author: GULOTTA, Judge. BEER, Judge

text:
    Cleveland CALDWELL v. EXXON CORPORATION.
    No. 6971.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.

      Orlando G. Bendana, New Orleans, for plaintiff-appellee.
    Bernard J. Caillouet, E. Burt Harris, Richard A. Chopin, New Orleans, for defendant-appellant.
    Before SAMUEL, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

Defendant appeals from a judgment awarding partial disability benefits to an injured employee who sustained a broken ankle while employed as a service station attendant at defendant’s Car Care Center in New Orleans, Louisiana.

On May 17, 1973, plaintiff suffered a nondisplaced fracture of the tip of the lateral malleolus of the left ankle. Treatment by Dr. Arthur J. Axelrod, to whom plaintiff was referred by his employer, required the use of a cast for approximately a three week period, after which time he was required to use a high top leather shoe for support. Caldwell was discharged to return to work on July 21, 1973. He actually returned on July 25, 1973. Plaintiff terminated his employment with Exxon on May 7, 1974. At the time of the trial he was engaged in duties of a similar nature at a Shell service station.

The thrust of defendant’s appeal is that the trial judge erred when he concluded that plaintiff suffered any permanent disability. It is defendant’s alternative position that if, indeed, plaintiff suffered a partial disability, compensation benefits should be awarded in accordance with the nonscheduled provisions of the act which provide for weekly payments not to exceed 100 weeks. Defendant further contends plaintiff is not entitled to benefits compen-sable under the scheduled provisions of the act, which provide for payments not to exceed 125 weeks, based on partial disability of the foot. Exxon also finds error in the assessment, as a medical expense, of medical examinations occurring approximately one year after the injury and in preparation for trial. Finally defendant complains that the assessment of an expert’s fee for this physician’s testimony was error.

Plaintiff, on the other hand, takes the position that the medical evidence supports the trial judge’s conclusions that a partial disability of the foot resulted from the fracture of the left ankle and, under the scheduled benefit provisions of the act, plaintiff is entitled to an award for a partial permanent disability of the left foot amounting to benefits not to, exceed 125 weeks.

The trial judge found the employee to be functionally disabled in the left ankle, causing pain to radiate into the foot,, resulting in a partial disability of the foot. He awarded plaintiff benefits at the rate of $12.50 per week for 125 weeks under the scheduled loss provisions of the Workmen’s Compensation Act. See LSA-R.S. 23:1221, 4(g) and 4(c). We agree. The record supports the result reached by the trial judge.

Dr. William Fisher, a general surgeon, examined plaintiff on May 16, 1974, and again on May 29. The doctor’s examination of plaintiff’s left foot and ankle revealed a slightly increased induration (thickening) of the soft tissue over the lateral malleolus (tip of the fibula). Palpa-tions revealed a tenderness over the ankle and foot area. According to x-rays, plaintiff had a well-healed fracture of the distal end of the fibula, slightly above the ankle joint. It was Dr. Fisher’s opinion that plaintiff’s complaints of pain, requiring him to “hop” on his foot, were related to the injury. The doctor concluded plaintiff had a 1%, 2% or 3% disability of the ankle. According to Dr. Fisher, people over 45 years of age, such as plaintiff (age 50), generally would have a more difficult recovery. Furthermore, it was Dr. Fisher’s opinion that plaintiff suffered injury to the adjoining bony structures which extend into the foot.

Dr. Arthur J. Axelrod, a general surgeon, initially examined plaintiff on May 18, 1973. Approximately seven examinations followed, the last being on July 21, 1973. X-rays taken by Dr. Axelrod demonstrated a fracture of the tip of the left lateral malleolus. It is Dr. Axelrod’s opinion that this type of fracture would not lead to any pérmanent disability. However, Dr. Axelrod did recommend a pair of high top leather shoes for the purpose of lending support to plaintiff’s ankle. Following plaintiff’s purchase of the boots, he continued to complain to Dr. Axelrod of persistent pain. It is Dr. Axelrod’s opin-on that someone who has suffered an injury severe enough to break a bone can experience pain, from time to time, for as long as a year, without an abnormality in healing or of function. Dr. Axelrod also testified that this type of injury could produce some functional stiffness in the ankle ligaments.

Significantly, after plaintiff’s discharge on July 21, 1973, he was not examined again by Dr. Axelrod. According to the doctor, although he had not seen plaintiff since discharge, he had no reason to change his opinion that plaintiff suffered no disability. However, if plaintiff, as late as May, 1974, had returned to Dr. Axelrod with symptoms similar to those described to Dr. Fisher, it is not unreasonable to conclude that Dr. Axelrod would have found a partial disability.

Caldwell testified that before he accident, though occasionally there had been swelling in the toes, he did not have any trouble with his foot, ankle or leg. Plaintiff complains that since the accident, when he wakes in the morning, he has a pain and stiffness in the foot, and he must “hop” around for 45 minutes to an hour before he can walk normally. In the evening, when he returns home from work, he finds it necessary to soak the foot. According to plaintiff, before the injury, he had no difficulty in stooping. Now he cannot because of pain in his toes.

Edward J. Stuart and Jim Armstrong, borh employees of Exxon Corporation, supported the contention that plaintiff suffered no disability. They testified that plaintiff had been a good employee, and upon his return to his job after the accident, Caldwell worked a greater number of hours than he had prior to his injury. Also, they testified that plaintiff had been capable of doing all of his assigned duties.

We do not attach a great deal of significance to a comparison between plaintiff’s pre-injury work record and his post-injury work pattern. According to Dr. Fisher, Caldwell suffered minimal disability. Reasonably such slight impairment would not prevent plaintiff from carrying out his assigned duties. A comparison of plaintiff’s work records would be of greater significance in a total permanent disability case.

Mrs. Alma Furlough, a friend of plaintiff’s, generally corroborated Caldwell’s testimony.

The conclusion reached by the trial judge that plaintiff suffered a partial disability of the foot as a result of the May 7, 1973 accident is a credibility determination. Firmly engrained in our jurisprudence and not requiring citation is the rule that on credibility questions, great weight must be given to the findings of fact of the trial court, and those findings will not be disturbed absent manifest error. We find no such error. The record supports the conclusion of the trial judge that plaintiff suffered a partial disability of the foot.

We reject defendant’s contention that workmen’s compensation benefits resulting from a broken ankle come under the purview of the nonscheduled provisions of the Louisiana Workmen’s Compensation Statute, specifically LSA-R.S. 23:1221(4) (p), and not under the scheduled benefits which provide for a disability of the foot. Dr. Fisher testified that the injury to plaintiff’s ankle resulted in a disability to his foot. Therefore, an award of 125 weeks compensation under the scheduled benefit provisions of the act was not error.

We reject also the contention that the trial judge erred in awarding an expert’s fee to Dr. Fisher. The opinion testimony given by the doctor justifies the payment and assessment of an expert’s fee. Berry v. Higgins, Inc., 136 So.2d 170 (La.App., 4th Cir. 1962) ; Tyler v. Owens Illinois, Inc., 289 So.2d 893 (La.App., 4th Cir. 1974).

Finally, we do find merit in defendant’s contention that the trial court erred in ordering payment of medical expenses of $50.00 to Dr. William Fisher and $36.00 to Dr. Joseph Hopkins, a radiologist to whom plaintiff was referred by Dr. Fisher. Dr. Fisher testified that his visit with plaintiff consisted primarily of an examination and evaluation for trial purposes. Since the examinations were obtained in preparation for trial, the cost of these examinations is not properly assessable as a medical expense in a workmen’s compensation case. See LSA-R.S. 23:1203; Cummings v. Albert, 86 So.2d 727 (La.App., 1st Cir. 1955); Jones v. Hunsicker, 188 La. 468, 177 So. 576 (1937). See also Baturo v. Employers’ Liability Assurance Corp., 149 So.2d 627 (La.App., 4th Cir. 1963).

For the reasons assigned, that part of the judgment appealed from which awards plaintiff $86.00 for the cost of medical examinations by Drs. Fisher and Hopkins is annulled and set aside. In all other respects the judgment is affirmed. Costs in this court are to be paid by the defendant-appellant.

Annulled and set aside in part; affirmed in part.

BEER, Judge

(concurring).

I concur in the result, agreeing with the majority’s view that the conclusion reached by the trial judge falls into the category of a credibility determination that is not “manifestly in error.” Yet, I believe that this opinion indicates a drift toward a rocky reef.

Mr. Caldwell was discharged from the care of his treating physician on July 21, 1973 and certified able to return to full and unrestricted employment at the same job. He did return and worked without interruption or restriction until he left of his own accord almost a year later. Prior to discharge, the treating physician found him free of any disability whatsoever. However, almost a year later a medical witness who is not even recognized by us as being entitled to have his bill taxed either as costs or as a properly assessable medical expense reports that Mr. Caldwell has a “one percent, possibly two — at the most, maybe three” percent disability of the ankle. And, if one carefully reads his testimony it appears obvious that the first thought on his part was to categorize the disability at one percent; the “possibly two —at the most, maybe three” being added as an afterthought — perhaps with the realization that a “one percent disability” sounded somewhat ludicrous.

I believe that the principle of de minimis non curat lex should apply to an alleged disability of one percent. I acknowledge that the applicability of the doctrine must give way just as soon as the alleged disability becomes identifiable to some seriously recognizable degree but I doubt that is the case here. Mr. Caldwell is entitled to full disability payments during the time he is actually disabled but this kind of award has the appearance, in my opinion, of “lagniappe.” It portends a dangerous tendency which could, if it persists unchecked, do havoc to the basic concept of the workmen’s compensation act. I need not dwell on the possibilities of abuse— they are too clearly discernible.

