author: SAMUEL, Judge. SCHOTT, Judge,

text:
    David H. MASSEY v. Wayne P. PARKER, Registrar of the Bureau of Vital Statistics of the City of New Orleans.
    No. 9347.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 1978.
    Writ Granted Oct. 26, 1978.

      Gerald R. Cooper, New Orleans, for plaintiff-appellee.
    H. M. Westholz, Jr., New Orleans, for defendant-appellant.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Robert E. Winn, New Orleans, amicus curiae.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   SAMUEL, Judge.

Plaintiff, who was adopted in the City of New Orleans on or about May 6,1947, filed a mandamus proceeding against the defendant, the Registrar of the Bureau of Vital Statistics of the City of New Orleans, to compel the production of plaintiff’s certificate of live birth. The petition sets forth his desire to determine whether he had inheritance rights from his natural parents as the reason for seeking production of that birth certificate.

The matter was first heard on March 25, 1977, at which time the trial judge ordered defendant to produce the original birth certificate for inspection by plaintiff. Defendant then sought and obtained a new trial primarily on the peremptory ground that plaintiff had failed to join indispensable parties. The matter was again heard on October 24, 1977, and shortly thereafter there was judgment again ordering the defendant to produce the plaintiff’s original birth certificate. Defendant has appealed from that judgment.

Adoption in Louisiana relieves the natural parents of the reciprocal rights and duties owed between parent and child, with the exception that the child retains any right he may have to inherit from his natural parents. This provision is set forth in Civil Code Article 214, which provides in pertinent part as follows:

“. . . the adopted person and his lawful descendants are relieved of all of their legal duties and divested of all of their legal rights with regard to the blood parent or parents and other blood relatives, except the right of inheritance from them.” LSA-C.C. Art. 214.

On a previous occasion, this court has held an adopted person has the right to inspect his original birth certificate and judgment of adoption to determine if he has a right of inheritance from his natural parents. However, at the time this decision was rendered, in pertinent part the relevant statutory law, R.S. 40:81 A, read as follows:

“The state registrar shall seal and file the original certificate of birth with the certificate of the decree. This sealed package shall be opened only on the order of a competent court either upon its own motion, or upon the demand of the adopted child or the adoptive parent, or the state registrar.” LSA-R.S. 40:81 A.

The present suit was filed while R.S. 40:81 A was so worded. However, between the trial court’s original judgment and the hearing on the new trial the statute was changed (by Act 659 of 1977, effective September 9, 1977) to provide that the same sealed packet may be opened under the following circumstances:

“The state registrar shall seal and file the original certificate of birth with the certificate of the decree. This sealed package may be opened only on the order of a competent court either upon its own motion, or upon the demand of the adopted child or the adoptive parent, or the state registrar, for compelling reasons and only to the extent necessary to satisfy such compelling necessity.” LSA-R.S. 40:81 A.

The issue presented is whether the desire to determine one’s legal right of inheritance under Civil Code Article 214 is a “compelling reason” within the meaning of Act 659 of 1977. We hold that it is.

In Spillman v. Parker, this court made the following statement with regard to the right of an adopted person to obtain his original birth certificate under R.S. 40:81 A prior to its amendment in 1977:

“This statute clearly specifies the circumstances under which the order should issue: (1) upon the court’s own motion, or upon the demand of (2) the adopted child, (3) the adoptive parent, or (4) the department. By specifying the record shall be produced by court order upon the demand of the adopted child, it appears the adopted child may have the unqualified right to the court order without giving any reason therefor. However, that question is not before us. Here relator has given a valid reason for his demand.
As contended by relator, the denial of a right of inspection would have the effect of violating the right of inheritance the adopted child may have as a forced heir in the successions of his blood parents.
In addition to becoming a forced heir of his adopting parents, under the provisions of Civil Code Article 214 an adopted child retains his right to inherit from his legitimate biological parents and other blood relatives. ... In the absence of knowledge as to whom these parents might be, the child is effectively prevented from seeking his rightful share in those successions.” (Emphasis added).

Thus, the court in Spillman pretermitted a discussion of the apparently mandatory language of the statute as it then read and based its decision on a finding that the necessity to make a determination of heir-ship is a valid reason for inspecting original certificates of birth. The language quoted above from the Spillman case also indicates a determination of heirship is also a “compelling reason” for inspection of birth certificates by an adopted person under Act 659 of 1977.

In Chambers v. Parker, this court made the following statement:

“The legislative intent to preserve inheritance rights to the adoptee excludes, as inconsistent, any interpretation which would prevent the adoptee from learning the identity of those from whom he is to inherit.”

This court further pointed on in Chambers that the conflict between the right of inheritance and the protection of birth records is one for solution by the legislature and not by the courts. Judge Gulotta, concurring in Chambers, further stated that if the legislature is to act in derogation of the rights of inheritance it must do so clearly and unequivocally. He further added the addition of the words “compelling reasons” to the statute by Act 659 of 1977 is not such a clear and unequivocal statement to justify effective denial of the right of inheritance to adopted persons.

We adopt the reasoning of Spillman and of Judge Gulotta’s concurrence. The rights of inheritance and heirship are creatures of the legislature and have been afforded utmost respect by both the legislature and the courts throughout Louisiana’s history. Protection of the birth records of adopted persons, on the other hand, has not received such extensive protective treatment and seems to be regarded as subordinate to inheritance in importance by the legislature, its main purpose being to shield such records from intrusion by curiosity' seekers.

We therefore hold that an adopted person’s right of inheritance from his natural parents, as recognized by Civil Code Article 214 is a “compelling reason” for allowing the adopted person to examine his original certificate of live birth.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

SCHOTT, J., dissenting with written reasons.

SCHOTT, Judge,

dissenting:

This court in Chambers v. Parker, 349 So.2d 424 (La.App. 4th Cir. 1977) held that an adopted person was entitled to access in her original birth certificate and the certified copy of the decree of adoption. The case was decided on the basis of the then prevailing wording of LSA-R.S. 40:81A, Act. 352, of 1976, which provided in pertinent part as follows:

“. . . The state registrar shall seal and file the original certificate of birth with the certificate of the decree. This sealed package may be opened only on the order of a competent court either upon its own motion, or upon the demand of the adopted child or the adoptive parent, or the state registrar.”

However, the instant case which was tried in October, 1977, is controlled by Act 659 of 1977, which amended R.S. 40:81 A as quoted above, to add the words after “registrar:”

“. . ., for compelling reasons and only to the extent necessary to satisfy such compelling necessity.”

It seems to me that we must consider the significance of these added words and to determine the intent of the legislature in adding them. For all practical purposes, my colleagues have concluded that the added words are inconsequential and the jurisprudential authority of Chambers v. Parker unaffected. I respectfully disagree.

It is fair to say that the pre-1977 version of the statute provided the trial judge with no discretion to deny a request by the adopted person for access to the file. It simply provided for some judicial intervention before a sealed package of adoption papers could be opened. In effect, the registrar, under whose control the package remained, was not at liberty to open the package on his own. In my view there was no necessity for a contradictory hearing against the registrar under the pre-1977 revision of the statute and the Chambers circumstances. At that time an adopted person was entitled to an ex parte order authorizing access to the records of his adoption.

Under the present statute, however, there must be a judicial determination on two issues before the sealed package is ordered opened. First, the court must determine if the applicant’s reasons are “compelling” and, second, the court must determine to what extent the package is to be opened in order to satisfy the “compelling necessity.” .

In this case I believe that a proper adjudication was not made of these issues. The evidence consisted only of plaintiff’s testimony who gave his reasons for wanting to see the records, i. e., he wanted to ascertain any inheritance rights he might have, to help his natural parents if they were in need and to accomplish “the basic reasons that most children have to know who their natural parents are.”

If these are “compelling reasons” per se, the statute is meaningless because every adopted person can say the same. To say that this satisfied the requirements of the statute is to say that the word “because” answers the question “why?”.

In order for any judicial determination to be made in our adversary system there must be appearance by or representation for the person whose interests might be adversely affected. In this case, who is that? Surely not the registrar who is only a custodian of the records charged with following the law. The only persons who might be adversely affected are the natural parents directly, and perhaps their families indirectly.

In an excellent brief, amici curiae have suggested at least one serious reason for not ordering the records open to plaintiff without an adversary proceeding and that is the natural mother’s right to privacy, one of the “fundamental rights” which the United States Supreme Court held to prevent states from interfering with a woman’s decision to have an abortion.

The effect of the judgment of the trial court is to reveal to plaintiff the identity of someone who gave him birth and life thirty years ago, who then chose to be and has remained anonymous over all these years and who may have “compelling reasons” of health and family for remaining anonymous. No one has provided her with an opportunity to protect her privacy despite the fact that she has a fundamental right to such.

This could be done so easily and seems to me to be mandated by the statute in question. Plaintiff’s records could be ordered opened “only to the extent necessary to satisfy such compelling necessity” by ordering them opened to a curator ad hoc who could, as an officer of the court, make a discreet investigation and even contact with the mother. Perhaps she would welcome the contact and the problem would be resolved amicably. On the other hand, if she wished to resist the intrusion the issue of plaintiff’s reasons being compelling in comparison with her reasons could be properly adjudicated.

In such an adversary proceeding the real party at interest, i. e., the mother, through a curator, may wish to advance other reasons for the court to consider in comparison with plaintiff’s before reaching a conclusion that his are compelling. Amici have properly suggested that there are social considerations which might be considered by the court in a proper adversary hearing against the mother. They are correct in their assertion that a cavalier disregard for the mother’s right to privacy might discourage adoption as a life saving alternative to abortion. Surely society has an interest in saving rather than destroying lives, and this interest is more likely to be championed by the mother who made it possible for plaintiff to have life and love than by the registrar whose interest is in keeping records in accordance with the law.

