author: SCHOTT, Judge. BEER, Judge,

text:
    Mrs. Patricia Lee Sherwood, widow of Edmond P. SNELL, et al. v. Mrs. Mercedes STEIN, a/k/a Mrs. Mercedes Stein Miorana, et al. Mrs. Patricia Lee Sherwood, widow of Edmond P. SNELL v. BENEFICIAL FIRE AND CASUALTY INSURANCE COMPANY et al.
    No. 7664.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1977.
    Rehearings Denied May 17, 1977.

      Wilmer G. Hinrichs, New Orleans, for plaintiff s-appellants.
    Bienvenu, Foster, Ryan & O’Bannon, Ernest L. O’Bannon, New Orleans, for defendants-appellees Mrs. Stein & New York Fire.
    Dillon & Williams, Gerard M. Dillon, New Orleans, for defendant-appellee Fireman’s Fund.
    Christovich & Kearney, William K. Chris-tovich, New Orleans, for defendants-appel-lees U.S. Electrical Motors and Beneficial Fire and Casualty.
    Before SAMUEL, SCHOTT and BEER, JJ.
   SCHOTT, Judge.

These consolidated cases arose out of an automobile accident which occurred in December, 1964, at the intersection of Veterans Highway and Division Street in Jefferson Parish. Plaintiff’s husband, Edmond P. Snell, and her father, who was a passenger in the automobile driven by Snell, were both killed in the accident.

Plaintiff brought suit for the death of her husband against Mrs. Mercedes Stein, the driver of the other automobile involved in the accident, her insurer and the Parish of Jefferson’s insurer. She brought suit for the death of her father against the same defendants as well as Snell’s insurer. From a judgment dismissing her suit for the death of her husband, and awarding her only $7500 for the death of her father against Mrs. Stein, her insurer and Snell’s insurer, plaintiff has appealed. She takes issue with the trial court’s dismissal of her suit for the death of her husband against the Parish of Jefferson’s insurer and the quantum of damages awarded for the death of her father.

Snell had been proceeding south on Division Street and came to a stop at the intersection with the Veterans Highway in obedience to a red light. While the light was red he began to cross the westbound side of Veterans Highway and his automobile was struck broadside in the middle lane of the Veterans Highway by the automobile driven by Mrs. Stein. Plaintiff contends that the proximate cause of the accident was not the negligence of her husband but that of Parish officials Who designed a misleading traffic signal plan for the intersection.

Veterans Highway, at this point, runs east-west and consists of 36 feet wide roadways divided into three lanes on each side of a median approximately 130 feet wide. Division Street, consisting of two lanes of traffic, intersects at right angles. Near the intersection with Division a stacking lane is cut into the neutral ground for westbound Veterans Highway traffic in order to facilitate left turns. The semaphore signal system consists of a signal light mounted on a pole located in the northwest corner of the Veterans Highway median east of Division Street, immediately adjacent to the westbound stacking lane of Veterans. This light, hereafter referred to as No. 1, faced southbound traffic on Division Street and westbound traffic on Veterans. Suspended from a wire in the middle westbound lane of Veterans and the southbound side of Division, and facing westbound and southbound traffic, was light No. 3. On the northeast corner of the median west of Division was a signal light mounted on a pole facing westbound traffic in the stacking lane of Veterans Highway (No. 4). Finally, there were two signal lights (Nos. 5 and 6) suspended on a wire on the eastbound side of the Veterans Highway south of the median and hanging across Division Street. These signals faced southbound traffic on Division Street.

In the regular cycle for these various signal lights, when lights 1, 3, 5 and 6 displayed red lights for southbound traffic on Division Street, light 3 displayed a green light for traffic on the Veterans Highway. However, the signals went into a special phase, activated when a westbound vehicle entered the stacking lane on Veterans Highway, wherein light 4, normally displaying a red light, changed to a green arrow pointing left and permitting such westbound vehicles to make a left turn across the median and head south across the eastbound lanes of Veterans. At this point signals 5 and 6 turned green to permit that left turning. In the meantime, lights 1 and 3 remained red for southbound traffic on Division Street, and light 3 remained green for westbound traffic on Veterans.

Plaintiff’s theory is that Snell stopped for the red light on signal 3. While stopped the left turning scheme was activated with the result that lights 5 and 6 turned green, and because of Snell’s position under light 3, the dominant signals as far as he was concerned were lights 5 and 6 so that it was a natural, normal response on Snell’s part to cross over, notwithstanding that light 3 was green for the Veterans Highway with the result that Mrs. Stein’s automobile struck Snell’s.

The trial judge found that Snell proceeded against the red light constituting negligence on his part. He found further that plaintiff did not establish that the installation of the signals deviated from acceptable standards governing traffic engineering principles. He also found that even if the Parish had designed and installed a traffic controlled system at the intersection which was confusing and dangerous the plaintiff failed to establish that this was a proximate or a contributing cause of the accident.

The record supports these conclusions, so that there is no basis on which to reverse the trial court.

In the first place, the key witness was a motorist who stopped behind Snell on Division Street and testified that light 3 was red and Snell entered the intersection in the face of that red light. This witness did not testify that he saw lights 5 and 6 turn green before Snell crossed over. The only way these lights could turn green was with the left-turning scheme being activated by a left-turning motorist from Veterans Highway and there is no evidence in the record to show that this happened. In order for plaintiff’s theory to have any validity or application to this accident it would be necessary to engage in speculation as to lights 5 and 6 turning green. Secondly, there was a large sign on the neutral ground of Veterans Highway facing Snell to the right of Division Street which commanded him to move only when the light nearest him was green. He had stopped, or he should have stopped, at a time when he knew or should have known that light 3 was nearest him, so that his moving across the highway in disregard of light 3 constituted a violation on his part regardless of what lights 5 or 6 might have shown. Third, whether he could see light 3 with ease or not light 1 on the neutral ground to his left was red, even assuming that 5 and 6 were green. It was, or should have been, obvious to him that light 1 was nearer to him than lights 5 and 6. By moving across the intersection he violated the command of the sign to his right. Fourth, for plaintiff to prevail she not only had to prove some negligence on the part of the Parish but she also had to exculpate her husband from contributory negligence in moving across the intersection in face of lights 1 and 3 which were both red. Fifth, Snell was familiar with this intersection, having traveled this route many times. Even if the signal plan were confusing to someone unfamiliar with it, it should not have been confusing to Snell. We have concluded as did the trial judge that plaintiff did not carry her burden of proof to establish that negligence on the part of the Parish and in any event she is barred from recovery by the contributory negligence of her husband.

As to the quantum of damages awarded for the death of her father, we cannot say that $7500 to this 33-year old plaintiff for the loss of her 59-year old father constitutes an abuse of the much discretion afforded the trial judge in awards for general damages. See Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1977).

Accordingly, the judgment appealed from is affirmed at plaintiff’s cost.

AFFIRMED.

BEER, J., concurs with written reasons.

BEER, Judge,

concurring.

Although I cannot conclude that the trial judge manifestly erred in his factual determinations, I am of the view that the traffic signal plan at this intersection was so confusing that Mr. Snell — in spite of his alleged familiarity with it — was misled.

Accordingly, I respectfully concur.


source: Caselaw Access Project

author: CHIASSON, Judge.

license: Public Domain

text:
    MORGAN CITY BANK & TRUST COMPANY v. JAMBOIS O & M MACHINE SHOP, INC., et al.
    No. 11208.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Rehearing Denied May 9, 1977.
    James R. McClelland, Ay cock, Horne, Caldwell, Coleman & Duncan, Franklin, for plaintiffs.
    Luana Thiel Jambois, in pro. per.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal of a judgment of the District Court granting summary judgment in favor of the Morgan City Bank & Trust Company, plaintiff-appellee, and against Luana Thiel Jambois, defendant-appellant, reviving a money judgment against the appellant.

Article 966 of the Code of Civil Procedure provides in part:

“The (summary) judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

Article 2031 of the Code of Civil Procedure provides in part:

“A judgment shall be rendered in such a proceeding reviving the original judgment, unless the defendant shows good cause why it should not be revived.”

Article 2002 of the Code of Civil Procedure provides:

“A final judgment shall be annulled if it is rendered:
“(1) Against an incompetent person not represented as required by law;
“(2) Against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken; or
“(3) By a court which does not have jurisdiction over the subject matter of the suit.
“Except as otherwise provided in Article 2003, an action to annul a judgment on these grounds may be brought at any time.”

The appellant has filed affidavits which state that in the original action upon which the judgment sought to be revived is based, she was not served with process as required by law and did not put in a general appearance.

While the record contains prima facie evidence of service, a valid return showing domiciliary service, such evidence may be rebutted by clear and convincing proof. Hood Motor Company, Inc. v. Lawrence, La.App., 334 So.2d 460 (1st Cir. 1976). Therefore, there is a genuine issue as to a material fact, that is, whether or not there was a valid service of process.

The record also contains evidence, an answer filed on behalf of the appellant, that the appellant made a general appearance in the original action. The answer was filed by Charles N. Wooten who was allegedly the appellant’s attorney. The appellant has filed an affidavit which states that Mr. Wooten was not her personal attorney and was not authorized to represent her in that suit. Therefore, there exists a genuine issue as to a material fact, that is, whether or not Mr. Wooten was appellant’s attorney and could make a general appearance for her.

The appellant has alleged facts which, if true, would establish that the judgment sought to be revived is an absolute nullity and therefore subject to collateral attack. Because there are issues as to material facts, a summary judgment is not appropriate in this case.

For the above reasons, the judgment of the District Court is reversed and the case remanded for further proceedings with instructions that the District Court order the Clerk of the Sixteenth Judicial District Court to cancel the inscription on the public record reviving the judgment of April 11, 1969. The cost of this appeal to be paid by appellee, all other costs to await the final disposition of the case.

REVERSED AND REMANDED.

ON APPLICATION FOR REHEARING

Plaintiff questions the propriety of our consideration of defendant’s affidavits, since the record does not reveal that they were served on it. We note that the affidavits were considered by the trial judge without any objection from plaintiff, and it is now too late to raise that issue. REHEARING DENIED.

