text:
    PLAN INVESTMENTS, INC. v. Jeff BRUMFIELD and Fannie Brumfield.
    No. 10371.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.

      Roland C. Kizer, Kizer & Kizer, Baton Rouge, for third party defendant-appellant.
    Lawrence Roe Dodd, Kizer & Kizer, Baton Rouge, for plaintiff-appellee.
    Carmack M. Blackmon, Baton Rouge, for third party plaintiff-appellee Fannie B. Brumfield.
    Before SARTAIN, ELLIS and BAR-NETTE, JJ.
   BARNETTE, Judge.

On October 16, 1972, Jeff Brumfield and his wife, Fannie B. Brumfield, obtained a mortgage loan from the plaintiff, Plan Investments, Inc., in the amount of $5,519.64 payable in monthly installments of $65.71. The loan was secured by a mortgage on their home. As a part of the loan negotiation credit life insurance was arranged by the mortgagee for the benefit of the mortgagor, Brumfield, from United Companies Life Insurance Company. The insurance was on the life of the mortgagor, Brumfield, and provided for liquidation of any unpaid balance on the mortgage indebtedness in the event of the death of Brumfield. A premium of $346.26 for the credit life insurance was included in the total amount of the mortgage note.

The monthly payments were made regularly, plus $5.00 which went into an “escrow account” to pay the annual premiums when due for fire and extended insurance coverage on the property.

Brumfield died on September 16, 1973 at which time the monthly installments were current.

The widow, Fannie B. Brumfield, notified Plan Investments and United Companies Life Insurance Company of Brum-field’s death and made demand upon the latter for payment of the mortgage balance under the terms of the insurance policy.

United refused to honor the claim for the alleged reason that Brumfield had represented his age to be 64 at the time of obtaining the loan and insurance, whereas he was then 69. The policy provisions restrict insurance coverage to persons between 18 and 65 years of age. An attempt was made to refund the insurance premium which had been paid in advance by inclusion in the mortgage note. Mrs. Brumfield refused to accept the proffered check, and the amount, $377.42, was credited to the account.

Plan Investments filed suit against Fannie B. Brumfield, individually and as widow in community for mortgage foreclosure by executory process. An injunction was sought and obtained on technical grounds which need not be discussed here. Thereafter amended petitions were filed to convert the action into an ordinary suit on the promissory note. The amended petitions do not pray for recognition and execution of the mortgage but only for a money judgment against Fannie B. Brumfield in the amount of $4,435.12 with interest and attorney’s fees as provided in the note.

The defendant answered pleading payment through proceeds of the insurance and alternatively pleading the defense of failure of consideration for default in providing the insurance coverage promised and made a condition of the execution of the note.

She then pleaded a third party action against United for such judgment as might be rendered against her in favor of Plan Investments. Additionally she sought recovery of the statutory penalty and attorney’s fee.

Judgment was rendered in favor of plaintiff against Mrs. Brumfield in the amount prayed for. Judgment on the third party demand was rendered in favor of Mrs. Brumfield against United Companies Life Insurance Company for the amount of the judgment against her in favor of the plaintiff, “subject to credit of $377.42 representing refund for premiums returned on the credit life insurance policy * * The third party demand for penalty and attorney’s fee was rejected.

From this judgment United Companies Life Insurance Company appealed suspen-sively.

Mrs. Brumfield, defendant and third party plaintiff, answered the appeal and seeks reversal of that portion of the judgment on her third party demand which rejected her claim for penalty and attorney’s fee under provisions of LSA-R.S. 22:656.

She further seeks alternatively through her answer to the appeal a reversal of the judgment against her in favor of the plaintiff on the main demand based on her defense of failure of consideration.

Plan Investments, Inc. has filed a motion in this court to dismiss the “appeal” or the purported appeal which Mrs. Brumfield has attempted, alternatively, from the judgment in its favor on the main demand, in her answer to the appeal of the third party defendant. We will dispose of that motion first.

The motion is good and will be sustained. The main demand is an entirely separate and distinct action from the third party proceeding. The appeal timely taken in the latter presents to this court on appeal only the issues involved in that proceeding. Mrs. Brumfield did not appeal from the judgment against her on the main demand and her attempt to do so now through her answer to her defendant’s appeal meets none of the requirements of law for perfecting an appeal.

We must reject as being entirely without merit her counsel’s argument that the appeal by the third party defendant brought up to this court all the issues tried below. The judgment on the main demand against Mrs. Brumfield is final.

We turn now to the issues emanating from the third party action.

Plan Investments, Inc. and United Companies Life Insurance Company are related concerns which apparently share the same office and personnel. Sidney J. Caston, who identified himself as an employee of “United Companies, Plan Investments” testified that the credit and insurance businesses are “a joint operation.” That the application for the Brumfield loan was handled by Mr. Piatkiewicz, manager of the credit department and the application was then directed to him to make the mortgage loan. Mr. Piatkiewicz could not recall if Brumfield’s application for the loan was made at the office or by telephone. The application form was not signed by Brumfield. The application for credit life insurance was completed in the Company office from information taken from the credit application form which has a block space for “Birth — Date” in which is written “64”. This was admittedly written by Mr. Piatkiewicz and the information as to age was taken from a similar form used in connection with a prior loan in February, 1972, in which the “age of insured” was shown as 63. Mr. Piatkiewicz evidently assumed that by October he was a year older and wrote in the figure “64”.

After Brumfield’s death a copy of the death certificate was obtained which indicated his date of birth was January 1, 1903, hence, age 69 at the time of the loan and insurance application. The information as to his age was said to have been given at the hospital by his daughter. She did not testify and, hence, we do not know the source of her knowledge of his age, nor the accuracy thereof.

The credit life insurance master policy filed in evidence provides coverage only for persons between age 18 and 65. It is more probable than not that Brumfield, who was practically illiterate, had no knowledge of the age limitations for procuring the credit life insurance. On the other hand, Mr. Piatkiewicz knew the policy restrictions but made no effort to determine the applicants eligibility when it should have been apparent to him that Brumfield was at least near the age limitation. Mr. Piatkiewicz testified in response to questions by the Court:

“Q Did you ever tell Jeff Brumfield that if he was over sixty-five that he couldn’t get insurance, credit life insurance ?
“A I don’t remember stating that, no, sir.
“Q You never did tell him that. Did you put him on notice that if he were over sixty-five .
“A No, sir, I didn’t.”

