text:
    Carl Dean OGAARD and Valorie Clayton, Plaintiffs-Appellees, v. Gus O. WILEY et al., Defendants-Appellants.
    No. 5243.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    Rehearing Denied Jan. 30, 1976.

      See also, La.App., 325 So.2d 653; La, App., 325 So.2d 654; La.App., 325 So.2d 655; La.App., 325 So.2d 658; La.App., 325 So.2d 661; La.App., 325 So.2d 660.

      Gold, Hall, Hammill & Little by Leo Gold, Stafford, Pitts & Stafford by John L. Pitts, Lewis O. Lauve, Gist, Methvin & Trimble by James T. Trimble, Jr., Alexandria, Sam J. Friedman, Natchitoches, for defendants-appellants.
    Gravel, Roy & Burnes, by Chris J. Roy, Alexandria, Roy Maughan and Dorsey Martin, III, Baton Rouge, Alfred Mansour and Edward A. Kaplan, Pharis & Pharis by F. Jean Pharis, Alexandria, Watson, Murchison, Crews & Arthur by William P. Crews, Jr., Natchitoches, for plaintiffs-ap-pellees.
    Before MILLER, WATSON and CU-TRER, JJ.
   MILLER Judge

Defendants appeal a judgment awarding $35,000 to plaintiff Carl Ogaard and $42,190.96 to plaintiff Valorie Clayton as damages for the wrongful death of their daughter, Kathleen Laurel Ogaard, a guest passenger in a pickup truck driven by Mrs. Martha Meaux. Mrs. Meaux’s husband is a co-plaintiff in a consolidated suit. We affirm.

This suit was consolidated with six others for trial and appeal. Kathleen was one of fourteen people riding in the cab or bed of a pickup truck which was rear-ended by defendants’ truck and tandem trailer with a gross weight of 82,650 pounds. Kathleen was one of twelve persons killed in the accident. The other two claimants survived and the seven consolidated suits involve all claims resulting from the accident.

Defendants are Gus O. Wiley, who was driving the tandem truck; his employer T(ommy) Robert, owner of the tandem truck; their insurer, National Fire & Marine Insurance Company; Alexandria Mill & Grain Elevator, Inc., as alleged employer of Wiley; the Mill’s insurer, Hartford Accident and Indemnity Company; Saline Lake Farms, Inc., on the allegation the Mill is Saline’s alter ego; and Saline’s insurers, its primary insurer Travelers Insurance Company, and its excess limits insurer, Mission Insurance Company.

At trial there were five basic issues: 1) was Wiley liable; 2) was Wiley an employee of the Mill, either directly or pro hac vice\ 3) was the Mill an alter ego of Saline; 4) did Mission’s policy afford coverage to the Mill when the accident occurred ; and 5) quantum ?

The trial judge assigned written reasons, holding: 1) Wiley was negligent and his negligence was the sole proximate (legal) cause of the accident; 2) Wiley was the pro hac vice employee of the Mill; 3) the Mill and Saline were alter egos; 4) Mission’s umbrella (excess) coverage was applicable only through liability of Saline; and 5) assessing the quantum to be awarded each plaintiff.

Mrs. Martha Meaux was driving the pickup truck south on U.S. 165 between Glenmora and Oakdale on her way to take twelve children and one other adult to a swimming party. Wiley had been following the pickup for some time at a speed of 45 to 50 mph. For a minute or so bafore the accident the tandem truck had been followed by two passenger vehicles and the occupants of these vehicles testified as independent eye-witnesses. Mrs. Meaux planned to turn right onto a gravel road and turned on her turn signals as she approached the intersection. Wiley also turned on his right turn signal blinkers. At a point when both vehicles were in the southbound lane, the front of Wiley’s truck struck the rear of the pickup. This occurred about seventy feet from the point at which the pickup could have commenced its turn onto the gravel road. The tandem truck’s front wheels were lifted from the road surface and rode up the rear of the pickup until the pickup struck a large tree 271 feet from impact. The pickup was crushed between the tree and the tandem truck. Bodies of some of the occupants were found crushed at the scene and others were along the vehicles’ route.

The threshold issue relates to the liability of defendant Wiley. The liability of all others is derivative.

Defendants rely on the doctrine of sudden emergency for exculpation from liability. Wiley testified the pickup’s right front wheel dropped off the right side of the road; the pickup then veered to the left and crossed the centerline of Highway 165; then went entirely off the road on the right shoulder again; and then, completely out of control, came back on the road immediately in front of him at impact. Tr. 391^410. Wiley contends the collision was unavoidable.

Eye-witnesses and supporting physical evidence indicate the pickup was in its lane of travel at impact. Tr. 387, 391, 439, 481, 510, P-16, P-19. No evidence supported Wiley’s version that the pickup left the road. Witnesses in the following vehicles testified they were alert and looking because of the turn signals flashing on the pickup and tandem trucks. They testified the pickup did not leave the road or cross the centerline prior to impact. There is no manifest error in the trial judge’s acceptance of this testimony.

By Wiley’s own testimony the trial judge properly found his negligence caused the accident. Wiley testified he was attempting to pass the vehicle which he thought was out of control and his decision to pass was made while the pickup was moving forward. Under these circumstances a reasonable and prudent driver should not attempt to pass the preceding out of control vehicle by driving in the same lane even though the lead vehicle left the road and was entirely on the right shoulder.

Appellants have failed to establish manifest error in the trial court holding Wiley’s negligence to have been the sole cause of the accident.

WAS WILEY EMPLOYED BY THE MILL?

At the outset defendants seek to overturn the trial judge’s finding that Wiley was the Mill’s employee. The Mill, Saline, and their insurers contend there has been a judicial confession (by defendants admission in its answers the allegation that Wiley was T. Robert’s employee) that Wiley is the employee of T. Robert; and that this judicial confession precludes argument that an employment relationship existed between Wiley and any other party. We reject that contention.

The employment relationship between Wiley and Robert is uncontested. However, plaintiffs alleged the Mill and Saline were also Wiley’s employers when the accident occurred. The allegation and admission that Wiley was employed by Robert would defeat the allegation (of Wiley’s employment) by the Mill and Saline only if the two allegations are irreconcilable. They are not.

We find Wiley to have been a Mill employee for these reasons. The owner of the tandem truck, T. Robert, was the son of the managing director of the Mill who was also one of the key managers of Saline. T. Robert’s father informed the Mill manager, Mr. Haynes, that T. Robert was to be used for all hauling that could be handled by one truck. When more trucks were needed, T. Robert’s truck was to be the first one called. This was rigidly followed for more than a year. Wiley would bring all records of his hauling to the Mill, and the Mill maintained the only records of Wiley’s hauling. Each month the Mill calculated (from records turned in by Wiley), the amount due to Robert and would send a check to T. Robert. T. Robert would, in turn, make out his check for 20% of that amount as Wiley’s pay. Although the Mill did not withhold income tax and social security, neither did Robert. Tr. 320.

Wiley had a key to the Mill gate — these keys were provided only to Saline’s employees. On the alter ego issue, infra, Saline and the Mill are one and the same. The Mill called Wiley to report for hauling, told him when to load, how much, and where to go. On occasion, the Mill directed Wiley to pick up grain in Saline’s fields and deliver it to the Mill. The only hauls made by Wiley for parties other than the Mill were those arranged by the Mill. The hauling agreement was terminable without notice. Advances were made by the Mill to Wiley, and later withheld from the Mill’s payment to T. Robert. These arrangements were not extended to other drivers.

T. Robert was totally dependent on the Mill to determine the hauling for which he was paid, and the amount of money due. All original records, logs and tickets were delivered to the Mill. Tr. 312, 3, 9, 421. This is inconsistent with the Mill’s contention that each haul was a separate verbal contract between the Mill and T. Robert.

The principal evidence denying the employment relationship between T. Robert and the Mill was that of the Mill’s manager at the time of the accident, Mr. Haynes. Haynes could not recall T. Robert's father talking with him about a ■ hauling agreement, and testified each haul was a separate contract. Mr. Haynes testified that although he had authority to call other trucks, he admitted he knew T. Robert was to be favored and stated he was uniformly favored. Tr. 691.

The trial court accepted the testimony of T. Robert and his father and rejected that of Haynes. Furthermore, T. Robert’s father was Haynes’ superior and his understanding of the Mill’s agreement determined the nature of the contract. The trial court correctly concluded there was an arrangement between T. Robert and the Mill other than that of an independent contractor.

In summary: T. Robert had an agreement with the Mill that his truck would get all hauling that could be handled by one truck,, and when more trucks were needed, his truck would be called first. T. Robert kept no records. He was completely dependent on the Mill to receive and hold original trip records and to determine his compensation. His truck was to be available at all times to the Mill and the driver was to be instructed by the Mill as to when and how ■ much he was to haul from point to point. The Mill determined the origin and destination of each shipment. Occasionally, the Mill directed Wiley to pick up grain in Saline’s fields and deliver it to the Mill. Under these circumstances T. Robert was not an independent contractor, but an employee. He was employed by the Mill to furnish a service. Therefore Wiley was also the Mill’s employee.