      . The return showing personal service on the appellant on April 13, 1966 is defective on its face in that it does not state the place of service as required by C.C.P. Art. 1292.


author: COVINGTON, Judge:

text:
    George M. PAULAT v. Jasper PIRELLO.
    No. 11191.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Rehearing Denied May 9, 1977.
    Writ Granted June 30, 1977.

      Jimmie R. Major and Clifton 0. Bingham, Jr., Baton Rouge, of counsel for plaintiff appellee.
    Leon Gary, Baton Rouge, of counsel for defendant appellant.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge:

The plaintiff, George M. Paulat, has brought suit on two promissory notes against the defendant, Jasper Pirello, seeking a judgment for $13,975.35, together with annual interest at 8%, and 10% of both principal and interest as attorney’s fees, and all costs. The defendant filed an answer and reconventional demand in which he disputed the balance due, averred that he had offered the actual balance owed, therefore no attorney’s fees are owed, asserted the defense of usury, and prayed for judgment in the sum of $19,800.00 as the return of usurious interest collected since 1964.

After trial, the trial court rejected the defendant’s contention that the transactions were usurious, and rendered judgment on December 9, 1975, in favor of the plaintiff in the sum of $6,683.51, plus 8% interest thereon from maturity, or November 15, 1972, until paid, plus an additional 10% on both principal and interest as attorney’s fees; and for $7,291.84, plus 8% interest thereon from maturity, or July 28, 1972, until paid, less a credit of $16.20, plus an additional 10% on both principal and interest as attorney’s fees; the defendant was cast for all costs. The defendant has appealed devolutively from this judgment. We amend and affirm.

The evidence shows that in November, 1964, the defendant borrowed from the plaintiff the sum of $10,000.00, represented by a promissory note due six months after date. The note was executed for the amount of $10,900.00, it being agreed that $900.00 was capitalized interest. Thereafter, at approximately six-month intervals, the defendant paid $900.00, and executed new six-month’s notes for $10,900.00. In August, 1968, the entire indebtedness was paid, and the collateral mortgage securing the indebtedness was cancelled. This transaction was a separate, independent transaction from the two promissory notes which are the subject of the present lawsuit, but was part of a series of dealings between the parties.

On October 1, 1968, the defendant executed another collateral mortgage. Then, on November 15, 1968, he signed a promissory note for $10,900.00, representing a loan of $10,000.00. On May 26,1969, the defendant paid $900.00, and executed a new note for $10,900.00, which was dated May 15, 1969, to coincide with the due date of the previous loan, and due on November 15, 1969, which note is one of the notes sued on herein. Thereafter, at approximately six-month intervals, payments of $900.00 were made, but no new notes were executed.

On January 28, 1969, Pirello executed an additional collateral mortgage. On July 28, 1969, he borrowed an additional $10,000.00 from the plaintiff and signed a promissory note for $10,900.00 due in six months, and which is the second note sued on herein. At approximately six-months’ intervals thereafter the defendant made $900.00 payments, which the plaintiff credited to interest on his accounting records. No new notes were executed by the defendant.

The trial court found, according to the copies of checks stipulated into evidence, that Pirello had made the following payments:

May 26, 1969 $900.00
September 5, 1S6S 900.00
December 5, 1969 900.00
February 5, 1969 900.00
June 5, 1970 900.00
August 24, 1970 900.00
December, 1970 900.00
February 3, 1971 900.00
June 5, 1971 900.00
September 5, 1971 900.00
November 29, 1971 900.00
February 8, 1972 16.20

The trial court also found that Paulat admitted receiving the following payments: Note dated May 15, 1969:

June (due November) 15, 1969 $900.00
May 15, 1970 900.00
November 15, 1970 900.00
May 15, 1971 900.00
November 15, 1971 900.00
May 15, 1972 900.00
November 15, 1972 900.00
Note dated July 28, 1969:
J anuary 28, 1970 $900.00
July 28 1970 900.00
January 28, 1971 900.00
July 28, 1971 900.00
January 28, 1972 900.00
July 28, 1972 900.00

As can be seen, the dates are inconsistent, but, as noted by the trial court, this inconsistency is explained by the fact that Paulat simply credited payments received on the due date rather than on the date the payments were actually received. The trial court also noted that the defendant was credited with more payments than he proved.

The defendant-appellant’s primary defense is usury, based on: 1) The plaintiff’s failure to obtain renewal notes at each extension transformed the transaction into a usurious one by continuing to collect the interest at the annualized rate of 18%; 2) a promissory note which includes both capitalized interest and interest at the rate of 8% per annum from maturity results in collecting duplicate interest on the maturity date so as to constitute a usurious transaction; and 3) the taking of interest upon interest is usurious.

On appeal, Paulat argues that the entire transaction between him and Pirello was made usurious by the failure to obtain the aforesaid renewal notes and by Paulat’s entering the $900.00 payments as interest on his account records.

The record reflects that both parties intended that the notes be short-term, single-payment notes designed to yield 18% annual capitalized interest, and bear 8% interest from maturity. It was also intended that in the event the loan was not paid at the end of the six-month term, the interest would be paid and a new note issued. The record also shows that new notes were not executed. However, in each instance, both parties acted as though a new note was issued, Pirello continued to pay the $900.00 as interest, and Paulat continued to treat the payments as interest.

The record establishes that the defendant has borrowed the sum of $20,000.00 from the plaintiff on two occasions. He has had the use of that money over an extended period of time. He does not deny owing the amount borrowed, less certain credits. However, he takes the position that because of the way the payments were credited, and because a new note was not issued at each extension, laws prohibiting usury relieve him of any obligation of paying all interest, i.e., paying for the use of the borrowed money.

Defendant’s position is without merit. There was no contract for interest in excess of the lawful rate of interest so as to cause a forfeiture of all interest as required by LSA-R.S. 9:3501. The contracts for interest in the instant case, the two notes sued upon, on their face show a capitalized interest and a lawful interest from maturity. They do not violate our usury laws.

The penalty inflicted upon the lender is one, which the plaintiff here did assume, of having to reallocate the payments made on the basis of 8% simple interest from date as required by the notes sued upon.

The law permits the recovery of capitalized interest included within the face amount of a note, provided such obligation does not bear annual interest at more than 8% after maturity until paid. LSA-C.C. art. 2924.

LSA-C.C. art. 2924 provides, in part, as follows:

“The owner of any promissory note, bond or other written evidence of debt for the payment of money to order of bearer or transferable by assignment shall have the right to collect the whole amount of such promissory note, bond or other written evidence of debt for the payment of money, notwithstanding such promissory note, bond or other written evidence of debt for the payment of money may include a greater rate of interest or discount than eight per cent per annum; provided such obligation shall not bear more than eight per cent per annum after maturity until paid . . . .”

Almost identical language has been used in this article since its first enactment by Act 161 of 1856. The purpose of this article was to authorize the “capitalizing of interest.”

In General Securities Co., Inc. v. Jumonville, 216 La. 681, 44 So.2d 702 (1950), the Supreme Court was called upon to decide whether or not a note which had been discounted at 11% of its face value and which provided for 8% interest from maturity was usurious. The court held that the note came within the exception of article 2924, and that since it did not bear interest at more than 8% after maturity it did not carry usurious interest.

Appellee relies primarily upon three cases, i.e., Thrift Funds of Baton Rouge, Inc. v. Jones, 274 So.2d 150 (La.1973), Grunewald v. Bartholomew, 269 So.2d 274 (La.App. 4 Cir. 1974), and Rosenthal and Rosenthal v. Houma Town House Apartments, Inc., et al., 238 So.2d 9 (La.App. 1 Cir. 1970). These are distinguishable on factual bases.

In Thrift Funds, the court found that the note carried usurious interest although the note bore interest at 8% per annum from maturity, because the loan agreement also provided “default charges, late charges and additional fees.” Late payments were claimed on 23 out of 28 monthly installments; consequently, the court determined that the total of the capitalized interest, the interest at 8%, the late payment charges, default charges, etc., constituted interest on interest.

In Grünewald, the note in question was made payable to order of bearer on demand, with interest at the rate of 8% per annum from maturity until paid. No demand was made on the maker for payment until more than one year after date and the court found, contrary to plaintiff’s testimony, that there had been no agreement between the parties to a one-year maturity of the note. However, the court correctly stated the general rule that:

“Under LSA-C.C. Art. 2924, which provides inter alia that the conventional interest involved herein cannot exceed 8% per annum, our jurisprudence consistently and uniformly has been to the effect that the holder of a promissory note may collect its face value despite the fact that a portion of the face amount represents capitalized interest in excess of the 8% per annum legal rate, provided the instrument does not additionally call for more than 8% annual interest after maturity; under such circumstances, even if the capitalized interest, as annualized, represents more than 8% per annum, the note is nonetheless not usurious.” (footnote omitted)

And further that:

“Usury is determinable from the face of the instrument, from the time that interest is due on its face and not from the time when payment of interest may be demanded.”

The law has been correctly stated in Grunewald v. Bartholomew, supra, that “usury is determinable from the face of the instrument.” See also 91 C.J.S. verbo Usury, § 61 p. 642:

“A contract not tainted with usury in its inception will not be affected by subsequent usurious transactions in connection therewith, such as payments on account of interest in excess of the legal rate, or contracts to make such payments, although such illegal payments or contracts to pay may well be usurious and void or unenforceable in themselves.”

The appellant cites Rosenthal and Rosenthal, Inc. v. Houma Town House Apartments, Inc., supra. It is inapposite. In that case, the loan agreement provided for 36 monthly installments, plus interest at the rate of 12% per annum from date until the maturity of each installment, and additionally, for interest at the rate of 2% per month from maturity of each installment until paid. The court held that the loan agreement provided for more than 8% interest from maturity and was thus usurious.

Under the provisions of LSA-C.C. art. 2924, where interest in excess of the lawful maximum rate is capitalized into the note, such act presents an exception to the general rules against usury. See International Harvester Credit Corporation v. McGill, 297 So.2d 272 (La.App. 3 Cir. 1974), writ den. 300 So.2d 841.

We have reviewed the record in this case, and agree with the trial court’s finding that the notes are not usurious on their faces, and that proper reallocation of the payments to principal and interest was demanded and made prior to the lender’s filing of the instant action.

