author: COLE, Judge.

text:
    BAMBER CONTRACTORS, INC. v. HENDERSON BROTHERS, INC., et al.
    No. 11236.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.

      Charles W. Lamar, III, Gordon A. Pugh, Breazeale, Sachse & Wilson, Baton Rouge, for plaintiff.
    James H. Kuhn, Louis D. Bishop, Jr., DeQuincy, Fayard, Morrison, Fayard & Kuhn, Denham Springs, for defendant.
    Before LANDRY, EDWARDS and COLE, JJ.
   COLE, Judge.

Plaintiff-appellant, Bamber Contractors, Inc., appeals the judgment maintaining an exception of “no right or cause of action” filed by defendant-appellee, Henderson Brothers, Inc., resulting in the dismissal of this action in redhibition as to said defendant. The procedural posture of the record reflects that proper venue as to the remaining defendant, McLeod Brothers Contractors, remains a trial court issue but is correlated to the validity of the dismissal of Henderson Brothers.

The trial court heard evidence on the pleading in which the two objections were raised. It is clear that this was permitted only as the evidence may have related to the plaintiff’s right of action. However, the judgment rendered on the pleading sustained “the exception of no right or cause of action” without indicating which of the two objections liaised by the peremptory exception was being upheld by the court or whether both were valid. La.-C.C.P. art. 927(4) and (5).

It is highly improbable that the trial court intended to sustain the “no cause of action” aspect of the pleading filed by Henderson Brothers. The facts alleged strongly foreclose such a possibility. Also, for us to conclude that this was done would be to ascribe error if the court did consider the evidence in support thereof, and we do not believe such error was committed. La.-C. C.P. art. 931. Only for the sake of clarification and to bring into focus the contrasting theory applicable to the peremptory exception when utilized to raise the objection of no right of action do we also discuss the facts and law applicable to this exception when used to raise the objection of no cause of action.

NO CAUSE OF ACTION

In the instant case, the plaintiff’s petition clearly states a cause of action for redhibition. La.-C.C. art. 2520, et seq. In substance, it' alleges the following essential facts:

Plaintiff purchased a tractor from Henderson Brothers. Shortly thereafter a mechanical problem developed necessitating costly repairs. Other serious mechanical deficiencies were then revealed. Further substantial sums were expended to either repair the tractor or to disassemble it to determine the cause of failure. The cost of further repairs to the tractor is prohibitive and it has been rendered useless. Plaintiff has tendered the return of the tractor to the defendant. Finally, the defects in the tractor are redhibitory in nature.

The “Exception of No Cause or Right of Action” of Henderson Brothers is based upon the contention that:

“[T]he plaintiff states no cause or right of action in that the defendant, Henderson Brothers, Inc., owes no warranty in the sale of the matter, as they were acting solely as the agents of McLeod Brothers Contractors.”

This “exception” in effect asserts that Henderson Brothers is not liable in redhibition to the plaintiff as a matter of law.

The peremptory exception raising the objection of no cause of action is utilized to raise the question of whether the plaintiff’s petition alleges a particular grievance for which the law affords a remedy to anyone. La.-C.C.P. art. 927(4); Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975); American Bank & Trust Company v. French, 226 So.2d 580 (La.App. 1st Cir. 1969); McMahon, “Parties Litigant in Louisiana,” 11 Tulane L.Rev. 527 (1937).

The well-pleaded facts of the petition are accepted as true for the adjudication of the peremptory exception raising the objection of no cause of action; all doubts are resolved in favor of the sufficiency of the petition. American Bank & Trust Company v. French, supra; Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App. 3rd Cir. 1967).

No evidence is admissible at any time to support or defeat the peremptory exception raising the objection of no cause of action. La.-C.C.P. art. 931; American Creosote Company v. Springer, 257 La. 116, 241 So.2d 510 (La.1970); American Bank & Trust Company v. French, supra.

For the foregoing reasons, it is readily apparent that the facts alleged by the plaintiff which must be accepted as true for the purposes of the exception do set forth a cause of action. The thrust of Henderson Brothers’ contention suggests that the procedural vehicle afforded by Louisiana Code of Civil Procedure Article 966 (motion for summary judgment) is appropriate to test the position interposed against liability. Certainly, the use here of the objection of no cause of action is a prostitution of its purpose.

NO RIGHT OF ACTION

Louisiana Code of Civil Procedure Article 927(5) provides for the inclusion of “[n]o right of action, or no interest in the plaintiff to institute the suit” as one of the specific objections to be raised by the peremptory exception. The essential function of this objection has been succinctly stated and restated by the courts of this state. The objection of no right of action is used to raise the question of the plaintiff’s interest in the subject matter of the litigation. Stated another way, the objection of no right of action raises the question of whether a remedy afforded by the law can be invoked by a particular plaintiff. It relates specifically to the person of the plaintiff. Gaudet v. Board of Commissioners for Pontchartrain Levee District, 339 So.2d 931 (La.App. 4th Cir. 1976); Alside Supply Company v. Ramsey, 306 So.2d 762 (La.App. 4th Cir. 1975); Lake Charles F.F.A.L.U. No. 561 v. City of Lake Charles, 255 So.2d 372 (La.App. 3rd Cir. 1971); Willis v. State, 212 So.2d 555 (La.App. 1st Cir. 1968); Bielkiewicz v. Rudisill, supra; American Bank & Trust Company v. French, supra. See generally, McMahon, Louisiana Practice, Vol. I, pp. 459-460 (1939).

As set forth in Bielkiewicz v. Rudisill:

“The want of interest raised by the exception relates primarily to whether the particular plaintiff falls as a matter of law within the general class in whose favor the law grants the cause of action sought to be asserted by the suit, with the factual evidence admissible being restricted as to whether this particular plaintiff does or does not fall within the general class having legal interest to sue upon the cause of action asserted. * *
“In short, the objection of no right of action raises the question of whether the plaintiff has a legal interest in the subject matter of the litigation, assuming (for purposes of deciding the exception) that a valid cause of action is pleaded by the petition. * * * ” (201 So.2d at 142)

By means of what is actually the peremptory exception raising the objection of no right of action, Henderson Brothers, Inc., seeks to present evidence to disprove certain allegations of the plaintiff’s petition. It is immaterial that the defendant may have a valid defense to the plaintiff’s claim. As stated in Bielkiewicz, supra:

“* * * [T]he exception [sic] of no right of action is not available to urge a defense to the effect that the plaintiff is without interest simply because the defendants have a defense to the plaintiff’s action.”

See, also, Alside Supply Company v. Ramsey, supra.

In the instant case, the plaintiff’s petition sufficiently places plaintiff in the class of persons for whose interest the cause of action stated is provided. The petition basically alleges that the plaintiff purchased a piece of machinery from Henderson Brothers, Inc., and that the machinery contained redhibitory defects which entitled the plaintiff to a rescission of the sale. Clearly, a purchaser has a legal interest in a suit for the redhibition of a sale to which he is a party.

The evidence presented to show that Henderson Brothers, Inc., was merely an agent of McLeod Brothers Contractors does not pertain to the plaintiff’s interest in the cause of action and is, therefore, not relevant. The alleged basis of the exception filed is not properly the subject matter for the objection of no right of action, but properly addresses the issue of defendant-appellee’s liability. As such, it is a matter of defense to be presented on the merits or to be preliminarily raised by a motion for summary judgment. Consequently, we do not here concern ourselves with the issue of whether an agent of a seller is liable in a suit for redhibition. See e. g., Castille v. Folck, 338 So.2d 328 (La.App. 3rd Cir. 1976); Wiltz v. Dixie Auto Sales, Inc., 315 So.2d 811 (La.App. 3rd Cir. 1975).

SUMMARY

This case demonstrates the confusion which arises from the filing of a pleading entitled “Exception of No Right or Cause of Action.” Properly speaking, there is no such exception. Upon the election of exceptor, it should be treated as either the peremptory exception raising the objection of no right of action or as the peremptory exception raising the objection of no cause of action. Discernment by the court of whether both objections are being presented or if only one of them is being urged should not await and be conditioned upon evidentiary considerations or counsel’s argumentative ability. As phrased, it is ambiguous and could be interpreted as presenting either objection, or as presenting both objections.

We recognize that the practitioners of Louisiana have utilized the mongrelization of the two concepts for many decades. Further, the courts have often added to the confusion and have given comfort to the instant procedure by not using correct terminology, by failing to make the necessary distinction and by not insisting upon proper pleadings. The hybrid nature of the pleading at issue herein detracts from the distinctive purpose and clarity of the respective objections which may be raised by the peremptory exception. If a situation should call for urging both the plaintiff’s lack of interest in the subject matter of the litigation and the absence of a grievance for which the law affords a remedy to anyone, it is preferable to state the objections separately and for the court to treat them separately.

Our Code of Civil Procedure, Articles 921, et seq., adopts a format which strongly suggests the appropriate terminology for pleading exceptions. Article 922 recognizes and allows only three exceptions, to-wit, the declinatory exception, the dilatory exception, and the peremptory exception. Articles 925, 926 and 927 set forth various nonexclusive objections which may be raised through the three allowable exceptions. Article 923 denotes functions of the three exceptions. Article 924 requires that exceptions “ * * * shall state with particularity the objections urged and the grounds thereof, and shall contain a prayer for the relief sought.” Also, in pari mate-ria, is Article 1152 which addresses the amendment of the aforesaid three exceptions as regards an objection. Obviously, the pleading in this case should have been designated simply as “Peremptory Exception.” Any objection sought to be raised through the exception would then be subject to the mandatory requirements of Article 924.

For the foregoing reasons, the judgment of the trial court is reversed, and the matter is remanded for further proceedings. The costs of this appeal are assessed to the appellee.

REVERSED AND REMANDED.


source: Caselaw Access Project

license: Public Domain

text:
    Duane ANDREPONT v. James NAQUIN et al.
    No. 11254.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.

      Max G. LaBranche, Baton Rouge, of counsel, for plaintiff appellant.
    John S. White, Jr., Baton Rouge, of counsel, for defendants appellees.

      Before LANDRY, EDWARDS and COLE, JJ.
   COLE, Judge.

