsite about 6:15 A.M. and appeared in good health making no complaints as to pain, disability or discomfort. He and his co-workers sat, talked and smoked for twenty or thirty minutes.
“7
“Plaintiff was then instructed by his supervisor to go to work and accordingly then stood up and walked toward the ‘water shed’ preparatory to filling the water containers. Plaintiff walked a distance of approximately forty to fifty feet and upon reaching the shed door, walking in a normal fashion and while preparing to open the door, collapsed and fell backwards. He did not trip, nor fall, nor did he strike his head. He merely stopped for a second when reaching the door, then passed to unconsciousness.”

It is not questioned that the above incident was caused by a ruptured aneurysm of the anterior connecting artery of the brain, or that Mr. Williams’ subsequent disability and death resulted therefrom. The main factual question presented to our trial judge was whether Mr. Williams’ disability and death were job related.

The trial judge summarized the medical evidence and resolved the question as follows:

“There was considerable medical testimony submitted by the respective parties bearing on the question of whether Williams’ disability was job related or not. Dr. Thomas Flynn testified at length justifying his belief as to why he thought Williams’ condition was precipitated by his job activities, although admittedly this evaluation remained constant despite a substantial change in the history furnished him concerning the circumstances surrounding the incident. He agreed, as did all of the physicians consulted, that a spontaneous subarachnoid hemorrhage is generally due to a weakness in the arterial system in the nature of a congenital defect. He felt that any minimal elevation in the blood pressure of the subject could initiate a blow out of the artery causing the hemorrhage of the brain. It was, therefore, his opinion that any event, such as the act of rising and walking a moderate distance, would tend to elevate the blood pressure, thereby putting pressure on the weak spot in the artery resulting in a rupture. Dr. Flynn made a point to suggest that Williams’ act of getting up produced a Valsalva effect which causes an immediate rise in a person’s blood pressure counteracting the normal effect of gravity. In conclusion, it was his opinion that whatever event that occurred during work contributed to and precipitated the injury.
“Another medical witness of the plaintiff, Dr. James E. Hand, an internist, testified that he treated Williams at the request of Dr. Flynn for a chemical abnormality in the patient’s blood which caused him to be swollen and edematous. He said that there is a corollary between blood pressure and a ruptured aneurysm. He was also of the opinion that the act of getting up would produce a small rise in the blood pressure. However, he felt that the Valsalva effect would not be initiated by the act of rising, but rather by a straining effort. Dr. Hand shared in the opinion of Dr. Flynn that only a modest amount of exertion resulting in a rise in blood pressure would precipitate a ruptured aneurysm.
“The defendants submitted Dr. Richard Levy, a neurosurgeon, as an expert in the case. His testimony and conclusions were based upon a review of the available medical records in the case as he admitted that he had not examined the patient. He stated that somewhere in point of time the weak spot in the blood vessel will give way and that Williams’ activities had no causal relationship to the rupture of the aneurysm at the base of the brain. Dr. Levy stated unequivocally that the act of rising itself or walking causes no rise in blood pressure. He further stated that the Valsalva effect affects veins and not arteries as is the case with a ruptured aneurysm. Finally, it was his opinion that there is a strong indication that spontaneous ruptures of aneurysms are due to unspecified circumstances and occur ‘randomly’. It was Dr. Levy’s opinion that the activities of Williams immediately prior to his collapse did not precipitate his disability and were not job related.
“Dr. Harris A. Lappin, a cardiologist, joined Dr. Levy in his opinion as to the effect of the act of rising upon the blood pressure. He said that while there may be a measurable increase in the blood pressure, the elevation is not significant. Consequently, he was of the opinion that the mere act of rising and walking unhurriedly a short distance is a random activity which in itself would not precipitate the rupture of an aneurysm.
“Counsel entered into a stipulation to the effect that should Dr. John Clifford, a neurosurgeon associated in practice with Dr. Flynn, be called to testify for the plaintiff, his opinion would be essentially the same as Dr. Flynn, more particularly as it concerns the issue of ‘causation’. Further, it is stipulated that if Dr. Edward S. Connelly, a neurosurgeon practicing in Orleans Parish, be called to testify for the defendants, his testimony would be in accord with that of Dr. Levy insofar as it concerns the issue of ‘causation’. “With this wealth of conflicting medical testimony, the Court finds it more reasonable to adopt the opinion of Dr. Levy that the modest amount of exertion engaged in by Williams prior to his collapse was not sufficient to be a precipitating factor in the rupture of his aneurysm, but that the rupture was merely a random event which spontaneously occurred without a known cause. This is the same logic which applied to the instance where part of an iceberg breaks off at sea. More often than not, it is due to the wages of time and ever constant wave action with no specific event influencing the ultimate separation: The Court, in arriving at this determination, is mindful of the presumption accorded the opinion of the treating physician.”

In spite of his factual conclusion that Mr. Williams’ disability and death were not job related, the trial judge then concluded, after an exhaustive review of the jurisprudence, that “the only circumstance required for recovery of benefits is that the condition causing a disability, death or complications leading to death originate on the job during working hours or in close proximity to working hours where there has been no intervening cause initiating the disability or death.” This is not a correct statement of the law.

In Romero v. Otis Intern., 343 So.2d 405 (La.App.3rd Cir. 1977), the court said:

. . An accident may be said to have occurred if a diseased organ or part of the body gives way suddenly while the employee is discharging his usual and customary duties, provided that there was a causal relationship between the sudden giving way of that part of his body, his employment and his resulting disability.”

In Lucas v. Ins. Co. of North America, 342 So.2d 591 (La.1977), we found the following language:

“A claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.”

In view of the factual finding by the trial judge that there was no causal relationship between plaintiff’s employment and his subsequent disability and death, we conclude that the burden of proving the causal connection between the accident, the employment and the disability, imposed by the Romero and Lucas cases, supra, has not been met.

There being no such causal connection, plaintiffs are not entitled to workmen’s compensation benefits.

The judgment appealed from is therefore reversed and set aside, and there will be judgment in favor of defendants, dismissing plaintiffs’ suit at their cost.

REVERSED AND RENDERED.


author: LANDRY, Judge.

text:
    Erline Wright CREARY v. Ansel Lloyd CREARY.
    No. 11838.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Joseph A. Perrault, Jr., Baton Rouge, for plaintiff-appellant Erline Wright Creary.
    Etta Kay Hearn, Baton Rouge, for defendant-appellee Ansel Lloyd Creary.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

This is a custody action in which Erline Wright Creary (Appellant) appeals from judgment awarding permanent care, custody and control of her four year old daughter to Appellant’s former husband, who is the child’s father. We affirm.

On January 21,1977, Appellee obtained a final divorce from Appellant on grounds of adultery. In the divorce action, Appellant was granted custody and control of the minor Monica Creary, despite the fact that Appellant was then admittedly living in open adultery and the child was residing with Appellant and her paramour. Although visitation rights were specified in the custody award, Appellee received no cooperation from Appellant concerning visitation and frequent disputes arose concerning the husband’s visitation privileges.

