text:
    Errol BURNS, Plaintiff-Appellee, v. LAMAR-LANE CHEVROLET, INC., and General Motors Corporation, Defendants-Appellants.
    No. 11672.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Rehearing Denied Feb. 13, 1978.

      Alan J. Robert, Glynn A. Long, Donald-sonville, for plaintiff-appellee.
    Kenneth Barnette, Baton Rouge, for defendant-appellee, O-C Auto Air & Parts, Herman J. & Herman A. Oufnac.
    M. O’Neal Walsh, Baton Rouge, for defendant-appellee, Camper Conversion Co.
    Gordon R. Crawford, Gonzales, for defendant-appellant, Lamar-Lane Chevrolet, Inc.
    W. P. Macmurdo, Baton Rouge, for defendant-appellant, General Motors Corp.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

Plaintiff, Errol Burns, brought this products liability action against Lamar-Lane Chevrolet, Inc. (Lamar-Lane) and General Motors Corporation (GM) alleging that a 1975 Chevrolet van which he purchased from Lamar-Lane was redhibitorily defective. Plaintiff alternatively alleged negligence on the part of Lamar-Lane. By supplemental petition Burns added as defendants Herman A. Oufnac and Herman J. Oufnac (d/b/a 0-C Auto Air & Parts) (0-C) and Camper Conversion Co., Inc., alleging negligence on their parts. Lamar-Lane third partied its co-defendants as did 0-C. After a jury trial, judgment was entered for plaintiff against Lamar-Lane and GM on a finding of negligence. All other demands were rejected. Costs were assessed equally against Burns, Lamar-Lane, GM and 0-C. Lamar-Lane and GM appealed. Burns answered the appeal asking that the assessment of costs against him be reversed and that the judgment be affirmed in all other respects or, alternatively, modified into a judgment in redhibition in which he would receive attorney’s fees. 0-C answered the appeal also asking that the taxing of costs against it be reversed. We reverse in part, amend in part and render as amended.

According to Burns’ order from Lamar-Lane, the Chevrolet van in question was to have an AM-FM stereo-tape deck and a vent top. The van purchased from GM by Lamar-Lane had neither of these accessories. Lamar-Lane had the stereo installed by 0-C. Burns took delivery after the installation; he was told that the vent top would later be installed. He had the car for a little over a week in which he observed no malfunctions. Lamar-Lane arranged with Camper Conversions for it to install the vent top. Burns agreed to deliver the van to Camper Conversions for this modification. While driving on the day before he was to deliver the van, Burns for the first time turned on the air conditioner and radio together. When he did so, both the air conditioner and the radio went out. He stopped at a service station and found that a fuse had blown. He replaced it. However, when the radio and air conditioner were again run simultaneously, the replacement fuse blew. After replacing this fuse Burns did not attempt to run the two appliances simultaneously. Burns did not report this problem to Lamar-Lane since he was to bring the van to Camper Conversions the next day. He brought it the next afternoon. Early the following morning an employee of Camper Conversions got into the van and drove it approximately thirty yards whereupon it burst into flames.

The van was towed to the nearest Chevrolet dealer and later taken to Lamar-Lane where it remains at the present time. Plaintiff demanded a rescission of the sale. Both Lamar-Lane and GM refused this request. This suit followed.

Lamar-Lane and GM first assert that plaintiff’s redhibition action against them should be rejected because the van was not tendered for repair after the fire. C.C. Art. 2531. It has been held that such a defense is to be raised by the dilatory exception of prematurity. Jordan v. LeBlanc and Broussard Ford, Inc., 332 So.2d 534 (La.App. 3rd Cir. 1976). If this view of the law is correct, one might argue that the defense hás been waived since no exceptions were filed prior to answer. C.C.P. Art. 928. However, we need not decide whether failure to tender for repair must be raised prior to answer. Under the facts of this case, we find that Lamar-Lane was given an opportunity to repair the van. We also find that under the law GM need not have been given an opportunity to repair.

Art. 2531 requires that “[t]he seller who knew not the vices of the thing is only bound to repair, remedy or correct the vices.” This article has no application to manufacturers. They are presumed to know the defects of their products. Radalec, Inc. v. Automatic Firing Corp., 228 La. 116, 81 So.2d 830 (1955). Therefore a manufacturer could never be a “seller who knew not the vice of the thing.” Therefore whether or not there was any tender or opportunity to repair is irrelevant as to GM. Prince v. Paretti Pontiac Co., 281 So.2d 112 (La.1973) held that tender is unnecessary as a prerequisite to a redhibition action. We find that Prince is still the law as to sellers with knowledge of the vices.

We find that the stereo installation does not make Lamar-Lane a manufacturer. Lamar-Lane is in the same position as the vendor in Spillers v. Montgomery Ward & Co., 294 So.2d 803 (La.1974). In Spillers, a vendor who had a truck modified for pulpwood hauling by a third party, was held not to be a manufacturer. In any event, as discussed below, we find factually that the stereo installation did not cause the fire. Even were Lamar-Lane a manufacturer, it would only be presumed to know of defects in the stereo installation. Rey v. Cuccia, 298 So.2d 840 (La.1974). For the same reason O—C cannot be considered a manufacturer for the purposes of this suit.

Art. 2531 does not specifically require that the merchandise be tendered to the seller with a specific request to repair. Here, although Burns insisted that he wanted a rescission of the sale rather than a repair of his van, the van came into the possession of Lamar-Lane which had notice of the defective condition. Lamar-Lane was “bound” to repair the van. Upon its failure to do so, it became liable for the return of the purchase price. C.C. Art. 2531.

It has been stated that “[a] tender for repair is required before suit in redhibition can be instigated.” Wiltz v. Dixie Auto Sales, Inc., 315 So.2d 811 (La.App. 3rd Cir. 1975). However, the cases relied on for this proposition are apparently applications of the jurisprudence prior to Prince, above. Prince rejected this jurisprudence and held that a tender was not required. Although we agree that Act 673 of 1974 was intended to overrule Prince, we do not believe that one may simply return to the earlier jurisprudence. One must instead look to the language of Art. 2531 which does not require a tender.

The jury returned a verdict in favor of Burns in the amount of $11,500.00, divided $5,750.00 against GM and $5,750.00 against Lamar-Lane. According to its response to the interrogatories, the jury based its decision solely on negligence. Such a verdict is completely unresponsive to the demands made in this suit, the instructions given, and the evidence presented. No evidence of negligence on the part of GM was presented and the only possible negligence on the part of Lamar-Lane was in not discovering the defect or in being responsible through respondeat superior for O-C’s alleged negligence. Neither of these possibilities is sustained.

Apparently, the jury was simply unable to understand the instructions from the court or the verdict form. They returned twice to seek further instructions from the court. On one occasion they were informed that in the absence of privity, they could not return a verdict against GM. This is legally incorrect. Under Louisiana law a consumer may recover in redhibition against the manufacturer of a defective product despite an absence of privity between it and its dealer. Media Production Consultants, Inc. v. Mercedes-Benz of North America, Inc., 262 La. 80, 262 So.2d 377 (1972).

When a jury verdict is not based upon “essential and correct legal princi-piéis],” an appellate court is to give “no weight to the judgment of the trial court which implemented the jury verdict.” Gonzales v. Xerox Corporation, 320 So.2d 163, 165 (La.1975). In such cases, “appellate review tends to involve trial de novo for all practical purposes. * * * [T]he appellate court is, in effect, a court of original jurisdiction.” Higgins v. Johnson, 349 So.2d 918, 925 (La.App. 1st Cir. 1977), writs denied 351 So.2d 161, 162 (La.1977). Accordingly, we shall make our own factual determination.

Physical facts as previously outlined are basically undisputed. Because of the badly burned condition of the van, none of the experts could definitely discover the cause of the fire. They could only offer their respective theories as to its probable cause.

Plaintiff’s expert was George Pappas, a chemical engineer with experience in electrical fires. He was of the opinion that the most probable cause of the fire was undersized or defective wire in the ignition and air conditioning systems. He did concede on cross examination that the installation of the radio was another probable cause. It is apparent that in the context of the installation of the radio, he meant that it was another possibility.

Dr. Eugene F. Tims, a professor of electrical engineering at Louisiana State University, testified on behalf of O-C. He was of the opinion that the fire most probably began in the air speed switch. He based this opinion on the excessive damage within the switch. He found destruction of the plastic in the switch to a greater extent than would have occurred had the source of the fire been external to the switch. He also found the copper slide contact missing over at least half of the switch. Copper melts at approximately 1900° Fahrenheit. Tims stated that this temperature was required for the copper to disappear as it had done. He felt that this temperature would not have been reached in the switch unless the fire had begun with a loose connection there. He also testified that if the fire had been caused by a short in the radio wiring system the speakers would have burned out. He demonstrated in court that the speakers were in working condition after the fire.

Appearing as experts on behalf of GM were Dr. Leonard C. Adams, a former professor of electrical engineering at Louisiana State University; Orval J. Louis, Jr., an automobile dealership service manager; and Howard Davis, a General Motors area service manager.

Dr. Adams’ opinion was that the fire was caused by damaged wiring resulting in a short. He stated that he found a wire which had been installed with the stereo which was stretched tightly against a clip. He opined that this caused the fire since the burning was more pronounced in that general area. He also based his opinion on the fact that Burns testified that the radio and air conditioner would simultaneously go off. He felt that this showed an inadvertent crossing of the two wiring systems, which may have led to a short.

Messrs. Louis and Davis generally agreed with Dr. Adams. Louis stated that he had never heard of a fire starting in an air conditioning switch. Davis’ opinion was primarily based on the fact that the stereo and air conditioner would go out at the same time.

In evaluating expert testimony important factors are the qualifications of the experts and the facts upon which their opinion testimony is based. Middle Tennessee Council, Inc. v. Ford, 274 So.2d 173 (La.1973). We find that Drs. Tims and Adams are more qualified by education, training and experience in determining the cause of electrical fires than are the other experts who testified.

