author: HALL, Judge.

text:
    STATE of Louisiana, for the Use and Benefit of the SHERIFF OF TENSAS PARISH, Plaintiff-Respondent, v. ONE LOCKHEED LODESTAR L18, TWIN ENGINE AIRPLANE BEARING FEDERAL AVIATION ADMINISTRATION REGISTRATION N75SA Segers & Associates, Inc., Defendant-Relator.
    No. 13041.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 13, 1976.

      Charles R. Brackin, Dist. Atty., 6th Judicial Dist., Tensas Parish, Thomas F. Wade, Asst. Dist. Atty., for the State of La., respondent.
    Davenport, Files, Kelly & Marsh by Thomas W. Davenport, Jr., Monroe, for Segers & Associates, Inc., relator.
    Thompson L. Clarke, St. Joseph, for absentee.
    Before PRICE, HALL and MARVIN, JJ.
   HALL, Judge.

On the application of Segers & Associates, Inc., this court granted a writ of cer-tiorari directed to the Judges of the Sixth Judicial District Court for Tensas Parish to review the validity of three ex parte orders signed by the Judge of Division “B” in the course of forfeiture proceedings brought by the district attorney under LSA-R.S. 40:989. All proceedings in the cause were stayed pending judgment by this court on the writ.

On May 28, 1976, the district attorney for Tensas Parish filed a petition for forfeiture of an airplane pursuant to the provisions of LSA-R.S. 40:989, alleging that the airplane was used to illegally transport, or facilitate the transportation, possession or concealment of marijuana, a substance characterized as a controlled dangerous substance, possession of which is prohibited by LSA-R.S. 40:961, et seq. The petition, supported by affidavit of an assistant district attorney, alleged on information and belief that the owner of the aircraft is Segers and Associates, Incorporated, a corporation located in Houston, Texas, with no registered agent for service of process in either Louisiana or Texas. Pursuant to the prayer of the petition and in accordance with LSA-R.S. 40:989 H., an attorney at law was appointed by the court to represent the absent owner, and the defendant corporation through the appointed attorney was ordered to show cause on June 8, 1976, why the relief prayed for should not be granted.

Responsive pleadings were filed by the court appointed attorney. Another attorney appeared and was enrolled as attorney for Segers and Associates, Inc. The corporation, through its enrolled counsel, filed a motion to suppress evidence.

After several continuances, the case came on for hearing on June 29, before the Judge of Division “A.” Segers and Associates, Inc., through enrolled counsel, filed a peremptory exception of no cause of action and an answer. After oral argument, at the suggestion of the assistant district attorney, the Judge granted plaintiff ten days to amend the petition. The court did not otherwise rule on the peremptory exception. Upon the request of the appointed attorney, the court ordered him dismissed as attorney for the absent or unknown owner. The case was reset for hearing on July 27.

On July 5, three ex parte motions and orders were presented to the court by plaintiff and were signed by the Judge of Division “B.” It is with these three orders that applicant, Segers and Associates, Inc., takes issue.

The plaintiff filed motions (1) to dismiss the peremptory exception of no cause of action filed by Segers and Associates, Inc. (2) to dismiss the answer filed by Segers and Associates, Inc., and (3) to set aside the order dismissing the appointed attorney and to reinstate his representation of the owner of the aircraft. The motions allege as grounds therefor that the entity purporting to be Segers and Associates, Inc., a Texas corporation, is not in fact a valid corporation under the laws of Texas. The court ordered that (1) the peremptory exception be dismissed, with prejudice, (2) the answer be dismissed, with prejudice, and (3) the order dismissing the appointed attorney be set aside and that the attorney represent the absent owner in these proceedings.

The district court erred in dismissing by ex parte motion and order the peremptory exception and answer filed by Segers and Associates, Inc., through its enrolled counsel. The original petition, supported by affidavit of the assistant district attorney, alleged on information and belief that Segers and Associates, Inc., a Texas corporation, is the owner of the aircraft. Responsive pleadings were filed by Segers and Associates, Inc. through employed counsel. The actual existence of such a corporate entity, its ownership of the aircraft, and the validity of the defenses raised by the responsive pleadings are all matters to be determined in contradictory proceedings. There is no authority in procedural law for the dismissal of the responsive pleadings by ex parte motion and order on the mere suggestion by the plaintiff that the purported defendant and alleged owner is not, in fact, the legal entity it purports to be. To the contrary, LSA — R.S. 40:989 and the Code of Civil Procedure contemplate and require a contradictory hearing of such matters.

LSA-C.C.P. Art. 963 provides:

“If the order applied for by written motion is one to which mover is clearly entitled without supporting proof, the court may grant the order ex parte and without hearing the adverse party.
“If the order applied for by written motion is one to which the mover is not clearly entitled, or which requires supporting proof, the motion shall be served on and tried contradictorily with the adverse party.
“The rule to show cause is a contradictory motion.”

The orders applied for by the written motions in this case are not ones to which the mover is clearly entitled, either as a matter of procedural or substantive law. If the issues which the plaintiff seeks to raise can be raised by motion, which we do not pass on, the relief sought certainly would require supporting proof. See State v. Camp, 326 So.2d 644 (La.App.2d Cir. 1976) and State ex rel. Stevens v. Babineaux, 196 So.2d 668 (La.App.3d Cir. 1967).

The ex parte orders of the district court dismissing the peremptory exception and answer with prejudice must be set aside.

We find no error in the ex parte order setting aside the discharge of the court appointed attorney for absent and unknown defendants and reinstating him to that position. Appointment of an attorney to represent nonresidents or absentees is necessarily and properly accomplished by ex parte order. There is no legal reason why reappointment of such an attorney should not be accomplished by the same procedure. Until Segers and Associates, Inc. establishes its existence as a legal entity and its ownership of the aircraft, it is appropriate and in accordance with LSA-R.S. 40:989 that the proceedings be conducted contradictorily with an attorney appointed by the court to represent any other absent and unknown claimants to ownership of the aircraft, as well as with the claimant who has appeared and answered. The court appointed attorney’s position in the proceedings does not interfere with or preclude independent and private representation of Segers and Associates, Inc. by its retained, enrolled counsel.

For the reasons assigned, the writ of cer-tiorari issued herein is made peremptory and it is ordered that the orders of the district court signed July 5,1976, dismissing the peremptory exception of no cause of action and the answer filed by Segers and Associates, Inc. be set aside. It is further ordered that this cause be remanded to the Sixth Judicial District Court for further proceedings in accordance with law and consistent with the opinion of this court.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    L. P. WHITE, Plaintiff-Appellant, v. Dewayne C. MORRIS et al., Defendants-Appellees.
    No. 5553.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 20, 1976.
    Rehearing Denied Sept. 20, 1976.
    Writ Granted Nov. 24, 1976.

      Holt, Wagner & Lee, by Richard E. Lee, Pineville, for plaintiff-appellant.
    Gist, Methvin & Trimble, by Alonzo P. Wilson, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY, and BERTRAND, JJ.
   DOMENGEAUX, Judge.

Plaintiff-appellant, L. P. White, instituted this action to recover damages for a battery committed upon him by defendant-appellee, Dewayne C. Morris. Also made party defendant was Morris’ homeowner’s liability insurer, Hartford Insurance Group. Insurance coverage was admitted by Hartford. From a judgment rejecting his demands, plaintiff has appealed. We reverse.

In the early morning hours of November 3, 1974, at approximately 12:30 A.M., plaintiff, a Rapides Parish Sheriff’s Deputy, was patrolling the rural community of Kings-ville, Rapides Parish, Louisiana, in a police cruiser. Accompanying the plaintiff was another deputy, O. C. Tynes. The two deputies were working the 11:00 P.M. to 7:00 A.M. shift and had been previously apprised by their supervisor of the fact that several burglaries had been committed in the Kingsville area recently.

The two deputies were travelling south on Louisiana Highway 165 and had just passed a drive-in type eating establishment known as “Mr. Ed’s”, which was closed, when they noticed a pickup truck parked on the right side of the road. As they approached the parked vehicle in their police cruiser they observed two white males running from the truck in the direction of Mr. Ed’s. By the time the officers turned their vehicle around the two individuals previously sighted had disappeared from their view. They proceeded toward Mr. Ed’s Drive-In, and upon travelling to the rear of the establishment discovered five white youths, one of whom was the defendant, standing around a single automobile.

The deputies parked their vehicle and approached the five young men, requesting their identification. The first two individuals produced satisfactory identification to the officers, however, a third youth stated that he had no identification on his person but informed the officers of his identity and told them that they could call his father at home to verify same. Apparently at that point one of the officers stated words to the effect that “You don’t have to be so damn smart ass about it.” The deputies then proceeded to'request a showing of identification from the defendant, who refused, and stated that “he didn’t have to give no damn identification to nobody.”

The defendant’s identification was again requested, and he began to curse and berate the officers. The evidence is conflicting as to whether either of the officers informed defendant at that point that he was under arrest, but at any rate the record is clear that plaintiff then walked over to defendant and placed his arm on the latter’s elbow, telling him to “come along”. The officers walked with defendant a few feet when Morris began to struggle. The officers again gently prodded defendant toward the cruiser when he became violent and began to fight with the deputies. One of the officers placed a form of headlock on Morris and wrestled him to the ground while the other attempted to handcuff the defendant. However, Morris broke away and removed himself to a point several feet away from the deputies. At that point plaintiff again approached the defendant but did not draw his weapon or billyclub. Defendant then struck plaintiff in the face, knocking him to the ground, and fled from the scene.