Following the divorce and award of custody to her, Appellant allowed her paramour to occupy her home in which Appellant lived with her daughter. This arrangement continued until sometime in February, 1977, when the paramour moved out of Appellant’s home but continued to see Appellant. In March, 1977, Appellee instituted a rule for custody and a rule for contempt against Appellant because of Appellant’s consistent refusal to honor court awarded visitation privileges. Pursuant to a hearing held on this rule, custody of the child was awarded to the father.

At the time of the divorce, the child was enrolled in a day school in which she received excellent care. Following the divorce, the father began dating an employee of the school. The record shows that Appellant went to the school, raised a scene, gave orders that the party whom her ex-husband was dating was to have no contact with Appellant’s child. Appellant’s conduct was such that the owner of the school requested Appellant to take the child elsewhere. The head of the school testified that on occasions when the father brought the child to school, he appeared to be a most caring parent and was genuinely concerned for the welfare of the child. The trial court found that the best interest of the child required a change in custody.

Appellant’s prime argument is to invoke the double burden rule. In so doing, Appellant notes that there was no change in the child’s circumstances between the award of custody to her and the change to the father. Therefore, it is contended, she should retain custody.

In a child custody case, the paramount concern of the court is the welfare of the child or children concerned. This consideration surpasses all other aspects of such cases. Bushnell v. Bushnell, 348 So.2d 1315 (La.App. 3d Cir. 1977); Bourque v. Leger, 322 So.2d 784 (La.App. 3d Cir. 1975); Meyers v. Meyers, 324 So.2d 562 (La.App. 1st Cir. 1975).

A trial court is vested with considerable discretion in making an award of child custody and its determination in such a matter will not be disturbed on appeal except on a showing of manifest error and abuse of such discretion. Stevens v. Stevens, 340 So.2d 584 (La.App. 1st Cir. 1976); Meyers v. Meyers, above.

We find no abuse of the trial court’s discretion in this instance.

The judgment is affirmed at Appellant’s cost.

Affirmed.


author: SARTAIN, Judge.

text:
    The Succession of Ida Accardo DIMATTIA, Plaintiff-Appellee, v. Joseph S. BONFANTI and Virginia D. Cline, Defendants-Appellants.
    No. 11844.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.

      Jack N. Rogers, Baton Rouge, for plaintiff-appellee The Succession of Ida Accardo Dimattia.
    Chapman L. Sanford, Baton Rouge, for defendants-appellants Joseph S. Bonfanti and Virginia D. Cline.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

The representative of the succession of Ida Accardo Dimattia brought this action against Joseph S. Bonfanti and Virginia D. Cline, alleging that they had wrongfully obtained certain funds which had belonged to Ida Accardo Dimattia. The petition prayed for the return of these funds to the succession. After trial, judgment was rendered dismissing the action against Joseph S. Bonfanti and awarding judgment against Virginia D. Cline for $14,702.78. Mrs. Cline appealed. The succession representative did not appeal nor answer the appeal. Therefore the judgment dismissing Bonfan-ti is not before us.

In reaching his decision the trial judge classified this proceeding as one of collation. This classification has given rise to two procedural objections to the judgment on the part of appellant. He asserts that the trial judge erred in granting recovery based upon collation when the plaintiff never prayed for collation. Furthermore,-he argues that a succession representative has no right of action to enforce collation. On the other hand, appellee asserts that the raising of these objections serves only to cloud the issues. We are somewhat in agreement with appellee, since we find that the classification of the action as one of collation was unnecessary to a decision under the factual findings of the trial judge. ■ We therefore need not address appellant’s procedural arguments.

The petition of the plaintiff is clearly based on the allegations that property which belonged to decedent is in the hands of the defendants and that plaintiff desires its return. Clearly such an action is sustainable without regard to the rules of collation. Curry v. Caillier, 37 So.2d 863 (La.App. 1st Cir. 1948).

By way of background information, it should be noted that following her husband’s death decedent became dependent on her children. For approximately a year prior to her death she resided in a nursing home and for three years before that with her daughter, Mrs. Cline, one of the defendants herein. Decedent could neither read nor write (letters nor figures) and signed all instruments presented to her with an “X”. Otherwise, she was rather alert.

When this matter was tried on the merits, it was shown that Mrs. Cline was mentally incapable of testifying. However, her son, Joseph F. Bonfanti, did testify. He held his mother’s power of attorney and for a number of years prepared her tax returns. In general he was familiar with her financial affairs although he could not identify the source of some of her cash assets. Mr. Bonfanti had no knowledge of the transactions conducted by his mother on behalf of his grandmother.

The record clearly establishes that Mrs. Cline alone conducted her mother’s affairs. All of the numerous accounts of the latter were in their joint names. Counsel for appellant argues that because of the conceded alertness of decedent it is just as reasonable to assume that the two comin-gled their funds for years by mutual consent as it is to infer that the financial transactions complained of were the result of deliberate conversion by Mrs. Cline; and, to hold that Mrs. Cline must now account for these funds is to require that she prove a negative.

We are satisfied that on the accounts which listed both decedent and Mrs. Cline, the latter was for convenience only. Mrs. Cline had her own accounts and continued to maintain them in singular fashion. The trial judge found that the joint accounts were the separate property of decedent. In this determination we concur.

Under the circumstances shown above it is clear to us that an accounting is owed to the succession of decedent by Mrs. Cline. Having undertaken the management of her mother’s affairs which included numerous withdrawals and redeposits of considerable sums of money, she assumed a fiduciary duty as her mother’s agent. Succ. of Mayeux, 339 So.2d 1236, 1245. (La.App. 3rd Cir. 1976) writ refused 341 So.2d 1129 (La.1977).

The question of proof is factual once the preliminary legal question of burden of proof is resolved. On this question the trial court stated:

“At the close of trial the court placed upon defendant the burden of accounting for the withdrawal of funds by Mrs. Cline from decedent’s accounts. The burden was so placed on defendant because plaintiffs were able to prove that defendants had obtained possession of certain funds as a result of the withdrawals from various accounts belonging to decedent.”

We agree with the trial judge that the burden of proof should be shifted to the defendant once it was shown that the funds in dispute were those of the decedent.

All of the other arguments presented by appellant are factual. We reject these arguments, finding that the trial judge’s factual findings are fully supported by the record. We therefore adopt his findings of fact.