As between the two, Drs. Tims and Adams, we accept the testimony of the former for the reason that we find his explanation more plausible. It appears to us that the satisfactory working condition of the stereo speakers after the fire lends more credence to the argument that the stereo was not defectively installed than to the other theories advanced. Accordingly, we find the defect to have been in the manufacture and of such a nature as to justify the rescission of the sale. C.C. Art. 2530.

Plaintiff seeks to recover the return of the purchase price and expenses together with damages for mental anguish, inconvenience, expenses for alternate transportation, and attorney’s fees. There is no question about his right to recover the return of the purchase price ($5179.22) and interest charges ($838.38) and attorney’s fees. It was stipulated that if attorney’s fees are allowable under the law, the sum of $2500.00 is appropriate.

However, an award for mental anguish, inconvenience, and expenses for alternate transportation is another matter. While Burns did testify as to his inconvenience and the problems he had endeavoring to get either Lamar-Lane or General Motors to assume some responsibility for the fire, he offered no testimony as to the cost of alternate transportation.

We must hold that his claims for mental anguish and inconvenience are not compen-sable in an action in redhibition. Aiken v. Moran Motor Co., 165 So.2d 662 (La.App. 1st Cir. 1964) and Stratton-Baldwin Co., Inc. v. Brown, 343 So.2d 292 (La.App. 1st Cir. 1977).

Admittedly, our holdings in the Aiken and Stratton-Baldwin cases, above, are contrary to the decision in Hoffman v. All Star Insurance Corporation, 288 So.2d 388 (La. App. 4th Cir. 1974), writ refused 290 So.2d 909 (La.1974).

In Stratton-Baldwin, above, we held that an action in redhibition is one sounding in contract and that damages for mental anguish, inconvenience, etc., are not expenses incidental to the sale sought to be rescinded for redhibitory vices and are, therefore, not recoverable under C.C. Art. 1934 unless the contract had for its principal or exclusive object some form of intellectual gratification.

C.C. Art. 1934 was so interpreted by our Supreme Court in Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La.1976). Further, we note that all of the cases cited in and relied upon by the court in Hoffman, above, were causes of actions in tort and not contract or redhibition.

On the question of costs, we find that the trial judge abused his discretion in assessing the costs against Burns, O-C and Lamar-Lane. Ultimate liability is placed upon GM who should bear the cost of this litigation.

Accordingly, for these reasons, judgment is rendered herein in favor of the plaintiff and against Lamar-Lane Chevrolet, Inc. and General Motors Corporation, in solido, in the full and true sum of SIX THOUSAND SEVENTEEN AND 60/100 ($6017.60) DOLLARS, together with legal interest thereon from date of judicial demand, until paid;

Judgment is further rendered herein in favor of the plaintiff and against General Motors Corporation in the amount of TWENTY-FIVE HUNDRED AND 00/100 ($2500.00) DOLLARS, as reasonable attorney’s fees, together with legal interest thereon from date of judicial demand, until paid;

Judgment is further rendered herein in favor of Lamar-Lane Chevrolet, Inc., as third party plaintiff, and against General Motors Corporation, third party defendant, for any sum recoverable against the former with respect to its solidary obligation with General Motors Corporation in favor of plaintiff, together with legal interest thereon from date of judicial demand, until paid;

Judgment is further rendered herein in favor of Lamar-Lane Chevrolet, Inc., third party plaintiff, and against General Motors Corporation, third party defendant, in the sum of TWENTY-FIVE HUNDRED AND 00/100 ($2500.00) DOLLARS, as reasonable attorney’s fees, together with legal interest thereon from date of judicial demand, until paid;

Judgment is further rendered herein rejecting the demands of the plaintiff and third party plaintiffs against O-C and Camper Conversion, third party defendants.

All costs are assessed against General Motors Corporation.

REVERSED IN PART, AMENDED IN PART AND RENDERED.

      . We are in accord with the view of the Third Circuit that the language “as provided in Article 2521” is to be treated as mere surplusage. Jordan v. LeBlanc and Broussard Ford, Inc., 332 So.2d 534, 538 (La.App. 3rd Cir. 1976).


source: Caselaw Access Project

author: ELLIS, Judge.

license: Public Domain

text:
    Albert ROBERTSON, Individually and on Behalf of his minor children, Mary Martha Robertson, et al., and Katherine Robertson Dillon, et al., Plaintiffs and Appellees, v. Inetha HANDY, James Handy, Ben W. Gaylen, William L. Byrd Trucking Co., Employers Mutual Liability Ins. Co. of Wisconsin, Louisiana Department of Highways, Willie H. Jenkins and the City of Bogalusa, Defendants, O. D. Turnage and Continental Insurance Company, Third Party Defendants, Louisiana Department of Highways, Appellants.
    No. 11729.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Rehearing Denied Feb. 13, 1978.
    Writ Refused March 27, 1978.

      France W. Watts, III, of Watts & Cassi-dy, Franklinton, for plaintiffs and appel-lees.
    Ron S. Macaluso, Hammond, for Louisiana Dept, of Highways.
    Louis M. Kiefer, Jr., and R. L. Ronzello, New Orleans, for Employers Mutual Liability Ins. Co. of Wisconsin, William L. Byrd Trucking Co., and Ben W. Gaylen.
    Donald M. Fendlason, Dale E. Branch, of Seal, Lee, Branch & Brown, Bogalusa, for the City of Bogalusa.
    Charles W. Schmidt, III, of Christovich & Kearney, New Orleans, for Continental Ins. Co. and Q. D. Turnage.
    G. Wayne Kuhn, of Johnson & Kuhn, Franklinton, for Q. D. Turnage, Individually-
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge.

This is a suit for damages for the wrongful death of Mary Lee Robertson. Plaintiffs are the husband and 13 children of the decedent. Named as defendants in the original petition were Inetha Handy, operator of the vehicle in which Mrs. Robertson was a guest passenger; James Handy, her husband; Ben W. Gaylen, operator of the tractor-trailer rig involved in the accident; William L. Byrd Trucking Company, owner of the rig; Employers Mutual Liability Insurance Company of Wisconsin, liability insurer of Gaylen and Byrd; the City of Bogalusa; and Willie H. Jenkins, alleged to be the owner of the vehicle operated by Mrs. Handy.

An answer was filed by Employers, which third partied Mr. and Mrs. Handy, the State, and the City. An answer was filed by the State to both the main demand, and Employers’ third party demand. In addition the State filed a third party demand against the City of Bogalusa.

The City then filed answers to the main demand, and both third party demands against it, and third partied all of the other defendants. The City also named Q. D. Turnage and Continental Insurance Company as additional third party defendants, but these two parties were subsequently dismissed from the suit.

The record does not reveal that issue was ever joined as to Mr. Handy, Mr. Jenkins, Mr. Gaylen or Byrd, no pleadings having been filed by them or on their behalf to any of the demands made against them, and no preliminary judgment of default appearing in the minutes.

After trial on the merits, judgment was rendered in favor of plaintiffs and against the State of Louisiana, through the Department of Highways, for a total of $195,-000.00, being $40,000.00 for the surviving spouse, $15,000.00 for each of the five minor children, and $10,000.00 for each of the eight major children. All other demands were dismissed.

From this judgment, the State has appealed. Plaintiffs have answered the appeal, asking that the City of Bogalusa be cast solidarily with the State; that the award of damages be increased; and that Gaylen, Byrd, and Employers be found soli-darily liable with the State and the City. The City has answered the appeal, asking that its third party demand be recognized should it be cast in judgment. An answer to the appeal was also filed on behalf of Gaylen, Byrd and Employers, asking for recognition of Employers’ third party demands in the event they should be cast in judgment.

Since plaintiffs did not appeal, their answer to the State’s appeal cannot have the effect of placing at issue the judgment below as it applies to the other defendants. Code of Civil Procedure, Article 2133. It is, therefore, not necessary that we consider the third party demands of Employers or the City, both of which are predicated on liability on the main demand.

The only question before us, therefore, is the liability of the State on the main demand, the liability of the City on the State’s third party demand against it, and the question of the inadequacy of the award raised by the plaintiffs’ answer to the State’s appeal.

The accident happened at the intersection of Sunset Drive which is Louisiana State Highway 10, and Homochitto Street, within the limits of the City of Bogalusa. Highway 10 is a hard surface, concrete road, 18 feet in width, with gravel shoulders. In the vicinity of the accident, Highway 10 runs east and west. Immediately adjacent to the paved surface of the road, on the south shoulder, was a rut about four inches in depth and 30 to 50 feet long.

Mr. Gaylen, operating the Byrd tractor-trailer rig, was leaving Bogalusa, heading in a westerly direction on Highway 10. His rig was seven feet, 11 inches in width. Mrs. Handy, operating an automobile with Mrs. Robertson, Mrs. Eulice Pigott and Mrs. Aline Lee as guest passengers, was coming into Bogalusa, heading in an easterly direction on Highway 10. It was raining, the surface of the highway was wet, and the rut was filled with water to the level of the road surface.

Mrs. Handy testified that, as she approached the Byrd truck, it appeared to be slightly in her lane of traffic and she pulled to the right to avoid the truck. As she did so, her wheels went into the rut on the side of the road. Water from the rut splashed onto her windshield, and she lost control of her vehicle, which skidded across the highway and struck the oncoming truck broadside. As a result of the collision, Mrs. Robertson lost her life.

Mr. Gaylen testified that he was entirely within his lane of traffic, driving at 25 or 30 miles per hour, when he saw the right wheels of the Handy vehicle fall off onto the shoulder of the highway, and water splash onto its windshield. He testified that the car continued on the shoulder for about 20 feet, and then came across the road in front of him. He applied his brakes and cut slightly to his right, but was unable to avoid the collision.

The investigating officers determined, from the physical evidence at the scene, that the automobile left the highway 69 feet from the point of impact, remained on the shoulder for about 22 feet and then skidded across the highway and struck the tractor at a point about four feet into the westbound lane.

An eye witness, who was driving immediately behind Mrs. Handy, testified that the tractor-trailer was entirely in its lane of traffic prior to the accident. He saw Mrs. Handy leave the highway, and saw water splash onto her windshield, and witnessed the collision.