It was clearly the intention of the parties that the notes were short-term, single-payment notes calculated to yield 18% per an-num capitalized interest and bear 8% interest from maturity until paid.

It was also understood by the parties that in the event the loan was not liquidated at the end of the six-month term, the interest would be paid, the original note cancelled and a new note issued as had been done in the past by the parties. The record is also clear that this was not done. The reason for this was stated by Mr. Paulat:

“We had discussed it with him numerous times and he wasn’t ready to pay off the whole obligation.”
“We were suppose to do that each time, but I was unable to get Mr. Pirello to do it, but I thought we more or less had a verbal understanding that — I would rather be paid, but he indicated that he was going to pay. He had to pay the whole thing. He had various times. He was going to pay before the six month period, but it never did materialize. So it ended up as an extension.”

And, in answer to the Trial Judge’s question:

“Did you ask him to make a new hand note?”

Mr. Paulat replied:

“I think we both understood and Mr. Major explained that in the office to us, that in the event it was extended to do it legally right, it should be renewed each time. Well, I neglected to do it. I asked him to do it, but he failed to come into my office, which was in my home, and most of my contact with him after that was on the telephone or I would go to his office occasionally. And he would mail me checks or he would send his son over there with checks. So he wasn’t there to — and I think we had a — we both understood exactly what the interest was.”

Pirello testified as follows:

“Q. What was your understanding with Mr. Paulat as to the term of this particular borrowing? Did you have any arrangements as to how long the loan term would run?
A. Well, we made — -in the beginning we made a six month note and interest was $900.00 per six months. And that I would be given the opportunity, if need be, to renew it. And all we did was send in the $900.00 or had it by mail or sent it out to him. I don’t think or recall that there was any definite understanding as to time of payment. Of course it was assumed that it was a six month note. Every six months I should have paid something on the principal or — paid the interest or possibly something on the principal, but I was never in a position to do that." (Emphasis added)

Paulat testified about his accounting practices as follows:

“Q. Now, in connection with your own internal procedure for recording payments in handling this debt, I also understand from you that these notes were retained in your residence. You kept them at home; is that not right?
A. Yes sir, I did.
Q. As opposed to generally placing an installment obligation with the Fidelity Bank for collection.
A. That’s right because this was suppose to be one short term transaction would finalize it. So due to that reason I kept it home. In fact it was the only ones I ever kept there.”

And with reference to the ledger sheets and a discrepancy between the dates on the interest checks and dates where payments were credited, Mr. Paulat testified as follows:

“Q. Now, does the date of payments reflected on your ledger sheets on E-4 and E-5 indicate the correct dates that the payments were made?
A. No, sir. Like I said before, in virtually all instances it was — I got a postdated check or — I got nothing unless I reminded him of it most of the time and then it took, a lot of times, considerable time before I could get those checks cashed. But, just to simplify the record, I credited it at the time it was due. It may be one, two or more months later than the time it was due. That was more the rule, the way it was.”

We hold that there was no usurious interest exacted by virtue of a contractual arrangement within the meaning of LSA-R.S. 9:3501 so as to require the forfeiture of all interest under the contract. The notes in the instant suit, not carrying usurious interest, do not inflict forfeiture of interest on the lender; he need only reallocate the payments properly to principal and interest as the appellee had done prior to filing suit.

The next argument of the appellant, that usury has been proved from the use of the word “from” rather than the word “after” on the note in the fixing of interest at 8% from maturity, is without merit. This same contention was made in the case of Williams v. Alphonse Mortgage Co., 144 So.2d 600 (La.App. 4 Cir. 1962), and decided adversely to appellant’s position.

In Williams, the court observed:

“Nor do we find any merit in the distinction attempted to be drawn between interest payable ‘from maturity’ and interest payable ‘after maturity’. Appellant contends that a distinction could result in the imposition of interest for one additional day. The words ‘from’ and ‘after,’ as [they] relate to the payment of interest, appear, thus, to be synonymous.”

We agree with the Williams court. The distinction sought to be made between “from” and “after”, while ingenious, may not be entirely ingenuous, and has no place in this case. The words, in the sense of article 2924 of the Civil Code, are synonymous.

We now turn to the question of the payments of $16.20 and $12.90. Although the checks have the notations of being the interest on $900.00 for a few days, this can not be made the basis of a claim for usury. There is no merit in the defendant’s contention that these payments are in violation of LSA-C.C. art. 1939, providing that “Interest upon interest cannot be recovered .” The evidence establishes that Paulat simply failed to credit these two payments correctly to Pirello due to “the creditor’s accounting method of rudimentary quality,” as the trial court found. The trial court’s judgment is amended to give Pirello credit for the additional payment of $12.90.

For these reasons, the judgment of the trial court is amended and affirmed at appellant’s costs.

AMENDED AND AFFIRMED.

      . It is undisputed that an additional payment, in the amount of $12.90, was made by the defendant. This was proved by a joint offering and acknowledged in the plaintiffs testimony. However, through evident inadvertence, the trial court failed to include it in the judgment.

      . This should read 1970.

      . See International Harvester Credit Corporation v. McGill, 297 So.2d 272 (La.App. 3 Cir. 1974), writ den. La., 300 So.2d 841.


author: FORET, Judge. PER CURIAM.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. Louis EUBANKS, Defendant-Appellee.
    No. 5850.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearing Denied May 17, 1977.

      Johnie E. Branch, Jr., D. Ross Banister, William W. Irwin, Jr., Jerry F. Davis by Johnie E. Branch, Jr., Baton Rouge, for plaintiff-appellant.
    Thomas & Dunahoe by Gerard F. Thomas, Jr., Natchitoches, for defendant-appel-lee.
    Before HOOD, FORET and HEARD, JJ.
   FORET, Judge.

This is an appeal from a judgment of expropriation by the State of Louisiana, through the Department of Highways, of a tract of land owned by defendant, Louis Eubanks, in Leesville, Vernon Parish, Louisiana. The tract of land taken is 1.988 acres in area, and was expropriated pursuant to State Project Number 28-01 — 16, Federal Aid Project Number F-03-03 (002), which provided for the construction and improvement of a part of State Route La-U.S. 171 and La. 8 in Vernon Parish. From a judgment in which defendant-appellee Eubanks was awarded $50,528.00 ($15,-781.00 for the land taken; $6,098.00 for the improvements taken, and $28,649.00 for severance damages), plaintiff-appellant, Highway Department, perfected this appeal and assigned the following as manifest errors of the trial court:

1. In permitting defendant-appellee by ex parte order to file an “amended answer” two (2) months after trial in order to increase his demand for severance damages and in ruling thereon;
2. In awarding $15,825.00 as severance damage to defendant-appellee’s residence;
3. In awarding $12,824.00 as severance damage to defendant-appellee’s remaining property.

Three of the awards of damages made by the trial court are not made an issue by plaintiff on appeal. These are the awards of $11,091.00 for front property taken, $4,690.00 for rear property taken, and $6,098.00 for improvements taken. These figures total $21,878.00. We would affirm the trial court on these awards.

With reference to the assignments of error by plaintiff-appellant, we will consider these in reverse order.

ISSUE OF SEVERANCE DAMAGE TO DEFENDANT-APPELLEE’S REMAINING PROPERTY FOR WHICH THE TRIAL COURT AWARDED $12,-824.00.

In discussing this issue, we must consider whether or not any special benefits accrued to defendant-appellee’s remaining property as a result of the taking. We have little difficulty in finding that special and peculiar benefits, as distinguished from general benefits, accrued to the remainder of defendant-appellee’s property. Special benefits have been defined in our jurisprudence as:

“ . . . those affecting a particular estate by reason of its direct relationship to the improvements. If, as a result of constructing any new work, the remaining land or part of it is left fronting on a road or street, and the land fronting the road or street is more desirable and more valuable because of the frontage, the advantage thus gained is a special or peculiar benefit, and damages to the remaining property may be offset by such benefits.”

Louisiana Highway Commission v. Grey, 197 La. 942, 2 So.2d 654, at 660-661 (1941), and cases cited therein; LSA-R.S. 48:453; State Dept. of Highways v. Davidson, 319 So.2d 808 (La.App. 1 Cir. 1975); State Dept. of Highways v. Genest, 218 So.2d 114 (La.App. 3 Cir. 1968).

Percy Futrell, plaintiff-appellant’s expert appraisal witness, testified that defendant’s remaining property specifically benefited as a result of the taking. He pointed out that after the taking, the formerly open tract with no internal street frontage gained an additional 1700 feet of new highway frontage; that four corner lots were established, and that the rear portion of the subject property, originally best suited as residential property thereafter became prime commercial property. We reproduce below and make a part hereof a sketch showing the property taken and the remaining property.

Louis Eubanks Tract

From the sketch it is obvious that the remaining 1.950 acre tract and the remaining 1.367 acre tract are situated between the proposed north-bound lane and proposed south-bound lane of La.-U.S. Highway 171, with a connecting link road separating the two said tracts, running between the north and south-bound lanes. It is obvious that these two tracts of land are situated in prime position for commercial usage, having frontage on both north-bound and south-bound lanes, as well as on the connecting road. It is difficult for this court to comprehend how defendant-appellee’s expert witness, a Mr. Stephens, could testify that the remaining property received no special benefit whatsoever from the taking.

We reproduce below a written report of plaintiff-appellant’s expert witness, Percy Futrell, who, in our opinion, more correctly assessed the special benefits and arrived at a monetary value of these special benefits as amounting to $27,921.00 as shown in the sketch below:

Louis Eubanks
Parcel Ko. 8-2
ESTIMATED VALUE AFTER T3 TAKIHG
LAUD IMPROVEMENTS TOTAL
Whole property before the taking $65,158 $23,257 $ 88,415
Part Taken 9 r983 6,158 16,141
Remainder of whole before the taking $55,175 $17,009 $ 72,274
Estimated Value After The Taking:
Southeast Remainder:
Front Use Tract:
Effectively 260' x 175' =
45,500 CD or 1.05 acre @ acre = $26,250
West Approx. l/2 of Southeast Remainder 0.9 ac. a $10,000 per acre = $ 9,000
Northeast Remainder:
1.367 acres 3 $20,000 per acre = $27,340
West Remainder:
9.37 acres Q $3,000 Der acre = $28,110
Total est. remaining land value $90,700
Improvements: __ 9,495 100,195
Difference + §35,525 - § 7,604 + $ 27,921
Indicated Benefit: $27,921

This Court having reached the conclusion that it is more probable than not that Fut-rell is correct in his appraisal of the special benefits accruing to the remaining property after the taking, we find that the special benefits offset by a large margin the severance damage granted by the trial court, and accordingly we disallow the award for severance damages to the remaining property granted by the trial court.

