author: LEAR, Judge.

text:
    Charles R. WHITE v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 14980.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 26, 1982.
    Writ Denied Nov. 12, 1982.
    Jerry W. Lindig, Baton Rouge, for appel-lee (plaintiff).
    Charles A. Schutte, Jr., Baton Rouge, for appellant (defendant).
    Before LEAR, CARTER and LANIER, JJ.
   LEAR, Judge.

The pertinent facts of this case are well set out by the trial court in its reasons for judgment, from which we quote, in part, below:

“This is an action by the owner of a 1974 Ford Club Wagon Van against State Farm Mutual Automobile Insurance Company, the alleged liability insurer of Suzanne Clark and her son, Glynn M. Clark, Jr.
“Plaintiff, the van owner, gave permission to Glynn M. Clark, Jr., to drive the van during negotiations for the proposed purchase of the van by Mr. Clark and his mother, Suzanne Clark. During the test drive the van was wrecked due to Mr. Clark’s fault and the van was damaged to the extent of Two Thousand Five Hundred and No/100 ($2,500.00) Dollars, as stipulated by counsel.”
“The pertinent provisions of the policy include the liability coverage under ‘B’ of Part I of the policy, which provides:
“ ‘Property Damage Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of: ...
“ ‘B. Injury to or destruction of property ... arising out of the ownership, maintenance or use of the owner automobile or any non-owned automobile
“Under Part I of the policy, there is found the definition of ‘Persons Insured’, with respect to non-owned automobiles:
“ ‘(b) with respect to a non-owned automobile,
“ ‘(1) the named insured,
“ ‘(2) any relative . .. provided his actual operation ... is with the permission, or reasonably believed to be with the permission, of the owner and is within the scope of such permission.’

“State Farm Mutual Automobile Insurance Company relies on an exclusion in the policy to urge that there is no coverage in this case. The pertinent language is as follows:

“ ‘This policy does not apply under Part I: ... (i) to injury or destruction of
“ ‘(1) property owned or transported by the insured or
“ ‘(2) property rented to or in charge of the insured ... ’.”

The trial court found that Mrs. Clark is an insured under the terms of the policy and that the van being operated by Mr. Clark was a non-owned automobile within the terms of the insured policy. We agree with those findings. The trial court further found that Mrs. Clark was not “in charge of” the automobile, and the policy exclusion was therefore not applicable.

On appeal State Farm contends that Mrs. Clark has sufficient control over plaintiff’s van in order to place her “in charge of” the property. Defendant relies on language in the case of Commercial Union Insurance Company v. Hardcastle, 188 So.2d 698 (La.App. 2nd Cir. 1966). In Hardcastle, the court was required to interpret the phrase “in charge of” in an insurance policy exclusion, which is identical to that at issue here. In that case, Efurd Machine and Welding Co., Inc. (Efurd) owned the vehicle which was damaged while being operated by its minor employee, Hardcastle, Jr. Plaintiff was Efurd’s collision insurer and sued the minor employee’s father, Hardcastle, Sr., to recover the damages it had paid to Efurd. Hardcastle, Sr., was sued on the basis of his vicarious liability for the torts of his minor son. Hardcastle, Sr., then brought a third party action against Efurd’s liability insurer, which excepted on the basis of an exclusion contained in the policy. The issue in Hardcastle was whether Hardcastle, Sr. was “in charge of” the damaged property. In finding that Hardcastle was not “in charge of” the damaged property, the court stated that:

“It appears appropriate to point out here that Hardcastle, Sr., was not the owner of the property damaged; nor had he rented or transported it, or had it in his charge. While the word ‘charge’ has a broad and varied meaning, a person or thing could not be said to be ‘in charge of’ an insured within the meaning of a contract of insurance unless he has the right to exercise dominion or control over it. [Emphasis supplied.]
“[I]t was not his [Hardcastle, Sr.’s] property that was damaged; nor was it . .. committed to his charge so as to bring the property within the exclusionary clause of the policy as being that of the insured.”

In its written reasons for judgment, the trial court stated that:

“In the case at bar, the property damaged was not owned or transported by Mrs. Clark, the insured; nor was the property rented or in her charge at the time of the accident....
Mrs. Clark was not present when permission was given by plaintiff to Mr. Clark to drive the vehicle, nor when the vehicle was actually driven.”

Because permission had been given only to her son to drive the van, and she was not present at that time, the trial court found that Mrs. Clark had no physical custody or control over the non-owned automobile at the time of the accident. Based on this finding, the trial court concluded that she did not have the right to exercise dominion or control over the automobile.

While there may be some factual distinctions between this instant case and Hard-castle, in that Hardcastle, Sr. had no involvement or connection with the automobile driven by his son, and Mrs. Clark was involved in negotiating for the purchase of the automobile damaged herein, we find that the trial court was correct in concluding that Mrs. Clark was not “in charge of” plaintiff’s automobile at the time of the accident. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Thus, the policy exclusion relied upon by defendant is not applicable.

For the foregoing reasons, the judgment of the trial court is hereby affirmed. All costs, both at trial and on appeal, are to be paid by defendant, State Farm Mutual Automobile Insurance Company.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Wilburn Troy STRICKLAND v. TESORO DRILLING COMPANY, et al.
    No. 82 CM 0420.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 26, 1982.
    Bradford R. Roberts, II, New Orleans, for plaintiff Wilburn Troy Strickland.
    Ben Louis Day, Baton Rouge, for Tosoro Drilling Co. and Aetna C&S.
    Donald Ensenat, New Orleans, for La. Land & Exploration and Nat. Union Fire Ins.
    Lawrence F. Chisholm, New Orleans, for Fireman’s Fund (intervenor).

      Before LEAR, CARTER and LANIER, JJ.
   LEAR, Judge.

Defendants, Tesoro Drilling Company and Aetna Casualty and Surety Company, moved to dismiss this unlodged appeal of plaintiff, Wilburn Troy Strickland, on the grounds that plaintiff allegedly acquiesced in the trial court’s judgment. The relevant facts are as follows:

After a trial on the merits, the trial court issued a written opinion on January 29, 1982, rendering judgment in favor of plaintiff and against defendants in the sum of $272,214.16. On March 8, 1982, judgment was signed in accordance with the trial court’s written opinion.

On May 13, 1982, plaintiff’s attorney sent a letter addressed to the clerk of court informing the clerk that the judgment in the instant case had been paid and satisfied. The letter also authorized the clerk to cancel and erase the judgment from the mortgage records of the parish. The letter also stated, however, that plaintiff was not waiving his right of appeal and, in fact, a petition for devolutive appeal accompanied the letter. A copy of this May 13, 1982, letter is attached hereto as Appendix A. According to defendants’ motion, the clerk did, in fact, cancel and erase the judgment from the public records. On May 19, 1982, the trial court granted plaintiff an order of devolutive appeal.

Article 2085 of the Code of Civil Procedure states:

“An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him. Confession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment.”

It is well settled that acquiescence should only be found in cases wherein the party seeking to appeal has clearly evidenced the intention to abandon that right. Associates Commercial Corporation v. Bayou Management, 415 So.2d 557 (La.App. 1st Cir. 1982); Succession of Marcel, 387 So.2d 1363 (La.App. 1st Cir. 1980). In Succession of Marcel, supra, this court aptly summarized the appropriate legal principles as follows at page 1364:

“Appeals are favored in law and forfeiture of a party’s right to an appeal through acquiescence should be decreed only when the party’s intention to acquiesce and to abandon his right of appeal is clearly demonstrated. Kendrick v. Garrene, 231 La. 462, 91 So.2d 603 (1956). Acquiescence in a judgment is never presumed. The party alleging same must establish by direct or circumstantial evidence that the party now appealing intended to acquiesce. Koerner & Lambert, A Professional Law Corp. v. Allstate Company, 363 So.2d 546 (La.App. 4th Cir. 1978). A party favored by judgment may accept the full amount thereof from the party cast or may even cause execution on the judgment without forfeiting his right of appeal because of acquiescence. Glasper v. Wright Root Beer Co., 216 So.2d 586 (La.App. 1st Cir. 1968).”

Despite the heavy burden which defendants bear in the instant case, they still contend that the facts manifest that plaintiff did acquiesce in the judgment. In so contending, defendants rely on the cases of Theriot v. Castle, 343 So.2d 399 (La.App. 3rd Cir. 1977) and Ponder v. Pechon, 169 So.2d 671 (La.App. 1st Cir. 1964), which they assert hold that there can be no appeal from a cancelled judgment.

The Theriot case clearly does stand for the proposition which defendants assert. In that case, as in the present one, plaintiff had been awarded judgment and had acknowledged that the judgment had been paid and satisfied. Plaintiff in Theriot filed into the record a letter authorizing cancellation of the judgment. Two months later, plaintiff appealed the cancelled judgment. The appellate court, citing Ponder v. Pechon, supra, and article 2082 of the Code of Civil Procedure, held that there can be no appeal from a cancelled judgment.