The plaintiff-appellant, Duane Andre-pont, brought suit against the defendant-appellee, James Naquin, for a battery allegedly committed on April 12, 1974, at approximately 11:30 P.M., in which the plaintiff sustained personal injuries. The jury held for the plaintiff and against the defendant and awarded $600 in damages. The plaintiff appeals from this judgment claiming that the amount awarded was inadequate. The defendant answers the appeal disclaiming any liability to the plaintiff.

On the night of April 12, 1974, the plaintiff and several of his friends, all approximately seventeen to eighteen years old and high school seniors, went to an establishment called “The Fooseball Center” on Florida Boulevard in Baton Rouge. This commercial establishment was in the nature of a pool or game hall which served beer and catered to the young. Plaintiff and his friends were frequent customers at the establishment. The cause of the altercation giving rise to this suit was never understandably explained at trial. It appears from the record that the participants did not really know, nor can they coherently explain, the cause of the incident. Apparently, the fight was precipitated by a previous altercation the night before involving the defendant (and his friends) and a friend or acquaintance of the plaintiff (and his friends). In any event, on the night of the incident the plaintiff and his four companions were outside of The Fooseball Center when a car load of boys rode by shouting obscenities at the plaintiffs group and urging the plaintiffs group to follow the car to a fight. The plaintiff and several companions got into a car and commenced a high speed pursuit of the vehicle. The lead vehicle was unable to maintain control in a curve and flipped over in a ditch. The car in which the plaintiff was riding stopped at the scene and a short fight ensued. After the plaintiffs group had evidently gotten the best of the battle, the group from the disabled vehicle told the plaintiffs group that if they wanted to continue fighting they could go to Shamrock Acres Subdivision on the Comite River.

The plaintiff and his companions then drove to the designated location. On a deserted cul-de-sac surrounded by a mostly wooded area the plaintiffs group found a car in the middle of the neutral area in the circle with five or six youths standing beside the car. This group was obviously waiting for and anticipating the altercation that was to follow. Allies of the plaintiff’s group began arriving in other cars shortly thereafter. Evidently words were exchanged (the nature of which one can only leave to conjecture) and a fight ensued.

The plaintiff claims that he saw someone of undetermined identity chasing and hitting a compatriot, one Woody Day, with a baseball bat and that he and others jumped on the back of the assailant causing him to drop the bat. After a scuffle, the plaintiff stood up and was met with a blow from the bat across his mouth. The plaintiff claims that he did not see who hit him. However, one of the plaintiffs friends who was close-by asserts that he looked as soon as he heard the blow and saw the defendant holding the bat.

The defendant denies that he struck the plaintiff in the mouth with a baseball bat. Instead, he claims to have been the one chasing and hitting Woody Day with the bat. Incidentally, Day suffered a fractured elbow from the blows delivered. The defendant pled guilty to criminal charges arising from the attack upon Woody Day.

This case was submitted to the jury on written interrogatories, together with appropriate forms for a general verdict. The only fact issues to be resolved by answers to the interrogatories, and which were presumably necessary to a verdict, were whether the defendant caused the injuries to the plaintiff in a fight with a baseball bat; whether the force used by the defendant was reasonably necessary to protect himself against threatened injury; and whether the plaintiff was a willing participant in a physical fight “involving a weapon which could cause injury.” The fourth and last interrogatory called for a quantum determination which, under the format used, would have been tantamount to a verdict in favor of the plaintiff. The instructions were not to answer this last interrogatory if the jury answered “yes” to the preceding interrogatory concerning the plaintiff’s willing participation.

The jury found that the defendant did cause the injuries to the plaintiff in a fight with a baseball bat; that the force used by the defendant was not reasonably necessary to protect himself against threatened injury; and that the plaintiff was a willing participant in a fight involving a weapon which could cause injury. Having found that the plaintiff was a willing participant, the jury, in accordance with the instructions on the interrogatory form, did not answer the fourth interrogatory establishing quantum. However, it returned a general verdict in favor of the plaintiff for the sum of $600.

The court, in its charge to the jury, included instructions on the affirmative defense of assumption of risk. The jury was explicitly told that it must determine whether the defendant proved that the plaintiff relieved the defendant of the responsibility for the harm caused to the plaintiff by assuming the risk of the harm suffered. In the main body of the charge, the court instructed: “If you find that plaintiff assumed the risk of harm that happéned to him then you must render a verdict for the defendant.” Later, the court summarized:

“ * * * The plaintiff has the burden of proving all of the essential elements of his case by a preponderance of the evidence. He must demonstrate that the injury which he says he suffered was in fact caused by the conduct of the defendant; that the conduct of the defendant was below the standards v/hich I have told you applied to the defendant’s conduct; and that there was actual damage to the plaintiff’s person or his property. If you’re satisfied that the plaintiff has established these three elements and that the defendant has failed to establish that the plaintiff assumed the risk of injury then you should return a verdict for the plaintiff. If on the other hand, plaintiff ’ has failed to establish these elements or if the defendant has proved that plaintiff did assume the risk of injury then you should return a verdict for the defendant. * * * ” (Emphasis supplied)

LIABILITY

The factual dispute as to whether or not the defendant delivered the blow to the plaintiff can only be resolved on the basis of an evaluation of the credibility of the witnesses. After a review of the record, we do not find the jury’s determination that the defendant struck the plaintiff to be manifestly erroneous. Canter v. Koehring Company, 283 So.2d 716 (La.1973). Nor does the record permit this Court to assess manifest error with respect to the jury’s finding that the force used by the defendant was not reasonably necessary to protect himself against threatened injury. As a reviewing court, we are mandated to give great weight to the factual conclusions of the trier of fact and where, as here, there is conflict in testimony, we must not disturb inferences of fact even though we may feel that our own evaluations and inferences are as reasonable. Canter, supra.

In the alternative, the defendant asserts the defense of assumption of risk or, more properly in cases of intentional torts, consent. The defense of consent in Louisiana operates as a bar to recovery for the intentional infliction of harmful or offensive touchings of the victim. Consent may be expressed or implied; if implied, it must be determined on the basis of reasonable appearances.

When a person voluntarily participates in an altercation, he may not recover for the injuries which he incurs, unless force in excess of that necessary is used and its use is not reasonably anticipated. White v. Gill, 309 So.2d 744 (La.App. 4th Cir. 1975); Buchert v. Metropolitan Life Insur ance Company, 219 So.2d 584 (La.App. 4th Cir. 1969). The use of unnecessary and unanticipated force vitiates the consent. For example, when a party voluntarily engages in a fist fight and his adversary suddenly reveals a concealed or dangerous weapon, he does not necessarily consent to the use of such an instrument.

This concept is similar to a situation in which a person responds to an aggressive act or seeks to defend himself from real or reasonably apparent attacks by others but uses more force than is reasonably necessary to repel the aggression or apparent aggression. In such situations the use of force in excess of what is necessary results in liability for injuries caused by the employment of such unnecessary force. Tripoli v. Gurry, 253 La. 473, 218 So.2d 563 (La.1969); Waits v. Aetna Casualty & Surety Company, 309 So.2d 402 (La.App. 2nd Cir. 1975).

In the instant case it is clear that the plaintiff voluntarily consented to engage in a fist fight with the defendant and his friends. The plaintiff even went to great lengths to seek out such an altercation. However, it is equally apparent that the force employed by the defendant was not used in defense, was in excess of what was reasonably necessary to repel the advances of the plaintiff or his group, and was an implementation of force to which the plaintiff did not consent.

Defendant argues that the jury’s determination that plaintiff willingly participated in a fight involving a weapon which could cause injury equates to consent or assumption of risk and bars recovery for his injuries. It is urged that this finding of the jury is inconsistent with the general verdict in favor of plaintiff, thus invoking the application of the third paragraph of Article 1812 of the Louisiana Code of Civil Procedure, which provides:

“When the answers are consistent with each other but one or more is inconsistent with the general verdict, the court may direct the entry of judgment in accordance with the answers, notwithstanding the general verdict, or may return the jury for further consideration of its answers and verdict, or may order a new trial.”

The alleged inconsistency between the answer to the interrogatory dealing with willing participation and the general verdict was called to the attention of the trial court which declined to take any action. The trial judge commented:

“I feel the question may be somewhat ambiguous, and I’m not going to order the jury back or do anything about it. I don’t think it’s necessarily inconsistent, and we will sign the judgment_”

We cannot agree with defendant that this treatment of the issue by the trial court necessarily constitutes error. Valid arguments can be made both for and against the point. It appears that in answering the interrogatories the jury knowingly made a determination that the plaintiff assumed the risk of the injuries sustained. However, it is just as logical to say that the jury, in response to the explicit instructions as to this defense, rejected the defense by returning a general verdict for the plaintiff. It is also logical to argue that the jury construed the interrogatory in relation to the charge hereinafter discussed dealing specifically with mitigation of damages. As noted by the trial court, the interrogatory, especially when considered within the context of the total instructions to the jury combined with the documents containing the interrogatories and verdicts, is somewhat ambiguous. The subject interrogatory is unclear as to whether the weapon alluded to was a baseball bat in the hands of the defendant at a time when plaintiff knowingly engaged him in combat or whether it was that or some other weapon being used in the general melee. The jury may have felt that while the plaintiff knew there was a weapon in the crowd and he willingly participated in the free-for-all, he did not understand and accept the risk of being hit in the mouth with a baseball bat. The determination of whether a plaintiff has assumed a particular risk is made by subjective inquiry. Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971). Thus, it is impossible for us to conclude that the jury in this case returned a verdict that is necessarily inconsistent with its answer to the interrogatory.

Conceding, for the sake of argument, that the general verdict is inconsistent with the answer to the interrogatory, the entire record is before us and it is our duty to render a proper judgment. La.-C.C.P. art. 2164. See, also, Gonzales v. Xerox Corporation, 320 So.2d 163 (1975), and the authorities therein cited. In our view, a proper judgment requires that we affirm the trial court on the question of liability.

DAMAGES

The plaintiff contends that the jury erred in awarding only $600 in damages. The plaintiff suffered a segmental fracture of the upper jaw beneath the nose. The fractured segment containing four upper teeth was freely movable as a mass. The trauma caused the abscess of two upper teeth and one lower tooth. Four teeth suffered fractures, the extent of which was not shown at trial.