From the foregoing testimony, and other testimony, the trial judge found no negligence on the part of Mr. Gaylen, and we find that conclusion to be fully supported by the record. He made no finding relative to the negligence of Mrs. Handy in leaving the highway when there was no apparent reason to do so. We find, on the basis of the trial judge’s determination that Mr. Gaylen was entirely in his own lane of traffic, that it was negligence for Mrs. Handy to drive off the traveled portion of the highway. There is, however, no basis for imputing her negligence to Mrs. Robertson, and there is nothing in the record to indicate any contributory negligence or assumption of risk on Mrs. Robertson’s part.

We are, therefore, faced with the question of the liability of the State and the' City, if any, resulting from the condition of the shoulder of the road. It is the contention of the State that the condition of the shoulder was not hazardous to a reasonably prudent driver; that there was no notice, actual or constructive, of the defect to either the State or the City; and that there was no causal connection between the condition of the shoulder and the death of Mrs. Robertson.

The Department of Highways has the basic responsibility for the maintenance of State highways, including the shoulders thereof. R.S. 48:1(11) and (13); R.S. 48:21; R.S. 48:191; Willis v. State ex rel. Louisiana Dept. of Highways, 321 So.2d 819 (La. App. 1 Cir. 1975).

The State is required to maintain its highways in a reasonably safe condition. It is not the insurer of the safety of those using the highway, but it cannot knowingly allow a condition to exist which is hazardous to a reasonably prudent operator of a motor vehicle. Dupre v. Louiaiana Department of Highways, 154 So.2d 579 (La.App. 3rd Cir. 1963). Whether or not a condition is of such a hazardous nature as to render the State liable depends on the circumstances of the case.

The only evidence in the case which bears on the hazardous nature of the rut was that of Mrs. Handy, who testified that it caused her vehicle to go out of control; and that of Elmo Randolph, an expert in accident reconstruction, who testified that the rut was a contributing cause of the accident. The trial judge must have concluded that, despite Mrs. Handy’s negligence in leaving the traveled surface of the highway, she would not have lost control of her car had it not been for the rut. We find no manifest error in his conclusion that the rut constituted a hazard to a reasonably prudent driver.

Witnesses for both the State and the City testified that Highway 10 was a narrow highway, which carried a relatively high volume of large truck traffic. They testified that the ruts were caused by the outer wheels of the trucks extending onto the shoulder of the road when the trucks were operated at the extreme right of the lanes. It was also stated that the rain could also cause the ruts to develop. These conditions necessitated that the shoulders be worked two or three times per month to be maintained in proper condition.

The State inspected the shoulders regularly twice a year, and the City had no inspection procedures at all, although both of them were aware of the problem, and knew that a repair of the shoulder could break down in as short a time as a week. One City employee testified that the shoulders were worked three or four times per year. It was also stated that any deficiencies noted by the State in its semi-annual inspections would generally be corrected within two or three weeks of receipt of the notice thereof. The last inspection of Highway 10 was made on August 15, 1973, two and one half months before the accident. Under the foregoing circumstances we think that both the State and the City must be held to notice of the existence of the hazardous condition.

We therefore hold that the plaintiffs have met the burden of proof required by them by law, and that the State is liable for the wrongful death of Mrs. Mary Lee Robertson.

The State, however, contends that it is relieved of liability, or, alternatively, should have judgment on its third party demand against the City under a maintenance contract between them.

R.S. 48:193(A) provides, in part:

“A. The board of highways is hereby directed to repair and to keep in operating condition at its sole cost and expense, all municipal roads or streets which form a continuation of one of said highways, provided however, the final decision as to the designation or location of the particular municipal road or streets to be placed in the state system shall be left entirely up to the board of highways. At the request of the governing authority of a municipality the work may be contracted out to such municipality, but all such maintenance costs shall be paid for by the state, provided that the state shall not be responsible for the maintenance of sewers, street lighting, gas and water mains and other public utilities.”

Substantially the same provision is found in R.S. 48:261.

Under the provisions of these statutes, the State entered into a maintenance contract with the City, containing, inter alia, the following provisions:

“ARTICLE II. The Department. shall repair and maintain the surfacing of said roads and streets for the full width thereof, including median openings and intersections. The Department shall place all traffic stripes and markings, except parking stalls, and shall erect and maintain all traffic signs, exclusive of signs indicating street names and informational signs.” “ARTICLE IV. The municipality shall cut or otherwise control weeds, grass, trees, and other vegetation, flush and clean drainage facilities, maintain and operate traffic signals, sweep and clean the roads and streets and be responsible for the general policing and maintenance of all facilities within the designated, dedicated or apparent right of way not otherwise provided for herein, and will not in the future permit encroachments on the rights of way of said roads and streets.” “ARTICLE VII. If, in the opinion of the Department’s District Engineer, the Municipality has failed to properly fulfill its obligation with respect to any and/or all roads or streets provided for by this agreement, and after the municipality has been notified in writing and given adequate opportunity to correct the condition, he may order the Department’s maintenance forces to perform such work as, in his opinion, is necessary for the proper maintenance of the roads and/or streets and the Department may deduct the cost thereof from any monies due or to become due the Municipality. The Department’s District Engineer shall be the sole judge of the maintenance needs and requirements of any particular road or street and as to whether or not the Municipality is fulfilling its obligation. “ARTICLE VIII. It is understood and agreed that the municipality shall hold Department harmless for any and all claims for damages to person or property arising by reason of any negligence attributed to failure of proper maintenance of any of the facilities assumed by said municipality and likewise Department shall hold said municipality harmless of any and all such claims arising by reason of its undertakings herein.”

The City, on the other hand, argues that the “surface” of the highway includes the shoulders as well as the traveled portion of the highway, and that, under the contract, the State is responsible for maintenance thereof. It therefore denies liability under the third party demand.

We understand R.S. 48:193(A) and 261 to authorize the State to contract with a municipality to perform maintenance on State highways within its corporate limits. However, these statutes do not relieve the State of its fundamental responsibility that the maintenance work be properly performed.

On the other hand, the evidence in the case makes it clear that both the State and the City understood the maintenance contract to require the City to maintain the shoulders. The City employees who testified were unanimous in stating that shoulder maintenance was done by the City. It is true that on one occasion, State employees had worked the shoulders, and that, from time to time, State crews working on the traveled portion of the highway would use excess asphalt to fill ruts along the edge of the pavement. However, this does not change the fact that the City had accepted and carried out the responsibility for maintaining the shoulders of Highway 10. Although the contract may be susceptible of the interpretation urged by the City herein, the conduct of both parties during the existence of the contract makes it clear that they intended that the shoulders be maintained by the City.

It follows that, if the State is liable on the main demand, the City must be liable on the third party demand against it under the hold harmless agreement contained in the maintenance contract.

In their answer to the appeal, plaintiffs claim that the amounts awarded them were inadequate. We find those amounts, although high, to be within the discretion accorded trial judges in such cases, and certainly not inadequate.

The judgment appealed from is therefore amended so as to give judgment in favor of the State of Louisiana, through the Department of Highways, on its third party demand against the City of Bogalusa, for the full amount for which it has been found liable to plaintiffs, and, as amended, it is affirmed. All costs of this appeal shall be borne by the City of Bogalusa to the full extent permitted by law.

AMENDED AND AFFIRMED.


author: LOTTINGER, Judge. PONDER, Judge,

text:
    EMPLOYERS’ SURPLUS LINE INSURANCE COMPANY v. CITY OF BATON ROUGE and Parish of East Baton Rouge.
    No. 11677.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Rehearing Denied Feb. 13, 1978.
    Writ Granted March 31, 1978.

      G. Thomas Arbour, Baton Rouge, of counsel for plaintiff-appellee Employers Surplus Line Ins. Co.
    Frank J. Gremillion, Asst. Parish Atty., Baton Rouge, of counsel for defendant-appellant City of Baton Rouge.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit by Employers’ Surplus Line Insurance Company (Employers’) against the City of Baton Rouge and the Parish of East Baton Rouge for the recovery of the deductible amount under a contract of insurance between plaintiff and defendants. From a summary judgment in favor of plaintiff, defendants have appealed.

Plaintiff alleges that appellants were named as defendants in a civil proceeding entitled “Winston Hickman, individually, etc. v. The Parish of East Baton Rouge, et al,” number 149202 on the docket of the Nineteenth Judicial District Court in and for the Parish of East Baton Rouge. Plaintiff in this suit was also made a defendant therein. As a result of negotiations, plaintiff was able to settle that suit and paid out the total sum of $75,000.00 which sum was paid out pursuant to the contract of insurance, and that despite amicable demand defendants have refused to pay the $10,-000.00 deductible amount due under the following endorsement to the policy, to wit:

“The sum of $10,000.00 shall be deducted from the total amount of all sums which the Insured shall become legally obligated to pay by reason of bodily injury or property damage claims, including hospital, medical and funeral charges and all sums paid as salaries, wages, compensation, fees, charges and law costs, premiums on attachment or appeal bonds, interest on judgments, expenses for doctors, lawyers, nurses and investigators and other persons, and for litigation, settlement, adjustment and investigation of claims and suits which are paid as a consequence of any occurrence covered hereunder, excluding only the salaries and all expenses for salaried employees and retained counsel of the Insured and all office expenses of the Insured.
“The Company shall not be liable for any expenses as aforesaid when payment of such expenses is included in other valid and collectible insurance.”

In seeking a summary judgment plaintiff filed affidavits setting forth that the $75,-000.00 was paid out in settlement, and that an offer to settle was communicated to Employers’ counsel by an assistant parish attorney for appellants.

Appellants in opposition argue that the assistant attorney was not authorized to agree to a settlement, and that only the City-Parish Council could authorize a settlement.

Firstly, we find no genuine issue of material fact. A certified copy of the insurance policy including the endorsement was attached to the petition. The initial suit had been settled by Employers’ paying $75,-000.00, and the communication of the offer to settle was forwarded from the parish attorney’s office to counsel for Employers’.