Finally, addressing myself to the second part of the statute which I believe mandates a judicial determination of the extent to which the record must be opened “to satisfy such compelling necessity” a court might determine with the services of a curator and by limiting access to the curator, that plaintiff’s parents are dead or that they live outside of Louisiana, examples of factors which affect his inheritance rights. Then the court would have the benefit of this information in deciding whether plaintiff’s reasons for wanting to see the file are “compelling” after all.

I have concluded that the judgment should be reversed without prejudice to plaintiff to bring another suit in which there would be a complete and proper adjudication of the issues in a true adversary proceeding.

I respectfully dissent.

      . No such alleged indispensable parties intervened or otherwise became involved in this proceeding.

      . Civil Code Article 214.

      . Spillman v. Parker, La.App., 332 So.2d 573.

      . Supra, note 3.

      . La.App., 349 So.2d 424, 426.

      . See the history of protection of birth certificates of adopted persons as set forth in Chambers v. Parker, supra, note 5.

      . See Larned v. Parker, La.App., 360 So.2d 906; Chambers v. Parker, supra, note 5.

      . Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).


source: Caselaw Access Project

author: SCHOTT, Judge.

license: Public Domain

text:
    WHITNEY NATIONAL BANK OF NEW ORLEANS v. Gerald G. PFISTER and Henry Guidry, Testamentary Executor of the Succession of Walter F. Poynot.
    No. 9353.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 1978.
    Rehearing Denied Oct. 19, 1978.
    Milling, Benson, Woodward, Hillyer & Pierson, Charles D. Marshall, Jr., New Orleans, for plaintiff-appellant.
    Harry R. Cabral, Jr., Metairie, for defendant-appellee Henry Guidry, Testamentary Executor of the Succession of Walter F. Poynot.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   SCHOTT, Judge.

Plaintiff brought this suit against Gerald G. Pfister and Henry Guidry as the executor of the Succession of Walter F. Poynot, on a note allegedly made by them on May 31, 1974. Judgment was obtained against Pfister and no appeal was taken from that judgment, so that Pfister’s liability on the note is not here in question. The executor defended on the ground that the signature of Walter F. Poynot was a forgery. From a judgment dismissing plaintiff’s suit against the executor plaintiff has taken this appeal.

Plaintiff has specified two errors in this court, one in finding that Poynot’s signature on the note was a forgery, and, two, in failing to consider the question of appellee’s liability for the debt regardless of the genuineness of the Poynot signature.

On the first issue, plaintiff presented the testimony of Lucille Lacy as an expert examiner of questioned documents. She was of the opinion that Poynot’s signature was genuine and explained the procedure she employed of examining approximately 290 genuine signature standards with the naked eye and with the assistance of instruments in arriving at her opinion. While she recognized that the signature in question contains certain suspicious characteristics she felt that variations in the questioned signature were consistent with numerous variations she found among the genuine standards.

On the other hand, the executor presented the testimony of two expert examiners of questioned documents, namely Gilbert J. Fortier and Albert W. Sommerford. Their procedure of examining genuine standards and comparing them with the questioned signature was much the same as Lacy’s but they concluded that the questioned signature was not genuine. The trial judge, in dismissing plaintiff’s suit, ultimately resolved the conflict in the executor’s favor.

In its brief plaintiff argues as follows: “Since the District Court did not reach its decision as to the non-genuineness of the Poynot signature on the Note by denigrating the credibility of the expert WÍt-nesses presenting conflicting testimony, this Court stands in the same position with respect to weighing the probative value of all the evidence in the record of this cause in' determining whether the District Court’s decision was correct. Therefore, the manifest error rule is not applicable here, and this Court must review the evidence and determine for itself whether the decision of the District Court is supported by a preponderance of the evidence.”

In support of the argument plaintiff relies on Jordan v. Jordan, 175 La. 468, 143 So. 377 (1932) and Blue Streak Enterprises v. Cherrie, 263 So.2d 734 (La.App. 4th Cir. 1972) in which credibility of the witness was not the issue and the judgments were reversed because they were not supported by a preponderance of the evidence.

In the first place a reading of the cited cases readily distinguishes them because the facts simply did not support the original judgments. Additionally, the principle relied on by plaintiff must be applied in the light of the principle that the evaluation of the strength of expert opinions is within the province of the trier of fact and should not be disturbed unless manifestly erroneous. Green v. State, Southwest Louisiana Charity Hospital, 309 So.2d 706 (La.App. 3rd Cir. 1975), writ refused, 313 So.2d 601 (La.); Wiley v. Travelers Insurance Co., 300 So.2d 555 (La.App. 3rd Cir. 1974), writ refused, 303 So.2d 187 (La.).

The testimony offered by the three experts consists of a meticulous comparison of each letter of the questioned signature with hundreds of genuine standards, discussion of the size and shape of the letters, their connections with one another, their relationship to the lines under the signatures, indications of the direction in which and force with which the writer was applying his pen, comparative speed and position of the writer when signing and many other minute considerations. We cannot say that Mrs. Lacy’s conclusion is supported by a preponderance of this evidence and defendants’ is not. Under the circumstances, it is not our role as an appellate court to substitute our opinion for the trial court’s.

The simple facts that Mrs. Lacy used more standards, 290, as compared to Fortier’s 153 and Sommerford’s 77, and that she used different types of documents while the others used cancelled checks exclusively do not compel a conclusion that plaintiff’s evidence preponderates.

Plaintiff’s second specification of error is based on the contention that even if the note sued on was not genuine it nevertheless proved that the debt was owed by Poynot’s succession and it is therefore entitled to a judgment regardless of the forgery issue.

During the course of the trial witnesses for the plaintiff established that the note sued on was a renewal of a note which was clearly signed by Pfister and Poynot in January, 1974, for a 90-day term. At the conclusion of the trial and argument, counsel for plaintiff urged the court to grant the alternative relief of a judgment even if the note sued on was a forgery and relies on LSA-C.C.P. Art. 1154, which provides as follows:

“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby, and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits. The court may grant a continuance to enable the objecting party to meet such evidence.”

In the first place the petition itself is a boilerplate type of suit on a note. It does not purport to be a claim based on anything else. At the inception of the trial plaintiff’s attorney stated that the matter to be tried was the authenticity of Poynot’s signature as a co-maker on the note on which the bank previously obtained judgment against Pfister. The evidence of the previous note consisted of only a few lines of testimony which seemed to be presented for the purpose of providing the court with the background leading up to the execution of the note sued on, the relationship among the parties, and perhaps the corroboration that Poynot must have signed the second note since he did in fact sign the first. However, the plaintiff at no time moved in the trial court to amend its pleadings, and until the very end of the trial defendant rightfully assumed that the only issue was the genuineness of the signature.

A suit on a note precludes certain defenses which might be available to the defendant if suit had been brought properly on the obligation itself without being limited to the note. Defendant was not on notice and was justified in not presenting defenses which might have been available to him had suit been brought on another theory. To permit plaintiff to obtain such recovery at this stage of the proceedings would unduly prejudice defendant and deprive him of fair play and basic due process.

The sense of Art. 1154 is to put a party on some notice that an amendment is being sought and the trial judge is clothed with some discretion in passing on such a motion. In this case, no opportunity was ever presented to the trial judge for the exercise of such discretion since no motion was ever made during the proceedings.

It does not appear that plaintiff is prevented from bringing another action against defendant on the obligation originally incurred in January, 1974, so that the ends of justice may be served in the event that there is merit to plaintiff’s position.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: GARRISON, Judge.

text:
    ALISON MORTGAGE INVESTMENT TRUST v. BPB CONTRACTORS, INC.
    No. 9356.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 1978.
    Rehearing Denied Oct. 19, 1978.

      Gauche, Wegener & Oster, Edmund T. Wegener, Jr., New Orleans, for intervenor-appellant, D. H. Overmyer, Inc.
    Chaffe, McCall, Phillips, Toler & Sarpy, Felix H. Lapeyre, New Orleans, for plaintiff-appellee, Alison Mortgage Investment Trust.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   GARRISON, Judge.

This case originated with the sale of immovable property located in Jefferson Parish, from D. H. Overmyer, Inc. to BPB Contractors, Inc., for the stated consideration of $5,200,000.00. The act of sale, duly recorded, took place on January 31, 1973, and contained the following recitation:

“This sale is made and accepted for and in consideration of the price and sum of Five Million, Two Hundred Thousand and No/100 ($5,200,000.00) Dollars Cash, which the said purchaser has well and truly paid, in ready and current money to the said vendor who hereby acknowledge^] the receipt thereof and grant[s] full acquittance and discharge therefor.” [Italics supplied.]

In spite of the unequivocal expressions of complete payment of the purchase price, the vendor, D. H. Overmyer, Inc., subsequently sought to establish that it was entitled to a vendor’s lien on the property in the amount of $700,000. This attempt to establish the viability of the vendor’s lien in the face of the act of sale’s implacable recitation of full payment received constitutes the nucleus of this case.

In conjunction with this sale, BPB borrowed $4,000,000 from Alison Mortgage Investment Trust and executed a note in that amount in favor of Alison, which was secured by a mortgage on the property involved. This amount was paid by BPB over to Overmyer in cash as part of the purchase price stated in that act of sale. This mortgage was duly recorded by Alison.

At this point it is necessary to add — because it was later sought to be made an issue in the case — that a representative of the Alison company was present at the execution of the act of sale recited above, although there is a disagreement on the part of the litigants as to whether or not he was a “party” to the sale.

Five hundred thousand dollars in cash was paid to Overmyer by BPB at the same time as the act of sale. However, the remaining $700,000 of the purchase price was not paid in cash as recited in the act of sale. Rather, BPB executed two promissory notes in the amounts of $500,000 and $200,000 in favor of Overmyer. The $500,000 note was unsecured but the note for $200,000 was secured by a mortgage on the same property. This act of mortgage specifically provided that it was a second mortgage, subordinate to the $4,000,000 mortgage granted in favor of Alison.