Having signaled my fear that we are standing into danger, I respectfully concur.

      . End of fibula slightly above the ankle joint.

      . Minimum Compensation as provided for in LSA-R.S. 23:1202 is applicable in the instant case. See Act 25 § 2 of the Extraordinary Session of 1968.

      . LSA-R.S. 23:1221, in pertinent part, reads as follows:
      “Compensation shall be paid under this Chapter in accordance with the following schedule of payments:
      “ * * *
      “(4) In the following cases the compensation shall be as follows :

        a * sj; *
      “(g) For the loss of a foot, sixty-five per centum of wages during one hundred and twenty-five weeks.
      «* * *
      “(o) In all cases involving a permanent partial loss of the use or function of the members mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such members as the disability to such members bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable for the loss of such member.”

      . Defendant contends that a suit for workmen’s compensation benefits resulting from a broken ankle comes under the purview of the nonscheduled provision of the Louisiana Workmen’s Compensation Statute, specifically LSA-R.S. 23:1221(4) (p). Brown v. Liberty Mutual Insurance Co., 239 So.2d 711 (La.App., 1st Cir. 1970). However, in oral argument, counsel for defendant readily admitted that each case must be decided on its own particular circumstances.
      In Berry v. Higgins, Inc., 136 So.2d 170 (La.App., 4th Cir. 1962), an ankle fracture sustained by a ship’s carpenter resulted in a permanent partial disability of the leg. In Berry, plaintiff recovered workmen’s compensation benefits under the scheduled provisions of the Act.
      In Hall v. Pipe Line Service Corporation, 233 La. 821, 98 So.2d 202 (1957), a workman suffered some degree of permanent partial loss of the function of his left foot as a result of severing his Achilles tendon in the lower portion of his left leg. Plaintiff was permitted to recover under the scheduled portion of the Act for permanent partial loss of the use or function of the foot.

      . LSA-R.S. 23:1221(4) (p) reads as follows:
      “In cases not falling within any of the provisions already made, where the employee is seriously permanently disfigured about the face or head, or where the usefulness of a physical function is seriously permanently impaired, the court may allow such compensation as is reasonable and as in proportion to the compensation hereinabove specifically provided in the cases of specific disability, not to exceed sixty-five per centum of wages during one hundred weeks.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    W. A. (Willie) WILLIAMS v. Hon. Wade O. MARTIN, Jr., Secretary of State, et al.
    No. 10618.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 25, 1975.

      James J. Brady, Alexandria, for appellant.
    Edwin O. Ware, III, Alexandria, for Committee.
    I. Stephen George, Asst. Atty. Gen., Baton Rouge, for Hon. Wade O. Martin.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   PER CURIAM.

Plaintiff, W. A. (Willie) Williams, is seeking, by mandamus, to compel the Fourth Public Service Commission District Democratic Executive Committee to certify him as a candidate for Public Service Commissioner from that district. He also asks that Hon. Wade O. Martin, Jr., Secretary of State of Louisiana, be enjoined from printing the official ballot for the November 1, 1975, primary election without including plaintiff’s name thereon as a candidate for the said office. After trial on the merits, judgment was rendered dismissing plaintiff’s suit, and he has appealed.

LSA-R.S. 18:392 provides, in part, as follows:

“ * * * Every candidate for nomination as * * * member of the public service commission * * * shall file written notification and declaration of candidacy, as provided in this Part, with the chairman of the appropriate committee * *
LSA-R.S. 18:397 provides, in part:
“Whenever provision is made in this Part for the filing of any notice, deposit, or any other paper with any party committee or party officer, it shall be filed with the chairman of the proper committee. If the chairman is not available, absents himself, cannot be found or for any reason refuses to accept the paper or deposit, it may be filed with the secretary. * * * ”

On the morning of August 7, 1975, plaintiff set out to qualify as a Democratic candidate for Commissioner from the Fourth Public Service Commission District. The deadline for qualifying was 5:00 o’clock p. m. on that day. From information which plaintiff states that he garnered from a Baton Rouge newspaper, he was of the opinion that he had to qualify before Arthur Watson, Chairman of the Democratic State Central Committee, and that Mr. Watson would be in Baton Rouge on that day. He, therefore, drove from his home in Many, Sabine Parish, Louisiana, to Baton Rouge.

After his arrival in Baton Rouge, he made a number of inquiries and finally learned that he should qualify before Edwin O. Ware, III, Chairman of the Fourth Public Service Commission Democratic Executive Committee. He attempted to contact Mr. Ware at his office in Alexandria, Louisiana, and learned that Mr. Ware was not available. Mr. Ware’s office referred plaintiff to Lloyd G. Teekell, who was Secretary of the Committee. At about 4:00 o’clock p. m., one of the employees of the Secretary of State spoke to Mr. Teek-ell and found that he was available in his office in Alexandria, Louisiana.

Mr. Teekell said that he did not think it would work, but for whatever it was worth, he would appoint the Secretary of State’s office or any of his employees, as his agent to receive plaintiff’s qualifying papers and his deposit. Plaintiff then delivered his papers and the money to Gloria Crowson, an employee of the Secretary of State, prior to the 5:00 o’clock p.m. deadline. Mrs. Crowson sent the material to Mr. Teekell by mail. It was, of course, received by him after the deadline for qualifying.

On August 8, 1975, Mr. Ware wrote plaintiff that, because his qualifying papers were not filed in accordance with law, he was unable to certify plaintiff as a candidate for Public Service Commissioner. This suit followed.

In disposing of the case adversely to plaintiff, the trial judge found that although the Chairman of the Committee was not available, the Secretary was available in his office in Alexandria. He further held that the law does not authorize either the Chairman or the Secretary to appoint another person to receive qualifying papers, and that plaintiff was required to place his papers in the hands of the appropriate committee officer prior to the deadline. We affirm.

Plaintiff, in oral argument before this Court, states that Lloyd G. Teekell, Secretary of the District Executive Committee, had the authority to appoint an agent to accept service of the nomination papers for him. Our examination of the statute (LSA-R.S. 18:397) reveals that no such authority is contained therein. The procedure outlined clearly requires that nomination papers shall be filed with the Chairman, and in the event of his unavailability, then with the Secretary of the Election Committee. The evidence shows that the Chairman of the Committee was unavailable and that the Secretary of the Committee was available. Accordingly, the statute required that plaintiff file his nomination papers with him personally and not with some agent appointed by him.

Plaintiff’s final argument is that he relied to his detriment on the Secretary’s appointment of an agent to accept his nomination papers. This argument is without merit. There is no showing in the record as to what other alternatives were available to plaintiff in order to timely qualify, and his reliance on the validity of the Secretary’s appointment of an agent is unwarranted. It was stipulated that the Secretary in connection with this purported appointment stated to plaintiff:

“ * * * [T]his probably would not work, but for whatever it was worth he would appoint the Secretary of State, or any of his employees, as agent for him to receive the papers and his money.”

(Record, p. 26)

Thus, it can be seen that the defendant committee did not do anything upon which the plaintiff could rely, to his own detriment.

“A plea of estoppel carries the general implication the pleader has been induced by the conduct or action of another to do something or follow some course he would hot otherwise have pursued and which, in addition, resulted in some detriment or loss. State ex rel. Richardson v. Board of Trustees, Teachers’ Retirement System et al., La.App., 29 So.2d 489.”
(Levy v. Bonfouca Hunting Club, 136 So.2d 567, 572, [La.App. 1st Cir. 1961])

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

Affirmed.


author: MORRIS, Judge.

text:
    Argentine Emelia Black FISHER, Plaintiff-Appellee, v. John A. FISHER, Defendant-Appellant.
    No. 5125.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.

      Sandoz, Sandoz & Schiff, by Lawrence B. Sandoz, Jr., Opelousas, for defendant-appellant.
    Mouton & Roy by John K. Hill, Jr., Harmon F. Roy, Lafayette, for plaintiff-appellee.
    Before WATSON, DOMENGEAUX and MORRIS, JJ.
   MORRIS, Judge.

This case involves the payment of alimony by defendant-appellant, Dr. John A. Fisher, to his former wife, Argentine Eme-lia Black Fisher, the plaintiff and appellee herein. This matter has a long history. In 1962 judgment was rendered in the district court ordering defendant, John A. Fisher, to pay unto plaintiff, Argentine Emelia Black Fisher, alimony for the support and maintenance of herself and five minor children, Argentine Mary Fisher, Adelaide Elizabeth Harry Fisher, Catherine Leslie Fisher, Emelia Anne Fisher and Claire Adah Marie Fisher, in the sum of $1,250.00 per month. In 1966 the parties agreed to a reduction in said payment to $1,000.00 per month. In 1971 the defendant, John A. Fisher, alleging that three of the children, Argentine Mary Fisher, Adelaide Elizabeth Harry Fisher and Catherine Leslie Fisher, had either reached the age of majority or been emancipated by marriage, brought a motion for a decrease in alimony. This motion, filed July 28, 1971, alleges that the two remaining minors, Emelia Anne and Claire Adah Fisher, are, respectively, seventeen and fourteen years of age. On March 16, 1972, pursuant to a joint stipulation and agreement of the parties, the original Judgment of September 28, 1962, was amended as follows:

IT IS ORDERED, ADJUDGED AND DECREED that the defendant, JOHN A. FISHER, be and he is hereby ordered to pay to the plaintiff, ARGENTINE EMELIA BLACK FISHER, alimony at the rate of Six Hundred and No/100 ($600.00) Dollars per month, commencing June 1, 1972, and in addition thereto to pay all schooling, transportation and living expenses for Emelia Anne Fisher and in addition thereto, during the months in which Emelia Anne Fisher is not in college to pay to plaintiff the sum of One Hundred and No/100 ($100.00) Dollars per month for her room and board.

