author: DOMENGEAUX, Judge. CULPEPPER, Judge,

text:
    Richard Craig DOTY, Plaintiff-Appellee, v. SAFECO INSURANCE COMPANY et al., Defendants-Appellants.
    No. 8206.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Rehearing Denied July 8, 1981.

      Adams & Reese, Edward Markle, New Orleans, Franklin, Moore & Walsh, James E. Moore, Baton Rouge, for defendant-appellant.
    Davidson, Meaux, Sonnier & Roy, L. Lane Roy, Voorhies & Labbe, E. Gregory Voor-hies, Lafayette, Lewis & Lewis, James C. Lopez, Opelousas, for defendants-appellees.
    Shelby E. Bohannon, Alexandria, Knoll & Knoll, Clark C. Roy, Marksville, Michael J. Johnson, Cottonport, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and LABORDE, JJ.
   DOMENGEAUX, Judge.

This case, and the two companion cases which follow, arose from an intersectional automobile collision which occurred on March 24, 1979, at about 3:30 A.M. Todd Theriot, then 17, drove his eastbound 1977 Ford pickup truck from the Percy Bourque Road onto Louisiana Highway 167 between Lafayette and Maurice. Jennifer Chaudoir was driving her boyfriend’s Camaro Z-28 in a southerly direction on Highway 167 when Theriot pulled in front of her unexpectedly. Miss Chaudoir had no time to apply her brakes or to otherwise avoid slamming into the left or driver’s side of Theriot’s truck at a speed of 45 to 55 miles per hour.

Miss Chaudoir and her two rear seat passengers, Tammy Deshotel and Richard Doty, were seriously injured in the accident; her sister Pamela Sue Chaudoir, the front seat passenger, was fatally injured. Although the Camaro struck the driver’s side of the truck, Theriot escaped injury because the Camaro struck the bed of the truck rather than the cab.

In the instant case, Richard Doty sued Todd Theriot; Joseph Theriot, who was Todd’s father and the owner of the truck; Safeco Insurance Company (Safeco), the automobile insurer of the truck; Bituminous Casualty Company (Bituminous), the comprehensive general liability (CGL) insurer of Joseph Theriot, d/b/a Ti-Joe’s Welding Service; Countryside Casualty, Inc. (Countryside), the automobile liability insurer of the Camaro; and MFA Mutual Insurance Company (MFA), Doty’s uninsured/underinsured motorist liability insurer, for the personal injuries and medical expenses he sustained as a result of the accident.

In # 8207, in which a separate decision will be rendered on the issue of damages, Billy and Iona Chaudoir sued Mr. and Mrs. Joseph Theriot; Safeco; Bituminous; and Countryside for the wrongful death of their minor daughter, Pamela Sue. Also in that suit, Jennifer Chaudoir sued the same defendants for her personal injuries and medical expenses.

In # 8208, also in which a separate decision will be rendered on the issue of damages, Tammy Deshotel sued Safeco; Countryside; Jennifer Chaudoir, the driver of the Camaro; Bituminous; and Trinity Insurance Company, Miss Deshotel’s uninsured/underinsured motorist liability insurer, for her personal injuries and medical expenses.

Prior to trial, Billy and Iona Chaudoir, Jennifer Chaudoir, and Tammy Deshotel released Safeco and the Theriots for a total of $15,000.00. Under the terms of its policy, Safeco’s liability was limited to $20,000.00 per accident.

A trial on the merits of these cases was conducted on June 18, 1980. On August 12, 1980, the trial court rendered its reasons for judgment. Therein, the court found that the accident was caused solely by the negligence of Todd Theriot. In accordance with this finding, the court rendered judgment in favor of Richard Doty against Todd Theriot and James Theriot for $22,646.61. Recovery against Safeco was limited to $5,000.00 of this amount, the remainder of its $20,000.00 liability limits. Bituminous was held liable for the balance of $17,-646.61. Judgment was also rendered in favor of the Chaudoir and Deshotel plaintiffs against Bituminous for a total of $85,646.43, well within the Bituminous policy limits. All other claims were dismissed. Judgment in this case was signed on August 21, 1980. Judgment in the companion suits was signed September 25, 1980. From these judgments Bituminous has appealed, on the ground that coverage did not exist. The Theriots have appealed the finding that Todd Theriot was negligent and also argue that the award to Richard Doty is excessive.