Despite the broad holding in Theriot, there exists a factual distinction in the instant case which is of some consequence. In the instant case, the letter to the clerk specifically reserved to plaintiff his right of appeal and was accompanied by his petition for appeal. No such intention not to abandon the appeal was manifested in Theriot. In fact, Theriot distinguished the case of Henry Waters Truck & Tractor Co., Inc. v. Relan, 277 So.2d 463 (La.App. 1st Cir. 1973), on the grounds that plaintiff’s counsel had advised defendant’s counsel that he might appeal.

The reliance of defendants and the court in Theriot on Ponder v. Pechon seems to be misplaced. Ponder involved plaintiff’s appeal from a judgment of voluntary dismissal and did not in any way concern a can-celled judgment.

There is no evidence which clearly indicates that plaintiff intended to abandon his appeal. See Succession of Marcel, supra. In fact, the letter and the accompanying petition for appeal clearly evidence plaintiff’s intent to appeal. Dressel v. Kidd, 413 So.2d 664 (La.App. 1st Cir. 1982).

We also note our decision in the case of Williams v. Sentry, 370 So.2d 901 (La.App. 1st Cir.), writ denied, 372 So.2d 1055 (La.1979), which appears to adopt the holding in Theriot; i.e., that if a judgment has been cancelled, there is nothing from which to appeal. There is again, however, the distinction between the instant case and Williams, in that plaintiff herein expressed an intent to appeal, while plaintiff in Williams expressed the contrary intention.

We find that plaintiff’s May 13th letter to the clerk of court authorized only the cancellation of the inscription of the judgment in the mortgage records and the judicial mortgage created by that inscription. We further find that plaintiff did not intend his letter to cancel the judgment itself. Where, however, a party authorizes the cancellation of the judgment itself, and the judgment is in fact cancelled, the judgment is thereby destroyed and that party then loses his right to appeal said judgment. La.C.C.P. art. 2082. A party will preserve his right to appeal if he only authorizes cancellation of the mortgage inscription and specifically reserves his right to appeal.

Under these circumstances, we find that plaintiff did not manifest an intention to abandon his appeal and, in fact, expressly reserved his right to appeal. His appeal should therefore be maintained.

For the foregoing reasons, defendants’ motion to dismiss this appeal is hereby denied. The taxing of costs on appeal shall await the final determination of this appeal.

MOTION TO DISMISS APPEAL DENIED.


author: CHEHARDY, Judge.

text:
    Mr. and Mrs. Brian BABIN, Mr. and Mrs. Timothy Letter, Kathy Morel, Mr. and Mrs. Allen Deffner, Jr., Mr. and Mrs. Paul Vitrano, Mr. and Mrs. James Traylor, Mr. and Mrs. Benjamin Sale, Mrs. Patricia Labiche and Mr. and Mrs. John Eason v. Mr. and Mrs. Harry T. COLE, Jr.
    No. 5-68.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 30, 1982.
    Rehearing Denied Oct. 18, 1982.

      Jamie F. Veverica, Gretna, for plaintiff s-appellees.
    John David Cassanova, Metairie, for defendants-appellants.
    Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   CHEHARDY, Judge.

In this suit to enforce subdivision building restrictions, Mr. and Mrs. Brian Babin and others, plaintiffs, were granted an injunction against Mr. and Mrs. Harry Cole, defendants. The injunction required the Coles to remove the fences on their lot. Defendants have appealed.

Mr. and Mrs. Cole and Mr. and Mrs. John Eason were sole stockholders and directors of Idlewood West, Inc., a corporation created to develop a tract of land they owned in Jefferson Parish. In July 1974 the tract was subdivided with approval of the necessary parish governing authority and the subdivision thus created was named Idle-wood West Subdivision. The corporation imposed restrictive covenants on the subdivision by act passed on November 13, 1974, duly filed in the parish conveyance office. The act was signed by John A. Eason as secretary of Idlewood West, Inc., with a corporate resolution attached authorizing Eason to execute and file restrictive covenants on behalf of the corporation.

The subdivision thereafter was developed and lots sold. The Coles, who lived in Hyde Park Subdivision adjacent to Idlewood West, took ownership of Lot 9 in Idlewood West. Lot 9 has a common rear boundary line with the Coles’ Hyde Park lot.

The Idlewood West building restrictions provide, in pertinent part, as follows:

“ * * * [N]o lot ... may be purchased or used as a back yard for any lot nor [sic] located within Idlewood West Subdivision.” Restrictive Covenants by Idle-wood West, Inc., Par. 2.
“There shall be no front yard nor side yard fence erected between the front building line and the front property line. Side yard fences, when erected between the rear property line and rear building line and rear yard fences shall be of neat and substantial construction and shall comply with the applicable Parish Ordinances.” Id., Par. 16.

Some time after taking possession of Lot 9 of Idlewood West, the Coles enclosed it with a wooden fence and removed the existing fence across the rear of their Hyde Park lot. In effect, this made Lot 9 of Idlewood West and their Hyde Park lot one parcel. Their neighbors in Idlewood West thereupon filed suit against them, alleging the Coles had violated Paragraph 2 of the Restrictive Covenants by using Lot 9 as a back yard for their Hyde Park property.

The trial judge, citing Paragraph 16 of the restrictions, ordered the Coles to remove the side fences from Lot 9, and either to remove the fence fronting on Tiffany Drive or to reposition it on the rear property line.

The Coles have appealed, raising four assignments of error:

1. They were denied their right to trial by jury;
2. They failed to receive adequate notice of trial;
3. The restrictive covenants were not validly imposed; and
4. The portions of the building restrictions applied by the trial judge were vague and ambiguous and should not have been enforced.

We find no merit to defendants’ contention they were denied their right to a jury trial. First, defendants failed to file the jury bond required by LSA-R.S. 13:3050, which flatly forbids a jury order in civil cases unless the bond is given. Cf. Latino v. Rush, 300 So.2d 659 (La.App. 4th Cir. 1974). Second, defendants failed to raise any objection at time of trial to the lack of a jury, or to seek supervisory writs, and tried their case to the court. By so doing, they effectively waived their right to a jury. Windham v. Security Ins. Co. of Hartford, 337 So.2d 577 (La.App. 4th Cir. 1976). Finally, all claims for money damages, in both the original petition and the reconventional demand, were dismissed before trial, and only the request for injunction remained. Because LSA-C.C.P. art. 1733 provides that trial by jury shall not be available in injunction proceedings, jury trial would have been improper.

Similarly, defendants contend the trial court failed to provide them with adequate notice of trial. They allege their only notice of trial was a telephone call from the judge’s law clerk received on January 28, 1980, five days before the trial date of February 2,1981. They allege their motion for a continuance was “summarily refused” by the trial judge and that they were forced to go to trial on February 2.

A review of the record discloses an order signed by the judge on October 15, 1980, in which a hearing on plaintiffs’ request for a permanent injunction was set for February 2,1981. In the margin of that pleading is a handwritten notation, “Attorney knows of date.” Also in the record is the motion for continuance mentioned by defendants in their brief. Contrary to their assertion, the trial judge in fact granted their motion, continuing the trial from February 2, 1981 to February 9, 1981. The order continuing the trial also contains a handwritten notation, initialed by the judge, “no further notices.” A minute entry follows which states, “Crt. cont. to Feb. 9,1981, Monday.” “No further notices.” The minute entry shows both counsel as being present. Finally, both the minute entry of the trial and the trial transcript itself reveal the date of trial was February 9, 1981. The record thus establishes the defendants’ motion was granted, and a one-week continuance given, with notice to them.

Besides this, the record shows that suit for the injunction was filed in October 1977; various exceptions, motions and other pleadings were filed in 1978 and 1979, with answer filed by the defendants in May 1980. A pretrial conference was held on March 6, 1980; according to the pretrial conference record, both counsel were present, but no trial date was then assigned, the notation being, “P/trial continued w/out date.” More pleadings followed, with a motion and order setting the case for trial the week of October 20, 1980. Another pretrial conference was held on September 26, 1980.

Defendants fail to show how a later trial setting would have helped their case in any way. As set forth above, the suit had been in litigation for approximately three and a half years by the time it was tried, had been set for trial once already, and there had been two pretrial conferences. We cannot conclude the trial judge abused his discretion in continuing the trial only one week. See Reggio v. Louisiana Gas Service Company, 333 So.2d 395 (La.App. 4th Cir. 1976), writs denied, 337 So.2d 187 and 337 So.2d 526.

