author: COVINGTON, Judge.

text:
    Richard J. DUFRENE, et al. v. Delphine Mercedes Esponge DUFRENE, et al.
    No. 14794.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Leopold Z. Sher, and Elwood F. Cahill, Jr., New Orleans, for plaintiffs-appellants Richard J. Dufrene and Harold J. Dufrene.
    Maurice J. Serpas, Galliano, and L. Charles Caillouet, Thibodaux, for defendants-appellees Delphine Mercedes Esponge Dufrene, Enola Dufrene Danos and Eroy Danos.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

This is a devolutive appeal from a judgment of the trial court granting the motion for summary judgment in favor of defendants, Delphine Mercedes Esponge Dufrene and Enola Dufrene Danos, against the plaintiffs, Richard J. Dufrene and Harold J. Dufrene, dismissing their suit to terminate their mother’s usufruct over the business known as “Dufrene’s Jewelry.”

The suit was brought by the Dufrene sons against their mother and sister seeking the termination of Mrs. Dufrene’s usufruct over Dufrene’s Jewelry based on alleged waste and abuse of the usufruct. The gist of plaintiffs’ claim is set out in paragraphs 4 and 5 of their amended petition, amending paragraphs 13 and 15 of the original petition, as follows:

“Paragraph 13 of the plaintiffs’ petition is hereby amended to read as follows: “ ‘Upon information and belief, and in view of the foregoing, petitioners believe that the usufructuary, defendant, Del-phine Mercedes Esponge Dufrene, is committing waste on the business known as Dufrene’s Jewelry, by allowing, condoning and supporting the acts of the said Eroy Danos as described above; and is neglecting to properly maintain the business and is abusing the enjoyment of her usufruct by allowing the actions of Eroy Danos described above to take place. All of this is to the detriment of the naked owners, the petitioners herein, Richard J. Dufrene and Harold J. Dufrene. As usu-fructuary, defendant Delphine Mercedes Esponge Dufrene is responsible for the prudent management of the store. Defendant, Delphine Mercedes Esponge Du-frene, has no business experience or education, nor is she qualified to manage or supervise the management of the business known as Dufrene’s Jewelry. By allowing the above described actions of Eroy Danos, she is abusing the enjoyment of her usufruct.’
“Paragraph 15 of the plaintiffs’ petition is hereby amended to read as follows: “ ‘Defendant, Enola Dufrene Danos, as a co-owner of the naked ownership in indi-visión of the store known as Dufrene’s Jewelry, has a substantial interest in the outcome of this proceeding, and the inclusion of her as a party in this suit is absolutely necessary to protect her rights in the property. Petitioners, Richard J. Dufrene and Harold J. Dufrene, have invited defendant, Enola Dufrene Danos, to participate in this proceeding as a co-plaintiff due to her status as an indispensable party to this action. Defendant, Enola Dufrene Danos, has refused to join in this action; consequently, petitioners have joined her as a party defendant.”

The basis for defendants’ motion for summary judgment was stated generally “as will appear from the pleadings, the attached affidavits of Delphine Mercedes Es-ponge Dufrene and Edward J. Ayo, including their attachments (Judgment of Possession and Inventory in the Succession of Gilbert Dufrene), there is no genuine issue as to material fact, insofar as plaintiffs’ demand against movers is concerned, and that movers are entitled to summary judgment rejecting the plaintiffs’ demand against them as a matter of law.” The plaintiffs filed a memorandum in opposition. The pertinent portion of the pleadings has been set out above. The defendants denied the quoted allegations in their answer. The Judgment of Possession recognizes Mrs. Dufrene as the surviving spouse and sends her into possession of an undivided one-half interest in the business known as Dufrene’s Jewelry (along with other movable and immovable property), and recognizes her legal usufruct over the other half of said property. The children were recognized as the sole legal heirs and sent into possession of the other half of the community property, subject to their mother’s usufruct. The inventory appraised the value of the business at a figure of $6,643.83. There were affidavits of Mrs. Dufrene (who signs by her mark, with her daughter as one of the witnesses) and of Edward J. Ayo, who stated that he was the accountant and bookkeeper of Dufrene’s Jewelry, and that the business was “a sole proprietorship” of Mrs. Dufrene and that the net worth of the business increased from $119,742.66 in 1975 to $143,458.49 in 1979.

Mrs. Dufrene’s affidavit is as follows:
“STATE OF LOUISIANA
“PARISH OF LAFOURCHE
“BEFORE ME, the undersigned authority, personally came and appeared Del-phine Mercedes Esponge Dufrene, who after being duly sworn, did depose and say:
“That she is the widow of the late Gilbert Dufrene; that she is the mother of Richard J. Dufrene, Harold J. Dufrene and Enola Dufrene Danos; that at the time of the death of her husband she was placed in possession of the business known as Dufrene’s Jewelry as the owner of an undivided one-half Qh) interest and as the usufructuary of the other undivided one-half (Va) interest; that the Du-frene’s Jewelry business has been continuously operated since the death of her husband until the present time as a sole proprietorship in her own name; that her three children primarily managed the business until 1975; since that time the business has been managed by Enola Du-frene Danos and her husband, Eroy Da-nos; that her other children, Richard J. Dufrene and Harold J. Dufrene, have each established his own jewelry store in competition with her; and that the sole source of her income since the death of her husband has been from the business known as Dufrene’s Jewelry, except social security during the last two years. (Delphine Mercedes Esponge Dufrene, not knowing how to sign her name, has hereunto affixed her ordinary mark.)
“Witnesses to mark:
“/s/ Enola D. Danos _/s/x_ Delphine E. Dufrene
“/s/ Kevin Danos_
“Sworn to and subscribed before me this 11th day of the month of February, 1981.
“/s/ Maurice J. Serpas
“Notary Public”
Mr. Ayo’s affidavit is as follows:
“STATE OF LOUISIANA
“PARISH OF LAFOURCHE
“BEFORE ME, the undersigned authority, personally came and appeared Edward J. Ayo, who after being duly sworn, did depose and say:
“That he is a resident of legal age of the Parish of Lafourche, State of Louisiana; that he is an accountant; that he has engaged in the accounting practice for over thirty-five (35) years; that he has attended numerous seminars, both private and sponsored by the United States Internal Revenue Service; that he has been the accountant and bookkeeper for the business known as Dufrene’s Jewelry for over fourteen (14) years; that said business is a sole proprietorship being owned by Mrs. Delphine Mercedes E. Du-frene; that the net profits from the aforesaid as shown on the profit and loss statements as prepared by him and attached to the tax returns were:
“1975 $ 9,862.12
1976 $16,099.55
1977 $11,325.03
1978 $10,134.32
1979 $10,658.07
“that the net worth of Dufrene’s Jewelry has increased from $119,742.66 in 1975 to $143,458.49 in 1979; that he has prepared the attached balance sheets dated December 31,1975 and December 31,1979; that as part of his services, he reconciles the bank statements; and that he not only handles the filing of all sales tax, labor and other reports but also prepares the personal income tax returns for Mrs. Del-phine Mercedes E. Dufrene.
“/s/ Edward J. Ayo
“Sworn to and subscribed before me this 14th day of the month of February, 1981.
“/s/ L. Charles Caillouet
“Notary Public
“Dufrene’s Jewelry
Mercedes Dufrene
P O Box 428
Cut Off La 70345
“Balance Sheet — December 31, 1979
“ASSETS:
Cash on Hand and In Bank 1396.61
Accounts Receivable 6000.00
Inventory 180831.14
Building 77083.58
Reserve for Depreciation 24281.37 52802.21
Air Conditioning Unit 12939.35
Reserve for Depreciation 11645.46 1293.89
Furniture & Fixtures 36344.85
Reserve for Depreciation 32610.41 3734.44
Sign 1036.10
Reserve for Depreciation 932.49 103.61
Engraver 699.89
Reserve for Depreciation 489.63 210.26
Sign-June 1977 582.40
Reserve for Depreciation 145.60 436.80
Total Assets = = = = = = = — — 246808.96
“LIABILITIES:
Accounts Payable Unknown
Notes Payable - Citizens Bank & Trust Co. 61191.25
Notes Payable - Eroy Danos 42159.22
Total Liabilities = = = = = = = = 103350.47
Net Worth = = = = = = = = = 143458.49
246808.96
“The land that the building is situated on is not included in the business balance sheet on account of it being owned in indivisión.
“Submitted by,
“/s/ Edward J. Avo
“Edward J. Ayo
“Accountant
“Dufrene Jewelry
Mercedes Dufrene
P 0 Box 428
Cut Off La 70345
“Balance Sheet — December 31, 1975
“ASSETS:
Cash on Hand and In Bank (8720.74)
Accounts Receivable 6000.00
Inventory 152076.90
Building 77083.58
Reserve for Depreciation 13489.65 63593.93
Air Conditioning Unit 12939.35
Reserve for Depreciation 6469.70 6469.65
Furniture & Fixtures 36344.85
Reserve for Depreciation 18072.45 18272.40
Sign 1036.10
Reserve for Depreciation 518.05 518.05
Engraver 699.89
Reserve for Depreciation 209.97 489.92
Total Assets = = = = — — — — 238700.11
“LIABILITIES:
Accounts Payable Unknown
Notes Payable - Citizens Bank & Trust Co. 118957.45
Total Liabilities = = = = = = = 118957.45
Net Worth = = = = = = = = = 119742.66
238700.11
“The land that the building is situated on is not included in the business balance sheet on account of it being owned in indivisión.
“Submitted by,
“/s/ Edward J. Avo
“Edward J. Ayo
“Accountant.”

On March 11, 1981, the trial court held a hearing on the motion for summary judgment and the motion to compel production of documents. It took the matter under advisement and granted the summary judgment of which the plaintiffs complain on this appeal, signing it on May 8. The court did not render a decision on the rule to compel production.

The judge found that no genuine issue as to material fact existed. His judgment states that the sworn affidavit of the accountant and the other exhibits indicated that Dufrene’s Jewelry had prospered greatly during the usufruct of Mrs. Du-frene. However, such a statement does not take into account all of the serious allegations of the plaintiffs against their mother, their sister and their sister’s husband.

