author: GUIDRY, Judge.

text:
    Charlie SHAVERS and Darlene Shavers, Plaintiffs-Appellants, v. Succession of Thomas D. SHAVERS, Defendant-Appellee.
    No. 6053.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Rehearing Denied Aug. 1, 1977.
    See also La.App., 350 So.2d 915.

      George M. Strickler, New Orleans, and Kidd, Katz & Strickler by Paul Henry Kidd, Monroe, for plaintiffs-appellants.
    Smith, Taliaferro, Siebert & Boothe by V. Russell Purvis, Jonesville, for defendant-ap-pellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   GUIDRY, Judge.

Appellants have taken this appeal from an order of the trial court dated January 3, 1977 which denied their application for new trial from judgments of the trial court ordering a private sale of succession property and homologating the first and final tableau of distribution, which judgments are dated respectively, February 6, 1975 and February 27, 1975.

Thomas D. Shavers, a resident of Cata-houla Parish, died intestate on May 16, 1973. On June 25,1973, Alpha Washington Shavers, widow of the decedent, petitioned the court to open the succession and to be appointed administratrix. Alpha Shavers was duly appointed as administratrix by order dated August 13, 1973 and thereafter qualified as such upon furnishing bond and taking her oath. On May 30, 1974 the administratrix petitioned the court for a private sale of succession property in order to pay the debts and charges of the succession. An opposition to this application was filed by plaintiffs-appellants. On October 24, 1974 an evidentiary hearing was held in regard to this application at which hearing all parties were represented by counsel. The trial court took the matter under advisement and subsequently on February 6, 1975 rendered judgment dismissing the opposition and ordering a private sale as prayed for by the administratrix. Notice of this judgment was not served on appellants until November 6, 1975. Following rendition of the judgment of February 6, 1975, and on the same day, the administratrix petitioned the court for homologation of the first and final tableau of distribution. Thereafter, after due proceedings, the court entered a judgment homologating the tableau of distribution, this latter judgment being dated February 27, 1975. Notice of this judgment was not served on appellants until November 6, 1975.

Although service of the judgments above referred to was not made on appellants until some nine months following rendition, in the interim, specifically on June 12,1975, appellants filed a motion for a new trial of the proceedings leading to the rendition of both judgments. Following service of notice of judgment appellants by motion filed December 1, 1975 reiterated their request for a new trial. Thereafter, under authority of Sonnier v. Liberty Mutual Insurance Company et al., 258 La. 813, 248 So.2d 299 (1971) the trial judge summarily denied appellants applications for new trial, the order of denial being dated January 3, 1977 and filed January 4, 1977. It is from this latter order that appellants have appealed.

We dismiss this appeal ex proprio motu under LSA-C.C.P. Article 2162 because of appellants’ lack of right to take an appeal from the interlocutory judgment of February 3, 1977 which denies their application for a new trial.

In State ex rel. Land v. Martin, 207 La. 410, 21 So.2d 481, 482 (1945) our Supreme Court stated:

“A judgment, an order, or a ruling by a district judge refusing to grant a new trial or a rehearing does not fall in the category or legal classification of a final judgment from which a litigant has the right to appeal. While such action on the part of a trial judge is not strictly or technically an interlocutory judgment, it is similar to one, because it cannot be considered a definitive judgment.
The judgment overruling the motion for a new trial and the application for a rehearing because they were not filed within the delay allowed by law is not a final judgment and in that respect is like an interlocutory one, and as it appears that irreparable injury will not result therefrom, the liquidator is without the right to appeal from it. His remedy was to appeal from the final judgment on the merits, signed on July 26, 1944. . .”

In General Motors Acceptance Corporation v. Deep South Pest Control Inc., 166 So.2d 46 (La.App. 4th Cir. 1964) plaintiff secured a money judgment against the defendant on March 19, 1963. Thereafter defendants filed a motion for new trial which motion was denied by order of the trial court dated December 10,1963. Thereafter defendants filed a motion to appeal “from the final judgment rendered in the above cause on the 10th day of December, 1963”. Plaintiff-appellee moved to dismiss the appeal on the ground that the judgment refusing the new trial was merely interlocutory, caused no irreparable injury and was not appealable. Our brethren of the 4th Circuit in sustaining the motion to dismiss the appeal stated as follows:

“Insofar as the record in this case is concerned, it does not appear that an appeal from the final judgment in favor of plaintiff and against the appellants on March 19, 1963, has been taken. If aggrieved by that judgment, appellants’ remedy was to appeal therefrom and not from the judgment of December 10,1963, disposing of their motion for a new trial. If there is error concerning the judgment from which the appeal was intended to be taken, that is a matter we are unauthorized to rectify by sustaining the appeal.
The motion must prevail; the appeal cannot stand. LSA-C.C.P. art. 2083 states that an appeal may be taken from a final judgment rendered in causes in which appeals are given by law.and from an interlocutory judgment which may cause irreparable injury. The judgment refusing the new trial is not a final judgment, but is merely interlocutory and could cause appellants no irreparable harm. A judgment overruling a motion for a new trial is not appealable. State ex rel. Land v. Martin, 207 La. 410, 21 So.2d 481; W. L. Pace Piano Co. v. Louisiana Seeburg Piano Co., 154 La. 749, 98 So. 174; Succession of Centanni, La.App., 151 So.2d 539.”

The Supreme Court granted writs in the cited case (246 La. 870, 167 So.2d 678) and after a hearing affirmed the Court of Appeal. 247 La. 625, 173 So.2d 190 (La.1965). In affirming the dismissal of appeal in the GMAC case the Supreme Court made the following pertinent observation and ruling:

“It is well settled that a judgment refusing a new trial is not appealable. It is not- a final judgment and can produce no irreparable injury. State ex rel. Land v. Martin, 207 La. 410, 21 So.2d 481.
Even if we were disposed to construe the appeal motion as taking an appeal from the appealable judgment on the merits rendered against the appellants on March 19, 1963, we are prevented from doing so by two barriers: Firstly, the motion for appeal by its terms limits its effect to the judgment of December 10,1963. Secondly, the appellants tacitly recognize that the appeal was from the judgment overruling the motion for a new trial by resting their case in this Court on the ground that such a judgment is appealable .
We conclude, as did the Court of Appeal, that a fundamental defect mars the appeal. No right of appeal existed as to the appealed judgment. The defect is fatal

We recognize that appeals are favored and should be dismissed only for substantial causes. We recognize further that any doubt concerning validity of the appeal should be resolved in favor of the appellant to the end that an appeal be sustained. Fruehauf Trailer Company v. Baillio, 252 La. 181, 210 So.2d 312 (1968); Smith v. Hartford Accident and Indemnity Company, 254 La. 341, 223 So.2d 826 (1969); Kirkeby-Natus Corporation v. Campbell, 250 La. 868, 199 So.2d 904 (1967); and King v. King, 253 So.2d 660 (La.App. 1st Cir. 1971, writ refused).

In each of the cases last cited the petition for appeal referred to a judgment rendered on a certain date which in each instance was a judgment denying a motion for new trial. The appeals were nevertheless sustained upon a finding by the court that the record as a whole evidenced an intention on the part of the appellant to appeal the adverse judgment on the merits. In the instant case, unlike Fruehauf, Smith, Kirkeby-Natus, and King, the record clearly reflects that appellants sought to appeal from the judgment denying a new trial. The motion and order of appeal refers only to the judgment signed on January 3, 1977 which, as aforesaid, is the judgment denying the motion for new trial. The appeal bond furnished by appellants contains the following language which clearly evidences an intent to appeal the ruling and order of January 3, 1977:

“WHEREAS, an order has been rendered by the Seventh Judicial District Court, Parish of Catahoula, dismissing respondents’ motion for new trial, and the said Darlene Shavers and Charlie Shavers have filed a motion to appeal, suspensively and devolutively, said ruling. . (Emphasis ours)

In addition we observe that the preparation of the transcript leaves no doubt but that appellant intended to appeal only from the order of the trial court dismissing their application for new trial and not from the judgments authorizing the private sale and homologating the administratrix’s final account as the transcript of evidence taken in connection with these two hearings is not made a part of the record on appeal. Finally, and perhaps most convincing, is the fact that appellants’ brief to this court indicates that the only issue on appeal is the correctness of the trial court’s ruling denying a new trial. At page 6 of their brief appellants state as follows:

ISSUE ON APPEAL
Whether, in light of the detailed allegations of fact and law contained in the motion for new trial, which were supported by the record of this case, the district court erred in dismissing the motion for new trial without a hearing.”

In view of the above we conclude that the appellants seek to appeal from the judgment of January 3,1977 which denied them a new trial. Such judgment is interlocutory in nature and is not appealable under the provisions of LSA-C.C.P. Article 2083 and the jurisprudence interpreting the same. Accordingly, plaintiffs’ appeal will be ordered dismissed at their costs.

APPEAL DISMISSED.


source: Caselaw Access Project

license: Public Domain

text:
    Charlie SHAVERS and Darlene Shavers, Opponents-Appellants, v. Succession of Thomas D. SHAVERS, Proponent-Appellee.
    No. 6053.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 1, 1977.

      See also, La.App., 350 So.2d 912.
    Kidd, Katz & Strickler by Paul Henry Kidd, Monroe, George M. Strickler, Jr., New Orleans, for opponents-appellants.
    Smith, Taliaferro, Siebert & Boothe by V. Russell Purvis, Jr., Jonesville, for proponent-appellee.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

MOTION TO DISMISS

The proponent-appellee, Alpha Washington Shavers, moves to dismiss the devol-utive appeal of the opponents-appellants, Charlie Shavers and Darlene Shavers, on the grounds that the appellants’ appeal was not timely perfected. The Motion is opposed.

We dismiss the appellants’ appeal.

This is an appeal from a judgment discharging the administratrix, Alpha Washington Shavers, and sending the heirs into possession of the estate of the decedent, Thomas D. Shavers. Trial was had, and a formal judgment was read and signed, on the same date, January 6,1977. Neither of the opponents, nor their counsel, were present at the hearing, although the opponents were personally served, and had filed an “Answer and Opposition.” No notices of judgment were mailed by the Clerk until April 12, 1977.