As an amendment [so stated in the preamble] the order of March 16, 1972, has the same effect as the original judgment, except that $1,250.00 per month is reduced to $600.00 per month. It was obviously intended in the original judgment to make one unapportioned award for the support of the wife and the minor children, and the intent of the amended judgment is clearly to continue this manner of making the award in one lump sum. Since there were still two minor children at that time, it cannot be said that the award was intended for the wife alone, and we view the “consent” judgment simply as a modification of the original judgment making one unappor-tioned award of alimony for the wife and support of the children. No appeals were taken from any of the prior orders or judgments.

On June 25, 1974 defendant-appellant filed a motion styled “Motion to Discontinue Alimony and to Fix Child Support” in which Dr. Fisher prays for the rescinding of the Order of March 16, 1972 fixing alimony at $600.00. He alleges that Mrs. Fisher has assets over $20,000.00 and is not entitled to alimony. In his motion Dr. Fisher also expressed a willingness to pay the education expenses of his children, Emelia Anne Fisher and Clare Adah Marie Fisher. It is the judgment rendered on this motion which is involved in this appeal.

At the trial of the motion, which was held on September 30, 1974, it was stipulated that defendant’s list of income, household and personal expenses, as well as plaintiff’s affidavit of living expenses, would be received in evidence. It was further stipulated (a) that at the time the previous judgments had been rendered Mrs. Fisher owned all of the property which she presently owns, (b) that Mrs. Fisher’s income has deteriorated, (c) that Claire Adah Marie Fisher [the only remaining minor] would be 18 years of age on November 27, 1974, (d) that Dr. Fisher was then paying Claire’s college expenses estimated at $417.00 per month, and also the college expenses of Emelia Anne Fisher [20 years of age] estimated at $373.00, (e) that since the last judicial decree in March of 1972, Dr. Fisher has had a small increase in salary, and (f) that Mrs. Fisher has no work experience or training and has not been employed for over 25 years.

On December 17, 1974, Reasons for Judgment were filed in the District Court in which the trial judge found that there was no change in Mrs. Fisher’s financial condition, and maintained the alimony at $600.00 per month. The trial judge also observed that there were no minor children as of that date, and deleted that portion of the previous order allowing $100 per month to Mrs. Fisher during the time that Emelia Anne Fisher was not in college. A judgment conforming to the reasons for judgment was signed January 21, 1975, and from this judgment Dr. Fisher appeals.

The “consent” alimony and child support order of March 16, 1972 is an award “previously fixed and determined” and to obtain a reduction, modification or cancellation thereof, it was incumbent upon the mover, Dr. Fisher, to prove a change in respondent’s circumstances, or his own, from the time of the last award. Bernhardt v. Bernhardt, 283 So.2d 226 (La.Sup.Ct.1973). This prerequisite to the court’s modification of an alimony award is not restricted to a change in the recipient’s financial condition, but includes any change in circumstances of either party. Bernhardt v. Bernhardt, supra.

We think there has been a change in circumstances which would authorize a consideration of the demands of defendant-appellant. At the time the order of March 16, 1972 was entered fixing the unapportioned alimony at $600.00 per month there were two minor children, Emelia Anne Fisher and Claire Adah Fisher. At the time of the trial of the present motion [September 30, 1974] there was only one minor child, Claire Adah Fisher. This is a change in circumstances as the

award of March 16, 1972 was a continuation and amendment of the original single award and was for the support of the wife and two minor children. Furthermore, according to the trial stipulation Claire Adah Fisher had become of age at the time Reasons for Judgment were filed and the judgment signed. Therefore, at the present time there are no minor children and it cannot be said that defendant, by-consenting to alimony for his former wife and two minor children in the unappor-tioned amount of $600.00 per month has judicially admitted the need in that amount for the wife and one child, or the wife alone. Bernhardt Case, supra; Bazzell v. Bazzell, 289 So.2d 202 (La.App. 1st Cir. 1973). The trial stipulation of Claire’s age and the passage of time which resulted in the majority of this only remaining minor are matters which may be judicially noticed by the court. Prevention of multiplicity of suits, where such is possible, and the ends of justice at the same time sub-served, is a function and duty of a court. Foster & Glasell Company, Inc. v. Ackel, 160 So. 863 (La.App. 2nd Cir. 1935). In order to render a fair judgment and avoid future litigation this court therefore, will consider the facts as they exist at the present time, as reflected by the record.

LSA-C.C. Art. 160 is the basis for awarding permanent alimony to the wife. This article provides that the wife who does not have sufficient means for her maintenance is entitled to alimony out of the property and earnings of her former husband. In considering the means of the wife the court must consider both her capital and income. Leavines v. Leavines, 224 So.2d 26 (La.App. 4th Cir. 1969). It is not intended that the means of the wife enable her to maintain a style to which she was accustomed during the marriage, but rather to provide the wife with the basic necessities of food, clothing, shelter and medical expenses, and the peculiar facts of each case must be considered. Wood v. Wood, 289 So.2d 211 (La.App. 1st Cir. 1973). Alimony to the wife after the divorce is in the nature of a gratuity or pension, and is not based on the marital obligation of support. All of these considerations were reviewed by the court in the recent case of Frederic v. Frederic, 302 So.2d 903 (La.Sup.Ct.1974). In that case the wife had liquid assets as well as an undivided interest in property valued in excess of $73,000.00 and the court found that, considering all of the facts, the wife had sufficient means for her support as that term is used in LSA-C.C. Art. 160.

In the present matter Mrs. Fisher does not have liquid assets of any consequence or income producing property, except for a net rental of approximately $1,666.00 received in 1973. The principal assets of plaintiff-appellee are the family home valued at $70,000.00, on which a mortgage balance of $3,000.00 is owed, and shares in Churchill Farms valued at $25,000.00 and from which she receives no dividends. Her liabilities consist of her living expenses, the above mortgage balance and $15,500.00 in loans which she made in order to meet household and living expenses. The assets which Mrs. Fisher own have not changed materially since the previous award, and considering all of the facts and circumstances, as -well as the present day inflated cost of living, this court feels that an award of $500.00 per month is sufficient to provid.e support and maintenance in accordance with the meaning of the codal article.

As stated in Bernhardt v. Bernhardt, supra the major children may bring action for support in their own right under the general right to support article in the event that they feel they are entitled "to support from Dr. Fisher and the provision for schooling, transportation and living expenses of Emelia Anne Fisher and Claire Adah Fisher contained in the trial judgment is erroneous. Since both were majors at the time the judgment was signed, provision for their support had no place in the judgment rendered in favor of the wife. We do not understand the pleading of Dr. Fisher to mean that he consents to or requests a provision in the Judgment for support of the major children, but only that he is willing to do this independently of any court order.

Although plaintiff-appellee in her answer requests an increase in the amount of alimony, she has neither appealed nor answered the appeal, and thus her demand, denied by the trial court, cannot be considered by this court.

For the reasons assigned, the judgment of the trial court is amended and it is now ordered, adjudged and decreed that there be judgment herein in favor of the plaintiff-appellee, Argentine Emelia Black Fisher, and against defendant-appellant, Dr. John A. Fisher, fixing alimony for the support and maintenance of said plaintiff-appellee in the sum of $500.00 per month. All costs are taxed against defendant-appellant.

Amended and affirmed.


author: REDMANN, Judge.

text:
    SOUTHERN X-RAY, INC. v. Dr. Albert HENDLER and Dr. Ramon Mouton, et al.
    No. 6990.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Clarence F. Favret, Jr., Favret, Newman, Duggins & Drolla, New Orleans, for plaintiff-appellee.
    Walter R. Fitzpatrick, Jr., New Orleans, for defendants-appellants.
    Before REDMANN, BOUTALL and MORIAL, JJ.
   REDMANN, Judge.

Contracts providing for the “lease” of x-ray equipment gave defendants “the privilege of purchasing said leased equipment at any time during the lease . . . with the understanding that [they] shall be given credit against the purchase price of said equipment for the entire sum paid for the rental.” Defendants’ appeal argues that the “purchase price” is $32,093.30, the cash price not mentioned in the contracts but offered in pre-contract negotiations (which, increased by 5% “add-on” interest and divided into 60 monthly payments, is also the basis of the contracts’ $668.61 monthly “rental”). Plaintiff’s answer to the appeal argues only against damages and attorney’s fees awarded for plaintiff’s improper obtaining of conservatory attachment.

We reject defendants’ position that they are entitled to purchase for the once-proposed cash price less “rental” payments. Four years of rental payments (48 x $668.-61) would equal that cash price, yet the contract calls for five years of payments (60 x $668.61). Defendants’ construction of “purchase price” as cash price would nullify the provision for 60 payments and change it to 48. It would also nullify the further provision (specially sought by defendants) giving defendants “the option of purchasing [after paying the full 60 months of payments] for an additional consideration of $1.” And, between the 48th and the 60th payment, the credit against the price would exceed the entire price under defendants’ construction. Because this construction would cause an “absurd consequence,” C.C. 1945(3), and would “render nugatory,” C.C.1951, the provisions relating to payment after the 48th month, it is unacceptable.

We agree in substance with plaintiff’s position, as contained in its offer to complete the sale for the correct “amount of the payoff.” The only price expressly set forth in the contracts is that of the full 60 payments (plus the unnecessary formality of the “additional consideration of $1”). However, the clause entitling defendants to purchase with credit for earlier rentals must also be given “some effect,” C.C.1951, and we believe its obviously intended effect was to provide an escape from the additional cost — the 5% add-on interest — occasioned by the 60-month term for payment of the only clearly-expressed “priqe.”