The plaintiff was treated at the emergency room of the Baton Rouge General Hospital by Dr. Rivers Wall, an oral surgeon. Dr. Wall applied a local anesthetic and attached a fracture bar to the upper jaw by passing a wire between all of the upper teeth to anchor it. Lacerations of both the upper and lower lips were debrided and sutured. Dr. Wall’s total bill for the emergency treatment and subsequent visits was $285. The emergency room charged $14.45.

Dr. Wall suggested that the plaintiff see a dentist for care of the affected teeth. A subsequent visit to Dr. Wall revealed that three teeth had lost their vitality and would eventually require root canal treatment at approximately $90 per tooth for a total of approximately $270. Dr. Wall also testified that the crowns of the four fractured teeth would need future restorative work to protect them. However, no proof of the cost of such procedures was offered. The total amount proven for past and future medical expenses amounts to approximately $570.

The trial court gave the following jury instruction which was requested by the defendant and to which the plaintiff did not object:

“ * * * In a suit for assault and battery, plaintiff’s actions before and during injury with which plaintiff was connected may be shown in mitigation or reduction in damages. Examples of such action of the plaintiff which may be considered in mitigating or reducing damages are the use by the plaintiff of loud and abusive language, provocation by plaintiff, insolence, insubordination, and threats of personal violence, if any, and where voluntary engagement and mutual combat amounts to consent of plaintiff to such fighting. * * * ”

It is obvious that the jury heeded this instruction and chose to adjust the award of damages because of the conduct of the plaintiff in relation to the altercation in which he received his injuries. The plaintiff cannot now assign as error the giving of the instruction. La.C.C.P. art. 1793.

In Morneau v. The American Oil Company, 272 So.2d 313 (La.1973), in citing a long line of cases, the Supreme Court recognized as a well-established rule that although provocation by words alone does not justify a battery, it may be considered in the mitigation of damages.

We are unaware of a concise standard for deciding when and how much damages may be mitigated. See Watts v. Aetna Casualty & Surety Company, supra at 409. However, we see no reason why, a fortiori, conduct or action which helps to create circumstances giving rise to the injury but which does not justify the actual battery, should not be considered in the mitigation of damages. Support for this view, at least inferentially, is set forth in Louisiana Civil Code Article 2323 which provides:

“The damage caused is not always estimated at the exact value of the thing destroyed or injured; it may be reduced according to circumstances, if the owner of the thing has exposed it imprudently.”

In the instant case the conduct of the plaintiff was reminiscent of that of the plaintiff in Foster v. Barker, 306 So.2d 910 (La.App. 1st Cir. 1974), which led this Court to assert:

“Prom our review of the evidence, we concur in the finding that the plaintiff went to defendant’s apartment and verbally abused him and threatened him with physical harm. In other words, he went there looking for trouble and found it. The trial judge was, therefore, justified both in law and fact in mitigating damages.” (306 So.2d at 913 — Emphasis supplied)

The record before us establishes without question that plaintiff sought and found trouble. Once tauntingly provoked by obscene verbal challenges, he pursued and caught his antagonists. Not being satisfied with one physical encounter in which he apparently prevailed, he then elected to continue the fracas at another site. We do not, however, view the problem as one solely concerned with mitigation of damages. While mitigation of damages is a valid consideration for the jury, it is still necessary to determine whether the jury abused its “much discretion” in making the award. La.-C.C. art. 1934(3). It can hardly be said that a general verdict of $600 is proper for the physical injuries sustained by plaintiff, including the permanent damage to the plaintiff’s teeth, the considerable pain and suffering he experienced, and for past and future medical expenses of $570.

A review of similar injuries in other cases strongly suggests that without the element of mitigation, plaintiff’s total damages would normally be in the range of $4,000. Compare Hernandez v. Toney, 289 So.2d 318 (La.App. 1st Cir. 1973), a case in which the injuries were much more substantial. Following the rationale of Foster v. Barker, supra, we conclude that, properly mitigated, we would have awarded the plaintiff approximately $2,500. However, it is not appropriate for us simply to decide that $2,500 is proper and then substitute that sum for the amount awarded by the trier of fact. Consequently, we disturb the award below only to the extent of raising it to the sum of $1,500 which we deem to be the lowest mitigated point that is reasonably within the discretion afforded the trial court. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

Therefore, for the foregoing reasons, the judgment of the trial court is amended to increase the award to the plaintiff from $600 to $1,500, and in all other respects, said judgment is affirmed. The costs of this appeal are assessed to the appellee.

AFFIRMED IN PART, AMENDED AND RENDERED.


author: SARTAIN, Judge.

text:
    Robert C. DYSON, Jr., et al., Plaintiffs-Appellees, v. GULF MODULAR CORPORATION et al., Defendants-Appellants. Evie Lee Creel DYSON, Individually and as Administratrix and Natural Tutrix of the Minors, et al., Plaintiffs-Appellees, v. John D. BELCHER, Jr., et al., Defendants-Appellants.
    Nos. 10435, 10436.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.

      John W. Anthony, of Talley, Anthony, Hughes & Knight, Bogalusa, for plaintiffs in suit No. 34626-B.
    John J. Cooper, of Christovich & Kear-ney, New Orleans, Counsel for Gulf Modular Corp., John D. Belcher and Fid. & Cas. Co.
    John N. Gallaspy, of Gallaspy & Paduda, Bogalusa, for Nat. Homes Corp. and O. E. Waters.
    Louis M. Kiefer, Jr. and Ethel H. Cohen, New Orleans, for Washington-St. Tammany Elec. Co-op.
    A. Clayton James, Jr. and Ronald J. Brumfield, of James, Knight & Brumfield, Franklinton, for Agri-Trading Corp., and Wayne Engerran.
    Donald H. Lee, of Seal, Lee, Branch & Brown, Bogalusa, for plaintiffs in suit No. 35147-A.
    Before SARTAIN, ELLIS and PICKETT, JJ.
   SARTAIN, Judge.

These consolidated cases are before us on remand for the purpose of reviewing quantum: See: 338 So.2d 1385 (La.1976).

Robert C. Dyson (decedent) was fatally injured on February 25, 1972 as a result of accidental electrocution. He is survived by his widow and ten children, who are the plaintiffs herein.

The trial court, in its written reasons for judgment, stated:

“With respect to the issue of quantum, this Court is of the understanding that all five minor children who are aged 8 through 16, were in foster care and were not being supported by their father.
“The father and mother were not legally separated or divorced, but had not lived together in a number of years.
“This Court understands that the purpose of fixing a monetary award in a death case is that there is no other way in which the law can compensate widows or children for the loss of their husband and father. Loss of support is taken into consideration and then loss of companionship, love and affection is taken into consideration. Where those things actually do exist and the negligence of another takes them away, the law attempts to compensate in money.
“This case does not suggest compensation, but suggests a windfall. There is nothing here to suggest that he supported his wife or children, and there is little to suggest that he did much for them in any other way. It is true that he was the only father that these children had and therefore they do have a right to recover for his loss, but the facts of this case indicate that as their loss was not great, the monetary awards should not be great. This Court will award $7500.00 to each of these five children for their loss of their father. The plaintiffs cite to this Court the recent case of Moss v. Bailey, where Judge Tanner of this Court awarded two major children, ages 19 and 21 respectively, the sum of $20,000.00 for the loss of love and affection for their father. If Moss is to be taken as a bench mark and if $20,000.00 was the figure used there, this Court would feel that under these circumstances in this case, an award of $5,000.00 to each major child would certainly be adequate. This is for the major children. The Court understands there were five major children- of the decedent.
“In view of the fact that the woman was technically his widow, she has a legal right under our Civil Code. He had not supported her in years and she had not lived with the man in a number of years. This Court -will not reach the conclusion that she was living in a state of concubinage with another as she steadfastly insisted that she was living with these people in the status of something of a caretaker.
“A review of all of the circumstances indicates an award to the widow of $15,-000.00 would be adequate.”

Pertinent to the quantum issue, defendants seek a reduction in the award of $15,-000.00 to Mrs. Dyson and the plaintiffs have answered the appeal seeking an increase in the award to Mrs. Dyson to $40,000.00 and an increase in the award to each surviving son and daughter to the sum of $30,000.00.

The trial judge’s statement, above, that this cause “does not suggest compensation, but suggests a windfall” is in obvious reference to the unfortunate circumstances surrounding the home and family life of the parties.

Mr. and Mrs. Dyson were married in 1948 and as stated above, had ten children. The two youngest children were girls, the eight older children were boys. In 1964, the older boys got into difficulty and as a result six of them were placed in a religious home for boys. Their stay at this home was not satisfactory and they were committed to the Louisiana Training Institute (LTI).

In 1966 the family was living on a dairy farm near Clifton, Louisiana. Mrs. Dyson was employed by the owner. Decedent was unemployed at the time but did assist his wife in the operation of the dairy. Mrs. Dyson left the home, ostensibly to go to the doctor, but did not return until a week later when she came back for her clothes and six of the younger children. On this occasion two of the older boys remained with decedent. The other two boys had been previously recommitted to and were confined in LTI.

Shortly thereafter the six children with Mrs. Dyson were removed by court order and placed in foster homes under the supervision of the Louisiana Department of Public Welfare.

At the time of Mr. Dyson’s death (February 25, 1972), Mrs. Dyson was residing in the home of a Mr. Dunaway, where she received room and board for caring for his five children. The four younger Dyson children were still in foster care. The record also reflects that from 1964 until 1972 one of the sons had been recommitted to LTI on one occasion and three of the sons had been recommitted to LTI on two occasions. On the date of decedent’s fatal accident, one of the sons was in Angola and another was in New Orleans on a work release program from DeQuincy.

Counsel for plaintiffs strenuously objected to the admission of any evidence tending to show the shortcomings of the Dyson boys, and their juvenile and/or criminal convictions, on the grounds that such evidence tended to degrade them and was offered for the purpose of embarrassment. They argue that such evidence in no wise diminished their love for their father or his for them. We find that the trial judge properly admitted this evidence for it does have relevance with respect to the issue of damages for loss of the love and affection that the plaintiffs had for their father.