On April 26, 1977 the opponents moved for and were granted a devolutive appeal, returnable to this court on June 24, 1977. Bond was set at $750.00. The opponents filed their appeal bond on June 3, 1977.

Concededly, unless the opponents were entitled to receive notice of the January 6, 1977 judgment, and the time in which they had to perfect their appeal did not start to run until then, April 12, 1977, the opponents’ appeal from the January 6, 1977 judgment of possession was not timely perfected under LSA-C.C.P. Arts. 2087 and 1974.

The appellee argues that since the opponents were personally served it was not required that they be sent a notice of judgment under LSA-C.C.P. Art. 1913. We agree.

Article 1913 of the Code of Civil Procedure provides as follows:

“Notice of the signing of a default judgment against a defendant on whom citation was not served personally, and who filed no exceptions or answer, shall be served on the defendant by the sheriff, by either personal or domiciliary service.
Except as otherwise provided by Article 3307, when a case has been taken under advisement by the court notice of the signing of a final judgment therein shall be mailed by the clerk of court of the parish where the case was tried to the counsel of record for each party, and to each party not represented by counsel.
If, at the conclusion of a trial a case is not taken under advisement but the court does not sign a judgment at the time, a party may make a request of record for notice of the date when the judgment was signed; and when such a request is made, the clerk shall mail such notice to the party requesting it or to his counsel of record.
The clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of the judgment was mailed.
Except as otherwise provided in the first three paragraphs of this article, notice of the signing of a final judgment is not required.”

It is well settled that there is no requirement that notice of a default judgment be served on a defendant upon whom citation was served personally. Thibodeaux v. Thibodeaux, 326 So.2d 408 (La.App. 3rd Cir. 1977), and Midland Discount Company v. Phillips, 196 So.2d 832 (La.App. 3rd Cir. 1967).

Since the opponents were not entitled to notice, the time in which they had to perfect their appeal began to run the day after the judgment was signed, January 7, 1977, and expired under LSA-C.C.P. Arts. 2087 and 1974 on March 18,1977. Since the opponents’ appeal was not perfected until June 3, 1977, when they filed their appeal bond, their appeal was not timely perfected.

For the reasons assigned the devolutive appeal of the opponents-appellants is hereby dismissed. The opponents are hereby east for all costs of this appeal.

APPEAL DISMISSED.


author: FORET, Judge.

text:
    Daniel Paul TOUCHET, Plaintiff-Appellee, v. Geraldine Dutile TOUCHET, Defendant-Appellant.
    No. 6213.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 1, 1977.
    Guilbeau, Sullivan & Joy by Thomas E. Guilbeau, Lafayette, for defendant-appellant.
    Armentor & Wattigny by Gerard B. Wat-tigny, New Iberia, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   FORET, Judge.

These consolidated suits are actions seeking separation, divorce, alimony and custody. When the record was lodged with this court, we noted ex proprio motu, that the defendant’s, Geraldine Dutile Touchet, appeal was apparently not timely perfected, and issued a rule, ordering the defendant to show cause, by brief, why her appeal should not be dismissed for failure to timely perfect her appeal. The defendant has timely answered the rule.

A consolidated judgment was signed and rendered in these matters on January 17, 1977, awarding the plaintiff-appellee, Daniel Paul Touchet, a judgment of divorce, and awarding him custody of the couple’s minor child. On January 25, the defendant timely filed a motion for a new trial, which was denied, and a judgment denying the motion was read and signed on March 25, 1977.

On April 25, 1977, the defendant moved for and was granted a devolutive appeal to this court, which appeal was made returnable on June 24, 1977. Bond was set at $250.00. The defendant filed her appeal bond on May 6, 1977.

LSA-C.C.P. art. 3942 and art. 3943 provides that judgments granting or refusing divorce, custody and alimony can only be taken within 30 days from the applicable date provided in art. 2087(l)-(3). In her answer to the rule the defendant admits that her appeal was not timely perfected as to the judgment of January 17, 1977, which awarded the plaintiff a divorce and custody of the minor child, but that her appeal was not taken from that judgment, but from the judgment of March 25, 1977 which denied her a new trial. While we appreciate the novelty of the defendant’s argument, even if we were to hold that such were the case, it would be to no avail, as this court has only recently held that a judgment denying a new trial is a non-ap-pealable interlocutory judgment. Shavers v. Succession of Shavers, 350 So.2d 915 (La.App. 3rd Cir. 1977).

For the reasons assigned, the appeal of the defendant-appellant, Geraldine Dutile Touchet, is hereby dismissed. The defendant is cast with the costs of this appeal.

APPEAL DISMISSED.


author: BOUTALL, Judge.

text:
    STATE of Louisiana v. Charles BROWN.
    No. 8889.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 2, 1977.

      George L. Gillespie, Jr., Gillespie & Jones, Metairie, for Charles Brown, defendant-appellant.
    Joseph F. Grefer, Gretna, John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director Research and Appeals Div., Metairie, Roy F. Blondeau, Jr., Asst. Dist. Atty., Parish of Jefferson, Gretna, for the Parish of Jefferson, plaintiff-appellee.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

ON OUR OWN MOTION TO DISMISS

This matter concerns an appeal from the Juvenile Court for the Parish of Jefferson. Shortly after the appeal was filed, we noticed an apparent lack of jurisdiction of this Court because: 1.) There was no signed judgment in the record; and 2.) The proceeding was a criminal prosecution against an adult. As a consequence we issued a rule to show cause to the parties in order to ascertain our jurisdiction.

There has now been filed into the record what purports to be the judgment rendered, signed on August 8, 1977. Our examination of that judgment convinces us that we have no jurisdiction over the appeal.

At the outset we note that this case began as a criminal prosecution of an adult based on a bill of information brought by the State of Louisiana against Charles Brown charging him with the crime of criminal neglect of family, R.S. 14:74, by failing to provide for the support of his minor child, Karen Brown, age 10 years. Brown filed a motion to quash the information on the grounds that he was not the father of the child, that the Juvenile Court had no jurisdiction to determine paternity and that the District Court had exclusive jurisdiction thereof under Constitution of 1974, Article 5, § 16, and that unless a civil declaration of paternity and obligation to support had been previously imposed upon him as father of the illegitimate child, criminal responsibility cannot ensue. R.S. 14:74 and 74.1, Civil Code Article 242.

The Juvenile Court held a hearing with the following results: 1.) A minute entry of judgment unsigned by the Judge finding the defendant guilty as charged and imposing the amount of $60.00 per month for support effective March 1, 1977: 2.) The signed judgment of August 8, finding that the child is the acknowledged child of the defendant and as such entitled to alimony for her support from the defendant (Civil Code Article 242). This judgment makes no mention of finding of guilt.

The composition of the record before us creates some uncertainty as to which decree is appealed to us. The appellant says that the appeal is from a civil judgment of paternity which is beyond the jurisdiction of the Juvenile Court to render. The appellee says that the appeal is from the criminal verdict of guilt rendered in the case. We find it unnecessary to decide which is the judgment appealed because we have no jurisdiction in either situation and hence no authority to determine the validity of either judgment. As pointed out, the case which gives rise to these pronouncements is purely a criminal proceeding against an adult under R.S. 14:74. If the minute' entry of guilty verdict is in fact the judgment appealed from (disregarding the question of prematurity), no appeal lies to us under Article 5 § 10, Constitution of 1974. If the finding of paternity is in fact the judgment appealed from, it is only an ancillary matter in the pending criminal proceeding, and no appeal lies to us under the same article. It is simply a part of the criminal prosecution of a person other than a juvenile. See State v. Barrios, 254 La. 93, 222 So.2d 869 (1969); State v. Stewart, 271 So.2d 519 (La.1973); Collette v. Olivier, 309 So.2d 894 (La.App. 3rd Cir. 1975); R.S. 13:1591.

Because we have no jurisdiction we must dismiss the appeal. Although we hesitate to express an opinion as to the appellate jurisdiction of the Supreme Court, we feel compelled to state that we cannot transfer this appeal on our own motion to the Supreme Court because there is no sentence imposed within the jurisdictional limitation imposed in Article V, § 5(D) Constitution of 1974 or in R.S. 13:1591. We refer the parties to Article V, § 5(E) and we leave to them the determination of the proper procedural steps to secure a resolution of the issues presented.

APPEAL DISMISSED.


author: LEMMON, Judge.

text:
    Norman Curtis EDWARDS applying for Adoption of Matthew Glenn Merle Deming v. Larry M. DEMING.
    No. 8331.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 8, 1977.

      Carville & Edrington, Jules A. Carville, III, La Place, for plaintiff-appellee.
    G. Walton Caire, Edgard and Jack T. Whorton, Alamogordo, N.M., for defendant-appellant.
    Before LEMMON, GULOTTA and BEER, JJ.
   LEMMON, Judge.

This adoption proceeding was filed pursuant to R.S. 9:422.1 by Nolan Edwards, the present husband of the child’s legitimate mother. Larry Deming, the child’s legitimate father, has appealed from the judgment granting the adoption. The issue is whether Deming’s consent to the adoption is necessary under the circumstances of this case.

When Deming and the child’s mother (now Mrs. Edwards) were divorced in Florida in February, 1971, the judgment ordered Deming to pay support for his son in the amount of $12.50 per week to the clerk of the Florida court. A few months thereafter Deming remarried and moved to New Mexico. His former wife married Edwards in August, 1971, and the Edwards family lived in two cities in Florida before moving to Louisiana in 1974.

After the 1971 divorce Deming made regular support payments (apparently while still in Florida) through June, 1971. Thereafter, he made sporadic payments with decreasing frequency. During the period between September, 1974 and March, 1976, when he learned this action was being filed, he paid a total of only $74.00.

R.S. 9:422.1, dispensing with the necessity of consent of the legitimate parent who fails without justification to comply with a support order, is a legislative attempt to define conduct whereby a parent forfeits his parental rights. In re Ackenhausen, 244 La. 730, 154 So.2d 380 (1963). The statute does not require that one year must elapse without any support payment, but rather specifies the minimum length of time over which the issue of fulfillment of support responsibility should be measured and determined. In re McArthur, 333 So.2d 372 (La.App. 4th Cir. 1976).