Plaintiff’s payoff figure does deduct from the 60-month price the unearned interest at the time of election to purchase. The trial court’s award of this figure was correct.

On the question of the propriety of the attachment, plaintiff’s only evidence was that x-ray equipment could be deliberately damaged with ease. We agree with the trial court’s conclusion that this evidence did not justify the attachment. The amount of damages seems within the trial judge’s discretion, considering the loss of a day’s x-ray production and the general damages arising from the attachment.

Affirmed.


author: HOOD, Judge.

text:
    STAHLMAN LUMBER COMPANY-DIVISION OF STACO MANUFACTURING COMPANY, Plaintiff-Appellee, v. Jere FERRILL, Defendant-Appellant.
    No. 5230.
    Court of Appeal of Louisiana, Third Circuit
    Oct. 17, 1975.

      William Koerber, Vidalia, for defendant-appellant.
    Falkenheiner, Calhoun and Murray by George C. Murray, Jr., Vidalia, for plaintiff-appellee.
    Before FRUGÉ, HOOD and MILLER, JJ-
   MOTION TO DISMISS

HOOD, Judge.

The plaintiff-appellee, Stahlman Lumber Company, moves to dismiss the appeal of defendant, Jere Ferrill, on the ground that the judgment rendered by the trial court is a non-appealable interlocutory decree. The matter is before us solely on that motion.

This suit was instituted by Stahlman Lumber Company against defendant Ferrill in the Seventh Judicial District Court, Parish of Concordia. Alleging that Ferrill resides in the State of Mississippi, plaintiff obtained a non-resident attachment of real property owned by defendant in Concordia Parish. An attorney was appointed to represent the defendant, and service of process was made on defendant through that attorney. Ferrill has never been personally served with process.

Defendant, through his own counsel, filed a declinatory exception to the jurisdiction of the district court and a motion to dissolve the writ of attachment. He alleged as grounds for the exception and motion that “at all times material to this suit, defendant was a resident of and domiciled in Concordia Parish, Louisiana, and he has not been properly served with citation and process.”

The exception and the motion were tried, and thereafter judgment was rendered by the trial court in favor of plaintiff (1) overruling defendant’s exception to the jurisdiction of the court, (2) denying his motion to dissolve the attachment, and (3) granting defendant until July 1, 1975, to file his answer. Defendant appealed from that judgment.

After the appeal was perfected, Stahl-man Lumber Company, the plaintiff-appel-lee, filed in this court a motion to dismiss the appeal taken by Ferrill, alleging as grounds therefor that the judgment from which this appeal is taken “is an interlocutory judgment that may not cause irreparable injury to the appellant and is therefore not appealable.”

LSA-C.C.P. art. 1841, which defines judgments, provides:

“A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final.
“A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.
“A judgment that determines the merits in whole or in part is a final judgment.”

LSA-C.C.P. art. 2083, relating to appeals, provides in part that “An appeal may be taken from a final judgment . and from an interlocutory judgment which may cause irreparable injury.”

Plaintiff contends that the decree of the trial court is an interlocutory judgment which cannot cause irreparable injury, and that it thus is not appealable. Defendant contends principally that it is a final judgment, and alternatively, that it is an interlocutory judgment which may cause irreparable injury.

We believe that a judgment overruling an exception to the jurisdiction of the court is a non-appealable interlocutory judgment. Woodcock v. Crehan, 28 So.2d 61 (La.App. 1 Cir. 1946); Gierczic v. Gierczic, 150 So.2d 84 (La.App. 4 Cir. 1963). See also LSA-C.C.P. art. 2083 Comment (a), Par. 5.

Our jurisprudence also is settled that a judgment denying a motion to dissolve an attachment or sequestration is an interlocutory judgment which does not cause irreparable injury, and that such a judgment thus is not appealable. See Smith v. Utility & Maintenance Contractors of America, Inc., 301 So.2d 906 (La.App. 2 Cir. 1974), and cases cited therein. An exception to that rule has been recognized where the motion to dissolve the attachment or sequestration is accompanied by an incidental demand for damages for the wrongful issuance of the writ. Smith v. Utility & Maintenance Contractors of America, Inc., supra; Talley v. Bradley, 177 So.2d 629 (La.App. 3 Cir. 1965). In Talley v. Bradley, supra, for instance, we said:

“Although the judgment appealed from did not decide all points in controversy between the parties, it did constitute a final judgment on the incidental demand of defendants for damages for the wrongful issuance of the writ of sequestration. As to that issue it has acquired the authority of the thing adjudged. . . "

In the instant suit defendant has not demanded damages for the alleged wrongful issuance of the writ of attachment. In his motion to dissolve the attachment, he prayed solely that “the writs of attachment heretofore issued be dissolved.”

Defendant recognizes the above rules. He points out, however, that in this case he “could not seek damages for wrongful attachment unless he submitted to the jurisdiction of the court,” and he argues that under those circumstances “the judgment should be treated as an appealable final judgment on an incidental demand.” He also argues that the judgment “resolved the issue of residency in favor of plaintiff,” and for that additional reason it is appealable.

We find no merit to these arguments. Since defendant sought only to dissolve the attachment and did not also demand damages for the wrongful issuance of the writ, the decree rendered by the trial court is an interlocutory non-appealable judgment.

Defendant contends, alternatively, that even though the judgment appealed from is interlocutory, it causes irreparable injury and thus it is appealable. His argument is that if he elects not to appear and claim damages for the wrongful issuance of the writ, he will be precluded from recovering such damages, “even if the case is subsequently reversed on appeal after final judgment on the merits,” and that he thus may suffer irreparable injury.

We express no opinion as to the rights which defendant may or may not have under the above circumstances. We hold, however, that under our established jurisprudence the decree rendered by the trial court is an interlocutory non-appealable judgment, since defendant did not demand damages in connection with his motion to dissolve the attachment. That conclusion is compelled, we think, regardless of the effect which defendant’s failure to claim damages may have on his ultimate right to recover them.

For the reasons herein assigned, the motion of plaintiff, Stahlman Lumber Company, to dismiss the appeal taken by defendant, Jere Ferrill, is granted, and accordingly the appeal is ordered dismissed. The costs of the appeal are assessed to defendant-appellant.

Appeal dismissed.


text:
    Willie JACOB, Plaintiff-Appellee, v. William JACOB, Jr., Defendant-Appellant.
    No. 5158.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1975.

      Henry A. Bernard, Jr., New Iberia, for defendant-appellant.
    Armentor & Wattigny by Gerard B. Wattigny, New Iberia, for plaintiff-appel-lee.
    Before HOOD, CULPEPPER and MILLER, JJ.
   HOOD, Judge.

Willie Jacob instituted this suit against William Jacob, Jr., to cancel a real estate lease contract entered into by the parties, and for judgment condemning defendant to pay the accrued rental payments due plaintiff and attorney’s fees. The trial court rendered judgment in favor of plaintiff, and defendant appealed.

The issue presented involves an interpretation of the lease contract.

On September 20, 1974, plaintiff and defendant entered into a written lease contract under the terms of which plaintiff leased to defendant a tract of land with improvements in Iberia Parish, for use as a nightclub. The lease is for a term of ten years. It provides for rental payments of $250.00 per month, payable monthly, during the term of the lease, and for reasonable attorney’s fees in case it becomes necessary for one party to employ an attorney to protect a right under the contract. The lease also contains the following provision:

“Should the lessee fail to pay the rent or any other charges arising under this lease promptly as stipulated; or should voluntary or involuntary bankruptcy proceedings be commenced by or against lessee; or should lessee make an assignment for the benefit of creditors, then, in any of said events, lessee shall be ipso facto in default and lessor may demand the rent for the whole unexpired term of the lease or proceed one or more times for past due installments without prejudicing his right to proceed later for the rent for the unexpired term.”

The defendant-lessee failed to make the rental payments due for the months of December, 1974, and January, 1975. Plaintiff thereupon filed this suit. After trial on the merits, judgment was rendered by the trial court in favor of plaintiff decreeing the lease to be cancelled, and condemning defendant to pay to plaintiff $500.00 as the accrued rentals due under the contract and $250.00 as attorney’s fees. Defendant has appealed.

Defendant contends that the trial judge erred in decreeing the lease to be can-celled. He argues that under the terms of the contract the lessor is restricted to two alternate methods of obtaining relief in the event the rent is'not paid when due: (1) He may demand the rent due for the entire unexpired term of the lease; or (2) he may proceed one or more times for past due installments, without prejudicing his right to proceed later for the rent due for the unexpired term. Defendant takes the position that plaintiff has elected to use the second of the two alternate methods of obtaining relief, and he argues that although the lessor may recover past due rentals, he does not have the right to have the lease cancelled. Defendant relies principally on the above quoted provisions of the lease contract.

We do not interpret the quoted provision of the lease as restricting the lessor to two methods of obtaining relief. Instead, we think that provision was included in the agreement to give the lessor the right, in addition to any other remedies available to him, of accelerating the payments due for the remainder of the term of the lease in case the lessee should violate the contract in the particulars therein set out.

It is true that the lease contains no provision which specifically authorizes the lessor to cancel it in case of a violation of its terms by the lessee. There is nothing in the contract, however, which prohibits the lessor from cancelling the lease and recovering the accrued rentals due in the event the lessee fails to pay the rentals or breaches the lease contract in some other way. We find no provision in the agreement which can reasonably be construed as a waiver by the lessor of his right, granted by law, to have the lease cancelled and to recover the accrued rentals, if the lessee fails to make the rental payments as they become due.