The trial judge said in his reasons for judgment:

“It’s the Court’s opinion, based on the evidence and testimony presented in this case and the educational status of the defendants herein, that the application for the loan in October 1972, and also the previous loan application, were made and filled out by Mr. Piatkiewicz, the employee of the finance company. It’s entirely possible, although not proven, that Mr. Piatkiewicz, being familiar with the age brackets 18-65, inclusive and in reliance on the previous application where Mr. Brumfield’s age was given at 63, might well have inserted the age of 64.
“It’s the Court’s opinion that the act of Mr. Piatkiewicz in accepting as correct the age of the insured in completing the application for the insured, Jeff Brumfield, for his insurer, third party-defendant, and the fact that the age of Jeff Brumfield was requested rather than the date of his birth as the application form calls for is sufficient negligence to bind third party defendant to the information relied upon in issuing the credit life policy on Jeff Brumfield.
“The Court is not convinced that there was any misrepresentation made by the Brumfields with an intent to deceive and it’s the Court’s further opinion that no misrepresentation made by the Brum-fields themselves was material to the issuance of the policy.
“The Court is of the opinion that the third party defendant has not borne its burden of proving that the misrepresentation of Jeff Brumfield’s age was done with an actual intent to deceive the third party defendant.
“It’s the Court’s opinion that the evidence does effectively show that all transactions were performed in good faith by Jeff Brumfield, that he was trying to negotiate a loan, and one of the requirements made by the finance company, not by him, to secure such a loan was that credit life insurance be taken out on his life. The agent accepted Jeff Brumfield’s age as stated as being correct, contrary to information required by the application. Therefore, the third party defendant may not now use this to vitiate its liability under the contract of credit life insurance issued on the life of Jeff Brumfield.”

The evidence and all the circumstances surrounding the negotiations for the loan and credit life insurance amply support the above findings of fact. The evidence in the record relating to the age of the insured consists of the above mentioned death certificate, and the testimony of the widow, Fannie B. Brumfield, who testified that when the loan papers were brought to her home for execution no questions were asked concerning her husband’s age, but that if she had been asked she would have said he was over sixty-five. She further testified: “I don’t know, sir, how old he was, but I know he was over sixty-five.”

The unverified information given at the hospital by the deceased’s daughter for the purpose of the death certificate, is not conclusive that he was in fact born on January 1, 1903, a fact which obviously the daughter could not know except from hearsay information. The widow’s testimony is indefinite except that it indicates her opinion that he was over sixty-five years of age.

Whether or not this inconclusive testimony is enough to discharge the third party defendant's burden of proof that the applicant was in fact more than sixty-five years of age when the credit life insurance was issued, is not essential to a determination of the material issue of the insured’s intent to deceive the insurer. The evidence as a whole fails to discharge the burden of proof which the law imposes upon the defendant, insurer, that the insured falsely stated his age with actual intent to deceive, and that the alleged misrepresentation of age materially affected the acceptance of the risk. Boyette v. Chrysler Credit Corporation, 298 So.2d 130 (La.App. 1st Cir. 1974), writ refused, 302 So.2d 24 (La.1974); Murphy v. Continental Casualty Company, 269 So.2d 507 (La.App. 1st Cir. 1972); LSA-R.S. 22:619.

Apparently Brumfield’s age was assumed by Mr. Piatkiewicz from reference to the prior credit application. The application forms were filled in by defendant’s office employees and were not signed by the applicant. This would seem to remove any doubt which Mr. Piatkiewicz had whether the application was made by telephone or at defendant’s office.

Not only did Mr. Piatkiewicz merely assume Brumfield’s age at the time of making the loan in question, from the information contained in the previous loan application, but there is no proof that the alleged age of 63 in the previous application was given by Brumfield. He was not asked his age when the application in question was taken by telephone. He was not asked to sign the application form. Neither he nor his wife was asked his age when the loan papers were taken to the Brumfield home by Mr. Caston for Mrs. Brumfield’s signature. Furthermore, it is very significant that Brumfield was never advised by Mr. Piatkiewicz that there was any age limitation affecting his eligibility for credit life insurance.

The record is devoid of any proof that Brumfield gave any statement of age or made any other misrepresentation of fact with intent to deceive the finance company or the insurer.

We stated above that the two companies operate as “a joint operation,” which is not only obvious, but also by the admission of Mr. Caston. The making of loans and the credit life insurance negotiations are handled by the same employees in one office. These employees know their requirements for security of loans by credit life insurance. Their negotiation of the loan and insurance in this case indicates a willingness to make the loan and secure it with life insurance on the basis of information previously obtained from Brumfield in connection with a prior loan. They (not Brumfield) supplied the necessary information in the new application forms without any attempt to verify its correctness. Their negligence will not be imputed to the insured. There is no evidence that he knowingly or intentionally gave false information or falsely induced them to make the loan or issue credit life insurance.

In Hendricks v. Connecticut General Life Ins. Co., 244 So.2d 249 (La.App.3d Cir.1971) the applicable jurisprudence was restated by the court as follows:

“In the case of Fruge v. Woodmen of the World Life Insurance Company, 170 So.2d 539 (3d Cir. 1965) this court reviewed the jurisprudence contruing the statute in question and held as follows:
‘We think it is settled, therefore, that in view of the provisions of LSA-R.S. 22:619 an insurer cannot succeed in avoiding liability on a life insurance policy on the ground that false statements were made in the application, unless the insurer establishes: (1) That the false statements were made with actual intent to deceive; and (2) that the facts allegedly misstated were material. The law also is clear that where the insurer asserts a special defense of this sort the burden of proof rests on the insurer to establish both the materiality and an actual intent to deceive. * * *
‘The rule also prevails in this state that when the agent of an insurer, acting within the scope of his authority, proceeds to fill out the blanks in an application for a policy of insurance, the acts, representations and mistakes of that agent are considered to be those of the insurance company. In such a case if the agent by mistake, fraud or negligence inserts erroneous or untrue answers to the questions contained in the application, these representations bind the insurer but are not binding upon the insured, provided that the insured was justifiably ignorant of the erroneous answers, had no actual or implied knowledge thereof, was guilty of no bad faith or fraud, and had no intent to deceive the insurer.’ (citations omitted)”

We agree with the trial judge that the insurer’s agent and employee, Piatkiewicz, was negligent in the manner in which he handled the question of the applicant’s age. This fault will not be imputed to the insured in the absence of a clear showing that he did knowingly and intentionally deceive the insurer’s agent. The evidence does not support such a finding in this case. Roy v. Trans-World Life Insurance Company, 199 So.2d 416 (La.App.3d Cir. 1967); Morcin v. American Physicians Insurance Company, 192 So.2d 887 (La.App. 3d Cir. 1967), writs refused, 250 La. 268, 195 So.2d 147 (1967); Fruge v. Woodmen of the World Life Insurance Society, supra.