SEVERANCE DAMAGE AWARDED BY TRIAL COURT FOR DEFENDANT-APPELLEE’S RESIDENCE.

The trial court awarded the amount of $15,825.00 for severance damage to defendant-appellee’s residence, which, after the taking, would be approximately twelve (12') feet from the highway right-of-way. Plaintiff-appellant’s expert, Futrell, testified that the house had been damaged to the tune of $6,330.00, representing 40% of the depreciated value of the residence which was estimated at $15,825.00. Stephens, testifying on behalf of defendant-appellee, estimated the depreciated value of the house to be $18,592.00, and that it had a 45% diminution in value and therefore had been damaged in the amount of $8,366.00. It is noteworthy, however, that both Stephens and Futrell testified that the house was uninhabitable as a residence because of its close proximity to the highway. We agree with that testimony, and therefore conclude that the house has no value as a dwelling or a residence, at its present location, as a result of the taking and that the owner is entitled to be compensated for his residence on that basis.

We are aware of the two cases cited by plaintiff-appellant for the proposition that a trial court may not substitute its opinion for that of the experts who testified at the trial. State Department of Highways v. Thurman, 231 So.2d 692 (La.App. 1 Cir. 1970), and State Department of Highways v. Moresi, 189 So.2d 292 (La.App. 3 Cir. 1966). We feel bound to follow those cases, and find that the trial court committed manifest error by awarding the amount of $15,825.00 for severance damage to defendant-appellee’s residence. According to the testimony of the experts, the highest amount that the trial court could have awarded was $8,366.00, accepting the testimony of expert Stephens. Accordingly, we will reduce the award of the trial court, with reference to the residence, to $8,366.00.

Having reached the above conclusion, we find that we do not need to address ourselves to an enlargement of the pleadings by the filing of a supplemental and amended answer by defendant-appellee. His original answer prayed for “severance damage to remaining property . . . $18,-124.00”. We find that this allegation by defendant-appellee is sufficiently broad to encompass the damage to his residence, and the amount awarded is within that for which defendant prayed.

One issue remains, and that is whether the general rule with regard to the offsetting of severance damages by any special benefits accruing to the remaining property should apply in a case where the remaining property damaged is a dwelling or other similar improvement situated on the remaining property. We stated in State, Through the Department of Highways v. Johnson, 341 So.2d 12 (La.App. 3 Cir. 1976), that we would not offset an increase in the remainder value against the decrease in value of the residence since the two were not inter-related, and since continued use of the residence affects the commercial development of the property in the rear. In this case the continued use or presence of the residence would interfere with the use of the 1.950 acre tract for commercial purposes, thereby depriving that particular tract of much of its special benefits accrued as a result of the taking. For that reason, we distinguish Grey, Davidson, and Genest, supra.

For the foregoing reasons, the judgment of the trial court is amended to disallow its award of $19,154.00 for severance damage to defendant-appellee’s remaining property; in all other respects the trial court’s judgment is affirmed.

Costs of this appeal are assessed equally between plaintiff and defendant.

AMENDED AND AFFIRMED.

On Application for Rehearing

PER CURIAM.

In its application for rehearing, plaintiff-appellant, State of Louisiana, Through the Department of Highways, points out that our decision contains an error in the computation of the severance damage due appel-lee. Plaintiff-appellant points out that under the findings and reasoning of our decision, the amount of the trial court award which we disallowed should have been $20,-283.00 instead of $19,154.00.

We agree with plaintiff-appellant, but the rehearing will be denied. It is well settled that appellate courts have the power to correct their judgments, and the granting of a rehearing to do so is not necessary. State v. F. B. Williams Cypress Co., 132 La. 949, 61 So. 988 (1913); Levy v. Cappel, 39 So.2d 128 (La.App.1949); International Paper Co. v. Rivers, 35 So.2d 677 (La.App.1948); Sheffield v. Jefferson Parish Developers, 38 So.2d 541 (La.App.1949). See also, comment (d) under Article 1951, LSA-CCP.

Accordingly, our former decree is amended, and we disallow $20,283.00 of the judgment of the trial court which it had awarded for severance damage to defendant-ap-pellee’s remaining property.

In all other respects our original decree is affirmed.


author: STOKER, Judge. WATSON, Judge,

text:
    Maureen MORRIS, Plaintiff and Appellant, v. Joseph GERACE, Administrator of the Department of Employment Security and Morton Salt Company, Defendant and Appellee.
    No. 5851.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearing Denied May 10, 1977.
    Writ Granted July 1, 1977.

      J. Minos Simon and Gerald J. Block, Lafayette, for plaintiff and appellant.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell by Joseph One-bane, Lafayette, for defendant and appel-lee.
    James A. McGraw, Baton Rouge, for defendant and appellee.
    Before CULPEPPER, WATSON and STOKER, JJ.
   STOKER, Judge.

Petitioner, Maureen Morris, was denied unemployment compensation following her discharge by her employer. She appeals to seek reversal of adverse decisions rendered against her at every level where her case was heard below. She has been denied unemployment compensation on the ground that her discharge was for misconduct, thus disqualifying her from benefits under the Louisiana Employment Security Act. R.S. 23:1601(2). Petitioner was terminated after refusal to remove a notice she had placed on the company bulletin board.

Under R.S. 23:1634 judicial review under the Louisiana Employment Security Act is limited to questions of law absent findings of fact based on insufficient evidence of fraud. We find there was sufficient evidence to support findings of the Louisiana Board of Review. Petitioner does not complain of the findings of fact but only of the legal conclusions to be drawn from them, or to state it otherwise, plaintiff complains that the law has been incorrectly applied. She contends that her refusal to remove the notice from the company bulletin board under the circumstances did not amount to misconduct disqualifying her from receiving unemployment compensation.

Maureen Morris was employed by Morton Salt Company as a can line inspector for the period running from June 19, 1968 through April 29, 1975. Morton Salt Company is a division of Morton-Norwich Products, Inc. Ms. Morris was a member of Local Union # 29 of the International Chemical Workers Union and was president of that local and steward of the union.

The procedural history of this case is’ as follows. A hearing was conducted in the Louisiana Department of Employment Security on August 8, 1975. The hearing was held before appeals referee, James 0. Faul. The referee rendered his finding of fact and opinion on August 14, 1975. It was his opinion that Miss Morris was disqualified for unemployment compensation because of misconduct. He determined, therefore, that Miss Morris was disqualified from receiving unemployment'compensation benefits effective April 29, 1975, the date of her termination.

Ms. Morris appealed to the Louisiana Board of Review which upheld the referee. The Board of Review was of the opinion that petitioner should have obeyed the order of the plant manager of the employer to remove the notice from the bulletin board and that she should have taken up her difference of opinion with the manager by following the grievance procedure as provided under the labor agreement.

Thereafter Ms. Morris filed a petition for review in the district court. After hearing the case the district court affirmed the decision of the Board of Review. Following the judgment of the district court this appeal was filed.

A more detailed statement of the facts of this case is as follows. The company management had become concerned over fighting which was occurring between employees on plant premises. Therefore, the management posted the following memo on a number of bulletin boards located at various places on the plant premises.

“MEMO TO MORTON EMPLOYEES
March 19, 1975
During the last year or two, there have been a number of occasions on which two or more employees engaged in a fight on the plant premises. The Company is quite concerned about the apparent increasing number of these incidents. We do not believe fighting is an appropriate way for employees to settle their differences, and we are convinced that sooner or later someone is going to be seriously hurt in one of these fights if they continue to occur. In the past, we have typically assessed participants in a fight a one-day disciplinary layoff, but this has obviously not discouraged a number of employees from becoming involved in such dispute. This memorandum shall serve as notice that in future incidents of this kind we intend to take much more severe disciplinary action, up to and including discharge.
/s/ J. E. Goodbrake
/s/ V. L. Langlinais”

After the above notice was posted petitioner obtained a copy of the company’s notice and typed on the bottom of it the following notice of her own:

“NOTICE
LOCAL 29 REJECTS THIS NOTICE AS NOT AUTHORIZED BY THE COLLECTIVE BARGAINING AGREEMENT. UNION MEMBERS ARE NOT BOUND BY THIS. ANY ONE DISCIPLINED ON THIS ACCOUNT IS TO REPORT TO ME IMMEDIATELY!
MAUREEN MORRIS
PRESIDENT, LOCAN 29
•/s/ Maureen Morris”

By admission of the plant manager, the union had permission to post routine notices on the company bulletin board. Prior to posting the notice with her own notice affixed at the bottom as above described on the bulletin boards in the plant, Ms. Morris obtained the permission of the night mill superintendent. After receiving his permission she posted the notices. After the plant manager, Mr. Goodbrake, learned of this he called Ms. Morris in and sought to have her remove the notice which Ms. Morris had posted. She refused and the dismissal followed sometime thereafter.