Although we agree with the relevant facts stated in the trial judge’s written reasons, we differ with his conclusion that Wiley was the pro hac vice employee of the Mill. Wiley was instead an employee of the Mill. Appellants have failed to establish manifest error in the result reached by the trial court.

Since we find Wiley to be the Mill’s employee, we do not reach the pro hac vice employee issue.

ALTER EGO

The trial judge held (and one of Saline’s insurers conceded in appellate argument, the other denied) the Mill was Saline’s alter ego at the time of the accident. There is no manifest error in the trial judge’s holding.

The Mill was capitalized at $1,000. Its principal assets (property, improvements and machinery) were acquired by donation from persons who became the Mill’s principal officers and who are major shareholders in the Saline corporation. These officers had absolute authority to run both corporations. The Mill was not expected to make a profit. It accepted grain from a few farms other than Saline’s in order to lower overhead. The Mill was acquired to provide additional storage for Saline when a merger by Saline with another corporation dramatically increased the size of Saline’s farming operations. The two corporations had the same post office box. Money borrowed in one corporation’s name was transferred to the other’s, account, “not really borrowed but, it was just used.” Tenants of Saline were required by the terms of their lease to use the Mill.

Since the Mill was the alter ego of Saline Lake Farms, Inc. at the time of the accident, Saline is also liable, together with the Mill, for the tort of its employee Wiley.

APPORTIONMENT BETWEEN INSURERS

Since Wiley has been held liable, the insurer of the tandem truck, National Fire, admits its liability up to its $40,000 policy limits. Since Wiley has been found to be an employee of the Mill, Hartford, the Mill’s insurer, admits its liability up to its $300,000 policy limits.

A dispute over apportionment exists between Travelers, Saline’s primary insurer, and Mission, Saline’s umbrella or excess limits insurer.

Travelers contends all the Mill’s resources ought to be exhausted before Travelers should contribute and Mission’s coverage was part of those resources. This claim is based on language in Mission’s policy regarding subsidiary or owned corporations of Saline “as now or hereafter constituted and of which prompt notice has been given to underwriters.”

Travelers contends this language in Mission’s policy provides automatic coverage for new corporations acquired by the original named assured, Saline; that the only reason notice is required to Mission is to provide a vehicle for adjusting premiums due Mission. The trial judge rejected this argument and Travelers has failed to establish manifest error.

The quoted language allows Saline to provide coverage for new acquisitions on reasonable notice' without rewriting the policy. The trial court’s holding is in line with the plain meaning or most evident intent of the insurance contract.

The quoted language, which is at issue here, appears in the clause defining the named insured. To the extent coverage is limited by that definition it has the effect of a condition on the contract. Notice.may be a condition precedent or a condition subsequent, but in either event it has the effect of a condition. Unless the condition is fulfilled, there is no obligation in force. We are not required to decide what kind of condition this is, because the trial court found no notice was given, prompt or otherwise. Therefore, Mission’s contract with Saline did not provide coverage to the Mill.

Since Mission is not an insurer of the Mill except through its coverage of Saline, we do not decide the contention that it would “come before” Travelers in apportionment of the damages.

Travelers contends this finding of no actual notice is not decisive because Bates, the agent for Mission, had constructive notice of the acquisition of the Mill by Saline. This is based on Bates’ ownership interest in one of the larger owners of Saline’s stock, AMI, Inc., and Bates’ position as a director of AMI. At the time of this accident, AMI was a general partner with Saline and a major shareholder therein.

T. Robert was an executive officer of both Saline and the Mill. He testified that acquisition of the Mill was placed before Saline’s annual stockholder’s meeting. It was also established that some of Saline’s business was discussed at AMI’s board of directors meetings, some of which Bates attended.

However, Bates specifically denied knowledge of Saline’s acquisition of the Mill. There is no manifest error in the trial court’s conclusion that Bates individually did not have actual knowledge of Saline’s acquisition of the Mill. Since Bates had no actual knowledge, we do not reach the question of the effect of personally acquired knowledge of an agent on his employer.

Travelers then contends Bates had constructive knowledge of Saline’s acquisi-' tion of the Mill; and that constructive knowledge of an agent may be imputed to the insurer, just as actual knowledge of the agent was imputed to his company in Tarver v. Peoples Fire Insurance Company of New Orleans, 6 Orl.App. 59 (La.App.Orls. Cir.1908).

To adopt this reasoning we would impute to the agent and through him to the insurer such knowledge as he could have obtained through a reasonable investigation where he knew facts which put him on inquiry (notice). See Bailey v. American Marine & General Insurance Company, 249 La. 98, 185 So.2d 214 (1966). Travelers extends this logic one step further and argues Bates should have learned of facts which would have put him on inquiry.

The relationship of AMI to the Mill seems too tenuous to require a director of AMI to have a duty to know of Saline’s acquisitions, particularly on the part of one who is not a managing director. But if it did, the duty of an insurance agent does not encompass his sniffing out chance information that might benefit his employer. There is no basis for finding constructive knowledge in Bates’ position with AMI.

Travelers also contends Bates may have had occasion to acquire such knowledge in the course of his business through his agency’s annual review of Saline’s records. But, he testified the review was in fact made by his office staff. The acquisition of the Mill was not discovered in the performance of this review. Nor were facts discovered in the review which should have put Bates on inquiry. There, is no suggestion that the procedure for the review was inadequate. The review presents no basis for finding constructive notice to Bates, Mission’s agent. Mission Insurance Company was therefore not an insurer of the Mill.

Alternatively, Travelers argues, their policy provisions for hired or non-owned vehicles limits coverage to excess coverage, and therefore Travelers is not the primary insurer of Saline insofar as this accident is concerned. We reject this contention.

Travelers relies on Section VI of its Comprehensive Automobile Liability Insurance Coverage [VI. Additional Condition: Excess Insurance — Hired and Non-Owned Automobiles]. The relevant clause provides :—

With respect to a hired automobile or a non-owned automobile, this insurance shall be excess insurance over any other valid and collectible insurance available to the insured. [Emphasis added.]

Although Travelers provides two distinct types of coverage in its policy, it does not for that reason acquire the right to decide which coverage applies. The facts and circumstances of this case determine the liability of Saline, Travelers’ insured. Travelers is then liable under the coverage which is responsive to the nature of Saline’s liability.

Saline’s liability here is that of an employer for the tort of its servant. This coverage is provided by Travelers’ comprehensive general liability insurance coverage. That section contains no provision regarding other collectible insurance.

Travelers’ liability in this case falls under the general conditions of its policy which provides:—

6. OTHER INSURANCE: The insurance afforded by this policy is primary, except when stated to apply in excess of or contingent upon the absence of other insurance ....

The apportionment section of this clause is not here pertinent because the liability exceeds the combined limits of all policies available as primary insurance.

The apportionment of the judgment to Travelers to the limit of its policy is therefore correct. Liability in excess of the combined policies of Wiley’s insurer (National Fire), the Mill’s insurer (Hartford), and Saline’s primary insurer (Travelers), was properly assessed to Saline’s excess insurer Mission Insurance Company. ... .

V

LIABILITY OF T. ROBERT INDIVIDUALLY

The trial court dismissed all claims against T. Robert, owner of the truck Wiley was driving. Plaintiffs did not appeal from that judgment. They only answered the appeals by Wiley, the Mill, Saline, and their insurers. An answer to an appeal has the effect of an appeal only as to appellant(s) and therefore, appellees cannot secure relief as against T. Robert who has not appealed. LSA-C.C.P. art. 2133; Vidrine v. Michigan Millers Mutual Ins. Co., 242 So.2d 249 (La.App. 3 Cir. 1971).

The judgment dismissing T(ommy) Robert is therefore final and the matter of T. Robert’s liability is not before us.

COSTS OF COURT

The trial judge taxed costs proportionately among all defendant insurance companies which were cast in damages. LSA-C.C.P. art. 1920 authorizes such action. We reject the contention that costs of court must be paid by only one insurer or by only the primary insurers in accordance with policy provisions. The trial court may render judgment for costs or any part thereof, against any party, as it may consider equitable. The apportionment appears equitable.

QUANTUM — ELEMENTS

At the outset, we reject defendants’ argument that grief is the only element of general damages present in cases of the death of children. It may well be the most substantial element. While it is true that awards are not made for value of lost monetary support in the case of children unless actual monetary support has been shown, it is recognized that in addition to the grief endured, the parents are entitled to recover for their deprivation of love, affection and companionship. Lopitz v. Louisiana Department of Highways, 268 So.2d 269 (La.App. 4 Cir. 1972); Himes v. Avinger, 85 So.2d 304 (La.App. 2 Cir. 1956).