“The law requires that adequate notice of a trial be given to all parties, but it does not require that any particular type or kind of notice be given. LSA-CCP art. 1571 (See comment A under that article). A written notice of the date of trial is not required, unless a written request therefor is filed in the record or is submitted by registered mail. LSA-CCP art. 1572. No such request was made in this case.” Prejean v. Ortego, 262 So.2d 402 (La.App. 3d Cir. 1972).

Further, defendants neither objected on the record to the resetting of the trial for February 9, nor did they seek writs to delay the trial. Accordingly, they failed to preserve their right to appeal this issue. Cf. Alford v. Glenn, 185 So. 720 (La.App. 2d Cir. 1939).

The defendants next challenge the validity of the restrictive covenants, on the basis the act establishing them was an ultra vires action by John Eason, beyond his powers as corporate secretary and without proper authorization from the board of directors (consisting of Harry Cole as president, John Eason as secretary, and Mrs. Cole and Mrs. Eason as the other two officers).

LSA-R.S. 12:42 provides:

“A. No act of a corporation, and no conveyance or transfer of movable or immovable property to or by a corporation, shall be invalid by reason of the fact that the corporation was without capacity or power to perform such act or to make or receive such conveyance or transfer; but such lack of capacity or power may be asserted:
(1) In an action by a shareholder against the corporation * * *;
(2) In an action in damages by the corporation or by its .. . legal representative, or by its shareholders in a derivative or representative suit, against the incumbent or former officers or directors of the corporation;
(3) In an action by the state to dissolve the corporation, to enjoin the corporation from the transaction of unauthorized business, or to revoke a certificate of authority of a foreign corporation. * * ”

Thus, the Coles may not raise the ultra vires defense against the plaintiffs in this action.

Also, in DeSoto Corporation v. Roberts Lumber & Grain Co., 174 La. 620, 141 So. 78 (1932), the court held innocent third parties were entitled to rely upon the recital in a resolution annexed to a corporation’s deed, to the effect that the resolution was unanimously passed by all directors. The corporate act passed pursuant to such a resolution was held valid upon its face. This reasoning applies to the case before us.

The defendants also argue the restrictions are invalid because they were not imposed in pursuance of a general plan. This argument must fall, for it is clear from the evidence that the duly recorded Restrictive Covenants themselves, imposed by the developers prior to sale of any of the lots, read in conjunction with the plat of the subdivision made a part of the act establishing the restrictions, constituted the general plan required by LSA-C.C. art. 775. Cf. Richard v. Broussard, 378 So.2d 959, at 966 (La.App. 3d Cir. 1979).

Lastly, the defendants contend the trial judge misinterpreted and misapplied the building restrictions, which the defendants aver are vague and ambiguous.

With respect to Paragraph 16 of the restrictions, we conclude the limitations on fences are indeed ambiguous. That restriction, quoted above, prohibits front yard and side yard fences between the front building line and the front property line. We find the term building line ambiguous. It is neither defined in the restrictions, nor used elsewhere in the document. Reading it within the context of both Paragraph 16 and the restrictions as a whole, and bearing in mind the civil law principles of interpretation of agreements we cannot determine whether building line is intended to refer to an area created by actual construction of a building upon the lot, or to the buildable area remaining after compliance with the parish ordinances setting yard requirements.

LSA-C.C. art. 783 provides, “Doubt as to the existence, validity, or extent of building restrictions is resolved in favor of the unrestricted use of the immovable.” We find Paragraph 16 of the Idlewood West Subdivision restrictions to be too vague and ambiguous to be enforceable. See Lake Forest, Inc. v. Drury, 352 So.2d 305 (La.App. 4th Cir. 1977), writs denied, 354 So.2d 199 (La.).

We conclude, on the other hand, that the disputed section of Paragraph 2 of the restrictions is enforceable. The pertinent portion of that paragraph provides that “no lot fronting on Tiffany Drive or Tiffany Drive South may be purchased or used as a back yard for any lot nor [sic] located within Idlewood West Subdivision.” The “nor” clearly is a typographical error, and was intended to be “not”; the sentence makes no sense otherwise. Accordingly, using Civil Code principles of interpretation of agreements, LSA-C.C. art. 1945 et seq., in particular art. 1951, we interpret it to mean “not”.

Since the Coles’ residence lot is indisputably not located within Idlewood West, the question becomes whether fencing of their Idlewood West lot which abuts the rear property line of their residence lot constitutes use of the Idlewood lot as a back yard. We conclude it does.

Common sense, as well as reference to dictionaries, dictates that a back yard is the yard at the rear of a house or building. Webster’s New International Dictionary (2d ed. 1938); American Heritage Dictionary (William Morris, ed., 1973); Webster’s Third New International Dictionary (1971). The defendants’ construction of a fence around Lot 9 of Idlewood West Subdivision, conjoining it to the back yard of their Hyde Park property, clearly constitutes use of the Idlewood West lot as a back yard. As such, it is forbidden by the building restrictions.

Removal of the fence around Lot 9, as ordered by the trial judge (i.e., removing the side fences completely, and either removing the front fence or else moving it to the rear lot line) would remove the proscribed usage and would place the defendants in compliance with the building restrictions. For this reason, we conclude the remedy ordered by the trial judge is appropriate.

For the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED.


author: CURRAULT, Judge.

text:
    BUNGE CORPORATION v. SECRETARY OF the DEPARTMENT OF REVENUE AND TAXATION.
    No. 5-62.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 30, 1982.
    Rehearing Denied Oct. 18, 1982.

      George F. Riess, Monroe & Lemann, New Orleans, for plaintiff-appellant.
    Howard M. Romaine, Dept, of Revenue and Taxation, Baton Rouge, for defendant-appellee.
    Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   CURRAULT, Judge.

This appeal arises from a judgment of the Twenty-ninth Judicial District Court affirming the Board of Tax Appeals’ decision upholding an assessment by the defendant, Department of Revenue and Taxation, against plaintiff, Bunge Corporation.

The Bunge Corporation filed a corporate income tax return with the State of Louisiana for the fiscal year ending March 31, 1975. The return indicated that the Bunge Corporation had a total net income from all sources in the amount of Thirty-four Million, Seventy-seven Thousand, Two Hundred Nineteen and No/100 Dollars ($34,-077,219.00). Following an audit of the records of the Bunge Corporation, the Department of Revenue and Taxation determined that Bunge had failed to include in its income monies received by its subsidiary corporation, Bunge Export Corporation (Bunge Export). Bunge Corporation followed the accounting procedure prescribed by the Federal Internal Revenue Code, Section 991 et seq., establishing, for the purpose of federal taxation, a new type of corporation known as a “domestic international sales corporation,” commonly referred to as “DISC.” This new type of corporation is purely a creature of federal law established simply for decreasing and deferring the Federal Income Tax on income earned through sales of products in foreign markets.

The DISC Statute allows domestic corporations to defer federal income tax on a certain percentage of profits earned in exporting by allowing these corporations to form subsidiary DISC corporations and assigning up to 50 percent of their export business profits to their DISC. These payments to the subsidiary DISC are called “commissions.” The DISC Statute further requires that the subsidiary return half of the “commissions” each taxable year to the parent company as “dividends,” whether or not actually distributed. The remaining commissions not returned to the parent as dividends are the DISC’S “accumulated income.” The federal scheme is such that the “accumulated income” in the DISC subsidiary is deferred from federal income taxation until such time as it may be distributed back to the parent corporation.

As Louisiana has no comparable provisions reducing the income tax on corporations engaged primarily in the export of goods, it adjusted the income and expense of Bunge Corporation, disallowing to Bunge the “commission expense” paid to its subsidiary DISC corporation, Bunge Export, which adjustment increased the Bunge Corporation’s income upward by Twenty-five Million, Eight Hundred Ninety Thousand, Twenty-one and No/100 Dollars ($25,890,-021.00). This upward adjustment generated an additional income tax due in the amount of Two Hundred Fifty Thousand, Eight Hundred Forty-one and No/100 Dollars ($250,841.00). The Department of Revenue and Taxation made the adjustment under the provisions of LSA-R.S. 47:95 upon the determination that allocation was necessary in order to clearly reflect the income of the business.

On June 20, 1979, the Department, through its Reviewing Auditor, L. Kent La-Place, assessed the tax in the amount of Two Hundred Fifty Thousand, Eight Hundred Forty-one and No/100 Dollars ($250,-841.00) against the Bunge Corporation. Also assessed was interest from the tax to date. From that assessment, Bunge Corporation appealed to the Board of Tax Appeals. The Board of Tax Appeals ordered judgment in favor of the Secretary of the Department of Revenue and Taxation and against Bunge Corporation assessing an income tax against Bunge for the fiscal year ending March 31, 1975, in the amount of Two Hundred Fifty Thousand, Eight Hundred Forty-one Dollars ($250,841.00) plus interest until paid.