. Inasmuch as we are bound by the findings of fact in the administrative channel, we will give the findings of the appeals referee, James 0. Faul. This hearing was conducted on August 8, 1975 in New Iberia, Louisiana in the offices of the Louisiana Department of Employment Security. At that time petitioner was represented by counsel. The findings of fact of Mr. Faul read as follows and concluding that is his opinion:

“FINDINGS OF FACT
The claimant worked for this employer from June 19, 1968 to April 29, 1975 as a can line inspector, earning $3.40 per hour. She was scheduled to work forty hours per week and was required to work shift work. The plant manager and assistant plant manager met with the claimant as President of the International Chemical Workers’ Union, Local Union No. 29 and her union committee on March 19, 1975, in regards to the employer’s position of employees fighting on the plant premises. The employer, as a result of the meeting, posted a memorandum on March 20, 1975, for the benefit of the employees on various company bulletin boards through the plant. The claimant, as President of the Local Labor Union No. 29, did not agree with the position of the employer with regards to the memorandum posted by the employer. She consulted with the Attorney for the union after a membership meeting had been held. The claimant had a statement typed on a copy of the employer’s memorandum which had been given to her by a union member. She signed the statement which stated what position the Local Union No. 29 had taken in regards to the employer’s memorandum to the employees. She had several copies of the memorandum made, and on April 23, 1975, after getting permission from the night mill superintendent, she posted copies of the employer’s memorandum on the company’s bulletin boards with her signed statement on it. The claimant was called to the plant manager’s office during the morning of April 24, 1975, and she was requested to remove the copies of the memorandum with her statement which she had posted on various company bulletin boards. The claimant refused to remove the copies with her statement on it, as she felt that she had the right to inform the union members. The claimant was instructed to return to her work, which she did. She was called back to the plant manager’s office later during the day, and informed that she was being suspended from her job for an indefinite period of time. The claimant was called while off from work due to the suspension, to report to the plant manager’s office on April 29, 1975, at which time she was informed that she was being discharged from her job for having refused to remove the copies of the employer’s memorandum with her statement on it from the company’s bulletin board. She has filed a grievance through her union and the case is in arbitration.
OPINION
R.S. 23:1601(2) provides that a claimant shall be disqualified when discharged for misconduct connected with employment. Such disqualification shall continue until such time as the claimant has returned to work and earned wages equivalent to ten times the weekly benefit amount, and separation from such employment must be under non-disqualifying circumstances.
The facts and evidence presented in this case show that the claimant’s discharge from the employment for refusing to remove from the employer’s bulletin board, a notice she had posted on copies made of the employer’s memorandum to the employees was insubordination. Therefore, her actions were a disregard of the employer’s interest. Under the circumstances, it is determined that her discharge was for misconduct in connection with the employment.
IT IS ORDERED that the determination of the Agency, disqualifying the claimant effective April 29, 1975, be affirmed.
/s/ James 0. Faul
JAMES 0. FAUL
APPEALS REFEREE”

Following the denial of relief by the appeals referee, petitioner sought relief from the Louisiana Board of Review, and that body denied her appeal. In an opinion dated January 9, 1976 the Board of Review consisting of three persons issued the following opinion and order:

“This case came before the Louisiana Board of Review upon an appeal timely filed by the claimant through J. Minos Simon, Ltd., on August 21, 1975, from a decision of James 0. Faul, Appeals Referee, rendered and mailed August 14, 1975. The Referee, in his decision, ordered that the determination of the Agency disqualifying the claimant effective April 29, 1975, be affirmed.
The Board of Review has read all of the testimony and records in this instant ease, and the claimant, as Union President, should have followed the grievance procedure rather than disregarding orders to remove the notice on the bulletin board.
This is the reason as we understand labor agreements for the grievance procedure; that is, to orderly resolve disputes between the Union and Company over contract provisions or practices occurring at the facilities.
It is our opinion that the appeal should be denied.
IT IS ORDERED that the decision of the Appeals Referee be affirmed.”

The opinion of the trial judge is contained in written reasons. His reasons are set forth briefly and state, in essence, that the court reviewed the law and evidence contained in the file and for the reasons stated by the appeals referee he concurs in the decision of the Board of Review. Accordingly, he affirmed the action of the Board of Review, disallowing petitioner the right to receive unemployment compensation benefits.

After our own review of the record and the findings of the district court, the Louisiana Board of Review, the appeals referee and the action of the agency, we have concluded that no error of law has been committed.

The collective bargaining agreement in force between petitioner and her employer contains provisions relating to grievance procedure. The provisions are contained in ARTICLE VII and read in part as follows:

“ARTICLE VII
GRIEVANCE PROCEDURE
SECTION 7. 1. DEFINITION: A grievance is defined to be controversy between the Company and the Union on behalf of an employee or employees covered by this Agreement, which controversy must pertain to One (1) of the following:
B. Any matter involving the interpretation of any provision of this Agreement.
C. Any matter involving the alleged violation of any provision of this Agreement.”

As we view the notice given by petitioner it does not constitute an invitation to company employees to fight. On its face it simply states the opinion of petitioner as union president that the disciplinary procedures proposed to be taken by the management against employees for fighting was contrary to the collective bargaining contract. While the management of Morton Salt Company may view the notice in a different light, it is really immaterial because it is clear under the facts of this ease that the ultimate dismissal of Ms. Morris was not because she posted the notice or what she said in the notice. The reason she was terminated was simply because she refused to take the notice off of the bulletin board.

It will be noted that she was guilty of no reprehensible conduct to begin with. The company on its part had made it a policy to permit the union to use its bulletin board for “routine” notices. The management took the position that this was not a “routine” notice and that the night mill superintendent had acted beyond his authority in granting Ms. Morris permission to affix the notice to the company bulletin boards. However that may be, it will be noted that Ms. Morris did go through proper channels to obtain initial permission and received it. It was only after the company sought to have her take the notice down that her conduct may be said to have been defiance or insubordination.

We find no difficulty in concluding that the company has the right to control use of its own bulletin boards. We have found nothing which requires the company to accord a union any privilege of using the bulletin board or boards of the company for any union purpose. Consequently, a union president who avails herself of the use of the company bulletin board, although with permission, and who is requested to remove it and refuses is unquestionably insubordinate. We further conclude that this is misconduct as contemplated by R.S. 23:1601(2) and that it is connected with petitioner’s employment.

While it is .true that the incident in question had nothing to do with petitioner’s specific employment duties, they did relate to the company’s control and policies established for the use of its own premises. It is established that a violation of an employer’s rule or order constitute misconduct within the meaning of the unemployment compensation act. Rankin v. Doyal, 223 So.2d 214 (La.App., 2d Cir. 1969); Jackson v. Doyal, 198 So.2d 469 (La.App., 2d Cir. 1967); Campbell v. Doyal, 190 So.2d 661 (La.App., 2d Cir. 1966); Wilson v. Brown, 147 So.2d 27 (La.App., 2d Cir. 1962); Holmes v. Brown, 147 So.2d 25 (La.App., 2d Cir. 1962); Jackson v. Brown, 136 So.2d 329 (La.App., 2d Cir. 1961); Rachal v. Brown, 136 So.2d 74 (La.App., 3rd Cir. 1969).

The appellant in this case, Maureen Morris, urges that she had a right to communicate with her union members in the manner in which she did. On her behalf attempt is made to present the controversy as a labor management dispute in which the management has been guilty of an unfair labor practice. It is argued on her behalf that she was simply attempting to prevent Morton Salt Company from unilaterally altering the collective bargaining agreement. Further, it is urged that she was attempting to notify as many union members as possible of the union position with reference to the notice given by the employer. In this connection two authorities are cited on behalf of petitioner. These are N.L.R.B. v. Magnavox Company of Tennessee, 415 U.S. 322, 94 S.Ct. 1099, 39 L.Ed.2d 358 (1974) and Gale Products, 142 N.L.R.B. 1246. We have reviewed both of these cases. Neither of these cases go to the point of holding that an employer owes his employees or a union representative the privilege of appropriating space on a company bulletin board for the purpose of giving notices to the union. The Magnavox case contains the statement that

“The place of work is a place uniquely appropriate for dissemination of views concerning the bargaining representative and the various options open to the employees.”

However, the language which follows makes it clear that all the court meant to say was that employees have a right to distribute information to other employees and to make that distribution as an in-plant solicitation so long as it is on nonworking time. All the case suggests is that a restriction of such rights might be an unfair labor practice act. Nowhere does the case hold that the company must make its bulletin board available as a substitute for other means of communication between employees.

The Gale Products case contains the following statement which is quoted in petitioner’s brief:

“Their place of work is the one location where employees are brought together on a daily basis. It is the one place where they clearly share a common interest and where they traditionally seek to persuade fellow workers in matters affecting their union organizational life and other matters related to their status as employees.”

It may be easily seen on its face that this quotation does not require that management make its bulletin boards available for communication between employees or between union officials and union members.

For the reasons assigned the district court was correct in affirming the action of the Louisiana Board of Appeals. That judgment also ordered plaintiff to pay all costs and we affirm that judgment and assess her with costs in this court.

AFFIRMED.

WATSON, J., dissents and assigns reasons.

WATSON, Judge,

dissenting:

The statutory requirement for denial of unemployment compensation is that the employee be discharged for misconduct connected with employment. Here, based on the referee’s findings of fact, there is insufficient connection with plaintiff’s employment to justify denial of benefits. The controversy about the notice posted on the bulletin board was connected entirely with plaintiff’s union activities and had nothing to do with her employment duties; the same is true of the request that she remove it and her refusal to do so. Absent a connection between plaintiff’s refusal to remove the notice and her employment, the statutory requirement for disqualification has not been met. Plaintiff is entitled to unemployment compensation benefits. I respectfully dissent.


author: DOMENGEAUX, Judge.

text:
    Carl FUSILIER and James Rudy Fusilier, Plaintiffs-Appellees-Appellants, v. Leon Todd RUSSELL et al., Defendants-Appellants.
    No. 5894.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearing Denied May 10, 1977.

    Writ Refused July 1, 1977.

      Voorhies & Labbe, by Richard D. Chap-puis, Lafayette, for defendants-appellants.
    Lewis & Lewis, by John M. Shaw and James T. Guglielmo, Opelousas, Durrett, Hardin, Hunter, Dameron & Fritchie by William N. Faller, Baton Rouge, J. Jake Fontenot, Mamou, for plaintiffs-appellees-appellants.
    Before HOOD, DOMENGEAUX and ROGERS, JJ.

       Rogers, J., voted for rehearing.

   DOMENGEAUX, Judge.

This is a companion case to Fusilier v. Pitre et al, # 5895, 345 So.2d 547, and Fusilier v. Interstate Surplus Underwriters, Inc., et al., # 5896, 345 So.2d 548, in which cases separate decrees are being rendered. The three cases were consolidated at trial, and remained so on appeal.