In addition to the deductible endorsement above quoted, the policy also contained the following clause, to wit:

“II. Defense, Settlement, Supplementary Payments.
“With respect to such insurance as is afforded by this policy for bodily injury liability and for property damage liability, the company shall:
“(a) defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient; * * (Emphasis supplied.)

There is no contention by appellants that they did not agree to the terms of this insurance contract. Under the terms of the insurance contract between appellants and appellee, appellee “may make such * * * settlement of any claim or suit as it deems expedient.” We find no clause in this insurance contract that would provide that the insurer must receive the prior approval of the insured before settling a claim. By agreeing to the terms of this contract, appellants are bound thereby. They further agreed to the deductible clause which provides in essence that the first $10,000.00 is to be paid by the insureds. Thus, we find no error on the part of the Trial Judge.

Therefore, for the above and foregoing reasons the judgment of the Trial Court is affirmed at appellants’ cost.

AFFIRMED.

PONDER, J., dissents and assigns reasons.

PONDER, Judge,

dissenting.

I do not construe the provision for the settlement of any claim as the insuror deems expedient as giving to the insuror the power to bind without approval the City of Baton Rouge and the Parish of East Baton Rouge to pay $10,000.00 toward the settlement of any claim. It is much more consistent with insurance practice and the realities of municipal government to construe the provision as allowing the insurance company to negotiate a settlement and then get the approval and the contribution of the City-Parish. While the contribution of $10,000.00 by the City-Parish is considerably less than the amount required of the insuror, $65,000.00, that disparity has no legal effect: if the insuror can settle a $75,000.00 claim, it can also settle a $10,-500.00 claim.

As a matter of fact, the provision of the endorsement that $10,000.00 shall be deducted from the settlement leads me to believe that the insuror’s power was not intended to extend to being able to pay the entire amount of the settlement and then requiring the City-Parish to reimburse it.

Even if the provision of the policy be construed as the majority does, I regard it as being against public policy in that a legislative function would have been ceded to an insuror.

I agree with the evident finding of the majority that the Assistant Parish Attorney had no authority to bind the Council. At any rate whether or not he approved the settlement for the Council is disputed.

I would therefore reverse the summary judgment and remand the case.

I dissent.


text:
    William Henry BROWN, Jr. v. STATE of Louisiana, Through the DEPARTMENT OF CORRECTION.
    No. 11682.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Rehearing Denied Feb. 13, 1978.

      Stephen C. Sledge, Hammond, of counsel for plaintiff-appellee William H. Brown, Jr.
    J. Marvin Montgomery, Asst. Atty. Gen., Baton Rouge, of counsel for defendant-appellant State of La., through the Dept, of Corrections.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is an action ex delicto based on injuries suffered by plaintiff, William Henry Brown, while incarcerated at Angola State Penitentiary. The Trial Judge in his oral reasons for judgment found the defendant, State of Louisiana, through the Department of Corrections (Department), negligent and awarded the plaintiff $75,000.00. From this judgment defendant has appealed..

The facts as developed by the record are that the plaintiff entered Louisiana State Penitentiary at Angola on October 7, 1971. Mr. Brown had previously been incarcerated in Illinois where a serious acidic stomach condition was diagnosed, and he was placed on a bland diet. During his stay at Angola, Mr. Brown was repeatedly examined by numerous physicians who also prescribed a bland diet as part of his medical treatment. The Department failed to provide the plaintiff with a bland diet. Plaintiff’s condition deteriorated to such an extent that on August 21,1973, 70% of his stomach was surgically removed. Plaintiff filed suit on August 21, 1974.

Defendant-appellant assigns three specifications of error (1) the negligence of the defendant in failing to provide a bland diet and its causal relationship to the injuries suffered, (2) prescription, and (3) quantum.

ERROR NO. 1

This Court can find no error in the Trial Judge’s finding that the defendant was negligent. First, the defendant has a duty to provide the plaintiff with adequate medical treatment. LSA-R.S. 15:881, Moreau v. State, Department of Corrections, 333 So.2d 281 (La.App. 1st Cir. 1976). Secondly, the defendant admits that the treatment prescribed, a bland diet, was not given to the plaintiff, therefore there being an obvious breach of duty. Finally, appellant questions whether this breach is a cause-in-fact of the plaintiffs injuries. Whether plaintiffs smoking or the tension of living in a prison were causes of his condition is of no consequence when the record clearly indicates that the absence of a bland diet caused the plaintiff to experience severe pain and develop three ulcers. There is in fact a causal relationship between the duty, the breach of duty, and the damages suffered by the plaintiff in this fact situation.

ERROR NO. 2

Under LSA-C.C. arts. 3536 and 3537, plaintiffs suit must be filed within one year from the damages resulting from the tor-tious conduct of the defendant. Plaintiff-appellee argues that his cause of action is not barred by prescription because (1) based on the doctrine of contra non valentem agere nulla currit praescriptio (no prescription runs against a person unable to bring an action), the plaintiff was unable to bring the action until the removal of 70% of his stomach and (2) the doctrine of constructive notice is not applicable because the plaintiff being a prisoner was unable to obtain independent medical advice.

This Court in Aegis Insurance Co. v. Delta Fire & Casualty Co., 99 So.2d 767 (La.App. 1st Cir. 1957) reviewed the Louisiana Jurisprudence of the doctrine of contra non valentem, and found that prescription commences to run from the time the cause of action is discovered after the exercise of due diligence. This doctrine is applicable when the plaintiff establishes that: (1) the cause of action has not manifested itself with sufficient certainty to be susceptible of proof in a court of justice, or (2) the defendant concealed information or mislead and lulled the plaintiff into inaction. See also Dean v. Hercules, Inc., 328 So.2d 69 (La.1976), Steel v. Aetna Life & Casualty, 304 So.2d 861 (La.App. 3rd Cir. 1974), writ denied, 315 So.2d 144 (La.1975).

The damages claimed by plaintiff in his petition in addition to the removal to the major portion of his stomach, and the resulting disability therefrom, include many months of pain and suffering prior to surgery, his forced ingestion of large quantities of Maalox and permanent damage to his back as a result of a chemical imbalance resulting from the heavy consumption of milk and Maalox.

Though plaintiff was long aware of the cause of his pain and suffering and the inability of obtaining a bland diet, we pre-termit any discussion of the exception of prescription being applicable to those damages other than the removal of the stomach and its resulting disability inasmuch as the Trial Judge in his oral reasons for judgment only awarded damages for the removal of the stomach and the resulting disability.

The problem with maintaining the exception of prescription in this factual situation is that the defendant, who bears the burden of proof, failed to establish that the plaintiff knew or had constructive knowledge prior to a year from filing of his suit that he would sustain the loss of part of his stomach. Since the record fails to establish when the plaintiff had knowledge, actual or constructive that he would sustain the loss of his stomach, we find no error on the part of the Trial Judge in denying the exception of prescription.

ERROR NO. 3

The Trial Judge awarded $75,000.00 for the surgical removal of 70% of plaintiff’s stomach. In making the award the Trial Judge said:

“Now, my own life experiences tell me that people can live with their stomachs partly taken out; all they have to do is make adjustments, but that’s worth money to have to make them.
“The physiologist said they’ve got to eat about six times a day and they not only have to regulate what they eat but how much they eat. I think it’s a problem to go through life with about a third of your stomach. I’m going to award him $75,-000.00.”

Since the award of damages is within the sound discretion of the Trial Judge, we find no abuse of that discretion.

Therefore, for the above and foregoing reasons the judgment of the Trial Court is affirmed. Defendant-appellant to pay all costs allowed by law.’

AFFIRMED.

PONDER, J., dissents and assigns reasons.

PONDER, Judge,

dissenting.

Plaintiff had a preexisting ulcer condition and had been told he had to have a bland diet. After confinement at Angola, he often complained of stomach pains and was examined by doctors who confirmed his need of a bland diet. He told the prison authorities of his need but received the reply that the prison had no facilities for bland diets. Ultimately, seventy per cent of plaintiff’s stomach was removed. Exactly one year later he filed suit.

I believe prescription had accrued. Plaintiff must have knowledge, actual or constructive, of the negligence and injury for prescription to begin accruing. Plaintiff knew of this breach of duty, and of the injury to him long before the surgery occurred.

It is not clear when plaintiff was advised that surgical removal was needed and would be done, but it is logical that it occurred sometime before the operation. Even under the best assumption for plaintiff, that is, the prescriptive period begins when the fullest or most serious result becomes apparent, prescription had occurred before the suit was filed.

Plaintiff’s argument that he had no knowledge of the damage until he had the operation is factually and legally unavailing. The only thing he did not know was the complete extent of the damage; he had previously known of the failure to give him bland food and of his stomach pains. To allow him to carve out of all the consequences the one fact, the operation, itself really an effort surgically to remedy the damage, and to assert that the prescriptive period begins then is to allow the splitting of a cause of action as different extents of damage become apparent.

I dissent.

      . LSA-C.C. Art. 3537.

      . Perrin v. Rodriguez, La.App., 153 So. 555 (4th Cir., 1934); Lucas v. Commercial Union Insurance Co., La.App., 198 So.2d 560 (1st Cir., 1967); Cartwright v. Chrysler Corp., 255 La. 598, 232 So.2d 285 (1970).


text:
    John H. ANDERSON and Noemie L. Anderson v. Jessie B. WEST, Aetna Casualty and Surety Company and Hartford Accident and Indemnity Company.
    No. 11684.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Rehearing Denied Feb. 13, 1978.
    Writs Refused March 31, 1978.

      Kenneth L. Riche, Baton Rouge, of counsel for plaintiff-appellant John H. Anderson, et al.
    W. Arthur Abercrombie, Jr., Baton Rouge, of counsel for defendant-appellee and third party plaintiff Hartford Accident & Casualty.
    Edward W. Gray, Baton Rouge, of counsel for defendant-appellee and third party defendant Jessie B. West and Aetna Casualty and Surety Co.
    David W. Robinson, Baton Rouge, of counsel for intervenor-appellee Seaboard Fire and Marine Ins..
    Before LANDRY, LOTTINGER and PONDER, JJ.
   LOTTINGER, Judge.