Bunge appealed this decision to the Twenty-ninth Judicial District Court, for the Parish of St. Charles, Honorable Thomas J. Malik, Judge, and judgment was rendered and reasons therefor filed May 11, 1981, upholding the judgment of the Board of Tax Appeals. Bunge now appeals the decision of the trial court.

In appealing defendant-appellant has assigned several specifications of error:

(1) That the trial court erred in holding Bunge Corporation formed Bunge Export Corporation solely for the purpose of chan-nelling certain gross income to another corporation so as to exempt it from state income taxes;

(2) That the trial court erred in holding Bunge Export Corporation does not qualify under the definition of a domestic international sales corporation as defined in the Federal Internal Revenue Code;

(3) That the trial court erred in holding Bunge Export Corporation has no assets, no employees, no offices and had a total expense during the year in question of $15.00;

(4) That the trial court erred in holding it was not the intent of the United States Congress to allow a corporation with the characteristics of Bunge Export Corporation to qualify as a domestic international sales corporation;

(5) That the Department of Revenue and Taxation exceeded its authority under LSA-R.S. 47:95 in reallocating income from Bunge Export to Bunge Corporation and in disregarding certain dividends from Bunge Export to Bunge Corporation; and

(6) That the addition of Bunge Export’s accumulated DISC income to that of Bunge Corporation under LSA-R.S. 47:95 places an impermissible burden on interstate and foreign commerce thus invalid under Article I, Section 8, Clause 3, the Commerce Clause, of the Constitution of the United States and such an action is a violation of Article VI, the Supremacy Clause, of the Constitution of the United States.

Errors Nos. 1-4

The decision in the Court below that Bunge Export did not qualify under the definition of a domestic international sales corporation was based on four findings. Those findings were characterized in the Court’s written reasons as findings of fact and constitute appellant’s specification of Errors 1 through 4.

In the proceedings below, neither the petition of Bunge nor the answer of the Department formulates the status of Bunge Export as a DISC as an issue. The record further indicates that the Department never contested the status of Bunge Export as a DISC for federal internal revenue purposes. Indeed on appeal both Bunge and the Department stipulated that the holding of the trial court as to these factual findings was erroneous.

When the factual findings of a trial court have been alleged as erroneous, the proper standard of review is whether or not the factual findings are “clearly wrong.” In Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), the Supreme Court clearly stated that there must be

... a reasonable factual basis for the finding in the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong (manifestly erroneous). Id. at 1333.

After applying the Arceneaux standard of review of facts on appeal, we conclude that the factual findings comprising appellant’s Errors 1 through 4 are clearly wrong (Manifestly erroneous). Accordingly, the judgment of the trial court is amended to be consistent with the factual findings of this court.

Error No. 5

The Secretary of the. Department of Revenue and Taxation acted under the authority of Louisiana Revised Statute 47:95 which in essence permits the Department to apportion or allocate gross income if it is determined that such apportionment or allocation is necessary in order to prevent evasion of taxes or clearly reflect the income of any such organizations (corporations). Bunge argues the Secretary exceeded the authority of LSA-R.S. 47:95 when she employed that statute to reallocate Bunge Export’s “accumulated income” to Bunge to clearly reflect Bunge’s income. LSA-R.S. 47:95 was patterned on federal law and has a parallel construction almost verbatim to 26 U.S.C.A. § 482.

The purpose of 26 U.S.C.A. § 482, as is the purpose of R.S. 47:95, is to place a controlled taxpayer on tax parity with an uncontrolled taxpayer, thereby determining the true taxable income from the property and business of a controlled taxpayer. Treasury Regulation § 1.482 — 1(b)(1); Northwestern National Bank of Minneapolis v. United States, 556 F.2d 889, 891 (CA 8 1977).

Special treatment, however, is given to 26 U.S.C.A. § 482 by the Federal DISC Statute. As previously discussed, this special treatment provides tax deferral on the “accumulated income” of qualified DISC corporations. The Bunge Corporation, in computing its income for federal income tax purposes, made use of the special tax provisions of the DISC Statute. Accordingly, the Internal Revenue Service found no distortion of Bunge’s income. Bunge also made use of the Federal DISC Statute in computing its income for State income tax purposes.

The Louisiana income tax law, however, contains no provisions giving special tax treatment to a DISC similar to the special tax treatment provided by the Federal DISC Statute. Bunge, in its argument, would have Louisiana recognizing, for purposes of its income tax, the special tax treatment of the Federal DISC Statute, even if the Louisiana Legislature has not passed similar legislation.

The argument that Louisiana should automatically recognize the deferral provided by the federal statute is completely without justification. Louisiana does not recognize many federal deductions or shelters and we know of no authority nor has appellant guided this court to any authority which makes it incumbent upon this state to adopt all federally recognized deductions or shelters. This court will not infer into law any taxation deferral scheme where the Louisiana Legislature has not acted.

We cannot find it acceptable to allow Bunge to take advantage of special tax treatment in computing its income for State income tax purposes when such special treatment does not exist in State law. The Secretary of the Department of Revenue and Taxation was secure within the parameters of LSA-R.S. 47:95 when she reallocated the “accumulated income” of Bunge Export. We cannot find any violation of the statutory authority in any actions taken by the Secretary. Bunge must accordingly use proscribed methods and procedures as found in State law to compute its income for State income tax purposes.

Error No. 6

Appellant, Bunge Corporation, has challenged the constitutionality of LSA-R.S. 47:95 arguing that the Louisiana Statute places an impermissible burden on interstate and foreign commerce thus invalid under Article I, Section 8, Clause 3, the Commerce Clause of the United States Constitution and Article VI of the United States Constitution.

Under the 1921 Constitution, the Louisiana Supreme Court enjoyed direct appellate jurisdiction of all cases in which the constitutionality or legality of a tax was contested no matter the holding of the trial court. [La.Const., Art. VII, Section 10(1) and (2) (1921) ].

This exclusive appellate jurisdiction was changed by omission, however, and the 1974 Constitution allowed direct appeal to the Supreme Court only if the challenged law or ordinance had been declared unconstitutional by the trial court. [La.Const., Art. V, Section 5(D)(2) (1974) ]. See Southland Corporation v. Collector of Revenue for Louisiana, 318 So.2d 23 (1975); Duplantis v. Terrebonne Parish School Board, 338 So.2d 722 (La.App. 1st Cir. 1976).

Although the constitutionality of LSA-R.S. 47:95 had been challenged by appellant Bunge Corporation, nevertheless, neither the Board of Tax Appeals nor the trial court ruled on the Statute’s constitutionality. We deem such silence to be an affirmation of the challenged statute’s constitutionality, thereby invoking the appellate jurisdiction of this court.

We shall address first the issue wherein LSA-R.S. 47:95 is alleged to violate Article VI, the Supremacy Clause, of the United States Constitution. Appellant, Bunge, argues that LSA-R.S. 47:95, by allowing the Department of Revenue to reach into Bunge Export and reallocate the “accumulated income” to Bunge, violates Congressional policy that such income be exempt from taxation. Supporting this argument, Bunge further contends that the legislative history of the Revenue Act of 1971 clearly provides such tax-exempt policy. Appellant, however, does not have a correct interpretation of either the federal statute or its legislative history.

Consideration under the Supremacy Clause begins with the basic assumption that Congress did not intend to displace state law. Maryland v. Louisiana, 451 U.S. 725, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981). In Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947), the Supreme Court stated:

Such a purpose [to displace state law] may be evidenced in several ways. The scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for States to supplement it. Pennsylvania R. Co. v. Public Service Comm’n., 250 U.S. 566, 569 [40 S.Ct. 36, 37, 64 L.Ed. 1142]; Cloverleaf Butter Co. v. Patterson, 315 U.S. 148 [62 S.Ct. 491, 86 L.Ed. 754], Or the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject. Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581. Likewise, the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose. Southern R. Co. v. Railroad Commission, 236 U.S. 439 [35 S.Ct. 304, 59 L.Ed. 661]; Charleston & W.C.R. Co. v. Varnville Co., 237 U.S. 597 [35 S.Ct. 715, 59 L.Ed. 1137]; New York Central R. Co. v. Winfield, 244 U.S. 147] 37 S.Ct. 546, 61 L.Ed. 1045]; Napier v. Atlantic Coast Line R. Co. [272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432] supra. Or the state policy may produce a result inconsistent with the objective of the federal statute. Hill v. Florida, 325 U.S. 538 [65 S.Ct. 1373, 89 L.Ed. 1782].” 331 U.S., at 230, 67 S.Ct., at 1152.