By March 1977, a default had occurred with respect to both the first and second mortgages. As a result, Alison, the first mortgagee, instituted foreclosure proceedings to protect its $4,000,000 mortgage. A petition for executory process was filed by Alison on March 7, 1977. On the other hand, to appreciate Overmyer’s viewpoint at this particular point in time, Overmyer still had not received — in actuality• — full payment for the land it had sold.

On August 3, 1977, the day set for the sale of the property at public auction, Over-myer filed a petition of intervention in the foreclosure proceedings. This intervention sought not to enjoin the public sale, but recognition of Overmyer’s alleged vendor’s lien and an order directing the sheriff to withhold that amount, plus accrued interest. An order was issued which recognized Overmyer’s vendor’s lien as superior to the mortgage held by Alison and, as Alison was the high bidder at the August 3rd auction, the property was properly adjudicated to Alison.

On August 24, 1977, Alison filed an answer to Overmyer’s intervention, as well as exceptions of no cause of action and no right of action and motions for judgment on the pleadings and for summary judgment. After a hearing on October 6, 1977, the motion for summary judgment was granted, thereby dismissing Overmyer’s intervention and vacating the withholding order based thereon. A rule for a partial new trial, filed by Overmyer, was dismissed and this devolutive appeal brought by Overmyer resulted.

Essentially, the above facts are agreed to by both Alison and Overmyer. The areas of disagreement concern the question as to the extent of the Alison representative’s participation in the sale and the question as to whether the vendor’s lien was preserved after the recitation in the deed that the full purchase price had been paid in cash.

It is true that an Alison representative was present at the act of sale and knew that BPB gave Overmyer $700,000 of the purchase price in notes rather than in cash. However, mere presence does not make one a party to an act of sale, nor do the overall circumstances indicate that Alison was such a party. Civil Code Article 3556(32); R.S. 9:2722; Sick v. Bendix-United Geophysical Corp., 341 So.2d 1308 (La.App. 1st Cir. 1976).

Nor was the knowledge on the part of the Alison representative that BPB gave Overmyer a part of the purchase price in notes rather than in cash — as recited in the act of sale — of any determinative significance. Such awareness does not alter or overcome the fact of the recordation and the recital of full payment in the act of sale. It is a well-established principle of law that even actual knowledge is not a substitute for the requirement to properly record privileges. McDuffie v. Walker, 125 La. 152, 51 So. 100 (1910); Harang v. Plattsmier, 21 La.Ann. 426 (1869); Wood v. Morvant, 321 So.2d 914 (La.App. 1st Cir. 1975).

While Alison admitted in its answer the above-described knowledge of its representative, this hardly constituted an admission that the purchase price had not been paid in full. To the contrary, it specifically stated that the price indeed had been paid in full.

In any case, not being a party to the act of sale, Alison necessarily was a third person — and, as such, was entitled to rely on the public records to find the existence of a vendor’s lien. Overmyer’s alleged vendor’s lien, assuming that it ever came into existence, was not recorded so that it could not — whatever factual circumstances later might be sought to be established by parol evidence — establish any priority over Alison’s position as recited in the act of sale.

The remaining determinative question in the case is whether Overmyer’s claimed vendor’s lien was preserved after the recitation in the deed that the full purchase price had been paid in cash. The short answer to the question is that the effect of the public records doctrine in Louisiana is such that, following so specific a recitation of complete payment, there remained no language in the act of sale indicative of any remaining obligation, so as to give rise to a vendor’s lien.

The vendor’s lien is created in Article 3249 of the Civil Code, which states:

“Creditors who have a privilege on im-movables are:
“1. The vendor in the estate by him sold, for the payment of the price or so much of it as is unpaid, whether it was sold on or without credit. * * * ”

[Italics supplied.]

Insofar as the act of sale recital was concerned, Overmyer’s claimed vendor’s lien had nothing remaining to which it could attach. Nor can the recital of complete payment be altered by parol evidence as Overmyer sought to do in this case. Civil Code Articles 2236, 2237, 2276. Consequently, as to Alison, Overmyer’s alleged vendor’s lien can be given no legal recognition.

At the time Alison’s mortgage was recorded, there was no indication in the public records that any portion of the purchase price had not been paid. Alison was entitled to rely on these records to determine the ranking of its mortgage.

The significance of the instant case was underscored long ago in the following rhetorical questions posed by Justice Spencer in Durham v. Heirs of Daugherty, 30 La. Ann. 1255 (1878):

“If the vendors of property, or their assignees, be permitted to falsify their own deliberate and solemn acts and declarations, spread upon the public records, that the whole or part of the price of property sold has been received in cash by them, and to prove that they still have the vendor’s privilege therefor, although avowing that they had voluntarily, without error, fraud, or violence, received another thing in lieu of the cash, what value would mortgage securities possess? What faith would public records be entitled to?” 30 La.Ann. at 1258.

Third parties must be able to rely on the recitals in public records. To the same end, the public at large — from attorneys to individuals engaged in commerce — must be able to be assured that the courts will uphold with consistency and full force the public records doctrine.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

       Alison’s answer to Overmyer’s petition of intervention admits it was aware Overmyer had accepted the recited $5,200,000 purchase price in the form of $4,500,000 in cash and the unsecured $500,000 and secured $200,000 notes from BPB Contractors.


text:
    AMERICAN AUTOMOBILE ASSOCIATION, INC. v. GLOBE INDEMNITY COMPANY.
    No. 9360.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 1978.

      Frank J. Varela, New Orleans, for plaintiff-appellant, American Automobile Association, Inc.
    Bernard, Micholet & Cassisa, Joseph S. Palermo, Jr., Metairie, for defendant-appel-lee, Globe Indemnity Co.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   GARRISON, Judge.

This declaratory judgment action was brought by American Automobile Association, Inc. (AAA) against Globe Indemnity Company because of Globe’s failure to defend AAA in a suit brought against it, and for denial of coverage under a comprehensive general liability policy. Both AAA and Globe moved for summary judgment, and AAA lodged this devolutive appeal after summary judgment was granted in favor of Globe and AAA’s motion for summary judgment was denied.

AAA was the local retailer for a tour of the Orient in 1973, organized and conducted by Dynimex-Pacifex Tours, Inc. Certain members of that tour (six couples, referred to collectively as “Cook”) filed suit against AAA and Dynimex on October 4, 1974 in the Twenty-Fourth Judicial District Court for the Parish of Jefferson, under Docket Number 168-103, styled “Cook, et al. v. AAA Worldwide Travel Agency, a division of American Automobile Assoc, of La., and Dynimex-Pacifex Tours, Inc.,” alleging damages for mental pain and anguish, physical pain and suffering, and additional expenses incurred as a result of AAA and Dynimex’s breach of contract and/or negligence in the operation of the tour. The original petition alleged that AAA was acting as a representative of Dynimex; however, a supplemental petition was filed to allege, in addition, as follows:

“[AAA] was acting as a principal in the course and scope of its authority for itself and for its co-obligor, DYNIMEX — PACI-FEX TOURS, INC. ... in all respects and that such relationship between AAA WORLDWIDE TRAVEL AGENCY ... and DYNIMEX-PACIFEX TOURS, INC. . '. . was in fact acting as joint venturers or partners and in the alternative that AAA WORLDWIDE TRAVEL AGENCY ... was acting within the course and scope of its representation of DYNIMEX-PACIFEX TOURS, INC.” Record, p. 16.

AAA notified defendant Globe of this claim and tendered to Globe the defense of the suit, based on Globe’s Comprehensive Business Policy No. GYB 657576, issued to AAA for the policy period 8-1-72 to 8-1-75. Globe denied coverage under the policy for the Cook claims due to AAA’s alleged “breach of contract and/or negligence” concerning the tour, and therefore Globe refused to defend AAA in this action. The present suit for declaratory judgment has resulted.

Globe filed an answer in this action, denying coverage and alleging the “terms, limitations, and conditions” of the policy. AAA filed a motion for summary judgment based on its assertion that, taking all of the allegations of the Cook petition as true, there is coverage under Globe’s policy, and thus that Globe is under the broad duty to defend AAA against this suit, regardless of whether the claims are ultimately shown to be “groundless, false, or fraudulent.” This motion for summary judgment was denied.

Likewise, Globe filed a motion for summary judgment in the suit, seeking dismissal of AAA’s suit, or alternatively, dismissal of the supplemental relief sought by AAA. Globe asserted that its policy unambiguously excluded coverage so that there was no duty to defend. Specifically, Globe claimed that the policy’s “contractual liability” exclusion was applicable so as to preclude coverage, that the policy’s “business risk” exclusion applied so as to preclude coverage, and that Cook’s petition failed to allege an “occurrence” within the policy language.

Alternatively, Globe denied that the supplemental relief sought by AAA (an order directing Globe to assume AAA’s defense in the Cook case and to pay AAA for the costs already incurred in defending that suit) was available under the Louisiana declaratory judgment articles (C.C. Articles 1871-1875). All these points were thoroughly argued in the memoranda filed by the parties in support of their respective motions for summary judgment.

After a hearing on these two motions for summary judgment, Globe’s motion was granted, thereby dismissing AAA’s suit. The trial judge entered oral reasons for judgment, as follows, to indicate the bases for his judgment.