A reading of the pleadings, the affidavits, the judgment of possession and the inventory convinces us that the trial court committed error in granting the defendants’ motion. The case is not in a posture for summary judgment. The affidavits do not discount plaintiffs’ serious allegations in this suit. The supporting documents presented by defendants are insufficient to resolve all material fact issues. The record, as it now stands, shows us that there is a genuine issue of material facts. LSA-C.C.P. art. 966; Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980); Tipton v. Lewis, 403 So.2d 806 (La.App. 2 Cir. 1981). All doubt concerning dispute as to a material issue of fact must be resolved against granting the motion for summary judgment and in favor of trial on the merits. Gulf-Wandes Corporation v. Vinson Guard Service, Inc., 393 So.2d 207 (La.App. 1 Cir. 1980), writ denied, 397 So.2d 1359 (La.1981).

We do not believe that the record establishes that there has been no waste or abuse of the assets of the business. LSA-C.C. art. 623. Therefore, a trial on this issue, as well as on any of the other pertinent issues that may develop at the trial on the merits, will be necessary.

This Court plainly stated in Fly v. Hand, 376 So.2d 1016, 1020 (La.App. 1 Cir. 1979):

“From our observation, summary judgments are sparingly granted. The purpose of the summary judgment procedural device is to dispose expeditiously of cases involving only issues of law; hence, the mover for summary judgment has a heavy burden of proving that there is no genuine issue of material fact. In determining the genuineness of the issue, the courts are not permitted to consider the merits of the fact at issue, the credibility of witnesses, or whether or not the party alleging the fact will be able to sustain the burden of proving it. The courts have repeatedly held that a motion for summary judgment is not a substitute for a trial on the merits. Odom v. Hooper, 273 So.2d 510 (La.1973); Batson Lumber Co., Inc. v. Yates, 319 So.2d 853 (La.App. 1 Cir. 1975).”

See also Gulf-Wandes Corporation v. Vinson Guard Service, Inc., supra.

Accordingly, the judgment appealed is reversed and the case is remanded for a trial on the merits. If it is necessary for the trial court to rule on the motion to produce documents, that matter can be presented to it; the trial judge pretermitted that issue in his dismissal.

The costs of this appeal are to be paid by defendants-appellees. All other costs are to await final determination of the case.

REVERSED AND REMANDED.

      . Eroy Danos, husband of Enola Dufrene Da-nos, was also named as a defendant in the suit in a claim for damages. He did not join in the motion for summary judgment and was not mentioned in the judgment.


source: Caselaw Access Project

author: SAVOIE, Judge.

license: Public Domain

text:
    Tom S. GREENBERG, et al. v. SECRETARY OF the DEPARTMENT OF REVENUE AND TAXATION.
    No. 14795.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Art B. Haack, Baton Rouge, for defendant-appellant Secretary of the Dept, of Revenue and Taxation.
    Emmett E. Batson, Baton Rouge, for plaintiffs-appellees Tom S. Greenberg and Dr. E. Pailet.
    Before ELLIS, PONDER and SAVOIE, JJ.
   SAVOIE, Judge.

This case arises from a ruling of the Board of Tax Appeals adverse to the Secretary of the Department of Revenue and Taxation, appellant herein. The adverse ruling was rendered on February 6, 1980. Rule 14 of the Board of Tax Appeals provides: “Rehearing may be granted on application filed within seven days after notice of judgment has been received by the applicant.” Allegedly, counsel for the appellant appeared before the Board on the 7th day after notice of judgment had been received and orally asked for a rehearing. The oral motion is not reflected in the record. A formal written motion for rehearing was filed on March 4, 1980. This motion or application for rehearing was denied by the Board of Tax Appeals by judgment signed on January 12,1981. The grounds for denial were that the application for rehearing was not timely filed. On February 2, 1981, the appellant filed a petition for review by the District Court for the 19th Judicial District, Parish of East Baton Rouge, State of Louisiana. A motion to dismiss was filed on behalf of the appellees on April 15,1981; notice of order of judgment was filed June 30, 1981; written reasons for judgment were filed June 30, 1981; and formal judgment was signed July 7, 1981. The judgment of the District Court was that the motion to dismiss was granted and the appeal of the Secretary of the Department of Revenue and Taxation from the decision of the Board of Tax Appeals was dismissed. From the judgment of dismissal, the Secretary has appealed.

The trial judge assigned written reasons which we attach hereto as an appendix. We have carefully examined the record and find that the reasons assigned by the trial judge are fully supported by the record and adopt them as our own.

The judgment appealed from is, therefore, affirmed, at appellant’s cost.

AFFIRMED.

‘APPENDIX”

TOM S. GREENBERG, ET AL. VS. SECRETARY OF THE DEPARTMENT OF REVENUE AND TAXATION

NUMBER 243,532 DIVISION D 19TH JUDICIAL DISTRICT COURT PARISH OF EAST BATON ROUGE STATE OF LOUISIANA

WRITTEN REASONS FOR JUDGMENT

This matter is before the court on a motion to dismiss appeal by Tom S. Greenberg and Dr. E. Pailet (appellees). Judgment adverse to the Secretary of the Department of Revenue and Taxation (appellant) was rendered by the Board of Tax Appeals on February 6, 1980. Rule 14 of the Board of Tax Appeals rules provides: “Rehearing may be granted on application filed within seven days after notice of judgment has been received by the applicant.”

On the seventh day, counsel for appellant appeared before the Board, noted that it was his last day to apply for a rehearing and asked for more time. Evelyn G. Gravel, Chairman of the Board of Tax Appeals testified that she told him, “We’ll protect your rights.” The application for rehearing was filed on March 4, 1980. This application for rehearing was denied by a judgment signed on January 12, 1981. Appellant filed its Petition for Review on February 2, 1981. Appellees argue that because the application for rehearing was not timely filed, it did not extend the time for filing of the petition for review and that the appeal should be dismissed.

The question before the court is whether the Board of Tax Appeals has the authority to waive the operation of its rules. The Board’s authority in these matters is statutory. R.S. 47:1413 provides:

In all other matters regarding the conduct of its hearings, the Board may prescribe and promulgate rules and regulations not inconsistent with law or the provisions of this chapter, which rules and regulations when prescribed, adopted, and promulgated shall be binding upon parties litigant in any cause over which the jurisdiction of this Board shall extend.

While the Board may change its rules pursuant to proper procedure, absent special circumstances, an administrative agency may not waive, suspend, or modify the operation of its own rules and regulations in individual cases. No special circumstances are apparent in this matter, and the above rule is mandatory: “shall be binding ...” Therefore, the application for rehearing was untimely. As such, it did not interrupt or suspend the running of time for the filing of a petition for judicial review under R.S. 47:1434.

For the above reasons, appellees’ motion to dismiss appeal is granted. Judgment will be signed accordingly.

BATON ROUGE, LOUISIANA, this 30th day of June, 1981.

/s/ Melvin A. Shortess JUDGE


text:
    Viola JOHNSON v. HOSPITAL AFFILIATES INTERNATIONAL, INC., et al.
    No. 14798.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Rehearing Denied July 13, 1982.

      Robert E. Tillery, Baton Rouge, for plaintiff-appellant Viola Johnson.
    Donald S. Zuber, Baton Rouge, for defendant-appellee Hosp. Affiliates Intern., Inc., and Hosp. Affiliates of Baton Rouge Inc., d/b/a Doctor’s Memorial Hosp.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

This is an appeal by plaintiff, Viola Johnson, individually and as administratrix of the estate of David Johnson, from a judgment in favor of defendants, Hospital Affiliates International, Inc. and Hospital Affiliates of Baton Rouge, Inc. d/b/a Doctor’s Memorial Hospital, dismissing plaintiff’s suit.

Viola Johnson, individually and as admin-istratrix of the estate of David Johnson, sued the defendants, seeking to recover a refund of an overpayment for hospital treatment allegedly due her by Hospital Affiliates International, Inc., and Hospital Affiliates of Baton Rouge, Inc. d/b/a Doctor’s Memorial Hospital. The defendants denied any indebtedness to the plaintiff, and assert that they were legally obligated to make the refund to Prudential Insurance Company, which had made the payment, and that they have made such refund to Prudential Insurance Company.

On June 14, 1978, David Johnson, husband of plaintiff, within the course and scope of his employment with Eastern Gas & Fuel Company, d/b/a Port Allen Marine Service, suffered a stroke. Johnson entered Doctor’s Memorial Hospital on the same date where he received treatment until his death on July 7, 1978. The total cost of hospital treatment was $7,861.17. On September 6, 1978, Prudential Insurance Company of America, purportedly under the employees’ group health insurance policy with Port Allen Marine Service, paid to the hospital, on behalf of David Johnson, the sum of $5,857.00, leaving a balance owed of $2,004.17. Plaintiff, the surviving widow, then made a claim against Port Allen Marine Service and Aetna Casualty & Surety Company for worker’s compensation surviv- or’s death benefits. A compromise settlement was judicially approved, under which Aetna was to pay plaintiff the sum of $20,-000.00, together with medical expenses of $7,927.26. On December 22, 1978, pursuant to the judgment, Aetna paid to defendants the sum of $7,196.26. When this payment was received by the hospital, the account of David Johnson reflected an overpayment of $5,192.09. Then, on January 2, 1979, the defendants refunded the amount of the overpayment to Prudential. This precipitated the instant suit. As stated above, the trial court rendered judgment in favor of the defendants, which judgment has been appealed. We affirm.

The record establishes that Prudential had written a check to the hospital covering a portion of Johnson’s hospital bill. When Aetna made its payment, causing the hospital records to reflect an overpayment, the hospital refunded the overpayment, the sum of $5,192.09 to Prudential, which had paid it.

The Civil Code categorically states, in LSA-C.C. art. 2301:

“He who receives what is not due to him, whether he receives it through error or knowingly, obliges himself to restore it to him from whom he has unduly received it.”

The evidence shows beyond question that the sum of money involved was received by the hospital from Prudential, not Johnson or his estate, albeit on his behalf. The hospital was obligated to refund it to Prudential. See DeVillier v. Highlands Insurance Company, 389 So.2d 1133 (La.App. 3 Cir. 1980). The rights of Johnson, his surviving spouse, or his estate relative to any claim against Prudential are not before this Court.