The law provides that the lessee may be expelled from the property if he fails to pay the rent when it becomes due. LSA-C.C. art. 2712. Applicable here also are the provisions of Articles 1964 and 1967 of the Louisiana Civil Code, the pertinent parts of which read:

“Art. 1964. Equity, usage and law supply such incidents only as the parties may reasonably be supposed to have been silent upon from a knowledge that they would be supplied from one of these sources.”
“Art. 1967. The law, intended by the rule before referred to, means such legislative provisions as provide for those cases in which the parties have not declared their intention. When the contracting parties have not derogated from such law, its provisions are to be followed. . . . ”

In the instant suit, we think the parties may reasonably be supposed to have been silent as to whether the lessor can cancel the lease for non-payment of rent, because of their knowledge that equity, usage and law would supply those incidents. Since the contracting parties have not specifically declared their intention as to this question, and they also have not derogated from LSA-C.C. art. 2712, we hold that that article of the Civil Code applies, and that the lessor has the legal right to cancel the lease as well as to recover the accrued rentals which are due.

That conclusion is supported to some extent, we think, by the paragraph next following the above quoted provision of the lease, which reads :

“At the expiration of this lease or at its termination for other causes, lessee is to immediately surrender possession by actual delivery of all keys to lessor.” (Emphasis added)

The parties obviously understood that the lease might be terminated for “other causes.” We believe they understood and intended that it could be terminated for non-payment of rent, as provided in LSA-C.C. art. 2712. We hold that there was no agreement or understanding that the lessor was waiving that right.

Defendant cites and relies on Sarpy v. Schmidt, 162 So.2d 810, (La.App. 4 Cir. 1964), and Wilson v. G. Brian Corporation, 244 La. 433, 152 So.2d 550 (1963). We think these cases support plaintiffs position rather than that of defendant, in this instance. In Sarpy, for instance, the court held that the lessor could recover past due rentals, although the lease merely provided that he could cancel the lease and was silent as to his right to recover past due rental payments. In Wilson, supra, the second option granted to the lessor in the contract, in the event of default by the lessee, was “to immediately cancel the lease.” The third option was “to sue for past due rent, reserving his right to proceed later for the remaining installments.” The Supreme Court held that the lessor’s election to immediately cancel the lease did not deprive him of the right to also recover past due rentals, although that relief was not specifically • provided in the second option. The court held' that “there is nothing whatever in the appropriate contractual provision to the effect that if and when the lessor seeks a cancellation of the lease he waives the then accrued rent.”

Applying Sarpy and Wilson to the instant suit, we conclude that plaintiff is not barred or precluded from cancelling the lease, as well as recovering past due rentals. We find nothing in the lease involved here which indicates that the lessor waives his right to cancel that lease when he seeks to recover past due rental payments. See also Cameron v. Krantz, 299 So. 919 (La.App. 3 Cir. 1974), and 327 Bourbon Street, Inc. v. Pepe, Incorporated, 257 La. 577, 243 So.2d 262 (1971).

Our conclusion is that plaintiff, as lessor, has the right to have the lease can-celled for non-payment of rent and to recover past due rentals. There is nothing in the lease which prohibits him from can-celling the lease, or which constitutes a waiver of his right to do so, in the event he demands payment of accrued rentals.

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

Affirmed.


author: HALL, Judge.

text:
    Shellie M. STEWART, Plaintiff-Appellant, v. John W. STEWART, Hal V. Lyons, Intervenor-Appellant.
    No. 12707.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 1975.

      Love, Rigby, Dehan & Love by Samuel P. Love, Jr., Shreveport, for Shellie M. Stewart.
    James L. Fortson, Shreveport, for Hal V. Lyons.
    Before PRICE, HALL and DENNIS, JJ-
   HALL, Judge.

Shellie M. Stewart, plaintiff in rule, and Hal V. Lyons, defendant in rule and inter-venor, each appealed from a judgment of the district court (1) setting aside a seizure and sheriff’s sale of a mobile home, recognizing Lyons as the owner thereof, and placing him in possession thereof; (2) rejecting Mrs. Stewart’s demands for damages and attorney’s fees for alleged wrongful issuance of a temporary restraining order and for alleged interference with her right to possession; and (3) rejecting Lyons’ demands for damages and attorney’s fees for alleged wrongful seizure and sale of the mobile home.

THE FACTS

Lyons, an attorney, had represented John W. Stewart in separation proceedings between the Stewarts. Mr. Stewart had purchased a mobile home and the lot on which it was situated at a public sale held to effect a partition of the community property. On June 3, 1974, Mr. Stewart conveyed the mobile home and lot, together with another lot, to Lyons in payment of his fee for professional services rendered. Shortly thereafter, Lyons applied to the Department of Public Safety, Motor Vehicle Division, for transfer of title. The new title certificate was issued by the Department September 20, 1974.

On August 26, 1974, Mrs. Stewart obtained a judgment against Mr. Stewart, who had left the state and was no longer represented by Lyons, for past due alimony in the amount of $963.00. On August 28, she caused a writ of fieri facias to issue ordering the Sheriff of Caddo Parish to seize and sell the mobile home registered in the name of John W. Stewart. The mobile home was seized by the sheriff on September 6, and in due course, after advertisement, the mobile home was sold at sheriff’s sale on October 2. Mrs. Stewart purchased the mobile home at the public sale and was issued a judicial bill of sale the same date. Mrs. Stewart had no actual knowledge of the sale to Lyons and acted in a good faith belief the mobile home belonged to Mr. Stewart.

On October 11, Mrs. Stewart hired a mover to move the mobile home. As he was doing so, a neighbor noticed the activity and called Lyons. Lyons notified the sheriff’s office of his ownership of the mobile home and the mover was stopped.

Mrs. Stewart then filed a rule directed to the sheriff and to Lyons ordering them to show cause why she should not be awarded possession of the mobile home and why the sheriff should not be ordered to seize and deliver possession of the vehicle to her pursuant to LSA-C.C.P. Art. 2501.

Lyons filed a petition of intervention seeking to have the seizure and sale set aside, recognition of his ownership and right to possession, damages for unlawful seizure and sale, and a temporary restraining order restraining the sheriff from disposing of the mobile home. The restraining order was issued.

Mrs. Stewart answered the petition and later excepted to the petition of intervention as untimely under LSA-C.C.P. Art. 1092. She subsequently filed a “motion to dissolve bond”, actually a motion to disolve the temporary restraining order, also seeking damages for wrongful issuance thereof under LSA-C.C.P. Art. 3608.

All issues presented by the various pleadings were tried, resulting in the judgment described at the beginning of this opinion, from which both parties appealed.

THE ISSUES

The issues raised on appeal are: (1) ownership of the mobile home; (2) Mrs. Stewart’s entitlement to damages and attorney’s fees; and (3) Lyons’ entitlement to damages and attorney’s fees.

OWNERSHIP OF THE MOBILE HOME

Mrs. Stewart contends she is the owner of the mobile home by reason of having purchased it at sheriff’s sale on October 2, and that her ownership is retroactive to September 6, the date the vehicle was seized under the writ of fieri facias. She contends that under the Vehicle Certificate of Title Law, LSA-R.S. 32:701 et seq., and the public records doctrine, the sale of the vehicle by Mr. Stewart to Lyons was not effective against third parties until registered in the name of the purchaser, which did not occur until September 20.

Mrs. Stewart did not acquire at the sheriff’s sale any greater title than held by Mr. Stewart. He had previously, on June 3, sold the mobile home to Lyons. The sale to Lyons was perfected on that date with the concurrence of the thing sold, the price and the consent. Proper application for transfer of title was made with the Motor Vehicle Division, long prior to the seizure and sale under the writ of fieri fa-cias. Mrs. Stewart did not rely on the certificate of title issued to Stewart and proper inquiry to the Motor Vehicle Division would have revealed the pending application for transfer.

Mrs. Stewart argues Lyons’ intervention and claim of ownership came too late and should have been asserted prior to the judicial sale under LSA-C.C. P. Art. 1092. Article 1092 is permissive and provides for injunctive relief where one claiming ownership intervenes prior to the judicial sale. The article does not have the effect of preventing an owner who has no knowledge that his property has been seized and sold from subsequently asserting his ownership in a judicial proceeding.

Lyons is the owner of the mobile home and is entitled to possession thereof.

MRS. STEWART’S CLAIM FOR DAMAGES

Lyons was entitled to assert and protect his rights of ownership and possession of the mobile home. The temporary restraining order was not wrongfully issued. Mrs. Stewart is not entitled to damages and attorney’s fees under LSA-C.C.P. Article 3608.

LYONS’ CLAIM FOR DAMAGES

Lyons prayed for damages as follows:

(a) Attorney's fees for Intervention: $500.00

(b) Attorney's fees for Rule to Show Cause $250.00

(c) Loss of two hours working time

at $50.00 per hour $100.00

(d) Twenty-five miles at .15 per mile $ 3.75

TOTAL: $853.75

Lyons cites LSA-C.C.P. Art. 3506 as a basis for awarding damages and attorney’s fees. Article 3506 applies only to dissolution of writs of attachment and sequestration and is not applicable to this case.

During the time the mobile home was under seizure, through the sheriff’s sale, and until Mrs. Stewart attempted to move the vehicle, the trailer was vacant and Lyons was unaware of the seizure and sale. He was not deprived of its use and took no legal steps toward dissolution of the seizure. It follows he did not suffer or incur any damages or attorney’s fees relating to the seizure and sale as such, and is not entitled to recover therefor.

At the time Lyons filed his petition of intervention, the seizure and sale were completed and the purpose of the litigation between Lyons and Mrs. Stewart was to establish title or determine ownership, not to dissolve an illegal seizure. There is no authority, statutory or otherwise, for awarding attorney’s fees incurred in the course of an action to declare ownership between two competing claimants to title.