The Court in Maryland v. Louisiana, supra, 451 U.S. at 747, 101 S.Ct. at 2129, added:

Of course, a state statute is void to the extent it conflicts with a federal statute —if, for example, “compliance with both federal and state regulations is a physical impossibility,” Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143, 83 S.Ct. 1210, 1217-18, 10 L.Ed.2d 248 (1963), or where the law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, supra, 312 U.S., at 67, 61 S.Ct., at 404. See generally Ray v. Atlantic Richfield Co., 435 U.S. 151, 157-158, 98 S.Ct. 988, 944-45, 55 L.Ed.2d 179 (1978); City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 633, 93 S.Ct. 1854, 1859, 36 L.Ed. 547 (1973).

Equipped with the Supreme Court’s articulated guidelines, this court examined in detail both the legislative act and its history. We cannot hold that LSA-R.S. 47:95 violated either the Supremacy Clause or any of the established parameters by which such clause is governed.

In Westinghouse Electric Corporation v. Tully, 449 N.Y.S.2d 677, 681, 434 N.E.2d 1044, 55 N.Y.2d 364 (1982), a case nearly identical to the one presently before this Court, the following legislative history was revealed:

On September 8, 1971, shortly before the DISC legislation was enacted, John S. Nolan, Deputy Assistant Secretary of the Treasury for Tax Policy, spokesman for the sponsoring department, in the company of then Secretary of Treasury John B. Connally, officially appeared at a hearing before the Committee on Ways and Means of the House of Representatives. There, Mr. Nolan, in response to an expression of committee concern that the proposal might “prohibit States from levying corporate income taxes on a DISC”, was unequivocal in his declaration that the proposed bill would leave the States “free to impose the tax, if they choose to do so” (see Hearings before House Committee on Ways and Means on the Tax Proposals Contained in the President’s New Economic Policy, 92nd Cong., 1st Sess., Part I, pp. 170-171). Moreover, not without significance, proposed legislation which might have preempted the States from taxing DISC was considered by the same committee in 1980, only to be permitted to die without any action (see HR 5076, 96th Cong., 2nd Sess.; Hearing before Committee on Ways and Means on State Taxation of Foreign Source Income, pp. 29 326).

Although graced with ample opportunity to prohibit the taxation of DISCs by state, Congress failed to do so. Indeed, in Senate Report N. 92-437, 92nd Cong., 1st Sess., rptd [1971] U.S.Code & Ad.News 1918, submitted by the Senate Finance Committee, the Committee states:

To provide tax incentives for U.S. firms to increase their exports, the committee has provided tax deferral for one-half of export-related profits .... The version of the DISC provision agreed to by the committee has the same objective as that incorporated in the House version of this bill. Both provisions seek to provide substantial stimulus to exports .... Id. at 1928.

The plain language of Congress indicates their purpose was to remove disadvantages and stimulate exports by providing tax incentives in the form of tax deferrals, not a pervasive scheme of federal regulations so dominant as to preclude any state from taking action. Congress may, in the future, see fit to enact legislation preempting states from taxing DISCs. However, absent some explicit directive from Congress, we will not infer one.

The second prong of Bunge’s constitutional attack on LSA-R.S. 47:95 is that the addition of Bunge Export’s “accumulated DISC income” to that of Bunge under LSA-R.S. 47:95 places an impermissible burden on interstate and foreign commerce, thus invalid under Article 1, § 8, Cl. 3, of the Constitution of the United States. We believe this constitutional objection has no merit.

Well settled is the rule that a state tax is not per se invalid because it burdens interstate commerce since interstate commerce may constitutionally be made to pay its way. Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977). However, a state’s right to tax interstate is limited and no state tax may be sustained unless the tax:

(1) has a substantial nexus with the state;

(2) is fairly apportioned;

(3) does not discriminate against interstate commerce; and

(4) is fairly related to the services provided by the state. Maryland v. Louisiana, supra; Mobil Oil Corp. v. Com’r. of Taxes of Vermont, 445 U.S. 425, 443, 100 S.Ct. 1223, 1234, 63 L.Ed.2d 510 (1980).

Appellant, Bunge, however, has chosen to argue, incorrectly we believe, that. LSA-R.S. 47:95 is unconstitutional because it is in opposition to Congressional policy. We are of the opinion that Bunge should have constructed their argument in such a fashion as to argue the constitutionality of LSA-R.S. 47:95 under the guidelines proscribed by the Supreme Court. In any event, we have already discarded the alleged existence of any Congressional policy upon which appellant bases his argument. Accordingly, we must find appellant’s argument to be without merit.

We believe the constitutional attack on LSA-R.S. 47:95 to be wholly a misapplication of the law. The income tax imposed herein is based upon the taxpayer’s relationship to the wholly-owned subsidiary and is completely unrelated to the subsidiary’s function of overseas sales or any such foreign commerce. Appellant has been levied with a tax for the enjoyed privilege of earning income in Louisiana. The measure of this tax falls squarely within the proscribed guidelines set forth by the Supreme Court.

In conclusion, we hold that the Secretary of the Department of Revenue and Taxation was well within the statutory authority of LSA-R.S. 47:95 when she reallocated the “accumulated DISC income.” Further, we hold that the constitutional attacks upon LSA-R.S. 47:95 are without merit. Accordingly, the decision of the trial court is amended in part and affirmed in part.

AMENDED AND AFFIRMED.

      . R.S. 47:95(A). “If in any case of two or more organizations, trades, or businesses (whether or not incorporated, whether or not organized in the State of Louisiana, and whether or not affiliated) owned or controlled directly or indirectly by the same interests, the collector is authorized to distribute, apportion or allocate gross income or deductions between or among such organizations, trades, or businesses, if he determines that such distribution, apportionment, or allocation is necessary in order to prevent evasion of taxes or clearly to reflect the income of any such organizations, trades or businesses.. ..
      (C) For the purpose of this Section, whenever a corporation, which is required to file an income tax return, is affiliated with or related to any other corporation through stock ownership by the same interests or as parent or subsidiary corporations, or whose income is regulated through contract or other arrangement, the collector may require such consolidated statements as in his opinion are necessary in order to determine the taxable income received by any one of the affiliated or related corporations.”

      . 26 U.S.C.A. Section 482. “In any case of two or more organizations, trades, or businesses (whether or not incorporated, whether or not organized in the United States, and whether or not affiliated) owned or controlled directly or indirectly by the same interests, the Secretary or his delegate may distribute, apportion, or allocate gross income, deductions, credits, or allowances between or among such organizations, trades, or businesses, if he determines that such distribution, apportionment, or allocation is necessary in order to prevent evasion of taxes or clearly to reflect the income of any of such organizations, trades, or businesses.”

      . 26 U.S.C.A. §§ 991-997, Pub.L.92-178, Title V, December 10, 1971, 85 Stat. 535.

      . La.Const. Art. VII, Section 10 (1921) pertinently provides:
      “The following cases only shall be appealable to the Supreme Court”
      (1) Cases in which the constitutionality or legality of any tax, local improvement assessment, toll or impose levied by the state, or by any parish, municipality, board or subdivision of the state is contested;
      (2) Cases in which an ordinance of a parish, municipal corporation, board or subdivision of the state, or a law of this state has been declared unconstitutional; .... ”

      . La.Const. Art. V, Section 5(D) (1974) provides, in part: “In addition to other appeals provided by this constitution, a case shall be appealable to the supreme court if (1) a law or ordinance has been declared unconstitutional;

      . In Westinghouse, supra, the Appellant Court for the state of New York held constitutional a New York statute which taxes income emanating from the earnings of a DISC. See also, Department of Revenue, Commonwealth of Kentucky v. The Early & Daniel Company, Inc., 628 S.W.2d 630 (KY 1982); Bunge Corp. and Bunge Export Corp. v. Commissioner of Revenue, C.C.H. Minnesota Tax Reports, 200.988 (1980); Cook Export Corp. v. King, 617 S.W.2d 879 (Tenn.1981).


author: CULPEPPER, Judge.

text:
    Estelle Weaver HAWTHORNE, Plaintiff & Appellee, v. SUCCESSION OF Nannie Salter HAWTHORNE, et al., Defendants & Appellants.
    No. 82-133.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 31, 1982.

      Voorhies & Labbe, H. Lee Leonard, Lafayette, for defendant-appellant.
    Whitehead & McCoy, Kenneth D. McCoy, Natchitoches, for plain tiff-appellee.
    Before CULPEPPER, FORET and STOKER, JJ.
   CULPEPPER, Judge.

This is a possessory action. The plaintiff is Estelle Weaver Hawthorne. The defendants are Succession of Nannie Salter Hawthorne and Harry E. Hawthorne, both individually and in his capacity as executor of the defendant succession. The defendants appeal from the trial court judgment recognizing the plaintiff’s right to possession of the property in question, and maintaining her on possession thereof.

The issue is whether plaintiff had the possession required to bring this possessory action. We conclude she did not.