Plaintiff’s pleadings show that her claim is based upon three alternative theories for recovery: 1) conversion; 2) breach of contract; and 3) unjust enrichment. If plaintiff is to recover, it must be based upon a theory of conversion, because there was no contract between plaintiff and defendants requiring overpayments to be reimbursed directly to the plaintiff. For the theory of unjust enrichment to apply, five requisites must be satisfied: 1) an enrichment, 2) an impoverishment, 3) a connection between the enrichment and impoverishment, 4) an absence of “justification” or “cause” for the enrichment or impoverishment, and 5) an absence of any other remedy at law. Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967). In this instance, the plaintiff has not shown that'the defendants were enriched or that she was impoverished. She has made no payment. It was Prudential who made the overpayment or erroneous payment. Ordinarily, a payment by a debtor to the wrong person does not impoverish the creditor at all because the creditor’s credit is not in any way diminished by the debtor’s mistaken payment. The only person who has a right of action is the one from whom the payee has unduly received it (in this case, Prudential). Louisiana and Southern Life Insurance Company v. New Orleans Steamship Association, International Longshoremen’s Association (AF of L-CIO) Welfare Plan, 384 So.2d 594 (La.App. 4 Cir. 1980).

We turn now to the appellant’s conversion theory for recovery. In Lincecum v. Smith, 287 So.2d 625, 627 (La.App. 3 Cir. 1973), writ refused, 290 So.2d 904 (La.1974), the Court said:

“Conversion is a distinct act of dominion wrongfully exerted over another’s property in denial of or inconsistent with the owner’s rights therein. Hamilton v. Travelers Indemnity Co., supra [248 So.2d 617 (La.App. 3 Cir. 1971) ]; 89 C.J.S. Trover and Conversion § 1 (1955); 18 Am. Jur.2d Conversion § 1 (1965).
“In Importsales, Inc. v. Lindeman, 231 La. 663, 92 So.2d 574 (1957), quoting from 89 C.J.S. Trover and Conversion § 3 (1955) it is stated:
“ ‘In order to constitute a conversion there must be either some repudiation of the owner’s right, or some exercise of dominion over it inconsistent with such right.

There is no showing that the funds “belonged” to Viola Johnson in any capacity; moreover, the record does not establish that Johnson or his estate had an ownership interest in any excess payment, or overpayment. Appellant having no ownership interest in the funds, conversion could not have taken place. We thus find no merit in appellant’s argument relating to the theory of conversion.

Accordingly, for the foregoing reasons, the judgment is affirmed at appellant’s costs.

AFFIRMED.


author: CARTER, Judge:

text:
    WES-T-ERRE DEVELOPMENT CORPORATION v. The PARISH OF TERREBONNE, Through the POLICE JURY OF the PARISH OF TERREBONNE, Louisiana.
    No. 14800.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Rehearing Denied July 13, 1982.

      Robert J. Prejeant, Houma, for plaintiff and appellant.
    A. D. O’Neal, Sr., Charles Gary Blaize, Houma, for defendant and appellee.
    Before LEAR, CARTER and LANIER, JJ.
   CARTER, Judge:

This is a suspensive appeal by Wes-T-Erre Development Corporation (Wes-T-Erre) from a judgment denying Wes-T-Erre an injunction against the Terrebonne Parish Police Jury.

Wes-T-Erre asked for a temporary restraining order and preliminary injunction and perpetuation of a preliminary writ of injunction directed to the Parish of Terre-bonne through the Police Jury of the Parish of Terrebonne, Louisiana, restraining, enjoining, and prohibiting the defendant, its agents, employees, and all of the persons, firms, or corporations acting or claiming to act on behalf of the Police Jury from blocking, destroying, or in any way interfering with the use of the driveway located on the northern portion of Gaylord Plaza Shopping Center at its intersection with Idlewild Drive. Attached to the petition was a copy of a letter from the police jury dated January 20, 1981, which stated that the jury refused to grant a permit to Wes-T-Erre to construct the driveway and that a resolution had been passed on September 24,1980, by the police jury and in the presence of representatives of Wes-T-Erre, authorizing the Department of Public Works to resist construction of the driveway and directing the permit committee of the police jury to continue to resist granting a permit. The letter further stated that unless Wes-T-Erre removed the driveway within ten (10) days from receipt of the letter, the police jury would remove it and send the bill for removal to Wes-T-Erre. The temporary restraining order was granted and subsequently extended. Judgment was rendered denying the preliminary injunction on May 7, 1981.

FACTS

Wes-T-Erre, a wholly owned subsidiary of Grand Caillou Packing Company (Grand Caillou), bought the property on which the shopping center is located from Grand Cail-lou on November 3, 1972. At that time the northern boundary of the property was totally located along Idlewild Subdivision, and Idlewild Drive did not border the property. Two entrances to the shopping center were constructed on West Park Drive which borders the shopping center on the west.

On November 6,1972, Wes-T-Erre sold to Grand Caillou a parcel of land known as Parcel 21-1 (land comprising the present location of Idlewild Drive). On November 9, 1972, Grand Caillou sold Parcel 21-1 to the State of Louisiana. After the sale, Idlewild Drive was realigned to run generally east-west and to meet the Edward Street Bridge which runs generally east-west on the west side of West Park Drive. Idlewild Drive and the shopping center are on the eastern side of West Park Drive. West Park Drive is a one-way street going north. The realignment of Idlewild Drive caused it to run along the northern border of the shopping center. Part of the relocated Idlewild Drive was constructed on Parcel 21-1, and it is at this point (where Idlewild Drive crosses Parcel 21-1) that the driveway in dispute was constructed.

In 1978, Wes-T-Erre opened a third access onto West Park Drive. This access was close to the intersection of West Park and Idlewild, and created a dangerous traffic situation because persons who wanted to enter the shopping center from the Edward Street Bridge often proceeded against traffic for a short distance to use this access. Wes-T-Erre agreed with the police jury and the State Highway Department that the access should be closed. There was a general understanding that Wes-T-Erre would then try to get property rights to establish another access off of Idlewild Drive at approximately 100 to 150 feet from the intersection of Idlewild Drive with West Park Avenue. Wes-T-Erre was not able to negotiate a purchase of land or right of way at that location. On or about September 24, 1980, Wes-T-Erre attempted to construct the driveway approximately 47 feet from the intersection of Idlewild Drive with West Park Drive.

On September 24, 1980, the Terrebonne Parish Police Jury duly passed and adopted the following resolution:

RESOLUTION
WHEREAS, Wes-T-Erre Development Corporation, a shopping center commonly known as “Gaylords Shopping Center” has applied for a permit to construct a driveway connecting said shopping center with Idlewild Drive near where said Idlewild Drive intersects Louisiana Highway 659, and
WHEREAS, there already exists a dangerous situation at the intersection of State Highway 659 and Idlewild Drive; and
WHEREAS, the citizens living on Idle-wild Drive have overwhelmingly expressed opposition to the opening of said driveway onto Idlewild Drive; and
WHEREAS, the Police Jury of Terre-bonne Parish is convinced that it would not be in the best interest of the citizens of Terrebonne Parish to allow the opening of the driveway as requested by WesT-Erre Development Corporation; and
WHEREAS, the Police Jury deems it to be dangerous and hazardous and involving the safety of the citizens of Ter-rebonne Parish and concurring with the opposition to allowing said driveway construction.
NOW, THEREFORE, BE IT RESOLVED that upon recommendation of legal counsel, the Terrebonne Parish Police Jury rejects the application of Wes-T-Erre Development Corporation for the construction of said driveway and directs the Terrebonne Parish Department of Public Works, as well as the Permit Committee of the Terrebonne Parish Police Jury, to deny said application and resist the installing of the proposed driveway, and that Wes-T-Erre Development Corporation restore proposed driveway to its original state.

There is nothing in the record to show that the Terrebonne Parish Police Jury ever had in effect a general ordinance regulating the construction or location of driveways or other means of access to parish roads. Further, there is nothing in the record to show that the police jury had an established procedure to apply for and obtain a permit to establish a private drive or access to parish roads.

Wes-T-Erre proceeded to construct the access over and across Parcel 21-1 (property now belonging to the State of Louisiana) connecting it with Idlewild Drive. The driveway was completed on or about January 19, 1981, and on January 20, 1981, the police jury sent a certified letter to Mr. Lapeyre, Vice-President of Wes-T-Erre, demanding removal of the driveway. On February 3, 1981, Wes-T-Erre filed this suit for injunction.

Wes-T-Erre filed a supplemental and amending petition claiming that the police jury should be estopped from removing the driveway because of certain representations of an individual member or members of the police jury. Wes-T-Erre claimed that there was no ordinance regulating driveway construction in the parish and that the ordinance the police jury relied on, a drainage ordinance found in Section 7-20 of the Parish Code (said Section having been codified from Ordinance No. 1933, Section 5) is, in fact, not applicable to driveway construction. In the alternative, Wes-T-Erre claimed that if Section 7-20 was applicable, then Wes-T-Erre had complied with the Section.

Wes-T-Erre further claimed that the September 24, 1980 resolution was without legal effect because a resolution does not have the force and effect of law. Finally, Wes-T-Erre alleged that if the resolution and the drainage ordinance were found to be applicable, then both were unconstitutional.

The trial judge found that Wes-T-Erre was not granted a permit to construct the driveway and that the police jury acted within its police power to provide for the safety of the public. He further found that all resolutions and ordinances adopted by the police jury were in proper execution of its police power and were not arbitrary or discriminatory and therefore not unconstitutional.

The trial court found that the following statutes were passed recognizing that pub-lie safety required that there be one governing and controlling authority concerning highways and roads in the parish road system and that that authority logically is placed with the police jury.

La.R.S. 33:1236 in part provides:

The Police Juries shall have the following powers:

“(20) To pass all ordinances and regulations which they deem necessary to govern and regulate the laying out of subdivisions, re-subdivisions, roads, streets, alleys, ways, subways, viaducts, bridges, parks, parkways, boulevards, playgrounds, community centers and other public buildings, grounds, or improvements, and the location, relocation, widening, removal, vacation or extension or other improvements of such existing public works; the plating of land into lots, roads, streets, and other dedicated or private ways; the location, re-location, development, routing and re-routing of transit and transportation line, which in the opinion of the Police Jury are in the interest of the systematic planning of the parish . ... ”
“(28) To enact ordinances regulating the traffic on all public roads outside of incorporated municipalities and within recognized subdivision other than state constructed and maintained streets and highways, including but not by way of limitation the right to establish speed limits and speed zones, to regulate the parking of vehicles, to establish rules and regulations for the movement of traffic, including the designation of one way streets, and for such other similar rules and regulations; ...”
La.R.S. 48:481 provides as follows:
“Parish governing authorities may pass all ordinances which they think necessary relative to roads, bridges, and ditches and may impose such penalties to enforce them as they think proper.”
La.R.S. 48:512 provides as follows:
“No person shall close, obstruct, or change any legal road except upon order of the governing authority of the parish.
If any public road is closed, obstructed, or changed in violation of the provisions of this section, the governing authority of the Parish shall summarily open the road, remove all obstructions therefrom, and restore to its former condition, at the expense of the person who closed, obstructed or changed the road.”