Deming concedes, as indeed he must, that he failed in his support obligation, but citing the Ackenhausen case contends this failure was justified and therefore beyond the contemplation of the statute. His first contention of justification is that Mrs. Edwards denied him the reasonable visitation rights specified in the support order and failed to notify him of their whereabouts.

Mrs. Edwards never concealed her whereabouts, and the information was always available to Deming through the Florida clerk and through his mother, with whom Mrs. Edwards maintained a close relationship. Furthermore, a parent’s extrajudicial resort to economic coercion, because of visitation problems or other disputes with the former spouse in custody, constitutes a willful, unjustified failure to fulfill his parental responsibility of support. In re McArthur, supra.

Deming’s second asserted basis for justification was the fact of his alcoholism, which he argues in this court was an illness that prevented him from discharging his obligation. In the trial court, however, Deming merely testified that he had been an alcoholic, but had not had a drink since March, 1974. He presented no medical evidence and no other proof that he suffered from alcoholism or from any other condition that would affect his ability to support his child. Furthermore, Deming admitted that he had been gainfully employed for some time, and he failed to show any connection between the alcoholism (from which he was rehabilitated in March, 1974) and his total failure to provide child support in 1975 and early 1976.

The judgment is affirmed.

AFFIRMED.

      . The amount due during this 76-week period was $950.00.

      . Deming’s mother visited the child in Louisiana on several occasions.

      . Thus, on this record we do not reach the legal issue of whether the illness of alcoholism can be a justification for failing to provide child support so as to prevent operation of R.S. 9:422.1.


author: GULOTTA, Judge.

text:
    Larry M. CRANDALL v. Glenn C. SCOTT, Individually and as Administrator of the Estate of Bruce Scott, Two “R” Drilling Company, the Travelers Insurance Company and State Farm Mutual Insurance Company.
    No. 8333.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 8, 1977.

      Sidney D. Torres, III, George N. Bischof, Jr., Chalmette, for plaintiff-appellant.
    Perrin C. Butler, New Orleans, for defendant-appellant, Glenn C. Scott.
    Jones, Walker, Waechter, Poitevent, Garrere & Denegre, James L. Selman, II, New Orleans, for defendants-appellees, Two “R” Drilling Co. and The Travelers Ins. Co.
    Porteous, Toledano, Hainkel & Johnson, C. Gordon Johnson, Jr., New Orleans, for defendant-appellee, State Farm Mut. Ins. Co.
    Before LEMMON, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

This litigation arises out of an accident in which plaintiff was injured when his automobile was struck by a vehicle driven by defendant Glenn C. Scott’s 16-year-old son Bruce. The unlicensed minor was driving a company-owned automobile furnished to the father by the father’s employer, Two “R” Drilling Company. The accident occurred while his parents were on vacation away from home. Suit was filed against 1) the father individually and as administrator of his minor son; 2) the son, by amended petition, after he had reached the age of majority; 3) the father’s employer; 4) the employer’s automobile liability insurer, Travelers Insurance Company, and, 5) the father’s automobile liability insurer, State Farm Mutual Automobile Insurance Company.

Judgment was rendered in favor of plaintiff against Glenn C. Scott, the father, individually and as administrator of the estate of his minor son. The claims against the employer, its insurer and the father’s insurer were dismissed.

Though it is undisputed that the negligence of the minor was the sole cause of the accident, on appeal plaintiff seeks judgment additionally against the employer and the two insurers by virtue of the coverages provided by the policies. Plaintiff further complains that the trial judge erred in his failure to award judgment against the minor who has attained the age of majority and has been made a party defendant. Additionally, plaintiff seeks an increase in the $14,122.46 award. In this respect, plaintiff claims the trial judge erred in failing to award damages for loss of future earning capacity.

Defendant Glenn C. Scott also appeals and, on the liability question, asserts errors of the trial judge similar to those assigned by plaintiff. On the quantum question, however, this defendant complains that the award is excessive.

LIABILITY

1. Employer’s Liability Insurer — The Travelers Insurance Company.

The insurance policy covering the vehicle owned by Two “R” Drilling Company and driven by the minor at the time of the accident, in pertinent part, provides:

“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
Coverage C. bodily injury or Coverage D. property damage . .

The policy further defines “Persons Insured” as follows:

“II. Persons Insured
Each of the following is an insured under this insurance to the extent set forth below:
(a) the named insured;
(b) any partner or executive officer thereof, but with respect to a non-owned automobile only while such automobile is being used in the business of the named insured;
(c) any other person while using an owned automobile or a hired automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission . . . ”

Clearly, Scott is not a named insured.

According to plaintiff and defendant Scott, however, because Scott was employed as an assistant mechanical engineer for Two “R” Drilling, he falls within the category of an “executive officer” [11(b)] of the employer. According to appellants, in such instance Scott is an “insured” under the terms of the policy, and because Scott is vicariously liable for the torts of his minor son, Scott’s liability is covered. We disagree.

In Hadrick v. Diaz, 302 So.2d 345 (La.App. 1st Cir. 1974), cited by defendant Travelers, the court enumerated a number of factors relevant in a determination whether an employee is an executive officer within the meaning of a liability insurance policy. Though the cited case dealt with a wrongful death claim arising from an industrial accident (a suit instituted by the deceased employee’s beneficiaries against the executive officers of the employer), its discussion of the meaning of the term “executive officer” is applicable to our case. In this regard, the court in Hadrick stated:

“In determining the issue before us, our own courts have considered the following circumstances relevant: (1) Whether the employee’s position was created by corporate charter, Thibodeaux, above; (2) Whether the employee was formally elected or designated to his office or position by the Board of Directors, the officers or stockholders, Thibodeaux, above; (3) Did the employee have authority, discretion and managerial responsibility covering the divergent affairs of the corporation, Thibodeaux, above; (4) Did the employee have duties or authority outside his particular department, Thibodeaux, above; (5) Was the employee involved in shaping company policy, Thibodeaux, above; Berry, above; (6) Did the employee possess authority to alter contract terms or conditions or to change specified company procedure, Upham, above; (7) Whether the employee had several department heads under his supervision, Berry, above; (8) Whether the employee had a large number of employees under his direction and control, and (9) Did the employee have authority to hire and fire other employees, Berry, above? In Guillory v. Aetna Insurance Company, 415 F.2d 650 (Fifth Circuit), the court also considered whether the employee maintained a close connection with the corporate officers and board of directors and whether the employee was empowered to write company checks.”

The Hadrick court concluded that the status of an executive officer is a factual question.

When we apply the guidelines as set forth in the Hadrick case, we cannot conclude Glenn C. Scott is an executive officer within the meaning of the policy.

R. H. Reeves, chairman of the Board of Two “R” Drilling, testified that the elder Scott is employed as an assistant mechanical engineer and that company cars are assigned to supervisory engineering personnel such as Scott for use on company business. There is no evidence in the record that Scott is a partner or officer duly elected by the Board of Directors of the corporation. The record simply contains no evidence to indicate that Scott’s duties are executive in nature. Under these circumstances, we cannot say he is an “executive officer” within the meaning of the policy. Having so concluded, we necessarily conclude Scott is not an “insured”, as an executive officer, under the policy terms. Accordingly, we do not consider whether the policy affords coverage to a vicariously liable “insured”.

Plaintiff and defendant Scott further claim the trial judge fell into error in applying the definition of “persons insured” as stated in 11(e) of the policy:

“(c) any other person while using an owned automobile or a hired automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission

and in concluding that the minor did not have permission to use the automobile. We do not agree.

The trial judge properly applied 11(c), supra. Under these provisions in the policy, the insurer can be held liable where a third person is using a company-owned automobile if that driver had permission of the named insured. The trial judge made the factual finding that the minor did not have permission to drive the company automobile. The record clearly supports this conclusion. The father testified that he had left the keys in the kitchen area of his residence prior to leaving on his pleasure trip. At that time he told a woman who was staying at the house and supervising the son, Bruce, that someone (meaning from Two “R”) might come for the keys. The father further stated that Bruce had never asked for permission to drive the vehicle and if permission had been sought, it would- have been denied. The son did not have a driver’s license at the time of the accident and though he had previously driven the family car on occasion, it had always been in the presence of one or the other of his parents. Under these circumstances, it cannot be said that the adolescent’s use of the automobile was “with the permission” of either his father or Two “R” Drilling. Accordingly, we conclude the trial judge properly exonerated the employer’s insurer from liability.

II. Liability of the Father’s Insurer—State Farm Mutual Automobile Insurance Company.

The State Farm policy provides coverage to Glenn C. Scott as a named insured. “Persons insured” are further defined as follows:

“Persons Insured. The following are insureds under Part I:
***** *
(b) with respect to a non-owned automobile,
(1) the named insured,
(2) any relative, but only with respect to a private passenger automobile or trailer,
provided his actual operation of (if he is not operating) the other actual use thereof is with the permission, or reasonably believed to be with the permission, of the owner and is within the scope of such permission, and
* * * >7

Appellants argue that under the policy, with respect to a non-owned automobile, the father as a named insured who is vicariously liable for the torts of his minor son is afforded coverage under (b)(1), supra, for damages which the named insured father is obligated to pay. Under these circumstances, appellants claim, the permission elapse set forth in (b)(2) of the policy is not applicable.

Alternatively, plaintiff and Scott contend that the minor driver of a non-owned vehicle (the Two “R” automobile), as a relative of the named insured, falls within the category of “persons insured” as defined in the policy. According to appellants, the record establishes that the minor driver reasonably believed that he had permission to drive the non-owned automobile, as set forth in (b)(2), supra.