FACTS

This case involves eight distinct tracts of immovable property in Natchitoches Parish, described in plaintiff’s petition as follows:

1. N Vt of NW lk of SE Vt and N % of SW Vi of NW Vi of SE Vi of Section 35, Township 8 North, Range 8 West, Natchitoches Parish, Louisiana containing 25 acres, more or less, subject to mineral reservations dated June 13, 1973.
2. SE Vi of SW Vi of Section 33, Township 8 North, Range 8 West, containing 40 acres, more or less, subject to mineral reservations dated June 13, 1973, in Natchitoches Parish, Louisiana.
3. A tract of land of 4.5 acres, more or less, located in the Town of Provencal, Louisiana, bounded North and East by Hawthorne, West by Stephens, South by Wester, in Natchi-toches Parish, Louisiana.
4. Lots 5 and 6 of Block 11 of the Town of Provencal, Natchitoches Parish, Louisiana.
5. A tract of land of four (4) acres, more or less, bounded on the North by estate of M. P. Hawthorne, East by Walter Perst, on the South by Provencal Bayou and by Natchitoches-Leesville Highway and on the West by 0. Wester, in Natchitoches Parish, Louisiana.
6. Lots 1, 2, 3 and 4 of Block 11 of the Town of Provencal, in Natchitoches Parish, Louisiana.
7. Lots 1, 2 and 3 of Block 18 of the Town of Provencal in Natchitoches Parish, Louisiana, less and except a parcel of land 35 feet by 80 feet in depth between parallel lines taken from the SE corner of Lot 1, said parcel having a front of 35 feet on Main Street and a depth of 80 feet.
8.Lots 4 and 5 of Block 17 of the Town of Provencal in Natchitoches Parish, Louisiana.

Tracts numbered 1, 2, 3 and 5 above are hereinafter referred to as the “rural property,” and tracts numbered 4, 6, 7 and 8 as the “town property.”

Plaintiff alleges she and her ancestors in title had been in possession of the above described property for more than one year prior to two alleged disturbances in law committed by the defendants. The first was the filing by defendant, Harry E. Hawthorne, Sr., of a notice of lis pendens on May 26, 1981 in conjunction with a lawsuit styled “Harry Edward Hawthorne v. Harry Edward Hawthorne, Jr., et al” in the United States District Court for the Western District of Louisiana, and the failure to cancel the recorded notice of lis pendens after dismissal of the suit. The other disturbance on which plaintiff relies is the listing of interests in the disputed property in the detailed descriptive list of assets (styled “Inventory”) filed on April 2, 1981 in the Succession of Nannie Salter Hawthorne, No. 9539 on the docket of the Tenth Judicial District Court for Natchi-toches Parish.

Plaintiff alleges she acquired the above described property by an act of sale on or about April 5, 1980 from her two sons, Harry E. Hawthorne, Jr. and Hal Weaver Hawthorne. Although plaintiff personally did not take corporeal possession of the property prior to the alleged disturbances, she contends she can tack to her civil possession the civil and corporeal possessions of her ancestors in title to establish the possession required for this possessory action.

Plaintiff introduced into evidence the following outline of her chain of title to show her ancestors in title, whom she alleges had corporeal possession:

In support of the above outline of plaintiff’s chain of title, she filed in evidence a copy of a judgment of possession in the Succession of Harry Robert Hawthorne, of date, November 14, 1968, showing that he was survived by his widow, Nannie Salter, and three sons, respectively, Harry E. Hawthorne, Percy L. Hawthorne, and Hugh A. Hawthorne. Nannie was recognized as owner of a Vh interest and as usufructuary of the other xh inherited Ms each by her three sons. The property numbers shown on the outline refer to the eight tracts of land described in plaintiff’s petition and numbered one through eight, as shown above. “Harry and Hal” shown on the outline are respectively plaintiff’s sons, Harry E. Hawthorne, Jr., and Hal Weaver Hawthorne. The plaintiff, Estelle Weaver Hawthorne, is the former wife of Harry E. Hawthorne, Sr., one of the three sons of Harry Robert Hawthorne.

As plaintiff’s outline of her chain of title and the documents filed in evidence show, Nannie conveyed her xk interest in the rural tracts of land to Harry and Hal in 1976. Nannie never did sell her lh interest in the town property. Other evidence in the record shows that Nannie continued to live on the old homeplace, Lots 5 and 6 of Block 11 in Provencal, and rented the other town lots until she died in February of 1981. Plaintiff’s outline of her chain of title also shows that Harry E. Hawthorne, Sr. sold his 'A interest in all of the property, both rural and town, to the Salter Company, Inc., which in turn sold it to the Nansa Trust, which in turn conveyed it to Harry and Hal in 1975. As the outline shows, Hugh A. Hawthorne and Percy L. Hawthorne conveyed their M» interest each in the rural property only and these interests eventually were acquired by Harry and Hal. Hugh and Percy have never sold their interests in the town property. Finally, Harry and Hal conveyed all of their interests in both the rural property and the town property to their mother, Estelle Weaver Hawthorne, plaintiff in . these proceedings, by a sale dated April 5,1980 and recorded in Conveyance Book 360, page 656.

Under these chains of title, plaintiff contends that Nannie and later Harry and Hal had corporeal possession of the rural properties and that these corporeal possessions tacked to plaintiff’s civil possession is sufficient. As to the town lots, plaintiff contends that the corporeal possession of her ancestor in title, Nannie Salter, can be tacked to plaintiff’s civil possession to establish the required possession.

We will first state some of the general rules of possessory actions and then discuss separately the rural properties and the town properties as to which certain special rules of law are applicable.

GENERAL RULES OF THE POSSESSORY ACTION

The possessory action is an action brought by the possessor of immovable property to be maintained in his possession when he has been disturbed, or be restored to possession when he has been evicted. LSA-C.C.P. article 3658 provides:

“Art. 3658. Same; requisites
To maintain the possessory action the possessor must allege and prove that:
(1) He had possession of the immovable property or real right at the time the disturbance occurred;
(2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;
(3) The disturbance was one in fact or in law, as defined in Article 3659; and
(4) The possessory action was instituted within a year of the disturbance.”

The possession necessary to maintain a possessory action is set forth in LSA-C.C.P. article 3660 which states in pertinent part:

“Art. 3660. Same; possession
A person is in possession of immovable property or of a real right, within the intendment of the articles of this Chapter, when he has the corporeal possession thereof, or civil possession thereof preceded by corporeal possession by him or his ancestors in title, and possesses for himself, whether in good or bad faith, or even as a usurper.”

Jurisprudence has stated the corporeal possession required to commence the possession necessary to bring a possessory action is identical to that required to commence the running of acquisitive prescription. Liner v. Louisiana Land & Exploration Company, 319 So.2d 766 (La.1975); Hill v. Richey, 221 La. 402, 59 So.2d 434 (1952). Also, jurisprudence has generally described corporeal possession as that which is actual, physical, open, public, unequivocal, continuous, uninterrupted, showing an intent to possess as owner, and evidenced by visible activities or signs sufficient to give notice to the public as to the character and extent of the possession. Harper v. Willis, 383 So.2d 1299 (La.App. 3rd Cir. 1980), writ denied 390 So.2d 202 (La.1980); Kilchrist v. Conrad, 191 So.2d 705 (La.App. 3rd Cir. 1966).

Corporeal possession must also be of a type for which the land is destined or suitable. The elements and characteristics of corporeal possession necessary to maintain a possessory action vary with the nature of the property and other attending circumstances. What constitutes corporeal possession is a question of fact, and each case rests upon its own individual circumstances. Plaisance v. Collins, 365 So.2d 608 (La.App. 1st Cir. 1978); Gaulter v. Gennaro, 345 So.2d 92 (La.App. 1st Cir. 1977); Kilchrist v. Conrad, supra. As stated in Plaisance v. Collins, supra:

“The type of possession essential to.maintain a possessory action for one kind of property may differ from that required for another. Obviously, the possession requisite in the case of farm land is more than in the case of wood land; and, more possession is required in the case of wood land than in the case of swamp or marsh land. Liner v. Louisiana Land and Exploration Company, 319 So.2d 766 (La.1975).”

Furthermore, corporeal possession as owner of any part of a tract specifically described in an act of conveyance with the intent to possess the whole will constitute constructive possession of all of the property included within the boundaries described. See LSA-C.C. article 3437; LSA-C.C.P. article 3661; Hill v. Richey, supra. Therefore, although LSA-C.C.P. article 3661 provides that ownership or title to immovable property is not at issue in a possessory action, evidence of ownership or title is admissible to prove:

“(1) The possession thereof by a party as owner;
(2) The extent of the possession thereof by a party; or
(3) The length of time in which a party and his ancestors in title have had possession thereof.”