In addition to attorney’s fees, Lyons prayed for damages for loss of two hours working time. Although he did spend some time in preventing the moving of the mobile home, it was not established that he lost any business or profit by reason of his time away from the office. This item of damage was not proved.

In brief, Lyons argues his entitlement to general damages for mental anguish, inconvenience and the like. General damages were not alleged or prayed for and cannot be awarded.

For the reasons assigned, the judgment of the district court is affirmed. The costs of appeal are assessed one-half to each appellant.

Affirmed.


author: MARVIN, Judge.

text:
    Terry Glynn VINES and Shawn Edward Vines, TUTORSHIP OF the minors.
    No. 12766.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 1975.
    Emmons, Henry & Reeves by Joseph A. Reeves, Jr., Jonesboro, for Pauline Vines, undertutrix-applicant.
    Holloway, Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for Jennifer Vines, tutrix-relator.
    Before BOLIN, HALL and MARVIN, JJ.
   MARVIN, Judge.

We granted alternative writs of prohibition and mandamus directing the lower court to show cause why a suspensive appeal should not be granted in this case. This action was taken on the application for supervisory writs by the undertutrix who sought to appeal from an order of the lower court after a contradictory hearing with the undertutrix which authorized the tutrix to expend funds of the minors to pay two-thirds of the purchase price for a mobile home in which to house the tutrix and the minor children.

The lower court granted an order for suspensive appeal by the undertutrix, but later recalled the order after the tutrix provoked a rule to recall the suspensive appeal. That part of the court’s order granting a devolutive appeal was not rescinded.

In opposition to the application, the tu-trix-respondent contends there is no authority for a suspensive appeal of a judgment authorizing the tutrix to expend funds of a minor. In Succession of Tullier, 216 La. 821, 44 So.2d 880 (1950), the Supreme Court held that when a judgment is appealable it may be always appealed from suspensively unless it comes within one of the statutory exceptions. See also Godchaux Sugars v. Ockman, 68 So.2d 206 (La.App. Orleans 1953). The judgment of the lower court is not among the statutory exceptions such as are provided in La.C.C. P. Articles 2974, 3612 and 4068. It is a final judgment as required by La.C.C.P. Article 2083, and it may be appealed suspen-sively.

For the reasons assigned, the writ is made absolute and it is ordered that the Honorable Second Judicial District Court, Parish of Jackson, State of Louisiana, grant forthwith a suspensive appeal to the Applicant in accordance with law.


author: DENNIS, Judge.

text:
    John LONDON, Plaintiff-Appellant, v. F. C. DOYAL, Administrator, Department of Employment Security, State of Louisiana, et al., Defendants-Appellees.
    No. 12697.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 1975.
    Caddo-Bossier Legal Aid Society by Harold D. Vaught, Shreveport, for plaintiff-appellant.
    Marion Weimer, James A. Piper, and James A. McGraw, Baton Rouge, for F. C. Doyal, administrator.
    Wilson & Veatch by Dean R. Veatch, Shreveport, for Northwood Country Club.
    Before BOLIN, HALL and DENNIS, JJ-
   DENNIS, Judge.

This is an appeal by a claimant for unemployment compensation benefits from an adverse ruling in the district court. The district court upheld the Louisiana Board of Review, which had previously affirmed the decision of the Referee.

The findings of fact of the Referee were as follows:

“The claimant worked three years for this employer as a greens caretaker earning $2.10 an hour. He was negligent in properly keeping up the golf greens and the Club hired an advisor and a new golf pro who had full supervision over him. The new pro instructed him to report to him when he came to work and when he left. He was also instructed to give in writing a report of what his duties were each day. He questioned the pro on his authority. He refused to conform to these instructions and rules of operation. Neither would he report to the supervisor as instructed. Because of this action and his attitude, he was discharged.”

Under the provisions of La.R.S. 23:1634 the findings of fact by the Board of Review, if supported by sufficient evidence, shall be conclusive and the court’s jurisdiction is limited to questions of law.

The evidence reflects that London had worked three years as greens caretaker for the Northwood Country Club. The club hired a new golf pro, Ed Peck, and instructed him to have London check with him before he went home in order to receive work instructions for the following day and to allow Peck to keep track of his hours. Peck testified that, when he relayed these instructions to London, the claimant stated that he would not comply and that if the arrangement he had worked under in the past was no longer satisfactory with the club, it “could make out his check”. London testified that Peck ordered him to make a written list of everything he did at work and bring it to the pro at the end of each day. He admitted refusing to obey this order because he did not understand why it was necessary. But London denied that he refused to report to Peck or told him the club could make out his check. Peck denied London’s version of their encounter and testified he had no need of a written list from London. It is undisputed that London made no change in his work procedures and was discharged one week after his talk with Peck.

The findings of fact of the Board of Review are supported by sufficient evidence and are, therefore, conclusive. We find no error of law in the administrative conclusion that London's refusal to follow the reasonable instructions of his employer amounted to misconduct connected with his employment.

The judgment of the district court is affirmed.


author: PRICE, Judge.

text:
    NORTHERN ASSURANCE COMPANY, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
    No. 12703.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 1975.
    Davenport, Files, & Kelly by Thomas W. Davenport, Jr., Monroe, for plaintiff-appellant.
    Theus, Grisham, Davis & Leigh by J. Bachman Lee, Monroe, for defendant-ap-pellee.
    Before PRICE, DENNIS and MARVIN, JJ.
   PRICE, Judge.

This is an appeal by Northern Assurance Company from a summary judgment in favor of State Farm. The suit arises out of an auto accident involving an employee of Van Trow Olds-Cadillac, Inc., of Monroe, and Lawrence T. Williams, Jr. The employee was returning a serviced Oldsmobile to the owner Lejean Black when his negligent operation of the automobile resulted in the collision with the Williams’ car. Williams sustained total damages of $378.-60, of which $303.72 was property damage to his Ford automobile and $74.88 for the expense of renting a vehicle.

Lejean Black had in force at the time of the collision a Family Automobile Policy with State Farm. State Farm denied coverage under the policy to the employee of Van Trow. Northern Assurance as the insurer of Van Trow paid the claim to Williams and took a conventional subrogation of Williams’ right against State Farm.

In response to plaintiff’s action State Farm filed a motion for summary judgment, attaching a certified copy of the insurance policy issued by it to Lejean Black along with the written interrogatories and answers propounded to plaintiff. State Farm claims there is no genuine issue of material fact because the policy specifically excludes coverage for Van Trow’s employee. Northern Assurance claims there is a genuine issue of material fact governing whether the exclusionary clause in State Farm’s policy to Black is applicable.

The pertinent provisions of Section III(a)l of the policy provides that liability is excluded . .to any person or organization, or to any agent or employee thereof operating an automobile sales agency, repair shop, service station . . . with respect to any accident arising out of the operation thereof . . .”

Plaintiff contends that whether the pick up and delivery of an automobile to the owner for his convenience and accommodation is such an act as to come within the meaning of “operation” of the sales agency and repair shop so as to exclude coverage to Van Trow’s employee is a question of a material fact that should be determined at a trial on the merits. Plaintiff in brief cites an earlier Second Circuit Court of Appeal case, Dumas v. Hartford Accident and Indemnity Company, 181 So.2d 841 (La.App. 2nd Cir. 1965), where an automobile had been serviced and was being returned to the owner by an employee of the service garage. With almost identical factual issues this court decided the exclusionary provision did not apply where the job of servicing the vehicle had been completed and the car was being returned to the owner after the completion of the work. However, the exclusionary clause in Dumas was couched in different language. There the policy referred to “. . . any person while such person is employed or otherwise engaged in the automobile business . . . ”

The policy contained the following definition :

“ ‘Automobile Business’ means the business or occupation of selling, repairing, servicing, storing or parking automobiles.”

This court in Dumas interpreted the “. . . while . . . employed or otherwise engaged in the automobile business” to mean that the exclusion applied only during the actual time a person is employed or engaged in the automobile business. (emphasis supplied). The owner of the car in that case in an affidavit attached to the motion for summary judgment made the following statement:

“As a service to me as his customer Mr. Waldroup (sic) was to return my car to our residence once he had completed the work on the car.” (emphasis supplied)

On the basis of this statement by the owner, the summary judgment excluding coverage was reversed. A later case from the Third Circuit involving a similar factual situation with a similar exclusion as in Dumas determined the exclusionary clause was applicable. There the court found the exclusionary clause to be clear and completely devoid of ambiguity and held there is no liability coverage of the owner automobile while being used by any person where such person is employed or otherwise engaged in the automobile business. Deville v. United States Fidelity and Guar anty Co., 258 So.2d 694 (La.App. 3rd Cir. 1972). In Deville the employee drove the owner of the car to his job and was returning to the car dealership when the accident occurred. In applying an exclusionary clause identical to that in Dumas, the Third Circuit said the pick up and delivery service offered by the car dealership was part and parcel of its garage operations. In Deville the car dealership actually maintained separate employees who had as their sole duty the pick up and delivery of its customer’s vehicles.

Dumas and Deville can be distinguished as the decision in Dumas was substantially based on the owner’s declaration in her affidavit that the work had been completed and the car was being returned to her. Whereas in Deville the court found the employment of personnel to perform the pick up and delivery of customer vehicles made the delivery service an integral part of the assured’s automobile business, and therefore the exclusionary clause was applicable.