Because the automobile driven by the minor does not fall into the category of a vehicle covered under the policy provisions, it becomes unnecessary to discuss plaintiff’s and Scott’s contentions. Coverage is afforded on three categories of automobiles: 1) owned; 2) non-owned; and, 3) temporary substitute. In the “Definitions” section of the policy, a “non-owned automobile” is defined as

“an automobile or trailer, not owned by or furnished for the regular use of either the named insured or any relative, other than a temporary substitute automobile

We interpret the word “not” in the above definition to modify both the phrases “owned by” and “furnished for”. Because the vehicle involved in the accident was owned by Two “R” Drilling and was furnished for the regular use of its employee, Glenn C. Scott, the named insured under the State Farm policy, the vehicle is not a “non-owned automobile” within the meaning of the policy. Neither is the vehicle a “temporary substitute automobile” or an “owned automobile” within the meaning of the State Farm policy. Accordingly, the State Farm policy affords no coverage to Glenn C. Scott under the circumstances of our case and any discussion of his vicarious liability for his son’s tort is of no value. The trial judge properly dismissed plaintiffs suit against Scott’s automobile liability insurer.

III. Individual Liability of Bruce Scott.

We do find merit, however, to plaintiff’s contention that the trial judge erred in failing to cast defendant Bruce Scott in judgment. Though a minor at the time of the accident, Bruce became a major prior to judgment and plaintiff’s petition was amended to name him as a party defendant. The judgment, however, was rendered in favor of plaintiff against only defendant Glenn C. Scott individually and as administrator of his minor son’s estate. No judgment was rendered against Bruce Scott.

Clearly, the trial judge properly cast the father in judgment for the tort of his minor son. LSA-C.C. arts. 237 and 2318; Deshotel v. Travelers Indemnity Company, 257 La. 567, 243 So.2d 259 (1971). However, the code also imposes upon the minor responsibility for his own tortious conduct. LSA-C.C. arts. 1785(5), 1874 and 2227. Hathorn v. McKay, 236 So.2d 74 (La.App. 3d Cir. 1970); Redd v. Bohannon, 166 So.2d 362 (La.App. 3d Cir. 1964).

Accordingly, we conclude the trial judge erred in failing to cast Bruce Scott in judgment. We find no merit, however, to plaintiff’s argument that the father and son are solidarily liable; rather, each is individually liable for payment of plaintiff’s damages. Wooten v. Wimberly, 272 So.2d 303 (La.1973).

QUANTUM

I. Loss of Future Earnings

We find no basis to plaintiff’s claim that the amount awarded by the trial judge should be increased to reflect loss of future earnings. Plaintiff simply fails to carry his burden of proof. At the time of the accident, plaintiff was employed as a loan originator for BNO Mortgage Company at a salary of $15,000.00 per year. This employment involved soliciting mortgage loans. Plaintiff’s supervisor testified that plaintiff had been discharged largely due to absenteeism resulting from the accident. Subsequent to Larry Crandall’s discharge from BNO, he became employed by Pontchartrain Motor Company as a Cadillac salesman. Crandall’s monthly draw was $900.00. Plaintiff testified that, in addition to the draw, he had received $300.00 commission on one occasion. No other testimony was offered regarding impairment of earning capacity.

Whether an award for loss of future earnings is justified

“involves inquiry into the extent of plaintiff’s injuries . . . and whether such injuries have incapacitated him permanently from doing work of a reasonable character, that is, work for which he was fitted by training and experience of the same or similar kind in which he was engaged at the time of the accident. 4c * * it

Viator v. Gilbert, 253 La. 81, 216 So.2d 821, 822 (1968). Absent an abuse of discretion by the trial judge, his judgment with respect to such an award is not to be aside. Robinson v. Graves, 343 So.2d 147 (La.1977).

The evidence in the instant case simply does not support an award for loss of future earnings. Before and after the accident, plaintiff has been employed in sales positions. No medical testimony was introduced at trial to indicate that plaintiff’s injuries are of a permanent nature prohibiting a resumption of his former sales position in the mortgage banking field. Under these circumstances, we cannot say the trial judge erred in not including damages for loss of future earnings.

II. General Damages

Defendant Glenn C. Scott urges on appeal that the trial judge’s award of general damages in the amount of $12,000.00 is excessive. Scott characterizes plaintiffs injury merely as a muscle sprain in the cervical and lumbosacral areas. We do not agree.

Plaintiff was first seen by his treating physician two days following the accident. The initial examination on July 14, 1973, revealed spasm in the posterior neck region. Crandall was treated with muscle relaxants and anti-inflammatory medication. Several other examinations during July and August, 1973, did not indicate improvement. Plaintiff underwent physical therapy and was fitted with a cervical collar. He was diagnosed as having a flexion-extension injury to the neck and acute paracervical muscle spasms.

During August, 1973, Crandall experienced tenderness in his lower back, nausea and vomiting, gastric irritation and pain in the rectal area. His condition was diagnosed as inflammatory gastritis, either secondary to medication or combined with anxiety and he was placed on a bland diet. Antacids were prescribed. Plaintiff was examined again during October and November, 1973. At this time he continued to complain of pain in the lower back which the physician diagnosed as acute lumbo-sacral muscle strain. Periodic visits were made through January, 1974, and again in May and July, 1974.

In October, 1974, following plaintiff’s continued complaints of epigastric distress, numbness in the lumbosacral region and problems in the rectal area, he was admitted to the hospital. Tests administered only confirmed findings made by the treating physician. No further significant findings were made. The treating physician testified that the back pain was attributable to the accident; that the gastric distress was related in part to medication and anxiety from the accident; and that rectal bleeding and hemorrhoid problems resulted from antacid therapy and anxiety as well as from a parasite infestation. The complications resulting from the injury sustained in the accident continued for a period in excess of a year. Under the circumstances, we cannot say the $12,000.00 general damage award is excessive.

We find no merit to Scott’s contention that plaintiff’s failure to support the treating physician’s testimony with the testimony of an orthopedist, a neurologist and a gastroenterologist (with whom consultations were made by the treating physician) creates a presumption unfavorable to plaintiff. These physicians were as much available to defendant as they were to plaintiff.

DECREE

Accordingly, that part of the judgment which reads:

“IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of plaintiff, Larry M. Crandall, and against defendant Glenn C. Scott individually and as administrator of his minor son Bruce Scott’s estate, in the full sum of $14,122.46 with legal interest thereon from judicial demand until paid and for all costs incurred by the plaintiff.”

and which also reads:

“The expert fee of Dr. Allan D. Ahles-chier is fixed at $200.00 and is taxed as cost to be paid by Glenn C. Scott.”

is annulled and set aside and is recast as follows:

“IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of plaintiff, Larry M. Crandall, and against defendant Glenn C. Scott individually and as administrator of his minor son Bruce Scott’s estate, and against Bruce Scott, individually, in the full sum of $14,122.46 with legal interest thereon from judicial demand until paid and for all costs incurred by the plaintiff.”
“The expert fee of Dr. Allan D. Ahles-chier is fixed at $200.00 and is taxed as cost to be paid by Glenn C. Scott individually and as administrator of his minor son Bruce Scott’s estate, and by Bruce Scott, individually.”

In all other respects, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . Bruce had never received a driver’s license.

      . This amount includes a $12,000.00 general damage award and $2,122.46 in special damages.

      . LSA-C.C. art. 2318 provides as follows:
      Art. 2318. Acts of minors
      “Art. 2318. The father, or after his decease, the mother, are responsible for the damage occasioned by their minor or unemancipated children, residing with them, or placed by them under the care of other persons, reserving to them recourse against those persons.
      “The same responsibility attaches to the tutors of minors.”

      . “Temporary substitute automobile” is defined in the policy as “any automobile or trailer, not owned by the named insured, while temporarily used with the permission of the owner as a substitute for the owned automobile or trailer when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction . . . .” This definition is clearly inapplicable.

      . “Owned automobile” is defined in the policy as “a private passenger, farm or utility automobile described in this policy for which a specific premium charge indicates that coverage is afforded . . . The only automobile described in the State Farm policy is a 1970 Chevrolet owned by Scott.


text:
    Marvin DEMPSTER v. GURTLER, HEBERT & COMPANY, INC. and Interstate Fire & Casualty Company.
    No. 8671.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 8, 1977.
    Leonard K. Fisher, Jr., Boutte, for plaintiff-appellant.
    Reuter & Reuter, Arthur C. Reuter, Jr., New Orleans, for defendants-appellees.
    Before LEMMON, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

Plaintiff appeals from the dismissal of his claim for total and permanent disability benefits under the Workmen’s Compensation Act. In reasons for judgment the trial judge stated that plaintiff’s suit had prescribed. In this connection the trial judge concluded the injury had manifested itself immediately after the accident and rejected plaintiff’s contention that the injury developed within one year from the date suit was filed.

The trial judge rejected further plaintiff’s contention that payment for medical expenses made within one year from the date of filing suit interrupts prescription of a claim for weekly compensation payments. He went on to make the factual finding that plaintiff was not totally and permanently disabled within the meaning of the Workmen’s Compensation Act and that back pain caused from nerve root irritation resulting in a laminotomy performed on plaintiff within one year from date of filing suit was not causally connected with the back injury sustained by plaintiff. We agree.

A chronology is helpful. While employed as a pipe welder for defendant company on March 9, 1973, plaintiff sustained injury to his back. On March 12, 1973, medical examination revealed spasms of the paraver-tebral muscles of the back. Treatment was administered until July, 1973, when plaintiff was discharged to return to work. Examinations by an orthopedist in October, 1973 and in April, May and November, 1974, revealed no objective findings to support plaintiff’s subjective complaints of pain. Subsequent to the accident, plaintiff did not return to work for his employer but worked for varying periods of time for other employers. The last workmen’s compensation payment was made to plaintiff on June 15, 1973, and cashed by him on June 18, 1973. Suit was filed on July 9, 1974. Thereafter, on July 19, 1974, plaintiff was seen by Dr. Byron Unkauf and in February, 1975, a laminotomy was performed on plaintiff’s back.

Because we conclude the record supports the trial court’s conclusion that plaintiff failed to show a causal connection between the accident and the subsequent back operation, we find no necessity to consider the prescription question.

On March 12, 1973, three days following the accident, plaintiff was seen by Dr. Matthew G. Huff, a general practitioner. The patient was seen by the doctor on numerous occasions from that time until July 16,1973, when he was discharged to return to work on the following day. Dr. Huff’s diagnosis of spasm and soreness to the paravertebral muscles and ligaments in the lower thoracic and lumbar areas did not change at any time during this period of treatment. X-rays during plaintiff’s hospitalization on April 26, 1973, did not reveal any findings pertinent to the accident. During this period of time, the patient received muscle relaxants and diathermy treatments. Dr. Huff testified that he could not find anything to indicate a problem more serious than muscle soreness as a result of the accident.