The above recitation of the facts of this case is consistent with plaintiff’s version which was essentially supported by the testimony of three of the youths who were present at the scene, Dalton Moore, Gary Wayne McDowell, and Mack Burton, Jr. Said testimony was contradicted only by that of the defendant.

The district judge found that the defendant’s resistance.to tfye actions of Officers Tynes and White was justified and warranted since the officers’ attempt to arrest him was an illegal act. In his written reasons the district judge stated:

“It is clear that the officers had no reason to believe that a crime had been committed or that any of the five boys had committed a crime or were about to commit a crime. The only reason that White attempted to arrest Morris was because Morris refused to give identification when White demanded it.”

We are of the opinion that the trial judge erred in reaching this conclusion.

The defendant and his companions were questioned by the officers pursuant to the authority granted them by LSA-C.Cr.P. Article 215.1 which provides in pertinent part:

“A. A law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or a misdemeanor and may demand of him his name, address and an explanation of his actions.

Plaintiff and his partner were both law enforcement officials who viewed two individuals running toward a closed place of business at 12:30 A.M. Upon investigation they discovered five unknown individuals congregating near the, business establishment. Furthermore, the officers had been instructed by their superiors to be especially diligent in their lookout for burglary suspects. We find that the factual situation presented by this litigation supports a rea-t sonable suspicion on behalf of the officers, enabling them to at least investigate the circumstances existing at Mr. Ed’s Drive-in in the early morning hours of November 3, 1974.

It is significant to note that the officers did not attempt to arrest the other individual who failed to produce identification, Mack Burton, Jr. The record clearly indicates that the deputies attempted to take the defendant into custody only after he became abusive toward them and gave them a “good cussing”. We find that said behavior on behalf of the defendant constituted a clear violation of LSA-R.S. 14:59 which provides:

“§ 59. Criminal mischief
Criminal mischief is the intentional performance of any of the following acts:
(7) Acting in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others;
. . . . . ."

LSA-C.Cr.P. Art. 213 sets forth the conditions under which a lawful arrest may be executed:

“Art. 213. Arrest by officer without warrant; when lawful
A peace officer may, without a warrant, arrest a person when:
(1) The person to be arrested has committed an offense in his presence; and if the arrest is for a misdemeanor it must be made immediately or on close pursuit;

A law enforcement officer making an arrest need not inform the arrestee that he is under arrest and the reason therefor if said individual is currently engaged in the commission of an offense. LSA-C.Cr.P. Art. 218.

An individual is required to submit peaceably to a lawful arrest. LSA-C.Cr.P. Art. 220.

We conclude that plaintiff had reasonable grounds to suspect the possible or potential commission of an offense at Mr. Ed’s on the morning of November 3, 1974, and that he was possessed with the authority to investigate the situation including the request for defendant’s identification. We further find that the plaintiff had probable cause to lawfully arrest the defendant for the commission of an offense in his presence, i. e., criminal mischief, and that the defendant unlawfully resisted said arrest.

However, assuming arguendo that the arrest of the defendant was unlawful and that he was possessed with a right to resist the actions of the officers, we find that in so resisting, the defendant employed excessive force against the plaintiff. The rule is well settled in our jurisprudence that an individual resisting the aggression of. another may use only such force as is necessary to reasonably defend himself, and excessive force will render the “defender” liable for damages. See Watts v. Aetna Casualty and Surety Company, 309 So.2d 402, (La.App. 2nd Cir. 1975), writs denied 313 So.2d 601; Porche v. Fernandez, 286 So.2d 418 (La.App. 4th Cir. 1973); Flores v. Black, 260 So.2d 144 (La.App. 2nd Cir. 1972). In the instant case neither of the officers attempted to injure the defendant in any way. They merely tried to subdue him and there is. no evidence that anyone struck the defendant. Before Morris struck Officer White, the officer approached the defendant in a calm and unthreatening manner and drew neither his pistol nor billyclub. Plaintiff had not even laid a hand on defendant after his first “escape” when Morris struck Officer White in the face with a blow sufficient to fracture his nose and several other facial bones. Under the facts of this case we find that said action on behalf of the defendant was unwarranted and unnecessary.

Having concluded that the tortious act committed upon plaintiff by defendant was without justification and unlawful, we now address ourselves to the issue of damages. As a result of the blow plaintiff received a compound comminuted fracture of the right and left wall maxillary antrum, a fractured nose, and an intracapsular fracture of the left condyle of the mandible. He was taken to Rapides General Hospital for emergency treatment. Thereafter, he required the attention of Dr. Bruce Phillips, an oral surgeon, who performed an open reduction on the fractures. Plaintiff’s jaw was wired together for approximately three weeks, after which time his injuries healed. He suffered no residual disability therefrom.

Although the facial fractures suffered by plaintiff resulted in substantial pain and discomfort for a period of approximately one month, he nevertheless suffered no residual pain or disability. Plaintiff’s treating physician clearly indicated that the fractures had healed completely and satisfactorily. Based upon these findings we are of the opinion that plaintiff is entitled to an award of $5,000.00 as compensation for temporary disability, pain and suffering resulting from the battery. Furthermore, plaintiff incurred two hospital bills in the amount of $394.15 and $197.90, as well as physicians fees of $1,500.00, to which he is entitled.

For the above and foregoing reasons the judgment of the district court is reversed, and judgment is hereby rendered in favor of plaintiff-appellant, L. P. White, and against defendants-appellees, Dewayne C. Morris and Hartford Insurance Group, jointly and in solido, in the amount of $7,092.05, with legal interest thereon from date of judicial demand until paid.

All costs at trial and on appeal are assessed against defendants-appellees.

REVERSED AND RENDERED.

      . We are cognizant of the fact that portions of two other penal statutes proscribing somewhat similar behavior have been declared unconstitutional. See LSA-R.S. 14:103 and State v. Adams, 263 La. 286, 268 So.2d 228 (1972). However, see the more recent Fourth Circuit case of Castriotta v. Cronvich, 277 So.2d 744 (La.App. 4th Cir. 1973), which relies upon the statute; LSA-R.S. 14:103.1 and Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). However, we do not feel that 14:59, as applied in situations of this type is burdened with the same constitutional deficiencies as the two previously cited statutes.


author: BERTRAND, Judge.

text:
    Frank BRUNO, Individually and for the Community of Acquets and Gains and Barbara Bruno, Individually, Plaintiffs-Appellants, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY et al., Defendants-Appellees.
    No. 5555.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 20, 1976.
    Rehearings Denied Sept. 20, 1976.

      Gravel, Roy & Burnes by Christopher J. Roy, Alexandria, for plaintiffs-appellants.
    Stafford, Randow, O’Neal & Scott by Grove Stafford, Jr., Alexandria, for defendants-appellees.
    McLure & McLure by John G. McLure, Alexandria, for intervenor-appellee.
    Lewis 0. Lauve, Alexandria, for executor-appellee.
    Before DOMENGEAUX, GUIDRY and BERTRAND, JJ.
   BERTRAND, Judge.

Frank Bruno and his wife instituted this suit to recover damages resulting from the death of their twelve (12) year old son, John Bruno. The defendants are Lewis 0. Lauve, Sr. and his insurers, Hartford Accident and Indemnity Company and Hartford Fire Insurance Company.

State Farm Fire and Casualty Company intervened for the amount paid to the Bru-nos under a policy covering Robert Kubes, the boy who fired the shot that caused the death of John Bruno. State Farm also instituted a separate suit against Hartford Accident and Indemnity Company and Hartford Fire Insurance Company. These cases were consolidated for trial.

The trial court rendered judgment against the Brunos and the intervenor. Both have appealed. We affirm.

Hartford Accident and Indemnity Company and Hartford Fire Insurance Company answered the appeal, contending that the trial court erred in failing to maintain the exception of no cause of action and a motion for summary judgment filed on their behalf. A careful review of the Bru-nos’ petition shows that their allegations did in fact state a cause of action. The trial court was correct in overruling the exception of no cause of action.

An appeal does not lie from the trial court’s refusal to maintain a motion for summary judgment. LSA-C.C.P. Art. 968. Comment (d) of Article 968 states that a trial court’s action in overruling a motion for summary judgment may be considered under the appeal from the final judgment in the case. We do not agree with that comment, nor did the court in Ellermann v. Matthew, 165 So.2d 850, 853 (La.App. 4th Cir. 1964). Comments form no part of a statute, are not binding, and are merely aids to interpretation.

It is our opinion that a denial of a motion for summary judgment is not re viewable even upon appeal from the final judgment on the merits. There is nothing in the instant case to warrant a departure from what we consider to be the general rule of law. Trial courts are consistently admonished to proceed cautiously in granting a summary judgment if any doubt exists as to the right of a party to a trial. Allowing review of the trial court ruling would put the appellate court in the position of trying the question of doubt in the mind of the trial judge; furthermore, if such review was allowed, one who had sustained his position after a fair hearing of the whole case might nevertheless lose, because on the hearing of the motion, he had failed to offer proof satisfactory to the appellate court. For cases supporting this view, see 15 A.L.R.3d 922, et seq.

We agree with the ruling of the court in the case of Bourgeois v. Brown and Root, Inc,, 303 So.2d 217 (La.App. 4th Cir. 1974), which involved an appeal after trial on the merits. The court of appeal in Bourgeois refused to consider an appeal by the defendants from the trial court’s denial of a motion for summary judgment.