This is an action ex delicto filed by John H. Anderson and his wife, Noemie L. Anderson, against Jessie B. West and his insurer, Aetna Casualty and Surety Company, as well as Hartford Accident and Indemnity Company, plaintiffs’ insurer under the uninsured motorist provisions of the policy. Seaboard Fire & Marine Insurance Company intervened for workmen’s compensation paid to Mrs. Anderson. Judgment was rendered in favor of both plaintiffs in the combined total of $48,553.76, subject to the claim of Seaboard, and limiting the liability of Hartford under the uninsured motorist coverage to $25,000.00. Plaintiffs have appealed.

This suit arises out of an automobile accident which happened on July 18, 1975, in the city of Port Allen, Louisiana. Mrs. Anderson was injured while driving one of the family’s automobiles which was involved in an accident with an automobile owned and operated by Jessie B. West. On appeal, the question of liability is not at issue.

The appellants contend the Trial Judge erred (1) in not allowing plaintiffs-appellants to “stack” multiple uninsured motorist (UM) coverage, (2) in failing to allow recovery of pre-trial loss of earnings for the period of time commencing from date of injury, July 18, 1975 and ending August 1, 1976, when Mrs. Anderson retired on medical disability, and (3) in allowing compensation for loss of future earnings for only a seven month period rather than several years as indicated by the medical testimony.

ERROR NO. 1

This accident happened on July 18, 1975, and thus the question of the stacking of uninsured motorist (UM) coverage is controlled by LSA-R.S. 22:1406 D as amended by Act 154 of 1974, Regular Session.

Appellants contend that they are entitled to stack three separate UM coverages of $25,000.00 each based on the UM coverage provisions of their policy with Hartford and that separate premiums were paid for three separate vehicles at the time of the accident. They argue that Act 154 of 1974 in amending LSA-R.S. 22:1406 D did not change the jurisprudence established in Graham v. American Casualty Company, 261 La. 85, 259 So.2d 22 (1972), Deane v. McGee, 261 La. 686, 260 So.2d 669 (1972) and Barbin v. U.S.F. & G., 315 So.2d 754 (La.1975).

As far as we have been able to determine, this is the first instance of an interpretation of Act 154 of 1974 to be presented to an appellate court of this state.

Appellee admits that the policy issued to appellant covered three automobiles with single limit coverage of $25,000.00, but argues the liability of Hartford as respects UM coverage was limited by the following language in the policy, to wit:

“LIMITS OF LIABILITY: Regardless of the number of (1) persons or organizations who are insured under this policy, (2) persons or organizations who sustain bodily injury or property damage, (3) claims made or suits brought on account of bodily injury or property damage, or (4) automobiles or trailers to which this policy applies,
* * * * * *
“(C) The limit of Coverage D — Uninsured Motorist stated in the declarations as applicable to ‘each accident’ is the total limit of the company’s liability for all damages because of bodily injury sustained by one or more persons as a result of any one accident.”

The Trial Judge held that this language was not contrary to the laws of this state, and thus stacking was prohibited.

Thus it is incumbent upon this Court to determine initially if such policy language is prohibited under the laws of Louisiana.

Appellee argues that LSA-R.S. 22:1406 D as enacted in 1962 and as amended in 1972 provided that a minimum amount of UM coverage was to be afforded, if any at all. Thus, unless the insured rejected UM coverage, a minimum amount of $5,000.00/$10,-000.00 must be provided. It is further argued by appellee that the line of jurisprudence authorizing stacking allowed stacking only in instances where its rejection would have resulted in an insurer providing less than the minimum amount of UM coverage required. However, Act 154 of 1974 removed the minimum mandatory amount of coverage by allowing the insured to select none or any amount below the limits of his liability coverage, thus deleting the minimum amount of $5,000.00/$10,000.00 removes the justification as earlier found by the Courts for stacking.

We agree that a mere reading of Act 154 of 1974 without reference to previous or subsequent legislation in this area could possibly lead to the conclusion reached by appellee. However, the function of the Court in interpreting a statute is to ascertain the intention of the legislature and to give effect to the true legislative intent, regardless of how broad and comprehensive may be the language employed. Bonnette v. Karst, 261 La. 850, 261 So.2d 589 (1972), In Re Hibernia Bank & Trust Co., 185 La. 448, 169 So. 464 (1936). Therefore, we must determine whether the legislature intended by Act 154 of 1974 to prohibit stacking.

Historically, LSA-R.S. 22:1406 D(l) Uninsured Motorist Coverage, was enacted as Act 187 of 1962, Regular Session. It generally provided that no automobile liability insurance covering liability shall be delivered or issued for delivery in this state unless coverage was provided therein in not less than the limits described in the Motor Vehicle Safety Responsibility Law of Louisiana. It allowed, however, that the coverage required could be rejected by the insured.

By Act 137 of 1972, Regular Session, the legislature amended LSA-R.S. 22:1406 D to allow the insured to increase the coverage applicable to uninsured motor vehicles to an amount not in excess of the limits of liability insurance carried by the insured. It did not change the minimum requirements of “not less than the limits described in the Motor Vehicle Safety Responsibility Law.”

In Barbin, supra, the Supreme Court held that it was not the intention of the legislature by Act 137 of 1972 to legislatively overrule Graham and Deane, thus, stacking was permissible under the 1972 amendment. All Act 137 of 1972 did was to allow the insured to actively increase his UM coverage.

A.ct 154 of 1974, Regular Session, in amending LSA-R.S. 22:1406 D(l) removed the minimum limits as required by the financial responsibility law and provided that the policy shall be issued with UM coverage “in not less than the limits of bodily injury liability provided by the policy.” It continued to allow the insured to reject, and alternatively allowed him to select any lower limit. The difference between the 1972 and the 1974 acts is that in 1972 the insured must actively select higher limits, whereas in 1974, higher limits were automatically provided, thus the insured passively selected higher UM coverage.

By Act 494 of 1975, Regular Session, the legislature again amended LSA-R.S. 22:1406 D(l) to provide that mandatory issuance of UM coverage at the amount of bodily injury coverage did not apply to the renewal or substituted policies where the insured had rejected or selected lower limits initially.

Then, just recently, by Act 623 of 1977, Regular Session, again amending LSA-R.S. 22:1406 D, the legislature with particularity seemingly prohibited stacking .

In interpreting acts of the legislature, subsequent related acts, in limited circumstances, may provide a guide to the legislature’s intent. Washington v. St. Charles Parish School Board, 288 So.2d 321 (La.1974).

The permissibility of stacking had already been jurisprudentially approved pri- or to the 1974 session of the Louisiana Legislature. Considering the particularity with which the legislature by Act 623 of 1977, Regular Session, prohibited stacking, we must conclude that if the legislature had intended to preclude stacking by the 1974 act, that it would have so said, as it seemingly has done by Act 623 of 1977. Therefore, regardless of any possible interpretation of Act 154 of 1974, and regardless of the broadness of the language contained therein, we are of the opinion that it was not the intention of the legislature in 1974 to prohibit stacking. The public policy of Louisiana as enacted by the legislature and interpreted by the Courts provided that stacking was permissible, and any language contained in insurance policies to prohibit stacking and avoid a stated policy of the state was null and void. Thus, we now hold that any language in the instant Hartford policy intended to prohibit stacking is null and void.

ERROR NO. 2

In disallowing any award for lost income prior to trial, the Trial Judge in his written reasons said:

“The evidence relating to the time during which Mrs. Anderson worked following the accident, as well as whether she was being paid regular wages, sick leave pay, or a medical disability, is uncertain and does not furnish the Court with adequate information in which to make an accurate determination of the earnings which she lost prior to trial.”

After thoroughly studying this record as to the proof of lost wages, we find no error on the part of the Trial Judge. This accident occurred on July 18,1975. In evidence is Mrs. Anderson’s W-2 Form for 1974 showing total wages of $6,326.72, and her W-2 Form for 1975 showing total wages of $7,152.56. Additionally, two checks stubs dated January 18, 1976, and February 1, 1976, purportedly each for a two week period show that she was receiving the gross amount of $302.40 per check. There is no evidence that we can find in the record that would lead this Court to believe that Mrs. Anderson suffered any loss of income during the period of July 18, 1975 to August 1, 1976.

ERROR NO. 3

Dr. Bannerman, the orthopedic surgeon who treated Mrs. Anderson, testified that she would not be able to return to work for a minimum of another six to eight months after the trial. Dr. Otwell, her family physician, generally felt that she must get a lot better to return to work. It is apparent that the medical experts could not give to the Court an exact time period within which Mrs. Anderson would be able to return to work. The Trial Judge elected to use the minimum suggested by the orthopedic surgeon, and we find no error.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court insofar as it prohibited stacking and limited the liability of Hartford Accident and Indemnity Company to $25,000.00 is reversed, in all other respects, the judgment is affirmed. All costs of this appeal to be paid by defendant-appellee, Hartford.

REVERSED IN PART, AMENDED AND AFFIRMED.

PONDER, Judge,

concurring.

The majority has stated that the “permissibility of stacking had already been juris-prudentially approved ...” and that “we must determine whether the legislature intended by Act 154 of 1974 to prohibit stacking.” I disagree and submit that the jurisprudence has been that “stacking” has been required to prevent violation of the statutory minimum limit, and that the question before us is whether “stacking” is required to prevent violation of a minimum limit after the amendment of 1974.

The holding of Graham v. American Casualty Co. of Reading, Pa., 261 La. 85, 259 So.2d 22 (1972); Deane v. McGee, 261 La. 686, 260 So.2d 669 (1972) and others is that “stacking” of uninsured motorist coverage is required by the then terms of LSA-R.S. 22:1406 establishing a limit of $5,000.00 on each insured vehicle. Any provision of the policy providing for proration, excess insurance, or anything else that would result in a violation of this minimum was held to be null and void. Barbin v. United States Fidelity and Guaranty Company, La., 315 So.2d 754 (1975), held that the 1972 amendment to LSA-R.S. 22:1406 (D) did not overrule the Graham and Deane decisions; the legislative intent was to allow additional coverage, not to require lower coverage. As a matter of fact the 1972 amendment, Act No. 137, did not alter the minimum amount of $5,000.00. The reasoning of the Graham and Deane cases would still be applicable.