“The court will now proceed to examine the merits of plaintiff’s claim concerning the wrongful appropriation of funds from their mother by the defendant, and/or whether the defendant had satisfactorily accounted for the same.
Notwithstanding the fact that decedent lived with Mrs. Cline for such a long period before her death, the accuser heirs could never be persuaded that their mother would prefer their sister Mrs. Cline over them but rather believed that Mrs. Cline in some way deceived their mother and gained control over all of her finances, ultimately appropriating them to their detriment and to her sole and exclusive use. In support of this conclusion, they rely on the following: the testimony that decedent always had large sums of money in cash, either on her person or hid away somewhere in her house or in Mrs. Cline’s house. The estimates range from a cigar box full of ten and twenty dollar bills to paper sacks, two to four inches thick, containing ten and twenty dollar bills. These funds all disappeared. In fact, the only cash found after the heirs gained control of their mother’s succession was a small purse containing $6.90.
Phillip Dimattia testified concerning these large amounts of cash in his mother’s possession and further testified that Mrs. Cline had told him she put the money in a safety deposit box. Since there is no evidence of a safety deposit box, the accuser heirs believe that the only explanation for the whereabouts of this undetermined sum of money is that their sister stole all of it and placed the same in her own safety deposit box.
The accuser heirs have failed to establish with any certainty either what happened to these large amounts of cash which decedent purportedly had on hand or the amount thereof. Any judgment based on the estimated size of the funds in cigar boxes and paper bags would be entirely speculative. The failure of proof disposes of this contention.
Other transactions during the time Mrs. Cline was in charge of her mother’s financial affairs which the accuser heirs rely on as proof of wrongdoing are as follows:
(1) Two growth bonds of the Baton Rouge Bank and a savings account, total value of $12,202.78, were cashed and a check for the proceeds delivered to Virginia Cline — all on January 7, 1971.
(2) $7,828 was withdrawn from the Home Savings and Loan Association on May 16, 1973.
(3) $4,365.23 was withdrawn from the Capital Building and Loan Association on May 16, 1973.
(4) $2,500 was withdrawn from the City National Bank on May 21, 1973.
(5) $9,447.66 was withdrawn from the City National Bank on October 8, 1973.
In addition to the above, the accuser heirs estimate that during the three years’ control over her mother’s affairs Mrs. Cline received about $27,000 of Mrs. Dimattia’s income in the form of rents.
From the foregoing, the accuser heirs argue that taking her bank accounts, considering her two growth bonds but not the cash on hand which she had stashed around the house, the amounts withdrawn from January 7,1971, through October 8, 1973, amounted to $36,343.67. Coincidentally, Joseph Bonfanti testified that he deposited $36,090.28 for his mother in his credit union account.
The defendant, by way of accounting for the cashing of the growth bonds and the small savings account at the Baton Rouge Bank, contends that Mrs. Cline and decedent commingled their funds and in particular the two $5,000 growth bonds.
These bonds were cashed on January 7, 1971, and one explanation offered by defendant’s counsel is that defendant was legally entitled to make the withdrawal or cash the bonds. No one doubts the validity of this assertion, but the court is confident that the bonds were owned solely by decedent and that the only reason Mrs. Cline’s name appeared thereon was simply for convenience. The repeated inclusion of Mrs. Cline’s name on other savings accounts and bank accounts compels this conclusion.
It is suggested that part of the money could have been included in the gift of approximately $14,000 which decedent gave her children. The evidence shows that decedent did give her children such sums of money but the dates of the gifts, according to the court’s recollection of the evidence, show that they were given before the bonds were cashed.
It is also contended that the money could be the same as that which showed up on January 15, 1973, some two years later, in decedent’s Account No. 29901 at the Capital Building & Loan Association in the sum of $13,758.47. The very fact that such funds would have been withheld from deposit for such a length of time makes the possibility unlikely.
Additionally, an endorsement on the back of the check reveals that it was negotiated to the credit of the Capital Building & Loan Association on January 11, 1971, but there is no evidence that it was placed in decedent’s savings account on that date. The court is not satisfied with the accounting of these funds and will order Mrs. Cline to return them to the Succession.
The court now considers the following withdrawals on May 16, 1973, to-wit, the sum of $7,828.81 from Home Savings & Loan and $4,365.23 from the Capital Building and Loan Association. These withdrawals were referred to in paragraph 5 of plaintiff’s petition in the following manner:
‘1. Withdrawal of $7,828.81 from a savings account in Home Savings Association in the name of Ida Dimattia and a withdrawal of $4,365.23 from a savings account in Capital Savings and Loan in the name of Ida Dimattia and Michael Dimattia on May 16,1973. Defendants had no authority to make these withdrawals and have not explained why the money was held until October 8, 1973, when it was deposited in a new account in Capital Savings under the name of Ida Dimattia and Virginia Cline.’
Inasmuch as the foregoing allegation admits that these funds were redeposited in the Capital Building & Loan Association until taken into possession by the executor of the will of decedent, we can only view the allegation as a complaint that the aforesaid withdrawals were not accounted for from May 16, 1973, until October 8, 1973. No remedy having been sought as to these withdrawals, the court is unable to grant relief therefor.
The withdrawal of $9,447.66 from the City National Bank on October 8, 1973, was accounted for by depositing said sum on the same day in an account at the Capital Building and Loan Association.
This leaves only one remaining sum unaccounted for, namely the sum of $2,500.00 on May 21, 1973 from the City National Bank. This withdrawal has been proved but there is no evidence as to where it was redeposited. The defendant will be required to return this sum to the succession.”

In summary, the trial judge held that Mrs. Cline had failed to account for the proceeds from the growth bonds of Baton Rouge Bank ($12,202.78) and the May 21, 1973, withdrawal from the City National Bank ($2500.00) and rendered judgment against her in the sum of $14,702.78. We find no manifest error in this determination.

For the above reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


text:
    Marion L. MOORE, Plaintiff-Appellant, v. SUN OIL COMPANY, Defendant-Appellee.
    No. 11847.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Grady C. Weeks, Authement & Weeks, Houma, for plaintiff-appellant.
    Patrick Caffery, Caffery, Duhe, Oubre & Gibbens, New Iberia, for 3rd party plaintiff.
    James E. Diaz, Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, for TBW Offshore Welders, Inc. and Highlands Insurance Co.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

Plaintiff, Marion L. Moore, filed this tort suit against defendant, Sun Oil Company, on January 3, 1975, alleging that he had been injured by the negligence of defendant on September 16, 1974. On November 19, 1975, he amended his petition to add Joseph V. Crochet, Howard Landry, and David P. Adams, Jr., as defendants. He further amended his petition on December 22, 1975, to add as defendants Royal Globe Insurance, Harbor Insurance Co. and Highlands Insurance Co. Joseph V. Crochet, Howard Landry, David P. Adams, Jr., Royal-Globe Insurance Co. and Harbor Insurance Co. filed exceptions of prescription. The trial judge granted the exceptions as to these defendants. Plaintiff appealed.

All defendants except Sun Oil were joined over one year after the accident. Therefore unless prescription has been suspended or interrupted the actions as to them were properly dismissed. C.C. Art. 3536. Plaintiff argues that the filing of the action against Sun Oil interrupted prescription as to the other defendants because they are liable in solido to plaintiff. C.C. Art. 2097; R.S. 9:5801. Such an argument presupposes that Sun Oil will be held liable, since solidary liability requires a finding of liability. At this point in the proceedings we need only determine whether as a matter of law the other defendants cannot be solidarily liable with Sun Oil. Even if the exceptions are overruled at this point, they may be reasserted later if Sun Oil is found to be not liable.