In the case of Honeycutt v. Town of Boyce, 327 So.2d 154 (La.App. 3rd Cir. 1976), writ of review issued, La., 330 So.2d 317, a different panel of judges of this court held that where the trial court sustains an exception of no cause of action, denies a motion for summary judgment, and the better disposition of the matter would be by summary judgment, the appeal court could review and overrule 'the denial of a motion for summary judgment. The cases upon which the panel relied for this decision, Roloff v. Liberty Mutual Insurance Co., 191 So.2d 901 (La.App. 4th Cir. 1966) and Spillers v. Northern Assurance Co. of America, 254 So.2d 125 (La.App. 3rd Cir. 1971), writ refused, are not on point. The movants in both the cited cases filed alternative pleadings of no right or no cause of action and a motion for summary judgment. The trial courts sustained the exception of no right or no cause of action and dismissed the suit without deciding the motions for summary judgment. The courts of appeal held that the appropriate procedure would have been to grant summary judgments rather than sustaining the exceptions of no right or no cause of action. They, therefore, granted the motions for summary judgment which had not been considered by the trial judges.

In our opinion there is no review of a denial of a motion for summary judgment. Furthermore, a ruling on the motion for summary judgment will not affect the outcome of this litigation inasmuch as we are affirming the judgment' of the trial court dismissing plaintiffs’ suit.

The trial court summarized the facts of the case as follows:

“On September 2, 1973, Robert Kubes, who was then 16, accompanied Lewis Lauve, Jr., then age 15 and Peter Lauve on a hunting trip. They returned early in the afternoon to the Lauve residence and parked in the Lauve driveway. The hunting paraphernalia was in the trunk of the car and either Lewis Lauve or Robert Kubes opened the trunk, in order to unload the automobile. At this point John Bruno arrived on his bicycle. According to Kubes, Bruno remained on his bicycle, balancing himself against the automobile, in the area of the right rear panel. Other evidence would place Bruno several feet from the car. The Lauve brothers were in the immediate vicinity with Lewis Lauve standing several feet behind Kubes. A dare was entered into between Bruno and Kubes over Kubes firing his shotgun in the city limits. Testimony is in some disagreement as to whether it was Kubes or John Bruno who initiated the dare. In any event, the dare dealt with Robert Kubes firing the gun at a bird in a tree. Kubes removed his unloaded double barrel shotgun from the trunk and, with the dare having been made, removed a shell from his vest, which was still in the trunk. He began to play the ‘game’ which consisted of placing the shell in a chamber, raising the gun and pulling the trigger to the empty chamber then declaring to Bruno that ‘it must be a dud.’ He would then lower the gun, break it, place the shell in the other chamber, raise the gun and again pull the trigger to the empty chamber, and again call the shell a dud. This occurred 2 or 3 times and took perhaps 2 or 3 minutes. Kubes was standing 2 to 3 feet from the rear of the car. After Kubes pulled the trigger of the empty chamber for the last time he lowered the shotgun and at the same time turned in the direction of John Brunno. At that time the shotgun discharged killing Bruno instantly. At no time subsequent to removing the shell from the vest did Kubes have any further physical contact with the automobile.” We adopt the trial judge’s findings of

fact as our own.

Plaintiffs allege that Hartford Insurance Company, the automobile liability insurer of Lewis Lauve, Sr., is liable on the grounds that Kubes was an omnibus insured under the policy and that the accident occurred while the Lauve vehicle was being either “loaded” or “unloaded.” State Farm, the homeowner insurer of Kubes which paid $25,000.00 to the Brunos, seeks recovery from Hartford under the same theory. In the alternative, plaintiffs allege that Robert Kubes was an insured under Lewis Lauve’s homeowner’s policy.

I. COVERAGE UNDER THE AUTOMOBILE POLICY

The policy in question provides coverage for any bodily injury arising out of the “use” of an automobile. The term “use” includes any loading and unloading thereof.

The Brunos urge that since at the time of the accident, Kubes was, “in the process of lowering the gun, to unload the gun, to load the shell vest and then to remove all of his equipment from the automobile and go home,” he was in fact “using” the automobile.

The trial court found as a matter of fact that Kubes was still in the process of playing the “game” with John Bruno when the fatal shot was fired.

It is well settled that factual conclusions of the trial court must be given great weight by a reviewing court. Canter v. Koehring, 283 So.2d 716 (La.1973); Roussel v. Colonial Sugars Co., 318 So.2d 37 (La.1975). The trial court’s findings must be clearly erroneous before an appellate court may substitute its own findings. Guidry v. State, Through Department of Hospitals, 317 So.2d 222 (La.App. 3rd Cir. 1975), writs refused; Crooks v. Belden Corporation, 334 So.2d 725 (La.App. 3rd Cir. 1976).

A review of the trial transcript shows that on at least two occasions, Robert Kubes testified that he turned to talk to John Bruno as he lowered the gun. Therefore, sufficient evidence was adduced to support the trial court’s findings that the “game” would not have been finished until Robert Kubes delivered a closing remark to John Bruno.

In our opinion, even if Kubes had not intended to make a closing statement to John Bruno, while lowering his gun, he was nevertheless still engaged in sport and had not returned to the loading and unloading procedure when the shot was fired.

The Louisiana Supreme Court in the case of Fertitta v. Palmer, 252 La. 336, 211 So.2d 282 (1968), held that a “common sense” approach should be used in determining whether the negligent act which caused the injury was a natural and reasonable consequence of the use of the vehicle, within the contemplation of the parties negotiating the insurance contract.

The test to be used for this determination is twofold: (1) was the vehicle being used at the time of the accident; and (2) was the use thereof directly connected with or a cause of the ensuing accident. Ramsey v. Continental Insurance Company, 286 So.2d 371 (La.App. 2nd Cir. 1973).

We conclude that, in applying the above test to the facts, Robert Kubes had deviated from making a “use” of the vehicle and had not returned to the process of loading or unloading. To hold otherwise would result in judicially extending the insurance coverage beyond the contemplation of the parties who negotiated the contract.

II. COVERAGE UNDER THE HOMEOWNER’S POLICY

The homeowner’s policy issued to Lauve included, as an insured, “any other person under the age of twenty-one in the care of any insured.”

Kubes testified that when he was at the Lauve’s home, he would obey the wishes of any member of their household, as he expected them to do when at his home. The Brunos contend that this amounted to Kubes being in the care of an insured as contemplated by the policy.

We find this position to be untenable. At the time of the accident there was no adult present. The only insureds under whose care Kubes could have possibly been were Peter Lauve and Lewis Lauve, Jr., who were both younger than Kubes. As pointed out by the trial judge, “under the care of another” ordinarily connotes being under the guidance, supervision, control, management or custody of another. Certainly the Lauve brothers were not in such a position with respect to a friend, their senior, who was on their property for a few minutes. We do not believe that the policy in question intended to make Kubes an insured under these circumstances.

For the above reasons, the judgments appealed from are affirmed. Costs to be divided between the Brunos and State Farm.

AFFIRMED.


text:
    STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff-Appellant, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, Defendant-Appellee.
    No. 5628.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 27, 1976.
    Rehearing Denied Sept. 20, 1976.
    Gravel, Roy & Burnes by Chris J. Roy, McLure & McLure by John G. McLure, Alexandria, for plaintiff-appellant.
    Lewis 0. Lauve, Jr., Stafford, Randow, O’Neal & Scott by Grove Stafford, Jr., Alexandria, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and BERTRAND, JJ.
   BERTRAND, Judge.

For the reasons assigned in the companion matter entitled Bruno v. Hartford Accident and Indemnity Company et al., 337 So.2d 241, the judgment of the trial court rendered in this matter is affirmed. Appellant is cast for all costs of this appeal.

AFFIRMED.


author: GUIDRY, Judge.

text:
    Joy Dees BALDWIN, Plaintiff-Appellee, v. Jerry BALDWIN, Defendant-Appellant.
    No. 5556.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 20, 1976.
    Rehearing Denied Sept. 20, 1976.

      Codings & Codings, by Robert L. Cod-ings, Lake Charles, for defendant-appellant.
    Hunt, Godwin, Painter & Roddy, by Fred R. Godwin, Lake Charles, for plaintiff-ap-pellee.
    Before DOMENGEAUX, GUIDRY and BERTRAND, JJ.
   GUIDRY, Judge.

Defendant-Appellant, Jerry Baldwin, appeals from a judgment of the trial court which recognized a Texas Judgment of Divorce; decreed such foreign judgment entitled to full faith and credit as to accrued child support installments, subject however to the prescription of three years provided for by LSA-R.C.C. Article 3538; awarded plaintiff-appellee judgment in the principal amount of $5460.00; and, awarded plaintiff wife attorney’s fees in the amount of $750.00. We affirm.

The trial judge rendered written reasons for judgment which accurately sets forth the applicable facts and correctly disposes of the principal issues in dispute. We adopt his well reasoned opinion as our own, except the part thereof concerning the award of attorney’s fees.