“The Court has read the exclusion in the policy at issue here issued by Globe to AAA and under exclusions this is provided, ‘This insurance does not apply:
“ ‘To liability assumed by the insured under any contract or agreement [emphasis added by the Court] except an incidental contract but this exclusion does not apply to a warranty of fitness or quality of the named insured’s products or a warranty that work performed by or on behalf of the named insured will be done in a workmanlike manner.’
******
“The incidental contracts are further explained in the policy under definitions, to read as follows: ‘Incidental contract means any written (1) lease of premises, (2) easement, agreement, exception in connection with construction or demolition operations on or adjacent to a railroad, (3) undertaking to indemnify a municipality required by municipal ordinance, except in connection with work for the municipality, (4) sidetrack agreement, or (5) elevator maintenance agreement.’ It’s obvious to the Court none of these definitions of incidental contract apply to the facts at issue in this case.
“The contract of insurance between AAA and Globe further provides in the very beginning that this coverage A and B insurance agreement is, number one, bodily injury liability and property damage liability — to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage — so forth.
“The point is, as the Court sees it, that the insuring agreement defines the fact that the insurer will defend for bodily injury or property damage liability arising from an occurrence. An occurrence, on Page 3 of the insuring agreement under Roman Numeral V, Definitions, is defined as follows: ‘Occurrence means an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured.’ Taking all of the above into consideration and in considering the petition and the original petition and supplemental petition, this Court finds that the original petition is labeled breach of contract, that is, as it pertains to AAA although the petition there referring to the breach of contract the plaintiff entered into with AAA, the contract is referred to over and over as pointed out by astute counsel for mover, Globe, Mr. Palermo, it is not until we get down to Article 9B in the original petition, Subsection J, where negligence is mentioned for the first time and that is where it goes, ‘Due to the negligence of Dynimex-Pacifex Tours (the co-defendant of AAA) by overbooking the tour, petitioners were placed on flights,’ et cetera, et cetera. Now, the defendant apparently, I mean the plaintiff, apparently realized some time later that they hadn’t covered all the bases and they made a very valiant effort to bring them under the Czarniecki case by amending the petition in which they alleged everything they could think of, apparently, and I don’t blame them. Wait, wait, strike that.
“In Article 7 of the original petition, which counsel for AAA grounds a good part of his argument on, apparently he argues that he’s brought himself under Czarniecki because it says in Article 7, ‘As a result of the defendant’s breach of contract and/or negligence, your petitioner suffered physical pain and suffering,’ and goes on to say what it is. Now, the Court just cannot buy this, that out of the original petition with this contract being talked about, labeled throught the entire petition, with AAA, and negligence being talked about with the co-defendant, Dynimex, that the fact that you throw in the word, ‘and/or negligence,’ and make it in the same sentence where you have a plural possessive of defendants, that this is anything imagined by the writers of the Czarniecki decision, because it’s obvious to the Court that the negligence is aimed at the Dynimex Corporation. There’s not one specific thing of negligence named to AAA and the entire petition is based on contract.
sfe s}s sf. sf * %
“The Court feels that the entire thrust of both the amending and supplemental petition is at the breach of contract between AAA and the plaintiffs. And any damages or anything resulting to the petitioners from the actions of AAA or anything they’ve tried to claim in any petition happened to them as a result of AAA are still the result of AAA breaching the contract with them. Nowhere is there an ‘occurrence’ stated which can bring them under the provisions of their contract with Globe by which Globe would have to defend them, and again this policy does not appear to be a policy which covers anything for which you might be, your negligence might be answerable. It specifically says they’re liable for any occurrence and an occurrence is specifically designated an accident.” Supplemental Record, pp. 6-12.

In its brief on this appeal, AAA discussed fully all of these arguments to show why there was no unambiguous exclusion of coverage for this situation in Globe’s policy, so as to relieve Globe of its duty to defend. However, in its reply brief, Globe abandoned its previous arguments that either or both of the “contractual liability” and “business risk” exclusions unambiguously apply to this case. Rather, Globe now limits its defense, and its argument on appeal, to the issue of whether the Cook petition properly alleged an “occurrence” within the policy.

Consequently, the other arguments will not be discussed at any length. The “contractual liability” exclusion in the Globe policy would clearly apply if the Cook lawsuit had been brought strictly on the basis of breach of contract. However, although the trial judge was correct in perceiving that the real thrust of the Cook suit against AAA was for breach of contract, there are also allegations of negligence in the petition and the damages sought clearly sound in tort rather than in contract. Thus, applying the rule that the duty to defend is determined by assuming the truth of all the allegations in a petition, Globe is not relieved of the duty to defend the Cook suit because of the “contractual liability” exclusion. American Home Assurance Company v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969).

The “duty to defend” rule was clearly stated by the Louisiana Supreme Court in Czarniecki:

“Generally the insurer’s obligation to defend suits against its insured is broader than its liability for damage claims. And the insurer’s duty to defend suits brought against its insured is determined by the allegations of the injured plaintiff’s petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage. Benoit v. Fuselier, 195 So.2d 679 (La.App.1967).
Thus, if, assuming all the allegations of the petition to be true, there would be both (1) coverage under the policy and (2) liability to the plaintiff, the insurer must defend the insured regardless of the outcome of the suit. Additionally, the allegations of the petition are liberally interpreted in determining whether they set forth grounds which bring the claims within the scope of the insurer’s duty to defend the suit brought against its insured. Benoit v. Fuselier, ibid.” 230 So.2d at 259.

This rule has been followed by the courts ever since it was pronounced. See Kendrick v. Mason, 234 La. 271, 99 So.2d 108 (1958); Jackson v. Lajaunie, 270 So.2d 859 (La.1972); Levy v. Duclaux, 324 So.2d 1 (La.App. 4th Cir. 1975), writ refused 328 So.2d 887; Home Insurance Company v. Doe, 321 So.2d 24 (La.App. 3rd Cir. 1975); Mut v. Newark Insurance Company, 289 So.2d 237 (La.App. 1st Cir. 1973), cert. denied, 290 So.2d 910 (La.).

From the above-cited cases, it is obvious that if the policy unambiguously excludes coverage under the allegations of the petition, there is no duty to defend.

Turning to the issue presented here, as to whether the complaints contained in the Cook petition constituted an “occurrence” within the limits of the policy, it is necessary to look at the Cook allegations and the applicable provisions of the policy. The Globe policy contained the following general stipulation, requiring an “occurrence”:

“1. INSURING AGREEMENTS
COVERAGE A — BODILY INJURY LIABILITY
COVERAGE B — PROPERTY DAMAGE LIABILITY
The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
Coverage A. bodily injury or
Coverage B. property damage
to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements.” Record, p. 37.

The following were the allegations made by the Cook petition:

“a) [There were] seventy-two (72) members [on] the tour instead of thirty (30) members as guaranteed by the representative of AAA WORLDWIDE TRAVEL AGENCY, a division of AMERICAN AUTOMOBILE ASSOCIATION OF LOUISIANA;
b) Meal coupons which were included in the purchase price of the tour, were not recognized by the various countries thereby necessitating additional expenses by your petitioners;
c) Service charges and taxes which were to be included in the purchase price had to be paid individually by your petitioners;
d) Tour guides representing DYNI-MEX-PACIFEX TOURS, INC. specifically stated that your petitioners were not expected on this tour and therefore they would not be considered as part of the tour and would not be guaranteed an escorted tour;
e) After an exhausting flight from Seattle, Washington to Tokyo, your petitioners were not granted the leisure time as indicated by the brochure;
f) Upon arrival in Tokyo at dusk, your petitioners were hurried through the city on an alleged tour of the city and were not granted the leisured and informative tour as guaranteed in the brochure;
g) Both tours of the city of Tokyo and other countries as guaranteed by the brochure were eliminated;
h) Your petitioners were not placed in the luxury hotels as indicated by the brochure, on the contrary, they were placed in hotels in inconvenient sections of the city and in Bangkok, were placed in a hotel where their safety could not be guaranteed;
i) The tour guides indiscriminately changed their flight schedules thereby necessitating long waits in airports eliminating valuable shopping time that was guaranteed by the defendants;
j) Due to the negligence of DYNIMEX-PACIFEX TOURS, INC. by overbooking the tour, petitioners were placed on flights in which they were unable to be served meals;
k) Much leisure time and shopping time guaranteed by the defendants were eliminated;
l) Three days promised the plaintiffs in Hawaii were reduced to two days and instead of having all the conveniences in Hawaii prepaid as indicated by the defendants, the parties discovered that none of the services, meals or accommodations were paid and had to incur this expense themselves:”

Record, pp. 12-13.

To constitute an “occurrence,” the above complaints must be either an “accident” or an “injurious exposure to conditions,” as found in the policy definition of “occurrence”:

“V. DEFINITIONS
* * * * * *
‘occurrence’ means an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” [Emphasis added.] Record, p. 39.

The trial judge, in his Reasons for Judgment, found that there was no “occurrence” because that is specifically defined as an accident, whereas the allegations here were of violations of the tour agreement, not an “accident.” This is true, but it overlooks the second definition of “occurrence” as “injurious exposure to conditions.” With no further explanation, it would seem reasonable that this definition would cover the allegations here. In its memorandum in support of its motion for summary judgment, Globe argues that this terminology was contemplating “repeated contact with unhealthful conditions, such as an industrial worker’s contraction of silicosis due to his exposure to silicone particles in the atmosphere, or a burn injury to a patient from over-exposure to gamma rays during X-ray treatment.” Record, p. 175. This may well have been the intended construction of this language by Globe, but it certainly is not unambiguous. The ordinary person cannot be held to know what Globe was contemplating with this language. As was said in Levy v. Duclaux, supra :

“An insurance policy is a contract between the company and its insured and its interpretation must be based upon what an ordinary person would understand from the words of the policy. It cannot avail the insurer any consolation if it intended something which is not clearly expressed. Any ambiguity must be construed against the insurer.” 324 So.2d at 10.

In the Levy case the insurer, to support its position, was attempting to show that it was not its intention to include mental anguish and other emotional damages within “bodily injury” coverage.