The trial judge concluded that Idlewild Drive was a legal road within the parish system in accordance with La.R.S. 48:512, and that Wes-T-Erre by constructing the driveway from the shopping center to Idle-wild Drive changed the public road (Idle-wild Drive) within the meaning and intention of the legislature as expressed in La. R.S. 48:512 which provides that when such change occurs the governing authority of the parish shall summarily restore the road to its former condition at the expense of the person who made the change.

Wes-T-Erre has appealed and assigns ten assignments of error. Appellant contends that the trial court erred as follows: 1) in inferring that the driveway was unsafe; 2) in holding that the police jury’s actions and enactments were constitutional; 3) in its overall finding that the police jury had validly exercised the authority it had under state statutes to regulate driveway construction; 4) in relying upon LSA-R.S. 33:1236(20), (28) and R.S. 48:481 as authority for the police jury to regulate the driveway in question because these statutes require the jury to pass an Ordinance before it can regulate the activities described in the statutes; 5) in relying upon LSA-R.S. 48:512 as authority for the Terrebonne Parish Police Jury to regulate the driveway in question because this statute is clearly inapplicable to this situation; 6) in relying on Section 7-20 of the Parish Code of Terre-bonne Parish because this Ordinance deals solely with obstruction of drainage and there was no evidence showing the driveway blocked drainage in any fashion; 7) in its obstensible finding that Wes-T-Erre was obligated to get a Court order before constructing the driveway and in its finding that Wes-T-Erre resorted to self-help in building the driveway; 8) in finding that the police jury was not estopped from opposing the driveway; 9) in refusing to allow the testimony of two witnesses dealing with representations made to a Wes-T-Erre officer concerning construction of the driveway; and, 10) in inferring that a restriction in an act of sale prevented the driveway from being built.

ASSIGNMENTS OF ERROR NOS. 1 and 2

The police power is a power inherent in every governing authority to govern men and things and, within constitutional limits, to prescribe regulations for the promotion of public health, safety, morals, and general welfare. Hi-Lo Oil Company v. City of Crowley, 274 So.2d 757 (La.App. 3rd Cir. 1973), writ refused 277 So.2d 673 (La.1973). Kotch v. Board of River Port Pilot Com’rs., 209 La. 737, 25 So.2d 527 (1946), affirmed 330 U.S. 552, 67 S.Ct. 910, 91 L.Ed. 1093, rehearing denied 331 U.S. 864, 67 S.Ct. 1196, 91 L.Ed. 1869; Fernandez v. Alford, 203 La. 111, 13 So.2d 483 (1943).

La.Const, art. 6, § 9 provides as follows:
(A) Limitations. No local governmental subdivision shall (1) define and provide for the punishment of a felony; or (2) except as provided by law, enact an ordinance governing private or civil relationships.
(B) Police Power Not Abridged. Notwithstanding provision of this Article, the police power of the state shall never be abridged.

The test of whether an ordinance or regulation is a constitutionally valid exercise of police power depends on whether, under all circumstances, the regulation is reasonable and whether it is designed to accomplish a purpose properly falling within the scope of the police power. Hi-Lo Oil Company v. City of Crowley, supra; Reynolds v. Louisiana Board of Alcoholic Bev. Con., 249 La. 127, 185 So.2d 794 (1965).

As long as the act of the governing body is valid and constitutional, the name given to the act, whether ordinance or resolution, is immaterial. See Merchant v. Fuselier, 365 So.2d 854 (La.App. 3d Cir. 1978), writ refused 368 So.2d 137 (La.1979).

The court in the Hi-Lo Oil Company case set forth the appropriate analysis to be used in determining the validity of an ordinance. It stated the following:

“The ordinance should be upheld if any set of facts can be conceived from which it could be concluded that there is reasonable relationship between its provisions and the public health, safety, morals or general welfare. Everhardt v. City of New Orleans [253 La. 285, 217 So.2d 400], supra. In order to justify a holding that the legislative action is arbitrary, unreasonable or unnecessary, it must be shown that there was no room for a reasonable difference of opinion, and that there was no substantial evidence upon which the legislative action could have been justified. Torrance v. Caddo Parish Police Jury, 119 So.2d 617 (La.App. 2 Cir. 1960); Archer v. City of Shreveport, 85 So.2d 337 (La.App. 2 Cir. 1956).
“In order that a city ordinance may be sustained as the legitimate exercise of the city’s police power, however, the legislation must have for its object the prevention of some offense or manifest evil, or the preservation of the public health, safety, morals or general welfare. The exercise by the city of its police power must have a substantial basis if it is to be upheld. The purported exercise of that power cannot be made a mere pretext for legislation that does not fall within it. There must be some substantial connection between the purpose of the regulation and the provisions of it, and the provisions must in some appropriate manner be designed for and tend toward the accomplishment of the legitimate objects for which the power is exercised. City of New Orleans v. Southern Auto Wreckers, 193 La. 895, 192 So. 523 (1939); Schwegmann Bros. v. Louisiana Board, Etc., 216 La. 148, 43 So.2d 248 (1949); City of Lake Charles v. Hasha, 238 La. 636, 116 So.2d 277 (1959); Arkansas Louisiana Gas Company v. Louisiana Department of Highways, 104 So.2d 204 (La.App. 2 Cir. 1958).”

Further, an ordinance, like an act of the legislature, is presumed to be constitutional, and the party attacking it has the burden of establishing by clear evidence that the ordinance is unconstitutional. Hi-Lo Oil Company v. City of Crowley, supra. Everhardt v. City of New Orleans, 253 La. 285, 217 So.2d 400 (1969); Hunter v. City of Shreveport, 216 So.2d 140 (La.App. 2d Cir. 1968), writ refused, 253 La. 323, 217 So.2d 414 (1969).

Considerable testimony at trial of this case related to the safety problems posed by the proximity of the driveway to the intersection of Idlewild Drive and West Park Drive. There was expert witness testimony as to possible hazardous situations which may arise because of the location of the driveway.

Courts are concerned only with the question of whether the governing authority acted within the scope of its police power and whether such action was unreasonable, arbitrary, or oppressive. Scott v. City of West Monroe, 95 So.2d 343 (La.App. 2d Cir. 1957).

Further, a court will not set up its judgment against that of the governing authority as to the method employed to accomplish a legitimate object unless the method is clearly unreasonable. The method employed need not necessarily be the best. Hi-Lo Oil Company v. City of Crowley, supra.

The police jury found that there would be a hazardous situation caused by the location of the proposed driveway, and it acted within its police power to protect the safety of the traveling public by passing a resolution prohibiting construction of the driveway. Though the trial judge did not make a specific finding as to safety, he did find that all resolutions and ordinances adopted by the police jury were in proper execution of its police power and were not arbitrary or discriminatory and were not unconstitutional. There was ample evidence and testimony before him on which to base these conclusions. We must assume that because he did not find the police jury’s acts to be arbitrary or discriminatory that he did see a need for the resolution passed. The record indicates that there was a reasonable factual basis for his conclusions, and this court cannot find that he was manifestly erroneous or clearly wrong. Thus, this court will not disturb his findings. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

ASSIGNMENTS OF ERROR NOS. 3 and 4

Appellant contends that the trial judge erred in finding that the police jury had validly exercised its authority under Louisiana law to regulate driveways and further erred in relying upon LSA-R.S. 33:1236(20), (28) and R.S. 48:481.

Police juries are also vested with specific authority by the legislature to pass all ordinances relative to roads and may impose such penalties to enforce them as they think proper. La.R.S. 48:481. Specific powers are provided in La.R.S. 33:1236(20), (28).

It has long been recognized that police juries are vested with control over roads and streets in their system and may make reasonable regulations for their use and are only precluded from exercising that control in an arbitrary and discriminatory manner. Scott v. City of West Monroe, 95 So.2d 343 (La.App. 2d Cir. 1957); City of Baton Rouge v. Hutton, 218 La. 371, 49 So.2d 613 (1950); City of New Orleans v. Badie, 146 La. 550, 83 So. 826 (1920).

Regulating traffic on parish roads includes being able to determine on a reasonable basis whether a private driveway may connect with a parish road. This decision cannot be arbitrary.

Although not dealing specifically with the statutes applicable in the instant case, language in Herlitz v. City of Baton Rouge, 298 So.2d 140 (La.App. 1st Cir. 1974), writ refused, 302 So.2d 16, is appropriate.

In Herlitz, suit was filed to enjoin the city from demolishing an existing section of North Fifth Street adjacent to plaintiff’s land and from constructing a public rest area or “mini-park” where the street formerly was located. The court denied the injunction and said the following:

“He (Chief Engineer of the Department of Public Works) denied that plaintiffs would be arbitrarily denied ingress to or egress from their property from North Fifth Street. Such driveway as might be required would be granted or denied depending on the type of permit desired and whether such ingress or egress constituted a traffic hazard. We deem this decision on appellees part to be within the police power granted to a municipality in the control and authority vested in it relating to the installation, maintenance, relocation, and supervision of public streets.”

We find that the resolution passed by the Terrebonne Parish Police Jury was a valid exercise of its police power and was under authority granted it by legislature.

The resolution passed in this case was passed at about the same time Wes-T-Erre began construction of the driveway. In Hi-Lo Oil Company v. City of Crowley, supra, the court said, “The law is settled that the owner of city property holds that property at all times subject to the lawful exercise of the police power of that municipality, and that an ordinance adopted by the city in the legitimate exercise of its police power will not be decreed to be void simply because it restricts the use of some improvements which the owner had lawfully constructed on the property prior to the adoption of that ordinance. See Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643; City of Shreveport v. Kansas City, S & G. Ry. Co., 167 La. 771, 120 So. 290 (1929); City of Shreveport v. Kansas City Southern Ry. Co., 193 La. 277, 190 So. 404 (1939); State ex rel. Fitzmaurice v. Clay, 208 La. 443, 23 So.2d 177 (1945); Ransome v. Police Jury of Parish of Jefferson, 216 La. 994, 45 So.2d 601 (1950)....”