“Plaintiff obtained a divorce from defendant by judgment of the 139th District Court of Hidalgo County, Texas, in the matter of ‘Joye Dees Baldwin vs. Jerry Baldwin’ No. 3517 on the docket of that court, dated June 8,1960. The judgment granted her custody of the four children of the marriage, and further ordered

‘. . . that the defendant shall contribute to the support of said children, the sum of $35.00 per week, payable every two weeks on or before the 6th and 21st day of each month, to the Clerk of this Court, . . such sums paid to the Clerk in turn to be delivered by the Clerk to the plaintiff herein for the maintenance and support of said children, and such payments are to continue until the youngest of said children shall reach the age of eighteen years, or until the further orders of the Court.’

Plaintiff brought this action for recognition of the divorce decree in Louisiana, and to have it made executory and to have certain arrears in the support payments fixed and judgment rendered against the defendant for the amount of accrued and unpaid support payments due under the decree, and for attorney’s fees.

Defendant initially filed an exception to the jurisdiction of the court which was overruled. Thereafter, additional pleadings were filed by the defendant and the matter was tried on its merits.

In defense of the suit, defendant contends that this court lacks jurisdiction, that the plaintiff does not have a right of action or cause of action, that plaintiff has failed to prove her case and further urges the application of a prescriptive period of three years to all past due child support payments. Alternatively, defendant contends that judgment should be rendered against him only for child support payments accruing after January 1, 1974.

Plaintiff concedes that her claim for past due child support payments is limited to the period of the three years immediately preceding the date of the filing of this suit, February 24, 1975, and limits her claim to $35.00 per week for 156 weeks, or a total of $5,460.00. Her youngest child had not as yet reached the age of 18 years on February 24, 1975.

The general rule is that a foreign judgment concerning alimony or child support is entitled to full faith and credit as to accrued installments where these are not subject to modification at the discretion of the court under the law of the state rendering the judgment. Where no modification is permitted under the law of that state, the judgment is final and must be recognized and enforced as to accrued installments when a suit is brought on the judgment in a state other than that in which the judgment was rendered. Sistare v. Sistare [218 U.S. 1], 30 S.Ct. 682 [54 L.Ed. 905] (1909), Barber v. Barber [323 U.S. 77], 65 S.Ct. 137 [89 L.Ed. 82] (1944), Weston v. Weston, 177 La. 305, 148 So. 241 (1933), Folds v. Folds, 150 So.2d 251 (La.App.2nd Cir., 1964), and Devore v. Devore, 172 So.2d 923 (La.App.4th Cir., 1964).

Thus, if the support payments due under plaintiff’s Texas judgment cannot be modified insofar as payments which have accrued, then it is entitled to recognition in Louisiana. The newly eriacted Texas Family Code, which became effective January 1, 1974, provides as follows in Section 14.08(c):

14.08(c)
After a hearing and on finding that the circumstances of the child have materially and substantially changed and that modification is in the best interest of the child, any order or part of an order may be modified, except that an order providing for support of a child may be modified only as to obligations accruing subsequent to the motion to modify.

The Texas Family Code, particularly the provisions relative to support, are to be applied retroactively and would thus govern the application of plaintiff’s Texas decree. This is evidenced by the enactment sections of the act, a copy of which was filed marked ‘P-2’, and the retroactive application has been expressly upheld by the case of Harrison v. Cox, 524 S.W.2d 387 (Texas Civ.App. Fort Worth, 1975), rehearing denied June 20, 1975.

Since the support provisions of the Texas decree can not, under Texas law, be modified as to installments which have accrued, the decree is entitled to recognition and to full faith and credit in the State of Louisiana.

Prior to January 1, 1974, Texas enforcement procedures did not permit a suit for arrears but only allowed contempt proceedings, but with the enactment of Section 14.09 of the Texas Family Code on that date, judgments for child support may be enforced by any means available for the enforcement of judgments for debts. It is not necessary as contended by defendant for plaintiff to return to Texas and obtain a judgment on the arrearages before seeking judgment in Louisiana. Webb v. Webb, 305 So.2d 567 [La.App.].

Defendant cites the case of LeJune v. LeJune [LeJeune v. LeJeune], 310 So.2d 655 [La.App.] in arguing that plaintiff does not have- a right of action to have arrears in child support under a foreign judgment fixed and made executory until after a Louisiana court has rendered judgment in an ordinary proceeding recognizing the foreign judgment and making it the judgment of the Louisiana court. The LeJune [LeJeune] case is distinguishable in that the plaintiff attempted by summary proceedings to have the amount of alimony due under a California judgment determined and made executory before obtaining judgment by ordinary proceedings recognizing the foreign judgment and making it the judgment of the Louisiana court. The court held that the rule to show cause issued by the court to have the amount of past due alimony fixed and made executory was premature and void in that it circumvented the procedure set forth in LSA-CCP 2541. Here, plaintiff has filed suit by ordinary proceeding to have the Texas decree recognized and to have the arrears fixed and made executory. The defendant has been afforded the benefits of ordinary proceedings at all stages. No purpose would be served by separate proceedings, nor is any injustice worked upon defendant by combining the actions for recognition and fixing of arrears. Under Louisiana Code of Civil Procedure Article 462, a plaintiff may accumulate any number of actions so long as the court has jurisdiction and venue over such actions and they are mutually consistent and employ the same form of action. Plaintiff has met all requirements to accumulate the action for recognition and for fixing of arrears if these are to be regarded as separate actions.

The court’s conclusion in this regard is also supported by the language in Webb v. Webb, (cited supra), and Didier v. Didier, 230 So.2d 436 [La.App.].

The Texas judgment ordered that the defendant pay the child support payments to the Clerk of Court. Since the Clerk did not testify that the payments had not been made to his office, nor were any of his records produced, defendant contends that plaintiff in simply testifying that she had received no child support payments did not carry her burden of proving that the defendant did not pay the Clerk. This contention is without merit. Payment is an affirmative defense under LSA-CCP 1005 and must be specially pled. Defendant did not plead payment as a defense, nor did he offer evidence of having made any payments. In fact, he offered no .evidence whatsoever. When plaintiff testified that she had received no payments from defendant or anyone else, she at least made out a prima facia case. There being no contrary evidence, plaintiff has carried her burden of proof.”

Appellant argues in this court that the trial court erred in admitting into evidence a copy of the Texas divorce decree, over his objection, as same was not properly certified. Appellant’s argument is without merit. LSA-C.C.P. Article Í395 provides that an official record of any state other than Louisiana may be evidenced by a copy attested by the officer having legal custody of the record, or by his deputy, accompanied with a certificate that such officer has the custody. There is annexed to a copy of the Texas decree a certificate signed by Juanita De LaGaza, Deputy Clerk of Court for Hi-dalgo County, Texas, to the effect that the annexed copy is a true and correct copy of the original as the same appears on file in the Clerk’s office for that County. This certification sufficiently complies with the provisions of the cited article.

The trial court awarded plaintiff-appellee attorney’s fees under authority of our holding in Gauthreaux v. Gauthreaux, 315 So.2d 402 (La.App.3rd Cir. 1975). In Janise v. Janise, 328 So.2d 711 (La.App.3rd Cir. 1976) writs refused June 2, 1976, a different panel of this court, with one judge dissenting, concluded that the rule as stated in Gau-threaux v. Gauthreaux, supra, should not be followed for the following reasons:

“(1) The basic well established general rule is that attorney’s fees are not allowed in the absence of a statute or contract providing for them. (2) Although our Supreme Court departed from this general rule in the Newson case in 1933, it adhered to the general rule in Wainwright in 1950, and by the denial of writs in Stoltz in 1964, these latter rulings being the last expressions of our Supreme Court on this matter. (3) Even if an exception to the general rule is to be recognized, we think it should be strictly limited to those cases where the father has been arbitrary or capricious in his failure to pay, and that this matter should be left largely to the discretion of the trial judge. (4) In the present case, we find no abuse of the discretion of the trial judge in refusing attorney’s fees.”

In Janise, supra, we respectfully called upon our Supreme Court to grant writs and decide whether attorney’s fees can be recovered in these cases. Writs were applied for, however, on June 2, 1976, 333 So.2d 233, same were denied with the following statements:

“Writ refused. Under the facts found, the result is correct.
Dixon, J., concurs in the denial but is of the opinion Newson v. Newson, 176 La. 699, 146 So. 473 (1933) may be correct, and in the proper case, the question of attorney’s fees for recovering past due alimony should be reconsidered by this court.”

We do not construe the denial of writs in Janise, for the reasons stated, as a complete rejection of the legal proposition espoused in Newson, supra, and followed in Gau-threaux, supra. Had our Supreme Court, in considering the writ applied for in Janise, determined that under all circumstances a mother is not entitled to attorney’s fees necessary to litigate a rule to make past due child support payments executory it could have so stated. We consider the language used by the court in denying writs in Janise and especially that used by Justice Dixon in his concurrence to suggest that the apparent conflict in the jurisprudence on this issue, i. e., Newson, supra, versus Wainwright, supra, remains unsettled and that under certain circumstances (for example, where the father’s refusal to pay is shown to be arbitrary or capricious) the trial court’s award of attorney’s fees may be proper.

We have carefully considered this most perplexing question in light of the several cited decisions, and although we have the utmost respect for the views expressed by our own brethren who authored Janise, supra, and for the views espoused by our brothers of the Fourth Circuit in Stoltz, supra, we choose to follow the rule as stated in Gauthreaux, supra.