On May 18, 1973, plaintiff was examined by E. J. Dabezies, M.D., an orthopedic surgeon. The physical examination revealed full flexion and no spasm of the thoracic or lumbar musculature. Straight leg raising did not produce any back or leg pain and the patient’s reflexes in the lower extremities were unimpaired. X-ray examination of the lumbar spine did not disclose any problems. Dr. Dabezies concluded that plaintiff had sustained a low back sprain as a result of work-related activity. Because the examination revealed no objective evidence of disability, he concluded that plaintiff could return to his job, though it would be advisable that he wear a corset until his muscles were reconditioned to a full day’s labor.

On October 10, 1973, plaintiff was examined by Walter H. Brent, Jr., M.D., an orthopedic surgeon. The patient gave a history of having attempted work unsuccessfully for three weeks due to back pain after having been discharged by Dr. Huff. Dr. Brent’s examination at that time revealed mild limitation of motion, but no wasting of calf muscles. The patient was placed on medication and seen again on November 1, 1973, when the doctor found complete motion and felt that plaintiff could return to his former occupation. He was seen again in November, 1973, and in February, March, April, May and November, 1974. Dr. Brent testified there were no objective findings on any of these occasions and that he could not account for the patient’s continued complaints of pain. He found no evidence of nerve root impingement or irritation, and felt that the patient was feigning his condition.

Dr. Brent referred plaintiff to Dr. John Jackson, a neurosurgeon, for evaluation. Dr. Jackson’s examination on January 24, 1974, produced normal findings. The neurological examination revealed a full range of motion of the lumbar spine in all directions and no spasm. No muscular weakness or atrophy was found and the x-ray examination was normal. Dr. Jackson could find no evidence of neurological disease or a disc problem. He did not recommend a myelogram because he anticipated that the results would be normal.

Byron Unkauf, M.D., an orthopedic surgeon, examined plaintiff on June 28, 1974, and found left paraspinal muscular tightness, a limited range of movement, left sacroiliac area tenderness alad a slight wasting of the right calf muscle. X-rays of the lumbosacral spine were negative for fracture of disease. When seen again by this doctor on July 19, 1974, plaintiff had a reasonable range of movement and no spasm. Dr. Unkauf felt that plaintiff was fit to return to his original employment at that time. Examinations in November and December, 1974 and January, 1975, disclosed paravertebral and spinal muscular tightness with a restricted range of movement accompanied by pain. A lumbar mye-logram made prior to the patient’s admittance to the hospital on February 4, 1975, revealed blunting of the root sleeves at the L-4-5 level, meaning there was some resistance causing pressure on the nerve root, according to Dr. Unkauf. On February 7, 1975, a laminotomy was performed at the L-4-5 level. Though there was no protrusion of the disc, Dr. Unkauf found adhe-sions present, some bleeding and an enlarged vein pressing on the nerve root. He cleared the area and freed the spinal sac but did not perform a laminectomy. Dr. Unkauf was of the opinion that the enlarged vein was probably congenital, but that the work-related injury had injured the vein so that it bled and caused the adhesions resulting in the patient’s pain. He further testified that the calf wasting revealed in his physical examination indicated that the nerve root was being traumatized. According to Dr. Unkauf, though the patient has improved since the operation, he has a 15-20% permanent disability and cannot resume his work as a pipe welder. He does not feel that the patient has been feigning complaints.

It is well-settled in claims for workmen’s compensation and medical benefits that plaintiff employee bears the burden of proving, by a preponderance of the evidence, causation between the work-related accident and the disability. Causation between the accident and the disability is a factual question, however, and the findings of the trial judge will not be set aside unless manifestly erroneous. See Todero v. Great Atlantic and Pacific Tea Co., Inc., 343 So.2d 388 (La.App. 4th Cir. 1977) and the jurisprudence cited therein. The evidence in the instant case considered, we cannot conclude that the trial judge has committed manifest error. The findings and opinions of Drs. Huff, Dabezies, Brent and Jackson comprise a substantial factual basis upon which the trial judge could base his ruling, notwithstanding Dr. Unkauf’s testimony to the contrary.

In accordance with the stipulation between the parties, having concluded that the record supports the trial judge’s denial of workmen’s compensation and medical benefits claimed by plaintiff, we need not address ourselves to the issue of prescription which was also raised on appeal.

Accordingly, the judgment is affirmed.

AFFIRMED.

      . The parties entered into the following stipulation:
      “It is stipulated between the parties to this appeal that the issues before the Court are:
      (1) Is the judgment of the trial court with respect to the denial of workmen’s compensation benefits and medical benefits precluding the question of prescription supported by the evidence contained in the record?
      (2) Alternatively, if the judgment of the trial court with respect to the denial of the workmen’s compensation benefits and medical benefits is not supported by the medical evidence contained in the record, is the plaintiff-appellant’s claim for these items then prescribed?”


author: SCHOTT, Judge.

text:
    GENERAL LEASING COMPANY v. LEDA TOWING COMPANY, INC., et al.
    No. 8945.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 8, 1977.

      Leon C. Vial, III, Hahnville, for relators.
    Eugene J. Gomes, Jr., New Orleans, for respondents.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

Under our supervisory jurisdiction we granted an application for writ of certiorari filed by Leda Towing Company, Inc., Leon C. Vial, III, and Dr. David J. Vial, relators. Respondents are Dean Towing Company, Inc. and Ethpran C. Dean.

This litigation was initiated on June 30, 1970, when General Leasing Company sued relators. Relators answered the suit denying liability, and thereafter filed a third party demand for indemnity against respondents.

The return of the sheriff shows personal service of the third party demand on Eth-pran C. Dean on June 22, 1971, and service on Dean Towing Company, Inc. through E. C. Dean, also on June 22.

On September 10,1971, relators entered a preliminary default against respondents on their third party demand. On April 11 and May 1, 1972, the case was tried, and on October 2, 1972, there was judgment in favor of relators, dismissing the main demand of plaintiff. No mention was made in the judgment of relators’ third party demand.

Plaintiff took an appeal to this court, and on November 30, 1973, we rendered a judgment reversing the judgment of the trial court and awarding a judgment to plaintiff against relators. General Leasing Co. v. Leda Towing Co., et al., 286 So.2d 802 (La.App. 4th Cir. 1973). As to the third party demand, we said the following:

“The defendant-appellee has requested us to render judgment in its favor against Dean Towing Company, based upon the third party demand filed by it. We are unable to do so because of procedural difficulties. The trial court below, apparently because of its dismissal of plaintiff’s suit, made no mention in its judgment of the third party demand. Appeal was taken by plaintiff. The defendant, (third party plaintiff) did not appeal nor did it file any answer to the appeal. Under these circumstances, we are unable to consider the third party demand.”

We refused rehearing on January 8 of 1974, and the Supreme Court refused writs on March 1,1974, 290 So.2d 334, stating, “as for the third party demand, it is still pending in the district court.”

On May 8, 1974, relators took a default judgment against respondents confirming the preliminary default they had entered on September 10, 1971. On October 17, 1974, respondents moved for a new trial. The motion was argued on May 18,1977, and on June 29,1977, the trial court rendered judgment recalling and setting aside the judgment taken by relators on their third party demand and granting a new trial.

At issue is the validity of this judgment of June 29, 1977.

Once the preliminary default was taken by relators pursuant to LSA-C.C.P. Art. 1701 they were required to wait a minimum of two days before confirmation but could do so any time thereafter. Art. 1702. Respondents were charged with the knowledge that they were vulnerable to a default judgment. This situation was specifically noted by the trial judge when the trial commenced on April 11, 1972, as follows:

“THE COURT:
Okay. We’ll proceed with this matter insofar as the original plaintiff and defendant are concerned and allow plaintiff to put on its case and allow you to defend, and if you feel — of course, the Court will let you default Dean Towing Company. There’s no reason for that. They were notified to be here and I see a preliminary default entered in September against Dean Towing Company and Eth-pran C. Dean, individually. This Court will allow you to default them, and if you feel the records of Dean Towing Company and the records of Mr. Dean are essential to your defense in this matter, this Court at that time will consider leaving it open till we get Mr. Dean and Dean Towing Company into Court.”

Respondents’ vulnerability to a default judgment was not changed by the decision of this court or the writ action of the Supreme Court. Nothing in the law prevented relators from thereafter confirming this default.

In response to our present writ of certiorari respondents have attacked the form of the original third party petition and citation served on them in June, 1971. These objections should have been raised through declinatory and dilatory exceptions pursuant to C.C.P. Arts. 925 and 926, but such exceptions could not be pleaded after relators’ entry of preliminary default. Art. 928.

Respondents also suggest in their brief that they were somehow misled by Leon C. Vial, relator and attorney for all relators, into thinking that they (respondents) were simply witnesses in the case but not defendants vulnerable to a default judgment. Respondents claim that they were somehow relying on Mr. Vial in the premises.

These assertions might provide a basis for an action of nullity pursuant to Art. 2001 et seq. but they do not provide a proper basis for the trial court to have set aside a judgment which became final after the delays ran for an appeal and achieved the quality of res judicata pursuant to C.C. Art. 3556(31).

Accordingly, the judgment of the trial court dated June 29,1977, purporting to set aside the judgment of May 8,1974, in favor of relators and to grant respondents, Dean Towing Company, Inc. and Ethpran C. Dean, a new trial is annulled and set aside. Respondents are to pay all costs.

WRIT MADE PEREMPTORY.


author: PER CURIAM.

text:
    Shirley Leary WARE, Plaintiff-Appellant, v. Webster WARE, Defendant-Appellant.
    No. 13411.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 12, 1977.

      Love, Rigby, Dehan & Love by Samuel P. Love, Jr., Shreveport, for plaintiff-appellant, Shirley Leary Ware.
    Ike F. Hawkins, Jr., Shreveport, for defendant-appellant, Webster Ware.
    Before BOLIN, C. J., and PRICE, HALL, MARVIN and JONES, JJ.
   PER CURIAM.