Plaintiff, Rudy Fusilier, a guest passenger, was severely burned in an automobile accident in Evangeline Parish. He and his friend were travelling down a country road at approximately 1 A.M. when defendant Russell (now deceased), who -was highly intoxicated, ran into the rear end of their vehicle at a high rate of speed. This suit was brought against defendant Russell through his executor, Lloyd W. Russell. Made defendants by third party demand were Elin Pitre, Sheriff of Evangeline Parish, Louisiana, and two of his deputies, McKinley Ray Veillon and Jerry Cox, and their insurers, Interstate Fire and Casualty Company and Employers Surplus Lines Insurance Company. Also made defendants by third party demand were Mark Boze-man, driver of the vehicle in which plaintiff rode, and his insurer, Traders and General Insurance Company. In a second consolidated suit, # 5895, plaintiff sued the Sheriff and the two deputies, and their insurers, who made Leon Todd Russell and Fireman’s Fund Insurance Company third party defendants. In the third consolidated suit, # 5896, plaintiffs sued Interstate Surplus Underwriters, Inc. and Lloyds, London, the uninsured motorist insurers of plaintiff’s father, Carl Fusilier. Judgment was rendered in favor of plaintiff James Rudy Fusilier and against defendant, Russell, in solido, with his insurer Fireman’s Fund in the amount of $149,395.44, plus legal interests and costs. (The liability of Fireman’s Fund being in accordance with its policy limits.) Judgment in favor of plaintiff was also rendered against Traders and General Insurance Company for uninsured motorist benefits in the amount of $5,000.00 and further against Allen Boud Flack as the particular underwriter at Lloyds, London, subscribing to a certificate issued to plaintiff’s father through Interstate Surplus Underwriters, Inc., in the amount $20,000.00. Judgment was rendered in favor of Sheriff Elin Pitre, Jerry Cox, Ray Veillon, and their insurers, Interstate Fire and Casualty Company and Employers Surplus Lines Insurance Company, dismissing all demands against them.

Defendant-administrator of the estate of Leon Todd Russell has appealed, citing as error the trial judge’s decision not to hold the Sheriff, the two deputies, and their insurers liable herein, and consequently not allowing contribution from them. Plaintiff has appealed citing that same error and additionally asked for an increase in quantum. Defendants Elin Pitre, Ray Veillon, Jerry Cox, and their insurers have also appealed as a precautionary measure. We affirm the judgment of the trial court.

The district court judge succinctly summarized the testimony pertinent to the issue of the deputies’ liability and stated his reasons for finding them not liable as follows:

“. . . Also made defendant herein is the Sheriff of Evangeline Parish and his insurer. The Court finds no merit in the claim against the Sheriff and his insurer. The demands against the Sheriff are based on the fact that two Sheriff’s deputies were called to an incident which occurred at a nightclub known as the Golden Spur, which is located approximately two miles north of the scene of the accident. The owner of the club requested the Sheriff’s Department to evict one Elwood Deshotel. It so happened that Leon Todd Russell and Deshotel were together and that the said Russell also left the building housing the Golden Spur and went outside into the parking lot. The evidence reveals that there were at least two night clubs operating within a few feet of each other, and that there were many cars parked on the parking lot and many persons milling around outside of the buildings. The Sheriff’s deputies observed the intoxicated state of Leon Todd Russell. However, no complaint had been made against Russell and the deputies made no attempt to pick him up. The deputies testified that they observed Leon Todd Russell staggering around the parking lot for some time. However they did not observe him enter an automobile nor did they observe him leave the night club area, nor did they know that he even had a car there. After a period of approximately ten minutes or so when they noticed his absence, the deputies left the Golden Spur and headed in a southerly direction on La. 13 and came up upon an accident where both vehicles were on fire.
The deputies further testified that there were many persons who appeared to be intoxicated in the parking lot. This Court is of the opinion that the mere fact that a sheriff’s deputy sees a person in an intoxicated condition and does not arrest said person and jail him, does not create liability on the part of the sheriff’s deputies such as to make either the deputies or the sheriff liable for damages which that person may cause at a later time at another place . . .

The question before us, whether an officer may be held liable for the damages done to a third party by a person he failed to arrest, appears to be res nova in Louisiana. Courts in other states have recently addressed this issue and have reached conclusions identical to that of the trial judge. See Ivicevic v. City of Glendale, 26 Ariz.App. 460, 549 P.2d 240 (1976), Massengill v. Yuma County, 104 Ariz. 518, 456 P.2d 376 (1969), and the annotation at 41 A.L.R.3d 700 (1972), and the cases cited therein.

We hold that a police officer’s duty to make arrests is owed to the general public and not to individuals. Unless the plaintiff can prove facts which show that the defendant owed him a special duty outside of the one owed to the general public, he cannot recover. No such special duty was exhibited in this case.

In Frank v. Pitre, 341 So.2d 1376 (La.App. 3rd Cir. 1977), the Sheriff held a prisoner in custody, and released him on a weekend furlough. The majority of the court found liability on the part of the Sheriff for damages suffered by a third person which were inflicted by the prisoner while on furlough. Although we recognize the forcefulness of the reasoning and conclusions set out in the majority opinion, we nevertheless feel compelled to respectfully disagree with that opinion. We conclude that the dissenting opinion stated the correct view, i. e. that peace officers do not owe a duty to individuals to detain an offender. This conclusion is quite apropos here. Both detention and arrest involve removing a possibly harmful person from society for the collective good.

As was observed in brief by able counsel for third party defendant, a policeman’s responsibility for acts and/or omissions which occur while performing his official duties has received considerable attention in our current society. These three consolidated lawsuits serve best to illustrate the current dilemma with which the law enforcement officer is constantly confronted. On the one hand, he is sued in damages for making an arrest without a warrant and now, on the other, he is being pursued in damages for failing to make such an arrest. Surprising as it may seem, this clash of theories of responsibility was recognized by the late Chief Justice Earl Warren of the U. S. Supreme Court. In Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967), one of the leading decisions relating to the liability for false arrest, Chief Justice Warren observed the following:

“A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.”

Plaintiff-appellant also complains that the trial judge erred on the quantum issue. The trial judge found a remarkable similarity between the injury in this instance and the injuries sustained by the plaintiff in Coco v. Winston Industries, Inc., 330 So.2d 649 (La.App. 3rd Cir. 1976). In Coco, the jury awarded the plaintiff $350,000.00 in general and special damages for a severely damaged right hand. The Third Circuit Court of Appeal reduced the award to $140,000.00.

At the time the judgment herein was rendered, the Supreme Court had granted writs in Coco but had not yet handed down a decision. The trial judge, feeling bound by the Court of Appeal decision, awarded $140,000.00 to plaintiff for general damages and loss of earnings. Since that time, the Supreme Court has reinstated the original jury award in Coco, 341 So.2d 332 (La.1977). Plaintiff-appellant suggests that the trial judge would have awarded $350,-000.00 to him had the Supreme Court decision in Coco been handed down at the time judgment was rendered herein. Be that as it may, we are not inclined to increase the award, because of factors which distinguish this injury from the one sustained by the plaintiff in Coco and make it less debilitating. First, the plaintiff in Coco was right hand dominant, and the injury was to his right hand. Here, the plaintiff is right hand dominant but sustained damage to his left hand. Secondly, the plaintiff in Coco was limited in his employment to mechanic work. Here the plaintiff, although trained to become a carpenter, has an exceedingly high intelligence quotient (IQ), and with some remedial training in college can attain a job of professional status which does not require the use of his left hand. Additionally, we find that the loss of future wages by plaintiff herein were not proven as effectively and extensively as was done in Coco.

Therefore, the award of $140,000.00 for general damages and loss of wages is affirmed, as being neither excessive nor inadequate.

For the above and foregoing reasons, the judgment of the district court is affirmed. Costs are assessed against Lloyd W. Russell, Administrator, and Fireman’s Fund Insurance Company.

AFFIRMED.

      . Apparently James Rudy Fusilier had reached the age of majority at the time judgment was rendered herein.

      . $140,000.00 for general damages and loss of future earnings and $9,395.44 for medical expenses.

      .Footnote by the Appellate Court — the two deputies referred to are the defendants McKinley Ray Veillon and Jerry Cox.

      . Plaintiffs left hand was severely burned, which necessitated the partial amputation of the thumb and of the index, long, ring, and little fingers.


text:
    James Rudy FUSILIER, Plaintiff-Appellee-Appellant, v. Elin PITRE et al., Defendants-Appellants-Appellees.
    No. 5895.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearing Denied May 10, 1977.

    Writ Refused July 1, 1977.
    Voorhies & Labbé, by Richard D. Chap-pus, Lafayette, for defendants-appellants.
    Lewis & Lewis by John M. Shaw and James T. Guglielmo, Opelousas, Durrett, Hardin, Hunter, Dameron & Fritchie, by William N. Faller, Baton Rouge, J. Jake Fontenot, Mamou, for plaintiffs-appellees-appellants.
    Before HOOD, DOMENGEAUX and ROGERS, JJ.

       Rogers, J., voted for rehearing.

   DOMENGEAUX, Judge.

This is a companion case to Fusilier v. Russell et al., # 5894; 345 So.2d 543, and # 5896, Fuselier v. Interstate Surplus Underwriters, Inc., 345 So.2d 548. Defendants-appellants were made defendants in # 5894 by third party demand. Judgment was had in favor of defendants. For the reasons assigned in # 5894, 345 So.2d 543, we affirm the holding of the district judge. Costs are assessed against Lloyd W. Russell, Administrator, and Fireman’s Fund Insurance Company.

AFFIRMED.

      . Apparently James Rudy Fusilier has attained the age of majority since the filing of suit # 5894, 345 So.2d 543.


text:
    James Rudy FUSILIER, Plaintiff-Appellee-Appellant, v. INTERSTATE SURPLUS UNDERWRITERS, INC., et al., Defendants-Appellants.
    No. 5896.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearing Denied May 10, 1977.

    Writ Refused July 1, 1977.
    Voorhies & Labbe by Richard D. Chap-pus, Lafayette, for defendants-appellants.
    Lewis & Lewis, by John M. Shaw and James T. Guglielmo, Opelousas, Durrett, Hardin, Hunter, Dameron & Fritchie by William N. Faller, Baton Rouge, J. Jake Fontenot, Mamou, for plaintiffs-appellees-appellants.
    Before HOOD, DOMENGEAUX and ROGERS, JJ.