However, in any event, the instant case is factually distinguishable from Janise, supra. In the latter case the trial court rejected the wife’s claim for attorney’s fees finding the relief sought by the'wife and that sought by the husband to' be intertwined and the husband to be partially successful in his demands. Under the circumstances of that case the trial court reasoned that the parties should pay their own attorneys. In this case the trial court, in its discretion, allowed the wife reasonable attorney’s fees. The record before us reflects that the father’s failure to make child support payments as ordered was clearly arbitrary. Plaintiff-appellee reared her children for the last ten years preceding the filing of the instant suit without any financial assistance from the defendant in spite of repeated demands upon the latter for assistance. Because the enforcement procedures provided for by Texas law prior to January 1, 1974 did not allow a suit for arrearages in child support but only allowed contempt proceedings, plaintiff abandoned her efforts to collect support. Plaintiff testified that after discussing the matter with court officials in Texas she determined that to pursue the matter further would be futile unless she were able to return to court “time after time to harass him enough.” In January of 1974 the Texas law was changed allowing a judgment against a defaulting party for arrearages in child support, which judgment is subject to enforcement by any means available ' for the enforcement of judgments for debts. As stated previously the provisions of the Texas Family Code relative to child support are applicable retroactively. As enunciated in Newson, the arrearages herein made executory (the greater portion herein sued for being uncol-lectable because of our own laws of prescription) “should not be eaten up partially by attorney’s fees, and the child thereby deprived, in part, of the object and purpose of allowing it”.

We find the amount of the award for attorney’s fees in this ease to be reasonable and well within the broad discretion allowed to the trier of fact.

' For the above and foregoing reasons the judgment appealed from is affirmed, defendant-appellant to be cast for all costs.

AFFIRMED.

      . The complete citations for the cases referred to in the above quote are as follows: Newson v. Newson, 176 La. 699, 146 So. 473 (1933); Wainwright v. Wainwright, 217 La. 563, 46 So.2d 902 (1950); and, Stoltz v. Stoltz, 162 So.2d 103 (La.App.4th Cir. 1964) writs denied 246 La. 349, 164 So.2d 352.


text:
    George WALKER, Plaintiff-Appellee, v. STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS, Defendant-Appellant.
    No. 5558.
    Court of Appeal of Louisiana, 3rd Circuit
    Aug. 20, 1976.
    Marshall W. Wroten, William W. Irwin, Jr., Jerry F. Davis, Johnie E. Branch, Jr., Jonathan C. Harris by Jonathan C. Harris, Baton Rouge, for defendant-appellant.
    Kaplan & Rivers by Edward A. Kaplan, Alexandria, and Wm. Henry Sanders, Jena, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and BERTRAND, JJ.
   GUIDRY, Judge.

Plaintiff, George Walker, filed this suit seeking damages for personal injuries sustained when the motorcycle he was operating on Highway 777 in LaSalle Parish allegedly flipped over at the approach to a recently installed cattle guard. The State of Louisiana through the Department of Highways is made defendant. The accident occurred in the late afternoon of June 8, 1972. The trial court granted judgment in favor of the plaintiff in the amount of $13,500.00. Defendant appealed.

The record reflects that on May 24, 1972, 15 days prior to the: accident, the defendant installed a cattle guard on Louisiana Highway 777 near Nebo, Louisiana. The installation required trenching across said highway at the site of the new cattle guard creating a gap which was approximately 8V2 feet long and 30 feet wide. The evidence does not reveal the depth of the trench. The cattle guard was made of steel guard rails placed six inches apart encased within creosoted headers. The cattle guard was supported by creosoted lumber.

Plaintiff contends that the Department of Highways was negligent in not properly installing the cattle gap in May of 1972; in not providing any type of warning device and/or sign to put the public on notice of the hazardous condition created by the cattle gap; and, in waiting until June 13,1972 to repair the cattle gap so that the general public could traverse it safely.

The testimony of the plaintiff indicated that he had been riding a friend’s motorcycle for about an hour when he approached the intersection of Louisiana Highway 127 and Highway 777 at which time he turned from Highway 127 onto Highway 777 and proceeded only 200 feet when he hit the cattle guard and the motorcycle overturned. Plaintiff testified that although he was familiar with the highway this was the first time he had crossed this cattle gap. Plaintiff stated that at the time of the accident he was driving at a reasonable rate of speed, having just turned onto Highway 777, and that he had both hands on the handles of the motorcycle.

A resident of the area, Mr. Lee Whatley, did not'see the accident in question but stated that he arrived at the scene shortly thereafter where he saw plaintiff lying on the ground at the site of the cattle guard. Mr. Whatley testified that he was very familiar with Highway 777 and was aware of the installation of the new cattle guard in late May of 1972. His testimony indicated that a person trying to cross this cattle guard almost had to come to a stop before attempting to cross. There was a drop off and a wide gap in between the asphalt road and the metal rails of the cattle guard.

Another local resident, Mr. Milton Paul, plaintiff’s uncle, corroborated the testimony of Whatley that the crossing of the cattle guard was very rough. He stated that the gap between the road and cattle guard was about 12-14 inches.

Both Messrs. Whatley and Paul testified that some few days following the accident a highway department crew repaired the cattle guard site raising the bed of the cattle guard to a position flush with the roadway.

Mr. Charles Martin, an employee of the Department of Highways and supervisor of the crew which installed the new cattle guard on Highway 777 stated that at the time of the installation the cattle guard and the road were flush but that whenever rails are placed on a wooden base, it can be expected that the weight of the traffic will lower the foundation of the cattle guard. It is customary, Mr. Martin stated, for the highway department to have to come back and raise a newly installed cattle guard. Mr. Martin admitted that on June 13, 1972 the cattle guard on Highway 777 was raised some several inches. Martin’s testimony confirmed that there were no signs warning of the presence of this newly installed cattle guard.

Mr. Cleveland Taylor, an employee of the Department of Highways testified that he had poured a 2 inch strip of cold mix asphalt around the cattle guard on May 24, 1972, but that he was later called back on June 13th and on that day laid an 18 inch apron of asphalt on both approaches to the cattle guard.

The duty imposed by our law on the Department of Highways in connection with the construction and maintenance of public roads was excellently set forth in the case of Petree v. Crowe et al., 272 So.2d 399, 405 (La.App. 2nd Cir. 1973) writs refused, 274 So.2d 709, as follows:

“The duty imposed upon a state or its Department of Highways or other appropriate authority is to construct and maintain highways which are reasonably safe for public travel. In the performance of this duty the character of the road and the probable traffic must be kept in view, as the requirement of reasonable safety implies safety for the general or ordinary travel, or use for any lawful or proper purpose. Kilpatrick v. State, 154 So.2d 439 (La.App. 2d Cir. 1963). See also, McCallum v. State Department of Highways, 246 So.2d 46 (La.App. 3d Cir. 1971); Reeves v. State, 80 So.2d 206 (La.App. 2d Cir. 1955); and Hogg v. Department of Highways of the State, 80 So.2d 182 (La.App. 2d Cir. 1955).
The Department of Highways has a duty of maintaining the highways in a safe condition. This includes the duty of providing proper safeguards or adequate warnings of dangerous conditions in the highway. What constitutes proper safeguards and adequate warnings to motorists varies with the dangers presented and should be of such a nature that it is commensurate with the. danger. The negligence of the Department of Highways may be predicated on its knowledge or information of the existence of a dangerous or defective condition of the highway and subsequent failure to safeguard such condition. See McCallum v. State Department of Highways, supra. See also Falgout v. Falgout, 251 So.2d 424 (La.App. 1st Cir. 1971); Walker v. Jones, 230 So.2d 851 (La.App. 1st Cir. 1970); Hall v. State Department of Highways, 213 So.2d 169 (La.App. 3rd Cir. 1968); Gayle v. Department of Highways, 205 So.2d 775 (La.App. 1st Cir. 1968); Kilpatrick v. State, supra; and Davis v. Department of Highways, 68 So.2d 263 (La.App. 2d Cir. 1953).
The general rule is also well established and recognized in the jurisprudence that a motorist using a public highway has a right to presume, and to act upon the presumption, that the highway is safe for usual and ordinary traffic, either in daytime or at night, and that he is not required to anticipate extraordinary danger, impediments, or obstructions to which his attention has not been directed and of which he has not been warned. See Kilpatrick v. State, supra; Falgout v. Falgout, supra; and Reeves v. State, supra.”

The trial court found that the Department of Highways breached its duty to the plaintiff in that .

“ . . . the cattle gap sank as a natural and anticipated part of its installation process. The court finds it sank several inches to a depth sufficient to cause plaintiff’s motorcycle to fall when plaintiff crossed it in a normal operative fashion.
The court further finds that the Department failed to inspect it frequently enough even though it knew a newly installed gap would settle and need adjustment as a normal part of the installation procedure.”

The basis of the defendant’s appeal is that the factual findings of the trial court are conjectural and that there is no evidence to support such findings.

As a reviewing court we must give great weight to the factual conclusions of the trier of fact, and where there is a conflict in testimony, reasonable evaluation of credibility and reasonable inferences of fact should not be disturbed. Canter v. Koehring Company, 283 So.2d 716 (La.Sup.Ct.1973). Our own review of the record reveals ample support for the trial court’s factual conclusions.

The facts as found by the trial court, which we do not disturb, warrant the conclusion that the defendant was negligent in that it failed in its duty to construct and maintain that section of Highway 777 where the accident occurred in reasonably safe condition for public travel. We find, as did the trial court, that this negligence on the part of defendant was the sole and proximate cause of the accident and resulting injuries to plaintiff.