The only remaining issue is that of penalty and attorney’s fee. By answer to the appeal the third party plaintiff appeals from that part of the judgment which rejected her claim on this issue. On this point, in his reasons for judgment, the trial judge said:

“It is further the judgment of this Court that the judgment for attorney’s fees as prayed for in the third party demand under R.S. 22:656 is rejected by the Court and interest on the amount of the judgment in the third party demand is granted from the date of receipt of due proof of death by the insurer until paid.”

This is correct as a matter of law. LSA-R.S. 22:656 makes no provision for allowance of attorney’s fees. It allows only the penalty of six per cent from the date of receipt of due proof of death by the insurer. The judgment as signed and filed, however, allows seven per cent and must be corrected. The amount of the interest as penalty must not be confused with the rate of judicial interest which follows as a matter of law upon the judgment rendered.

The judgment on the third party demand is in favor of the third party plaintiff, Mrs. Brumfield, for the exact amount in principal ($4,435.12) plus interest and attorney’s fees for which she was cast in favor of plaintiff, Plan Investments, Inc., but with the additional condition: “ * * * subject to a credit of $377.42 representing refund for premiums returned on the credit life insurance policy, * * It is not clear from the record before us if the refund credit was entered in Brumfield’s account with Plan Investments before or after the principal balance of $4,435.12 was computed. We will therefore delete the quoted provision from the third party judgment, for the third party plaintiff is entitled to full recovery of the amount for which she was cast in favor of Plan Investments, plus the interest penalty. If there is an error in bookkeeping it is merely a clerical error which the plaintiff and third party defendant (joint operators) can easily adjust between themselves.

For these reasons the judgment in favor of third party plaintiff, Fannie B. Brum-field, and against third party defendant, United Companies Life Insurance Company, is amended by deleting therefrom the provision “subject to a credit of $377.42 representing refund for premiums returned on the credit life insurance policy, together with 7% interest from date of receipt of notification of Jeff Brumfield’s death, October 12, 1973, until paid.” In lieu thereof there be judgment of six per cent per annum interest on the amount due from October 12, 1973 until paid as penalty. The judgment is further amended to provide that all costs of these proceedings shall be borne by third party defendant, United Companies Life Insurance Company.

In all other respects the judgment insofar as it was appealed is affirmed, at appellant’s cost.

Amended and affirmed.

      . The correctness of the judgment in making this credit allowance is discussed below.


source: Caselaw Access Project

author: BEER, Judge.

license: Public Domain

text:
    Joseph L. SINEGAL, Plaintiff-Appellant, v. TRAVELERS INSURANCE COMPANY, Defendant-Appellee.
    No. 5139.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.
    Ware & Bertrand by Ronald J. Bertrand, Rayne, for plaintiff-appellant.
    Davidson, Meaux, Onebane & Donohoe by James E. Diaz, Lafayette, for defendant-appellee.
    Before DOMENGEAUX, WATSON and BEER, JJ.
   BEER, Judge.

This case arises from an alleged industrial accident suffered by plaintiff-appellant, Joseph L. Sinegal, while working at Broussard Rice Mill in Acadia Parish on August 31, 1973. Defendant, Travelers Insurance Company, is the workman’s compensation insurer of the Broussard Rice Mill. The District Court concluded that Sinegal had failed to show by a preponderance of evidence that he was injured as a result of any accident during the course and scope of his employment at Broussard Rice Mill and rendered judgment dismissing his claim at his costs. We affirm.

Sinegal sustained injury to his lower back in a previous industrial accident on March 17, 1972 while employed at Central Bottling Corporation. He received compensation until January 23, 1973 and then settled his claim for an additional payment of $10,000.

In August of 1972 Sinegal was in an automobile accident in Jennings, Louisiana, which, according to the suit he thereafter filed, resulted in lower back injuries. In August of 1973 Sinegal went to work for Broussard Rice Mill where, two days after he commenced employment, he allegedly suffered an injury to his lower back.

The Trial Court’s findings with respect to this are particularly significant and we quote from his Reasons for Judgment as follows:

“On the second day of work, August 31, 1973, the plaintiff claims that he slipped, fell and injured his low back. The man that was working with the plaintiff at the time of the so-called accident, testified that the plaintiff tried to pay him FIVE HUNDRED AND NO/lOO ($500.00) DOLLARS to testify in his favor. This co-employee testified that the plaintiff said he had hurt himself in an automobile accident, was still suffering at the time he was working for Broussard Rice Mill . . . . At no time did the plaintiff mention hurting his back on the job.
“The testimony of the supervisor, Gene Gotreaux, and the rest of the employees of Broussard Rice Mill was that the plaintiff made no mention of any accident involving an injury to his back although he had repeated opportunities to have done so. The miller, Exall Le-Blanc, testified he fired the plaintiff for loafing on the job the day after the plaintiff had the alleged accident and the plaintiff said nothing of being hurt on the job. The supervisor testified he knew nothing of the alleged accident until receipt of the demand letter by the plaintiff’s attorney.
“The plaintiff supposedly got hurt on August 31st but did not go to a doctor until September 10, 1973. Instead of going to see his family doctor, Dr. Bear-den in Jennings where the plaintiff lives, he went to see Dr. Segura in Crowley, presumable at his attorney’s request.”

The jurisprudence is well settled that the plaintiff in a workmen’s compensation claim carries the burden of proof, as in other civil cases. Equally well settled is this rule:

“Where the plaintiff has had several prior injuries to the same part of his body and has had considerable experience in making workmen’s compensation claim, the court will look with great suspicion on the asserted claim and will examine the claim with particular care.” Card v. Southern Builders, Inc., 117 So.2d 675 (La.App.1960).