Act No. 154 of 1974 amended LSA-R.S. 22:1406 (D)(1) to set the minimum at “not less than the limits of bodily injury liability provided by the policy” unless the insured “shall reject the coverage or selects lower limits.”

In the present case, the amount of the bodily injury liability is $25,000.00; there is no proof that lower limits were selected by the insured. Indeed, the stated amount is $25,000.00. Graham and Deane would still be applicable so as to require the “stacking” of the uninsured motorist coverage of $25,-000.00 on each of three cars.

I therefore concur in the result.

      . Act 623 of 1977, Regular Session in part reads:
      “Section 1. Sub-paragraph (b) of Paragraph (1) of Subsection D of Section 1406 of Title 22 of the Louisiana Revised Statutes of 1950 is hereby amended and reenacted and sub-paragraph (c) of Paragraph (1) of Subsection D of Section 1406 of Title 22 of the Louisiana Revised Statutes of 1950 is hereby enacted, to read as follows:
      § 1406. Specific duties of casualty and surety division; uninsured motorist coverage
      * * * * * *
      D. The following provisions shall govern the issuance of uninsured motorist coverage in this state. (1)
      ‡ ‡ ‡ ‡ ‡ sfe
      (b) Any insurer delivering or issuing an automobile liability insurance policy referred to herein shall also permit the insured, at his written request, to increase the coverage applicable to uninsured motor vehicles provided for herein to any amount.
      (c) If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subsection D(l), then such limits of liability shall not be increased because of multiple motor vehicles covered under said policy of insurance and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy; provided, however, that with respect to other insurance available, the policy of insurance or endorsement shall provide the following:
      With respect to bodily injury to an injured party while occupying an automobile not owned by said injured party, the following priorities of recovery under uninsured motorist coverage shall apply:

        (i) the uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary;
      (ii) should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him. In no instance shall more than one coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant.”


text:
    FLOWERS, INC. v. Mrs. Lucy Reid RAUSCH, Clerk of Court, Parish of St. Tammany and Collector of Revenue, State of Louisiana.
    No. 11728.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Rehearing Denied Feb. 13, 1978.
    Writ Granted March 31, 1978.

      William J. Jones, Jr., Randall E. Roach, Covington, for plaintiff-appellee.
    Lucy Reid Rausch, in pro. per.
    Edwin M. Callaway, Dept, of Revenue & Taxation, Baton Rouge, for defendant-appellant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit by Flowers, Inc., plaintiff, against Mrs. Lucy Reid Rausch, Clerk of Court of St. Tammany Parish, and the Collector of Revenue for the State of Louisiana seeking a writ of mandamus to have tax assessments and liens filed in the mortgage records for St. Tammany Parish can-celled and erased insofar as they affect certain immovable property owned by the plaintiff. From a judgment in favor of plaintiff, the defendant, Secretary of Revenue and Taxation, has appealed.

There is no dispute as to the facts. On October 9, 1964, and August 9, 1966, the State of Louisiana, Collector of Revenue, recorded in the mortgage records in the parish of St. Tammany tax assessments and liens filed against Tan Ho Land and Cattle Co., Inc., for corporate income and franchise taxes. Plaintiff, Flowers, Inc., acquired certain immovable property located in St. Tammany Parish from Tan Ho Land and Cattle Co., Inc. by quitclaim deed dated November 2, 1972. At the time of this acquisition the tax assessments and liens had not been satisfied and were still of public record. On October 9, 1976, the instant suit was filed.

In appealing appellant contends the Trial Judge erred in: (1) applying LSA-C.C. art. 3369, (2) not relying on LSA-C.C. art. 3547, and (3) holding the recordation of an impre-scriptible judgment or tax assessment, in favor of the state, would perempt with the passage of ten years.

In examining the merits of this case we find the two central issues to be (1) whether recordation of a tax assessment is prescrip-tible or whether it is peremptible and (2) if it is concluded that recordation of a tax assessment perempts with the passage of time, is this peremption valid against the state.

ISSUE NO. 1

LSA-R.S. 47:1581 provides:

“Any tax, penalty, interest, or other charges duly assessed under this Sub-title, being the equivalent of a judgment, shall not be subject to the running of any prescription other than such prescription as would run against a judgment in favor of the State of Louisiana in accordance with the Constitution and laws of this state; and the recordation of such assessment shall have the same effect as a recordation of a judgment.” (Emphasis supplied.)

In Collector of Revenue v. Pioneer Bank & Trust Co., 250 La. 446, 196 So.2d 270 (1967), the Supreme Court said:

“A tax claim may be assimilated to other monied demands for purposes of this discussion, except that it is collectible by methods other than suit. Indeed, R.S. 47:1561 vests in the Collector three alternative remedies for the collection of taxes, i. e., assessment and distraint, summary court proceeding or ordinary suit (see Collector of Revenue v. Olvey, 238 La. 980, 117 So.2d 563 and Collector of Revenue v. Frost, 240 La. 1067, 127 So.2d 151), and, whenever one of these remedies is exerted to final conclusion and the tax assessment or judgment, as the case may be, becomes executory by distraint or otherwise, the status of the tax claim is thus transformed into an assessment or a judgment enforceable by seizure, garnishment or distraint. It therefore necessarily follows that the constitutional prescription, applicable only to tax claims which have not been asserted during a three year period, can no longer be invoked, forasmuch as the running of that prescription has been forever tolled by the action of the Collector in having timely reduced the claim to final assessment or judgment. [Footnote omitted.]
******
“Once an assessment of taxes has been made and has become final, either by reason of the tax debtor’s failure to appeal to the Board of Tax Appeals and thereafter to the courts, or, as here, by his failure to appeal to the courts from an adverse decision of the Board of Tax Appeals, the ‘assessment’ of the Collector or the ‘judgment’ of the Board of Tax Appeals or the court, in the event of appeal, the tax assessed is no longer a claim but an established liability which may be collected either by distraint or through judicial process as provided by R.S. 47:1574. Being a final assessment or a judgment, as the case may be, the constitutional prescription provided in Section 19 of Article 19 [La.Const. (1921)] is irrelevant and were any prescription at all applicable it would be the one which applies to judgments. But the prescription applicable to judgments or final assessments cannot be invoked against the State. For Section 16 of Article 19 of the Constitution [La.Const. (1921)] declares: ‘Prescription shall not run against the State in any civil matter, unless otherwise provided in this Constitution or expressly by law’. And R.S. 47:1579 states ‘There shall be no prescription running against any state tax, license, excise, interest, penalty or other charges levied under this Sub-title, except that ordained in the Constitution of Louisiana.’ ”

Thus the holding of Pioneer, supra, leaves no doubt that a tax assessment, is equivalent to a judgment, and upon becoming final as between the state and the tax debtor, is imprescriptible.

In Carroll v. Seip, 25 La.Ann. 141 (1873) the Supreme Court said “that a judicial mortgage, like any other, must be rein-scribed within ten years from the first inscription, in order to preserve the rank acquired by said inscription.”

The Supreme Court in reviewing the applicable jurisprudence as it relates to the registry of mortgages and the failure to timely reinscribe in State ex rel. Pickett v. Bullock, 197 La. 776, 2 So.2d 209 (1941) stated:

“It is the settled jurisprudence of this court under the provisions of Article 3369 of the Revised Civil Code that failure to reinscribe a mortgage within ten years from the date of its original inscription affects neither the existence of the mortgage nor its rank as between the parties thereto (Shepherd v. Orleans Cotton Press Co., 2 La.Ann. 100; Bonin v. Durand, 2 La.Ann. 776; Police Jury of West Baton Rouge v. Bergeron, 11 La.Ann. 390; Byrne v. Citizens’ Bank, 23 La.Ann. 275; Seyburn v. Deyris, 25 La.Ann. 483; Watson v. Bondurant, 30 La.Ann. 1; Factors’ & Traders’ Ins. Co. v. Warren, 37 La.Ann. 85; and Harman & Stringfellow v. Legrande, 151 La. 253, 91 So. 726) but that where the rights of third parties are affected, the reinscription after the ten-year period takes rank only from the date of its reinseription (Executors of Liddell v. Rucker, 13 La.Ann. 569; Gegan v. Bowman, 22 La.Ann. 336; Byrna [Byrne] v. Citizens’ Bank [23 La.Ann. 275], supra; Norres v. Hays, 44 La.Ann. 907, 11 So. 462; and Hite v. Charbonnet, 193 La. 581, 192 So. 64) and that it is the mandatory duty of the recorder of mortgages, on the application of a secondary mortgage creditor or any other interested party, to cancel and erase such a mortgage in so far as it affects the applicant’s rights. Act No. 87 of 1843; Section 2239 of the Revised Statutes of 1870; Britton & Koontz v. Norment, 20 La.Ann. 508; and Chaffe & Brothers v. Morgan, 30 La.Ann. 1307. “In the case of Shepherd v. Orleans Cotton Press Company, supra, the court held that the failure or delay to reinscribe a, mortgage is fatal and if it ‘is suffered to expire without re-inscription, the mortgage loses its rank, and a subsequent re-inscription gives it effect only from the time it is made. A litigation between the mortgage creditors does not dispense from re-inscription; even the sale of the property effected under the mortgages, does not dispense from it, when the purchaser fails to pay the price. The inscription must continue until the proceeds of the property mortgaged are reduced to possession,’ reasoning that ‘Registry laws, provided they are known and certain, can work no injury. * * * The inscription is exclusively in the power of the party having an interest to make it. If he does not reinscribe, he cannot complain of losses sustained through his own neglect.’ (Italics ours.) To the same effect are the cases of McElrath v. Dupuy, 2 La.Ann. 520; Hyde v. Bennett, 2 La.Ann. 799; Hyatt v. Gallier, 6 La.Ann. 321; and Barelli v. Delassus, 16 La.Ann. 280.”