A rule of law particularly applicable in the present case is that possession by a co-owner in indivisión is presumed to be precarious, not as owner of the whole, but for the benefit of his co-owners. Moreover, in order for one co-owner to prescribe against his co-owners in common, it must be clearly shown that his possession was hostile. Some of the cases even require that written notice be given to the other co-owners that the possession is hostile. Liles v. Pitts, 145 La. 650, 82 So. 735 (1919); Hill v. Dees, 188 La. 708, 78 So.2d 250 (1937); Lee v. Jones, 224 La. 231, 69 So.2d 26 (1953); Mills v. Roy O. Martin Lumber Company, 129 So.2d 78 (La.App. 3rd Cir. 1961); Harris v. Ferguson, 375 So.2d 712 (La.App. 3rd Cir. 1979). Although all of these cases involved acquisitive prescription, jurisprudence has established the rule that the corporeal possession required for the possessory action is the same as that required for acquisitive prescription. Liner v. Louisiana Land & Exploration Company, supra.

The recent case of Bartlett v. Calhoun, 412 So.2d 597 (La.1982) contains an excellent discussion of the rationale for tacking successive possessions. Overruling previous jurisprudence to the contrary, the court held that in the acquisitive prescription of ten years a party who purchases in bad faith cannot tack the possession of his vendor who acquired in good faith. The decision states that those who acquire by universal title, such as heirs, continue the same possession as their author, so they can tack. But those who acquire by particular title, such as purchasers, commence a new possession, so they cannot tack unless they and their author have all of the requirements of the acquisitive prescription involved. We have carefully examined the opinion in Bartlett and conclude the change it makes in our law does not affect our decision in the present case.

RURAL PROPERTY

Under the rules of possession stated above, we will first discuss the rural property to determine whether plaintiff’s alleged ancestors in title, Nannie Salter or Harry and Hal, ever had corporeal possession as owner hostile to the other co-owners. We can first easily dispose of any contention that Nannie Salter had corporeal possession as owner. A simple examination of the outline of plaintiff’s chain of title to the rural properties shows that Nannie owned only an undivided lh interest and had a usufruct of the remaining Vk Any possession by Nannie was as a co-owner. Her possession of the lk interest which she did not own was for her co-owners. There is absolutely no evidence that her possession was ever hostile to the other co-owners. Thus, Nannie did not have corporeal possession as owner of the rural tracts.

Let us now determine whether Harry and Hal ever had corporeal possession of the rural tracts of land. According to the outline of plaintiff’s chain of title, Harry and Hal did acquire a record title to all of the rural properties by 1976. However, we conclude for the following reasons the evidence is insufficient to prove that Harry and Hal had corporeal possession of the rural properties.

The evidence shows the rural property is four tracts of wood land. There is no evidence they are contiguous. Parts of the two larger tracts were fenced at one time, but the remainder of these tracts and the other two were not. Harry Hawthorne, Jr. stated he physically examined the tracts, walked the lines, and established the existence of some of the corners. He also said that he and his family had gone fishing and picnicking on some of the properties from time to time. There was also evidence that at one time there had been a tenant in a house on one of the tracts, we know not which, but he had left several years before trial and the house had been uninhabitable for quite a long time.

We conclude that the actions with regard to the rural property by Harry and Hal did not constitute the actual, physical, open, public, unequivocal possession of property required for corporeal possession. There was no showing of any cutting of the timber, marking the lines, or other visible signs of corporeal possession. Simply walking the lines and finding the existence of corners is not sufficient to give notice to the public of the character and extent of the possession. See Johnson v. La Bokay Corporation, 326 So.2d 589 (La.App. 3rd Cir. 1976). Although Harry testified parts of the property were fenced, the evidence does not show which tracts were fenced nor by whom. The tracts are not contiguous, so fencing of one tract was not an act of possession of the other. Also, there was nothing to show from whom the tenant of many years ago rented the old house, so we do not know for whom he possessed, and we do not know on which tract the house was located.

TOWN PROPERTY

Now turning to the town property, plaintiff contends that Nannie had corporeal possession until the time of her death in February of 1981, and that Nannie’s corporeal possession can be tacked to plaintiff’s civil possession to establish the possession required to bring this possessory action. As stated above, Nannie lived on the old home-place, Lots 5 and 6 of Block 11 in Provencal, and rented the other town lots. However, as stated above, Nannie owned only an undivided lh interest in the town property and had a usufruct of the remaining Vk Nannie’s possession was as a co-owner. There is no evidence that her possession was hostile to the ownership of her other co-owners. Thus, under the rules stated above, Nannie did not possess as owner of the whole, her possession of lh being precarious and for the benefit of her co-owners. According to the outline of the chain of title filed in evidence by plaintiff, Hugh and Percy still own a Vs interest each in the town property. Clearly, Nannie never possessed hostile to these interests.

Moreover, the evidence does not show that Nannie is plaintiff’s ancestor in title to the town property. According to plaintiff’s own title outline, Nannie never did sell her xk interest in the town property. She owned it when she died in February of 1981, and this is obviously the reason it was listed in the inventory of her succession. Plaintiff acquired the Ve interest in the town property which was at one time owned by her husband, Harry E. Hawthorne, Sr. According to her own title outline, this Vi; interest is all plaintiff ever acquired. She acquired no interest in the town property from Nannie Salter. Nannie was not plaintiff’s ancestor in title to the town property, so plaintiff cannot tack any possession by Nannie of the town property.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment herein in favor of the defendants dismissing plaintiff’s suit at her cost. All costs in the trial and appellate courts are assessed against the plaintiff-ap-pellee.

REVERSED AND RENDERED.


author: SCHOTT, Judge.

text:
    Arthur E. WILLIAMS and Rose Mary Williams, Individually and on Behalf of the Minor, Kimberly Williams v. The ST. PAUL INSURANCE COMPANIES, et al.
    No. 13032.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1982.
    Rehearing Denied Oct. 22, 1982.

      Lawrence J. Smith, Adolph J. Levy, Alan Brandon Parker, Levy, Smith & Gennusa, New Orleans, for plaintiffs-appellants.
    H. Martin Hunley, Jr., C. William Bradley, Jr., Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for defendants-appel-lees.
    Before SCHOTT, KLEES and LOBRA-NO, JJ.
   SCHOTT, Judge.

This medical malpractice action against the administrators of the Tulane Educational Fund (Tulane), two physicians and two nurses, was dismissed on an exception of prematurity because of plaintiffs’ failure to file their claim with a medical review panel. Defendants had not paid the surcharge assessed under LSA-R.S. 40:1299.44 at the time the alleged tort was committed. The issue is whether they wére qualified health providers under R.S. 1299.42 even though they paid the surcharge ten days after the alleged tort was committed but were considered by their insurer as covered since before the date of the alleged tort.

Plaintiffs allege that their infant daughter suffered injury because of defendants’ malpractice on February 1,1977. On January 5 Tulane was billed by its insurance broker for a liability policy with St. Paul Fire and Marine Insurance Company in the amount of $29,898 which included the surcharge of $4300 for qualification under the Medical Malpractice Act. This separate bill for the surcharge contained the following message:

“In compliance with Directive No. 29 of the Louisiana Commissioner of Insurance, which states that, ‘In order that the health care provider(s) can elect to qualify under the Act .. ., each insurer ... shall prepare an endorsement to the policy of medical malpractice insurance which certifies payment of the surcharge.’ The health care provider(s) listed below (has) (have) elected to pay the surcharge specified by the Commissioner which is due on this policy. Election to qualify is not permitted by the Commissioner nor by the Act, unless the health care provider has actually paid the surcharge specified by the Commissioner for this policy or for any endorsement to this policy. The Act requires the insurer to pay the Surcharge to the Patient’s Compensation Fund and the insurer will have no right or responsibility to return the surcharge.”

This bill was not paid until February 11, 1977.

§ 1299.42 A of the Act provides as follows:

“To be qualified under the provisions of this Part, a health care provider shall:
(1) Cause to be filed with the commissioner proof of financial responsibility as provided by Subsection E of this Section;
(2) Pay the surcharge assessed by this Part on all health care providers according to R.S. 40.1299.44; and
(3) For self-insureds, qualification shall be effective upon acceptance of proof of financial responsibility by and payment of the surcharge to the commissioner of insurance. Qualification shall be effective for all others at the time the malpractice insurer accepts payment of the surcharge.”

Thus, it seems clear that a literal reading of the Act compels the conclusion that Tulane and the other parties were not qualified at the time of the alleged tort. However, Tulane argues that only a “strained and artificial construction” of the statute would lead to the “unnatural and harsh interpretation” urged by plaintiffs. We disagree. The Medical Malpractice Act provides for a serious limitation on the right of a victim of medical malpractice to recover for damages. The victim is prevented from access to the courts and relegated to review by a medical review panel, § 1299.47 A and recovery is limited to $100,000 against a single health care provider and $500,000 against all health care providers, § 1299.42 B. We are persuaded that the Act constitutes a special legislative provision in derogation of the general rights available to tort victims. As such, the Act must be strictly construed. § 1299.42’s requirement for payment of the surcharge as a condition of qualification is reinforced by § 40.1299.41 D which provides that:

“A health care provider who fails to qualify under this Part is not covered by the provisions of this Part and is subject to liability under the law without regard to the provisions of this Part. If a health care provider does not so qualify, the patient’s remedy will not be affected by the terms and provisions of this Part.”