The exceptions of Crochet, Landry and Adams were properly maintained. An employee and his vicariously liable employer are not solidarily liable for damages caused by the torts of the employee. Little v. State Farm Mutual Automobile Insurance Co., 177 So.2d 784 (La.App. 1st Cir. 1965). The decision in Wooten v. Wimberly, 272 So.2d 303 (La.1972), involving the vicarious liability of a father for his child’s torts, is in accord. Plaintiff argues that this jurisprudence is inapposite because he has alleged independent negligence on the part of Sun Oil. Defendants, on the other hand, assert that Sun Oil, as a corporation, can never be independently negligent since it can only act through its agents and employees. We need not decide whether or not a corporation can be guilty of independent negligence, however. We find that plaintiff’s petitions must be read as alleging only vicarious liability on the part of Sun Oil.

In paragraph C of his first amended petition, which is to be substituted for paragraph 3 of his original petition, plaintiff alleges:

“Sun Oil Company owed unto plaintiff the duty to provide him with a safe place within which to work, safe equipment with which to work, a duty not to injure him, to conduct proper and adequate safety procedures to insure the safety and well being of the plaintiff.
“The above and foregoing duties were delegated by defendant, Sun Oil Company, to David P. Adams, Jr., Howard Landry and Joseph V. Crochet.”

If Sun Oil had delegated its duties, the breach of which caused plaintiff’s injuries, to its employees, we do not believe Sun Oil can be independently negligent. Plaintiff has not alleged that Sun Oil was negligent in its selection of employees to whom these duties were delegated. We therefore agree with the trial judge that plaintiff’s action against Adams, Landry and Crochet has prescribed.

We next address ourselves to the issue of prescription as to Royal-Globe and Harbor. In plaintiff’s second amended petition he states:

“Plaintiff alleges that the defendants, Royal Globe Insurance, Harbour Insurance Company, and Highlands Insurance Company, respectively, have and had in full force and effect on the date of the accident herein mentioned, policies of insurance covering Sun Oil Company, and/or TBW Offshore Welders, Inc., and/or Joseph V. Crochet, Howard Landry and David P. Adams, Jr., respectively, against such losses, damages and injuries as the subject matter herein; and said policies of insurance provide coverage for the particular accident involved herein, by virtue of said contracts of insurance, said insurance companies are liable unto petitioner for all damages and injuries sustained and claimed herein under the laws of this state and petitioner has a direct cause of action against said insurers.”

By this statement plaintiff has alleged that Royal-Globe and Harbor are insurers of Sun Oil. He has also alleged that the policies in question cover the particular accident here involved. If the allegations of plaintiff’s petitions are accepted as true, Royal-Globe and Harbor are solidarily liable with Sun Oil for plaintiff’s injuries. Hidalgo v. Dupuy, 122 So.2d 639 (La.App. 1st Cir. 1960).

Evidence can, of course, be adduced to support a plea of prescription. C.C.P. Art. 931. Such evidence could have shown that Royal-Globe and/or Harbor were not, in fact, the insurers of Sun Oil or that the policies did not cover the accident in question. The record does not contain a transcript of the evidence or a narrative of the facts. “The jurisprudence is uniform that, where there are factual issues involved and the record on appeal contains neither the transcript nor an agreed statement of facts entered into between the parties or given by the trial judge, there is nothing for appellate review.” Succ. of Walker, 288 So.2d 328 (La.1974). The proper procedure is to presume that the judgment of the trial court was supported by competent evidence and affirm it, as was done in Walker.

Under this settled jurisprudence, which we believe to be firmly based on articles 2130 and 2131 of the Code of Civil Procedure, the trial court judgment should be affirmed. However, in the case of Pearson v. Hartford Accident & Indemnity Co., 281 So.2d 724 (La.1973), which is factually indistinguishable from the present case, our Supreme Court reversed the judgment of the trial court. The court held that when a defendant insurance company is alleged to be the insurance company of another defendant, the record must contain controverting evidence or it will be presumed that the insurance company is solidarily liable with the other defendant. The jurisprudence which culminated in Walker was not alluded to in the majority opinion, although the well reasoned dissent of Justice Marcus strongly relied on it. We therefore do not know why this exception to the general rule exists.

Although we strongly disagree with the holding in Pearson, we feel bound to follow this express holding of our Supreme Court. Walker cannot be read to impliedly overrule Pearson because all the cases cited therein to establish the uniform jurisprudence were decided prior to Pearson. We must therefore reverse the judgment of the trial court to the extent that it sustained the pleas of prescription of Royal-Globe and Harbor, the alleged insurers of Sun Oil. No controverting evidence is present in the record. Any action against Royal-Globe and Harbor as the insurers of Adams, Landry, and Crochet, has prescribed, however, because any right which plaintiff had against these insureds had been extinguished by prescription when suit was brought against their alleged insurance companies.

For the reasons assigned, the judgment is reversed only insofar as it sustained the exceptions of prescription as to Sun Oil Company and as to Royal-Globe Insurance and Harbor Insurance Co. as the insurers of Sun Oil Company. In all other respects the judgment is affirmed. The costs of this appeal are assessed as follows: Marion L. Moore, one-half; Royal-Globe Insurance, one-fourth; Harbor Insurance Company, one-fourth.

IN PART AFFIRMED AND IN PART REVERSED AND REMANDED.

      . The trial judge also granted an exception of prescription on behalf of Sun Oil Co. which had never filed such an exception. All parties agree that the granting of the exception as to Sun Oil was an inadvertent error on the part of the trial court and should be reversed-.


text:
    MARKET INSURANCE COMPANY v. COMMERCIAL UNION INSURANCE COMPANY et al.
    No. 11848.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Kenneth M. Borne, Kenneth W. Cole, Lafayette, for plaintiff-appellee Market Insurance Co.
    Daniel R. Atkinson, Baton Rouge, for defendants-appellants Commercial Union Insurance Company, AAA Contractors, Inc., V. J. Nicosia, and Bruce H. Hunt.
    Jack Roberts, Jr., Baton Rouge, for defendant-appellant Jerry L. Carmena.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Plaintiff (Market) brought this action to recover, as subrogee of its insured Southeast Louisiana Trucking Association, the amount paid said insured for the loss of a truck totally destroyed in an accident involving a truck owned by AAA Contractors, Inc. (AAA), the insured of Commercial Union Insurance Company (Commercial), and driven by AAA’s employee, Jerry Carmena. The named defendants are AAA, Commercial, Carmena and V. J. Nicosia and Bruce H. Hunt as Executive Officers of AAA. The trial court rendered judgment in favor of Market against Carmena and Commercial in the sum of $7,125.00 upon finding that Carmena was not acting within the scope and during the course of his employment by AAA, but that Carmena was an omnibus insured under Commercial’s liability policy covering AAA’s vehicles. Commercial has appealed the judgment against it. Market and Carmena have neither appealed nor answered Commercial’s appeal. We affirm.