We concluded that the Trial Court was correct in its findings of fact and in the law applied thereto. The judgment of the Trial Court is affirmed at plaintiff-appellant’s cost.

Affirmed.


author: WATSON, Judge.

text:
    John L. BURROWS et al., Plaintiffs-Appellees, v. LOUISIANA STATE DEPARTMENT OF HIGHWAYS, Defendant-Appellant.
    No. 5130.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.

      William J. Doran, Jr., Baton Rouge, for defendant-appellant.
    Kay, Stewart & Nichols by Stuart S. Kay, Jr., DeRidder, for plaintiffs-appellees.
    Before DOMENGEAUX, WATSON and HALL, J J.
   WATSON, Judge.

This is a claim in tort resulting from a one-car accident, in which the trial court held the defendant liable for a negligent failure to post adequate warning devices at a bridge-construction site. From the adverse ruling, defendant has appealed and the plaintiff-driver has answered the appeal asking for an increase in damages.

Plaintiffs are John L. Burrows, the automobile driver, who sustained severe personal injuries in the accident, and the United States of America, Department of the Army, the owner of the vehicle damaged in the accident and the employer of Burrows. Defendant is the State of Louisiana, Department of Highways. Judgment was awarded by the trial court to Burrows in the amount of $75,000, all as general damages for pain, suffering and disability; recovery was denied for special damages claimed by Burrows for loss of wages, future loss of wages and loss of retirement benefits. Judgment was given to the United States Army in the amount of $6,435.35 for the value of the automobile demolished in the crash and the value of medical treatment rendered by the United States Army to its employee, Burrows.

The accident occurred on November 24, 1972, which was the Friday following Thanksgiving, at approximately 6:30 p. m. The site of the accident was on the Old Merryville Highway, also known as Blankenship Drive, in the city of DeRidder, Louisiana, where the Department of Highways was in the process of construction work which involved removal and rebuilding of a bridge. The work was being performed by a Department crew.

The work had been in progress only a few days and the bridge had not been entirely demolished, but, on the east side at the point where the street joins the bridge, a number of heavy creosote posts had been embedded vertically in the road for the obvious purpose of preventing vehicles from running into the creek below. There is no evidence that there were any signs, reflectors, lights or other warning devices on the creosote posts, and the posts were dark in color.

Burrows, a member of the United States Army assigned to the criminal investigation division and stationed at Fort Polk, Louisiana, left his home in DeRidder a few minutes prior to the accident, entered Blankenship Drive from Davella Drive (some 1,000 feet from the bridge site), and was driving in a westerly direction on Blankenship. The evening was dark and a light rain was falling; there is a dispute in the testimony as to the presence of ground fog. Burrows testified without contradiction that he was proceeding at a safe rate of speed within the speed limit and driving cautiously because of the weather conditions. As he proceeded on Blankenship, he saw a “caution men working” sign which led him to believe that there was roadwork in the area, possibly asphalt repair, and he moved his vehicle more toward the center of the road with the thought that the repair might be of “chug holes”. There was no other traffic.

The bridge site, according to the record, was at a dip in the road. As Burrows came to within five or ten feet of the timbers embedded in the road, he realized that he was going to hit them and tried to steer his vehicle into a gap between them. However, the vehicle crashed into the creosote posts, rendering it a total loss and severely injuring Burrows.

The issue presented by the Department of Highways on appeal is whether it negligently breached its duty to warn the approaching motorist of the obstruction in the highway. The issue presented by Burrows’ appeal is whether the award is adequate. No issue is presented concerning the amount awarded to the United States Army, if there is liability. However, the Department of Highways also makes the contention that the award to Burrows is excessive.

The trial court, in a lengthy and well-reasoned opinion, concluded that the Department of Highways had negligently failed to warn Burrows of what the trial court found to be a “trap” on the highway. From our study of the record we conclude that the trial court was correct. A preponderance of the evidence indicates that there were no flares, no flashing devices and no reflectors at the bridge site. At the time of the accident there was not even a sign which would indicate that the bridge was out. The only signs present at the time of the accident were two reading “Road Work Ahead” and two reading “Men Working” or something similar. Various witnesses indicated different wording on these small, non-reflective signs. There is evidence indicating that at some point in time prior to the accident, a black and white striped board with a small, nonreflective sign reading “Bridge Out”, had been in place 20 or 25 feet in front of the creosote posts. However, the record is clear that this sign was not present at the time of the accident and the record is uncertain as to when it was last in place.

Particularly applicable here is the rule that the safeguards provided must be in proportion to the danger which lies ahead. Dowden v. State, 81 So.2d 48 (La.App. 2 Cir. 1955); Von Cannon v. State, Department of Highways, 306 So.2d 437 (La.App. 3 Cir. 1975), writs denied, La., 309 So.2d 681, 682.

The trial court concluded that the signs and the barricade were totally inadequate to warn approaching motorists. We agree. Therefore, the Department of Highways breached its duty to plaintiff Burrows. This breach of duty was certainly a cause in fact of the accident.

There is no support in the record for the contention by the Department of Highways that Burrows was contributorily negligent. We agree with the trial court’s conclusion that there was no proof of any negligence on the part of Burrows.

The Department of Highways contends that the public had been warned through newspaper and radio advertisements of the removal of the bridge. The trial court correctly concluded that Burrows did not see or hear these warnings. The mere publication or broadcasting of information that a road is closed or a bridge is out is not in and of itself adequate notice to the motoring public.

Another contention by the Department of Highways is that their employees had adequately posted warning signs and flares at the bridge site, but unknown persons had removed these devices. We do not find the evidence on this contention convincing and, apparently, the trial court did not. The principal witness on this point for the Department of Highways was Fred Bass, an employee who was in charge of placing warning signs at the bridge. According to him, at the conclusion of work on Wednesday there were two “roadwork” signs, two “flagman ahead” signs, two “right-lane closed” signs (for what purpose no one knows), one “road closed” sign in the middle of the road on a portable metal stand with two burning flares and one wooden board on sawhorses some 25 feet from the bridge with a “bridge out” sign and three burning flares. The testimony of other witnesses sharply contradicts that of Bass; no one else ever saw the “right-lane closed” signs or the “road closed” sign. No flares were found at the bridge site on the west side immediately following the accident, but the “bridge out” sawhorse was found in the ditch. The record strongly indicates that Bass was, at best, mistaken in his description of the signs.