       Rogers, J., voted for rehearing.

   DOMENGEAUX, Judge.

This is a companion case to Fusilier v. Russell et al., # 5894, 345 So.2d 543, and Fusilier v. Pitre et al., # 5895, 345 So.2d 547. See our decision in Fusilier v. Russell, # 5894, 345 So.2d 543, for a complete statement of the case. Defendants were the uninsured motorist insurers of plaintiff’s father, Carl Fusilier. Judgment was had in favor of plaintiff against Allen Boud Flack as a particular underwriter of Lloyds, London, subscribing to a certificate issued to plaintiff’s father by Interstate Surplus Underwriters, Inc. in the amount of $20,000.00. No argument was made in defendant-appellant’s brief or plaintiff-appel-lee’s brief as to this award. Therefore, we affirm the decision of the district judge. Costs are assessed against Interstate Surplus Underwriters, Inc., and Lloyds, London.

AFFIRMED.

      . Apparently James Rudy Fusilier has attained the age of majority since the filing of suit # 5894,345 So.2d 543.


author: FORET, Judge.

text:
    Elsie Woodard TOLBERT et al., Appellants-Appellees, v. Firal RYDER et al., Appellants-Appellees.
    No. 5904.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearing Denied May 10, 1977.

      Mayer, Smith & Roberts by Alex F. Smith, Jr., Shreveport, for Continental Casualty.
    Gold, Hall, Hammill & Little by Henry B. Bruser, III, Alexandria, for plaintiffs-appellants.
    John J. McKeithen, Columbia, Watson, Murchison, Crews & Arthur by William P. Crews, Jr., Natchitoches, for Dept, of Public Safety.
    Jack 0. Brittain and Sam J. Friedman, Natchitoches, for Great American Ins. Co.
    Cook, Clark, Egan, Yancey & King by Steven H. Beadles, Shreveport, for Northern Ins. Co. of America.
    John Madison, Jr., Shreveport, for Dr. W. L. Ryder.
    Before HOOD, FORET, and HEARD, JJ.
   FORET, Judge.

At approximately 12:10 A.M. on November 26,1974, a tractor-trailer owned by J. E. Fowler Petroleum Products, Inc. being driven by Floyd H. Tolbert struck a black angus cow on Louisiana Highway 1 some twelve miles south of Natchitoches, Louisiana. The tractor-trailer unit jack-knifed and left the highway where it turned over, spilling the trailer content (oil) onto the roadway and east shoulder. The driver, Floyd Tol-bert, was pinned in the tractor cab and killed. These consolidated cases are tort actions wherein the plaintiffs are seeking to recover damages resulting from the aforesaid accident.

In the suit entitled “Elsie Woodard Tolbert, et al v. Firal Ryder, et a 1,” Court of Appeal Number 5904, the plaintiffs are Elsie Woodard Tolbert, the widow of the' decedent, Floyd H. Tolbert, and Frank Tolbert, a 25-year-old married son of the decedent.

In the case entitled J. E. Fowler Petroleum Products, Inc. v. Great American Insurance Company, et al., La.App., 345 So.2d 555, the plaintiff sues to recover damages to its tractor-trailer unit and for the value of the oil which was contained in the trailer.

In both cases the plaintiffs filed suit against Firal Ryder, W. L. Ryder, and a partnership of Firal Ryder and W. L. Ryder, contending that the cow on the highway was owned by the partnership which was guilty of negligence in allowing the cow to be on the highway; and as a result, the individuals in the partnership were responsible in damages. Also made defendants were Great American Insurance Company, which had issued a policy of liability insurance to Firal Ryder with limits of $50,-000.00, and Continental Casualty Company, which had issued an excess liability policy to Firal Ryder with limits in excess of the amount sued for in this litigation. Also made a party defendant was the State of Louisiana, through the Department of Public Safety, its liability being based on the allegation of fault and on the violation of a statutory duty on the part of the Louisiana State Police in failing to remove the cow from the highway prior to the accident.

In the Tolbert case, there was an intervention filed by Northern Assurance Company of America, which was the workmen’s compensation insurer of J. E. Fowler Petroleum Products, Inc., and which was paying benefits to Tolbert’s widow under the Louisiana Workmen’s Compensation Act.

Great American Insurance Company filed a pleading entitled “Exception, Petition for Declaratory Judgment, and Motion for Summary Judgment” in each case. The basis of this pleading, considered as a motion for summary judgment, was the proposition that Great American Insurance Company did not afford any coverage to Firal Ryder for liability in this litigation because of Great American’s contention that the farm property from whence the cow allegedly came was not included in Great American’s policy when it was written, and nor was the property acquired by Firal Ryder after the effective date of the policy. The trial judge denied the motion for summary judgment.

FINDINGS OF THE TRIAL COURT

For reasons set forth in a written opinion, the trial court found that Great American Insurance Company, indeed, did not afford coverage to Firal Ryder, and that the responsible defendants were Firal Ryder, W. L. Ryder, and Continental Casualty Company, the latter being the insurer of Firal L. Ryder. The Court further held that W. L. Ryder was entitled to indemnity from Firal Ryder and his insurer, Continental Casualty.

The trial court awarded Elsie W. Tolbert judgment in the amount of $199,389.69, and the surviving son, Frank Tolbert, was awarded the amount of $22,500.00. The judgment was appropriately worded to reimburse the intervening workmen’s compensation insurer, Northern Assurance Company of America.

The first $5,000.00 of the award was to be made against Firal Ryder, individually, in that Great American Insurance Company was found not to be the primary insurer.

The trial court further awarded judgment in favor of J. E. Fowler Petroleum Products, Inc. in the amount of $12,300.01 against those same defendants, but again granting a judgment to W. L. Ryder over and against Firal L. Ryder and Continental Casualty Company for indemnity in the full amount of W. L. Ryder’s liability to the plaintiffs in both cases.

All other original and incidental demands against Great American and the State of Louisiana, through the Department of Public Safety, Division of State Police, and all other incidental demands, were dismissed by virtue of the trial court having found that Great American did not afford coverage, and that there was no negligence or fault on the part of the Louisiana State Police in the causation of the accident.

Following the rendition of the judgment, Firal Ryder and Continental Casualty filed a motion for a limited new trial on the basis that the trial court had erroneously held that the motion for summary judgment involving Great American had been referred to the merits when in truth and in fact it had been overruled. The pleading further asserted that subsequent to the overruling or denial of the motion for summary judgment by the trial court on September 15, 1975, Great American Insurance Company waived its policy defense; advised its insured, Firal Ryder, of this in writing; made its policy limits available for settlement; and took over the defense of Firal Ryder in the ensuing litigation. The trial court granted the motion and reopened the case for the taking of additional evidence. After hearing the evidence the court held that the judgments as originally granted were correct.

Plaintiffs have appealed the trial court’s judgment dismissing plaintiff’s petition against Great American and the State of Louisiana, and additionally seek an increase in the award in favor of Elsie Woodard Tolbert to $327,317.37. Defendants, Continental Casualty Company and Firal Ryder, have appealed suspensively and devolutive-iy-

As pointed out in a brief filed in this Court on behalf of defendant-appellee W. L. Ryder, none of the parties litigant contend or even intimate that the trial court’s judgment was in error where it held that W. L. Ryder was entitled to indemnification from Firal Ryder and his insurer for any amounts for which he (W. L. Ryder) was cast in judgment. Therefore we need not consider this issue on appeal.

In reviewing all the briefs filed by counsel in this Court for appellate purposes, we find that no issue is made of the negligence of Firal Ryder. We quote from a portion of the trial court’s excellent reasons for judgment, on that particular point:

“Both Firal Ryder and W. L. Ryder acknowledged that the cattle on the 1100 acres of land in question were owned 50-50 by them, with Firal being responsible for the day-to-day operation of the cattle venture. Although the lease specifically brought attention to the fact that the fencing was in a poor state of repair and required the Lessee to restore the fencing immediately to a first-class state of repair; nevertheless, Firal Ryder testified that he did not direct his employees to mend the fences, that he never inspected the fences, and that prior to this accident, he and his employees knew that cattle had been getting out of this pasture. [Tr. pgs. 204-220] The Court finds Firal Ryder to be personally negligent in failing to inspect the fences and in failing to have the necessary repairs made to the fences. As for W. L. Ryder he personally assumed the obligations of the lease by subleasing from Calhoun and is personally negligent in failing to require that the partnership perform the obligations of the lease before beginning the cattle venture on the 1100 acres of land.”

The trial court further found that some of Firal Ryder’s cows had gotten out of the fences onto the highway right-of-way on numerous occasions prior to November 25, 1974, and that in each instance the same procedure as that followed in this case (which procedure will be discussed in more detail below) had been followed in order to get the cows off of the highway right-of-way.

In granting judgment in favor of W. L. Ryder and over against Firal L. Ryder and Continental Casualty, the trial court found as follows:

“It is undisputed between Firal L. Ryder and W. L. Ryder that W. L. Ryder’s sole participation in the cattle farm was to make the lease payments to his brother-in-law, Mr. Calhoun. He did not assume any of the management of the partnership, did not hire or fire any employees, did not put up any money for the purchase of cattle, did not take part in any decision making process concerning when or how any cattle would be bought or sold, had never been advised or informed that any cattle had previously escaped the confines of the fences of the 1100 acres of land, and the Court holds that W. L. Ryder’s negligence in failing to make sure that the fences were kept in a state of first-class repair was passive; whereas, Firal Ryder’s negligence in this regard was active.”

A careful review of the record convinces us that the findings of fact of the trial court concerning the negligence of the defendants-Ryder is correct.

Defendants-appellants, Firal Ryder and Continental Casualty assign their first specification of error as follows:

“THE TRIAL COURT ERRED IN CONCLUDING THAT TROOPER EARL TOWNSEND WAS NOT GUILTY OF NEGLIGENCE AND IN FAILING TO HOLD THAT PLAINTIFFS HAD A RIGHT TO RECOVER AGAINST THE LOUISIANA DEPARTMENT OF PUBLIC SAFETY, DIVISION OF STATE POLICE, UNDER THE DOCTRINE OF MASTER AND SERVANT.”