There is seldom, if ever, an attempt to segregate various elements of general damage and make an award for each item. Nevertheless the peculiar facts related to each item must indicate support for the total award.

The scope of appellate review of quantum is limited to essentially two issues. First, is there manifest error as to facts supporting the award or elements thereof? Second, has the trial judge abused the “much discretion” granted to trial courts by LSA-C.C. art. 1934(3) ?

To make the determination of abuse the court must consider the specific facts established in the record, the relationship of the parents to their child or children. See dissent in Sylvester v. Liberty Mutual Insurance Company, 237 So.2d 431 at 432 (La.App. 3 Cir. 1970). Seemingly similar cases are relevant only as they indicate the award is not so greatly disproportionate to prior awards as to constitute an abuse of the trial court’s discretion. Luttrell v. State Farm Mutual Automobile Insurance Company, 244 So.2d 97 (La.App. 3 Cir. 1971). Both concepts were approved in Anderson v. Welding Testing Laboratory Inc., 304 So.2d 351 (La.1974).

Although the awards in this case equal and in the case of one mother exceed the highest prior award approved by a Louisiana appellate court for the wrongful death of a child, the difference here is not so great that we find the disproportion with prior awards to indicate an abuse of discretion.

Kathleen Laurel Ogaard was shown to be a cheerful, affectionate, helpful and loving daughter. She was fourteen years old, deaf, and had difficulty with her speech. Her deafness did not appear to encroach significantly on her mental acuity, her social activity and concern. She was the youngest child and the last living at home with her mother. There are no children of her mother’s second marriage. During the school term, Kathleen, of necessity, was sent to the School for the Deaf in Baton Rouge. She was brought home almost every weekend. She was at home during this summer vacation learning to cook and sew. There was a special relationship • existing between Kathleen and her mother often found between handicapped children and their mother. On these facts, we find the award of $40,000 to the mother for loss of her daughter to fall within the trial court’s “much discretion.”

Mr. Ogaard answered the appeal seeking an increase in the $35,000 awarded him to $40,000. He has provided child support payments to her since his divorce ten years before Kathleen’s death. He exercised visitation rights granted to him in the divorce decree during each of the ten years. Kathleen spent a substantial part of each summer with her father. He testified to Kathleen’s cheerful, affectionate and helpful behavior.

Mr. Ogaard’s visits to Kathleen during the school year were infrequent. He has an eight year old daughter by his second marriage. On the facts, the $35,000 awarded is on the high side, but is neither excessive nor inadequate.

The trial court judgment is affirmed at appellants’ costs.

Affirmed.

ON APPLICATION FOR REHEARING

The applications for rehearings convince us that we erred in affirming the trial court’s taxing all interest on the judgments proportionately to all insurers. The applications point to policy provisions expressly providing to the contrary as to interest accruing after judgment is entered (signed).

Although the policy provisions apply to court costs in the same manner as interest, we reject the contention that only primary insurers should be taxed with court costs. LSA-C.C.P. art. 1920 grants discretion to the trial court to apportion costs and his apportionment is equitable.

National Fire and Marine 'Insurance Company, Hartford Accident and Indemnity Company, and Travelers Insurance Company have substantially similar policy provisions providing for supplemental payments (above and beyond their policy limits) which obligate the insurer to pay:—

all expenses incurred by the company, all costs taxed against the insured in any suit defended by the company and all interest on the entire amount of any judgment therein which accrues after entry of the judgment and before the company has paid or tendered or deposited in court that part of the judgment which does not exceed the limit of the company’s liability thereon.

Mission Insurance Company’s policy defines “excess” for which Mission is responsible. That section of Mission’s policy expressly excludes interest “when such expenses are included in other valid and collectible insurance.”

A similar provision has been interpreted to excuse the excess insurer from liability. Richardson v. Tate, 269 So.2d 278 (La. App. 4th Cir., 1972). There the “excess” insurer was relieved of liability for interest for which the primary insurer was liable.

Hartford and Travelers were excess insurers with respect to National Fire’s coverage of Wiley. In recognition of its policy obligation (similar to Hartford’s and Travelers’) National Fire has paid the full amount of its policy limits on the judgments together with interest from the date the judgments were signed through June 6, 1975 on the entire $800,000+ awarded in the judgments.

Although Hartford and Travelers are secondary insurers as to National Fire, they are both primary insurers as to Mission. Each provides primary coverage with policy limits of $300,000. Under terms of their policies, they are responsible for “. . . all interest on the entire amount of any judgment therein which accrues after entry of the judgment and before the company has paid or tendered or deposited in court that part of the judgment which does not exceed the limit of the company’s liability thereon.”

Interest which accrued on the judgments after entry of those judgments is not part of the “excess” for which Mission is liable, and we erred in affirming the trial court’s assessing a portion of that interest to Mission.

Interest which accrued from date of judicial demand until entry of judgment was properly apportioned to the different insurers.

We amend our prior decrees to recognize that National Fire paid interest on all judgments from the date the judgments were signed until it paid its policy limits, and to assess all legal interest which accrues on the judgments from June 6, 1975 to defendants Hartford and Travelers. Should Hartford and Travelers satisfy their liability on the judgments, Mission would then be liable for interest accruing thereafter.

With these amendments, all applications for rehearing are denied. All parties are hereby granted leave to file additional applications for rehearing relating to these amended decrees.

Amended and affirmed.


source: Caselaw Access Project

author: MILLER, Judge.

license: Public Domain

text:
    Mamie C. DIXON, Plaintiff-Appellee, v. Gus O. WILEY et al., Defendants-Appellants.
    No. 5244.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    Rehearing Denied Ján. 30, 1976.
    Gold, Hall, Hammill & Little by Leo Gold, Stafford, Pitts & Stafford by John L. Pitts, Lewis O. Lauve, Gist, Methvin & Trimble by James T. Trimble, Jr., Alexandria, Sam J. Friedman, Natchitoches, for defendants-appellants.
    Gravel, Roy & Burnes by 'Chris J. Roy, Alexandria, Roy Maughan and Dorsey Martin, III, Baton Rouge, Alfred Mansour and Edward A. Kaplan, Pharis & Pharis by F. Jean Pharis, Alexandria, Watson, Murchison, Crews & Arthur by William P. Crews, Jr., Natchitoches, for plaintiff-ap-pellee.
    Before MILLER, WATSON and CU-TRER, JJ.
   MILLER, Judge.

Defendants appeal a judgment awarding' $125,000 in general damages to plaintiff Mamie C. Dixon for the wrongful deaths of her children Mary, age 15, David, age 13, and Minnie Ruth, age 9. All were guest passengers in a pickup truck. We affirm.

This case was consolidated for trial and appeal with Ogaard v. Wiley, 325 So.2d 642 (La.App. 3 Cir. 1975), handed down this date. Defendants are named in that opinion. For reasons there assigned the trial court judgment is affirmed as to liability of the several defendants.

Mrs. Dixon had seven children. One remains alive. That one is now living away from home. • A son was killed in an automobile accident some years before. Two of her daughters, Mrs. Stanley and Mrs. Meaux, were killed in this same accident with David, Mary and Minnie Ruth. The outing originated at her home. The children were being treated to a swimming party as a reward to the younger children for a successful school year.

The record shows this family to have been especially close knit with great emphasis on family activity and cooperation. The children took active parts in their annual food canning project, helped with housework and gardening. The son brought in wood and fed the livestock. The older daughter helped with sewing. The record established an intimate and affectionate relationship between the children and their mother.

The children did well in school. They were active and well adapted socially.

Mrs. Dixon finds it almost impossible to leave her home, she has trouble sleeping and at trial was still under medication. Her life-style has been greatly disrupted. It was difficult for her to articulate her response to the tragic loss of five children in one accident.

Although she has consolation in her second marriage together with her responsibilities to her husband’s daughter by a former wife, we find no manifest error in the award. It is not so disproportionate to awards in similar cases as to indicate an abuse of the trial court’s much discretion.

The trial court judgment is affirmed at appellants’ costs.

Affirmed.

ON APPLICATION FOR REHEARING

For reasons assigned on rehearing in Ogaard v. Wiley, 325 So.2d 642 (La.App. 3rd Cir., 1975), we amend the trial court’s and our former, decree to assess all legal interest which accrues on the judgment from June 6, 1975 to defendants Hartford and Travelers. Should Hartford and Travelers satisfy their liability on the judgments, Mission would then be liable for interest accruing thereafter.

With this amendment, all applications for rehearing are denied. All parties are hereby granted leave to file additional applications for rehearing relating to this amended decree.