The Department of Highways emphasizes the testimony of one Slayden, another employee of the Department of Highways, whose duty it was to check the bridge site when the regular crew was not working. The regular crew was off from Wednesday afternoon til the following Monday for the Thanksgiving holidays, and it will be recalled that the accident occurred on the Friday following Thanksgiving. While the trial court stated in reasons for judgment that it believed Slayden, the principal thrust of Slayden’s testimony was that he was concerned only with the flares and not with the signs. Although he testified that he checked the site on the afternoon of the accident, his testimony is vague and unclear as to what signs were present. His testimony, and that of Bass, is not convincing that the site was adequately posted with warning devices.

We are impressed with the fact that the witnesses for the Department of Highways testified that they had had flares stolen prior to the accident from this construction site. With this knowledge, a duty devolved on the Department of Highways to erect warning devices of a type which could not be easily moved or stolen, or to take other precautions. The theory of the Department is that the proper warning devices, signs and flares were present and someone unknown removed these devices, thus absolving the Department of Highways from liability for Burrows’ crash into the creosote posts. This contention fails for the reasons that:

(1) the record establishes that the site was not properly and adequately marked with warning devices in the first place; and

(2) there is evidence which should have put the Department of Highways on its guard to exercise special care to maintain its signs and flares and to warn the motoring public of the hazard; there is no evidence of any special care.

Therefore, the trial court properly and correctly resolved the issue of liability against the Department of Highways and entered judgment in favor of the United States Army and in favor of Burrows.

Quantum

The trial court awarded the sum of $75,000 to Burrows for his injuries which consisted principally of a comminuted fracture of the left leg with a separate “butterfly fragment”; lacerations of the scalp and face which required sutures; partial severing of ligaments in the left knee; and severe bruising of internal organs. This resulted in a lengthy hospital stay from the date of the accident until January 13, 1973. The leg remained in a cast until May, 1973. During his treatment, Burrows underwent six different surgical procedures, most of which were in connection with the fracture but one of which was a general laporotomy necessitated by severe swelling of the abdomen and a drop in blood pressure. This procedure consisted of opening the entire abdominal cavity for inspection and examination of the internal organs. A severely bruised colon was found to be the main cause of abdominal pain and swelling. Burrows has as a result a 14-inch scar on the front of his body.

The healing of the fracture resulted in a 22-degree angulation of the bone and left Burrows with a slight limp. The medical testimony by Dr. Rudolph E. Hamsa, an orthopedic surgeon of Fort Polk, and by Dr. Norman P. Morin, an orthopedic surgeon of Lake Charles, indicates that Burrows has a 20% partial permanent disability referrable to the left leg and that his situation cannot improve but will get worse. The reason for this is the strain placed on the knee and especially the hip by the fracture and the angulated healing. Also, there is an arthritic condition in the knee resulting from the severing of ligaments in the knee in the accident.

Without further detailing Burrows’ medical situation, we find that the medical evidence presents a picture of a 36-year-old, robust, criminal investigation agent of the U. S. Army, who is now partially crippled and will remain so for the rest of his life.

The trial court is accorded much discretion in awarding damages. LSA-C. C. art. 1934; Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971); Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963); Ballard v. National Indemnity Company of Omaha, Neb., 246 La. 963, 169 So.2d 64 (1964); Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (1967); Fox v. State Farm Mutual Automobile Insurance Co., 288 So.2d 42 (La.1973); Spillers v. Montgomery Ward & Company, Inc., 294 So.2d 803 (La.1974); Anderson v. Welding Testing Laboratory, Inc., 304, So.2d 351 (La.1974); Bitoun v. Landry, 302 So.2d 278 (La.1974).

The award to Burrows of $75,000 for his pain, suffering and disability is well within the bounds of the trial court’s discretion. Cf. Jenkins v. Dixie Rental Tools and Casing Crews, Inc., 283 So.2d 271 (La.App. 1 Cir. 1973), writ denied, La., 285 So.2d 542; O’Keefe v. Warner, 288 So.2d 911 (La.App. 1 Cir. 1973), writ denied, La., 293 So.2d 170.

The question of an award for loss of earnings, future loss of earnings and future loss of retirement benefits presents a close and difficult issue. However, we are in accord with the trial court which found that the proof in connection with plaintiff’s claim is not sufficient upon which to base an award. We have the distinct impression that Burrows will suffer a loss of income in the future because of his injuries; obviously, a man with his disability will not be able to obtain employment and to work in the criminal investigation field as well as he could in a perfect state of health. However, the evidence as to his loss of promotion prospects, the possibility of medical discharge from the Army, and the reduction in retirement benefits is largely speculative. There are simply no specific conclusions which can be drawn and which could serve as a basis for an award.

Therefore, we find that the award made by the trial court is neither excessive nor inadequate. The judgment of the trial court is affirmed. Costs, insofar as the law provides, are taxed against defendant, State of Louisiana Department of Highways.

Affirmed.


author: HALL, Judge.

text:
    Mary Jane Arabie ROACH, et al., Plaintiffs-Appellants, v. Joseph CHAISSON, et ux., Defendants-Appellees.
    No. 5129.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.

      Edwards, Stefanski & Barousse by Homer E. Barousse, Jr., Crowley, for plaintiffs-appellants.
    Pugh, Buatt, Landry & Pugh by J. W. Landry, Jr., Crowley, La. for defendants-appellees.
    Before DOMENGEAUX, WATSON and HALL, JJ.
   HALL, Judge.

Plaintiffs, the widow and heirs of Mar-ciel Roach, filed suit against defendants, Joseph Chaisson and his wife, seeking to annul and set aside an act of partition entered into by the Roaches and the Chais-sons on July 19, 1973. The act of partition effected a division of 62.44 acres owned in indivisión by the parties, the Roaches receiving a 25 acre tract (together with all buildings and improvements thereon), and the Chaissons a 37.44 acre tract (there being no building thereon), with the mineral rights remaining undivided.

Roach died September 6, 1973. His widow and heirs filed this suit on January 10, 1974, seeking to set aside the partition on the grounds that (1) Roach was mentally incompetent at the time the act of partition was signed; (2) the act of partition does not reflect the intention and understanding of Roach or his wife, who thought the property was to be equally divided; and (3) the transaction was fraudulent. Defendants denied generally the allegations of plaintiffs’ petition.