Judgment awarding custody of and support for a minor child of a marriage was signed April 19, 1977. A new trial was denied on April 25, 1977. Both parties — divorced parents of the minor — appealed. Neither appeal was sought before June 24, 1977, and neither appeal bond was filed before July 7, 1977.

We noticed that the appeals were not timely sought or perfected and notified counsel for each litigant to show cause why the appeals should not be dismissed. La.C. C.P. Art. 3943. Neither counsel responded.

Accordingly, the appeals are hereby dismissed at the cost of appellants.


text:
    In re George Lyndell STANFILL et ux., Mover-Appellee, Opposition by Diana Evans Waters, Opponent-Appellant.
    No. 13404.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 13, 1977.
    Gahagan & Gahagan by Marvin F. Gaha-gan, Natchitoches, for opponent-appellant.
    Simmons & Derr by Kermit M. Simmons, Winnfield, for mover-appellee.
    Before BOLIN, PRICE, HALL, MARVIN and JONES, JJ.
   PER CURIAM.

Judgment granting an interlocutory decree of adoption was signed on June 10, 1977. A motion for devolutive appeal was filed and an order signed June 17, 1977. The appeal bond was filed August 8, 1977, which was not timely. LSA-R.S. 9:438. Appellant was notified of a probable lack of jurisdiction and responded to our order to show cause why this appeal should not be dismissed but the response failed to establish that the appeal bond was timely filed.

At appellant’s cost, the appeal is DISMISSED.


author: HALL, Judge.

text:
    Debra Nealy COILE, Plaintiff-Appellee, v. James Gray COILE, Defendant-Appellant.
    No. 13316.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1977.
    En Banc. Rehearing Denied Oct. 31, 1977.
    Writ Refused Dec. 14, 1977.

      Ford E. Stinson, Benton, for defendant-appellant.
    Campbell, Campbell & Johnson by John T. Campbell, Minden, for plaintiff-appellee.
    Before BOLIN, HALL and JONES, JJ.
   HALL, Judge.

This appeal by the divorced father of a minor child is from the denial of his petition to enforce visitation rights previously granted to him in a divorce and custody judgment which awarded custody of the child to the mother.

Prior to the time the petition to enforce visitation rights was filed, a judgment was rendered granting the adoption of the child by the present husband of the child’s mother. That judgment was affirmed by this court, and a writ of review was denied by the Supreme Court on May 27, 1977. See In re Coile, 343 So.2d 325 (La.App. 2d Cir. 1977), writ refused In re Hanson, 345 So.2d 902 (La.1977). The adoption judgment is now final and definitive.

LSA-C.C. Art. 214 provides that the blood parent is divested of all his legal rights with regard to the adopted person. Issues relating to visitation rights prior to the adoption or pending the appeal of the adoption judgment are now moot. Moot issues will not be considered on appeal. Cain v. Board of Supervisors, Ouachita Parish, 335 So.2d 711 (La.App. 2d Cir. 1976), writ refused 336 So.2d 871 (La.1976). See also State of Louisiana ex rel. Preston v. Henderson, 283 So.2d 230 (La.1973). This appeal is, therefore, dismissed at appellant’s costs.

Appeal dismissed.


author: MARVIN, Judge.

text:
    Elbert GOWERS, Plaintiff-Appellee, v. E. D. GOUR et al., Defendants-Appellants.
    No. 13319.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1977.
    En Banc. Rehearing Denied Oct. 31, 1977.
    Writ Refused Dec. 14, 1977.

      Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for defendants-appellants.
    J. W. White, Castor, for plaintiff-appel-lee.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

Workmen’s compensation benefits for total and permanent disability, statutory penalties, and attorney’s fees were awarded below and the employer and insurer appeal. We affirm.

Appellants generally contend error, in that:

(1) The employee did not meet his burden of proof, and specifically
(2) That the employee was not disabled within the meaning of the law;
(3) That the alleged injury and disability were not caused in fact by the accident;
(4) That the termination of benefits was not arbitrary and capricious, and, alternatively
(5) That the maximum period of compensation is 150 weeks for the loss of use of a hand.

For about 18 years, the employee was a tractor driyer for the defendant-logging contractor. On November 10,1972, the employee’s hand was painfully crushed, lacerated and bruised between a large limb or snag and a log. The employee’s visible injuries healed uneventfully but pain in the hand and arm persisted and was severely increased by pressure to the heel of the palm. For more than two years following the accident, several doctors attempted to relieve the employee’s pain by various methods of treatment, including three surgical procedures. The surgeon who did this surgery repeatedly tested the pattern of the employee’s pain and concluded that the pain was genuine and medically consistent with the type of crushing injury involved. This surgeon, who saw the employee 35 or more times during the course of his treatment, periodically referred the employee to a neurologist and later to a neurosurgeon.

In January, 1975, these doctors agreed that the employee had causalgia, and that a sympathetic nerve block was medically necessary to relieve the pain and avoid more disabling complications.

These doctors were of the opinion that the employee is totally and permanently disabled. Opposed to their testimony was the testimony of two orthopedic surgeons, one of whom had seen the employee only once at the request of the insurer. The other orthopedist saw the employee five times, but with a gap of 23 months between the fourth and fifth visits of the employee. The lower court correctly determined that the operating surgeon in this case was the treating physician in the medical sense, in close contact with the patient over a long period of time. For that reason, the lower court gave greater weight to the testimony of the treating physician than to that of another physician who had not had close, frequent contact and examination. This was not error. Ashby v. National Surety Corporation, 203 So.2d 96 (La.App. 2d Cir. 1967).

The orthopedic doctors who saw the employee at the request of the insurer and employer consulted with each other. One orthopedist, in a report to the insurer on January 28,1975, mentions that the consulting orthopedist thought the employee had causalgia and had recommended stellate ganglion nerve blocks. This orthopedist, in the report, agreed that the employee may have a causalgic reaction as well as some involvement of the median nerve. The orthopedist then stated that he would schedule the employee for the ganglion blocks at a hospital on an outpatient basis.

Sixteen days later, the employee’s neurosurgeon made arrangements for the employee to be admitted to another hospital in the same community for the sympathetic nerve block he had earlier recommended. When the workmen’s compensation insurer declined to guarantee payment of the expense to the hospital, the hospital denied admission to the employee. It was at this time that the insurer terminated compensation benefits it had been paying the employee since the accident.

In argument here, the insurer contends it was not arbitrary in terminating benefits because it had a letter from its Shreveport orthopedist dated February 4, 1975, stating that the employee could return to work. The record does not contain such a letter. Counsel for the insurer moved ex parte, to supplement the record after the letter’s absence was called to counsel’s attention at oral argument. Without supporting affidavits by either the judge or the clerk below, we deny the motion to supplement the record. Even should we assume the content of the letter is properly before us (and there is some testimony in the record relating to the content of the letter), the result is not changed. The lower court heard the testimony relating to the content of the letter and considered that the insurer, at the time benefits were terminated, was aware of the employee’s condition, his complaints of pain, and the recommendations of its own orthopedists. On February 11, 1975, the insurer inquired of its orthopedist whether a congenital defect (Dupuytren’s contracture) was related to the accident. The orthopedist answered “no” on the bottom of this letter-inquiry. This correspondence is silent as to the other issues, such as the employee’s ability to return to work. This letter-inquiry was received by the insurer about the time workmen’s compensation benefits were terminated. Under these circumstances, we do not find error in the lower court’s finding of arbitrariness or in the award of $2,000 attorney’s fees. Melerine v. Brown & Root, Inc., 284 So.2d 809 (La.App. 4th Cir. 1973).

It is not necessary for experts to determine the exact cause of the disability in order for the employee to recover. The employee need show only by a preponderance of the evidence that somehow the employment caused the disability. Lucas v. Insurance Company of North America, 342 So.2d 591, 595 (La.1977).

Disability is compensable if the employee is able to perform his duties only with substantial pain. Here, the employee did attempt to work for two days. The record supports the lower court’s finding of substantial pain. Likewise, an employee’s disability is compensable if a nondisabling, pre-existing condition is precipitated into disabling manifestations by a work injury. Lucas, supra, pp. 595-596. In such cases the disability, and not the specific loss, provisions of the statute are applicable. Duplantis v. Highlands Insurance Co., 221 So.2d 623 (La.App. 4th Cir. 1969), writ refused.

■For reasons assigned in an excellent and detailed opinion below, and summarized here, at appellants’ cost, judgment is

AFFIRMED.

      . Causalgia is usually related to a trauma-induced injury to a peripheral nerve. One of the common peripheral nerves that produces the causalgia type syndrome is the median nerve. Common symptoms of causalgia are radiating pain from the injury and loss of skin tone and cool skin temperatures around the injury.


author: PRICE, Judge.

text:
    F. A. DEJEAN, Plaintiff-Appellee, v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS, Defendant-Appellant. Olive J. DEJEAN, Plaintiff-Appellee, v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS, Defendant-Appellant.
    Nos. 13320 and 13321.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1977.

      William W. Irwin, Jr., Jerry F. Davis, Johnie E. Branch, Jr., Bernard L. Malone, Jr. by Bernard L. Malone, Jr., Baton Rouge, for defendant-appellant.
    Baker, Culpepper & Brunson by Herman A. Castete, Jonesboro, for plaintiffs-appel-lees.
    Before BOLIN, PRICE and MARVIN, JJ.
   PRICE, Judge.

Plaintiffs in these consolidated suits sold property to the Department of Highways in connection with the proposed widening of U.S. Highway 167 in Jackson Parish. Plaintiffs now seek to set the sales aside for lesion beyond moiety contending they sold the property for less than half of its value. The trial court rejected plaintiffs’ demand for rescission of the sales, but assessed the cost of the proceedings including expert witness fees against the Department of Highways.

The Department of Highways has appealed from the trial court’s action in assessing against it the cost of plaintiffs’ expert witnesses. Plaintiffs have answered the appeal asking that the judgment rejecting their demands for rescission be reversed.