Amended and affirmed.


text:
    Ben GUNTER and Maxine Gunter, Plaintiffs-Appellees, v. Gus O. WILEY et al., Defendants-Appellants.
    No. 5245.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    Rehearing Denied Jan, 30, 1976.
    Gold, Hall, Hammill & Little by Leo Gold, Stafford, Pitts & Stafford by John L. Pitts, Lewis O. Lauve, Gist, Methvin & Trimble by James T. Trimble, Jr., Alexandria, Sam J. Friedman, Natchitoches, for defendants-appellants.
    Gravel, Roy & Burnes by Chris J. Roy, Alexandria, Roy Maughan and Dorsey Martin, III, Baton Rouge, Alfred Mansour and Edward A. Kaplan, Pharis & Pharis by F. Jean Pharis, Alexandria, Watson, Murchison, Crews & Arthur by William P. Crews, Jr., Natchitoches, for plaintiffs-ap-pellees.
    Before MILLER, WATSON and CU-TRER, JJ.
   MILLER, Judge.

Defendants appeal the awards totaling $161,846 to plaintiffs Ben and Maxine Gunter for the wrongful deaths of their children, Joseph, age 14, and Roxann, age 10. We affirm.

This case was consolidated for trial and appeal with Ogaard v. Wiley, 325 So.2d 642 (La.App. 3 Cir., 1975), handed down this date. Defendants are named in that opinion. For reasons there assigned the trial court judgment is affirmed as to liability of the several defendants.

It was established in the record that plaintiffs’ children were intelligent, courteous, and respectful. They had a close and affectionate relationship.

Father and son went fishing at least once each week. Daughter assisted in the family shopping and did some of the cooking. All four often engaged in family activities.

The record is sketchy, but these parents established a community of interest, love, and affection existed in their home.

Although we would have made a lesser award on this record, defendants failed to establish manifest error in the trial court’s exercise of its much discretion in awarding $40,000 to each parent for each child.

The trial court judgment is affirmed at appellants’ costs.

Affirmed.

ON APPLICATION FOR REHEARING

For reasons assigned on rehearing in Ogaard v. Wiley, 325 So.2d 642 (La.App. 3rd Cir., 1975), we amend the trial court’s and our former decree to assess all legal interest which accrues on the judgment from June 6, 1975 to defendants Hartford and Travelers. Should Hartford and Travelers satisfy their liability on the judgments, Mission would then be liable for interest accruing thereafter.

With this amendment, all applications for rehearing are denied. ' All parties are hereby granted leave to file additional applications for rehearing relating to this amended decree.

Amended and affirmed.


text:
    Bertrand Joseph MEAUX, Individually and for the Estate of his minor child, James Meaux, Plaintiffs-Appellees, v. Gus O. WILEY et al., Defendants-Appellants.
    No. 5246.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    Rehearing Denied Jan. 30, 1976.

      Gold, Hall, Hammill & Little by Leo Gold, Stafford, Pitts & Stafford, by John L. Pitts, Lewis O. Lauve, Gist, Methvin & Trimble by James T. Trimble, Jr., Alexandria, Sam J. Friedman, Natchitoches, for defendants-appellants.
    Gravel, Roy & Burnes by Chris J. Roy, Alexandria, Roy Maughan and Dorsey Martin, III, Baton Rouge, Alfred Mansour and Edward A. Kaplan, Pharis & Pharis by F. Jean Pharis, Alexandria, Watson, Murchison, Crews & Arthur by William P. Crews, Jr., Natchitoches, for plaintiff s-ap-pellees.
    Before MILLER, WATSON and CTL TRER, JJ.
   MILLER, Judge.

Defendants appeal a judgment awarding plaintiff Bertrand Joseph Meaux 1) $30,000 for the wrongful death of his wife Mrs. Martha Meaux, the driver of the pickup truck; 2) $40,000 for the wrongful death of his son Charles Eldridge Meaux; and 3) $12,000 to him (for James’ injuries) as administrator of his minor son James’ Estate. Both sons were guest passengers in the pickup truck. Plaintiff Meaux answered the appeal and seeks 1) to increase the $12,000 awarded him as administrator of James’ Estate and 2) to reverse the trial court’s rejection of his claim for the death of his alleged son Joseph Bert Crain. We amend the basis for the trial court’s decision (to reduce the award for the wrongful death of his son Charles, and to recognize his claim for the wrongful death of his son Joseph) and affirm.

This case was consolidated for trial and appeal with Ogaard v. Wiley, 325 So.2d 642 (La.App. 3 Cir. 1975), handed down this date. Defendants are named in that opinion. For reasons there assigned the trial court judgment is affirmed as to liability of the several defendants.

Defendants did not seek to reduce the award for injuries to Meaux’s son James. James’ injuries are reviewed in connection with Meaux’s answer to the appeal.

James suffered lacerations and a broken pelvis in the accident. He was hospitalized for a week and walked with crutches for the next two weeks. James’ principal problems relate to psychological problems which manifest themselves in recurring nightmares and visions. . He dreams about the collision and has visions of his mother and siblings who died in the accident. He exhibits behavior problems for which he has been treated by a mental health clinic and for which he was once hospitalized for three months. He was under treatment at trial. The diagnosis is adolescent adjustment problems secondary to or aggravated by the accident.

Plaintiff failed to establish manifest error in the award for James’ injuries. It is not so inadequate as to constitute an abuse of the trial court’s much discretion.

As to the $40,000 awarded plaintiff Meaux for the death of his son Charles Eldridge Meaux, the record is devoid of testimony or evidence indicating the nature of the relationship between Meaux and his deceased son. Finding no evidence to support the $40,000 award, we reduce it to the sum of $20,000. That amount is allowed on the basis of the natural grief sustained by a father over the death of his son.

The trial court rejected Bertrand Meaux’s claim for damages resulting from the death of Joseph B. Crain (Meaux). Martha filled out this child’s birth certificate as if she were still married to her former husband. But Martha had told him she was divorced before they began living together. Meaux’s testimony indicated they had lived together for almost a year before Joseph’s birth. Meaux “took credit” for the child and lived with the mother during her pregnancy. Joseph was raised in the Meaux home and was always held out to be Meaux’s child. The weight of the evidence establishes Meaux to have been Joseph’s biological father.

In holding Meaux failed to establish himself to be the child’s father, the trial judge’s written reasons focused on the uncertainty of Martha’s divorce from her previous husband. Where and when the divorce was granted and even “if”, are not established. The question so raised has its impact through LSA-C.C. art. 184 which establishes a presumption of paternity by the legal husband of children conceived during the marriage.

After the trial court decided the case, our Supreme Court handed down Succession of Mitchell (Morrison v. Griffin), 323 So.2d 451 (La.1975), which we understand to modify the strict rule.

Under the facts before us, there was no bar to the legitimation of Joseph by Bertrand and Martha’s subsequent marriage.

Furthermore, Meaux established himself to be the biological father and Joseph resided with him in his household. The bar to recovery based on the legitimacy of that relationship would violate the equal protection provisions of the United States Constitution. Glona v. American Guarantee & Liability Insurance Company, 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968).

We therefore find manifest error in the trial court’s refusal to award damages to Bertrand for the death of his son Joseph. In determining quantum we again find the record devoid of testimony or evidence indicating the nature of the relationship between Meaux and his deceased son. We set the quantum to be awarded Meaux for Joseph’s wrongful death at $20,000, the same amount awarded for the death of his son Charles.

Defendants contend the $30,000 awarded Bertrand Meaux for the death of his wife Martha is unsupported. Bertrand married Martha shortly before this accident, but they had been living together for several years prior to the marriage. The record indicates, Bertrand and Martha Meaux had a stable relationship and she cared for the children of both their prior marriages and the children born to them. She kept up the household which he supported. There is evidence of a maturing and permanent relationship.

On the basis of the meager record we would have made a smaller award for the wrongful death of Meaux’s wife, but defendants have failed to establish manifest error in the exercise of the trial court’s much discretion.

The award of funeral expenses was not briefed or argued and is therefore affirmed.

Although we differ with the manner in which the trial court arrived at the award of $70,855.80, we find the award supported by the evidence. The trial court judgment is affirmed at appellants’ costs.

Affirmed.

ON APPLICATION FOR REHEARING

For reasons assigned on rehearing in Ogaard v. Wiley, 325 So.2d 642 (La.App. 3rd Cir., 1975), we amend the trial court’s and our former decree to assess all legal interest which accrues on the judgment from June 6, 1975 to defendants Hartford and Travelers. Should Hartford and Travelers satisfy their liability on the judgments, Mission would then be liable for interest accruing thereafter.

With this amendment, all applications for rehearing are denied. All parties are hereby granted leave to file additional applications for rehearing relating to this amended decree.

Amended and affirmed.


text:
    James C. POLK and Betty C. Polk, Plaintiffs-Appellees, v. Gus O. WILEY et al., Defendants-Appellants.
    No. 5247.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    Rehearing Denied Jan. 30, 1976.