Love and affection are by their very nature subjective and the degree of devotion one has for another is an intangible human trait which, for the purpose of compensation, must be measured by objective standards. While it is difficult to say whether this is a true measure of one’s attachment to another, it remains in reality the only practical means available to our courts. Accordingly, the visible manifestations utilized to determine love and affection between a parent and child are those interactions between members of the family when tend to reflect the closeness of the family unit, the congeniality between its members, their common interests, and generally, the type of treatment and conduct which not only engenders love and affection but nurtures it to its fullest extent.

Counsel for the surviving children have cited numerous cases wherein awards were made to minor and major children for the loss of their father in sums ranging from $15,000.00 to $35,000.00, which awards include loss of future support. The facts in the cited authorities are totally inapposite to the facts in the case at bar.

We recognize that the decedent did visit his children in foster care on a fairly regular basis, once a month for an hour. However, this has been the extent of his contact with them. He was not contributing to their support nor is there any evidence that he ever did so for the six years they were in foster homes. Their total support came from the state.

With respect to the older children, he did visit them at their respective places of confinement when possible, but distance was a handicap. On several occasions he obtained employment for two of his sons. However, because of their circumstances shown above and with the exception of one son, his contacts with his children must be considered as minimal. This is not to say that decedent was totally indifferent to his children or they to him for this is not so. Nonetheless, the factors which are used to gauge the unity of a family, their respect and love for one another, etc., above, are simply not present here and we are compelled to agree with the trial judge as to the amount of these awards. They are well within the range accorded to the trier of fact. C.C. Art. 1934(3), Coco v. Winston Industries, Inc., et al., 341 So.2d 332 (La.1976).

We now turn to Mrs. Dyson and the respective claims of the parties for an increase or reduction. Presumably, the trial judge based his award entirely on damages for loss of love and affection because in his written reasons for judgment he noted that decedent . . had not supported her in years . . .’’If this assumption is correct, we think the trial judge erred for in our opinion we do not find that Mrs. Dyson is entitled to any award for loss of love and affection, but that she is entitled to damages for loss of support. With respect to the claim for loss of support, Mrs. Dyson testified that during the earlier years of her marriage to decedent the family was “. happy and well provided for.” However, financial matters worsened, her husband became cross and either unreasonably disciplined the children or she was overprotective of them, there was a lot of bickering, her nerves became “bad”, and she “. felt it would be best all the way around, and mostly for the kids . . .’’if she and her husband separated. The only contact between Mrs. Dyson and the decedent during this six year period occurred when decedent would stop her in front of “the courthouse” to discuss the children. Other than this statement by Mrs. Dyson, the record is totally devoid of any evidence save Mrs. Dyson’s statement that she continued to love him. See: Engeron v. LeBlanc, 29 So.2d 497 (La.App. 1st Cir. 1947).

With respect to the claim for loss of support, Mrs. Dyson testified that her husband gave her an average of $60.00 per month. Accepting this statement as correct, we believe that the sum of $7500.00 for this claim will adequately compensate her. Decedent was fifty-three years of age at the time of his death. We construe his productive work life to be approximately twelve years and our award is based thereon.

Accordingly, for the above reasons, the judgment of the district court in Suit No. 10,435 is affirmed. The judgment of the trial court in Suit No. 10,436 is amended by reducing the award therein to Mrs. Evie Lee Creel Dyson from the sum of $15,000.00 to the sum of $7,500.00 and the judgment, as amended, in all other respects is affirmed. All costs of these proceedings are cast against the defendants-appellants.

JUDGMENT AFFIRMED, AMENDED, AND AS AMENDED AFFIRMED.


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    Denis R. LANGHANS et al., Plaintiffs-Appellees, v. Harold E. HALE, Defendant-Appellant.
    No. 11189.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.

      Robert R. Thorne, Slidell, for plaintiffs-appellees.
    Wendell E. Tanner, Slidell, for defendant-appellant.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

This suit for an injunction alleges the violation by the defendant of a zoning ordinance of St. Tammany Parish, Louisiana, which prohibits the placing of house trailers in certain subdivisions therein.

More particularly, the defendant is the owner of Lot 26, Square 4, of Lindberg Glen Annex, No. 2, Ward 8, located in Sli-dell, Louisiana. In March and June, 1973, Hale placed two mobile homes on that lot for the use of his daughters. As property owners in that subdivision, the plaintiffs have brought this suit to prohibit that action alleging that the defendant has violated the provisions of St. Tammany Parish Ordinance No. 523, effective January 1, 1972, as it pertains to the A-4 single family residential category set out therein. The sections upon which the plaintiffs rely are as follows:

Section 2.6 A-4 Single Family Residential District
2.601 In A — 4 Single Family Residential District uses permitted in A-3 Suburban; .
2.501 In A-3 Suburban District only the following uses of property shall be permitted: single-family dwelling; .
9.61 Dwelling: a building or portion thereof designed exclusively for residential occupancy, including one-family, two-family, and multiple-family dwellings, but not including hotels, boardinghouses, lodginghouses, or house trailers, whether such trailers be mobile or located in a stationary fashion as on blocks or other foundation.

In response to the plaintiffs’ petition, the defendant filed only a general denial until the day of the trial, at which time a peremptory exception alleging the unconstitutionality of the ordinance was entered. During the trial, without further amendment of the pleadings, the defendant attempted to prove a non-conforming use of the premises prior to the effective date of the ordinance. That proof was objected to by the plaintiffs on the ground that nonconforming use is an affirmative defense which had not been pled. Judgment was subsequently rendered for the plaintiffs.

In its written reasons for judgment, the court concluded that the ordinance was not unconstitutional, that the plaintiff had proven its case, and that its objection to the defendant’s proof of a non-conforming use as indicated above was proper. We affirm.

Defendant attacks the constitutionality of Ordinance No. 523 on the ground that it does not comply with the Enabling Act enacted by the Louisiana Legislature, which is Act 518 of 1954. That act authorized the police jury to:

“ * * * regulate the construction and use of property within the Parish for the ‘purpose of promoting health, safety, morals, or the general welfare of the community * * *.’ (Act 518, Sec. 1).
U * * *
‘ * * * divide the said Parish into districts of such number, shape, and area as may be deemed best suited to carry out the purposes of this act; and within such districts it may regulate * * *. All such regulations shall be uniform * * * throughout each district, but the regulations of one district may differ from those in other districts.’ (Act 518, Sec. 2).
U * * *
“ ‘ * * * in accordance with a comprehensive plan and design to lessen congestion in the public streets; to secure safety from fire, to promote health and the general welfare; to provide adequate light and air; to avoid undue concentration of population * * * (and) shall be made with reasonable consideration, among other things to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the values of buildings and encouraging the most proper use of land throughout such municipality.’ (Act 518, Sec. 3.)”

The appellant contends that because no provisions were made in the plan for the zoning of Ward 5 and 6 and because the parish, as a whole, was not divided into districts, that the enabling act had not been followed. Similar contentions were made in Jameson v. St. Tammany Parish Police Jury, 225 So.2d 720 (La.App. 1st Cir. 1969). There it was argued that the police jury failed to zone according to a “comprehensive plan” as directed by Act 518. After thoroughly reviewing the jurisprudence, this court noted that a zoning ordinance is presumed valid and will be upheld unless it is clearly and palpably in contravention of the enabling act or is arbitrary or unreasonable.

In interpreting Act 518, the majority further said:

“It is obvious from the reading of Section 2 above that the Act contemplated the creation of zoning districts. Nowhere is found any requirement that the whole Parish be divided into districts before any single district could be created. To the contrary, the Police Jury is specifically authorized to ‘divide the said Parish into districts of such number, shape, and area as may be deemed best suited to carry out the purposes of this Act.’ * * * ”

The dissent filed therein specifically concurred in those conclusions, to wit:

“In the case at hand the statute expressly provides for a ‘comprehensive plan’. The majority have held that the requirement of a comprehensive plan does not necessitate immediate zoning of the parish in its entirety. In this conclusion I agree.”

Thus, it has been previously decided that Act 518 does not require immediate parish-wide zoning or districting. The decision of the police jury to exclude Wards 5 and 6 from the present districting is, therefore, consistent with the terms of the act. Further, for the reasons also expressed in Jameson, that action is not constitutionally arbitrary or unreasonable.

The appellant contends that its answer in the form of a general denial is sufficient to allow it to have offered proof as to a nonconforming use of this property. Code of Civil Procedure, Art. 1005 provides:

“The answer shall set forth affirmatively arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, division, duress, error or mistake, estoppel, extinguishment of the obligation in any manner, failure of consideration, fraud, illegality, injury by fellow servant, transaction or compromise, and any other matter constituting an affirmative defense. If a party has mistakenly designated an affirmative defense as an incidental demand, or an incidental demand as an affirmative defense, and if justice so requires, the court, on such terms as it may prescribe, shall treat the pleading as if there had been a proper designation.”

In addition to those specifically listed in that article, an affirmative defense can be any response by defendant which raises new matter which, assuming the allegations of the petition to be true, constitutes a defense to the action which will have the effect of defeating the plaintiff’s suit on the merits. Webster v. Rushing, 316 So.2d 111 (La.1975); Soloman v. Hickman, 213 So.2d 96 (La.App. 1st Cir. 1968).

The defense of non-conforming use is one contemplated by Art. 1005 and the jurisprudence cited above. It raises a new issue in response to the plaintiffs’ demand which would absolutely defeat that suit if proven. Therefore, it should have been specially pleaded and may not be proven over the plaintiffs’ timely objection, which was present here. On the merits, the plaintiff introduced adequate proof in support of its demands. It was shown that the defendant placed house trailers on the property in question after the effective date of Ordinance 523 and in violation thereof. Therefore, the appellees are entitled to the relief prayed for and the judgment of the trial court is affirmed. All costs of this appeal are to be paid by the appellant.

AFFIRMED.


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    David L. SMITH, Plaintiff-Appellant, v. BAYOU RENTALS, INC., et al. Defendants-Appellees. Richard E. DUNHAM, Plaintiff-Appellant, v. Katharine O. DUNHAM et al., Defendants-Appellees.
    Nos. 11262 and 11263.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.