Appellant does not question on appeal the amount of general and special damages awarded to plaintiff and the latter is apparently satisfied with the award having neither appealed nor answered the appeal of defendant. This being considered, no good purpose would be served by reviewing the evidence adduced on this issue. Suffice it to say that we find the award to plaintiff of the sum of $13,500.00 to be reasonable.

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

AFFIRMED.


author: REDMANN, Judge.

text:
    Linda ARADO and Willard Arado v. The CENTRAL NATIONAL INSURANCE COMPANY OF OMAHA et al.
    No. 7292.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 23, 1976.
    Writ Refused Nov. 16, 1976.

      Marvin C. Grodsky, New Orleans, for plaintiff s-appellants.

      Henry Leon Sarpy, Porteous, Toledano, Hainkel & Johnson, New Orleans, for Central Nat. Ins. Co. of Omaha.
    Frank A. Taylor, Orlando, Fla., for Marvin Vann and Joy Vann.
    E. Kelleher Simon, Murphy & Simon, New Orleans, for Allstate Ins. Co.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   REDMANN, Judge.

A father and daughter, residents of Missouri, appeal from a judgment which denied his claim for medical expenses and awarded her $200,000 against a now-major tortfeasor (and, to its “unstacked” $10,000 limits, the tortfeasor’s insurer) but denied recovery against the tortfeasor’s father, a resident of Florida, and against plaintiff’s own uninsured motorist coverage insurer. We reverse the denial of the medical expense claim against the tortfeasor and otherwise affirm.

At issue are: the Missouri father’s entitlement to recover for tort-caused medical expenses he paid for his then comatose 20-year-old but once-married daughter; the Florida father’s liability for his 17-year-old daughter’s tort; “stacking” of defendant insurer’s liability coverages under a three-car policy; liability of both plaintiff’s own and defendants’ insurers under uninsured motorist coverages; and quantum.

Plaintiff Father’s Entitlement

Plaintiff father is a resident of Missouri. We need not decide whether plaintiff daughter remained an unemancipated minor under Missouri law (see Nelson v. Browning, Mo.1965, 391 S.W.2d 881) despite her marriage (terminated by her husband’s death). Her comatose state and need made her father legally liable for her. support even if a major, Fower v. Fower Estate, Mo.1970, 448 S.W.2d 585; compare La.C.C. 229. The father is therefore legally subro-gated, C.C. 2161(3), to the claim of the daughter. Alternatively, by consenting to have him sue for those expenses in the same action in which she herself sued, the daughter conventionally subrogated him.

Defendant Father’s Liability

Defendant father is a resident of Florida. It is not shown that he has ever been in Louisiana personally or through his 17-year-old runaway daughter as an agent. Thus the Louisiana law of paternal responsibility, C.C. 2318, would be of doubtful application for lack of territorial jurisdiction over the father. (But see Watkins v. Cupit, La.App.1961, 130 So.2d 720; Note, 36 Tulane L.Rev. 339). It is in any case doubtful that La.C.C. 2318 would make this father liable, since this Florida runaway- had many weeks earlier quit residing with'the father. She had often left home for extended periods without permission since age 14 and, despite two juvenile court proceedings, had long escaped her father’s control. Under Florida law, an “emancipation” might therefore have occurred so that the father might not even be liable for her support; see Ison v. Florida Sanitorium and Ben. Assn., Fla.App.1974, 302 So.2d 200.

The father could nevertheless be liable under Florida law if he had signed an application by his under-18 daughter for a Florida driver’s license, Fla.Stat. § 322.-09(3), or if he were the owner-lender of the vehicle she drove injuriously, Southern Cotton Oil Co. v. Anderson, 1920, 80 Fla. 441, 86 So. 629. We cannot, however, reverse the trial judge’s refusal to infer either of these circumstances from the evidence in the record. Neither driver’s license (much less application) nor car title is in evidence. On ownership, the testimony is that the father loaned the daughter the few hundred dollars to buy the used car to be titled in her name (though he added it to his insurance policy) and her mother assisted her in filling out the registration papers. On the driver’s license, the daughter testified she had had one (which may be doubted; she said she threw it away because it became blood-soaked in the accident while in another passenger’s possession); but she did not testify it was a Florida license, and her frequent periods away from home might have enabled her to get one elsewhere. There was no testimony relative to any application for license, and it appears possible that even a Florida license could have been obtained on the signature of some other person if the daughter showed she did not live with her parents.

We therefore affirm the holding that defendant father is not liable.

“Stacking” of Liability Coverage

The tortfeasor was insured under a single policy which charged a separately stated premium for Florida’s statutorily-required $10,000 liability coverage for each of three automobiles. Plaintiffs compare this coverage to statutorily-required uninsured motorist coverage, and argue that, as with the latter, the statutorily-required liability coverage should be “stacked” so that the tortfeasor’s insurer should be liable for the sum of the limits for each of the three cars. But liability, coverage is unlike uninsured motorist coverage. The law requires that uninsured motorist coverage provide the full statutory coverage to an insured irrespective of the number of cars owned or insured, so that, unless coverage is stacked, the insured would get nothing for the additional premium charged for additional cars. Liability coverage, on the contrary, needs not and does not protect against liability from using an owned but uninsured second car, and therefore the insured does get additional insurance when he pays the additional premium charged for additional cars. The reasoning supporting stacking of uninsured motorist coverage is therefore inapplicable to liability coverage.

Uninsured Motorist

Defendant daughter’s uninsured motorist coverage protects, besides the named insured’s family, only persons “occupying an insured automobile,” i. e., an automobile insured under the policy in question: and it is only because plaintiff daughter was occupying an insured automobile that she became an insured for purposes of uninsured motorist coverage. But that coverage expressly excludes coverage of injury from an “insured automobile.” Thus under the terms of the policy, plaintiff daughter is an insured for uninsured motorist coverage, but defendant daughter is not an uninsured motorist for whom her own uninsured motorist insurer would be liable. (The terms of statutes such as Louisiana’s R.S. 22:1406, subd. D do not prevent such a result because they do not oblige policies to afford uninsured motorist coverage to anyone other than “persons insured” under the liability coverage, i. e., persons insured against their own liability—which would not include plaintiff daughter. We further note that if defendant daughter’s policy were in the form of three policies, one for each car, the uninsured motorist coverage of the second and third cars’ policies would not purport to protect a stranger riding in the first car. That the insurance for the three cars is in one policy rather than three should not affect the result.) Accordingly we conclude that defendant daughter’s insurer is not liable under its uninsured motorist coverage.

Plaintiff father’s insurer insured only one car and had uninsured motorist limits of $10,000. There is no suggestion of any other uninsured motorist coverage with which that $10,000 could be stacked so as to exceed the $10,000 liability limits of defendant daughter’s insurance. Therefore, even if plaintiff daughter might qualify as an insured under her father’s policy (despite doubt whether she resided with him; see Waltz v. Cameron Mut. Ins. Co., Mo.App. 1975, 526 S.W.2d 340), defendant daughter, insured for the same limits that plaintiff father’s uninsured motorist coverage provided, was not an uninsured motorist under Missouri law despite damages’ exceeding liability coverage; Brake v. MFA Mut. Ins. Co., Mo.App.1975, 525 S.W.2d 109. (Louisiana’s contrary R.S. 22:1406, subd. D(2)(b), enacted subsequent to our accident, does not apply to plaintiff father’s Missouri insurance contract in any case.)

Nor is defendant daughter’s insurer liable on its uninsured motorist coverage because of the “miss-and-run” truck she testified contributed to her running off the street into a tree. An eye "witness testified there was no other vehicle and, despite his vision’s being blocked towards his left rear by the bus around which defendant sped, his testimony (further supported by the investigating police officer’s testimony of scuff and skid marks from only one vehicle) amply justified the trial judge’s rejection of defendant daughter’s testimony of a miss- and-run truck.

A final argument on insurance— that defendants’ insurer refused to settle within the $10,000 policy limits — is not supported by any evidence.

Quantum

Past medical costs of $20,384 due plaintiff father are fairly proven. Future medical is not proven (and would be due to the daughter).

The daughter remembers nothing from five months before the accident until regaining consciousness four months after the accident. She had to relearn the alphabet, spelling, talking and mathematics. She wears a plate in one leg; one leg is shorter than the other. She must use a cane to walk and special shoes for balance. She cannot break a fall. She has several scars. Medication to control some infections allows proliferation of others. She will never return to normalcy, although there is hope for continuing improvement. But she is not as injured as the permanently institutionalized plaintiff in Trahan v. Girard Plumbing & Spr. Co., La.App. 1974, 299 So.2d 835, which she cites. The $200,000 award to the daughter is not below the limits of the trial judge’s discretion, C.C. 1934(3).

Decree

The judgment is reversed in its dismissal of Willard Arado’s demand and there is judgment in his favor against Joy Vann for $20,384 with interest from judicial demand and all costs; and the judgment is otherwise affirmed.


text:
    Willie James NORRIS et al., Plaintiffs-Appellants, v. STATE of Louisiana et al., Defendants-Appellees.
    No. 5526.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 26, 1976.
    Rehearing Denied Sept. 20, 1976.