      Gold, Hall, Hammill & Little by Leo Gold, Stafford, Pitts & Stafford by John L. Pitts, Lewis O. Lauve, Gist, Methvin & Trimble by James T. Trimble, Jr., Alexandria, Sam J. Friedman, Natchitoches, for defendants-appellants.
    Gravel, Roy & Burnes by Chris J. Roy, Alexandria, Roy Maughan and Dorsey Martin III, Baton Rouge, Alfred Mansour and Edward A. Kaplan, Pharis & Pharis by F. Jean Pharis, Alexandria, Watson, Murchison, Crews & Arthur by William P. Crews, Jr., Natchitoches, for plaintiffs-ap-pellees.
    Before MILLER, WATSON and CU-TRER, JJ.
   MILLER, Judge.

Defendants appeal a judgment awarding general damages of $80,000 to plaintiffs James C. and Betty C. Polk for the wrongful death of their son James C. Polk, Jr. He was a guest passenger in a pickup truck. We affirm.

This case was consolidated for trial and appeal with Ogaard v. Wiley, 325 So.2d 642 (La.App. 3 Cir. 1975), handed down this date. Defendants are named in that opinion. For reasons there assigned the trial court judgment is affirmed as to liability of the several defendants.

Defendants contend a lesser award would produce substantial investment income. We find that to be irrelevant.

Evidence shows a close family relationship. James Junior was involved in scouting and his father participated in leadership to be with and assist his,son. Junior was the only child still living at home at the time of his death. He was their only son. Because of their age, plaintiffs had no prospect of having more children. Because of the constant reminders and to avoid aggravating their grief, the Polks sold their home and moved away.

On these facts we are unable to hold defendants established manifest error in the trial court’s exercise of its much discretion.

The award of $40,000 in general damages to each parent for the loss of their son is affirmed at appellants’ costs.

Affirmed.

ON APPLICATION FOR REHEARING

For reasons assigned on rehearing in Ogaard v. Wiley, 325 So.2d 642 (La.App. 3rd Cir., 1975), we amend the trial court’s and our former decree to assess all legal interest which accrues on the judgment from June 6, 1975 to defendants Hartford and Travelers. Should Hartford and Travelers satisfy their liability on the judgments, Mission would then be liable for interest accruing thereafter.

With this amendment, all applications for rehearing are denied. All parties are hereby granted leave to file additional applications for rehearing relating to this amended decree.

Amended and affirmed.


text:
    Erasmus STANLEY, Plaintiff-Appellee, v. Gus O. WILEY et al., Defendants-Appellants.
    No. 5249.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    Rehearing Denied Jan. 30, 1976.
    Gold, Hall, Hammill & Little by Leo Gold, Stafford, Pitts & Stafford by John L. Pitts, Lewis O. Lauve, Gist, Methvin & Trimble by James T. Trimble, Jr., Alexandria, Sam J. Friedman, Natchitoches, for defendants-appellants.
    Gravel, Roy & Burnes by Chris J. Roy, Alexandria, Roy Maughan and Dorsey Martin, III, Baton Rouge, Alfred Mansour and Edward A. Kaplan, Pharis & Pharis by F. Jean Pharis, Alexandria, Watson, Murchison, Crews & Arthur by William P. Crews, Jr., Natchitoches, for plaintiff-ap-pellee.
    Before MILLER, WATSON and CU-TRER, JJ.
   MILLER, Judge.

Defendants appeal a judgment awarding $25,000 to plaintiff Erasmus Stanley for the wrongful death of his wife Marcella, a guest passenger in a pickup truck. We affirm.

This case was consolidated for trial and appeal with Ogaard v. Wiley, 325 So.2d 642 (La.App. 3 Cir. 1975), handed down this date. Defendants are named in that opinion. For reasons there assigned the trial court judgment is affirmed as to liability of the several defendants.

Erasmus had been married to Marcella for more than one year. She was nineteen at the. time of her death. The testimony established their close and affectionate relationship. They hunted, fished and spent most of their time together. After the death of his wife, Erasmus moved out of his house and could not return to work. Some months later, he remarried and did return to the house.

Erasmus arrived at the scene of the accident before his wife died. Tr. 867.

Defendants contend the award is so disproportionate as to indicate an abuse of the trial court’s discretion. They rely chiefly on Parker v. Smith, 147 So.2d 407 (La.App. 2 Cir. 1962), where a man was awarded $20,000 when it was established he had been married many years and he and his wife were “inseparable.”

Considering the decreased value of the dollar and the $25,000 award in Hutchins v. Westley, 235 So.2d 434 (La.App. 3 Cir. 1970), we find the $25,000 award to have been high but not so disproportionate as to establish an abuse of the trial court’s much discretion.

The trial court judgment is affirmed at appellants’ costs.

Affirmed.

ON APPLICATION FOR REHEARING

For reasons assigned on rehearing in Ogaard v. Wiley, 325 So.2d 642 (La.App. 3rd Cir., 1975), we amend the trial court’s and our former decree to assess all legal interest which accrues on the judgment from June 6, 1975 to defendants Hartford and Travelers. Should Hartford and Travelers satisfy their liability on the judgment, Mission would then be liable for interest accruing thereafter.

With this amendment, all applications for rehearing are denied. All parties are hereby granted leave to file additional applications for rehearing relating to this amended decree.

Amended and affirmed.


text:
    T. L. STANLEY, Individually and for the Estate of his minor child, Linda Stanley, Plaintiffs-Appellees, v. Gus O. WILEY et al., Defendants-Appellants.
    No. 5248.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    Rehearing Denied Jan. 30, 1976.
    Gold, Hall, Hammill & Little by Leo Gold, Stafford, Pitts & Stafford by John L. Pitts, Lewis O. Lauve, Gist, Methvin & Trimble by James T. Trimble, Jr., Alexandria, Sam J. Friedman, Natchitoches, for defendants-appellants.
    Gravel, Roy & Burnes by Chris J. Roy, Alexandria, Roy Maughan and Dorsey Martin, III, Baton Rouge, Alfred Mansour and Edward A. Kaplan, Pharis & Pharis by F. Jean Pharis, Alexandria, Watson, Murchison, Crews & Arthur by William P. Crews, Jr., Natchitoches, for plaintiffs-appellees.
    Before MILLER, WATSON and CU-TRERJJ.
   MILLER, Judge.

Defendants appeal a judgment awarding $275,000 as general damages for injuries sustained by plaintiff T. L. Stanley’s 13 year old daughter Linda, a guest passenger in a pickup truck. We affirm.

This case was consolidated for trial and appeal with Ogaard v. Wiley, 325 So.2d 642 (La.App. 3 Cir. 1975), handed down this date. Defendants are named in that opinion. For reasons there assigned the trial court judgment is affirmed as to liability of the several defendants.

Linda was taken unconscious from the scene of the accident to St. Francis Cabrini Hospital in Alexandria. She suffered head injuries and a broken pelvis. An emergency tracheotomy was performed prior to her transfer to Shreveport. There three burr holes were made in her skull to protect against the possibility of a potentially fatal hematoma and to relieve dangerous pressure due to edema. Linda remained comatose for more than six weeks. For the next week her mother was able to communicate with Linda by asking questions which Linda could answer by indicating numbers with her fingers. Thereafter Linda made dramatic progress and was allowed to go home during the seventh week of her hospitalization. She was unable to walk and was showing some sign of paralysis of the right side.

Her checkup two months later revealed a continuation of the dramatic progress. Linda could read, was again learning to write, and could walk with some difficulty. However, a radical personality change was detected together with some mental retardation. Her condition was improving two months later, but a visual problem was developing. One year later she had spasticity of gait and slowness of purposeful movements.

Linda had no memory of the accident; her first memories are of her hospitalization in Shreveport. She has memory loss and represses some memories. She has scalp pains, probably psychosomatic. She has a problem with bed wetting. She will not sleep alone, has a fear of being alone, and also has a fear of riding in automobiles. These symptoms indicate Linda’s psychological distress continues.

She continues her musical activity but has difficulty playing because her hand stiffens. Although she participates in group singing, she can’t carry a tune.

The dramatic recovery ceased at the end of the first year.

A psychiatrist and psychologist tested Linda and concluded she has permanent brain damage resulting in mental retardation or intellectual impairment to the dull-normal range. She has some physical impairment of skilled movement, impairment of judgment, and her memory is impaired.

Before the accident, Linda’s SRA scores were in the 49th percentile (51% did better), and after her recovery from the accident, she fell to the 36th percentile. The school guidance counselor could not recommend vocational or occupational preparation for her because jobs generally available to one with Linda’s intellectual capacity required manual skills Linda could not acquire because of her impairment.