On trial of the action, defendants objected to the admission of any evidence concerning the alleged mental incompetence of Roach. Depositions of several ‘ doctors were apparently admitted, subject to the objection. Defendants’ objection to testimony by any of plaintiffs’ lay witnesses was sustained and their testimony as to the mental incompetency of Roach was excluded.

After trial, the district court, without assigning written reasons, rendered judgment rejecting plaintiffs’ demands and dismissing their suit. Plaintiffs appealed. We affirm the judgment of the district court.

The principal complaint of error asserted by plaintiffs-appellants is the refusal of the district court to allow or to consider evidence relating to the mental incompetency of the decedent, Roach. The ruling of the district court was correct under LSA-C.C. Arts. 403 and 1788 and the established jurisprudence interpreting and applying those articles.

LSA-C.C. Art. 403 provides :

“After the death of a person, the validity of acts done by him can not be contested for cause of insanity, unless his interdiction was pronounced or petitioned for previous to the death of such person, except in cases in which the mental alienation manifested itself within ten days previous to the decease, or in which the proof of the want of reason results from the act itself which is contested.”

LSA-C.C. Art. 1788 provides in pertinent part:

“The contract, entered into by a person of insane mind, is void as to him for the want of that consent, which none but persons in possession of their mental faculties can give. It is not the judgment of interdiction, therefore, that creates the incapacity; it is evidence only of its existence, but it is conclusive evidence, and from these principles result the following rules:
(< * * *
“5. That if the party die within thirty days after making the act or contract, the insanity may be shown by evidence, without having applied for the interdiction; but if more than that time elapse, the insanity can not be shown to invalidate the act or contract, unless the interdiction shall have been applied for, except in the case provided for in the following rule.
“6. That if an instrument or other act of a person deceased shall contain in itself evidence of insanity in the party, then it shall be declared void, although more than thirty days have elapsed between the time of making the act and the death of the party, and although no petition shall have been presented for his interdiction.
“7. In the case mentioned in the preceding rule, other proofs of insanity may be offered by the party who alleges the incapacity, or may be required by the judge.
“ * * * >>

Reading the two Articles together and giving effect to the provisions of both, it is clear that after the death of a person, the validity of acts done by him cannot be contested for cause of insanity, nor may evidence of insanity be admitted, where the person died more than thirty days after making the act, his interdiction was not pronounced nor petitioned for prior to his death, the mental illness manifested itself more than ten days prior to his death, and the instrument does not contain in itself evidence or proof of the insanity or lack of reason of the person.

In the instant case, Roach died more than thirty days after executing the act of partition. It is stipulated that he was never interdicted nor was a petition for interdiction filed prior to his death. Plaintiffs contend Roach’s mental incompetency manifested itself on and prior to the date the act of partition was signed, which was more than ten days prior to his death. The instrument is in good form, was prepared by an attorney, was executed before a notary and two witnesses, and does not contain in itself any evidence or proof of the insanity or lack of reason of the decedent. The Roaches received only 25 acres as compared to 37.44 received by the Chaissons, but the instrument itself reflects that there were improvements on the 25 acre tract and none on the 37.44 acre tract. The difference in acreage does not evidence mental incapacity on the part of Roach. Evidence concerning the alleged mental incapacity of Roach was properly excluded.

Appellants argue that LSA-C.C. Arts. 402 and 403 conflict with LSA-C.C. Art. 1788, and that conflicting interpretations have been given to the Articles as they relate to the admissibility of evidence to annul the acts of persons who died before the attack was made and without having been interdicted. Contrary to appellants’ argument, the numerous cases which have dealt with the issue have consistently construed the applicable Articles together and excluded evidence of mental incapacity under the same or similar circumstances as exist in the case at bar.

In Knight v. Knight, 224 La. 483, 70 So.2d 97 (1953), an objection to the admissibility of evidence to prove the mental incapacity of a deceased person was sustained. The court cited Articles 403 and 1788 and held:

“The act of sale which is contested in this case was executed more than thirty days before the death of the stated vendor, Peter Knight; there is not the least indication that his interdiction was ever petitioned for and the mental alienation complained of did not manifest itself ten days previous to his decease. On its face the act is regular in all respects and there is nothing in it from which results proof of the want of reason on the part of anyone who had anything to do with it. Clearly therefore, under the authority of the cited provisions of the Civil Code, the objection was properly maintained.”

Butler v. Austin, 150 So. 449 (La.App.2d Cir. 1933) is closely in point. The court held:

“Defendant objected to the admissibility of any evidence offered to prove the insanity of deceased before, at the time of, and subsequent to the sale in question. The objection was overruled and the tendered testimony was admitted. The objection should have been sustained.”

After citing Articles 403 and 1788, the court concluded:

“Where it appears that more than thirty days have elapsed since the insane person has executed a contract and no petition for his interdiction has been applied for within that period, and there is nothing in the contract itself to indicate a condition of insanity, and where the mental alienation manifested itself more than ten days previous to decease, the door is closed to the widow and heirs of deceased to attack such a contract because of incompetency, due to insanity, unless fraud or fraudulent practices on the part of the other party, bearing upon a material part of the contract, be alleged and proved. In this case, the allegations of fraud, etc., have not been sustained by proof. These provisions of the Code have been interpreted and held to have effect as written. Frederick Davis, Adm’r v. Greve & Wilderman et al., 32 La.Ann. 420.”

See also Ducasse’s Heirs v. Ducasse, 120 La. 731, 45 So. 565 (1908); Strong v. Haynes, 152 La. 695, 94 So. 322 (1922); Succession of Lanata, 205 La. 915, 18 So.2d 500, 504 (1944); McGee v. Finley, 65 So.2d 384, 387 (La.App.2d Cir. 1953); 47 Tul.L.Rev. 1093, 1105.

Appellants cite and rely on LSA-C.C. Art. 402, which provides that acts anterior to a petition for interdiction may be annulled where it is proved that the cause of interdiction notoriously existed at the time the acts were done and that the party who contracted with the interdicted person could not have been deceived as to the situation of his mind. This Article applies to actions to annul brought during the lifetime of the mentally incapacitated person and presupposes the filing of a petition for interdiction. The Article, and the cases interpreting it, do not apply to an action to annul brought after the death of the alleged mentally incapacitated person whose interdiction was not pronounced or petitioned for prior to his death.