We reverse the judgment as it relates to the taxing of cost of expert witness fees against the Department of Highways and affirm the judgment rejecting plaintiffs’ demand of rescission for lesion beyond moiety.

ASSESSMENT OF COSTS

This court has recently decided the Department of Highways is not liable for the fees of the landowner’s expert witnesses in a suit attempting to set aside a conveyance on the grounds of lesion beyond moiety. Alexander v. State of Louisiana, Department of Highways, 342 So.2d 1201 (La.App.2d Cir. 1977). For the same reasons given in the Alexander decision, we find the trial court was in error in assessing as costs the fees of expert witnesses against the Department of Highways.

Although the Department of Highways has complained that no cost should be assessed against it as it was the successful litigant in this instance, the Department may legally be cast for stenographer’s fees under L.R.S. 13-4521, and the trial court has the discretion to award cost against any party under the provisions of C.C.P. Art. 1920. Therefore, we do not find it appropriate to disturb the trial judge’s award of the cost relating to the fee of the court reporter.

LESION BEYOND MOIETY

The two tracts of land which are owned by the plaintiffs, Olive J. Dejean and F. A. Dejean, are contiguous plots presently being used for residential purposes on the west side of U.S. 167 in the area between Hodge and Jonesboro. The Olive Dejean property is bordered on the south by an unnamed road right-of-way making it a corner lot. The Department of Highways purchased a narrow strip across the front of this tract together with a triangular area at the intersection of U.S. 167 and the unnamed street for a sight flare. The total area conveyed was approximately 1,700 square feet for which Olive Dejean received $1,805.

F. A. Dejean sold a similar narrow strip along the highway right-of-way of approximately 1,150 square feet for $1,166.

These plaintiffs contend that at the time these sales were made by February 19, 1974, that the land conveyed by each had a market value of more than double the consideration paid by the Department of Highways.

The applicable law was summarized by this court in Alexander v. State of Louisiana, Department of Highways, supra, as follows:

In sales of immovable property, the vendor may be relieved if the price given is less than one-half of the value of the property sold. LSA-C.C. Art. 1861. Upon a finding of lesion beyond moiety, the purchaser may elect, within a period to be designated by the court, either to rescind the sale or to have it confirmed on paying the full value. LSA-C.C. Art. 1877. The standard to be applied for the determination of the value of the property is the fair market value at the time of the sale. The party attempting to set aside the sale must discharge the burden of proof incumbent upon him by proving the value of the property by clear and convincing evidence. Peevy v. State, Department of Highways, 340 So.2d 642 (La.App.2d Cir. 1976); Valley Land Corporation v. Fielder, 242 So.2d 358 (La.App.2d Cir. 1970).

Plaintiffs sought to satisfy the burden of proof imposed on them by presenting the testimony of two expert appraisers, O. L. Jordan and H. L. Bass, each of whom testified the highest and best use of these tracts is for commercial development, and relying on adjusted comparables, they testified the fair market value at the time of the sales was $2.00 to $2.25 per square foot for each tract. Under this formula, the plaintiffs would have received less than half the value for their property.

The Department of Highways presented the testimony of L. J. Roy and Dan Carlock, expert appraisers, who agreed the best use of the properties was for commercial purposes. They disagreed, however, with the estimate of market value assigned by plaintiffs’ witnesses. Both of these experts were of the opinion that based on a market data comparison, the highest value that could have been placed on these properties at the time of the sales was $1.05 per square foot.

The testimony of plaintiffs’ experts indicates it was necessary to make extensive adjustments for time and location to achieve the unit value of the subject tracts assigned by them. Their estimates of value, therefore, were more conjectural than the opinions of the expert witnesses who testified on behalf of the Department of Highways.

The trial court was not in error in finding the plaintiffs’ evidence to be insufficient to show lesion within the degree of certainty required under the jurisprudence.

For the reasons assigned, the judgment appealed is amended to remove from the award of costs against the Department of Highways the fees of plaintiffs’ expert witnesses, and as amended, is affirmed. Plaintiffs are assessed the cost of this appeal.


author: BOLIN, Judge.

text:
    Herbert E. FEAR et al., Plaintiffs-Appellants, v. CALUMET INDUSTRIES, INC., Defendant-Appellee.
    No. 13324.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1977.
    En Banc. Rehearing Denied Oct. 31, 1977.

      Egan & Cook by William H. Cook, Jr., Shreveport, Herold & Geneus by Simon He-rold, Shreveport, for plaintiffs-appellants.
    Bodenheimer, Jones, Klotz & Simmons by G. M. Bodenheimer, Shreveport, for defendant-appellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   BOLIN, Judge.

Plaintiffs sued for specific performance of a sublease agreement which was signed by an employee of defendant corporation. Defendant denied the validity of the agreement, claiming its employee had no authority to sign the instrument. To this answer plaintiffs filed a plea of estoppel. The trial court rejected plaintiffs’ demand and they appeal. We affirm.

The issue on appeal is the validity of the sublease agreement which requires resolution of two questions: Did the employee have actual authority to sign? If not, is defendant corporation estopped from denying the validity of the agreement because of the actions of its president in dealing with plaintiffs?

Plaintiffs’ assertion that the employee had actual authority is predicated on the testimony of the employee who stated that Harry Fair, president of the corporation, called him from Chicago and told him to “go ahead and sign” the agreement. Fair categorically denied this testimony and testified he had told the employee not to sign the agreement. The trial judge resolved this irreconcilable conflict in testimony adversely to plaintiffs and we find no error in this conclusion.

The difficult question is that raised by the plea of estoppel.

Plaintiffs are partners engaged in the secondary recovery of oil on their leases, and defendant owns and operates leases on adjoining land. Plaintiffs contend that, in order to make their operation economically feasible, they commenced negotiations with defendant’s Louisiana representative in an effort to acquire subleases on the adjoining property. These negotiations were continued with John Schulze, who succeeded the previous representative and who had a business card indicating he was vice-president of Calumet Refining Company, a Louisiana division of defendant corporation.

On March 14, 1974, Pair, president and chief executive officer of the parent company, came to Shreveport and met with Schulze and two of the plaintiffs to review a draft of the proposed sublease agreement. Pair rejected the proposal because it failed to meet defendant’s requirements. However, according to plaintiffs, Fair led them to believe that if plaintiffs and Schulze could work out the details, they “had a deal.” Pair denied such a deal. Prior to this meeting it was understood by plaintiffs and by Schulze that no agreement would be valid without Pair’s approval.

Plaintiffs drew up a new agreement, omitting any reference to a resolution of the board of directors granting authority to a person designated to sign the agreement, leaving blank the space for the name of the person who was to sign, and incorporating a provision for the increased demands of defendant. This agreement was delivered to Schulze, who testified he mailed a copy of the new proposal to Pair in Chicago; that Fair advised him by telephone to go ahead and sign.

On March 22, 1974, Schulze signed the agreement purportedly as vice-president of Calumet Refining Company, and mailed a $5,000 check, bearing the inscription “as per agreement dated this date”, to the secretary-treasurer of Calumet Industries, Inc. This check was deposited in the corporation’s regular account. The evidence establishes that Schulze was not in fact vice-president of defendant corporation.

Pair admitted the treasurer told him about the check but that he was not certain he “followed through with it.” Pair denied he had received a copy of the new proposal or that he had advised Schulze to sign it. Further, he stated he had never seen the signed agreement until the present litigation; that he had specifically advised Schulze not to sign the earlier proposal. There is no evidence of any subsequent communication between Pair and plaintiffs until some sixteen months later.

On August 4, 1975, plaintiffs notified defendant they were exercising their option and were ready to take over operation of the leases as per the agreement. This notice and two follow-up notices were not answered by defendant corporation, but on September 25, 1975, Pair met with plaintiffs and their attorney and disavowed the agreement. Suit was filed November 17, 1975, and six months later defendant’s attorney attempted to return to plaintiffs the $5,000 mentioned previously, claiming it had been received in error. This attempted return was refused.

Plaintiffs claim the actions of the corporation and its president, as disclosed in the above recitation of facts, estopped defendant from denying the validity of the agreement; that these actions justified plaintiffs in believing Schulze was authorized to bind the corporation by signing the agreement; and that in reliance on the validity of the agreement they had proceeded to expend large sums of money in preparation for their secondary recovery efforts on defendant’s leases.

Three elements are necessary to maintain a plea of estoppel, namely: (1) representation, (2) reliance, and (3) change of position to one’s detriment. The burden of establishing the facts upon which the plea is predicated, as well as affirmatively showing that the pleader was misled and forced to act to his prejudice, rests upon the party invoking the estoppel. American Bank and Trust Co. v. Trinity Universal Insurance Co., 194 So.2d 164 (La.App. 1st Cir., 1966), aff’d 251 La. 445, 205 So.2d 35, and cases cited.

Although plaintiffs have alleged and offered evidence that they were misled by Schulze’s ostensible authority, they have failed to prove they have suffered any actual damages. The $5,000 has been tendered back to them and, although they claim they have made large expenditures preparing for the secondary recovery operation, they have introduced no proof that these expenditures have been made; nor have they proved these expenditures, if made, would not have been made without the agreement. Assuming for the sake of argument that plaintiffs have proved the first two elements, we find they have failed to prove that plaintiffs changed their position to their detriment. American Bank & Trust Co., supra; also Shirey v. Campbell, 151 So.2d 557 (La.App. 2d Cir., 1963).

Plaintiffs have not specifically urged that defendant ratified the agreement; nevertheless the issue of ratification has been raised by their citation of Process Installation, Inc. v. Bio Chemical R & D Corp., 173 So.2d 247 (La.App. 1st Cir., 1965).

In Process the court quoted with approval the general rules pertaining to ratification found in 19 C.J.S. Corporations § 1018 et seq., and adopted in Dunham-Pugh Company v. Stephens, 234 La. 218, 99 So.2d 88 (1958). Pertinent here is the portion of the rule that, “if the corporation, through the officer or body having authority to act, acquires or is charged with knowledge of the unauthorized act and does not repudiate it within a reasonable time, but without objection acquiesces therein, it will be held to have ratified the act, unless there is sufficient excuse for the delay or failure to repudiate.”