      David L. Smith, in pro. per.
    John S. White, Jr., Baton Rouge, for Bayou Rentals, Inc., et al.
    David M. Elision, Baton Rouge, amicus curiae.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

These consolidated suits involve various actions concerning a closely held domestic corporation.

Bayou Rentals, Inc. is a corporation controlled by the heirs of Ted F. Dunham, Sr. which has been the subject of several legal controversies since his death on April 7, 1974. At that time, he owned one hundred twenty-six shares of its stock and his two sons, Ted F. Dunham, Jr. and Richard E. Dunham, owned sixty-two shares each; those three persons also comprised the Board of Directors.

On May 7, 1974, Katharine 0. Dunham, his widow and testamentary executrix, called a meeting of the shareholders at which time a new board of directors was elected by acclamation, consisting of Bill J. Alexander, E. L. Peebles, Mrs. Dunham and the two sons. It should be noted, parenthetically, that Article VIII of the corporate charter provides that the board of directors shall be composed of three persons.

Thereafter, dissension apparently arose between these parties and on November 2, 1974, Ted F. Dunham, Jr. and Richard E. Dunham held a special meeting of the board of directors, without notice to the other principals, and took certain action including the election of David L. Smith to the Board, the acceptance of Smith’s bill for $15,000.00 for services rendered to the corporation, and the issuance of certain stock to the three of them. This action was justified on the belief of all three that the election of five directors at the May 7th meeting was an absolute nullity and that the Dunham sons, therefore, were the only Board members legally remaining.

Upon notification of this action, Mrs. Dunham initially made certain efforts to nullify it; thereafter, by general agreement of the parties, no further efforts were made to solidify their positions and litigation was begun. That action consisted of the filing of a suit by Smith primarily for the recognition of his stock ownership in the corporation and for the payment of his bill for services. Thereafter, a proceeding for a writ of quo warranto was initiated by Richard E. Dunham in which the opposing faction reconvened for similar relief.

Three hearings were conducted in the trial court concerning the various issues involved therein. In summation, the court dismissed the writ of quo warranto sought by Richard E. Dunham, but maintained that writ on the reconventional demand filed by Mrs. Dunham, Alexander and Peebles; it also dismissed Smith’s suit. Only Smith has appealed. We affirm.

The reasons for the action taken by the district court are primarily expressed in an extensive and well reasoned opinion rendered on August 15, 1975. The necessity for a full discussion of that opinion has been obviated because only Smith has appealed. Essentially the court concluded that, although contrary to the corporate charter, the five directors elected at the May 7, 1974 meeting were “de facto” directors and were thus entitled to notice of the November 2 meeting at which time the Dunham sons attempted to proceed on their unilateral course of action. Further, their failure to provide that notice rendered their action null, including the attempted issuance of stock to themselves and to Smith, and that Mrs. Dunham continued as testamentary executrix to retain the voting majority possessed by her late husband. Also applicable to Smith’s appeal are later oral reasons for judgment in which it was concluded that the Dunham sons did not have actual or apparent authority to contract with Smith for services to the corporation.

The jurisprudence of this state has recognized “de facto” corporate officers. St. Bernard Trappers Assn., Inc. v. Michel, 162 La. 366, 110 So. 617 (1926); Straughter v. Holy Temple of Church of God and Christ, 150 So.2d 124 (La.App. 4th Cir. 1963), In the Matter of Louisiana Investment & Loan Corporation, 224 F.Supp. 274 (E.D.La.1963). In Michel, supra, the court observed:

“* * * even though the said board was not legally and regularly elected, and even though a majority were ineligible, yet they were de facto officers, acting under color of title and in the open and exclusive possession of the office, and discharging its functions without question or protest and hence that the action of said board in making the assignment was binding on the corporation if such assignment was otherwise legal.”

The trial judge correctly found that, although the election of five directors was in violation of the corporate charter, that such action caused those persons to be “de facto” directors. Both Ted F. Dunham, Jr. and Richard E. Dunham, who later attempted to repudiate that action, were present at that election, took part in it, and approved the action taken at that time.

Having assumed the status of “de facto” directors, those five persons remained in that capacity until removed by proper corporate action, which occurred at the next lawfully called meeting on January 9,1975. The actions at the meetings on November 2 and 5, 1974, which were conducted by the two Dunham sons, without notice to the other three “de facto” directors, were null and void.

The issue of the liability of this corporation for Smith’s services is not without difficulty. His involvement began in July, 1974, when he first discussed employment as a management consultant for Bayou Rentals, Inc. with the Dunham brothers. He related that over several previous years, he was employed by the Dunham interests in Louisiana and elsewhere that he had dealt on many prior occasions with those two persons as corporate directors, and that he had no reason to question their status as board members with Bayou. He states that they approached him as directors of that corporation and that they were clothed with the apparent, if not actual, authority to retain him. The legal principle involved is stated in Harris v. Automatic Enterprises of Louisiana, Inc., 145 So.2d 335 (La.App. 4th Cir. 1962), in which the court said:

“* * * The law is clear that a corporation is liable for the acts of its officers, agents, and servants acting within the scope of the actual or apparent authority vested in them. LSA-C.C. Articles 436-439. Esso Standard Oil Co. v. Welsh, 235 La. 593, 105 So.2d 233.”

We find, however, that because of the peculiar facts surrounding this arrangement, that Smith knew or should have known that the authority of the Dunham brothers was not what it seemed to be.

This was clearly not the usual employment relationship. By his own admission, Smith knew very well that Mrs. Dunham controlled the majority of the stock after her husband’s death and that Alexander and Peebles were, and had been, actively engaged in the business. Yet, he had absolutely no contact with them concerning the affairs of the corporation for which he was allegedly performing considerable service. He admitted that he discussed the status of the board informally with an attorney during the transitional time period. His close relationship with the persons who hired him and his subsequent action in support of their faction in this dispute compels the conclusion that he knew that the action of his employers had been taken without the approval of the other principals and possibly contrary to their wishes. In short, the depth of his understanding and participation of these events was obviously considerable and it appears that he was not an uninformed bystander who was misled by the authority which the Dunham brothers had.

The remaining three specifications of error by the appellant are directed at procedural rulings made by the district judge in the course of the trial. It is argued that the court erred in ruling that certain stipulations which had been introduced in the quo warranto hearing were binding upon the appellant in the companion suit. However, as correctly pointed out by the appellee, those stipulations were introduced without objection in the suit being heard prior to the court’s ruling.

The appellant also maintains that the trial court’s failure to allow an offer of proof or to rehear certain evidence amounted to reversible error. In Broussard v. State Farm Mutual Automobile Ins. Co., 188 So.2d 111 (La.App. 3rd Cir. 1966), writs refused, 249 La. 713, 190 So.2d 233, cert. denied, 386 U.S. 909, 87 S.Ct. 855, 17 L.Ed.2d 783, the court observed:

“In commonlaw states, upon finding prejudicial ruling as to evidence, the case would ordinarily be remanded for new trial. This is not the rule in Louisiana. Under our state constitution, ordinarily appellate review in civil cases is ‘on both the law and the facts’. Louisiana Constitution of 1921, Article VII, Section 29. By reason of this constitutional mandate, a Louisiana appellate court will usually decide the appeal on its merits rather than remanding for new trial and new findings by the trier of fact, when the reviewing court is able to make an independent factual determination of the evidence as contained by the complete record of that sought to be introduced at the trial, including that ruled inadmissible by the trial court but nevertheless included in the record for purposes of appellate review, LSA-C.C.P. Art. 1636.”

There is sufficient evidence in the record to support the ultimate action of the trial judge and to allow a full review by this court. For these reasons, the judgment of the district court is affirmed. All costs of this appeal are to be borne by the appellant.

AFFIRMED.

      . Writs refused, 244 La. 221, 151 So.2d 693.


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    Robert MATTHEWS, Plaintiff-Appellee, v. STATE of Louisiana, THROUGH the DEPARTMENT OF CORRECTIONS et al., Defendant-Appellant.
    No. 11269.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.

      Robert Matthews, pro se.
    William J. Guste, Jr., Atty. Gen., E. Roland Charles, Staff Atty., Baton Rouge, of counsel, for defendant-appellant, State of La., through the Dept, of Corrections et al.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

This is an appeal by the State from a judgment in favor of plaintiff, Robert Matthews, for $6.40, representing the value of sixteen packages of cigarettes.

We find that the trial judge erred as a matter of law in imposing liability on the State without a showing that the loss was the result of specific acts of sub-standard conduct on the part of an agent or employee of the State. The State’s liability is vicarious and such a showing is essential. Little v. Caterpillar Tractor Company, 169 So.2d 654 (La.App. 1st Cir. 1964); Moreau v. Landry, 305 So.2d 671 (La.App. 1st Cir. 1974); C.C. Art. 2320.

In the interest of time and economy, the trial judge declined to subpoena some eight witnesses requested by the plaintiff. Presumably, plaintiff intended to establish a connexite between the loss complained of and negligent conduct of a state employee. The matter is remanded for this purpose.

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

All such costs as relate to this appeal and are permitted by law are assessed against the State. All other costs are to await a final determination on the merits.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.


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    Norbert SCHEXNAYDER, Plaintiff-Appellant, v. John McCAWLEY, Sr., et al., Defendants-Appellees.
    No. 11275.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.

      Glynn A. Long, Donaldsonville, for plaintiff-appellant.
    Joseph F. Keogh, Robt. L. Kleinpeter, Baton Rouge, for defendants-appellees.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

This suit involves a collision between an automobile which had been immobilized on a highway because of a prior collision and an oncoming motorist which collided with the obstructing vehicle.

On May 2, 1970, at approximately 2:00 o’clock A.M., John R. McCawley, Jr. who was traveling south on Louisiana Highway 30 in Ascension Parish, struck the rear of an Ascension Parish Sheriff’s vehicle, knocking it into a ditch adjacent to the road. McCawley’s car came to rest in a position which partially blocked both lanes of travel of the highway. Within three to five minutes, Glenn Schexnayder, the minor son of the plaintiff, approached from the north and collided with the McCawley vehicle. As a result thereof, he sustained personal injuries for which he seeks damages here. Subsequent to trial on the merits, the district court dismissed the plaintiff’s suit. We affirm.