In view of the procedural posture outlined above, Commercial and Market are the only parties before this court. Two issues are presented: first, whether Carme-na was acting within the course and during the scope of his employment by AAA since he was on his way to lunch in his employer’s vehicle at the time of the accident; second, whether Carmena was an omnibus insured of Commercial.

The collision occurred at approximately 12:20 P.M., September 27, 1973, on Louisiana Highway 37 (Greenwell Springs Road). At the scene of the accident, the highway, a narrow two lane roadway, was straight and level. Carmena was driving a Mack truck belonging to AAA. The truck had attached a large flat bed semi-trailer which had no lights and no brakes. Carmena was proceeding south at a speed of about 30 miles per hour, and was attempting to pull into a driveway on his right to reverse his direction and proceed north. To make his intended turn, he pulled partly into the opposing lane of. travel. Carmena’s vehicle was being followed by a gravel truck driven by James A. Guidroz, employee of Louisiana Trucking Association. The accident occurred in the northbound lane as Guidroz was attempting to pass. Carmena was accompanied by a fellow worker, Donny Nicosia.

Carmena denied that he was attempting to turn onto the premises of an adjacent welding shop ■ to reverse his direction of travel. He also denied that he pulled into the left lane to allow sufficient room for him to make such a turn with his large truck and trailer. Donny Nicosia, however, testified that Carmena did intend to reverse his direction. In addition, Donny Nicosia, Guidroz and John Wells, who was following Guidroz, all testified that Carmena did pull into the left or passing lane. Guidroz and Wells added that Carmena drove into the opposing lane after Guidroz began to pass. The investigating officer fixed the point of impact in the northbound lane based on dirt and debris he noted at the scene. The trial court concluded the accident resulted solely from Carmena’s negligence. We agree with this determination.

The testimony concerning the issues of whether Carmena was acting within the scope and during the course of his employment by AAA and whether Carmena was driving the truck with permission of the named insured AAA is disputed, to say the least. Carmena, a mechanic in AAA’s employ, did not normally drive his employer’s vehicles. He did drive vehicles on the shop premises in Baton Rouge. He road-tested vehicles that he worked on and occasionally drove vehicles across the street from one lot to another. On the morning of the accident, V. J. Nicosia, AAA’s shop foreman, accompanied by Carmena and Nicosia’s 18 year old son, Donny, left AAA’s shop in Baton Rouge in a station wagon driven by Nicosia. They were en route to the site of a gravel pit situated about 25 miles distant, off the Greenwell Springs Road. The purpose of the trip was to dismantle a dragline which AAA had purchased and wished to bring to its shop. Lawrence Batiste, Jr., an employee of AAA, drove the Mack truck with attached trailer to the job site. On arrival at the site, V. J. Nicosia, who was in charge of the crew, determined that it was necessary to remove the boom from the dragline before the machine could be loaded on the semi-trailer for transport to Baton Rouge. It developed that the boom could not be lowered. Nicosia gave orders for Carmena and young Nicosia to continue removing bolts from the dragline boom while Nicosia and Batiste returned to AAA’s shop to obtain a cherry picker which Nicosia decided was necessary to assist in removing the boom of the dragline. The time of Nicosia’s departure is disputed. Carmena places the time at about 9:30 A.M.; Nicosia, his son and Batiste estimate that the time was about 10 to 11 A.M. Carmena also testified that after removing what bolts they could with hand tools left on the job by the elder Nicosia, Carmena and young Nicosia had no further work they could do, so they left about 11:30 A.M. to return to Baton Rouge in compliance with Nicosia’s orders.

Carmena’s testimony is contradicted by both Nicosias. The elder Nicosia testified that he gave Carmena and his son orders to remain at the site until his return with a cherry picker. He also testified that there was sufficient work involved in unbolting the boom to occupy two mechanics for one or two days. Donny Nicosia testified that he and Carmena were not returning to Baton Rouge, but were en route to a grocery store situated on Greenwell Springs Road in the direction of Baton Rouge. After leaving the work site and proceeding south on Greenwell Springs Road toward the store, they decided they would prefer a hot lunch at a cafe that they had seen north of the work site earlier in the morning when they inadvertently passed the work site due to their unfamiliarity with the precise location of the dragline. According to young Nicosia, Carmena was in the act of turning into a semi-circular driveway in front of what appeared to be a welding shop situated on the west side of Greenwell Springs Road, so Carmena could change directions and proceed north. He also testified that his father gave them instructions to wait at the site until his father and Batiste returned with a cherry picker.

The pertinent policy language conferring omnibus coverage by Commercial reads as follows:

“II. Person’s Insured
“Each of the following is an insured under this insurance to the extent set forth below;
* * * * * *
(c) Any other person while using an owned automobile or a hired automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, but with respect to bodily injury or property damage arising out of the loading or unloading thereof, such other person shall be an insured only if he is:”

Commercial contends that the burden of proving implied consent rests upon the party alleging coverage by establishing circumstances which admit of no equivocation. Barletta v. Engram, 317 So.2d 703, (La.App. 4th Cir. 1975); Swanson v. Comeaux, 286 So.2d 117 (La.App. 4th Cir. 1973); and Holden v. Transamerica Insurance Company, 222 So.2d 302 (La.App. 1st Cir. 1969).

Under the circumstances of this case, we find no error in the trial court’s conclusion that the burden of proof was discharged satisfactorily. Carmena had frequently driven equipment of AAA on the job site for road testing. It is conceded by V. J. Nicosia and Bruce H. Hunt that Carmena had never been forbidden to drive a company vehicle and that on the day in question Nicosia did not tell Carmena not to drive the truck. It also appears from the testimony of Donny Nicosia that it was customary for AAA employees to drive company vehicles to lunch when work was being done away from the shop. Hunt testified that he would not have deemed Carmena’s use of the truck in going to lunch to be unreasonable or contrary to company policy if Carmena were capable of handling the vehicle properly. Nicosia testified that he did not intend for Carmena to use the truck but frankly admitted he did not tell Carmena not to drive the vehicle. We find as fact that Carmena was driving himself and Donny Nicosia to lunch. From the record we deduce that he was capable of handling the rig properly. Under these circumstances, it is immaterial that he did not have a chauffeur’s license. The burden consists of showing implied consent by a preponderance of evidence. Gremillion v. Goleman, 316 So.2d 810 (La.App. 1st Cir. 1975).

Commercial argues that the omnibus clause in its policy differs from that in most other policies because it omits the following language usually contained in such clauses:

“* * * provided his actual operation of (if he is not operating) the other actual use thereof is with the permission, or reasonably believed to be with the permission, of the owner and is within the scope of such permission, and . . .” (emphasis added by court).