After having reviewed the record, we find the factual findings of the trial court to be substantially correct on the crucial issues involving the negligence of Trooper Earl K. Townsend and quote from its reasons for judgment:

“With reference to the claim against the Louisiana State Department of Public Safety, the facts are that sometime between 2:00 p. m. and 3:00 p. m. on the date of the accident, Trooper Earl K. Townsend, on routine patrol near the area where the Ryders rented the acreage in question, found one black and one red cow on the highway right-of-way. The trooper stopped his vehicle and tried to make the cows go back into the pasture, but found the gate to the pasture locked, and the trooper was unable on foot to get the cows off the highway right-of-way. Trooper Townsend then radioed from his car at the scene to the Natchitoches Parish Sheriff’s office where Deputy Herman Birdwell received the call from Trooper Townsend. Deputy Birdwell called Firal Ryder’s office, as Administrator of the Natchitoches Parish Hospital, and upon being told that Mr. Ryder was not there, Deputy Birdwell informed the secretary of Mr. Ryder’s cows being on the highway; whereupon, the secretary referred the deputy to another office number of Firal Ryder, where Mr. Bird-well again called and left the same message. Both secretaries informed Mr. Birdwell that they would see to it that Mr. Ryder got the message and would have the cows removed. It is important to note at this point that some of Mr. Ryder’s cows had gotten out of the fence onto the highway right-of-way on numerous occasions previous to this incident and in each instance, the same procedure was followed and Mr. Ryder would call his cowboy or overseer to get the cows off the right-of-way. Trooper Townsend then received a radio call back from Deputy Birdwell telling him that Ryder’s office had been contacted and that the cows were being taken care of. Trooper Townsend went off duty at 3:00 p. m. and the accident happened some 8 or 9 hours later.”

We conclude, as did the trial court, that Trooper Townsend committed no acts of commission or omission which would make him chargeable with negligence causally connected with the accident involved. Having been informed that the owner of the cattle had been notified of the presence of his cattle on the highway, the officer could reasonably rely that the cattle would be penned up by the owner, Firal Ryder, before nightfall three or four hours away.

Defendants-appellants argue that LSA-R.S. 3:2804, which provides for the impounding of livestock found at large upon certain designated highways, wherein it is stated that the superintendent of state police shall . . . cause any livestock. found at large upon those certain designated highways to be taken into custody and impounded, creates negligence per se upon the state police upon their failure to do so and an accident results therefrom such as occurred in this case. Defendants-appellants argue this point most strenuously and cite the case of Dixie Drive-It-Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298, wherein defendants contend that the Supreme Court has clearly established a line of jurisprudence concerning the effect of the violation of statutes.

Dixie involved a violation of a portion of the Highway Regulatory Act by the defendant, i. e. the driver of a tractor-trailer having failed to set out signal signs when his vehicle became disabled and stopped on the traveled portion of the highway. We have no disagreement with the defendants-appellants as to Dixie. However, R.S. 3:2803 is found under the title pertaining to agriculture and animals, whereas the Highway Regulatory Act is found under Title 32 of the Louisiana Revised Statutes. Counsel has cited no jurisprudence to us, and certainly no statutory provisions, which would extend the Dixie holding to a violation of R.S. 3:2804.

But even assuming that defendants-appellants would be correct in that the Dixie holding could be extended to create negligence per se for violation of Section 2804, certainly the presumption of negligence can be rebutted for the reason that the effect of such a presumption is to specifically place the burden of proof upon the alleged violator of a statutory provision to exculpate himself from negligence. Cornish v. Ford, Bacon & Davis Const. Corp., La.App.1974, 304 So.2d 361, writ refused, La., 305 So.2d 123. In the case at bar the trial court correctly found that Trooper Townsend was not negligent, and even assuming defendants-appellants’ contention to be correct, the presumption of negligence was effectively rebutted. We therefore find no merit in defendants-appellants’ contentions in this regard.

Defendants-appellants’ second assignment of error is that:

“THE TRIAL COURT ERRED IN FAILING TO FIND THAT GREAT AMERICAN INSURANCE COMPANY WAS RESPONSIBLE FOR THE FIRST $50,-000.00 OF ANY JUDGMENT TO BE RENDERED AGAINST FIRAL RYDER.”

Six days prior to the accident in question, Great American Insurance Company had issued a “Homeowners” policy to Firal Ryder. Attached to the policy was an endorsement insuring three tracts of farm property which were described as being used in Ryder’s cattle farming operations. In addition, the endorsements purported to provide coverage for other properties acquired by the insured or his spouse subsequent to the date of the issuance of the policy. The 1100 acre tract from which the cattle in this case came onto the highway was not described in the policy, and it is undisputed that Firal Ryder leased this property prior to the date of issuance of the policy. Clearly, therefore, the policy did not cover the farm property in question.

Defendants-appellants further argue that there is a policy provision in the homeowners portion of the policy which affords coverage to “vacant land”. We are not impressed with this argument. The land in question had farm buildings on it, and the Ryders conducted a cattle operation thereon to the extent of running between three and four hundred head of cattle on this property. Therefore we find no merit to defendants-appellants’ contentions in this regard.

Subsequent to the overruling of Great American’s motion for summary judgment by the trial court, counsel for Great American notified counsel for Firal Ryder that it would waive its coverage defense, and would defend Firal Ryder, and further that it offered the total policy limits, $50,000.00, towards an effort to settle the case. However, none of this was done in a judicial proceeding, but merely by letter and word of mouth between counsel. At no time prior to trial on the merits did counsel for Great American withdraw or abandon its coverage defense for trial purposes. Indeed, the trial court, after trial on the merits, held that Great American’s policy did not cover the accident in question. At a partial new trial granted, and after counsel for Great American had admitted on the witness stand that it was true that prior to trial he had agreed to waive the coverage defense question, and would defend Firal Ryder, and in fact had offered the total policy limits in an effort to settle the case, again the trial court held that its initial judgment was correct and that Great American’s policy did not cover the accident in question. We agree with the trial court’s holding.

In its brief, Continental Casualty Company, the excess insurer of defendant, Firal Ryder, contends that Great American Insurance Company, through the actions of its attorney — stating to Ryder’s attorney that Great American would waive the coverage defense question; that it would defend its insured, Firal Ryder, and that it would offer the total policy limits in an effort to settle the case — should be estopped from raising the issue of denial of coverage, and cites the cases of Mathieu v. Williams, 255 So.2d 151 (La.App. 2 Cir. 1971), Pacholik v. Gray, 187 So.2d 480 (La.App. 3 Cir. 1966), and Gulley v. National Life & Acc. Ins. Co., 73 So.2d 341 (La.App. 2 Cir. 1954), as authority for that proposition.

The factual situations in the three above-cited cases are distinguishable from that in the present case. The rule of law — that representations or vicarious admissions of fact or other stipulations of counsel, as to matters of fact within the scope of his professional function, are admissible when offered by an opposing party in a suit against the principal — was held to apply in a case to recover damages under a non-competition agreement, in which defendant’s counsel definitively stated that defendant breached the contract for a certain period of time (Mathieu v. Williams, supra); in a suit for the return of a sum paid on a purchase price, in which counsel admitted that his client never intended to comply with the purchase agreement (Pacholik v. Gray, supra), and in a suit for the recovery of disability payments under an insurance policy, where counsel for the insurer admitted that all the insurance premiums had been paid, which action was contrary to the insurer’s defense of non-payment of premiums (Gulley v. National Life, supra). However, in the case at bar, after a trial court ruling denying its motion for a summary judgment on the issue of coverage, Great American’s attorney did not admit coverage. Rather, he proceeded to attempt to compromise the case, and that effort having failed, he defended Firal Ryder as if coverage existed; but yet he never judicially admitted coverage. On the contrary, he persisted that no coverage existed, and this issue was resolved in his favor by the trial court. We agree with that holding.

Equitable estoppel arises when one, by his actions, or by his silence when he ought to speak, induces another to believe certain facts, and the other relies on those facts to his prejudice. Ledoux v. Old Republic Life Ins. Co., 233 So.2d 731, 735 (La.App. 3 Cir. 1970), writ refused, 256 La. 372, 236 So.2d 501; Humphries v. Puritan Life Insurance Co., 311 So.2d 534 (La.App. 3 Cir. 1975); Key v. Cherokee Credit Life Ins. Co., 298 So.2d 892 (La.App. 3 Cir. 1974), and cases too numerous to cite. In this case, there was perhaps some action on the part of the agent of Great American which would lead, or mislead, Continental into believing that which did not, in fact, exist. However, Continental has failed to prove that it has relied upon such fact or facts to its detriment. Therefore, such doctrine is not available to Continental against Great American.

Great American, in its appellate brief and at oral argument, admits that its insured, Firal Ryder, may have relied to his detriment upon the action of its attorney-agent and concedes that it should pay to its insured the deductible under the Continental policy, that is, $5,000.00.

All concerned counsel admitted at oral argument that the Tolbert awards by the trial court were not manifestly erroneous under prevailing jurisprudence and consequently abandoned their appeals on that score.

For the foregoing reasons we amend the trial court judgment to provide that Firal L. Ryder and Great American Insurance Company are condemned in solido to pay a total of $5,000.00, plus legal interest thereon from date of the trial court judgment, towards satisfaction of the total judgments rendered.

In all other respects the judgment of the trial court is affirmed.

Costs of this appeal are assessed equally against Great American Insurance Co., Firal Ryder, and Continental Casualty Company.

AMENDED AND AFFIRMED.

      . Tr., page 424.


text:
    J. E. FOWLER PETROLEUM PRODUCTS, INC., Appellant-Appellee, v. GREAT AMERICAN INSURANCE CO., et al., Appellants-Appellees.
    No. 5905.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Rehearing Denied May 10, 1977.
    Before HOOD, FORET and HEARD, JJ.
   FORET, Judge.

For reasons handed down this date in the companion case of Tolbert et al. v. Ryder et al., La. Third Circuit Court of Appeal, 345 So.2d 548, the judgment of the trial court is affirmed with the amendment made in Tolbert.

AMENDED AND AFFIRMED.