Linda’s family testified to her inappropriate behavior confirming the doctor’s diagnosis of impaired judgment. Linda herself testified to emotional management problems. She would “just bust out crying” but could not cry when she wanted to cry. The difficulty this will cause in her social life is aggravated by the change in her appearance. This was observed first hand by the trial judge, but it comes through the cold record by the photographs in evidence. A spontaneity and vitality is lacking, and the doctor relates this to the brain damage and her facial manner.

Defense counsels note her appearance is deceptive and she can still function as a wife and mother. But the changes in her behavior and' appearance resulting from the accident will unquestionably diminish her opportunity to do so.

In summary, Linda is deprived of her skilled activities she enjoyed, her judgment is impaired, her memory is impaired, her intellectual capacity is lessened, and she faces obstructions in her social life and vocational prospects.

Appellants have failed to establish manifest error in the trial court’s exercise of its much discretion in making this award. The trial court judgment is affirmed at appellants’ costs.

Affirmed.

ON APPLICATION FOR REHEARING

For reasons assigned on rehearing in Ogaard v. Wiley, 325 So.2d 642 (La.App. 3rd Cir., 1975), we amend the trial court’s and our former decree to assess all legal interest which accrues on the judgment from June 6, 1975 to defendants Hartford and Travelers. Should Hartford and Travelers satisfy their liability on the judgment, Mission would then be liable for interest accruing thereafter.

With this amendment, all applications for rehearing are denied. All parties are hereby granted leave to file additional applications for rehearing relating to this amended decree.

Amended and affirmed.


author: MORIAL, Judge.

text:
    Edward F. MAYEUR v. RYDER TRUCK LINE, INC. and Ryder Truck Rental, Inc.
    No. 7175.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.
    Mora & Ardoyno, Robert O. Homes, Jr., William J. Mora, III, Metairie, for plaintiff-appellee.
    Porteous, Toledano, Hainkel & Johnson, C. Gordon Johnson, Jr., Geoffrey H. Long-enecker, Paul Batiza, New Orleans, for defendant-appellant.
    Before GULOTTA, BOUTALL and MORIAL, JJ.
   MORIAL, Judge.

This is an appeal from a judgment of the district court holding defendant, Ryder Truck Lines, Inc., liable to plaintiff, Edward F. Mayeur, for the sum of $3,182.78 due to negligent operation of a motor vehicle owned by defendant.

On May 3, 1971 at approximately 11:00 A.M. plaintiff stopped for a traffic signal at the intersection of Monroe Street and Airline Highway in New Orleans. While at this intersection, plaintiff’s vehicle was struck by a truck which thereafter fled the scene.

At the trial, plaintiff testified he did not obtain the driver’s name or the truck’s license number. He described the truck though as being yellow with the name RY-D-E-R written on its side in large red letters. He did not recall anything else written on the truck.

The police officer who investigated the accident also testified at the trial. Although he did not witness the accident, he stated plaintiff told him the offending vehicle had “Ryder Truck Lines” and “4904 Jefferson Highway” written on its side. Based solely upon this testimony, the trial court rendered judgment for plaintiff. Defendant appeals. We affirm.

Defendant contends the trial court erred in finding that the truck was owned by Ryder Truck Lines, Inc. (Ryder) and also that even if it was owned by Ryder, the award of a judgment against it was erroneous.

Both of these contentions lack merit. Defendant’s allegation that plaintiff only identified the vehicle as a “Ryder” truck and that it could have been a “Ryder Truck Rental” truck (an entirely separate entity from Ryder Truck Lines, Inc.) is unsupported by the record. The trial judge concluded that although plaintiff may have forgotten some details, the unre-butted testimony of the police officer in conjunction with plaintiff’s testimony sufficiently established the identity of the defendant by a preponderance of the evidence. We see no error in this conclusion.

Defendant alleges that assuming the offending vehicle was owned by Ryder, the negligence of a lessee-borrower of a vehicle cannot be imputed to the owner of the vehicle absent a showing of privity of contract or knowledge of incompetency of the driver. We accept this as a correct statement of the law. However, in this case there is not one iota of proof which tends to establish that the driver of defendant’s truck was a “lessee or borrower.” Without such a showing, a presumption arose that the driver was the defendant’s employee and that he was acting within the course and scope of his employment. Mayberry v. McDuffie, 135 So.2d 366 (La.App. 2 Cir., 1961). Since defendant did nothing to rebut this presumption, the trial court was eminently correct in holding defendant liable.

The judgment of the trial court is affirmed. Defendant is to pay all costs.

Affirmed.


author: STOULIG, Judge. PER CURIAM.

text:
    Cliff PROBST v. The CITY OF NEW ORLEANS et al.
    No. 7097.
    Court of Appeal of Louisiana,. Fourth Circuit.
    Jan. 2, 1976.
    Rehearing Denied Jan. 28, 1976.
    Writs Granted March 19, 1976.
    See also, La.App., 325 So.2d 671; 325 So.2d 673.

      Montgomery, Barnett, Brown & Read, Nathan T. Gisclair, Jr., New Orleans, for plaintiff-appellant.
    Philip S. Brooks, City Atty., Beuker F. Amann, Lee R. Miller, Jr., Philip D. Lorio, III, Asst. City Attys., for the City of New Orleans and the City Council of New Orleans, defendants-appellees.
    Gasper J. Schiro, New Orleans, for Lawrence Comiskey, defendant-appellee.
    William J. Guste, Jr., Atty. Gen., Robert L. Danner, Jr., Staff Atty., New Orleans, for the La. Tax Commission and the State of Louisiana, defendants-appellees.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   STOULIG, Judge.

This appeal concerns the validity and constitutionality of a 1973 ad valorem tax on realty within the Central Business District (CBD) of the City 'of New Orleans. In 1972, Cliff Probst paid a $608 city property tax on his lot at Poydras Street and Loyola Avenue in the CBD. In 1973 he was billed almost seven times that amount, or $4,202, on the same lot. The increase came about because the taxing authority began to revalue certain properties in the CBD. Plaintiff paid the 1973 tax under protest and then filed suit to have the 1973 assessment declared null and void and to recover the excess between the 1972 and 1973 tax. If successful the effect of plaintiff’s action would be to reinstate the 1972 assessment. From a judgment dismissing his suit, plaintiff has appealed.

Appellant advances two arguments for reversal:

1. The assessment is unconstitutional in that a program of revaluation of property was instituted on a selective, rather than a uniform basis, resulting in a disparity of taxation between individuals and businesses similarly situated. It is argued this violates the equal protection and due process clauses of the federal and state constitutions.
2. The tax rate attacked is the highest levied within the City of New Orleans and has been made to apply to a geographic district designated by City officials. Plaintiff contends the State reserves unto itself the right to designate special classifications for taxation purposes and any attempt by a local government to do so without legislative or constitutional authority is null and void.

By way of background, the City of New Orleans (constituting the entire Parish of Orleans) is divided into multiple assessment districts with one assessor elected for each district. It is the assessor’s function to appraise properties within his district and list the assigned values on the tax rolls. This list is reviewed by the Board of Review (Board), which has the authority to propose changes in the tax rolls by way of resolution to the Louisiana Tax Commission. This commission is required to review assessments and approve tax rolls of all assessors throughout the State and may or may not adopt the resolutions proposed by the Board.

In the case before us, plaintiff’s tax increase was the direct result of action by the Board. At a 1971 meeting the Board “ * * * passed a resolution to create an adyisory committee to the board to operate during the year to try to develop methods of creating greater equality in assessments throughout the city * *

To implement this resolution the Board’s staff worked through the following year to reappraise numerous properties, but the reappraisal was not on a citywide basis. The revaluation was limited to the metro business area, which comprises a portion of the First Municipal Assessment District (First District) and a portion of the Second Municipal Assessment District (Second District). Five appraisers were employed by the City to revalue property in that part of the First District bounded by Canal Street, the Mississippi River, the Expressway and South Claiborne Avenue; and in' that part of the Second District bounded by Esplanade Avenue, North Rampart Street, Iberville Street, North Claiborne Avenue, Canal Street and the Mississippi River.

Because of the enormity of the undertaking, individual appraisals were not made. Instead property was valued so much per square foot, the value being set primarily by the street location on which the property fronted. For the purposes of this opinion we need not set forth valuation methods with more particularity. Once the square-foot value was assigned by the appraisers, the assessor was expected by the Board to fix the assessment at 33.^3 percent of the appraised land value.

In 1972 the assessor for the First District cooperated with the Board and thus the assessments were adjusted in accordance with its plan only in that part of the First District delineated above. The Second District assessor refused to adjust the assessments as recommended by the Board and the valuation did not become effective in his district for 1973 because of insufficient time for the Board to secure the approval of the Tax Commission. However in 1974, the Board by resolution to the Commission changed his tax rolls to reflect the increased assessments on the revalued property. In two other municipal districts (Third and Fifth Districts) there have been piecemeal revaluation programs.