In any event the case before us has different terminology in the exclusionary clause than those of the Dumas and De-ville cases. We are not concerned if the delivery service occurs “while” the employee is engaged in the automobile business. State Farm’s clause relates “. to any accident arising out of the operation thereof . . .” We find this clause to be broader than those found in either the Dumas or Deville cases. Plaintiff has admitted in answer to interrogatories that Van Trow’s employee did pick up and deliver cars to be serviced or those that have been serviced when the service manager of Van Trow so ordered. It is also admitted that this pick up and delivery service was done at the request and for the convenience of Van Trow’s customers. Northern Assurance attempts to mitigate the effect of this customer service by stating this service was done prior to the automobiles being serviced or after the operation of Van Trow had been completed. This distinction makes no difference under the language of the exclusionary clause involved as the pick up and delivery service is “. . . arising out of the operation thereof . . .” without regard to whether the collision occurs prior to or upon completion of the car’s being serviced. We find that the pick up and delivery service is part and parcel of Van Trow’s operation and as such the accident arose out of this operation.

Having found from the exhibits offered in support of the motion for summary judgment that Van Trow is an automobile sales agency operating a repair and service shop and that the collision caused by their employee is an accident arising out of this operation so as to come within State Farm’s exclusionary clause, we affirm the judgment appealed from granting a summary judgment to State Farm. Costs of this appeal are assessed to appellant.


text:
    Randall L. PROCELL, Plaintiff-Appellant, v. SENTRY INSURANCE COMPANY et al., Defendants-Appellees.
    No. 12696.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 1975.

      John Paul Woodley, Shreveport, for appellant.
    Bodenheimer, Jones, Klotz & Simmons, by Harry D. Simmons, Shreveport, for ap-pellees.
    Before PRICE, DENNIS and MARVIN, JJ.
   DENNIS, Judge.

This suit arises from an interse’ctional collision between a left-turning vehicle and an oncoming automobile in an opposing traffic lane.

Randall Procell sued S. B. Barnes and his wife, Freda Barnes, and their insurer, Sentry Insurance Company, for personal injuries and property damage resulting from an intersectional collision between automobiles driven by Procell and Mrs. Barnes. Defendants reconvened for damages alleged to have been sustained in the accident. For reasons made a part of the record the trial judge found the accident was caused by the negligence of both drivers and rejected all demands. Plaintiff appealed and defendants have answered the appeal.

Procell was traveling north on Fairfield Avenue in Shreveport at approximately 35 miles per hour at about 10:45 A.M. on October 30, 1973. Mrs. Barnes had stopped at a service station on the northwest corner of Fairfield and Pierre-mont Road to ask for directions. She entered Fairfield north of the intersection and pulled into the left turn lane headed south. She stopped behind an unidentified vehicle waiting for a change in the traffic signal which was then red. As Procell approached in a northerly direction the unidentified vehicle safely executed a left turn across his path and departed in an easterly direction along Pierremont Road. Shortly thereafter, Mrs. Barnes also attempted a left turn, and her vehicle collided with the Procell car.

At the intersection, Fairfield consists of three lanes of traffic, two outside lanes for northbound and southbound traffic, and a middle lane for left turns by vehicles facing each other. Traffic on Fairfield is controlled by four electric semaphore signal lights. One signal light is suspended above each of the northbound, the southbound, and the two left turn lanes.

There was a great deal of testimony regarding the sequence and length of time of illumination of each traffic light at the intersection. The upshot of the testimony was that when the light in Mrs. Barnes’ left turn lane first turned from red to green it did so without a green arrow, thus indicating that a left turn would not be protected from oncoming traffic. Accordingly, at this time the motorists in the northbound lane approaching on Fairfield, such as Procell, had a green light, indicating that they could proceed across Pierre-mont Road and on to the north. After the light in Mrs. Barnes’ left turn lane had been green for 9.0 seconds, a green left turn arrow appeared, indicating that a left turn would be protected, and of course, the light in the northbound lane, the one being used by Procell at the time of the accident, simultaneously turned red so as to stop the traffic there and afford such protection.

Without actually resolving the dispute as to the status of the signals at the time of the accident, the trial court found that Procell had been negligent in not slowing down as he observed Mrs. Barnes position her vehicle for a left turn, and determined that Mrs. Barnes had been negligent in not keeping a proper lookout as she attempted a left turn. We agree with the lower court’s finding that Mrs. Barnes was negligent but disagree with its conclusion that Procell was contributorily negligent.

Procell testified that as he was approaching the intersection, the signal for northbound traffic turned green. Mrs. Barnes testified that she had to stop because of a red light in her lane, that she proceeded with her left turn immediately following the vehicle in front of her, and that she had the green arrow. A Shreveport traffic engineer testified that southbound traffic would never have a green arrow immediately following a red signal because that arrow is a lagging arrow, or one at the end of the green cycle. A green light without an arrow follows the red light in the sequence for the southbound left turn lane. For a portion of that same time there is a green light for the northbound traffic lane.

Procell’s testimony, unlike that of Mrs. Barnes, is consistent with the testimony of the traffic engineer. Undoubtedly, the car in front of Mrs. Barnes turned on the green signal without the arrow. This was a properly executed turn since that vehicle could clear the intersection before plaintiff’s arrival. Defendant improperly attempted to follow before she had the green arrow. At the scene of the accident Mrs. Barnes admitted to an investigating officer that she had turned left on a green light and not a green arrow. Her admission, unlike her testimony at the trial, is consistent with all of the other evidence.

Procell, on the other hand, was in the proper lane of traffic, and the facts indicate that he had the right of way according to the traffic signal. There is no evidence that he was exceeding the speed limit or that his speed was otherwise unreasonable. He testified that he was about 50 yards away from the intersection when his light changed to green. He stated that the first car completed its turn when he was about 15 yards from the intersection. He testified that defendant started her turn at some time after he was within 10 yards of the intersection. Plaintiff swerved to avoid the collision but was unable to do so. The law is clear that he could assume that the defendant would obey the law and not cut across his path. Mayeux v. Maryland Casualty Company, 228 So.2d 234 (La.App., 1st Cir. 1969). We find no contributory negligence on the part of plaintiff.

Plaintiff testified without contradiction that his car was worth $500 at the time of the accident and that it was totally destroyed. Plaintiff further testified that he received bruises on both knees but received no more serious injury. We will award plaintiff $500 for his property damage and $200 for his physical injuries.

For the reasons herein assigned, it is ordered, adjudged, and decreed the judgment of the trial court rejecting plaintiff’s demands be reversed and judgment rendered herein in favor of plaintiff, Randall L. Procell, and against defendants, S. B. Barnes and Sentry Insurance Company, in the full sum of $700, together with legal interest thereon from date of judicial demand, until paid, and all costs of these proceedings. The judgment of the trial court rejecting the demands of plaintiffs in re-convention is affirmed.


author: MORIAL, Judge.

text:
    Henry F. JONES v. Waldo L. DECUERS.
    No. 7014.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.

      W. Donald Cashio, New Orleans, for plaintiff-appellee.
    James Burnett Aime, New Orleans, for defendant-appellant.
    Before REDMANN, BOUTALL and MORIAL, JJ.
   MORIAL, Judge.

This is an action for nullity of a $13,073.55 default judgment. An original action for damages was filed January 4, 1967 and served personally upon defendant. A preliminary default was taken on September 29, 1969 by plaintiff’s counsel of record who, thereafter, filed a motion to withdraw on November 30, 1970. This motion was not served on opposing counsel. On November 19, 1971 and March 28, 1973 motions for substitution of counsel were filed by each of plaintiff’s succeeding counsel. Neither motion was served upon opposing counsel.

A default judgment was taken on March 28, 1973 by plaintiff’s present substituted counsel. After 90 days defendant was advised of the judgment and payment was demanded. Defendant thereafter filed an action for nullity of judgment which trial was held on January 29, 1974. Judgment was rendered dismissing defendant’s action. Defendant appeals. We affirm.

Defendant asserts the trial court erred in: 1) failing to annul the judgment for “vices of form” (LSA-C.C.P. Art. 2002) and “ill practices” (LSA-C.C.P. Art. 2004) due to the absence of service of the ex parte motions to withdraw and to substitute counsel; and 2) refusing to admit evidence relative to the facts on which the default judgment was rendered in an attempt to show fraud under LSA-C.C.P. Art. 2004.

Plaintiff asserts the judgment was rendered without any vices of form or substance and that the trial judge was correct in dismissing the action for nullity.

LSA-C.C.P. Art. 2002 provides in pertinent part:

“A final judgment shall be annulled if it is rendered:
j|í sfs ‡ ‡ ‡
(2) Against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken; * * * »

LSA-C.C.P. Art. 1312 further provides in pertinent part:

“Except as otherwise provided in the second paragraph hereof, every pleading subsequent to the original petition shall be served on the adverse party as provided by Article 1313 or 1314, whichever is applicable.”
******

A motion to substitute counsel is a pleading which requires service upon an adverse party under LSA-C.C.P. Art. 1312. See LSA-C.C.P. Book II, Tit. 1, Chapter 4, Preliminary Statement; 28 La.L.R. 552. Nevertheless, we conclude that this failure to serve does not constitute grounds for nullity under LSA-C.C.P. Art. 2002. Comment d to C.C.P. Art. 2002 indicates that Subsection 2 only applies when there has been a total lack of citation of the original petition or when citation is defective. Here, defendant has admitted that he was personally served with process in the original action and the record indicates he also made an appearance in a rule to traverse. Accordingly, the judgment cannot now be nullified for “vices of form.”