Thus, it seems reasonable to conclude that the acts and omissions complained of here are within “injurious exposure to conditions” as would be understood by the ordinary reader, and should therefore be included within that definition of “occurrence.”

There are very few cases construing “occurrence.” In Davis v. Poelman, 319 So.2d 351 (La.1975), the destruction of an airplane due to the failure of defendant to store it safely from the elements was held to be an “occurrence.” However, the policy definition in that case was somewhat more specific, giving slightly broader coverage. Clearly, the Court found that continuous exposure to the elements and vandalism constituted an “occurrence,” and although the policy with which we are presented here does not specifically state that “all damages arising out of such exposure to substantially the same general conditions shall be deemed to arise out of one occurrence,” the reasoning of the case is significant.

Globe had a duty to defend AAA based on the allegations of the Cook petition. There is no unambiguous exclusion of coverage as required by Czarniecki, and the summary judgment in favor of Globe was improperly granted.

For the foregoing reasons, the judgment in favor of Globe is annulled and reversed. The case is remanded to the District Court for further proceedings consistent with law and with this opinion.

REVERSED AND REMANDED.

       That definition reads as follows:
      “ ‘(b) Occurrence. The word “occurrence” means an accident, or a continuous or repeated exposure to conditions, which results in injury during the policy period, provided the injury is accidentally caused. All damages arising out of such exposure to substantially the same general conditions shall be deemed to arise out of one occurrence.’ ” Davis v. Poelman, 319 So.2d at 354.


author: SAMUEL, Judge.

text:
    Ruth Sheppard, wife of/and Howard SHEPPARD v. NORTH RIVER INSURANCE COMPANY et al.
    No. 9362.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 1978.
    Rehearing Denied Oct. 19, 1978.
    Hailey, McNamara, McNamara & Hall, Warren J. Sheppard, Jr., Metairie, for plaintiffs-appellants.
    Beard, Blue, Schmitt, Mathes, Koch & Williams, C. T. Williams, Jr., New Orleans, for defendants-appellees.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   SAMUEL, Judge.

Plaintiffs filed this suit for damages for the alleged wrongful death of their minor daughter, Erin Sheppard, who was killed on October 16, 1976 when an automobile in which she was riding as a guest passenger collided with a parked crane. The suit names these defendants: Brian Butler, the minor driver of the automobile who was 17 years of age at the time of the accident; Della Michala, his mother; Road Equipment Company, Inc. (improperly designated as Reco, Inc.), the owner of the crane; North River Insurance Company, plaintiffs’ own liability insurer under the uninsured motorist provision; and Bellefonte Insurance Company, liability insurer of Bobby F. Butler, father of Brian Butler. Plaintiffs’ claim against Bellefonte is a direct action against that insurance company and plaintiffs do not name Bobby F. Butler, the father of the driver, as a defendant.

A motion for summary judgment filed by Bobby F. Butler and Bellefonte Insurance was granted and judgment was rendered on that motion dismissing plaintiffs’ claims against them. The judgment is based upon the fact that Brian Butler, the driver, was not a resident of the household of his father at the time of the accident and thus Brian was not an insured under the Belle-fonte policy. Plaintiffs have appealed from that judgment, but only insofar as it dismisses Bellefonte.

The issues thus presented by this appeal are: (1) whether summary judgment is appropriate and justified in this matter; and, if so, (2) whether Brian Butler, the driver, was an insured under his father’s policy with Bellefonte at the time of the accident.

Relative to the rendition of summary judgments, in pertinent part Code of Civil Procedure Article 966 provides:

“The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” LSA-C.C.P. Art. 966.

We are satisfied that, insofar as this limited appeal is concerned, there is no genuine issue as to material fact. The record contains an affidavit by Bobby F. Butler, the father of the driver, a deposition by Della Michala, the mother of the driver, a copy of the Bellefonte policy which was in force and effect at the time of the accident, a copy of a judgment awarding care, custody and control of Brian to his mother, and a copy of Brian’s enlistment in the United States Marines. This evidence establishes to our satisfaction, as it did to the satisfaction of the trial judge, that there is no genuine issues as to the following facts:

Brian’s parents were divorced and subsequently his father remarried and lived with his second wife in Chalmette, Louisiana. Brian’s mother lived in Kenner, Louisiana. On March 7, 1975, the care, custody and control of Brian was granted to his mother by order of a judge of the 25th Judicial District Court, Parish of St. Bernard, sitting as a juvenile court. Thereafter Brian resided with his mother for a short time and then resided at various places unknown to his mother and apparently with various friends also unknown to her except by hearsay as to some of them. On May 20, 1976 Brian enlisted in the United States Marine Corps Reserve for a period of six years. On the day of the accident, October 16, 1976, he apparently was on leave and was on his way to Belle Chasse, Louisiana to pick up his further orders. On that day he stopped at his mother’s house and she went with him to purchase a car from a used car lot in Jefferson Parish. The car was purchased by Brian who made arrangements with his mother to pay the installments due in the future. The financing could not be completed until the following Monday but the salesman allowed Brian to take the ear out that day. The accident happened later that day. Brian was not residing with his father at the time the accident occurred.

Under the provisions of the Bellefonte policy issued to Brian’s father, the policy on which plaintiffs’ claim against Bellefonte is based, Brian is an insured only if he is “a relative of the named insured [Mr. and Mrs. Bobby F. Butler] who is a resident of the same household”. As we have found the evidence supports a conclusion that Brian was not residing at the home of his father at the time of the accident, we conclude the trial court correctly granted the motion for summary judgment.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . One of the named defendants, Road Equipment, filed a third party demand against both Bobby F. Butler and Bellefonte. However, Road Equipment did not make an appearance at the hearing of the motion for summary judgment and that judgment does not mention Road Equipment.


text:
    ALLSTATE INSURANCE COMPANY v. Cyrus A. THERIOT et al.
    No. 9363.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 1978.
    Rehearing Denied Oct. 19, 1978.
    Porteous, Toledano, Hainkel & Johnson, John L. Donovan, New Orleans, for plaintiff-appellant.
    Robert J. Stamps, William J. Mora, III, Gerald J. Martinez, Metairie, for intervenor and appellant Melvin Moore.
    Bienvenu, Foster, Ryan & O’Bannon, Robert N. Ryan, New Orleans, for defendants-appellees Donald Lambert Const. Co. and Empire Fire & Marine Ins. Co.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   SCHOTT, Judge.

Allstate Insurance Company, plaintiff, and Melvin Moore, intervenor, have appealed from a dismissal of their petitions on exceptions filed by defendants.

Allstate was the workmen’s compensation insurer of the employer of Melvin Moore who sustained a compensable injury on January 21, 1974. The injury required him to be hospitalized and on the date of the hospital discharge, March 6, 1974, while he was on his way home he was involved in an automobile accident. In its petition Allstate alleged that Moore was “in comparatively good health” at the time of his discharge from the hospital, and because of the accident, caused by the negligence of defendant Theriot, Moore required prolonged treatment for his injury. Allstate sued for all compensation benefits and medical expenses paid Moore after March 6, 1974, joining Theriot, his employer, and the employer’s insurer as defendants. In August, 1976, Moore intervened in the proceedings for his own personal damages.

In the judgment appealed from exceptions of no cause or right of action and prescription were maintained with respect to the petition and intervention respectively. Since we have resolved that the exception of no right or cause of action was properly maintained as opposed to plaintiff it follows that the intervention was properly dismissed.

Plaintiff contends that its right or cause of action stems from the provisions of LSA-R.S. 23:1101, which provides as follows:

“When an injury for which compensation is payable under this Chapter has been sustained under circumstances creating in some person (in this Section referred to as third person) other than the employer a legal liability to pay damages in respect thereto, the injured employee or his dependent may claim compensation under this Chapter and the payment or award of compensation hereunder shall not affect the claim or right of action of the injured employee or his dependent against such third person, nor be regarded as establishing a measure of damages for the injury; and such injured employee or his dependent may obtain damages from or proceed at law against such third person to recover damages for the injury. Any employer having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit against such third person to recover any amount which he has paid or become obligated to pay as compensation to any injured employee or his dependent.”

While conceding that there is no jurisprudential authority for their position, plaintiff argues that it was obligated to continue making compensation payments to Moore or run the risk of being penalized for being arbitrary and capricious. Plaintiff continues its argument as follows:

“There can be no question that Mr. Melvin Moore, had he filed a lawsuit, rather than intervene in the lawsuit filed by Allstate Insurance Company, would have had a right and cause of action; however, what the defendants are saying is that while it can be readily recognized that Melvin Moore would have had a right or cause of action had he initiated the lawsuit, and the insurer herein, Allstate Insurance Company, would have been able to intervene, without any defenses of no right or cause of action for and on behalf of defendants herein, nonetheless, because Allstate Insurance Company initiated this action to protect the sums of money they were required to pay because of further prolonged treatment herein and compensation benefits paid during that period of treatment, then in such instance, Allstate Insurance Company is denied recovery herein.”

Plaintiff finally contends that nothing in the Workmen’s Compensation law would preclude its right to bring this action under LSA-C.C. Arts. 2315 and 2316.

R.S. 23:1101 confers the right on the employer to bring a suit against a third person tort feasor to recover that which has been paid to the injured employee when the “injury for which compensation is payable . has been sustained under circumstances creating in some . . . third person” other than the employer the legal liability to pay damages in respect thereto.

In this case, the injury for which compensation is payable is the injury of January, 1974, and not the automobile accident of March. Plaintiff’s liability is based on R.S. 23:1031 because the employee received a personal injury “by accident arising out of and in the course of his employment . . ” The accident in March neither arose out of nor was in the course of Moore’s employment, so that plaintiff and its insured, the employer, were not liable under Workmen’s Compensation for the payment of any additional compensation benefits or medical expenses which may have been caused by this second accident. The compensation liability was limited to the balance of payments and medical expenses normally resulting from the January accident.