We accept Fair’s testimony where it is in conflict with that offered by plaintiffs. Fair testified he left the 1974 Shreveport meeting with a firm understanding that no sublease agreement would be entered into with plaintiffs except over his signature. All transactions thereafter were with Schulze, who was acting without authority.

The most damaging evidence agamst Fair was his admission that the corporate treasurer told him about receiving a $5,000 check from plaintiffs. We do not find this sufficient to prove ratification. While there were other figures used in the negotiation, $5,000 was never mentioned. We find it reasonable that Fair did not connect this check to the sublease discussions with plaintiffs. We also find that Calumet’s disregard of plaintiffs’ three letters advising of their intention to take possession of the lease was reasonable. As far as Fair was concerned, no agreement had been signed and these letters deserved no immediate answer, especially when one considers that in less than two months thereafter he consulted his attorney and repudiated the agreement.

Considering the totality of the evidence, we find plaintiffs have failed to prove es-toppel or ratification.

The record is not clear whether the $5,000 is in the registry of the court or is being held by defendant. Accordingly, the judgment is amended to order this money returned to plaintiffs, and as amended the judgment is affirmed at appellants’ costs.


text:
    Sara Norphlet POWERS, Plaintiff-Appellant, v. NATIONAL INDEMNITY COMPANY et al., Defendants-Appellants.
    No. 13325.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1977.

      Hal V. Lyons, Shreveport, for plaintiff-appellant.
    Cook, Clark, Egan, Yancey & King by F. Lee Drake, Jr., Shreveport, for Commercial Union Ins. Co., plaintiff-intervenor-appel-lant.
    Lunn, Irion, Switzer, Johnson & Salley, Shreveport by Richard H. Switzer, Shreveport, for defendant and 3rd party plaintiff-appellants.
    Nelson & Achee, Ltd., Shreveport by Roland J. Achee, Shreveport, for William L. Walton, 3rd party defendant-appellee.
    Before BOLIN, C. J., and PRICE and MARVIN, JJ.
   MARVIN, Judge.

In an action for the wrongful death of the plaintiff’s husband in a Shreveport automobile accident, the lower court rejected the demands of plaintiff and the collision insurer of her late husband’s automobile for amounts paid under its insurance policy. The sole issue is whether the decedent was contributorily negligent in colliding with a parked truck. We affirm.

The accident occurred after dark about 6:00 p. m. on a winter evening. Defendant’s truck stalled shortly before the accident at the intersection of Grimmett Drive and Thomas Street and was left parked in the westernmost (or outside curb lane) of the two southbound lanes of Grim-mett. The lower court found that the lights of the truck were not illuminated when the accident occurred. Defendant’s driver made no attempt to warn other southbound traffic of the parked truck, but left it unattended. Under these circumstances, defendant’s driver breached his duty to warn approaching motorists of the parked truck. State Farm Mutual Ins. Co. v. South Cent. Bell, 343 So.2d 758 (La.App. 3d Cir. 1977).

At least two southbound vehicles in decedent’s lane of travel avoided the truck before the decedent’s fatal collision. The testimony conflicted as to the distance from which and extent to which the parked truck could be observed under the lighting afforded by the decedent’s automobile and by the several streetlights and other lights in the area. Also, we are not shown any circumstances from which we can reasonably infer that the decedent driver was momentarily confused or distracted and unable to timely react to the obstruction.

There is credible evidence to support the lower court’s conclusion that the decedent should have seen the parked truck in sufficient time to have avoided the collision.

At appellant’s cost, judgment is

AFFIRMED.


author: JONES, Judge.

text:
    Earl T. SANDERS, Plaintiff-Appellant, v. HARTFORD LIFE INSURANCE CO., Defendant-Appellee.
    No. 13326.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1977.
    Writ Refused Nov. 11, 1977.

      Campbell, Campbell & Johnson, by James M. Johnson, Minden, for plaintiff-appellant.
    Hudson, Potts & Bernstein, by W. Craig Henry, Monroe, for defendant-appellee.
    Before BOLIN, C. J., and HALL and JONES, JJ.
   JONES, Judge.

Plaintiff appeals a judgment rejecting his claim for disability benefits under an alleged health and accident policy with Hartford Life Insurance Company. The trial court held there was no insurance contract because plaintiff’s application for the insurance was an offer which had not been accepted by defendant. The trial court found no misleading conduct by the agent which provided any basis for the creation of the insurance contract on the doctrine of estop-pel. We affirm.

On April 27, 1972, Earl Sanders applied for disability insurance with defendant’s agent, Mrs. Louise Johnson. The questions on the application (including those relating to all previous health problems) were asked plaintiff by the agent who recorded his answers. Mr. Sanders read and signed the application. Plaintiff paid the initial premium of $36.68 and received a receipt. The application contained the following language concerning the effective date of coverage:

“I agree that if the full, initial premium for the policy is paid upon the date of this application and the company’s home office approves this application within 60 days hereof, the policy shall take effect upon the date of this application; . . .” (emphasis added)

The receipt contained similar language to that found on the application and further provided if the insurance did not become effective, the company would incur no liability except to refund the advance premium paid by the applicant.

Mrs. Johnson informed plaintiff she did not have authority to provide coverage on this application for disability insurance. She told him as a soliciting agent her authority was limited to accepting his application and forwarding it to Hartford for approval or denial.

On May 1, 1972, plaintiff was involved in an accident which allegedly disabled him from May 1, 1972 until December 1, 1973.

On May 8, Hartford received plaintiff’s application and premium and began its underwriting procedures to determine plaintiff’s insurability. During the 60 days following receipt of the application in spite of diligent effort Hartford was unable to obtain the necessary medical reports to evaluate plaintiff’s application. On July 17, Hartford refunded the premium paid because it had not received all the information needed to determine whether to accept or reject plaintiff’s application. Plaintiff refused to cash the refund check and demanded payment of disability benefits. Further investigation into plaintiff’s medical background revealed he misrepresented his medical history on the application. On September 19, Hartford informed plaintiff his application for disability insurance had been rejected due to his prior health problems which he failed to disclose on his application and his claim based upon the May 1st accident was denied.

We agree with the lower court that the rules of contract apply to an application for insurance and the application was an offer which must be accepted by the insurer to form a contract. Consent by the insurer is essential before an insurance contract can exist. LSA-C.C. Art. 1766, 1798, 1800; Gonsoulin v. Equitable Life Assurance Society, 152 La. 865, 94 So. 424 (1922); Upton v. Fidelity Standard Life Insurance Company, 185 So.2d 297 (La.App., 1st Cir. 1966); Monte-Janssen v. Continental Casualty Company, 208 F.2d 191 (5th Cr. 1953). The provisions in Hartford’s application and receipt made it clear no contract of insurance existed until Hartford’s home office approved the application. Locke v. Prudence Mutual Casualty Company, 172 So.2d 351 (La.App., 4th Cir. 1965).

On appeal plaintiff assigns as error the trial court’s failure to apply estoppel to create an insurance contract. Plaintiff argues (1) the agent misled him into believing coverage was effective from the date of the application and (2) defendant unreasonably delayed in denying his application.

Plaintiff and his wife testified the agent told them he had immediate coverage. The agent denied their testimony and testified she advised them approval at Hartford’s home office was necessary before the insurance became effective. We agree with the trial court’s findings that Mrs. Johnson did not misrepresent or waive the application’s requirement of home office approval. We further agree with the trial court’s finding plaintiff’s possible “good faith” misunderstanding of effective coverage date will not estop defendant from denying coverage where plaintiff had read the application and had in his possession the receipt both of which required Hartford’s approval for an insurance contract. Under these circumstances there is no justification for the plaintiff to believe he had immediate coverage. The trial court’s factual findings must be given great weight by this appellate court and should not be disturbed upon review in the absence of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

While we concur in the trial judge’s finding the agent did not represent to plaintiff he had immediate coverage, it is significant to point out even had she made such representations where her absence of authority was clearly set forth in the application and receipt, such conduct on her part would not have estopped defendant from denying the existence of coverage. Gonsoulin v. Equitable Life Assurance Society, supra; Borer v. Security Industrial Life Insurance Company, 245 So.2d 5 (La.App., 1st Cir. 1971).

Plaintiff urges as his second ground for estoppel the defendant’s unreasonable delay in rejecting his application. Our review of the evidence establishes a 22 day delay beyond the 60 day period provided in the application before defendant refunded plaintiff his premium on July 17. We do not find this delay to be unreasonable. The language of the application and receipt advised plaintiff of the possibility of delay in approving an application. The provisions indicate the insurance may become effective after the initial 60 days if the specified conditions are met.

The time span from the date of application (April 27, 1972) to the date of notification of nonacceptance (Sept. 19,1972) covered approximately 146 days or 4V2 months which under the circumstances was not unreasonable. Defendant’s delay in rejecting the application was partially caused by plaintiff’s failure to disclose on the application prior medical history and names of physicians who treated plaintiff for these prior illnesses and injuries, including arthritis and back ailments. Plaintiff’s examining physicians caused defendant delay when they did not promptly return requested medical reports which were essential to evaluation of plaintiff’s application. The results of defendant’s underwriting procedures justified their decision to reject plaintiff’s application for disability insurance.

Plaintiff argues under the provisions of LSA-R.S. 22:619(B) his misrepresentations do not bar recovery because they were not made with the intent to deceive and were unrelated to the risk assumed by the insurer of his post application injuries. This statute applies to an insurance contract issued based upon an application containing misrepresentations. The statute is inapplicable to plaintiff’s situation because there is no contract of insurance.

For the foregoing reasons, judgment is affirmed at appellant’s costs.

      . The application reads:
      [I]f the full initial premium for the policy is paid upon the date of this application and the Company’s Home Office approves this application within 60 days hereof, the policy shall take effect upon the date of this application; otherwise the policy, if issued, shall take effect on the Policy Date stated in the policy, but then only if (a) the policy has been delivered to me, (b) the answers in the application represent, without material change, answers to the same questions if asked at the time of delivery, and (c) the initial premium is paid in full.” (emphasis added)
      The receipt contains similar language.

      . R.S. 22:619
      ******
      “B. In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer.”