ASSIGNMENT OF ERROR NO. 5

Appellant is correct that La.R.S. 48:512 prohibiting a person from changing a public road is not applicable to facts herein presented. However, because of our reasoning as set forth above, it is unnecessary to consider this assignment of error.

ASSIGNMENT OF ERROR NO. 6

The record contains no evidence concerning the applicability of Section 7-20 of the Terrebonne Parish Code. Because the judgment is affirmed on other grounds, this assignment of error will not be discussed.

ASSIGNMENTS OF ERROR NOS. 8 and 9

Appellant contends that the trial court erred in finding that the police jury was not estopped to oppose the driveway and further erred in refusing to allow the testimony of two police jurors concerning a conversation with Mr. Lapeyre of Wes-T-Erre. Appellant concedes that a police juror acting alone or in unison with another member or members, without a proper meeting, cannot obligate a political body to an affirmative or binding course of action. The essence of the plea of estoppel is that Wes-T-Erre voluntarily agreed to close one of the three driveways originally entering into West Park Drive at the request of the police jury and the Louisiana Department of Highways. It was Wes-T-Erre’s understanding that the individual police jurors would not oppose the driveway in question.

Mr. Duet and Mr. Glover were the police jurors who had certain meetings with Mr. Lapeyre of Wes-T-Erre and whose testimony was objected to on the trial of the matter. Clearly, any representations that an individual juror might have made to Wes-T-Erre were without apparent authority. A police jury can only act as a body and not individually. Their testimony was hearsay and was properly excluded. Neither Glover nor Duet are parties litigant in this proceeding and were not and could not have been acting in an official capacity. The hearsay objection was properly sustained.

The record does not reveal any affirmative action on behalf of the police jury or by any duly authorized member or representative of the police jury as concerns the trading of one drive for another. If appellant had obtained a resolution of the police jury, setting forth that in return for the closing of one drive another drive in the approximate location of the one in question would be allowed, a different situation would be presented. However, such is not the case.

ASSIGNMENTS OF ERROR NOS. 7 and 10

Assignments of error nos. 7 and 10 are not relevant to a correct determination of the issue on appeal and therefore will not be discussed.

For the above reasons the decision of the trial court is affirmed. All costs are to be paid by appellant.

AFFIRMED.

      . Wes-T-Erre is the owner of the Gaylord Plaza Shopping Center.

      . West Park Drive is Louisiana Highway 659.

      . Idlewild Drive is a part of the parish road system under the direction and responsibility of the Terrebonne Parish Police Jury.

      . The trial judge found that Wes-T-Erre knew of the resolution passed by the police jury at the time construction was begun.

      “1 Plaintiffs still retain 76 feet front on the south side of Convention Street.”


text:
    Willie E. BRUMFIELD v. PATTERSON & YEARY STEEL COMPANY and Liberty Mutual Insurance Company.
    No. 14810.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Rehearing Denied July 13, 1982.

      Bruce E. Simpson, Kentwood, for plaintiff.
    Darryl D. Sicarelli, Metairie, for defendants.
    Before ELLIS, PONDER and SAVOIE, JJ.
   SAVOIE, Judge.

In this case, Willie Brumfield appeals the denial to him of workers’ compensation benefits.

Brumfield, acting in his capacity as sub-foreman for the Patterson and Yeary Steel Company, ordered a subordinate to do certain work and was met with an adamant refusal. Brumfield called the foreman who promptly fired the subordinate. Brumfield had to ride home from work in a pick-up truck owned by a fellow employee, which pick-up truck also was the transportation for the fired subordinate. During a market stop on the trip home, the angry subordinate suddenly attacked Brumfield without any provocation other than the events already told, smashing his leg with a steel bar. The record reveals that the cause of the attack was the employment-related conflict.

On these facts, the trial court denied workers’ compensation, holding that the injury “arose out of” Brumfield’s employment but was not suffered “in the course of” that employment. (R.S. 23:1031)

Louisiana is among the large majority of American states whose workers’ compensation schemes require that an injury, to be compensable, must “arise out of” and occur “in the course of” employment. Professors Malone and Johnson, in their influential Louisiana Civil Law Treatise “Workers’ Compensation Law and Practice” explain the dual requirement this way:

“The ‘during the course of’ requirement suggests that the trier look into the place and time the accident occurred and what the worker was doing when he was injured, while the ‘arising out of’ requirement focuses on the character of the risk that brought on the injury.” Page 282

There is no doubt that the trial court was correct in finding that Brumfield’s injury “arose out of” his employment. The risk of harmful conflict with subordinates is a risk directly and substantially related to the duties his employer required of him, and, as was said earlier, the record contains no hint of any non-employment related source of tension between the two men.

Our inquiry, on this appeal, must focus on the trial court’s conclusion that this injury did not happen “in the course of” employment, where it occurred off the employer’s premises and after working hours. Malone and Johnson describe the traditional approach of our courts to the “during the course of” requirement this way:

“The concept of ‘during the course of’ can be envisioned as a circle whose center represents only those accidents that happen while the victim is actively at work, while he is moving from one work spot to another, or is otherwise responding directly to the call of duty — all clearly occurring during the course of employment. As we move slightly away from this center, we encounter other ranges of activities. Closest, perhaps, is the situation of the worker who is alert to the immediate call of duty but who is unavoidably idle at the moment he is injured. Perhaps he awaits some tool that has been sent for or sets aside his shovel while sheltering himself from a sudden shower. Such idleness is dictated by the nature of the work and is comfortably within the inner part of the conceptual circle.”
“If the period of enforced idleness is extended to a matter of hours and the accident occurs at some place other than the work premises (as would be the case for the worker who is injured at home at a time when he is subject to call), any conclusion relating to the ‘during the course of’ requirement becomes very difficult. In terms of our circle we have moved decidedly away from the center and toward the perimeter.”
“The same approach is appropriate for other situations: accidents during lunch hour or coffee break, accidents that happen just as the employee leaves his home to go to work as compared with those that happen as he enters his employer’s plant, accidents that befall a truck driver while he is proceeding on some route that he was ordered to avoid, the slip in the shower at the hotel that breaks the hip of a traveling salesman who was preparing for bed — these and myriad other attendant circumstances that make up the infinite variety of work accidents in terms of time, place, or employee activity all have their proper situs somewhere on the face of the circle that represents the ‘during the course of’ concept. Whether an accident falls near the center or, on the other hand, is posed tenuously near the perimeter is, of course, wholly a matter of estimation on the part of the trier. Clearly, there will be found between these poles every conceivable variation possible.” (Emphasis ours) (Malone & Johnson, “Workers’ Compensation Law and Practice”, p. 284-5)

We agree with Malone and Johnson that this is “a matter of estimation on the part of the trier”.

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

“As was stated in Lisonbee, ... the ‘in the course of’ inquiry brings into focus the time and place relationship between the risk and the employment. The accident in the case at bar occurred both several miles away from the work site and after working hours. Ordinarily, the accident must occur during normal working hours and at the employee’s place of work. Kern v. Southport Mill, [174 La. 432,] 141 So. 19 (La.1932). This Court is mindful of certain exceptions to this general rule, such as the threshold doctrine and the employer-furnished-transportation exception. But counsel for plaintiff has not demonstrated that the case at bar fits into any such exception, and the Court declines to create a new exception or expand an existing one to fit the facts herein. This Court is also mindful of language in Lisonbee, supra, indicating an interdependence between the ‘arise-out-of’ requirement and the ‘course-of’ requirement: A strong showing by the plaintiff with reference to the ‘arise-out-of’ requirement may compensate for a relatively weak showing on the ‘course-of’ requirement, and vice versa. This Court holds that the ‘course-of’ element of the plaintiff’s case is extremely weak; the only link between the accident and the employment, under the ‘course-of’ analysis, is that the accident occurred while the plaintiff was returning home from work. In a workmen’s compensation analysis of the instant case, the ‘arise-out-of' element cannot be strong enough to compensate for an accident occurring after working hours.”

The trial court found, as stated above, that the accident did not occur in the course of Brumfield’s employment. Our review reveals no manifest error on the part of the trial court.

The judgment of the trial court is affirmed.

Appellant is to pay all costs.

AFFIRMED.

      . Lisonbee v. Chicago Mill and Lumber Company, 278 So.2d 5 (La.1973).


text:
    KEM-SEARCH, INC. v. David A. SHEFFIELD d/b/a J-L Petroleum Services.
    No. 14827.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Rehearing Denied July 13, 1982.
    Christopher J. Roy, Alexandria, for appel-lee.
    Michael R. Connelly, Baton Rouge, for appellant.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

This action of nullity was brought by appellant, David A. Sheffield d/b/a J-L Petroleum Services, as a motion for new trial and petition to annul a default judgment rendered against him in a suit on an open account instituted by appellee, Kem-Search, Inc. From a judgment of the trial court upholding the judgment, denying the motion for a new trial and dismissing the claim for annulment, David A. Sheffield has appealed. We affirm.

On February 29, 1980, Kem-Search, Inc. brought a suit against David A. Sheffield d/b/a J-L Petroleum Services to collect the sum of $56,021.35 for certain petroleum products allegedly sold to Sheffield on a verified account attached to the petition. The record reflects that personal service was made on David Sheffield on March 18, 1980. Sheffield filed no answer or responsive pleadings. Thereafter, on May 22, 1980, a preliminary default was taken in the suit. The transcript in the record shows that no answer or opposition was filed by Sheffield as of June 12, 1980, when the matter was brought up on confirmation. The claim was duly proved, and the trial court rendered judgment confirming the default on June 12,1980, and judgment was signed on June 17, 1980. Thereafter, in September, 1980, Sheffield sought, pursuant to LSA-R.S. 13:3471(5) to annul the judgment, claiming that he was not personally served with the petition, but received it from the telephone message box at his receptionist’s desk when he returned to the office on the particular date of the purported service.