However, defendants would avoid this apparently clear interpretation of the statute by reference to § 1299.44 A(2) which states: “The surcharge shall be collected on the same basis as premiums by each insurer, the risk manager and surplus lines agents.” The argument is that Tulane’s insurance broker provided coverage effective January 1, 1977, on its liability policy irrespective of the date when it billed Tulane and when the bill was paid. The policy was effective from January 1 and the bills including the bill for the surcharge reflected that the effective date was January 1. Since the policy ran from January 1 under these circumstances and since the statute would treat collection of the surcharge “on the same basis as premiums” qualification would begin on January 1 even though the surcharge was not paid until February 11.

We are unable to agree that § 1299.44 A(2) supports the conclusion advocated by defendants. § 1299.44 is concerned primarily with the establishment of the Patient’s Compensation Fund out of which claims under the Medical Malpractice Act are to be paid. § A(2) has to do with the annual surcharge to be collected after the health care provider initially qualifies for coverage under the Act. § A(3) specifically provides that the annual surcharge shall be due and payable within 30 days after the premiums for malpractice liability insurance have been received by the insurer, risk manager and surplus lines agents, and § 1299.44 A(4) provides that if the annual premium surcharge is not paid within that time limitation the certificate of authority of the insurer, risk manager and surplus lines agents shall be suspended until the annual premium surcharge is paid. This section does not purport to apply to the initial qualification surcharge and does not in any way relieve the health care provider of the rigid requirements of § 1299.42 to pay the surcharge as a condition precedent for qualification under the Act.

Finally, defendants rely upon Directive No. 29 of the Commissioner of Insurance of the State of Louisiana as proof that the late payment of the surcharge provided qualification from the effective date of the policy on January 1, 1977. That directive provides as follows:

“Act 817 of the 1975 session of the Louisiana Legislature will become effective on September 12, 1975.
Section 1299.44 of the Act places the duty upon the insurer and surplus line agent (broker) to collect the surcharge provided by the Act on all policies of medical malpractice insurance issued to health care providers or endorsements to policies providing such coverage. The Louisiana Insurance Rating Commission has determined that the surcharge shall be levied at the rate of twenty (20) percent. The surcharge shall be collected on the same basis as premiums by the insurers and the surplus line brokers on all new policies and renewals.
In order that the health care providers can elect to qualify under the Act effective September 12,1975, each insurer and surplus line broker shall prepare an endorsement to the policy of medical malpractice insurance which certifies payment of the surcharge. The amount of the surcharge shall be determined by computing the premium for $100,000 of malpractice liability insurance per claim and $300,000 in the aggregate for the remainder of the policy term. The minimum required limits shall not be construed to restrict the right of the health care provider to elect limits to excess thereof.
No such endorsement certifying payment of the surcharge under the Act shall be issued unless the health care provider has basic malpractice liability insurance limits of at least $100,000 per claim and $300,-000 in the aggregate nor shall such endorsement operate to decrease the amount of insurance provided under the existing malpractice insurance contract. The surcharge shall be due and payable within thirty days after the surcharge has been received by the insurer or surplus line broker. The submission of the surcharge shall include identification of each health care provider qualified under the Act. Failure of the insurer or the surplus line broker to comply with this paragraph shall in no way effect the qualifications of the health care provider who has complied with the provisions of the Act in all other respects.
The surcharge forwarded by the insurer or surplus line broker shall be made payable to the Patients Compensation Fund Escrow Account and be sent to the Commissioner of Insurance or to such representative as he may subsequently designate. Reporting forms will be furnished prior to October 1, 1975.
Excerpts of the Act defining health care providers and pertinent portions of Section 1299.44 are enclosed.”

This directive specifically refers to § 1299.44 of the Act already discussed and as such applies to the annual surcharge as distinguished from the initial surcharge. It is concerned with the duties of the insurance broker collecting the premium from the health care provider but it does not purport to affect the initial qualification surcharge provided for so specifically in § 1299.42.

Since the defendants had not paid the surcharge on the date of the alleged tort they were not qualified as health care providers under the Act, and plaintiffs were not precluded from bringing their tort action in accordance with the general law of torts. Accordingly, the judgment of the trial court is reversed and set aside, defendants’ exceptions of prematurity are overruled and the case is remanded to the district court for further proceedings. Costs of this appeal are assessed against defendants; other costs are to be assessed at the conclusion of the case.

REVERSED AND REMANDED.


author: KLEES, Judge.

text:
    Bernard A. RICHARD v. TULANE TOYOTA, INC., and ABC Insurance Company.
    No. 13239.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1982.
    Rehearing Denied Oct. 22, 1982.
    Frank J. D’Amico, New Orleans, for plaintiff-appellant.
    A. Gordon Grant, Jr., Montgomery, Barnett, Brown & Read, New Orleans, for defendants-appellees.
    Before SCHOTT, KLEES and LOBRA-NO, JJ.
   KLEES, Judge.

Plaintiff sought Workmen’s Compensation benefits from his former employer. The trial court concluded that plaintiff’s injury was caused by his intoxication at the time of the injury and disallowed compensation benefits under LSA-R.S. 23:1081.

The issues presented in this appeal are 1) whether there was sufficient proof of plaintiffs’ intoxication and 2) whether plaintiffs’ intoxication caused his injuries.

Our review of the record in this case convinces us that the trial court correctly concluded that plaintiff was intoxicated at the time of the injury and his intoxication caused his injuries, and we affirm.

On June 4, 1979, the plaintiff was employed as an automobile salesman for Tulane Toyota. At approximately 4 P.M. plaintiff was travelling east bound in the left lane of U. S. Highway 90 when for some unknown reason he attempted to negotiate a U-turn. The record discloses that a Mr. Henry W. Barres, Jr., was heading west bound in the left lane and saw plaintiffs’ vehicle pull into the median, hesitate and then pull out and make a wide turn, whereupon the Barnes vehicle struck plaintiffs’ vehicle broadside in the far right lane. As plaintiff did so, Barnes shifted from the left inside lane to the right outside lane. Barnes testified that he was travelling 50 miles per hour, and was approximately 100 yards from the intersection when he changed lanes.

At trial plaintiff was suffering from total traumatic amnesia as well as other very severe injuries and was not able to take the witness stand. A witness in the following vehicle, Charles Collins, stated the accident was unavoidable.

Officer Ann Bourgeois Wilcox testified at trial that she observed the interior of plaintiff’s vehicle and noticed a broken bottle of vodka and detected the odor of alcoholic beverages. She then recalled that plaintiff was mumbling, but he was incoherent. From the mumbling and looking at the vehicle afterwards, she suspected that plaintiff had been drinking and requested that a blood alcohol test be taken. The results of the blood alcohol test showed that plaintiff had a .24 percent alcohol level in his blood. Trooper Wilcox also testified that it was a clear day and the view from the intersection towards the approaching Barnes vehicle was unobstructed. Dr. Monroe Samuels, an expert in the field of pathology, testified at trial that at .24 percent alcohol level in the blood, a hundred percent of the population would have significant impairment with regard to driving abilities — such as distance, judgment, depth perception, reflex time, audio visual coordination and assessment of the speed of oncoming traffic.

The trial court concluded that under the evidence submitted at trial plaintiff would not have made a U-turn on Highway 90 if not for his state of intoxication and cited the most recent Supreme Court decision, Parker v. Kroger’s Inc., 394 So.2d 1178 (La.1981). In Kroger, as here, the issue was whether Kroger met the burden of proving that plaintiffs’ injury was caused by his intoxication at the time of the injury.

From the facts elicited at trial in this case we can find no manifest error, nor showing that the trial court was clearly wrong in his findings. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), Canter v. Koehring Company, 283 So.2d 716 (La.1973), Parker v. Kroger's Inc., supra, Clay v. Bituminous Gas Co., 401 So.2d 1257 (1st Cir. 1981).

The blood alcohol test administered to plaintiff showed he had a blood alcohol level of .24. Officer Wilcox testified that there was a vodka bottle in the front seat of plaintiff’s automobile and she noticed the odor of alcohol. Dr. Samuels testified that depth perception, reflex time, audio visual coordination and judgment of speed would be significantly affected in an individual with a .24 percent blood alcohol level.

Accordingly, the judgment of the trial court dismissing plaintiff’s action for workmen’s compensation benefits is affirmed.

AFFIRMED.