Tersely put, Commercial urges that its omission of the above quoted language requires something more than the implied permission envisioned by policies containing such language. We find no merit in this argument. The early cases which interpreted “permission” as used in omnibus insurance clauses, dealt with language identical to that contained in Commercial’s policy. See Holden v. Transamerica Insurance Company, above; Hurdle v. State Farm Mutual Automobile Insurance Company, 135 So.2d 63 (La.App. 2d Cir. 1961). Both authorities proclaim that the “permission” required for coverage may be either express or implied. Moreover, Crandall v. Scott, 350 So.2d 922 (La.App. 4th Cir. 1977), cited by Commercial does not change this interpretation of such an insuring provision. On the contrary, it holds that the trial judge did not commit manifest error in finding that, under the facts involved, the driver did not have permission to drive the car.

It is unnecessary for us to determine whether Carmena was acting within the scope and during the course of his employment by AAA. Commercial’s liability is established as an omnibus insurer of Carme-na. AAA’s alleged liability is not before us because of Market’s failure to appeal dismissal of its claim against AAA under the doctrine of respondeat superior. La.C.C.P. Article 2133.

The judgment is affirmed at Commercial’s cost.

Affirmed.


text:
    Charles Lee WHITAKER v. COPOLYMER RUBBER & CHEMICAL CORPORATION and Liberty Mutual Insurance Company.
    No. 11850.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Charles R. Moore, Baton Rouge, for plaintiff-appellant Charles Lee Whitaker.
    Robert J. Vandaworker, Baton Rouge, for defendant-appellee Copolymer Rubber and Chemical Corp., et al.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Plaintiff (Appellant) appeals from judgment rejecting his demands under our Workmen’s Compensation Law for penalties and attorney’s fees allegedly due for defendants’ (Appellees’) arbitrary refusal to provide an advance hospital deposit required for treatment of a compensable injury. The trial court ordered Appellees (Appellant’s employer and the employer’s insurer) to provide the deposit, but declined to award penalties and attorney’s fees. Ap-pellees have neither appealed nor answered Appellant’s appeal and have acquiesced in the judgment by making the deposit as ordered. We affirm.

There is no factual dispute. On January 10, 1976, Appellant sustained a back injury during the course and within the scope of his employment by Copolymer. Appellant was initially treated by Dr. Lloyd G. Perez, who referred Appellant to Dr. William L. Fisher, a neurosurgeon. On May 13, 1976, Dr. Fisher reported that Appellant “. . . may well have a protruded lumbar disc”. A myelography performed by Dr. Fisher proved negative. Appellant was hospitalized for conservative treatment and discharged with a diagnosis of “probable degenerative disc disease”.

On August 9,1976, Appellant was seen by Dr. Moss Bannerman, orthopedist. Dr. Bannerman also saw Appellant on November 9, November 30, and December 14,1976. Appellant was last seen by Dr. Bannerman on January 3, 1977, on which date Dr. Ban-nerman recommended further evaluation by Dr. Fisher.

On January 11, 1977, Dr. Fisher arranged for a myelogram which was found to be within normal limits. Dr. Fisher continued Appellant on conservative treatment. In a report dated February 15, 1977, Dr. Fisher declined to perform surgery because, despite Appellant’s complaints of pain, he felt surgery at that time would be purely exploratory. On April 21, 1977, Dr. Fisher re-examined Appellant and again reported he did not feel surgical intervention was warranted.

On May 26, 1977, Appellant, on recommendation of relatives and friends, consulted Dr. Homer D. Kirgis, Neurosurgeon, Osch-ner Clinic, New Orleans, Louisiana. Dr. Kirgis issued a report dated June 2,1977, in which he stated:

“It is my belief Mr. Whitaker had a ruptured lower lumbar intervertebral disc which is in a position not demonstrable by myelograph. It is my belief that the symptoms and findings warrant surgical treatment and if a satisfactory explanation is not found, a spinal fusion should be performed.”

Dr. Kirgis’ report was communicated to Liberty Mutual which declined to pay a deposit of $450.00 required for Appellant’s admission to Oschner Clinic for the recommended surgery. It is conceded that Appellant has been paid compensation benefits since the accident and also that all prior medical expense incurred in treatment of Appellant’s injury has been paid by Appel-lees.

Under the procedural posture of this case, we are not concerned with the propriety of the judgment ordering Appellees to make the deposit. Since Appellees have neither appealed nor answered the appeal and have acquiesced therein by making the deposit, the judgment has become final. The sole issue before us is whether Appellant is entitled to penalties and attorney’s fees.

Appellant properly contends that an insurer who arbitrarily refuses to pay medical costs incurred in treatment of a compensa-ble injury is liable for penalties and attorney’s fees. La.R.S. 22:658.

On authority of Zeringue v. Fireman’s Fund American Insurance Company, 271 So.2d 613 (La.App. 1st Cir. 1972), Appellant urges that Appellees should be held liable for penalties and attorney’s fees because Appellees’ disagreement with Dr. Kirgis’ report does not justify failure to advance the hospital deposit required for treatment which Dr. Kirgis recommended.

The trial court noted that all prior jurisprudence held that an insurer is not required to pay future medical expense or any such expense which has not been incurred, and that the issue posed herein is res nova. The trial court concluded, however, that the statute requires an employer to furnish all necessary medical treatment; therefore, if treatment can be obtained only by a commitment for advance payment, expense has already been incurred and the employer is liable therefor. The trial court also found that Appellant’s desire for surgery was not frivolous and in view of the required liberal interpretation of our Workmen’s Compensation Law, the prospective surgery should be deemed necessary. In rejecting Appellant’s demands for penalties and attorney’s fees, the trial court reasoned that Appellees’ refusal was not arbitrary or capricious in view of the novelty of the issue presented and the absence of prior jurisprudence on the subject.

Appellees contend the trial court properly denied penalties and attorney’s fees herein because the judgment ordering Appellees to make the advance hospital deposit is contrary to all prior case law which has limited liability to incurred medical expense. In support of this position, Appellees cite Harris v. Argonaut Insurance Company, 142 So.2d 501 (La.App. 2d Cir. 1962); Lyons v. Swift and Company, 86 So.2d 613 (La.App. 2d Cir. 1956); Wilson v. New Amsterdam Casualty Company, 86 So.3d 556 (La.App.Orl.1956); and cases therein cited.

The penalty provisions of La.R.S. 22:658 are stricti juris and should be imposed only in instances in which the attending circumstances indicate lack of probable cause for non-payment. Guillory v. Travelers Insurance Company, 294 So.2d 215 (La.1974), and authorities therein cited.

In this instance, there existed serious legal question as to Appellees’ liability for the deposit or advance in question. We also note a dispute between apparently equally competent medical authority as to the necessity for the. treatment proposed. Under such circumstances, we find no error of fact or law in the trial court’s determination that refusal to make the deposit was neither arbitrary nor capricious.

The judgment is affirmed at Appellant’s cost.