A hearing was held on December 8, 1980, in which Sheffield, his wife, Linda Sheffield (a part-time secretary), Allen Sasang, accountant for J-L Petroleum, and Patricia Long and Faye Williams, secretaries, testified, with Michael R. Connelly, counsel for Kem-Search, being called on cross-examination. Various letters and the sheriff’s return were filed as exhibits. After the hearing, the judge took the matter under advisement. On February 17, 1981, Judge Dufreche rendered the following opinion:

“OPINION
“A careful review of the evidence and the information contained in the memo filed on the part of each party convinces the Court that the Default Judgment was properly taken.
“The Court found no real evidence of fraud or ill practices on the part of Plaintiff or its attorney. On the other hand Mr. Sheffield was grossly negligent in the way he represented himself in this matter.
“The Court was not favored with the testimony (or a deposition) of the Deputy Sheriff who made the service. The return showed ‘Personal Service’ which was contradicted by Mr. Sheffield’s testimony only. The Court does not believe that the testimony of Mr. Sheffield alone would overcome the great weight given by the law to the returns of those authorized to serve documents and make returns.
“The Court is of the further opinion that the proof submitted on confirmation of the default was sufficient.
“The Court will sign a Judgment denying the motion for new trial and dismissing Defendant’s claim for annulment.”

Then, on March 3, 1981, the trial judge rendered the judgment denying Sheffield’s motion for a new trial and dismissing his “suit to amend [sic] the judgment.”

The sheriff’s return on a citation, when received by the clerk of court, forms a part of the record of the suit; and is considered prima facie correct. LSA-C.C.P. art. 1292; Hood Motor Company, Inc. v. Lawrence, 334 So.2d 460 (La.App. 1 Cir. 1976), writ denied, 338 So.2d 288 (La.1976). The return of the officer on the citation is given great weight; the burden of proof is on the party attacking the return to establish by a preponderance of the evidence that the return is incorrect. Canterberry v. Slade Brothers, 232 La. 1081, 96 So.2d 4 (1957); League Central Credit Union v. Gagliano, 336 So.2d 931 (La.App. 4 Cir. 1976). A return cannot be impeached by the uncorroborated testimony of the party upon whom service is recited as having been made by the officer. Martinez v. Silverman, 288 So.2d 88 (La.App. 4 Cir. 1974).

Considering the above law and after reviewing Sheffield’s uncorroborated testimony that he was not personally served, we find that he has failed to bear the burden of proving that he was not properly served (by personal service).

At the hearing, Sheffield offered his testimony and that of three witnesses, none of whom could corroborate his testimony that he had not been personally served. The three witnesses, Patricia Long, Faye Williams and defendant’s wife, Linda Sheffield, were only able to testify (as secretaries) as to the way that pleadings and other court papers were generally served by the sheriff’s office on defendant’s office. The accountant referred to above testified about another service entirely. Such testimony is irrelevant to the matter at hand. As a lawyer, Mr. Sheffield probably receives many pleadings which concern matters he is handling for clients, and these may frequently be left with his receptionist. That has nothing whatever to do with this lawsuit. The pleadings and citation we are concerned with in the case at bar constituted a suit against Mr. Sheffield personally on a business matter. The record does not reflect that this citation (and pleadings) were served by that “frequent method” used by the sheriff’s office in cases handled by Mr. Sheffield as a lawyer.

In any event, none of the three witnesses could testify as to whether defendant was or was not personally served on March 18, 1980, with the pleadings and citations in this suit. Mrs. Long testified about some papers being brought to the office by a deputy on March 4, 1980, but she didn’t know what they were; in any case, the date of service in the instant case, according to the return was not March 4, 1980 (it was March 18, 1980).

We find nothing in the record to indicate that defendant’s witnesses were even in his office on the date he was actually served (personally) by the deputy sheriff of Rap-ides Parish. Their testimony does not corroborate Mr. Sheffield’s testimony that he was not served.

Defendant did not call as a witness the deputy sheriff who made the service and executed the return. Sheffield later (after the judge’s decision that he had failed to prove grounds for annulment, February 17, 1981) submitted what purports to be an affidavit of John M. Shevnin, a deputy sheriff, dated March 5, 1981.

Sheffield relies principally on Roper v. Dailey, 393 So.2d 85 (La.1981), on rehearing, for reversal of the trial judge. Cf. dissent of Dennis, J., 400 So.2d 898 (La.1981). While, under the peculiar facts of the Roper case, the Supreme Court did come around to holding that Roper bore his burden of proof that he had not been served as the return stated, the Court, nevertheless, adhered to the prior we(l-settled jurisprudence, reiterating that the challenger in a nullity action bears the burden of proving his case by a preponderance of the evidence, and presumably adhered to the age-old legal creed that credibility of witnesses should be primarily evaluated by the trier of fact. In any event Roper is factually distinguishable: the serving officer in the case at bar did not testify that his “frequent method” of making personal service was at a party’s place of business, as the officer in Roper testified. Furthermore, Mr. Sheffield’s actions throughout (after the service) were those of a defendant who had been served personally with papers in a lawsuit, not the actions of a person who is suddenly surprised to learn that a plaintiff has taken a judgment against him without any forewarning — all of the other circumstances in this case (contrary to Roper) “raise inferences contrary” to Sheffield’s testimony. We conclude, taking the evidence as a whole, that Sheffield failed to offer sufficient credible evidence to support his contentions and that he did not prove by a preponderance of the evidence that he was not personally served with the citation.

As the trial judge stated, Mr. Sheffield did not prove his allegations that the actions of plaintiff’s counsel, Mr. Connelly, in obtaining the default judgment, constituted ill practices or fraud.

Consequently, we amend the judgment dated March 3, 1981, to change the word “amend” in the first decretal paragraph to “annul” and, as thus corrected we affirm the judgment of the trial court at appellant’s costs.

AFFIRMED.

      . LSA-R.S. 13:3471(5):
      “The return of the serving officer on any citation or other legal process is conclusive, unless directly attacked. Such an attack may be made by rule in the action or proceeding, if máde prior to judgment. If made after judgment, the return may be attacked only in a direct action to annul the judgment, which may be brought in the original action or proceeding.”


author: LANIER, Judge.

text:
    Mrs. Elnora HALL v. Jeanette SCOTT, et al.
    No. 14834.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Rehearing Denied July 13, 1982.

      Paul H. Spaht, Baton Rough, for plaintiff-appellee Mrs. Elnora Hall.
    Samuel R. Cicero, Asst. Parish Atty., Baton Rouge, for defendant-appellee City of Baton Rouge.
    Arthur H. Andrews, Baton Rouge, for defendant-appellee Jeanette Scott and Aet-na Casualty & Surety Co.
    Robert D. Hoover, Baton Rouge, for defendant-appellee Geraldine Bell and United States Fidelity & Guaranty Co. as Liability Insurer of Geraldine Bell only.
    Frank A. Fertitta, Baton Rouge, for defendant-appellee United States Fidelity & Guaranty Co. as alleged Underinsured Motorist Carrier of Geraldine Bell.
    Robert J. Vandaworker, Baton Rouge, for defendant-appellant Western Pioneer Ins. Co.
    Before LEAR, CARTER and LANIER, JJ.
   LANIER, Judge.

The plaintiff, Elnora Hall, is a citizen of California and she has lived there since 1949. In December of 1977, Hall came to Louisiana for a visit. On December 21, 1977, at approximately 4:40 P.M., Hall was a passenger in an automobile owned and operated by her daughter, Geraldine Bell, at the intersection of Greenwell Springs Road and North Ardenwood, in East Baton Rouge Parish, Louisiana, when there was a collision between that vehicle and an automobile being operated by Jeanette Scott. This intersection is controlled by anj electric signal system. As a result of the accident, Hall received substantial injuries.

Hall filed this suit for damages in East Baton Rouge Parish. The original defendants were Jeanette Scott and her insurer, Aetna Casualty and Surety Company (hereinafter referred to as Aetna) and Geraldine Bell and her insurer, United States Fidelity and Guaranty Company (hereinafter referred to as USF&G).

Hall first amended her petition to allege that USF&G had uninsured motorist coverage on the automobile of Bell and that such coverage was applicable to her. Bell and USF&G answered and asserted a third party demand against Scott and Aetna.

Hall then filed a second amending petition joining the Parish of East Baton Rouge on the grounds that it owned the traffic signal at the intersection where the accident occurred and it was defective; joined Marbelite Co., Inc. on the grounds that it manufactured and designed the defective traffic signal system; and joined Western Pioneer Insurance Company (hereinafter referred to as Western Pioneer) on the grounds that it had issued a policy to Hall which provided uninsured motorist and medical payments coverage. This pleading also asserted a demand against USF&G under the medical payments coverage of the policy issued to Bell.

Aetna and Scott filed a third party demand against Bell and USF&G for contribution.

Western Pioneer filed declinatory exceptions pleading improper service and lack of personal jurisdiction. The exception alleged that Western Pioneer was a California corporation and did not engage in any business activities in the State of Louisiana, confined its operations completely to the State of California and did no business in Louisiana, that service on the Secretary of State of the State of Louisiana was not proper service, and that the courts of Louisiana had no personal jurisdiction. A hearing was held on these exceptions and they were overruled. Reserving all rights under the exceptions, Western Pioneer answered the suit.

Hall filed a third amending petition alleging that Western Pioneer, Aetna and USF&G were arbitrary, capricious and in bad faith in the handling of her claims. With respect to Western Pioneer, Hall alleged that she was entitled to damages for mental anguish in the amount of $100,000 and punitive damages in the amount of $250,000 plus reasonable attorney fees.

At this point in the proceedings, Hall compromised her claims against Bell and USF&G, Scott and Aetna, and Marbelite Co., Inc. This case went to trial with only three defendants: (1) Parish of East Baton Rouge; (2) USF&G as the UM carrier on the Bell automobile; and (3) Western Pioneer.

At the conclusion of Hall’s evidence, the Parish of East Baton Rouge moved for a directed verdict and it was granted. No appeal has been taken from this ruling.

After completion of the trial, the case was taken under advisement. On May 1, 1981, the trial judge rendered written reasons with these findings:

1. Both Bell and Scott were guilty of negligence which was a proximate cause of the accident and Hall’s damages;
2. The damages of Hall were substantial;
3. Hall was entitled to recover a judgment against USF&G under its uninsured motorist coverage of $10,000;
4. Louisiana law applies to interpret the policy of Western Pioneer;
5. Hall is entitled to “stack” the uninsured motorist coverage of $15,000 under the Western Pioneer policy so as to recover $30,000 because she had two cars in California;
6. Hall is entitled to recover $500 from Western Pioneer under the medical payments coverage;
7.Hall is entitled to recover $1,000 in penalties and attorney fees from Western Pioneer.