      Bolen, Halcomb, Bolton & Erwin, by Gregory S. Erwin, Alexandria, for plaintiffs-appellants.
    William J. Doran, Jr., D. Ross Banister, Wm. W. Irwin, Jr., Jerry F. Davis, Johnie E. Branch, Jr., by Wm. J. Doran, Jr., Baton Rouge, for defendants-appellees.
    Before MILLER, DOMENGEAUX and PAVY, JJ.
   DOMENGEAUX, Judge.

Several personal injury and wrongful death claims were consolidated for trial. We adopt the trial judge’s written reasons concerning the consolidation and factual situations relative thereto as follows:

“These four consolidated lawsuits result from a one-car accident which occurred on October 7, 1973, at approximately 2:30 A.M. on Louisiana Highway 498 (England Drive), a two-lane highway in Rapides Parish, Louisiana, at a point 1.1 miles west of its intersection with U. S. Highway 71 (MacArthur Drive).
The accident occurred when a 1967 Chevrolet owned by Ray Donald Harris, and driven by Raymond DeCosta, was proceeding in a southeasterly direction and failed to negotiate “Cooper’s Curve”. The automobile travelled across the opposite lane and into a roadside ditch. It continued in the ditch 79 feet two inches, coming to rest against a large hackberry tree. The occupants of the car were: Ruther Mae Norris Roberts, aged 20,. seated in the left rear; Diane Norris, 19, seated in the right rear; Ray Donald Harris, 19, seated in the center rear; Betty Lucas, 18, seated in the front passenger seat; and Raymond DeCosta, who was driving. DeCosta was killed on impact. Ruther Mae died 5 days after the accident and Diane died 20 days after the accident. Harris and Miss Lucas sustained injuries.

As a result of the accident, the following four lawsuits were filed.

In Suit Number 91,879, captioned Willie James Norris, et al. v. State of Louisiana, et al., Willie Norris, the father of Ruther Mae, having been appointed tutor of Ruther’s child Jamie (2V2 years old at the time of the accident) seeks damages on behalf of Jamie, for the loss of his mother, and on behalf of himself and his wife, Louella Norris, for the loss of their daughter Diane. Norris charged the Department of Highways with negligence regarding the maintenance of Highway 498. The Department answered that the accident and resulting injuries were caused solely by DeCosta, and in the alternative, if the Department was negligent, that Diane and Ruther Mae were contributorily negligent. Stonewall Insurance Company, insurer of the Harris vehicle, intervened claiming that if it is cast for uninsured motorist coverage, the company is entitled to be reimbursed by preference, providing the plaintiffs recover. . . .”

The remaining three suits, brought by Norris, Betty S. Lucas (passenger), and Donald Harris (owner) against Stonewall Insurance Company, the liability insurer of the latter, were tried with the above described actions but were not appealed, and we do not concern ourselves with those facets of this litigation.

The District Judge found in suits 91,879 and 89,730 (Norris v. Stonewall) that the sole cause of the accident was the negligence of the driver, Decosta, and the owner of the vehicle, Harris. The trial judge cast Stonewall Insurance Company in judgment for the total amount of its policy, the proceeds of which were distributed pro-rata among the parties. The State of Louisiana, through the Department of Highways was absolved from liability.

The sole issue presented by this appeal is whether the Highway Department was negligent in its construction and maintenance of La. 498 at the scene of the accident, which is known as “Cooper’s Curve”.

Louisiana Highway 498, at the time of the accident, was a two-lane, blacktopped highway, traversing a portion of Rapides Parish. The width of the roadway at the point of the accident was 20 feet 2 inches, and there was a large hackberry tree approximately 9 feet three inches from the edge of the roadway. The curvature of La. 498 at Cooper’s Curve is 13 degrees, 45 minutes. There was a curve sign with a 25 mile per hour advisory plate attached thereto approximately 484 feet from the beginning of the curve. The posted speed limit on La. 498, which is a quasi-residential area, was 45 miles per hour.

The last visible speed limit sign before entering Cooper’s Curve was approximately 2300 feet from the beginning of the curve. There were no curve delineators present in Cooper’s Curve on the date of the accident, and there was no center striping in the road since it had been resurfaced shortly before the accident. Several experts testified that the critical speed of the curve ranged from 65.8 miles per hour to 67.3 miles per hour. Louisiana 498 contains six to seven curves within an area of about four miles.

On the night of the accident, October 7, 1973, Deeosta and Harris, who were Airmen stationed at England Air Force Base in Alexandria, Louisiana, had dates with the two Norris sisters. They attended a dance at the NCO Club at the Air Base until approximately 2 A.M. Betty Lucas, who was also at the dance, requested a ride home in the Harris vehicle. She rode in the right front seat while Decosta drove. Diane and Ruther Mae Norris, and Ray Donald Harris were situated in the rear seat. Betty Lucas testified that Decosta was driving the vehicle at a rapid rate of speed on La. 498 as the individuals left the base. Apparently there was some discussion about racing between Harris and Decosta, and at one point Harris told Decosta to “hit it, man”. Decosta complied and increased the speed of the automobile considerably as the vehicle approached Cooper’s Curve. Miss Lucas began screaming and pleading with Decosta to slow down, but when the driver ignored her she got down on the floor of the vehicle. The automobile left the surface of La. 498 as it entered Cooper’s Curve and travelled approximately 79 feet down a ditch and struck a large hackberry tree. The collision virtually demolished the vehicle.

At the trial, Betty Lucas was unable to estimate the speed of the Harris automobile prior to its exit from the roadway, but on the night of the accident she told an investigating officer that the speedometer registered 80 miles per hour before Decosta increased his speed pursuant to Harris’ suggestion. Mr. Joseph Barnwell, a professor of mechanical engineering who testified for the plaintiff, estimated that the Harris automobile was travelling at a speed of approximately 50 to 60 miles per hour when it struck the hackberry tree. There were no skid marks on La. 498 at the scene of the accident.

Plaintiffs contend that Cooper’s Curve on La. 498 was inherently dangerous to motorists for two reasons. First they submit that Cooper’s Curve was improperly constructed and that the signs and markers at the site necessary to warn the average motorist were either inadequate or completely nonexistent. Secondly, plaintiffs argue that the hackberry tree situated approximately 9V2 feet from the edge of the road surface represented a hazard to any motorist forced to leave the highway.

The record in this case contains volumes of expert testimony and exhibits relative to the standards of construction and maintenance applicable to a state highway such as La. 498. Several of the plaintiff’s expert witnesses testified that there were numerous defects present in Cooper’s Curve. They contend that the curvature of La. 498 at that point was excessive and that an effort should have been made to reduce the degree of curvature to approximately 6 degrees. There is testimony that reflective curve delineators and a center striping would have made the curve less hazardous. Additionally the plaintiff’s witnesses were of the opinion that a right turn sign rather than a curve sign should have been employed at the location and that said sign should have been placed no less than 750 feet from the initial point of the curve.

The Highway Department maintained the position that while the curve did not present an ideal situation, it was adequately designed and maintained and was not inherently dangerous. The Department also contended that the curve sign and advisory speed plate were sufficient to alert motorists of the condition which lay ahead. Additionally, the Highway Department’s expert witness,'Dr. Olin K. Dart, Jr., a professor of Civil Engineering, testified that in his opinion the primary cause of the October 7, 1973, accident was the excessive speed of the Harris vehicle.

The Department of Highways is not the guarantor of the safety of all travelers on state highways nor is it the insurer against all injuries and damages which may result from defects or obstructions thereon. Wilkinson v. American Insurance Company of Newark, New Jersey, 311 So.2d 584 (La.App. 3rd Cir. 1975); Doucet v. State, Department of Highways, 309 So.2d 382 (La.App. 3rd Cir. 1975), writ denied 312 So.2d 340 (La.); Laborde v. Louisiana Department of Highways, 300 So.2d 579 (La.App. 3rd Cir. 1974), writ denied 303 So.2d 182 (La.).

The duty of the Department of Highways has been most recently stated by this court in the case of Doucet v. State, Department of Highways, supra:

“The duty of the Department of Highways is only to see that state highways are reasonably safe for persons exercising ordinary care and reasonable prudence. It is liable for damages only when the evidence shows (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver . . ”. (Emphasis added) (Citations omitted).

See also Von Cannon v. State, Department of Highways, 306 So.2d 437 (La.App. 3rd Cir. 1975), writs refused 309 So.2d 681 (La.), and numerous cases cited therein.

Also pertinent is the recent Supreme Court case of Pickens v. St. Tammany Parish Police Jury, 323 So.2d 430 (La.1975), in which the court stated:

“There is no fixed rule for determining what is a dangerous defect in a public way; the facts and surrounding circumstances of each particular case control. The test usually applied, however, requires an answer to the question: Was the public way maintained in a reasonably safe condition for persons exercising ordinary care and prudence?” (Citations omitted)

The Highway Department is only required to warn motorists of unusual or perilous hazards in the road. See Wall v. American Employers Insurance Company, 215 So.2d 913 (La.App. 1st Cir. 1968), writ refused 253 La. 325, 217 So.2d 415; Muse v. W. H. Patterson & Company, 182 So.2d 665 (La.App. 1st Cir. 1965); and Rosier v. State, 50 So.2d 31 (La.App. 2nd Cir. 1951).

In his written reasons for judgment the trial judge stated:

“Viewing the evidence of this very tragic occurrence as a whole the court finds that the cause in fact of the accident was the grossly reckless and wanton conduct of Decosta encouraged and joined in by Harris.
The court finds that the Department of Highways did not abrogate its duty. The road and curve were adequately signed and maintained for the average prudent driver . . ..”