The record indicates that moments after striking the Sheriff’s vehicle, McCawley saw an automobile approaching from the south. He moved down the road in the direction of that car, waved it down, and asked the driver, Mrs. Julia Barrilleaux, to direct her headlights on his unlighted vehicle to warn oncoming motorists. As he was doing so, he became aware of the Schexnay-der vehicle approaching from the opposite direction. He immediately moved up the road towards it and began waving his hands, as he had previously done. At the same time, Mrs. Barrilleaux, afraid that her car might also be struck, pulled away from the accident scene.

In detail, McCawley recounted that he unsuccessfully waved to Schexnayder until he had to dive out of the way to avoid being hit. Passengers in the Barrilleaux car confirmed that they thought he might have been struck. Despite those efforts, the defendant related that he observed no effort by Schexnayder to stop prior to his diving into the ditch. Unfortunately, Schexnayder suffered head and facial injuries in the collision and remembers nothing about the accident.

The trial judge determined that McCaw-ley acted reasonably and prudently after the first accident and did all that anyone could to prevent further mishap. That conclusion made unnecessary any finding as to the contributory negligence of Schexnay-der.

R.S. 32:141(B) provides:

“The provisions of this Section shall not apply to the driver of any vehicle which is disabled while on the main traveled portion of a highway so that it is impossible to avoid stopping and temporarily leaving the vehicle in that position. However, the driver shall remove the vehicle as soon as possible, and until it is removed it is his responsibility to protect traffic.

That paragraph requires only that the driver of a stalled vehicle take reasonable steps, under the circumstances, to protect traffic. Payne v. Allstate Insurance Co., 256 So.2d 788 (La.App. 1st Cir. 1971), writs refused 260 La. 1123, 258 So.2d 376 (1972). In Chivers v. Couch Motor Lines, Inc., 159 So.2d 544 (La.App. 3rd Cir. 1964), the court observed:

“Further, considering that the decedent Chivers was making reasonable efforts to warn oncoming traffic of the obstruction caused by his disabled vehicle and that there was not time nor opportunity to remove it from the roadway before the present accident, the decedent was free of fault constituting a proximate contributory cause of the accident. Washington Fire & Marine Ins. Co. v. Canal Ins. Co., La.App. 1 Cir., 110 So.2d 231; Mouton v. Pacific Indemnity Co., La.App. 1 Cir., 102 So.2d 563; White v. State Farm Mut. Auto. Ins. Co., La.App. 1 Cir., 66 So.2d 391. The present facts are thus distinguished, as well as for other reasons, from those in the decision relied upon by appellants, Dixie Drive It Yourself System New Orleans Co. v. American Beverage Co., 242 La. 471, 137 So.2d 298, where the driver of the disabled vehicle was negligent because he made no attempt to warn oncoming traffic of the obstruction to traffic created by his vehicle.”

As indicated by the three to five minute time period which elapsed between accidents, this was not a continuing incident and the status of McCawley’s automobile was that of a disabled vehicle under the statute. McCawley was apparently at fault in causing the initial collision, although that matter is not presently before us. Thereafter, however, his actions complied with the requirements of R.S. 32:141(B). He managed to stop the first vehicle that approached and requested their help to illuminate the dangerous condition that existed. He then, apparently at some risk to himself, attempted to warn Schexnayder, without success. Although his preceding actions may have created an imminent danger, we find no element of the continuing negligence present in Casagrande v. Roullier, 267 So.2d 260, (La.App. 4th Cir. 1972).

Therefore, for the reasons assigned herein, the judgment of the trial court is affirmed. All costs of this appeal are assessed against the appellant.

AFFIRMED.


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    Ragna R. HUNT, Plaintiff-Appellant, v. FIREMAN’S FUND INSURANCE CO. et al., Defendants-Appellees.
    No. 11285.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.

      Michael Roy Fugler, Baton Rouge, of counsel, for plaintiff Ragna R. Hunt, appellant.
    John B. Noland, Breazeale, Sachse, & Wilson, Baton Rouge, of counsel, for defendant Fireman’s Fund Ins. Co., appellee.
    Donald T. W. Phelphs and John W. L. Swanner, Baton Rouge, of counsel, for defendant United Services Auto. Ass’n, appel-lee.

      Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

The accident giving rise to this litigation occurred on July 25, 1975, in Hale County, Alabama. Plaintiff appeals from the judgment of the district court rejecting jurisdiction as to two nonresident defendants. We affirm.

.Plaintiff, Ragna R. Hunt, was a guest passenger in a vehicle owned by her father, Percy S. Hunt, that was being driven at the time by John C. Lindsay, Jr., a resident of Alabama. Miss Hunt sustained serious personal injuries. Mr. Lindsay was killed.

The vehicle owned by Mr.’ Hunt was insured by Fireman’s Fund Insurance Co. (Fireman’s Fund). United Services Automobile Association (USAA) had issued a policy of liability insurance in Alabama covering Mr. Lindsay’s vehicle which insured him against damages resulting from his negligence in the operation of a non-owned vehicle.

Plaintiff brought suit in the 19th Judicial District Court, Parish of East Baton Rouge, and named as defendants, Fireman’s Fund, USAA, and the Estate of John C. Lindsay, Jr. (Lindsay). The instant controversy pertains solely to these latter two defendants, namely, USAA and Lindsay.

Jurisdiction over Lindsay is predicated upon two grounds: (1) Louisiana’s “omnibus long arm” statute, R.S. 13:3201, et seq., and (2) nonresident attachment of property owned by Lindsay and situated within this state.

Jurisdiction over USAA is based on our direct action statute, R.S. 22:655.

JURISDICTION AS TO LINDSAY

The validity of the exception of lack of personal jurisdiction over Lindsay renders moot other declinatory and dilatory exceptions filed on behalf of this defendant.

In Cambre v. St. Paul Fire and Marine Insurance Co., 331 So.2d 585 (La.App., 1st Cir. 1976), we stated that “Our long arm statute was intended to take maximum advantage of the United States Supreme Court decisions dealing with the due process issue.” However, it should be noted that the facts in Cambre are somewhat different than those found in the instant case. The only defendant permitted to stand in Cam-bre was one defendant (Ory) and he was a resident of Louisiana.

Nonetheless, plaintiff relies on the above language in Cambre and correctly states that the intent of the legislature in adopting R.S. 13:3201 was to accomplish just such a purpose. However, plaintiff further reasons that Lindsay is subject to the jurisdiction of the courts of this state because he knowingly undertook to drive a vehicle which he knew belonged to a Louisiana resident and was in the act of transporting a passenger whom he knew to be a Louisiana domiciliary under conditions foreseeable to him that his negligent operation would cause damage in Louisiana. We reject this effort to extend the applicability of R.S. 13:3201.

R.S. 13:3201 [§ (a) through (e)] specifies the jurisdictional bases for its application. This statute must be read in conjunction with R.S. 13:3202, which clearly provides that “When personal jurisdiction over a nonresident is based solely upon R.S. 13:3201, only a cause of action arising from acts or omissions enumerated therein may be asserted against him.” (Emphasis ours)

It is obvious from a reading of the express provisions of R.S. 13:3201 that the statute provides no basis by which a Louisiana court may extend its jurisdiction to a nonresident defendant in the situation of Lindsay’s estate. No activities within the state have been attributed to him. He transacted no business in the state, supplied no things or services within the state, and committed no offense or quasi offense within the state. The injuries suffered by his alleged negligent operation of the vehicle can not be said to have been caused within the state. The district court was correct as a matter of law in sustaining the exception of lack of jurisdiction over Lindsay on the basis of R.S. 13:3201. Rush v. Matson Navigation Co., 221 So.2d 265 (La.App. 2nd Cir. 1969).

Plaintiff’s attempt to obtain quasi in rem jurisdiction over Lindsay must also fail. Plaintiff caused to be issued a writ of attachment pursuant to C.C.P. Art. 3541 naming USAA as garnishee. It is contended that under the policy, issued and delivered in Alabama, Lindsay is possessed of certain rights as to coverage and that these rights exist in Louisiana by virtue of USAA’s authority to do business in this state. USAA moved to dissolve the attachment. Plaintiff first contends that USAA is without standing to do so. While the policy does agree to pay certain sums up to its limits and to defend Lindsay, USAA is not required to pay until its insured is cast and it is not required to defend unless its insured is required to defend. USAA’s duties in this context are not to be confused with its responsibilities under actions brought directly against it under R.S. 22:655. USAA had every right to object to any effort to exercise jurisdiction over one of its policy holders and must be considered as a defendant within the meaning of C.C.P. Art. 3506 with standing to seek dissolution of the subject writ of attachment.

On at least two occasions when jurisdiction over a nonresident was attempted via attachment of a nonresident’s rights under a liability insurance policy, the courts have declined to do so.

In Kirchman v. Mikula, 258 So.2d 701 (La.App. 3rd Cir. 1972), a Louisiana plaintiff involved in an accident in New Jersey, brought suit against a New Jersey resident who was insured under terms of a liability policy issued in New Jersey by an insurance company licensed to and actually doing business in Louisiana. Plaintiff attempted to attach the policy and thereby acquire an in rem judgment. Plaintiffs in that case relied, as plaintiff here does, on the New York case of Seider v. Roth, 17 N.Y.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312, as authority for allowing such nonresident attachment.

The court in Kirchman refused to allow the attachment of an insurance policy under such conditions. It held that our Direct Action Statute makes a fund available to a plaintiff who is injured as a result of the acts of an insured; provided there are minimum contacts in Louisiana as presented in Webb v. Zurich Ins. Co., 251 La. 558, 205 So.2d 398 (1967). The court concluded that the legislature did not wish to extend the right of direct action against an insurer to a plaintiff where such minimum contacts are not present. Likewise, we feel that our ability to extend the limits under which nonresident attachment may be utilized to gain jurisdiction over a nonresident insured are defined by our Direct Action Statute and the limitations of constitutional due process as set out in Webb v. Zurich, supra.