Plaintiff relies on Allen v. Louisiana Highway Commission, 150 So. 98 (La.App. 1st Cir. 1933) and Estilette v. United States Fidelity & Guaranty Co., 64 So.2d 878 (La.App. 1st Cir. 1953), but both of these cases are clearly distinguishable. In the first, plaintiff received an on the job injury to his leg which led to an infection. He ultimately died and a factual dispute arose as to whether his death resulted from the initial infection or from subsequent unrelated developments. The court concluded that the initial on the job injury to his leg was “indirectly responsible and a causative factor, leading to and bringing about the death of plaintiff’s husband, and that she is therefore entitled to the compensation claimed.”

In the Estilette case, an attempt was made by the compensation insurer to prove that the claimant’s ultimate disability was not caused by the initial compensation injury, but the court held that he “was disabled by the accident in November, 1950, that he never recovered enough to be able to do his same work again, and that his present disability is the direct result of that accident and the injuries sustained therein.”

For plaintiff to recover under these cases it would have to allege and prove that the extension of compensation benefits and medical expenses extending beyond March, 1974, was caused by the accident in January. A fair reading of plaintiff’s petition, however, makes these extended payments the result not of the original injury but of the negligence of a third party. Plaintiff’s alleged facts are likewise unlike the facts of Carter v. Rockwood Ins. Co., 341 So.2d 595 (La.App. 2nd Cir. 1977) where plaintiff sustained an on the job knee injury in July, 1973, and was able to establish that a fall at her home in February, 1975, resulting in a fracture of the femur of her right leg was causally related to the weakness of her knee, a residual of the 1973 accident. The court held that:

“The nature of the original knee injury was such that the chance of subsequent reinjury was a foreseeable risk and an expectable consequence. The second accident resulted during normal activity and was a reasonably foreseeable and natural consequence of the work-related injury.”

The only support we find for plaintiff’s position is dicta in Deville v. Townsend Bros. Construction Company, 284 So.2d 110 (La.App. 3rd Cir. 1973). There, plaintiff sustained a burn on the job in October, 1971, and was found to be entitled to compensation benefits until January, 1973. Defendants attempted to show that plaintiff’s initial injury was aggravated by his failing to take proper care of his wound, perhaps intentionally reinjuring the wound and perhaps having his condition aggravated as a result of an automobile accident which occurred in April, 1972. The court made the following statement:

“. . . Assuming, arguendo, that the plaintiff did aggravate his condition in an automobile accident, such an occurrence in itself is no reason to deny him compensation benefits to which he is otherwise entitled.”

The court cited no authority for this statement, but it is only dicta because the court continued:

“In any event, the trial court obviously concluded that plaintiff’s right forearm burn condition was not aggravated by the intervention of any automobile accident. We again find no manifest error on the part of the trial court on that point.”

Professor Malone in his Louisiana Workmen’s Compensation (1951), § 233, deals with the effect of an independent cause on an existing compensable injury and indicates that the courts have manifested a liberal attitude toward complications following such an injury. However, he notes that an employer “should not be charged for independent harms which the employee sustains while under treatment where such harms not related in fact to the accident which occurred on the job.” (page 287)

Finally, we do not agree that plaintiff has a cause of action under C.C. Art. 2815 or 2316. Plaintiffs loss did not result from the negligence of defendants, but instead from making voluntary payments to Moore when it had no obligation to do so. Neither is there any basis for concluding that plaintiff had a right to bring this action as a subrogee pursuant to C.C. Arts. 2159 et seq.

Having concluded that the judgment maintaining the exception of no right or cause of action and dismissing plaintiff’s suit was correct, it follows that the judgment dismissing the intervention was likewise correct.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.


text:
    NEW ORLEANS MORTGAGE COMPANY, INC. v. CITY OF KENNER, Acres, Inc., and Wegro, Inc.
    No. 9365.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 1978.

      O’Keefe, O’Keefe & Berrigan, E. John Litchfield, New Orleans, for plaintiff-appellant, New Orleans Mortgage Co., Inc.
    H. A. Vondenstein, Kenner, for defendant-appellee, the City of Kenner.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   GARRISON, Judge.

This appeal from the 24th Judicial District Court for the Parish of Jefferson is from the maintenance by the trial court of an exception of “judicial estoppel” in favor of defendant, City of Kenner. Plaintiff, New Orleans Mortgage Company, filed the instant suit seeking to recover certain surplus funds generated from paving improvement assessments levied by the City of Kenner on certain property (described specifically in plaintiff’s amended petition) owned by plaintiff.

Other pertinent facts relative to this suit were stipulated to by the parties in a “General Stipulation of Facts,” filed into the record on November 22, 1977. The stipulations are as follows:

“2. That on August 9, 1965 the City of Kenner adopted an ordinance known as Local Assessment Ordinance # 3 of 1965. That ordinance levied a local paving assessment against each lot or parcel of ground abutting certain improvements to be made in the area of the City of Kenner known as the University City Subdivision, which area includes the property described in Paragraph XI of the petition of New Orleans Mortgage Company, Inc. That assessment was levied in proportion that the frontage of each lot or parcel of land bore to that of all the abutting lots or parcels of real estate to be improved. At the time of that assessment, the property at issue in the instant lawsuit was included in that front footage assessment and was then owned by Acres, Inc., against whom the original assessment was recorded.
“3. That on September 13,1965 the City of Kenner Board of Aldermen adopted an ordinance authorizing the issuance of special paving certificates to pay the cost of the aforementioned paving improvements, confirming the sale of those certificates, providing for the security and payment thereof and entering into certain covenants and agreements in connection with these paving certificates. Pursuant to this ordinance, the City of Kenner issued the paving certificates and created a ‘Paving Certificate Sinking Fund’ into which all proceeds of this assessment ordinance were to be deposited, which fund was a trust account used to receive these deposits and pay the principal and interest on the paving certificates.
“In the early part of 1973, sufficient funds were accumulated to discharge the amounts due the holders of the paving certificates and all paving certificates were paid and cancelled.
“4. That on September 19, 1973, Wegro, Inc. and Acres, Inc. filed in this Honorable Court, a suit entitled Acres, Inc. and Wegro, Inc. vs. The City of Kenner and The Consolidated Sewerage District of the City of Kenner, No. 156-208, 24th Judicial District Court, Division “E”. In that suit, plaintiffs, Acres, Inc. and Wegro, Inc. made the following allegations:
(a) That plaintiffs, on August 9, 1965, the date of adoption of the special paving assessment ordinance referred to in § 2 of this document, were the owners of certain pieces of property in the University City Subdivision of the City of Kenner, including the property made the basis of the instant suit. These lots were encumbered with the special assessment aforementioned.
(b) That plaintiffs, Wegro, Inc. and Acres, Inc., did, in fact, discharge these assessments against the property in question and were thus entitled to any refunds due from the surpluses generated by the assessments against those properties.
‘5. This Honorable Court received those allegations and considered them in the matter entitled Acres, Inc. and Wegro, Inc. vs. The City of Kenner and the Kenner Consolidated Sewerage District. In that matter, the Court on February 26, 1975, made the following findings:
(a) That the funds collected on the paving assessments in question could be expended for no other purpose than the cost of the paving construction improvements, and that the surpluses accumulated were thus necessarily refundable to the party who discharged the lien against said property.
(b) That the City of Kenner and the Consolidated Sewerage District were entitled to retain the interest accumulated on said surplus while it was in their possession.
(c) That Acres, Inc. did in fact discharge the liens against said property by virtue of the fact that those corporations sold those properties at market value, and not at the value of the raw land plus the cost of the improvements.
‘6. That the issue of who discharged the liens against the property made the basis of the instant suit filed by New Orleans Mortgage Company, Inc., was specifically litigated in the matter of Wegro, Inc. and Acres, Inc. vs. City of Kenner and Consolidated Sewerage District of the City of Kenner. It was adjudged in that suit that Acres, Inc. did in fact discharge those liens and was thus entitled to receive funds due thereon.
“7. That plaintiff in the instant matter, New Orleans Mortgage Company, Inc., was duly notified of the pend-ency of Acres, Inc. and Wegro, Inc. vs. The City of Kenner and Consolidated Sewerage District of the City of Kenner, et al. That, while plaintiff and defendant are able to stipulate that plaintiff was notified of the pendency of that suit, plaintiff and defendant are unable to stipulate as to plaintiff’s knowledge that the aforementioned suit involved the same claims asserted by plaintiff herein as to the same lien refunds on the same property. That plaintiff in the instant matter seeks to raise the same claims against the City of Ken-ner that were raised in that former lawsuit in that plaintiff herein seeks to have adjudicated to them the same lien refunds on the same property. That in spite of the fact that plaintiff herein was notified of the pendency of that suit, plaintiff herein failed to intervene and assert its rights.
“8. Pursuant to judgment rendered in Acres, Inc. and Wegro, Inc. vs. City of Kenner, the City of Kenner has in fact disbursed the surpluses accumulated on said liens to Acres, Inc. in the manner ordered by this Court and thus is no longer in possession of same.”

Record, pp. 60-63.

The trial judge properly concluded that the exception of res judicata, filed by defendant City of Kenner, should be overruled because the three requisite identities for res judicata to apply were not present. C.C. Art. 2286. Identity of the parties, the thing demanded, and the cause, are all required because res judicata must be applied stricti juris, and it cannot be invoked unless all of its necessary elements are present. Scurlock Oil Company v. Getty Oil Company, 294 So.2d 810 (La.1974); Hancock v. Lincoln American Life Insurance Company, 278 So.2d 561 (La.App. 1st Cir. 1973).