Judgment was rendered accordingly.

USF&G satisfied the judgment against it. Western Pioneer took this suspensive and devolutive appeal. Hall filed an answer to the appeal claiming that the trial court erred in failing to award her $100,000 for mental and emotional anguish and punitive damages in the amount of $250,000, plus reasonable attorney fees.

Western Pioneer contends that the trial court committed error by overruling its dec-linatory exception pleading lack of jurisdiction over the person. Western Pioneer is a California insurance company. Elnora Hall is a resident of California and the Western Pioneer policy was issued and delivered in California. There is no evidence of record to show that Western Pioneer has written insurance policies or conducted any of its business activities in Louisiana. Hall’s policy with Western Pioneer contains the following language:

“1. Policy period, Territory: This policy applies only to accidents, occurrences and loss during the policy period while the automobile is within the United States of America, its territories or possessions, or Canada, or is being transported between ports thereof.” (Emphasis added).

We believe that the resolution of the jurisdiction issue is controlled by the holding of our brethren in the Third Circuit in the case of Jones v. MFA Mutual Insurance Company, 398 So.2d 10 (La.App. 3rd Cir. 1981), writs refused 399 So.2d 586 (La.1981). The facts of that case are set out at page 11 of the Southern Reporter as follows:

“On February 20, 1980, Luther Thomas Jones, a resident of Alabama, was fatally injured in a one-vehicle accident on Louisiana Highway 35, in Vermilion Parish. Jones was a guest passenger in the vehicle when the driver lost control of the vehicle causing it to overturn. At the time of the accident, the vehicle was owned by Bobby G. Goss, a resident of Mississippi, and driven by Bonnie T. Williams, a resident of Alabama.
“Stephen C. Jones, a resident of Sabine Parish, Louisiana, the plaintiff in the original action, filed suit in Sabine Parish for the wrongful death of Luther Thomas Jones. Subsequently, Edna Lee Jones Oswalt, the mother of the deceased and a resident of Alabama, intervened in the suit filed by Stephen C. Jones, naming Standard Fire Insurance Company of Alabama, Luther Thomas Jones’s uninsured motorist carrier, as an additional defendant. Service of process was made on the Louisiana Secretary of State and on Standard Fire by certified mail.”

In Jones, supra, the trial judge overruled the uninsured motorist insurers exceptions of jurisdiction over the person. The Third Circuit granted a supervisory writ and reversed for the following reasons set forth at pages 12 and 13 of the Southern Reporter:

“It is stipulated that Standard Fire is a foreign insurance company domiciled in Alabama. It is further stipulated that Standard Fire is not licensed to do business in Louisiana nor is it in fact doing business in Louisiana and that it has no agents or employees in Louisiana. It is also stipulated that Standard Fire’s insured, Luther Thomas Jones, was a resident of Alabama and that the policy of insurance was issued and delivered in the state of Alabama.
“Jurisdiction over the person is based on service of process. LSA-C.C.P. art. 6. Louisiana’s ‘longarm’ statute, LSA-R.S. 13:320confers personal jurisdiction over non-residents for causes of action arising under the circumstances set forth in the cited statute. In light of the stipulated facts, we conclude that the cause of action asserted by intervenor does not arise under any of the circumstances set forth in the cited statute and therefore such statute cannot be relied upon as conferring in the courts of Louisiana personal jurisdiction over Standard Fire.
“Neither can personal jurisdiction over Standard Fire be based on the ‘Louisiana Motorist Longarm Statute’, LSA-R.S. 13:3474. This statute provides that a non-resident and his insurer, by operating a motor vehicle on the public highways of Louisiana, are deemed to have submitted to the jurisdiction of this state and to have appointed the Secretary of State as their agent for service of process. This statute is inapplicable to the instant case because it has been stipulated that Standard Fire’s insured, Luther Thomas Jones, was not the operator of the vehicle involved, but a guest passenger.
“Furthermore, the record reflects that there has been no ‘minimum contacts’ between Standard Fire and the state of Louisiana to satisfy due process requirements. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Adcock v. Surety ReSearch & Inv. Corp., 344 So.2d 969 (La.1977). Standard Fire has had no contact whatever with the state of Louisiana. Its only contact is that it insures persons whom it is foreseeable will travel to Louisiana and will be involved in litigation in Louisiana. The United States Supreme Court in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); held that ‘foreseeability’ alone does not provide sufficient minimum contacts to support jurisdiction under the Due Process Clause.” (Emphasis added).

We believe that the holding of the United States Supreme Court in World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) is particularly pertinent to the facts of this case. The facts of World-Wide Volkswagen are set out at pages 562 and 563 of the Supreme Court Reporter as follows:

“Respondents Harry and Kay Robinson purchased a new Audi automobile from petitioner Seaway Volkswagen, Inc. (Seaway) in Massena, N.Y., in 1976. The following year the Robinson family, who resided in New York, left that State for a new home in Arizona. As they passed through the State of Oklahoma, another car struck their Audi in the rear, causing a fire which severely burned Kay Robinson and her two children.
“The Robinsons subsequently brought a products liability action in the District Court for Creek County, Okla., claiming that their injuries resulted from defective design and placement of the Audi’s gas tank and fuel system. They joined as defendants the automobile’s manufacturer, Audi NSU Auto Union Aktiengesell-schaft (Audi); its importer Volkswagen of America, Inc. (Volkswagen); its regional distributor, petitioner World-Wide Volkswagen Corporation (World-Wide); and its retail dealer, petitioner Seaway. Seaway and World-Wide entered special appearances, claiming that Oklahoma’s exercise of jurisdiction over them would offend the limitations on the State’s jurisdiction imposed by the Due Process Clause of the Fourteenth Amendment.
“The facts presented to the District Court showed that World-Wide is incorporated and has its business office in New York. It distributes vehicles, parts and accessories, under contract with Volkswagen, to retail dealers in New York, New Jersey, and Connecticut. Seaway, one of these retail dealers, is incorporated and has its place of business in New York. Insofar as the record reveals, Seaway and WorldWide are fully independent corporations whose relations with each other and with Volkswagen and Audi are contractual only. Respondents adduced no evidence that either World-Wide or Seaway does any business in Oklahoma, ships or sells any products to or in that State, has an agent to receive process there, or purchases advertisements in any media calculated to reach Oklahoma.” (Footnotes Omitted).

The court then stated the law applicable in these cases at page 564 of the Supreme Court Reporter as follows:

“The Due Process Clause of the Fourteenth Amendment limits the power of a state court to render a valid personal judgment against a nonresident defendant. Kulko v. Superior Court, 436 U.S. 84, 91, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132 (1978). A judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere. Pennoyer v. Neff, 95 U.S. 714, 732-733, 24 L.Ed. 565 (1878). Due process requires that the defendant be given adequate notice of the suit, Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313-314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950), and be subject to the personal jurisdiction of the court, International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In the present case, it is not contended that notice was inadequate; the only question is whether these particular petitioners were subject to the jurisdiction of the Oklahoma courts.
“As has long been settled, and as we reaffirm today, a state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist ‘minimum contacts’ between the defendant and the forum State. International Shoe Co. v. Washington, supra, at 316, 66 S.Ct., at 158. The concept of minimum contacts, in turn, can be seen to perform two related, but distinguishable, functions. It protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the States through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.
“The protection against inconvenient litigation is typically described in terms of ‘reasonableness’ or ‘fairness.’ We have said that the defendant’s contacts with the forum State must be such that maintenance of the suit ‘does not offend “traditional notions of fair play and substantial justice.’” International Shoe Co. v. Washington, supra, at 316, 66 S.Ct., at 158, quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278 (1940). The relationship between the defendant and the forum must be such that it is ‘reasonable ... to require the corporation to defend the particular suit which is brought there.’ 326 U.S., at 317, 66 S.Ct., at 158. Implicit in this emphasis on reasonableness is the understanding that the burden on the defendant, while always a primary concern, will in an appropriate case be considered in light of other relevant factors, including the forum State’s interest in adjudicating the dispute, see McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 201, 2 L.Ed.2d 223 (1957); the plaintiff’s interest in obtaining convenient and effective relief, see Kulko v. Superior Court, supra, 436 U.S., at 92, 98 S.Ct., at 1697, at least when that interest is not adequately protected by the plaintiff’s power to choose the forum, cf. Shaffer v. Heitner, 433 U.S. 186, 211, n. 37, 97 S.Ct. 2569, 2583, n. 37, 53 L.Ed.2d 683 (1977); the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies, see Kulko v. Superior Court, supra, 436 U.S., at 93, 98, 98 S.Ct., at 1697, 1700.”

The Supreme Court then concluded that there was no personal jurisdiction over the retailer and the regional distributor with the following observations found at pages 556 and 567 of the Supreme Court Reporter as follows:

“Applying these principles to the case at hand, we find in the record before us a total absence of those affiliating circumstances that are a necessary predicate to any exercise of state-court jurisdiction. Petitioners carry on no activity whatsoever in Oklahoma. They close no sales and perform no services there. They avail themselves of none of the privileges and benefits of Oklahoma law. They solicit no business there either through salespersons or through advertising reasonably calculated to reach the State. Nor does the record show that they regularly sell cars at wholesale or retail to Oklahoma customers or residents or that they indirectly, through others, serve or seek to serve the Oklahoma market. In short, respondents seek to base jurisdiction on one, isolated occurrence and whatever inferences can be drawn therefrom; the fortuitous circumstance that a single Audi automobile, sold in New York to New York residents, happened to suffer an accident while passing through Oklahoma.
* * * * sjs *
“This is not to say, of course, that foreseeability is wholly irrelevant. But the foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there. See Kulko v. Superior Court, supra, 436 U.S., at 97-98, 98 S.Ct., at 1699-1700; Shaffer v. Heitner, supra, 433 U.S., at 216, 97 S.Ct., at 2586, and see id., at 217-219, 97 S.Ct., at 2586-2587 (Stevens, J., concurring in the judgment). The Due Process Clause, by ensuring the ‘orderly administration of the laws,’ International Shoe Co. v. Washington, 326 U.S., at 319, 66 S.Ct., at 159, gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.
* * * * * *
“But there is no such or similar basis for Oklahoma jurisdiction over World-Wide or Seaway in this case. Seaway’s sales are made in Massena, N. Y. WorldWide’s market, although substantially larger, is limited to dealers in New York, New Jersey, and Connecticut. There is no evidence of record that any automobiles distributed by World-Wide are sold to retail customers outside this tri-State area. It is foreseeable that the purchasers of automobiles sold by World-Wide and Seaway may take them to Oklahoma. But the mere ‘unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State.’ Hanson v. Denckla, supra, [357 U.S. 235] at 253, 78 S.Ct. [1228] at 1239-1240 [2 L.Ed.2d 1283].” (Footnote Omitted).