The failure of the defendant to be served with the motions also does not constitute an ill practice which would annul the judgment for vices of substance under LSA-C.C.P. Art. 2004. LSA-C.C.P. Art. 2004 provides:

“A final judgment obtained by fraud or ill practices may be annulled.”
******

To come within this article and have a default judgment nullified, one must demonstrate how he was prevented or excused from asserting his defenses. Pryor v. Gions, 188 So.2d 739 (La.App. 2 Cir. 1968). Defendant has not shown, since he was represented by counsel, how failure to be notified of the changes of plaintiff’s counsel prevented him from filing an answer. Defendant had six years to act. He did nothing. Any improper procedure which enables a party to obtain a final judgment is subject to an action for nullity under LSA-C.C.P. Art. 2004. However, in Alonso v. Bowers, 222 La. 1093, 64 So.2d 443, 444 (1953) it is stated:

“ * * * The courts have looked at each case from a purely equitable viewpoint to ascertain whether allowing the judgment to stand would be inequitable or unconscionable in view of the practice or procedure which enabled the party to obtain such judgment. * * * ”

We find that the failure to serve the three ex parte motions did not in any way result in an inequitable situation. We cannot see how service of these motions could have prevented a default judgment from being rendered and, accordingly, the judgment will not be annulled for ill practices.

Finally, the trial judge did not err in refusing to hear defendant’s testimony relative to the merits of the original action for damages. Defendant wished to show through his own testimony and that of an eye witness to the accident that plaintiff’s testimony at the default confirmation was perjured. An action for nullity may be proper where perjury is evident. Dare v. Myrick, 168 So.2d 845 (La.App. 2 Cir. 1964). However, all possible inconsistencies in testimony do not necessarily indicate perjury. Default judgments cannot be reopened each time a litigant asserts mere vague allegations of impropriety resting solely upon possible inconsistencies in testimony.

The plaintiff having established no grounds for nullity of this judgment, the case must now and forever be put to rest. The judgment of the trial court is affirmed. Plaintiff to pay all costs.

Affirmed.


text:
    ALLSTATE INSURANCE COMPANY v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. et al.
    No. 12686.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 1975.
    Lunn, Irion, Switzer, Johnson & Salley by Jack E. Carlisle, Jr., Shreveport, for defendants-appellants.
    Nelson & Achee by Roland J. Achee, Shreveport, for plaintiff-appellee.
    Before PRICE, DENNIS and MARVIN, JJ.
   MARVIN, Judge.

State Farm and its insured, W. C. Lloyd, appeal from a judgment in favor of Allstate, subrogee of Melvin M. Regan, holding State Farm and Lloyd solidarily liable with one Herman Davis for property damage sustained by the Regan automobile in an accident at an intersection. The amount of the damage award, $612.75, is not disputed and the issues presented are typical of many intersectional and left-turn automobile collisions.

The intersection is that of Caddo and Common Streets in Shreveport, both four-lane streets, at which eastbound traffic on Caddo is controlled by conventional traffic lights which include an illuminated green arrow sequence allowing a left turn while approaching westbound traffic is faced with a red light.

Regan, who was proceeding easterly on Caddo, stopped his automobile in the southernmost or outside lane behind one or two vehicles in response to a red light. There were two or three vehicles stopped in the inside lane to Regan’s left, none of which were identified as being involved in the accident. When the light turned green and the traffic ahead proceeded, Regan drove forward and commenced a right turn onto Common, traveling slowly at a speed he estimated at five miles per hour. As Re-gan’s automobile was entering Common Street, Regan’s guest passenger shouted to warn him of Davis’s pickup truck which then collided head-on with the left side and front door of Regan’s car. The impact knocked the Regan car against the curb at the southeast quadrant of the intersection.

Herman Davis, against whom a default judgment was rendered made no appearance at the trial. At the scene immediately after the accident however, Davis stated his regrets to the Regan automobile occupants about the accident explaining that he was “trying to miss a man that turned in front of him,” and that he “couldn’t help it, the man turned in front of him.” Re-gan estimated Davis’s speed at 30 to 35 miles per hour in the brief time he saw him before impact.

Lloyd testified he was traveling east in the inside lane of Caddo and saw the Davis pickup traveling west on Caddo as Lloyd approached the intersection to make a left turn. Lloyd testified that he had a green left-turn arrow when the Davis vehicle was approximately 80 or 90 yards away. Lloyd was not giving a signal for a left turn. He testified “well, I didn’t actually figure I needed to if I was in that little turnoff . . . and had the arrow Lloyd estimated his own speed at 15 to 20 miles per hour when he made his left turn. It is also significant that Lloyd did not testify that he stopped in response to a red light at the intersection.

Lloyd said he heard and saw the effects of the accident and returned in his vehicle to the scene immediately afterwards. There he told Regan and Regan’s passenger that he was at fault in causing the accident. Regan and his passenger testified to the effect that Lloyd said he had caused the wreck by cutting or turning in front of Davis. At the trial, Lloyd admitted saying it was his fault but denied saying he thought he had time to make his left turn.

The trial court found Lloyd at fault in making a left turn in the manner stated and found Davis at fault in “not slowing down and keeping a proper lookout as he approached and entered the intersection.”

The evidence regarding the sequence of the traffic lights at the time of the accident was stipulated and is set forth in documents prepared by the Traffic Engineering Department of Shreveport. This evidence shows that eastbound Caddo traffic has a left-turn arrow and green light illuminated for 3.85 seconds, after which interval the arrow goes off and the green light remains for 15.4 seconds. During the 3.85 second interval for eastbound traffic to turn left, westbound traffic is faced with a red light. During the 15.4 second interval both eastbound and westbound Caddo traffic have a green light. When these green lights go off a yellow light then faces east and west traffic on Caddo for 2.75 seconds, after which time these lights turn to red.

Appellants, State Farm and Lloyd, contend that Lloyd had preempted the intersection and that the accident was solely and wholly the fault of Davis in entering the intersection in the face of the preemption by Lloyd who was turning with a green arrow.

As appellee who answered the appeal, Allstate contends that the lower court was correct in holding both Lloyd and Davis solidarily at fault, but that the lower court erred in finding that Lloyd had a green arrow when he began his left turn.

The contentions stem from this paragraph in the trial court’s written opinion:

“The Court is of the opinion that defendant, Lloyd, had a green arrow when he began his turn, but said arrow changed and negligence must be impugned to him which was the proximate cause of the accident for attempting to make a left-hand turn when he knew or should have known that the way was not clear for him to complete same. He failed to keep a proper lookout.”

We do not interpret the quoted language especially in the light of the testimony and stipulated evidence in the record to mean that Lloyd legally preempted the intersection.

Regan stated that there were two or three cars stopped at his left awaiting the change in the red light. Lloyd did not state that he had to stop at the intersection, and the only reasonable inference from his testimony is that he saw a green arrow pemitting a left turn at some distance from the intersection. When the green light appeared for the traffic ahead of Regan, the green arrow lasted only 3.85 seconds and went off for Lloyd. Regan traveled some distance at about five miles per hour to the point of impact after the light turned green since there were one or two cars in front of him. The green light facing Davis did not come on until the green arrow facing Lloyd went off. When this testimony is considered with the time interval of the light sequence; with the speed of Davis and Lloyd as estimated by Lloyd and others involved; with the fact that Lloyd did not give a left-turn signal, and with Lloyd’s admission concerning his fault immediately after the 'accident, Lloyd’s negligence in turning left under such circumstances is patent. The left-turn arrow went out at or about the time Lloyd entered Common Street, and certainly before Lloyd was in a proper position in the Common Street intersection to turn left. In finding negligence on the part of Lloyd under the circumstances, the trial court expressly noted that the “arrow changed” and that Lloyd was negligent “for attempting to make a left-hand turn when he . should have known that the way was not clear for him to complete same.” When we consider the entirety of the trial court’s language, the factual basis and the legal conclusions there and here are the same. We conclude, as we believe the trial court concluded, that the green left-turn arrow went off before Lloyd turned left in front of Davis. In any event, it is clear to us that Lloyd has not borne the burden of proving that he legally preempted the intersection so as to absolve himself of negligence under the circumstances.

Preemption of an intersection under our jurisprudence does not mean a prior entry by a vehicle simply by a matter of a few feet or by a fraction or a second ahead of another vehicle. There must be some evidence from which it can be logically and reasonably concluded that there was a reasonable expectation on the part of the operator of the vehicle that the vehicle could clear the intersection without obstruction of other vehicular traffic. See Meek v. State Farm, 244 So.2d 661 (La.App.2d Cir., 1971); Moore v. Shreveport Transit, 115 So.2d 218 (La.App. 2d Cir., 1959), and cases cited therein.

“[1] The Highway Regulatory Act, LSA-R.S. 32:122, as amended by Act 310 of 1962, requires the driver of a vehicle within an intersection intending to turn to the left to yield the right of way to all vehicles approaching from the opposite direction which are within the intersection or so close thereto so as to constitute an immediate hazard. This statute and our related jurisprudence imposes the responsibility upon the motorist desiring to make a left turn to ascertain before attempting to do so that such a maneuver can be made safely and without danger or undue delay to overtaking or oncoming traffic. He must refrain from making a left turn unless the way is clear and, if a collision occurs while he is attempting such a maneuver, the burden rests heavily on him to show that he was free from negligence.” Estes v. Hartford Accident & Indemnity Company, 187 So.2d 149, 151 (La.App. 2d Cir., 1966).

See also Parish v. Minvielle, 217 So.2d 684 (La.App. 3d Cir., 1969), and R.S. 32:104(A) and (B). R.S. 32:104(B) requires a left-turn signal be made continuously during not less than the last one hundred feet traveled by a vehicle before turning. By his own admission, Lloyd gave no signal whatever. This omission in the face of oncoming traffic is a breach of the duty owed by the operator of. a left-turning vehicle to oncoming traffic.

The issue of Davis’s negligence is not before us. Davis has not appealed from the default judgment against him and that portion of the lower court judgment making him solidarily liable of course is final.

For the reasons stated, the judgment of the trial court is affirmed at the cost of appellants.