Affirmed.


text:
    LOUISIANA POWER & LIGHT CO., Plaintiff-Appellee, v. John W. MECOM, Defendant-Appellant.
    No. 11854.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.

      Kenneth P. Carter, Monroe & Lemann, New Orleans, for plaintiff appellee.
    Karl E. Boellert, Camp, Carmouche, Palmer, Carwile & Barsh, Lake Charles, for defendant appellant.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

Louisiana Power & Light Co. (LP&L) brought this action against John W. Mecom for sums due it under a contract to supply electric power to defendant’s sulphur plant. LP&L also sued for minimum payments for the remainder of the contractual term under an acceleration clause. The trial judge awarded plaintiff $45,362.00 for past due payments with legal interest from judicial demand and minimum payments of $1850.00 per month which became due after the filing of the suit with legal interest from the date each payment became due. Mecom appealed. We affirm.

Defendant Mecom is the owner of a sul-phur plant in Chacahoula, Louisiana. To provide for the electrical requirements of this plant he entered into several contracts with LP&L. The contract concerning the electric power requirements at the main plant entered into on December 15, 1967, forms the subject of this litigation. The contract provided that LP&L would make available at the' plant a demand capacity of twenty-four hundred kilowatts at approximately four hundred eighty volts. A minimum monthly bill for service of $1850.00 was specified. The term of the agreement was for an initial period of five years, from December 15, 1967, through December 15, 1972, “and thereafter for similar periods unless terminated by written notice given by one party to the other not more than six (6) months nor less than three (3) months prior to the expiration of the original term or any extension thereof.”

Defendant did not give written notice of termination prior to September 15, 1972, as specified in the contract. Therefore, the contract was extended through December 15, 1977. LP&L continued to send monthly bills and furnish electrical services to defendant after the end of the primary term. Defendant refused to pay these bills and this suit was instituted.

Mecom claims that oral notice of termination was given prior to September 15, 1972. The testimony is in conflict as to whether such notice was given. The trial court found that, in any event, oral notice was ineffective under the contract and therefore did not resolve this factual dispute. We agree with this holding.

“Agreements legally entered into have the effect of laws on those who have formed them.” C.C. Art. 1901. It is not the province of the courts to relieve a party of a bad bargain, no matter how harsh. Maloney v. Oak Builders, Inc., 256 La. 85, 235 So.2d 386 (1970). Defendant argues that the trial court should not have relied on these settled principles but should have examined the unequal bargaining power of the parties and Mecom’s restricted ability to consent. Defendant argues that he was in a position where if he did not accept all terms as proposed by LP&L he could not receive electric power for his plant, i. e., the contract is one of adhesion. He urges that he therefore did not truly consent to the terms of the contract and that he should not be held to the requirement of giving written notice of cancellation.

The Louisiana courts have not to date adopted the theory of adhesion contracts. See Duncan, Adhesion Contracts: A Twentieth Century Problem for a Nineteenth Century Code, 34 La.L.Rev. 1081 (1974); cf. Golz v. Children’s Bureau of New Orleans, Inc., 326 So.2d 865 (La.), appeal dismissed 426 U.S. 901, 96 S.Ct. 2220, 48 L.Ed.2d 827 (1976). Even were our courts to recognize the power in themselves to disregard clauses in contracts when one party had no power to negotiate terms, we believe that such power should only be exercised in cases in which the clauses in question are unduly burdensome or extremely harsh. The clause in question requiring written notice of cancellation is in no wise unfair. The only burden it imposes on a party is that if he desires to terminate his electric service he send a letter to LP&L. We will not relieve a party of the consequences of his own agreement in such situation.

Appellant also argues that LP&L violated its contractual duty of good faith by not reminding him of the written notice requirement. C.C. Art. 1901. We do not believe good faith requires a party to a contract to remind the other party of his contractual duties. The fact that LP&L is receiving payments for electric service which it is not supplying likewise does not show bad faith. As shown by the record, LP&L was at all times willing to supply electricity to defendant’s plant, and, in fact, supplied small amounts during the renewal term. LP&L interprets the acceleration clause to require it to supply the minimum amount after cancelation. Mecom has not disputed this interpretation. The setting of a minimum payment is not unfair since LP&L was required under the contract to construct substantial facilities in order to supply electric power.

Defendant also urges a plea of es-toppel. Estoppel is an affirmative defense which must be pleaded in the answer. C.C.P. Arts. 1003, 1005. Since the defense was not so pled, it is not now available to Mecom. Rodgers v. Berry, 274 So.2d 503 (La.App. 3rd Cir. 1973).

Finally, defendant asserts that plaintiff should not be granted recovery based on the minimum charges for the entire five year renewal period.

The acceleration clause of the contract states that it becomes effective upon the cancellation of the contract by LP&L. Me-com argues that since LP&L has not can-celled the contract it cannot recover minimum payments which became due after the filing of the petition. It is true that LP&L had not cancelled the contract prior to filing suit. Likewise, its petition does not specifically request cancellation. However, we believe that the request for future minimum payments under the acceleration clause of the petition is sufficient as a request for cancellation of the contract. “Every pleading shall be so construed as to do substantial justice.” C.C.P. Art. 865; see also C.C.P. Art. 862. Under the acceleration clause, upon cancellation all future minimum payments became due.

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

AFFIRMED.


text:
    Patrick GUILLORY v. LOUISIANA INSURANCE RATING COMMISSION.
    No. 11857.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Writ Refused May 5, 1978.

      Jacque B. Pucheu, Jr., Eunice, for plaintiff-appellant Patrick Guillory.
    Arthur Stallworth, Atty. General’s Office, Staff Atty., Baton Rouge, for defendant-appellee Louisiana Insurance Rating Commission.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Plaintiff (Appellant) appeals from judgment sustaining an exception of no cause of action urged by defendant (Commission) dismissing Appellant’s tort action against Commission for damages allegedly due to Commission’s negligence in failing to require foreign employers to furnish security for payment of workmen’s compensation benefits to employees pursuant to La.R.S. 23:1181. The trial court rejected Appellant’s contention that the statute imposes on the Commission the duty and responsibility of establishing procedures to insure that foreign employers post security as required by the mentioned statute. We affirm.

It is well settled that an exception of no cause of action must be determined in the light of plaintiff’s petition alone, and that in such a determination only well pleaded allegations of fact shall be considered. American Creosote Company v. Springer, 257 La. 116, 241 So.2d 510 (1970).

If a petition sets forth a cause of action on any ground whatsoever, an exception of no cause of action filed in opposition thereto must be overruled. Pence v. Ketchum, 326 So.2d 831 (La.1976).