Had Mrs. Hall been the operator of a motor vehicle in the State of Louisiana and negligently caused injury to another, then clearly this State would have personal jurisdiction over her liability insurance carrier for the damages she caused in tort. La.R.S. 13:3201 (Longarm Statute); La.R.S. 13:3474 (Non-resident Motorist Statute); and La.R.S. 22:655 (Direct Action Statute). However, this is a suit in contract by a California insured against her California insurer for casualty and medical payment claims under a contract written and delivered in California. Booth v. Fireman’s Fund Insurance Company, 253 La. 521, 218 So.2d 580 (1968); Bannon v. Edrington, 392 So.2d 186 (La.App. 4th Cir. 1980). Although the trial judge ruled that the law of Louisiana was applicable to this dispute, Hall, at page 18 of her original appellate brief, agreed that California law was applicable. By way of answer to the appeal and by brief, Hall requested additional damages for mental anguish and punitive damages, obviously under California law. In a supplemental brief, Hall advised that she “prefers the application of California law, because that law gives her greater protection against the action of WP involved here.” Western Pioneer at all times during this appeal has argued that the law of California is applicable.

There is no evidence in the record to show that Western Pioneer solicits insurance, issues or delivers policies, or collects or receives premiums in Louisiana. There is no evidence showing that it has an advertising campaign calculated to reach customers in this State. Hall is a California resident with a claim against a California corporation on a contract entered into and delivered in California that she wishes to have interpreted under California law. Under these circumstances, there is not sufficient contact between Western Pioneer and Louisiana to give this State personal jurisdiction.

Hall argues that because the Western Pioneer policy provision quoted above covers risks in all States of the United States that this constitutes “transacting business” in Louisiana and gives this State personal jurisdiction, citing La.R.S. 22:1253(A) and a series of federal cases. Commonwealth of Puerto Rico v. SS Zoe Colocotroni, 628 F.2d 652 (1st. Cir. 1980); Magnus Maritec International, Inc. v. SS St. Panteleimon, 444 F.Supp. 567 (S.D.Tex.1978); Fukaya v. Velho, 416 F.Supp. 785 (D.C.Guam 1976); Humble Oil & Refining Company v. M/V John E. Coon, 207 F.Supp. 45 (E.D.La.1962); Schwabach & Company v. Gulf Shipside Storage Corporation, 173 F.Supp. 105 (E.D.La.1959); Wheat v. White, 38 F.Supp. 791 (E.D.La.1941). Insofar as these cases are in conflict with World-Wide Volkswagen, they are overruled. In Jones v. MFA Mutual Insurance Company, supra, the court considered the fact that the insured person would foreseeably travel to another state and be involved in litigation but determined that this was not a sufficient contact to satisfy Due Process requirements on a suit in contract under uninsured motorist coverage. We agree with this holding. Further, we do not agree that a California corporation “transacts business” in Louisiana when it enters into a contract with a California resident in the State of California for uninsured motorist and medical payments coverage.

Hall argues that by making an appearance at the deposition of Mrs. Elnora Hall that Western Pioneer made a general appearance as provided for in Article 7 of the Code of Civil Procedure and waived any objection to jurisdiction over the person. The record reflects that on December 27, 1979, Geraldine Bell and USF&G filed a notice of their intention to take the oral deposition of Mrs. Hall on January 8, 1980, in Baton Rouge, Louisiana. Western Pioneer filed its declinatory exception pleading lack of jurisdiction over the person on January 15,1980. The portion of the Hall deposition filed in the record shows that counsel for Western Pioneer took Hall on cross-examination and asked her when was the last time she saw her doctor in Baton Rouge, if she planned to see him in the future, when did she come to Baton Rouge on this trip, if she was drawing retirement benefits from her former employer located in San Francisco, California, when she was born, where she was born, and when did she visit her daughter in Louisiana. He then secured from her the fact that she purchased her Western Pioneer policy for the car she owned in California, that the policy was originally obtained by her deceased husband from a California insurance agent in California, that she renewed the policy each year after her husband passed away, that she was living in California at the time that the policy was first issued, that each renewal of the policy was sent to her in California through the same agent, and that she turned over her medical bills to Western Pioneer.

Under the provisions of Article 7 of the Code of Civil Procedure, and except as otherwise provided in that article, a person makes a general appearance and subjects himself to the jurisdiction of the court and impliedly waives all objections to the jurisdiction of the court if he seeks relief in the case. It has been held that although not specifically listed as an exception in Article 7, that answering written interrogatories does not qualify as seeking relief “in order to subject a person to the jurisdiction of the court.” Vincent v. Penrod Drilling Company, 372 So.2d 807 (La.App. 3rd Cir. 1979). In the case of Stelly v. Quick Manufacturing, Inc., 228 So.2d 548 (La.App. 3rd Cir. 1969), it was held that if a person filed a notice to take an oral deposition of another party in the case, that this constituted a general appearance and a request for relief and waived objection to the jurisdiction of the court. The Stelly case is not applicable to the facts of this case because the deposition was noticed by Geraldine Bell and USF&G. In Moore v. Central Louisiana Electric Company, 257 So.2d 702 (La.App. 3rd Cir. 1972), reversed on other grounds, 273 So.2d 284 (La.1973), it was specifically held that a non-resident does not waive objection to the jurisdiction of the court and make a general appearance by noticing the taking a deposition for the limited purpose of securing answers to relevant questions concerning an exception of jurisdiction. In the instant case, Western Pioneer did not notice the deposition, but merely appeared at it. The questions by Western Pioneer’s counsel which did not pertain to the exception of jurisdiction were innocuous and of no great consequence. The bulk of the cross-examination by counsel for Western Pioneer dealt with issues concerning the manner in which the Western Pioneer policy was obtained in California and thus were pertinent to the jurisdiction exception. Under these particular facts and circumstances, it is our opinion that by appearing at the deposition, Western Pioneer was not seeking relief as contemplated by Article 7 of the Code of Civil Procedure and, thus, did not make a general appearance and waive its right to object to the jurisdiction of the court.

For the reasons herein assigned, the judgment of the trial court overruling the decli-natory exception pleading lack of personal jurisdiction is reversed and judgment will be rendered herein in favor of the Western Pioneer Insurance Company and against Elnora Hall sustaining the exception and dismissing her petition with prejudice. Elnora Hall is cast for all costs of this appeal.

REVERSED AND RENDERED.

      “1§ 3201. Personal jurisdiction over nonresidents
      “A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s
      (a) transacting any business in this state;
      (b) contracting to supply services or things in this state;
      (c) causing injury or damage by an offense or quasi offense committed through an act or omission in this state;
      (d) causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state;
      (e) having an interest in, using or possessing a real right or immovable property in this state; or
      (f) non-support of a child or spouse or a former spouse domiciled in this state to whom an obligation of support is owed and with whom the non-resident formerly resided in this state.”

      . La.R.S. 13:3474 provides:
      “The acceptance by non-residents of the rights and privileges conferred by existing laws to operate motor vehicles on the public highways of the state of Louisiana, or the operation by a non-resident or his authorized agent, employee or person for whom he is legally responsible of a motor vehicle within the state of Louisiana, shall be deemed equivalent to an appointment by such non-resident of the secretary of state of Louisiana or his successor in office, to be his true and lawful attorney for service of process, as well as the attorney for service of process of the public liability and property damage insurer of the vehicle, if such insurer be a non-resident not authorized to do business in the state, upon whom or such insurer, may be served all lawful process in any action or proceeding against the non-resident, or such insurer, growing out of any accident or collision in which the non-resident may be involved while operating a motor vehicle in this state, or while same is operated by his authorized agent or employee. In the event of the death of such non-resident before service of process upon him, any action or proceeding growing out of such accident or collision may be instituted against the executors or administrators of such deceased nonresident, if there be such, and if not, then against his heirs or legatees, and service may be made upon them as provided in R.S. 13:3475. Process against the defendant or defendants, the non-resident, his executors or administrators, if there be such, and if not, then against his heirs or legatees, or the liability insurer of such vehicle, as the case may be, shall be of the same legal force and validity as if served upon such defendant personally.”

      . Louisiana does not allow punitive damages. La.C.C. art. 1934; Ricard v. State, 390 So.2d 882 (La.1980).

      . La.R.S. 22:1253(A) provides:
      “The transacting of business in this state by a foreign or alien insurer without a certificate of authority is equivalent to an appointment by such insurer of the Secretary of State and his successor or successors in office to be its true and lawful attorney, upon whom may be served all lawful process in any action, suit or proceeding maintained by the commissioner of insurance or arising out of such policy or contract of insurance, and the said transacting of business by such insurer is a signification of its agreement that any such service of process is of the same legal force and validity as personal service of process in this state upon it.”

      . La.C.C.P. art. 7 provides:
      “Except as otherwise provided in this article, a party makes a general appearance which subjects him to the jurisdiction of the court and impliedly waives all objections thereto when, either personally or through counsel, he seeks therein any relief other than:
      (1) Entry or removal of the name of an attorney as counsel of record;
      (2) Extension of time within which to plead;
      (3) Security for costs;
      (4) Dissolution of an attachment issued on the ground of the non-residence of the defendant; or
      (5) Dismissal of the action on the ground that the court has no jurisdiction over the defendant.
      “This article does not apply to an incompetent defendant who attempts to appear personally, or to an absent or incompetent defendant who appears through the attorney at law appointed by the court to represent him.
      “When a defendant files a declinatory exception which includes a prayer for the dismissal of the action on the ground that the court has no jurisdiction over him, the pleading of other objections therein, the filing of the dilatory exception therewith, or the filing of the peremptory exception or an answer therewith when required by law, does not constitute a general appearance.”