The distinction or difference between prescription and peremption was explained by the Supreme Court in Succession of Pizzillo, 223 La. 328, 65 So.2d 783 (1953), to wit:

“The difference between prescription and peremption is that the former simply bars the remedy whereas, in the latter, time is made of essence of the right granted and a lapse of the statutory period operates as a complete extinguishment of the right. [Citations omitted.] Peremption admits of no interruption or suspension; performance of the required act must be accomplished within the specified time or else the right of action no longer exists.”

Thus we hold that the effect of rec-ordation of a judgment perempts in ten years. LSA-C.C. art. 3369.

It is important, however, to note that the Supreme Court in Pioneer did not hold that the effect of recordation of a tax assessment was imprescriptible, but merely held that the tax assessment itself was im-prescriptible. The distinction between a tax assessment and the recordation of a tax assessment must be made and understood. The tax assessment is, as is a money judgment, sufficient as between the tax creditor, the state, and the tax debtor to support and authorize execution on the tax assessment as one would on a judgment. However, as between the tax creditor and third parties, just as it is necessary to record a money judgment, it is necessary to record the tax assessment for it to be effective.

We conclude therefore that a tax assessment being equivalent to a money judgment, the recordation thereof is subject to the peremptive period of ten years as provided by LSA-C.C. art. 3369. The question remains, however, as to whether this per-emptive period runs against the state.

ISSUE NO. 2

Defendant-appellant argues that in Collector of Revenue v. Pioneer Bank & Trust Company, supra, the Supreme Court held that a tax assessment, once made, is impre-scriptible, and thus there is no need for the state to adhere to LSA-C.C. art. 3547 and revive its tax assessment which is equivalent .to a judgment. Since there is no need to revive this judgment, there is no need to reinscribe it. It further argues that in LSA-R.S. 9:5685, the legislature has provided that prescription and/or peremption will run against the state on judgments of $1,000.00 or less, thus evidencing the legislature’s commitment that prescription and/or peremption shall not run against the state on larger judgments.

Article 12, § 13 of the 1974 Louisiana Constitution and Article 19, § 16 of the 1921 Louisiana Constitution state that “Prescription shall not run against the state in any civil matter, unless otherwise provided in this constitution or expressly by law.”

Without question, the drafters of both the 1921 and the 1974 Constitutions prohibited the running of prescription against the state, but were silent as to whether per-emption was included in the general terminology of prescription.

As early as 1900 the Supreme Court in Guillory v. Avoyelles Ry. Co., 104 La. 11, 28 So. 899 (1900) differentiated between prescription and peremption when it said:

“Statutes of prescription simply bar the remedy. Statutes of peremption destroy the cause of action itself. That is to say, after the limit of time expires the cause of action no longer exists; it is lost.”

We must conclude, therefore, that such differentiation was known to the drafters of the 1921 and the 1974 Constitutions. Knowing this distinction, had the drafters of these constitutions wished to exclude the state from the application of the theory of peremption, they could have so expressed themselves, as they did with the state’s exclusion from prescription.

Additionally, in Pichot v. Recorder of Mortgages, 2 McGloin 68 (La.App. Orl. Cir. 1884), suit was filed seeking a writ of mandamus to have erased an inscription for taxes for the year 1871. The tax was recorded on January 4, 1873, and suit was filed on March 21, 1883. It was the contention of plaintiff that the tax had prescribed by ten years, and it was the duty of the recorder to cancel the inscription. The state argued that taxes being a forced contribution, prescription does not apply and further, that prescription does not run against the state.

In concluding that Civil Code Art. 3369 was applicable the Court said:

“We have not in any manner touched upon the question of prescription as against the State. The lapsing of a mortgage for failure to reinscribe, is not, strictly speaking, a matter or question of prescription. The mortgage is not necessarily a part of the debt; it is only an accessory right. The personal obligation may stand, though the mortgage perish. The plaintiff in this case is a third person, and it does not result at all from our decision that the State has no further recourse against the original debtor. In other words, we are not called upon to decree prescription against this debt or force contribution, whatever it may be. We simply hold, that to maintain the necessary right of mortgage, certain formalities were necessary, and that these not having been complied with, the accessory right is perempted.” (Emphasis supplied).

We thus conclude as our brethren did years ago that there exists no constitutional prohibition of the application of LSA-C.C. art. 3369 as against the state. We know of no compelling reasons why the theory of peremption should not be applicable as against the state. To disallow the application of LSA-C.C. art. 3369 would cause disruption to the settled law and jurisprudence affecting title transfers in this state. If LSA-C.C. art. 3369 is not applicable, once a tax assessment is recorded, it would then forever attach to property the tax debtor then owned or in the future owned, regardless of the length of years transpiring. This then would necessitate a search of the mortgage records dating back to acquisition from the sovereign.

Therefore, for the above and foregoing reasons the judgment of the Trial Court is affirmed with the defendant-appellant to pay all costs as allowed by law.

AFFIRMED.

PONDER, Judge,

dissenting.

I dissent.

LSA-R.S. 9:5685 provides that:

“The recordation of all judgments in favor of the state against individuals in the principal amount of one thousand dollars or less, exclusive of interest, costs, penalties or attorney’s fees, shall be prescribed by the lapse of ten years from the date of recordation or rendition of such judgments. Added by Acts 1974, No. 386 § 1.”

If this were an assessment for less than $1,000.00, I would have no difficulty in deciding that it had prescribed and the inscription should be cancelled. In the same manner, the negative implication should be applicable — that is, tax assessments over $1,000.00 have not prescribed. I would therefore reverse.

Furthermore, the legislature’s use of the word prescribed strengthens my view, expressed below, that prescription, not per-emption, is involved.

At any rate, the passage of the act was a vain and useless gesture on the part of the legislature if peremption is applicable to all assessments of whatever amount.

The quotation from Succession of Pizzillo, supra, points out that under peremption lapse of the statutory period operates as a complete extinguishment of the right without possibility of interruption or suspension. Under LSA-C.C. Art. 3369, reinscription “shall preserve their effect for ten (10) years from the date of the timely renewal, . ” It is true that the limitation of interruption and suspension to an extension of 10 years from the date of timely renewal is not entirely consistent with the ordinary qualities of prescription, but I see no particular difficulty with considering Art. 3369 as being a prescriptive period with special attributes assigned by the legislature. The prohibition of the running of prescription against the state unless especially allowed by the constitution or statutes contained in both the 1921 and 1974 constitution would then be operative.

Picbot v. Recorder of Mortgages, cited in the majority opinion, to me is of doubtful validity. It speaks in terms of the lapsing of a mortgage for failure to reinscribe not being strictly speaking, a matter of prescription and of the accessory right being perempted. From the context I am unable to determine whether the term perempted is used with ordinary or legal connotations. Other cases holding that the time limitation of Art. 3369 is one of peremption have not been cited and I have been unable to find any.

Even if it be peremption I do not believe that it should be allowed to run against the state.

The word “prescription” in the constitutional provisions above cited, I believe to have been used in its broader concept, covering both prescription in its limited legal sense and peremption.

Furthermore, in the absence of a clear requirement of constitution, statute or jurisprudence, I am reluctant to decide that peremption runs against the state, the source of the legal rights of prescription and peremption.

The argument that if Art. 3369 does not provide a period of peremption some difficulty will arise is recognized, but, I believe, has been magnified. We are discussing tax assessments not tax liens. The fact that the only case found on this problem was decided in 1884 does not lead me to believe that the disruption pictured by the appellee and mentioned by the majority would inevitably result.

Furthermore, the running of prescription allowed on all judgments of $1,000.00 or less under LSA-R.S. 9:5685 would make the existence of a tax assessment even rarer. At any rate, if the problem be anywhere as dire as pictured, the legislature is the more appropriate source of relief.

I therefore respectfully dissent.

      . The Department of Revenue, including the office of Collector of Revenue was abolished and the powers, duties, functions and responsibilities were transferred to the Secretary of and the Department of Revenue and Taxation. LSA-R.S. 36:451 et seq.

      . Art. 19, § 16
      “Prescription shall not run against the State in any civil matter, unless otherwise provided in this Constitution or expressly by law.”

      . Art. 12, § 13
      “Prescription shall not run against the state in any civil matter, unless otherwise provided in this constitution or expressly by law.”


author: EDWARDS, Judge. PONDER, Judge,

text:
    STAR ELECTRIC SUPPLY, INC. v. The FIDELITY AND DEPOSIT COMPANY OF MARYLAND et al.
    No. 11696.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Rehearing Denied Feb. 13, 1978.
    Writ Refused March 31, 1978.
    Walton Barnes, Baton Rouge, of counsel for plaintiff-appellee Star Electric Supply, Inc.
    Tom Matheny, Hammond, of counsel for defendant-appellant The Fidelity and Deposit Co. of Maryland, et al.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

This is a suit ex contractu by Star Electric Supply, Inc., against the defendants, Mel Thurman, d/b/a Thurman Electric Supply, Inc., Fidelity and Deposit Company, Inc., Aetna Casualty and Surety Company, and the State of Louisiana through the State Board of Education.