We find a reasonable basis in the evidence to support the trial judge’s conclusion that the 25 mile an hour curve sign some 500 feet prior to the curve in a 45 mile per hour speed zone did not constitute a condition which was “patently or obviously dangerous to a reasonably, careful, and ordinarily prudent driver”. See Doucet v. State, Department of Highways, supra; Canter v. Koehring, 283 So.2d 716 (La.1973).

We also find the case at hand factually distinguishable from that of Vervik v. State, Department of Highways, 302 So.2d 895 (La.1974). In Vervik the curve in question was located in an area which lacked both speed limit signs and a curve sign. In addition, the plaintiff in Vervik was shown to be travelling at a very reasonable rate of speed. Although the curve in Vervik also lacked a center line and delineators, the court stated in finding a breach of the Highway Department’s duty, that:

“The absence of the sign was the legal cause of the accident and the damage resulting from the accident.” (Emphasis added).

In the instant litigation there was a clear existence of both a speed limit sign and curve indicator with an advisory speed plate. Additionally, the evidence indisputably indicates that the vehicle was travel-ling at a highly excessive rate of speed.

There are several cases in the jurisprudence where the courts have found that, although there was room for improvement in the road conditions and signing on certain road, the efforts of the Highway Department were adequate to discharge its duty to the motoring public. See Roberts v. Winston Carriers, Inc., 304 So.2d 818 (La.App. 3rd Cir. 1974), writ refused 309 So.2d 341 (La.); Weber v. T. L. James & Company, Inc., 271 So.2d 608 (La.App. 1st Cir. 1972); Edwards v. State, Department of Highways, 271 So.2d 672 (La.App. 1st Cir. 1972), writ denied 274 So.2d 391 (La.); Travelers Insurance Company v. Ragan, 202 So.2d 302 (La.App. 1st Cir. 1967).

Failure to comply with the requirements of the Highway Department’s manuals does not constitute negligence per se. Harkins v. State, Department of Highways, 247 So.2d 644 (La.App. 3rd Cir. 1971), writ denied 259 La. 741, 252 So.2d 449.

Regarding the hackberry tree situated 9 feet 3 inches from the edge of La. 498, the trial judge found that, relying upon the cases of Booth v. Louisiana and A. Ry. Co., 187 So. 138 (La.App.Orl.1939), and Hopkins v. State, Department of Highways, 167 So.2d 441 (La.App. 1st Cir. 1964), writ refused 246 La. 885, 168 So.2d 268, said tree presented no hazard to the driver exercising a reasonable degree of care. While we find the above cited cases inapplicable to the situation presented by this litigation, we are of the opinion that the evidence supports a finding that the hackberry tree was not an obstacle which was patently dangerous to an ordinarily reasonable and prudent driver.

Thus, viewing the evidence as a whole we find a reasonable basis therein to support the trial judge’s finding that the conditions present on La. 498 (Cooper’s Curve) on October 7,1973, did not constitute a breach of the duty owed to the motoring public by the Department of Highways.

For the above and foregoing reasons the judgment of the district court is affirmed. Costs of this appeal are assessed against plaintiff s-appellants.

AFFIRMED.

PAVY, J., concurs.


text:
    Willie C. HARRIS, Plaintiff-Appellant, v. SEABOARD FIRE & MARINE INSURANCE COMPANY and Kast Metals Corporation, Mid-Continent Steel Casting Division, Defendants-Appellees.
    No. 12966.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 31, 1976.
    En Banc. Rehearing Denied Sept. 27, 1976.

    Writ Refused Dec. 3, 1976.
    Booth, Lockard, Jack, Pleasant & LeSage by James E. Bolin, Jr., Shreveport, for plaintiff-appellant.
    Blanchard, Walker, O’Quin & Roberts by Jerald L. Perlman, Shreveport, for defendants-app’ellees.
    Before HALL, MARVIN and JONES, JJ.

       Bolin, J., recused.

   HALL, Judge.

This is a workmen’s compensation suit which was dismissed by the trial court on an exception of prescription. The plaintiff appealed, contending that his injury developed less than one year prior to his filing suit and that the suit was timely filed.

Plaintiff’s petition alleges that (1) in mid-March, 1974, he experienced an on-the-job accidental injury to the upper left posterior and lateral regions of his body and the cervical area of his spine; (2) he received medical attention but was able to return to full duties about mid-May, 1974; (3) on or about September 2,1974, he experienced an on-the-job accidental injury which aggravated the prior injury; (4) he was unable to work thereafter until December 16, 1974, during which time he received medical treatment, including, hospitalization and surgery; (5) he returned to full duties during mid-December, 1974, and continued such until August 8, 1975, at which time, because of the injuries caused by the two accidents, he was no longer able to pursue the duties of his job.

This suit was filed December 9, 1975, within two years but more than one year after either accident, and about four months after plaintiff left his job.

The resolution of the exception of prescription is governed by LSA-R.S. 23:1209 which, while providing a general prescriptive period of one year from the date of the accident, contains the following proviso:

“Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.”

Plaintiff argues that the injury did not develop and prescription against his suit for total and permanent disability benefits did not commence to run until the injury caused him to permanently be unable to perform his duties and to permanently cease working. Defendants argue that the injury in this case developed immediately or almost immediately after the accident in that the injury was physically manifest at that time, was diagnosed, required hospitalization and surgery, and required plaintiff to cease work for an extended period of time.

Plaintiff relies on cases holding that an injury does not develop and prescription does not commence to run in a suit for total and permanent disability benefits until the injury causes the workman to no longer be able to perform the duties of his occupation and causes a discontinuance of the workman’s employment. Russell v. Employers Mutual Liability Insurance Company of Wisconsin, 246 La. 1012, 169 So.2d 82 (1964); Wallace v. Remington Rand, Inc., 229 La. 651, 86 So.2d 522 (1956); Johnson v. Cabot Carbon Company, 227 La. 941, 81 So.2d 2 (1955); Mottet v. Libbey Owen Ford Glass Company, 220 La. 653, 57 So.2d 218 (1952); Hobley v. Phoenix of Hartford Insurance Company, 233 So.2d 589 (La.App. 4th Cir. 1970); Fontenot v. Great American Indemnity Company, 127 So.2d 822 (La.App. 3d Cir. 1961); and Brewster v. City of Shreveport, 108 So.2d 801 (La.App. 2d Cir. 1959). See also Malone, Louisiana Workmen’s Compensation, Section 384, pages 207 and 208, pocket part.

Defendants attempt to distinguish the cited cases on their facts and particularly call the court’s attention to the fact that in the instant case the discontinuance of plaintiff’s employment on August 8, 1975, was the second time he ceased to work. Defendants argue that plaintiff was unable to perform the duties of his job and ceased to work immediately after the accident for a period of three months and that prescription should commence to run from that time.

The suggested distinction between the cited cases and the instant case is not valid. The cited cases are closely in point and the interpretation of the statute established in those cases is controlling here. In a workmen’s compensation suit for disability benefits, the disabling injury does not fully develop until the workman cannot perform his duties and the prescriptive period does not commence to run until discontinuance of employment, subject to the requirement that suit be filed within two years after the date of the accident. In a suit for total and permanent disability benefits the disabling injury does not develop until the workman becomes finally unable to perform his duties and the prescriptive period does not commence to run until the workman’s employment is finally discontinued. If the workman is temporarily unable to perform his duties or temporarily ceases working, the prescriptive period does not commence.

In several of the cited cases the plaintiff workman ceased working after the accident, resumed working, and finally left work when he could no longer continue to perform his duties because of the disabling injury. In Russell, plaintiff sustained burns on August 3, 1960. He was subsequently treated by physicians until September 12, 1960, when he returned to work. He continued to work until July 19, 1962, when he was compelled to stop working because he could no longer perform his duties. Suit was filed July 30, 1962. The Supreme Court ruled, after finding the disability to be causally related to the accident, that prescription had not run. The court interpreted the prior cases to mean that “. the disabling injury does not fully develop until the workman cannot perform his duties and that the prescription provided by R.S. 23:1209 does not commence to run until the discontinuance of employment, so long as suit is filed within two years of the date of the accident.” (Emphasis supplied). In Fontenot, the plaintiff was injured on August 14, 1958; was hospitalized for a period of six weeks; returned to work approximately three months after the accident; was reinjured on May 18, 1959, resulting in treatment and a reduction of his heavy manual labor; returned to work September 5, 1959, and discontinued performing manual labor October 2, 1959. Suit was filed May 10, 1960. An exception of prescription was overruled, the court holding that pre-. scription did not begin to run until the plaintiff finally left his employment after he was reinjured. In Brewster, the employee continued to work at “irregular intervals” for over two months after his injury. The court held that the date on which the employee ceased working was the beginning of the prescriptive period of one year.

Under the allegations of the plaintiff’s petition in the instant case, his disabling injury did not develop within the meaning of LSA-R.S. 23:1209 until it caused him to no longer be able to perform his duties and to cease work on August 8, 1975. Prescription did not commence to run until that date and the suit was filed approximately four months later, well within the one year prescriptive period.

For the reasons assigned, the judgment of the district court sustaining defendants’ exception of prescription is reversed, and the exception of prescription is overruled. The case is remanded to the district court for further proceedings in accordance with law and with the views expressed in this opinion. The cost of appeal is assessed to the defendants-appellees.

Reversed and remanded.