Appellants cite and rely on Chevalier v. Whatley, 12 La.Ann. 651 (1857) and Holland v. Miller, 12 La.Ann. 624 (1857). These cases support the exclusion of evidence of insanity in an action to annul brought under the circumstances existing in the case at bar. The Chevalier case, however, is authority for the proposition that evidence as to the state of mind of a deceased person is admissible where the action to annul is based on specific allegations of fraud beyond merely having purchased from a mentally incompetent person. In that case the evidence was that relatives of the weakminded decedent fraudulently induced him to convey all his property without any consideration whatsoever.

No such allegations or evidence of fraud are present in the case at bar. The word “defraud” is used in the petition but there are no allegations of specific fraudulent conduct other than the fact that defendants dealt with a person of unsound mind and that the partition as confected did not comply with the intention of the parties.

The evidence shows Roach and Chaisson were long-time friends and their wives were sisters. They owned the subject property together for more than 30 years. In February, 1973, Roach was operated on for cancer and was a very sick man from that time until his death in September. Roach and Chaisson discussed dividing the property on several occasions, which is consistent with Roach’s desire to get his affairs in good order in view of his terminal illness. It was agreed that an attorney should prepare the instrument and the attorney met with Roach and Chaisson at Roach’s home to go over the details. A sketch of how the property would be divided was reviewed and the amount of acreage in each tract was negotiated and agreed upon. The attorney prepared the instrument and the next day went to Roach’s home. The instrument was read to the parties in French as they requested and signed by all parties. Chaisson gave Roach the choice of which tract he would take. Roach took the northern 25 acres which, although containing less acreage, contained improvements, was higher land, had more road frontage, and adjoined other property owned by the Roaches.

The evidence is that the actions of defendants were fair, open and aboveboard. It does not appear that Roach was taken advantage of, even assuming a lack of full mental awareness on his part. Fraud was not proven.

Appellants further contend that Mrs. Roach, who cannot read or write and who speaks and understands only French, did not understand the transaction, particularly how the property was to be divided, and that the act should be set aside for error or mistake because it did not reflect the intentions of the parties. The evidence reviewed above refutes this contention. Error or mistake was not proven.

For the reasons assigned, the judgment of the district court is affirmed at appellants’ costs.

Affirmed.


author: ELLIS, Judge.

text:
    Melba L. HARVEY, Sr. v. Aldridge L. McMURRAY.
    No. 10439.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.

      Joseph A. Perrault, Jr., Baton Rouge, for appellant.
    Ralph M. Kelton, Baton Rouge, and Wm. E. Woodward, Clinton, for appellee.
    Before SARTAIN, ELLIS and PICKETT, JJ.
   ELLIS, Judge.

Plaintiff Melba L. Harvey, Sr. is seeking a servitude of way or passage across the property of defendant Aldridge L. McMurray. After trial on the merits, judgment was rendered in favor of plaintiff, ordering defendant to furnish gratuitously to plaintiff a right of way across defendant’s property. From that judgment, defendant has appealed. .

James C. Howell was the owner of a large tract of land which included the tracts now belonging to both of the parties hereto. In 1951, he sold the front of the tract to defendant, causing the rear portion thereof to become landlocked. In the sale to McMurray, Mr. Howell made the following reservation:

“The right of passage over, on and across the above described lands to and from the adjacent lands of the vendor, James C. Howell, for normal farming operations, removing or hauling timber, cattle and farm produce.”

It is not disputed that Mr. Howell used a gravel road across the McMurray property thereafter for access to his remaining tract. In the early 1960s, possibly in 1960 or 1961, a road was built over the adjoining Johnston property, which led from a public road to the rear tract. At some time in the early 1960s, Mr. Howell began using the Johnston road for access to his property. In February, 1972, he sold the rear tract to plaintiff. When plaintiff was denied use of the McMurray road, he brought this suit.

If plaintiff has a servitude of passage across defendant’s property it must arise by operation of law, under Articles 699 et seq. of the Civil Code, or as a result of the conventional servitude reserved by Mr. Howell in the deed to Mr. McMurray.

Defendant has alleged in defense that plaintiff’s property is not landlocked because of the Johnston road, and that plaintiff is not entitled to the servitude imposed by Articles 699 et seq. of the Civil Code. Defendant further alleges that the conventional servitude has been extinguished by the liberative prescription of ten years because of non-use thereof by Mr. Howell for more than that period of time. Article 789, Civil Code.

It is clear that the conventional servitude reserved in the deed to McMurray was actually established and used by Mr. Howell for a number of years. Mrs. Howell testified that they used it exclusively until the Johnston road was built, and then intermittently thereafter for a short while. She was not sure when the Johnston road was built, but knew it was there in 1963. Ald-ridge L. McMurray, Jr., defendant’s son, testified that the Howells used the Mc-Murray road until 1962 or 1963.

Mr. Harvey testified that he went through the McMurray road in the fall of 1971, when he first looked at the property, and that he used it to move some cattle onto the rear property right after he bought.it from Mr. Howell in February, 1972. He said that the gates along the road were open on both occasions. None of the above testimony is controverted.

Article 793 of the Civil Code provides:

“To preserve the right of servitude and prevent prescription from running against it, it is not necessary that it should be exercised exclusively by the owner to whom it is due, or by those who use his rights, or who represent him directly, as the usufructuary, the lessee or tenant, the attorney in fact or agent. It suffices if the servitude has been exercised by workmen employed by the owner, or by his friends, or those who come to see him.”

Article 794 of the Civil Code provides:

“The servitude is preserved to the owner of the estate to which it is due, by the use which any one, even a stranger, makes of it, provided it be used as appertaining to the estate.
“Thus the servitude is preserved to the owner by the use which a possessor in bad faith, who is in possession of the estate to whom (which) it is due, makes of the servitude.
“But if any one passes over the land of another, considering the way as public, or as belonging to another estate, the owner of the estate to whom the servitude is due, can not avail himself of the use thus made of the servitude to protect himself against the prescription which may have been acquired against himself.”

We think it clear that the use of the road made by Mr. Harvey and Mr. Howell in the fall of 1971 was within ten years of the date that the Howells stopped using the road in 1962 or 1963, as testified to by Mr. McMurray. We are of the opinion that this use of the servitude is sufficient to interrupt the running of prescription, and plaintiff, as successor in title of James C. Howell, has not lost the use of the conventional servitude reserved by Mr. Howell in his sale to Mr. McMurray in 1951.