The evidence establishes the Board devised a revaluation program designed within a specified time period to effect only those properties within the First and Second Districts comprising the CBD. It was the declared objective of the City taxing authority to ultimately revalue and equalize property tax throughout the entire City, but no timetable had been set for the accomplishment of equalization citywide nor was any plan formulated at the time the CBD was revalued.

While the record indicates the Board staff has abandoned any hope of proceeding on a district by district revaluation (if such an idea was ever proposed), it reflects the tax officials are tentatively planning to proceed on a revaluation based on property classification. For example, vacant property in all districts would be revalued the first year; in the second year, industrial; and so on. It is apparent this idea has not been developed into a comprehensive plan with a definite projected completion schedule. Therefore, plaintiff, and other property owners within the CBD must pay, for an indefinite time, higher property taxes than persons similarly situated without the CBD but within the same municipal district or in other sections of the City.

The testimony of the First District assessor establishes this range of ratios of percentages of actual value used for assessment purposes throughout his district:

CBD commercial properties 331/3%
Light and heavy industrial (outside the CBD) 25%
Commercial properties (outside the CBD) 25% to 30%

In addition to this disparity, those properties outside the CBD in the First District are not scheduled for a systematic reappraisal to adjust their tax base to current market value.

CONSTITUTIONALITY

All citizens are guaranteed equal protection of law by U.S.Const, art. XIV and LSA-Const. Art. 1, § 2 (1921). The equal protection principle, as it applies to taxation, is reiterated as a constitutional right by that part of LSA-Const. Art. 10, § 1 in these words: “ * * * all taxes shall be uniform upon the same class of subjects throughout the territorial limits of the authority levying the tax * * The right to uniformity of taxation is synonymous with the right to equal protection under the law in the area of taxation.

The United States Supreme Court in a landmark decision, Sunday Lake Iron Co. v. Township of Wakefield, pointed out the equal protection clause of the Fourteenth Amendment is designed to protect each taxpayer against bearing a disproportionate share of the tax burden as a result of discrimination, either in the statute itself or the manner in which it is administered. Specifically the Court held “ * * * an intentional systematic undervaluation by state officials of other taxable property in the same class contravenes the constitutional right of one taxed upon the full value of property * *

The City argues it has undertaken a program of piecemeal revaluation in response to the “State Supreme Court’s mandate in Bussie v. Long” to revalue property in the Parish at actual cash value. The Board decided to begin the process in the geographical area known as the CBD. (We note at this point the Bussie decision was rendered in 1973 and the revaluation program of which plaintiff complains was initiated in 1971; therefore we are somewhat confused by the statement the City is attempting to comply with a court decree.)

In any event, the City argues state and federal courts, recognizing the limited resources often available to taxing authorities in undertaking revaluation programs, have approved piecemeal . reassessment plans as constitutional. The City has cited numerous cases in which cyclical plans of revaluation have been held constitutional; however, these are inapposite to the instant case. In the cited cases a legislative body has formulated an equalization plan requiring revaluation of property throughout the jurisdiction of 'the taxing authority within a specified period of time. For a cyclical revaluation program to meet the equal protection and uniformity requirements it must be systematic and nondiscriminatory. In Carkonen v. Williams the Supreme Court of Washington observed:

“In keeping with the import of the Sunday Lake decision * * * state courts which have considered cyclical revaluation programs have generally found them to be compatible with constitutional equal protection and uniformity provisions, provided they he carried out systematically and without intentional discrimination.”

This same Washington court declared unconstitutional a tax revaluation of 6 percent of the property within a county when the assessor, under a four-year cyclical revaluation law of the state legislature, was required to reassess 25 percent of the land in his county within one year. Even though he testified he could revalue the remaining 94 percent within the next three years of the program, the court held in Dore v. Kinnear :

“Thus, where a cyclical program of revaluation is undertaken, a systematic and consistent program of revaluation must be maintained during each year of the cyclical period in a county. This would require that substantially an equal amount of taxable property in a county be revalued in each year of the cyclical program in order that all taxpayers receive the same treatment within the cyclical period to avoid derogation of the equal protection clauses of our federal and state constitutions and the uniformity of taxation clauses of our state constitution.”

We subscribed to the quoted views, and if we apply that criteria to the plaintiff’s situation, we can only conclude the tax levy on his CBD property violates his state and federal constitutional guarantees of equal protection of law and his state constitutional right to uniformity of taxation.

What renders the action of the Board unconstitutional in revaluing the property in the CBD is that it proceeded without a systematic plan to completely equalize taxes by revaluing properties throughout the City. Nicholas Gagliano, executive assistant to the Mayor of New Orleans, conceded complete equalization should have been attempted but it was anticipated the plan for geographic equalization would be opposed by certain assessors. He confirmed the attempt at geographic revaluation (such as it was) was abandoned and the reassessment by classification of property was substituted in its place. No plan of revaluation by this latter method was ever formally adopted by the Board.

We therefore hold the 1973 assessment unconstitutional.

INVALIDITY

Because we conclude the 1973 assessment is a nullity in that it violates the constitutional guarantees of equal protection and uniformity, we need not discuss at length the arguments on its validity under our state statutes and constitution. We do hold however there is no basis in law for the City of New Orleans to create a geographic district and subject it to a special ad valorem tax. The power to create special classes for taxation purposes is re-, served to the State and the requirement of uniform taxation can only be superceded by action of the state legislature. In Bussie v. Long, 286 So.2d 689 (La.App. 1st Cir. 1973), the court noted:

“A state may establish reasonable classifications for the taxing of property at different rates. However,, if state law requires that all property be taxed at a uniform rate and has enacted laws to insure such result, any substantial disparity or difference in taxes arising from failure of state officers to properly administer the laws will be held in violation of the due process and equal protection clauses of the United States Constitution. Weissinger, above. To the same effect, see Louisville & Nashville R. Co. v. Public Serv. Comm. of Tenn., D.C., 249 F.Supp. 894.”

In 1972 a proposed constitutional amendment was rejected by the people of the State of Louisiana that would have set up the CBD as a separately assessed and taxed public improvement district. Thus in revaluing CBD properties the Board had no legal basis for treating this area as a separate and distinct class for tax purposes.

We cannot grant plaintiff’s claim for reimbursement of the taxes paid under protest with interest because he failed to join the tax collector of the City of New Orleans, who is an indispensable party defendant insofar as the claim for repayment is concerned. It is only to him that an order could be directed to reimburse the payments made under protest. LSA-R.S. 47:2110, the statute under which plaintiff brings his claim, directs in part:

“The right to sue for recovery of a tax paid under protest as provided herein shall afford a legal remedy and right of action in any state or federal court having jurisdiction of the parties and subject-matter, for a full and complete adjudication of any and all questions arising in the enforcement of such right respecting the legality of any tax accrued or accruing or the method of enforcement thereof. In any such suit, service of process upon the officer designated by law for the collection of the tax shall be sufficient service, and he shall be the sole necessary and proper party defendant in any such suit.” (Emphasis added.)

There are two aspects to this suit, namely, a request for a ruling on constitutionality and a claim for reimbursement of tax paid under protest should plaintiff prevail. With respect to the issue of constitutionality, the tax collector is not an indispensable party and the proper defendants were cited to admit of its adjudication. However, under the quoted statute, the collector had to be joined in the claim for reimbursement. LSA-C.C.P. art. 641 defines an indispensable party as one whose interest in the subject matter is “ * * * so interrelated, and would be so directly affected by the judgment, that a complete and equitable adjudication of the controversy cannot be made unless [he is] * * * joined in the action.” The express verbiage of the statute makes the tax collector the proper party defendant in any suit to recover a tax paid under protest. Since the Director of Finance (the tax collector for the City of New Orleans) has not been cited and made a party defendant, the court is powerless to condemn him in judgment to return the tax paid.

However commendable and laudable may have been the efforts of the Mayor and Council of the City of New Orleans to eliminate tax inequities existing in the CBD by the realistic adjustments of assessments, such an objective must be accomplished within the framework of the constitutional, statutory and jurisprudential guidelines of uniformity and equality.

For the reasons assigned, the judgment appealed from is annulled and set aside insofar as it decrees the 1973 Central Business District assessment constitutional and it is now ordered that said assessment be decreed to be unconstitutional. The increased amount of the 1973 assessment stated herein is declared to be null and void. Insofar as it dismisses plaintiff’s suit for the return of the taxes paid under protest, the judgment appealed from is affirmed.

Annulled in part; affirmed in part; and rendered.

ON APPLICATIONS FOR REHEARING

PER CURIAM.