As stated in Grinnel v. Garrett, 295 So.2d 496 (3rd La.App., 1974), writs refused, 300 So.2d 181 (La.1974):

“ * * * The use of our attachment statute to gain jurisdiction over the named defendants where no such jurisdiction could exist through operation of either the Direct Action Statute (LSA-R.S. 22:655) or the Long Arm Statute (LSA-R.S. 13:3201 et seq.) would seriously test due process. It would, in effect, allow suit in all states where a liability insurer is situated, under the rationale that if present and if it owes certain obligations to defendant, it can be forced to surrender those obligations through attachment. Suit could result in the state of plaintiff’s choosing with the only requirement being that defendant’s insurer be licensed to do business there. Forum shopping would become a way of life.”

The New York court’s decision in Seider v. Roth, supra, is merely persuasive authority in Louisiana and arose in a different context from our Louisiana cases touching on the same subject. New York has no Direct Action Statute or other legislation setting limits on the authority of that state’s courts to bring out-of-state defendants within the court’s jurisdiction. New York courts look upon the attachment procedure as a direct action statute which in itself provides the- minimum contacts necessary to allow a constitutionally valid attachment of an obligation owed the defendants by insurers present in New York. Rintala v. Shoemaker, 362 F.Supp. 1044 (D.Minn.1973). The Louisiana Direct Action Statute adequately provides for this.

Plaintiff argues that the Kirchman and Grinnel are not binding on this court because these decisions are from another circuit. Were we inclined to tamper with these authorities, we would not do so. The Supreme Court of Louisiana in declining writs in Grinnel (above) found “no error of law”. Were we to hold to the contrary, a writ by that court would be imperative since there would exist a conflict between our two circuits. Writs may be applied for in this cause and if the Supreme Court is inclined to change its views, it may do so by granting a writ herein. At least, it is afforded the choice without the necessity of granting the writ.

JURISDICTION AS TO USAA

It is undisputed that the policy of USAA was issued and delivered in Alabama and that this accident occurred in Alabama. Our jurisprudence is now well settled that under such circumstances an insurer is not subject to a direct action against it under R.S. 22:655. Webb v. Zurich, supra; Easterly v. Dynamic Enterprises, Inc., 334 So.2d 467, 470 (La.App. 1st Cir. 1976); writs refused 338 So.2d 288 (La.1976).

Accordingly, for the above reasons, the judgment of the district court is affirmed. All such costs as relate to the instant appeal are assessed against the plaintiff. All other costs are to await a final determination on the merits.

AFFIRMED.


text:
    RORAN CORPORATION, Plaintiff-Appellant, v. Aubrey CARRON and SCM Corporation, Defendants-Appellees.
    No. 11316.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    John E. Miller, Baton Rouge, for plaintiff Roran Corp., appellant.

      John L. Glover, Baton Rouge, for defendant SCM Corp., appellee.
    James O. Ervin, Baton Rouge, for defendant Aubrey Carrón, appellee.
    James A. Wood, Baton Rouge, for third party defendant R & R Consultants.
    Philip N. Burt, Baton Rouge, for third party defendant U-Store-It, Inc.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

This is a suit to determine a dispute between a principal contractor (plaintiff-Ro-ran) and a painting subcontractor (defendant-Carron) and the paint supplier (defendant-SCM Corporation, parent company of Glidden-Durkee). Plaintiff appeals from an adverse judgment. We affirm.

Defendant Carrón argues that he was acting as an agent and employee of Corporate Triangle, Inc., and is not individually responsible.

Defendant SCM contends that the paint it furnished was not substandard and the “failure” complained of was not due to any defect in its product.

The issues presented are exclusively questions of fact. They are (1) who must bear responsibility for the failure of the interior wall surfaces, and (2) whether Aubrey Car-rón acted individually or as an agent of Corporate Triangle, Inc.

As to the first issue, the trial judge, in his written reasons for judgment, stated:

“The testimony clearly indicated that this paint did not fail. The only fault is with the subcontractor for using paint which did not meet the contract’s specifications. A more enamel-like paint as required by the specifications would have been satisfactory for the contractor’s and owner’s requirements; however, it was not used. Randall and Robinson, as representatives of plaintiff and the owner, were on the job on a daily basis. They had ample opportunity to observe the paint in question while it was being applied but never determined that the paint as delivered to the job and applied to the walls was not the paint specified in the contract. The subcontractor’s failure to use the required paint, together with plaintiff’s failure to inspect the paint that was being used is the only fault involved herein. Insofar as SCM is concerned, the court finds no fault. * * * ”

As to the second issue, the trial judge also stated:

“Aubrey Carrón has been sued individually. P-1 indicates that the subcontract was between plaintiff and Corporate Triangle (Corporate). The signature portions of said contract indicate that Aubrey F. Carrón signed as the subcontractor for Corporate. No mention is made in the subcontract itself that Corporate was a corporation. The evidence indicated that Corporate had been duly incorporated on October 19, 1973, and that Barney Manuel and Aubrey Carrón owned the corporation equally. The evidence convinced the court that Carrón fully advised Randall that the corporation was to be the subcontractor. Carrón testified that the contract had to be rewritten to indicate who the subcontractor was and Randall did not deny this fact but admitted it was possible that he wrote another contract wherein he changed the names after being requested by Carrón to do so. Carrón indicated that he did not feel that ‘Inc.’ was necessary because the first word in the corporation name was ‘Corporate.’ From all of the testimony, it is abundantly clear that Carrón did fully advise Randall that he was entering into the contract in his corporate capacity and not personally. Accordingly, there can be no personal judgment against Carrón herein on the main demand.”

An agent who discloses the identity of his principal can not be held to have acted individually so as to be personally liable for the acts of his principal. Williams v. O’Bryan, 257 So.2d 174 (La.App.3rd Cir. 1972).

We find no manifest error on the part of the trial court in the conclusions noted above. The judgment appealed should be affirmed. Carter v. New Orleans Public Service, Inc., 305 So.2d 481 (La.1974); and, Spreen v. Gibbs, 305 So.2d 494 (La.1974).

Accordingly, the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    Frederick ELLIS v. Brinnon DILLON et al.
    No. 11243.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    M. Reggie Simmons, Franklinton, for plaintiff.
    John N. Gallaspy, Bogalusa, for defendant.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is an action to enjoin a sheriff’s sale pursuant to the writ of fieri facias as well as having recognized the homestead exemption from seizure and sale of a house trailer. From a judgment in favor of defendant and plaintiff in rule enjoining the sale and recognizing the exemption plaintiff and defendant in rule has appealed.

The record discloses that on February 4, 1975, appellees, Brinnon Dillon and his wife, Judy Dillon, individually, and on behalf of D & E Materials, Inc., entered into a written contract with appellant, Frederick Ellis, wherein the appellees agreed that one certain 1972 green Mack truck and Taylor trailer belonging either to Brinnon Dillon and Judy Dillon, individually, or to the defendant corporation, would become the property of Ellis in the event that appellees did not repay appellant the full sum of $5,000.00 on or before August 5, 1975. The contract was in consideration of a loan made by Ellis to the Dillons or the defendant corporation on February 5, 1975. The loan was not paid off at its maturity and Ellis sued and gained judgment against ap-pellees in said sum. Subsequently, the property was seized by the sheriff pursuant to a writ of fieri facias. Appellees secured a temporary restraining order and a rule issued for preliminary injunction.

Following the hearing in the Trial Court, a preliminary injunction was issued enjoining and restraining Frederick Ellis and the sheriff from attempting to remove, disturb or sell the house trailer. The Trial Judge gave very brief written reasons, to wit:

“This is a rule for a preliminary injunction to restrain the seizure and sale of a trailer by a judgment creditor under a writ of fieri facias. The trailer is situated on two acres of land in Washington Parish. The plaintiff-in-rule claims that the trailer is part of his homestead and consequently exempt from seizure under the provisions of Article II [XI] of the Louisiana Constitution of 1921, and Article 14:34 of the Louisiana Constitution of 1974. The defendant-in-rule claims the trailer is a movable and consequently not entitled to the protection of the above cited articles.
“The evidence shows that plaintiff-in-rule purchased the trailer from defendant-in-rule on September 22, 1971. The trailer was located at the same place then as now. Since the purchase plaintiff has lived in the trailer with his family, his wife and children. No attempt has been made to move it. The trailer is sitting on its axle, it is hooked to electrical wires, has piping to a pump for water, and additionally, has sewerage pipes. Also, the plaintiff has welded angle iron to the trailer and sunk them in cement in the ground.
“The Court assumes that for the purpose of determining whether the trailer is an ‘appurtenance’ to the property, the consideration of whether it is attached so as to become immovable by nature or destination is pertinent. If so, the Court finds as a fact that from the intent and nature of the structure, it is immovable and subject to the constitutional protection against seizure.
“Additionally, however, the Court knows of no reason why it would not be exempt from seizure as part of plaintiff-in-rule’s homestead even if it were movable. The Constitution provides that,
‘There shall be exempt from seizure and sale . . the homestead consisting of lands . . . buildings and appurtenances ... of every head of a family . . . ’
“The obvious intent of the Constitution is to protect the family from the seizure of their home. c. f. Cloud v. Cloud [La. App.], 127 So.2d 560. Normally the home is a ‘building’ in the ordinary since of the word, and consequently the Constitution used the term ‘building’ in referring to the home. Increasingly, however, the ‘home’ may be a structure such as a trailer, but it is still a home and consequently a ‘building’ within the meaning of Article II [XI] of the Constitution.
“R.S. 32:710 as referred to by defendant-in-rule, is obviously a means of protecting the chattel mortgage holder as against the holder of a mortgage on the real estate on which the chattel may be located. It has nothing to do with the homestead exemption. Further, it is the view of this court that whether a trailer is secured by a chattel mortgage or a mortgage on real property in accordance with R.S. 32:710, if the mortgage does not contain a waiver of homestead the exemption may be asserted if the trailer is actually occupied as a home.
“The preliminary injunction will issue as prayed for herein, cost be paid by defendant-in-rule.”