We therefore need not consider whether plaintiff has proved if he is entitled to the servitude of passage imposed by Articles 699 et seq. of the Civil Code, which is, of course, imprescriptable under Article 795.

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

Affirmed.


author: DOMENGEAUX, Judge.

text:
    Roland THOMAS, Plaintiff and Appellant, v. PROTECTIVE LIFE INSURANCE COMPANY, Defendant and Appellee.
    No. 5121.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.

      W. Glenn Soileau, Ville Platte, for plaintiff and appellant.
    Dubuisson, Brinkhaus, Guglielmo & Dauzat by Edward B. Dubuisson, Opelou-sas, for defendant and appellee.
    Before DOMENGEAUX, WATSON and MORRIS, JJ.
   DOMENGEAUX, Judge.

Plaintiff-appellant, Roland Thomas, brought this action to recover benefits from a health and accident policy issued by the defendant-appellee, Protective Life Insurance Company. On September 20, 1973, plaintiff was in the employ of J. W. MacDonald Construction Company, operating a piece of heavy equipment in LeBeau, Louisiana. The machine upon which plaintiff was riding malfunctioned and began heading toward a ditch, at which time plaintiff jumped to the ground, severely injuring his wrist. These facts were undisputed by the parties.

The insurance policy in question was written by Protective Life Insurance Company through its agent, States Automobile Club, Inc., of Ville Platte, Louisiana. Plaintiff acquired the policy through his membership in States Automobile Club, Inc., on September 22, 1972. Thus, the policy was in effect at the time of plaintiff’s accident.

The defendant insurance company declined to pay plaintiffs claim, basing its denial on an exclusionary clause in the contract. The trial judge agreed with the defendant’s interpretation of the clause and found coverage lacking. From this adverse ruling the plaintiff has appealed.

The coverage dispute centers around Part 3 of the policy, which reads:

“The company will pay the indemnity provided in column 3 of section 1 or as provided by sections 2, 3,. or 4 if such injuries shall be sustained:
(a) while driving or riding in an automobile, truck, or farm tractor.”

This is the only clause under which plaintiff asserts defendant’s liability.

The terms “automobile” or “truck” are further defined in the policy as follows:

“The term ‘automobile’ or ‘truck’ means a commonly accepted four-or-more-wheeled automotive vehicle, specifically designed to transport passengers or merchandise on public streets or public highways, and shall include a taxicab or school bus as distinguished from a public passenger bus or trackless trolly.” (emphasis added)

The only question before this court is the determination of whether the type of vehicle which plaintiff was operating is a vehicle contemplated by the terms “automobile” or “truck” as defined by the policy.

The vehicle in question was a 35-ton Univac self-propelled roller, sometimes referred to as a roller compactor. The sole function of this vehicle was to compact road beds. At the trial, the foreman on the job in which plaintiff was injured, Paul Humphries, testified as follows:

“Q. This piece of equipment that you call a roller compactor — could you tell us its principal purpose ?
A. Strictly for compacting.
Q. Is that its only purpose ?
A. For rolling it and compacting.”

The Univac compactor roller also carries a large water tank which is filled to provide its tremendous weight for compacting road beds. The foreman further testified as follows:

“A. The water is stored in this compartment here, in fact, you can see the water line right here, where the difference is in it, there is moisture (indicating on picture), and the water is stored here and the reason we have water in it is for moving from one job to the other, you let the water out so you don’t be over-weight on the highway to move it. And you can load it on a truck and move it, and that is why the water is stored in there — for means of compaction. And, depending on the compaction, as to how much water you put in the roller.”

It is clear from this testimony that this vehicle is a highly specialized piece of highway construction equipment. The sole purpose is to aid in highway construction. In fact the machine is not even designed to transport itself beyond its immediate work vicinity. As the foreman indicates in his testimony, the compactor is drained to lighten it, and then it is loaded aboard a large truck which transports it from job site to job site. The maximum speed of this vehicle is 12 to 14 miles per hour which is just sufficient to allow it to perform its specialized function. The trial judge correctly ruled that the Univac compactor was not an “automobile” or “truck” as defined by the policy, i. e. “a commonly accepted four or more wheeled automotive vehicle specifically designed to transport passengers or merchandise upon public streets or public highways.” This vehicle is designed only for heavy highway construction work. To find the Univac compactor roller an automobile or truck as defined by the policy would be stretching the terms of the contract beyond those limits intended by the parties.

The insurance policy does not define the term “farm tractor” but we have no difficulty in finding the Univac machine excluded under that term also. In Hendricks v. American Employers Insurance Co., 176 So.2d 827 (La.App. 2nd Cir. 1965), writs refused 248 La. 415, 179 So.2d 15, the courts were given an interpretation guideline as follows:

“ . . . Words and phrases employed in a contract of insurance are to be construed, interpreted and defined in their ordinary and popular sense, rather than in a technical, philosophical or limited sense; . . . ”

Although the term “farm tractor” is not defined in the policy, clearly from the guideline set forth in Hendricks, finding the vehicle in question to be a “farm tractor” would be a highly unrealistic interpretation of the term, and besides, this contention is not raised by the appellant.

Plaintiff contends that the definition clause in the policy is ambiguous and should therefore be interpreted in his favor. Plaintiff correctly states the general rule of law in this state in that ambiguous clauses in insurance contracts are interpreted in favor of the insured. However, we find the rule inapplicable in the present litigation because the definitions are simply not ambiguous. The rule stated in Westenhover v. Life & Casualty Insurance Company, 27 So.2d 391 (La.App. 2nd Cir. 1946), is controlling in this case:

“ . . . Courts are not at liberty to disregard the plain letter of the contract under the pretext of an interpretation of ambiguity where none exists.”

Once we have determined the lack of ambiguity in the contract we are bound to interpret contract terms by the definitions provided therein. Hendricks v. American Employers Insurance Co., supra.

Finding the definitions set forth in the policy clear and unambiguous and therefore controlling, we agree with the trial judge’s determination that the plaintiff’s accident was outside of the scope of coverage contemplated by the insurance contract.

For the above and foregoing reasons the judgment of the district court is affirmed at plaintiff’s costs.

Affirmed.