We recall that part of our original decree dismissing plaintiffs’ suit for a refund of taxes paid under protest for failure to join “the officer designated by law for the collection of tax.” Under C.C.P. art. 646 we remand this matter to permit plaintiffs to join the tax collector, who, we hold, is an indispensable party defendant. Accordingly the decree is amended as follows :

For the reasons assigned, the judgment appealed from is annulled and set aside insofar as it decrees the 1973 Central Business District assessment constitutional and it is now ordered that said assessment be decreed to be unconstitutional. The increased amount of the 1973 assessment stated herein is declared to be null and void. Insofar as it dismisses plaintiffs’ suit for the return of the taxes paid under protest, the judgment appealed from is set aside and this matter is remanded for the limited purpose of joining the tax collector as a party defendant and cite him to present whatever defense, if any, he has, so that an appropriate judgment may be rendered. Assessment of costs are to await the final determination of this matter.

Except as amended herein, we adhere to our original opinion. The applications for rehearing are refused.

Original decree recalled and, as amended, reinstated; rehearings refused.

      . U.S.Const. art. XIV; LSA-Const. Art. 1, § 2 (1921).

      . All other Parishes each has one assessor.

      . The Board consists of the Mayor, as chairman, together with the members of the City Council, a member of the Board of Liquidation, a member of the Sewerage and Water Board, the president of the Board of Commissioners of the New Orleans Levee District and the president of the Orleans Parish School Board. The assessor of the municipal district shall act in a nonvoting advisory capacity to the Board. LSA-R..S. 47:1931.

      . 247 U.S. 350, 38 S.Ct. 495, 62 L.Ed. 1154 (1918).

      . 286 So.2d 689 (La.App.1st Cir. 1973). Writs refused, 28 So.2d 354.

      . 76 Wash.2d 617, 458 P.2d 280 (1969).

      . 79 Wash.2d 756, 489 P.2d 898 (1971).

      . An appellate court may note the non-joinder of an indispensable party on its own motion. C.C.P. art 927.


text:
    Harry B. SCHMIDT, Jr. v. The CITY OF NEW ORLEANS et al.
    No. 7098.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 2, 1976.
    Rehearing Denied Jan. 28, 1976.
    Writs Granted March 19, 1976.
    Montgomery, Barnett, Brown & Read, Nathan T. Gisclair, Jr., New Orleans, for plaintiff-appellant.
    Philip S. Brooks, City Atty., Beuker F. Amann, Lee R. Miller, Jr., Philip D. Lorio, III, Asst. City Attys., for the City of New Orleans and the City Council of New Orleans, defendants-appellees.
    Gasper J. Schiro, New Orleans, for Lawrence Comiskey, defendant-appellee.
    William J. Guste, Jr., Atty. Gen., Robert L. Danner, Jr., Staff Atty., New Orleans, for the Louisiana Tax Commission and the State of Louisiana, defendants-appellees.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   STOULIG, Judge.

This appeal concerns the validity and constitutionality of a 1973 ad valorem tax on realty within the Central Business District (CBD) of the City of New Orleans. In 1972, Harry B. Schmidt, Jr., paid a $3,686 city property tax on a parcel of ground fronting on Tulane Avenue between Loyola Avenue and South Rampart Street. In 1973 he was billed $6,455.80 for taxes on the same property. The increase resulted from the taxing authority’s revaluation of property in the geographic district designated by city officials as the CBD.

Plaintiff paid the 1973 tax under protest and then filed suit to (1) recover the excess between the 1972 and the 1973 taxes; (2) to have the 1973 assessment declared unconstitutional; and (3) to have the 1972 value reinstated. From a judgment dismissing his suit, plaintiff has appealed.

This case was consolidated for trial with a suit entitled Probst v. The City of New Orleans, et als., La.App., 325 So.2d 665, and has been appealed as part of a consolidated case. The Probst matter bears number 7097 of our docket.

For the reasons assigned in the Probst case, the judgment appealed from is annulled and set aside insofar as it decrees the 1973 Central Business District assessment constitutional and it is now ordered that said assessment be decreed to be unconstitutional. The increased amount of the 1973 assessment stated herein is declared to be null and void. Insofar as it dismisses plaintiff’s suit for the return of the taxes paid under protest, the judgment appealed from is affirmed.

Annulled in part; affirmed in part; and rendered.

ON APPLICATIONS FOR REHEARING

PER CURIAM.

We recall that part of our original decree dismissing plaintiff’s suit for a refund of taxes paid under protest for failure to join “the officer designated by law for the collection of tax.” Under C.C.P. art. 646 we remand this matter to permit plaintiff to join the tax collector, who, we hold, is an indispensable party defendant. Accordingly the decree is amended as follows :

For the reasons assigned in the Probst case, the judgment appealed from is annulled and set aside insofar as it decrees the 1973 Central Business District assessment constitutional and it is now ordered that said assessment be decreed to be unconstitutional. The increased amount of the 1973 assessment stated herein is declared to be null and void. Insofar as it dismisses plaintiff’s suit for the return of the taxes paid under protest, the judgment appealed from is set aside and this matter is remanded for the limited purpose of joining the tax collector as a party defendant and cite him to present whatever defense, if any, he has, so that an appropriate judgment may be rendered. Assessment of costs is to await the final determination of this matter.

Except as amended herein, we adhere to our original opinion. The applications for rehearing are refused.

Original decree recalled and reinstated as amended; rehearings refused.


author: STOULIG, Judge.

text:
    WALGREEN LOUISIANA COMPANY, INC., et al. v. CITY OF NEW ORLEANS et al.
    No. 7139.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 2, 1976.
    Rehearing Denied Jan. 28, 1976.
    Writs Granted March 19, 1976.
    Arthur L. Ballin and Frank C. Duden-hefer, New Orleans, for plaintiffs-appellants.
    Philip S. Brooks, City Atty., Beuker F. Amann, First Asst. City Atty., Lee R. Miller, Jr., Philip D. Lorio, III, Asst. City Attys., for the City of New Orleans and Henry G. Simmons, Director of Finance, City of New Orleans, defendants-appellees.
    Gasper J. Schiro, New Orleans, for Dr. Claude J. Mauberet, Jr., Assessor.
    William J. Guste, Jr., Atty. Gen., Robert L. Danner, Jr., Warren E. Mouledoux, Louis M. Jones, and William P. Curry, Jr., Asst. Attys. Gen., for the State of Louisiana and the Louisiana Tax Commission, defendants-appellees.
    McGinity & McGinity, Richard J. McGinity, New Orleans, for Bd. of Levee Commissioners, Orleans Levee Dist., defendant-appellee.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   STOULIG, Judge.

Appellants are owners or lessees of immovable'property who challenge the validity and constitutionality of the 1974 and the 1975 assessments of tax against their properties within the Central Business District (CBD) of the City of New Orleans. Plaintiffs’ properties are located in that part of the Second Municipal Assessment District bounded by the Mississippi River, Iberville Street, North Claiborne Avenue and Canal Street. Under a plan of revaluation of property primarily within the CBD of which the delineated strip constitutes a part, plaintiffs’ taxes were increased substantially. After paying the 1974 taxes under protest, petitioners availed themselves of the provisions of LSA-R.S. 47:1999 and 47:2110 by filing suit for a refund of the amount of the increase after the revaluation and to have the assessment as increased declared invalid and unconstitutional. While this matter was pending, 1975 taxes accrued and were paid under protest and plaintiffs amended their pleadings to claim refund for the difference between the 1973 and the 1975 taxes. The trial court dismissed their suit.

We reverse the decision of the trial court. In Probst v. The City of New Orleans, La.App., 325 So.2d 665 we declared the plan under which the increased assessments were levied against CBD property owners invalid and unconstitutional. The same reasoning applies in this case. Plaintiffs in this suit made the Director of Finance of the City of New Orleans a party defendant as required by LSA-R.S. 47:2110 (in this respect it procedurally differs from Probst). Therefore, they are entitled to a refund of that portion of the taxes paid under protest which represents the increase attributable to the revaluation of their property in the CBD.

For the reasons assigned the judgment appealed from is reversed and it is now ordered that there be judgment against Henry G. Simmons in his capacity as Director of Finance of the City of New Orleans in favor of the following plaintiffs :

1. May Heymann Wolf, Jimmy Hey-mann, individually and as trustee of the Jerry Heymann Separate Property Trust and Jerry Heymann, jointly, in the sum of $14,281.68;
2. Krauss Company, Ltd., and May Fellman Parker jointly in the sum of $5,638.48; and
3. Succession of Frank J. Monteleone, Mrs. Mae Attaway, wife of Oliver Miller, William A. Monteleone and Walgreen Louisiana Company, Inc., jointly, in the sum of $3,472.04.

The above awards of refunds shall bear interest at the rate of 2 percent per annum from date of payment of taxes until date of review in accordance with LSA-R.S. 47:2110.

It is further decreed that the increased amounts of the 1974 and the 1975 Central Business District tax assessments are null and void.

Revered and rendered.