Appellant’s petition alleges that on November 18,1974, while employed as a painter by Air King Corporation (Air King), an Illinois corporation, he sustained a disabling back injury in an accident which occurred in St. Landry Parish. Air King paid Appellant compensation at the rate of $65.00 weekly from the date of the accident until Air King filed for bankruptcy and notified Appellant that further payment of compensation would be discontinued. Petitioner claims entitlement to compensation at $65.00 weekly for 500 weeks, with interest on past due installments, commencing November 18,1974, and $12,500.00 medical expense, subject to credit for compensation paid through April 1, 1975. A Federal Bankruptcy Court order prohibits Appellant from prosecuting his claim against Air King. Under bankruptcy laws, Air King will be discharged from its obligation to Appellant thereby rendering Appellant’s claim permanently unenforceable. Air King was a self-insurer under Louisiana law because it was not domiciled in Louisiana, owned no immovable property in this state and carried no workmen’s compensation insurance. Under La.R.S. 23:1181, Commission is charged with the statutory duty of requiring all such foreign employers to post an adequate deposit to protect persons employed in this state. Commission is alleged to have negligently failed: (1) to establish a system or procedure whereby it could determine the presence in the state of foreign employers conducting business as self-insurers; (2) to establish a procedure to require foreign self-insurer employers to apply to the Commission for self-insurer status; (3) to require Air King to post adequate security as a self-insurer; and (4) to require Air King to apply for self-insurer status so the Commission could examine Air King for solvency and require said concern to post adequate security for its debts pursuant to La.R.S. 23:1181.

The pertinent statute, La.R.S. 23:1181, reads as follows:

“Every employer, corporate or otherwise, not domiciled in Louisiana, who does not own immovable property within this state assessed at twenty-five thousand dollars, and who shall be liable under this Chapter for the payment of workmen’s compensation to his employees, shall furnish security for the payment of compensation to his employees in one of the-following ways:
(1) By taking out and carrying, with an insurance carrier authorized to engage in the business of writing policies of workmen’s compensation insurance in this state, a policy designed to insure the payment of any claims for compensation hereunder; or
(2) By furnishing satisfactory proof to the Louisiana Insurance Rating Commission of the financial ability to pay such compensation for himself, in which case the Louisiana Insurance Rating Commission shall require a deposit with the State Treasurer of such securities as the Commission may deem necessary. Said securities shall be bonds of the United States Government, or the State of Louisiana or the political subdivisions thereof, or in lieu thereof, the employer may give a bond in favor of the State of Louisiana of a surety company authorized to do business in this state, or a bond in favor of the State of Louisiana, with at least three good and sufficient sureties residents of this state and approved by the Commission. The Louisiana Insurance Rating Commission may deny the application of an employer to pay such compensation for himself under this Section, at any time, for good cause shown. The employer qualifying under this Sub-part shall be known as a self-insurer.”

As contended by Appellant, the provisions of our Workmen’s Compensation Law must be liberally construed to effect its beneficent purpose of aiding injured workmen. Danielsen v. Security Van Lines, Inc., 245 La. 450, 158 So.2d 609 (1963).

We also agree with Appellant’s argument that in the interpretation of laws, courts must seek to ascertain legislative intent and to construe a statute to achieve such intent. Board of Trustees of East Baton Rouge Mortgage Finance Authority v. All Taxpayers, 336 So.2d 306 (La.App. 1st Cir. 1976).

Also pertinent is the rule that laws upon the same subject matter must be construed in conjunction with each other in determining legislative intent. La.C.C. Article 17.

Appellant maintains that the obvious intent of La.R.S. 23:1181 is to protect employees of foreign employers who own no immovable property in this state and who do business in the state as self-insurers as defined therein. In substance Appellant argues that the only way the act can be made effective to accomplish its announced purpose is to require the Commission to police the conduct of business by such employers in this state by establishing procedures to ferret out such employers and require them either to take out the insurance mandated by La.R.S. 23:1811(1) or to furnish satisfactory proof of financial responsibility and demand a deposit of such securities as the Commission shall deem adequate in each instance. According to Appellant, the statute is rendered meaningless if the only duty of the Commission, as argued by the Commission is to require a deposit of those employers who voluntarily report to the Commission as required by the pertinent statute.

We note that the Commission was created pursuant to La.R.S. 22:1401, as last amended by Act 591 of 1972. Prior to the 1972 amendment, Section 1401 provided for a Commission whose duties and responsibilities were defined in Section E, as follows:

“E. The duties and responsibilities of the Commission shall be such as are hereinafter provided in this Part with respect to the regulation of rates and rating organizations.”

The 1972 amendment of Section 1401 deleted Section E, above, and contains Section F which abolished the Fire Insurance Division, the Casualty and Surety Insurance Division and the Marine Insurance Division (all created pursuant to the former statute), and specifically states:

“. . . all of the powers, duties and functions heretofore vested in and exercised by these divisions shall be transferred to and hereafter performed by the Louisiana Insurance Rating Commission.”

La.R.S. 22:1402, both before and since the 1972 amendment of Section 1401, defines the purpose of rate regulation as follows:

“The purpose of this Part is to promote the public welfare by regulating insurance rates to the end that they shall not be excessive, inadequate, or unfairly discriminatory, and to authorize and regulate co-operative action among insurers in rate making and in other matters within the scope of this Part. Nothing in this Part is intended (1) to prohibit or discourage reasonable competition, or (2) to prohibit or encourage, except to the extent necessary to accomplish the aforementioned purpose, uniformity in insurance rates, rating systems, rating plans or practices. This Part shall be liberally interpreted to carry into effect the provisions of this Section.”

From the foregoing, we deem it clear that the legislature intended the Commission to function primarily for the purpose of regulating the rates of insurance companies doing business in this state to promote fairness of such rates to both the public and insurance companies, and in general promote and protect the public interest insofar as insurance rates are concerned.

We find no language in the statute to require the Commission to compel compliance by foreign employers doing business in the state with the provisions of a statute which is not concerned with insurance rates. Subject statute does not deal with insurance rates or the regulation of insurance companies. Its sole purpose is to require foreign employers either to carry workmen’s compensation insurance with an insurer authorized to do business in the state, or to post bond, as a self-insurer, with the Commission.

The first paragraph of Section 1181 requires foreign employers, who do not own immovable property in the state assessed at $25,000.00, to furnish security for payment of compensation due employees. ■ The second paragraph states that the required security may be in the form of insurance with an insurer authorized to do business in the state. The final paragraph provides, alternatively, that the security required may be in the form of proof to the Commission of financial ability to pay compensation, in which even the Commission shall require a deposit of such amount as the Commission shall deem necessary.

Section 1181, in our judgment, contains no language which could even remotely indicate legislative intent to require the Commission to establish procedures to determine the presence of every foreign employer doing business in the state. We find no language in the statute requiring the Commission to police its provisions. The only duty imposed on the Commission is to require a deposit when such foreign employer elects compliance with the statute by furnishing satisfactory proof of its ability to pay compensation as an alternative to taking out workmen’s compensation insurance with an insurer authorized to do business in this state.

Had the legislature intended the Commission to serve as a police force in enforcement of the statute, it would have been a simple matter to so state in unmistakable language.

The judgment is affirmed at Appellant’s cost.

Affirmed.