It is conceded in this case that there exists identity of the thing demanded and the cause. However, clearly, plaintiff New Orleans Mortgage Company was not a party to the earlier suit and the requisite identity of parties is not present. Because the exception of res judicata should never be maintained if there is any doubt whatsoever regarding the correctness of its application, the exception was properly overruled. Olsen Engineering Corp. v. Hudson Engineering Corp., 289 So.2d 346 (La.App. 1st Cir. 1973), writ refused, 293 So.2d 170; Simon v. Broussard, 216 So.2d 668 (La.App. 3rd Cir. 1968); Johnson v. Sweat, 265 So.2d 801 (La.App. 3rd Cir. 1972), writ refused, 267 So.2d 211.

The so-called doctrine of judicial es-toppel was applied by the trial judge as an equitable alternative to res judicata. Judicial estoppel has been applied where the requirements of res judicata are not met when it appeared that a relitigation of the same issues would be fruitless and inequitable. Brown v. Globe Tool & Engineering Co., 337 So.2d 894 (La.App. 4th Cir. 1976). However, the Louisiana Supreme Court, in a very recent case, once again reiterated, in extremely clear language, that “[cjollateral estoppel is a doctrine of issue preclusion alien to Louisiana law” and “none of the variations of the common law doctrines of res judicata apply in Louisiana.” Welch v. Crown Zellerbach Corp., 359 So.2d 154, 156, 157 (La.1978). This ruling should make it clear that only the narrow civilian concept of res judicata, with full compliance with the “three identities” requirement, is applicable in Louisiana.

The trial judge pointed out, in his Reasons for Judgment, that the City of Kenner, through Mr. Vondenstein, City Attorney, gave notice to plaintiff, New Orleans Mortgage Company, that the Acres, Inc. and Wegro, Inc. case was pending, and that

“Mr. Vondenstein further made known to those persons that the Acres and Wegro case concerned liens on property which had subsequently come into possession of New Orleans Mortgage and that New Orleans Mortgage might have a valid claim to the lien refunds sought by Acres and Wegro in that matter. These principals, however, chose not to intervene on behalf of New Orleans Mortgage in Acres and Wegro and thus, as neither party to that judgment appealed the finding of the Court therein, the judgment became final adjudicating the refunds in question to Acres, Inc. and Wegro, Inc.” Record, p. 67.

For those reasons, the trial judge saw no inequity in denying plaintiff the right to have its interest represented on this issue. The above conclusions were reached by the trial court because of Stipulation No. 7 agreed to by the parties in their General Stipulation. However, as pointed out by counsel for plaintiff, the stipulation clearly states that, although notice was given, the parties do not agree on whether New Orleans Mortgage Company had knowledge that the Acres, Inc. and Wegro, Inc. case concerned liens on the same property.

As argued in plaintiff’s motion for a new trial, there was absolutely no evidence to prove what form of notice of the first case was given to New Orleans Mortgage Company. It is apparent that the proceedings in this case were not allowed to go far enough so as to permit the presentation of such essential evidence.

Accordingly, the judgment rendered below, sustaining defendant’s exception of judicial estoppel and dismissing petitioner’s claim, is reversed; that exception is overruled; and the matter is remanded to the trial court for further proceedings consistent with law.

REVERSED AND REMANDED.


author: REDMANN, Judge.

text:
    Patrick A. BRANIGHAN v. DEPARTMENT OF POLICE.
    No. 9372.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 1978.
    Rehearing Denied Oct. 19, 1978.
    Irwin R. Sanders, New Orleans, for plaintiff.
    Michael A. Starks, New Orleans, for defendant.
    Before REDMANN, LEMMON and BEER, JJ.
   REDMANN, Judge.

May a Civil Service Commission set aside the dismissal of a police officer for beating two fellow officers senseless, while conceding the beating was sufficient cause for a dismissal, on the ground that the police superintendent’s exercise of his authority to dismiss was prompted by suspicion that the officer was guilty of other instances of physical abuse?

Commissioner Wood Brown Ill’s opinion (from which only Commissioner Norris V. Fitzmorris dissented) well presents the officer’s misconduct as cause:

The ultimate issue is whether the conduct of this particular appellant, under the circumstances prevailing at the time, can be countenanced. Can we permit policemen in a district station to fight with other policemen, regardless of the provocation? Are grown men to be permitted to act like children and knock other grown men senseless because of a long standing animosity among them and because of some fancied insult or untoward act? The answer to this is obvious. The record reveals that the appellant in the past, prior to this incident, “cooed” at Manale and/or Ruiz [the two officers he hit] while they were in the district. If we were to sanction appellant’s acts in this instance, then Manale and Ruiz would have been justified in striking appellant each time this occurred. This, of course, cannot be tolerated.

But the opinion added:

However, in view of what appears to be a prevailing feeling that a policeman might expect to punch a fellow officer and not get fired, we prefer to ameliorate the dismissal this one last time.
At the same time, we serve notice, in the strongest possible terms, that the sort of conduct reflected by this record will not be tolerated. If another case with these facts comes before this Commission and there is an appeal from a dismissal or other heavy discipline, the appellant can expect that dismissal or other heavy discipline to be affirmed.

Thus the Commission itself decrees the officer’s behavior sufficient cause for dismissal. But it reduced the penalty to the maximum suspension, in part because “a significant part of the [superintendent’s] consideration for the dismissal was the [officer’s] alleged past record [of “unfounded” or “not sustained” charges of brutality] and the alleged matter [another beating] for which appellant was under investigation at the time.” The other reasons the Commission gave were (2) “a feeling among some of those who testified” (somewhat corroborated by Commission cases) that there existed unevenness in disciplining fighting and (3) “It appears that appellant is an above average policeman . . . [t]he City can ill afford to lose ... in the absence of aggravated circumstances not here present.”

The legal basis for any change in a disciplinary action can only be that sufficient cause for the action was not shown by the appointing authority. The protection of civil service employees is only against firing (or other discipline) without cause. This protection arises from La. Const, art. 10 § 8(A):

No person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing.

Cause justifying a one-day suspension might not justify a dismissal, and therefore — and in that sense — the Civil Service Commission’s authority “to hear and decide” disciplinary cases, Const. art. 10 § 12, includes authority to modify (reduce) as well as to reverse or affirm a penalty. See Brickman v. New Orleans Aviation Bd., 1958, 236 La. 143, 107 So.2d 422; Bernard v. Louisiana H. & H. R. A., La.App. 1 Cir. 1976, 336 So.2d 55. But, for example, cause justifying a 25-day suspension very probably would also justify a 30-day suspension, and the Commission’s authority “to hear and decide” an appeal from a 30-day suspension would therefore very probably not include authority to reduce the 30-day suspension to 25 days. The Commission does not have the authority to reduce a penalty except upon a determination that there is insufficient cause for the greater penalty.

The superintendent of police is charged with the operation of his department, and the Civil Service Commission is not his supervisor. The superintendent is the one who must run his department and exercise discretion in relation to disciplining his officers, and the Commission is not charged with exercising that discretion. The superintendent may not violate any rights of his officers, and he may not discipline without cause. He cannot fire, suspend or otherwise punish any officer because he suspects the officer of impropriety (because that is not cause), and he cannot fire the suspected officer for insufficient other cause. But he can in his discretion fire any officer for sufficient cause, and it is immaterial that, before or after cause occurs, the superintendent express suspicion about the officer’s prior performance. The fired officer may well feel that he might have escaped firing but for the superintendent’s suspicion, and the superintendent might concede that had the officer’s record been exemplary, without even any suspicion of similar misconduct in the past, the superintendent might have exercised his discretion to impose a suspension in place of dismissal. But the fact is that the firing was for cause (with no hint of discrimination for “political or religious beliefs, sex, or race”, Const, art. 10 § 8(B)), and the Commission therefore has no authority under Const, art. 10 § 8(A) to countermand the firing.

The decision of the Civil Service Commission is reversed and former Officer Brani-ghan’s appeal to the Commission is dismissed at his cost.

      . We acknowledge the semantic argument that firing is not discipline (discipline does not remove the “disciple” but only his faults), inherent in art. 10 § 12’s empowering the Commission “to hear and decide all removal and disciplinary cases”, suggesting that a removal case is not a disciplinary case. Such an interpretation, however, irrespective of its lexicological merits, would leave the classified employee not expressly protected by the constitution against firing without cause. Yet, firing without cause — with each change of administration, under the former “spoils system” which regarded all public employment as booty belonging to the political victors — was one of the principal evils prompting the creation of the civil service system. Necessarily, then, ‘.‘disciplinary action” in art. 10 § 8(A) includes firing as the most extreme form of disciplinary action.

      . E. g., “I can’t prove what I suspect, but I’m ‘laying’ for you and the minute you give me cause I’m going to fire you.”

      . As in our case’s letter or dismissal, which, after setting forth the attack on Manale and Ruiz and the pertinent Rules, added:
      A review of your prior disciplinary record while a member of the New Orleans Police Department reflects numerous citizens complaints against you alleging physical abuse, which in itself is highly suspect. To afford you the opportunity of presenting facts in mitigation, or explaining your most serious misconduct, I summoned you to my office on the afternoon of October 26, 1976. The explanation offered at that meeting in no way justifies or mitigates your most reprehensible conduct toward your brother officers. I further note that at present there is an ongoing criminal and administrative investigation arising from a severe beating sustained by Mr. Jose Pagan on September 21, 1976. You are a suspect in this brutal act.
      As a result of your hereinabove outlined misconduct centering around your attack on Officers Manale and Ruiz I am suspending you for a period of twenty-four (24) days, such suspension having begun October 5, 1976 and extending through October 28, 1976, and am dismissing you from this Department effective October 29, 1976.


author: LEMMON, Judge.

text:
    Simroy JOHNSON, Kathleen Johnson, and Jimmie Green v. GULF INSURANCE COMPANY et al.
    No. 9378.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 1978.