The trial judge stated the following pertinent facts in his Written Reasons for Judgment:

“The case is before the court on the following stipulation of facts:
1. Charles Carter and Company, Inc., was the prime contractor to the State for the construction of a classroom building.
2. Carter sub-contracted the electrial portion of the contract to Thurman Electric Company.
3. Thurman purchased a portion of the materials required for his performance from Star Electric Supply, Inc.
4. All of the materials ordered from Star were delivered and were satisfactory.
5. The outstanding balance for the materials supplied by Star Electric, in the amount of $44,702.28 was due and payable, the amount of $43,734.88 as of December 28, 1970, and the amount of $967.40 as of January 27, 1971. Additionally, the sum of $1,575.47 representing Louisiana sales taxes on the amount of the materials was due.
6. Thurman refused to pay to Star the amount due but tendered, instead, three checks totalling $44,702.28 payable jointly to Star and another company.
7. Thurman paid to Star by check dated April 19, 1971, the sum of $1,575.47, the amount of the sales tax due.
8. On June 21, 1971, Thurman delivered three (3) checks to the Clerk of Court, Tangipahoa Parish, totalling $44,702.28, all payable jointly to Star Electric Supply, Inc., and Stagecraft Industries, Inc.
9. On August 19, 1975, Thurman delivered a cashier’s check to the Clerk of Court, Tangipahoa Parish, in the sum of $44,702.28, payable jointly to T. M. Thurman and Estelle Stire, the Clerk of Court for Tangipahoa Parish, after having been properly endorsed by T. M. Thurman; at that time the Clerk of Court for Tangipahoa Parish returned to Thurman the three (3) checks mentioned in Number 8 above.
10. The funds delivered to the Clerk of Court as described in Number 9 above had been held by Thurman in the Matheny-Thurman Escrow Account Number 072 5145 with the First Guaranty Bank on behalf of Mr. Thurman; he and his attorney received the interest on the deposit, being partially indicated by the second cashier check in evidence as JT-6 in the amount of $1,189.92 payable to T. M. Thurman and Pittman and Matheny.
11. From the August 19, 1975, deposit by Thurman to the Tangipahoa Clerk of Court, Star finally received the balance due it, minus the costs of court in the Tangipahoa concursus proceeding, the disbursement being $43,812.91. The costs withheld were in the amount of $889.37.
“Thurman has at all times in this matter admitted that the sum of $44,702.28 (plus Louisiana sales taxes in the amount of $1,575.47) was due to Star under the subcontract. The concursus proceeding noted in paragraph 8 above was instituted by Thurman after three liens were filed: (1) by Star for $46,277.75, for unpaid materials furnished; (2) by Stagecraft Industries, Inc., for $44,894.00, for materials sold by it to Star; and (3) by Edwin F. Guth Company for $12,053.05, on its unpaid purchase order with Star.
“In the trial court, judgment was rendered in favor of Stagecraft awarding it the sum of $44,702.28 deposited in the registry of the court. All costs of court were to be deducted from the deposit, and Stagecraft was given judgment against Star for the amount of the costs. From this judgment, Thurman, Star and Stagecraft appealed. Guth did not appeal and its claim has not been a factor since that time.
“The First Circuit Court of Appeal reversed the trial court and rendered judgment in favor of Star, awarding it the sum of money on deposit in the registry of the court, less court costs. Thurman v. Star Electric Supply, Inc., 294 So.2d 255.
“The Supreme Court affirmed the judgment of the Court of Appeal at 307 So.2d 287.
“The present action seeks the full amount of Star’s claim against Thurman, $46,277.75, subject to credits of $1,575.47 received on April 19,1971, and $43,812.91, received on September 10,1975, leaving a net due of $889.37, which represents the costs of the concursus proceeding. Star also seeks damages for Thurman’s breach of contract and statutory attorney’s fees of ten per cent. * * * ”
Based on these facts, the trial court held:
I.
“The plaintiff is not entitled to damages for breach of contract. By invoking the coneursus, Thurman was merely taking advantage of available legal procedures to insure that the proper claimant was paid. Coneursus is a procedure wherein conflicting claims may be adjudicated without multiple litigation with a single judgment as to the holder of the money and the claimants.
“The stipulation shows that Thurman paid all that he owed under the contract. Because he exercised his right to invoke a coneursus proceeding, court costs were deducted from the amount deposited, which is now the balance claimed by Star. The deduction of costs was validly made pursuant to Article 4659 of the Code of Civil Procedure. The Court of Appeal awarded Star the amount of money on deposit, less costs. This court will not attempt to modify that award.
“The plaintiff is also not entitled to interest on the amount due under the contract. As in the case of Waguespack Pratt, Inc. v. DeSalvo [La.App.], 225 So.2d 269, no interest should be allowed on the amount deposited in the coneursus for the reason that the amount was in dispute and Thurman could not safely pay any of the claimants.
II.
“Plaintiff is entitled to ten per cent attorney’s fees under R.S. 38:2246. It appears from the record that Star made amicable demand for payment and later recovered the full amount dué it through the coneursus proceeding. The ten per cent is to be computed on the total amount recovered by Star.
III.
“The plaintiff is not entitled to recover the interest Thurman earned during the pendency of the coneursus proceeding while the funds in question were on deposit in an interest-bearing account and checks representing the amount in dispute were on deposit in the registry of the court. Star has not shown any damage to itself or impoverishment suffered as a result of Thurman’s actions. If the money itself had been deposited in the registry of the court instead of the checks, Star would not have earned any interest. The court does not reach the question as to whether Thurman’s procedure was proper. * * * ”

Judgment was rendered in favor of Star for the sum of $4,627.77, representing the statutory ten percent attorney’s fees on the full amount of its claim. From this judgment, defendants appealed, contending that the trial court erred in awarding attorney’s fees under LSA-R.S. 38:2246. Star answered the appeal and renewed its claims for the balance due on the materials, interest, damages for breach of contract and unjust enrichment.

Defendants contend, relying on various estoppel arguments, that Star is not entitled to recover attorney’s fees under LSA-R.S. 38:2246 in the present suit.

LSA-R.S. 38:2246, which is part of the laws regulating Public Contracts provides:

“After amicable demand for payment has been made on the principal and surety and thirty days has elapsed without payment being made, any claimant recovering the full amount of his recorded or sworn claim whether by coneursus proceeding or separate suit, shall be allowed ten percent attorney’s fees which shall be taxed in the judgment on the amount recovered.” (Emphasis supplied)

The record indicates that Star filed a reconventional demand in the prior concur-sus proceeding seeking, inter alia, attorney’s fees. Star’s demand was denied by the trial court’s judgment. No mention of Star’s claim for attorney’s fees is made in either of the appellate court opinions reversing the trial court’s judgment. Consequently, it is impossible for us to determine whether Star’s claim for attorney’s fees was determined on appeal in the coneursus proceeding.

However, we find that the clear language of LSA-R.S. 38:2246 requires that the statutory attorney’s fees must be taxed in the same judgment which awards a claimant the full amount of his claim. Consequently, attorney’s fees under LSA-R.S. 38:2246, if they were appropriate, should have been awarded in the concursus proceeding and are not recoverable in the instant suit.

The trial court’s award of attorney’s fees was therefore error.

Star answered the appeal, urging that the trial court erred in denying recovery for the balance due on the materials, interest, and damages for breach of contract. Star also renewed its demands for unjust enrichment against Thurman.

We find no error in any of the particulars enumerated by Star.

The balance due alleged by Star is in reality the court costs taxed in the concur-sus proceeding. The judgment in this con-cursus proceeding is final. Accordingly, we find that Star is estopped to relitigate the issue of costs which was raised or should have been raised on appeal in the concursus proceeding. Cf. Grain Dealers Mutual Insurance Co. v. Hardware Dealers Mutual Fire Insurance Co., 196 So.2d 650 (La.App. 1st Cir. 1967).

We also find that the trial court correctly denied recovery of interest on the funds involved in the concursus proceeding. See Waugespack Pratt, Inc. v. DeSalvo, 225 So.2d 269 (La.App. 4th Cir. 1969).

Additionally, we find that Star has not shown that the trial court erred in refusing damages for the alleged breach of contract.

Finally, we find that Star failed to prove its claim for unjust enrichment. Star has not shown that it was impoverished in any way as a result of Thurman’s depositing three checks, rather than money, with the Clerk of Court in the concursus proceeding.

For the above reasons, the judgment appealed is reversed insofar as it awarded attorney’s fees and is affirmed in all other respects at plaintiff-appellee’s costs.

REVERSED IN PART AND AFFIRMED IN PART.

PONDER, Judge,

concurring.

In the concursus proceeding “T. M. Thurman, d/b/a Thurman Electric Company v. Star Electric Supply Inc., et al.”, Star filed an “Answer to Petition for Concursus, Re-conventional and Third Party Demands,” alleging it was due a money judgment plus penalties, attorney’s fee and interest on all sums and, since proper demand had been made on the sureties, it was entitled to statutory penalties and reasonable attorney’s fee. The prayer included a request for judgment against Fidelity and Deposit Company of Maryland, Aetna Casualty and Surety Company, Charles Carter & Company, Inc., Mel Thurman, d/b/a Thurman Electric Company, and the State of Louisiana through the Department of Education for the demanded sum plus statutory penalties, attorney’s fee, interest and costs.

The judgment in that suit denied Star’s claim for the deposit and included the following:

“It Is Further Ordered, Adjudged and Decreed that the Third Party claim of Star Electric Supply Inc. against the Fidelity and Deposit Company of Maryland, Aetna Casualty and Surety Company and Charles Carter and Company, Inc. is denied.
“It is Further Ordered, Adjudged and Decreed that the Reconventional Demand filed by Star Electric Supply, Inc. against T. M. Thurman d/b/a Thurman Electric Company and Southeastern Louisiana University through the State Board of Education of the State of Louisiana is denied.”

The decisions of the Court of Appeal and the Supreme Court gave Star judgment for the deposited amount less accrued court costs but said nothing in regard to the penalties, attorney’s fees and interest.

In the present suit Star asked for judgment against the same parties for the sum sued for “plus penalties and a reasonable attorney’s fee to be fixed and awarded by this Honorable Court in accordance with law together with interest on all sums at the legal rate from date of judicial demand until paid and for all costs of these proceedings”. The pretrial order showed that the plaintiff claimed there remained a portion of the original price due and owing, and that plaintiff was seeking attorney’s fees, interest and all costs.

LSA-C.C. Art. 2286 reads as follows:

“The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”

In a so-called “Peremptory Exception of No Cause of Action” filed by Thurman, he alleges that “the instant suit is founded on the same cause of action, the same issues, and is between the same parties. . . . ”

The courts should look at the substance of a pleading rather than at the title. Cobb v. Coleman Oldsmobile, Inc., 346 So.2d 831 (La.App. 1st Cir. 1977).

I believe that the allegations made the pleading an exception of res judicata and that the requisites for that plea have been met. LSA-C.C. Art. 2286, supra; Comment, The Louisiana Concept of Res Judica-ta, 34 La.L.R. 763.

I would therefore maintain the exception of res judicata and dismiss the suit. However, the majority reaches this same conclusion through another route. I therefore concur in the result.