Appellant contends that the Trial Judge was in error in classifying a house trailer as an immovable arguing that appellees’ failure to comply with the provisions of LSA-R.S. 32:710 precludes the trailer being an immovable, and further in none of the civil code provisions can a house trailer be an immovable, and thus, not eligible for the exemption. He further contends the Trial Judge was in error in holding that even if the house trailer was not an immovable, it was still subject to the exemption. He lastly argues that even if exempt from seizure and sale, the sale is not prohibited except as up to the amount of the exemption.

The first issue to be resolved is whether a house trailer can be an immovable?

LSA-C.C. Art. 464 provides:

“Lands and buildings or other constructions, whether they have their foundations in the soil or not, are immovable by their nature.”

The courts must determine what is a building or other construction qualifying as an immovable under LSA-C.C. Art. 464 based on societal needs of the times. Benoit v. Acadia Fuel & Oil Distributors, Inc., 315 So.2d 842 (La.App. 3rd Cir. 1975), writ refused 320 So.2d 550 (La.1975).

There are no reported cases deciding whether a house trailer which sits on its axle, though is anchored to the ground as well as being connected to electrical wires, water pipes and a sewerage line is an immovable, and thus we have no jurisprudential guidance directly on point.

As was said in Holicer Gas Co. v. Wilson, 45 So.2d 96 (La.App. 2nd Cir. 1950):

“[T]he facility with which a structure may be transported, placed and displaced, is not a reliable guide. In Vaughn v. Kemp, 4 La.App. 682, the court held that a small structure set above ground on wooden blocks by a landowner’s lessee became an immovable by nature and this despite the existence of an agreement permitting the removal by the lessee on termination of the lease.
“Similarly, a cistern was held to be a ‘construction’, immovable by nature, under Article 464, Polhman v. De Bouchel, 32 La.Ann. 1158.
“Nor are we disposed to accord great weight to plaintiff’s contention that the gas tank occupies the status of a movable because it was manufactured or fabricated before being placed upon the property. We have been able to find nothing in the law or jurisprudence of this State which requires buildings or constructions to be actually built or constructed upon the land in order to be classed as a immovable. Such a conclusion would be utterly unjustified, and, in these days of prefabrication, would lead to absurd consequences entirely incompatible with the obvious intent of the codal provisions.”

This court is cognizant of the trend in our society today that because of increased construction cost for new housing, the ever increasing cost of buying existing housing, and the further inflationary costs of renting, that many families have turned to mobile homes as residences. The mass production of mobile homes in factories away from the site of ultimate occupancy, and even outside the state of occupancy, has afforded to many the opportunity to buy a home at a reasonable price within which to commence a family. We dare say that mobile homes as society knows of them today were not envisioned when our Civil Code was written, but neither were metal gas tanks. We, therefore, hold that the mobile home in this case is a “building or other constructions” within the meaning of LSA-C.C. Art. 464, and thus an immovable by nature.

Appellant also argues that appellees did not comply with the requirements of LSA-R.S. 32:710 N, which provides:

“N. (1) Except as provided by Paragraph (2) hereof, when any vehicle whatsoever shall be moved to and located in or upon any immovable property, or installed therein or thereon in a manner which, under any other law, might make the vehicle an immovable by nature or by destination, the vehicle shall be and will remain a vehicle subject to the provisions of this Chapter governing its mortgaging or sale. Title to the vehicle shall not pass by the sale of the immovable property to which it has been actually or fictitiously attached, whether such sale be conventional or judicial. No sale or mortgage of or lien upon the immovable property shall in any manner affect or impair the rank or privilege of a chattel mortgage on such vehicle, or the remedies of the holder thereof for its enforcement.
“(2) A mobile home designed for use as a place of human habitation and placed upon a lot or tract of land shall be an immovable when there is recorded in the appropriate conveyance or mortgage records of the parish where the said lot or tract of land is situated an authentic act of sale or mortgage or sale with mortgage which: (a) contains a description of the mobile home as described in certificate of title and a description of the lot or tract of land upon which the mobile home is placed, (b) contains a declaration of intent by the owner of the mobile home that it shall remain permanently attached to the lot or tract of land, and (c) has attached to said act the certificate of title for the mobile home described therein. “Upon the recordation of the act together with the certificate of title described above, the mobile home shall cease to be subject to the application of this Chapter and the taxes applicable to movables and shall thereafter be subject to all laws concerning immovable property.”

All that this section provides is that until there is recorded in the appropriate records of the parish where the lot or tract of land is located upon which the mobile home is to be placed an authentic act of sale or mortgage which contains a description of the mobile home, a declaration of intent by the owner of the mobile home that it will be permanently attached to lot or tract of land, and the certificate of title is attached, that the mobile home continues to be governed by the provisions as to titling and mortgaging of this section of the law, even though it may have been declared an immovable by nature or by destination under any other law. We therefore are of the opinion that LSA-R.S. 32:710 N is not controlling.

Appellant further contends that the Trial Judge was in error in prohibiting the sale, and we agree.

Article 12, § 9, La.Const. (1974) provides: “The legislature shall provide by law for exemptions from seizure and sale, as well as waivers of and exclusions from such exemptions. The exemption shall extend to at least fifteen thousand dollars in value of a homestead, as provided by law.”

Article 14, § 34, La.Const. (1974) provides:

“The provisions of Article XI of the Constitution of 1921 shall be continued as a statute until the legislature enacts the law required by Article XII, Section 9 of this constitution, but the amount of the exemption shall be fifteen thousand dollars in value until otherwise fixed by law.

Article XI, § 1, La.Const. (1921) provides in part: •

“Provided, that in case the homestead exceeds Four Thousand Dollars ($4,000.00) in value, the beneficiary shall be entitled to that amount in case of a sale of the homestead under legal process realizes more than that sum; if the sale does not realize more than that sum, over and above all costs and expenses, said sale shall be null and void.”

Whereas the 1921 Constitution provided for a $4,000.00 exemption, the 1974 Constitution has provided for a $15,000.00 exemption, however, the 1974 Constitution has continued as a statute that language found in Article XI, § 1, La.Const. (1921). Thus, the sale takes place, however, if the sale does not realize more than $15,000.00 over and above all costs and expenses, the sale is null and void. The Trial Judge was therefore in error in enjoining the sale. The sale must be allowed to take place, and if not more than $15,000.00 over and above all costs and expenses is realized, the sale is null and void. If the sale realizes more than $15,000.00, then the appellees are entitled to the sum of $15,000.00.

The appellant further contended that the Trial Judge was in error as to the reference by the Trial Judge in his written reasons for judgment that even though the mobile home may be an immovable it was still subject to the exemption. Inasmuch as this Court has concluded that the mobile home in this case is an immovable by nature, and thus subject to the exemption, there is no need for us to discuss this specification of error.

Therefore, for the above and foregoing reasons the judgment of the Trial Court as to its enjoining the sheriff’s sale is reversed and set aside, and in all other respects judgment of the Trial Court is affirmed. All costs of this appeal to be paid equally by appellant and appellees.

AFFIRMED IN PART AND REVERSED IN PART.


author: LOTTINGER, Judge,

text:
    PROVIDENT LIFE & ACCIDENT INSURANCE COMPANY v. Sarah A. CARTER et al.
    No. 11261.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 1977.
    Charles M. Hughes, of Talley, Anthony, Hughes & Knight, Bogalusa, for plaintiff.
    Donald M. Fendlason, Bogalusa, for Sarah A. Carter.
    H. Gregory Briese, of Seal, Lee, Branch & Brown, Bogalusa, for Gary Lovett Williams, et al., minors.
    Robert A. Keily, New Orleans, for Landy Carter, Beulah Carter Martin, et al.
    A. Clayton James, Jr., of James, Knight & Brumfield, Franklinton, for George Edward Martin, minor.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge,

This is a concursus proceeding instituted by Provident Life & Accident Insurance Company because more than one claim was presented for the insurance proceeds of the life insurance policy that had been issued on the life of Buddy Lee Carter with Sarah A. Carter, his wife, named the beneficiary. The Trial Court rendered judgment awarding the insurance proceeds to Sarah A. Carter and from this judgment, Landy C. Carter, Sr., his wife and children, being the parents and brothers and sisters of the deceased, Buddy Lee Carter, filed this suspen-sive appeal.

Sarah A. Carter, on May 25, 1974, shot and killed her husband, Buddy Lee Carter. It is appellants’ position that she feloniously shot and killed him and thereby should not receive the insurance proceeds. It is Sarah A. Carter’s position that she killed her husband in lawful self-defense of herself and is entitled to the insurance money.

The case of American National Life Insurance Company v. Shaddinger, 205 La. 11, 16 So.2d 889 (1944) states that if a beneficiary of a life insurance policy intentionally takes the life of the insured feloni-ously then the beneficiary is not entitled to recover the insurance proceeds. Conversely, if the killing by the beneficiary of the person insured is in lawful self-defense, the beneficiary can claim the proceeds of the insurance.

In oral reasons for judgment, the Trial Judge after reviewing the stormy marital life of Landy C. Carter, Jr. and Sarah A. Carter stated as follows:

“I think on the occasion in question, however, that the wife was under severe provocation. She was under threat of severe bodily harm and the shooting was the culmination of an evening and night of serious trouble between her and her husband. ... I think the evidence justifies a conclusion by the Court that the killing was not feloniously inflicted.”

The Trial Judge had the benefit of seeing and hearing the witnesses testify. The decision reached by the Trial Court is based upon a finding of fact which must not be disturbed absent manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Spreen v. Gibbs, 305 So.2d 494 (La.1974).

On the night in question, the deceased had been out drinking, and at approximately 1:30 or 2:00 o’clock in the morning he telephoned his wife to pick him up in the automobile. Because of his cursing, she hung up on him; however, she did go to pick him up. When he got in the car, he argued with her and struck her in the face causing blood to flow down into her eyes so that she was unable to drive. She then crossed over to the passenger side, and he drove the automobile home. They continued to argue and prior to entering their house, he threw a bag with a six-pack of beer in it at her, and started toward her. She reached into her purse, removed the pistol, and fired at him.

There is sufficient basis for the finding of fact by the Trial Court, and we find no error.

For the above and foregoing reasons, the judgment of the Trial Court will be affirmed at appellants’ costs.

AFFIRMED.