      Windhorst, Heisler, De Laup & Wysocki, Frederick P. Heisler, New Orleans, for plaintiffs-appellants.
    Bienvenu, Foster, Ryan & O’Bannon, David E. Walle, New Orleans, for defendants-appellees.
    Before REDMANN, LEMMON and BEER, JJ.
   LEMMON, Judge.

Plaintiffs have appealed from a judgment dismissing their claims for personal injuries allegedly incurred when a truck backed up about two feet into their stopped car. The trial court found defendant driver was liable for the accident, but nevertheless dismissed plaintiffs’ suit, further finding that defendant insurer had paid the property damage, described by the investigating officer as “light damage across the front”, and that plaintiffs had failed to prove they were injured in the accident.

Several days after the December 30,1975 accident, plaintiffs consulted Dr. Joseph Braud, who was then treating plaintiff Green for an October, 1975 accident. Green testified that at the time of the accident in suit he “was okay” and “about to (be) discharge^)”, but had such severe pain for one or two months thereafter that he couldn’t lace his shoes and was still suffering with his back at the trial 22 months after the accident. He admitted that he had been present at work as a longshoreman every day since the accident and had been paid, but stated that his friend performed his work for him until he “got better”, after which he “worked the time back” for the friend. Moreover, in response to pre-trial interrogatories inquiring about accidents within the past five years, Green answered that he did not remember and gave sketchy information about only one accident, which was subsequent to the present one. When Green was questioned on this at trial, he gave such completely evasive answers that the judge remarked “I’m not reflecting on your (the attorney’s) honesty . . . but the rest of this case stinks”.

Plaintiff Johnson consulted the same physician and was treated for the same complaints on virtually the same days until both plaintiffs were discharged around the end of April. Also like Green, Johnson did not miss any attendance at work as a longshoreman nor any pay, but was fortunate enough to have a brother on the job with him who “helped with heavy duties” for eight months, or perhaps three.

The doctor testified that both plaintiffs exhibited mild spasm on January 2, 1976, but had no record of these findings or of advising either not to work. There was nothing in the doctor’s records to show Green’s condition just before the December 30 accident, but the records did show he was treated on December 30, a fact Green denied. Furthermore, the doctor kept a separate card on Green for each accident, and his records (as well as a report issued in respect to other litigation) stated that Green was discharged from the October, 1975 accident as “doing well” on January 26, 1976; however, Green was treated through April 19, 1976 for the December, 1975 accident. The records do not reflect what treatment was given, and the office notes of the October, 1975 accident show only a comment of back pain on January 2, 1976, with no mention of another injury.

The trial court found as a fact that neither plaintiff sustained an injury in the December, 1975 accident. The lightness of impact, the initial statement of no injury to the investigating officer, the fact of no lost time at work, and the history of multiple accidents and claims by both plaintiffs militate against their credibility, while the fact of deficient, contradictory and questionable medical records lends additional support to the trial judge’s findings. Fact finding, particularly when based on credibility, is primarily a function of the trial court, and we find no manifest error in the factual findings in this case.

The judgment is affirmed.

AFFIRMED.

      . The truck was not damaged, and defendant driver testified he was not aware a collision had occurred until he heard a horn blow.


text:
    Yvonne PARKER v. MORRISON CAB COMPANY et al.
    No. 9457.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 1978.
    Rehearing Denied Oct. 19, 1978.

      Garon, Brener & McNeely, New Orleans, Trudy H. Oppenheim for defendant-appellant, Isaac Mahoney.
    Pitard, Pitard & Porobil, James G. Ma-guire, New Orleans, for defendants-appel-lees.
    Before REDMANN, LEMMON and BEER, JJ.
   LEMMON, Judge.

This case involves an accident between a car operated by Isaac Mahoney and a taxicab operated for Morrison Taxicab Service, Inc., in which plaintiff was a passenger. Prior to the present action Mahoney had filed a suit against Morrison, which resulted in a consent judgment for the amount of Mahoney’s damages. When plaintiff filed the present action against Mahoney and Morrison, Mahoney filed a third party demand against Morrison, seeking indemnification for the expense of defending a suit in which Morrison’s sole liability has already been judicially confessed. Plaintiff’s suit was ultimately compromised, but not until Mahoney had incurred attorney’s fees and the expense of depositions and other pre-trial proceedings, and when Mahoney pursued his third party demand for recovery of these items, Morrison filed an exception of no cause of action, contending it had no legal or contractual obligation to furnish Mahoney a defense. The trial court maintained the exception and dismissed the demand, and Mahoney appealed.

Mahoney apparently concedes that in a suit by a guest passenger against a host driver and a third party driver, the motorist found not to be liable generally is not entitled to recover attorney’s fees and other expenses of trial from the motorist found to be liable. The issue Mahoney raises in this appeal is whether this general rule applies when one motorist has judicially confessed liability in an earlier suit by the other motorist.

The problem raised is one inherent in multi-party litigation. Res judicata was not available to Mahoney as a defense to plaintiff’s suit, since C.C. art. 2286 requires identity of parties. Plaintiff had the right to assert her claim against both defendants, and Morrison had the right to have that claim judicially determined. While Morrison’s judicial confession in the earlier suit may have created a judicial estoppel which precluded Morrison from denying its liability or from asserting Mahoney’s liability, Morrison’s confession was not determinative of plaintiff’s claim against Mahoney. Moreover, the fact that Morrison did riot require Mahoney to proceed to judgment in order to recover his damages arising from the accident does not deprive Morrison of the right to require a judicial determination of plaintiff’s damages.

There is simply no contractual or legal basis shown for requiring Morrison to underwrite the cost of Mahoney’s defense or for otherwise allowing Mahoney to recover from Morrison the attorney’s fees and expenses of preparation for litigation incurred because a third party exercised her right to name them both as co-defendants.

The exception was properly maintained.

AFFIRMED.

      . If that is “unfair”, as contended, then even more unfair is the consideration that the completely innocent tort victim, who was merely a passenger in one vehicle, may not recover attorney’s fees and other expense of preparation for trial from the defendant found to be liable.

      . We reject plaintiffs argument, citing language in Bewley Furniture Co. v. Maryland Cas. Co., 285 So.2d 216, 219 (La.1973), that “a. party not actually at fault, whose liability results from the fault of others, may recover by way of indemnity from such others”. The Bewiey case held that a party only vicariously liable is entitled to full indemnity, but no such situation is presented in this case.


text:
    Harold C. LEIBE v. Jennie T. CULOTTA, Delores Culotta Craven and Gloria Culotta Watson.
    No. 9490.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 1978.
    Rehearing Denied Oct. 19, 1978.
    James Burnett Aime, New Orleans, for plaintiff-appellant.
    Ivor A. Trapolin, New Orleans, for defendants-appellees.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   SCHOTT, Judge.

Harold C. Leibe instituted these proceedings for a declaratory judgment against the owners of the premises at 3500 Veterans Memorial Highway in Metairie, Louisiana. He sought a declaration that a lease of the premises, originally entered into on November 15,1965, was in full force and effect. A separate suit was filed by the owners against Leibe for possession of the premises based upon allegations that Leibe was occupying the premises on a month to month basis and that the owners were entitled to take possession. The cases were consolidated for trial, and from a judgment dismissing Leibe’s petition for declaratory relief and ordering him to vacate the premises he has taken this appeal.

In November, 1965, the original lease of these premises was made between one Carol V. Charvet, owner, and Lakeside, O.H.M., Inc., as lessee, for a term of five years commencing April 1, 1966, for a monthly rental of $450. Charvet sold the property in May, 1969, to Mr. and Mrs. Anthony Culotta. He died in March, 1971, and the plaintiffs herein are his widow and two children.

The lease contained an option for the lessee to renew the lease for a five year period from April 1, 1971, at a monthly rental of $500, and a second option to renew for a ten year period commencing April 1, 1976, at a monthly rental of $575.

The first option was duly exercised in accordance with the terms of the lease by Lakeside O.H.M., and in January, 1973, Lakeside sold its assets to Veterans O.H.M., Inc., which began to occupy the premises. Before the end of 1974 Leibe purchased the assets of Veterans O.H.M., Inc., and in effect began to occupy the premises.

The lease contained the following provisions with respect to the exercise of the second option for the period beginning April 1, 1976:

“Should Lessee desire to exercise this option to renew it it shall notify Lessor of its intention to do so on or before December 1, 1970, said notice shall be in writing and shall be directed to Lessor by registered or certified mail at Lessor’s last known address.”

By February, 1975, it had come to the owners’ attention that the business had changed hands and they had their attorney inquire as to who was then occupying the premises. They then learned that Leibe was the new occupant. For the next two years there were extensive negotiations between the parties and their attorneys with respect to a lease of these premises between the owners and Leibe. These negotiations began when the owners threatened to evict Leibe because of the violations of the provisions of the lease with respect to the necessity for the owners’ consent to sublease or assign the premises. In any event, there was never any compliance with the terms of the lease with respect to the exercise of the option for the lease of the premises commencing in 1976. In fact, the correspondence between the owners’ attorney on the one hand, and Leibe and his attorney on the other hand, makes it clear that they were occupying these premises on a month to month basis in the hope that a longer lease might be negotiated.

There is no evidence in the record to support Leibe’s contention that he was occupying under the terms of the original lease. Aside from the correspondence referred to above, the evidence shows that Leibe began to pay $625 per month rent in February, 1976, which was consistent with correspondence that they were on a month to month basis, and which was altogether inconsistent with the terms of the lease which, if in effect, would have required only $575 per month rent.

We have concluded that Leibe had no lease, he was occupying on a month to month basis, and since the proper notices to vacate were given by the owners the judgment of eviction was in accordance with law and is affirmed.

AFFIRMED.