NEGLIGENCE

It is undisputed that Todd Theriot was on an inferior roadway when he drove unexpectedly into the path of the vehicle with the right of way. Jennifer Chaudoir, the driver of the right-of-way vehicle, testified that she was traveling at or below the speed limit when the accident occurred. The Theriot truck appeared so suddenly in her path that she had no time to apply her brakes. Hence, her speed could not be estimated from skid marks because there were none.

The Theriots argue that the heavy damage inflicted upon their pickup truck suggests that Miss Chaudoir was speeding. The trial court rejected this argument and so do we. The Theriots offer no proof that a Camaro traveling at 45-55 miles per hour could not have caused such damage. There is simply no evidence to support the Theri-ots’ argument that Miss Chaudoir, rather than Todd Theriot, was negligent.

DID COVERAGE EXIST?

The most important issue common to all three cases, but which will be discussed in this case only, is whether the Theriot pickup truck involved in the accident was covered by the Bituminous insurance policy issued to Joseph Theriot, d/b/a T-Joe’s Welding Service. The policy was a combination automobile and comprehensive general liability policy with limits of $100,000.00 per person and $300,000.00 per occurrence. The 1977 pickup truck clearly was not covered under the automobile liability insurance portion of the policy, because it was not listed in the schedule as a designated, owned, or covered automobile. However, a considerable dispute has developed over the question of whether the 1977 pickup truck was covered under the CGL portion of the policy.

In a thoughtful opinion, the trial court held that CGL coverage existed. The court concluded that the truck, which had welding equipment bolted and welded to its bed, was a self-propelled land vehicle maintained by Mr. Theriot for the sole purpose or aim of affording mobility to the welding equipment permanently attached to the bed of the truck. Because these facts coincided, the court found that the truck satisfied one of the policy’s definitions of “mobile equipment”. Since the truck was “mobile equipment” it was insured under the CGL portions of the Bituminous policy.

Bituminous contests the court’s findings. On appeal Bituminous argues: (1) the 1977 pickup was not maintained for the sole purpose of affording mobility to the welding equipment since it had been used primarily by Todd Theriot for his personal use; (2) in construing the insurance contract, the trial court completely disregarded the clear intent of the contracting parties by concluding that the language was ambiguous; (3) at the time of the accident, the 1977 pickup was not “mobile equipment” in locomotion.

None of Bituminous’ contentions has merit. We believe the issue was properly decided by the trial court for the reasons stated in that court’s opinion, which reasons we take the liberty of quoting and adopt as our own:

U* * *

The factual context in which this issue arises is important to its decision. The Court therefore will first state the facts which it considers pertinent to a determination of whether the Bituminous policy provides coverage for this accident.

Joseph Theriot testified that he has been a self-employed welder for six or seven years, operating his business under the name of T-Joe’s Welding Service. Todd Theriot has been employed by his father since he graduated from high school in May, 1979. The evidence further establishes that all of the welding work is done on site, with the result that the welding equipment to be used must be transported to each job site. Mr. Theriot’s business is currently being operated with two welding rigs, one installed on Mr. Theriot’s truck and the other on Todd’s truck. At the time of the accident in question, the welding equipment currently on Todd’s new 1979 truck had been ‘bolted and welded’ to the bed of the 1977 pickup truck which was involved in the accident. This welding rig was purchased by Mr. Theriot with a check from T-Joe’s Welding Service, and the welding bottles and other equipment were rented by T-Joe’s. After the accident, this equipment was transferred from the 1977 truck to Todd’s new 1979 truck.

According to Todd’s testimony, nothing else can be put into the bed of a pickup truck which has a welding rig attached to it. Todd further testified that, prior to his graduation from school, he made use of the 1977 truck to go to and from school and for some personal errands. He further stated that he used the welding equipment in this truck during his welding classes at school and to do welding work for friends. Since his graduation, he has used the equipment for his father’s business. On the day of the trial, Todd’s truck and equipment were on a job site in Baton Rouge and thus were not available for personal use.

Bituminous argues that the 1977 Ford pickup is an ‘automobile’ which is excluded under the terms of the CGL portion of the policy. The ‘Exclusions’ section of the CGL policy provides in part:

‘This insurance does not apply:
sfc % * $ * ‡
b) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of
1) any automobile or aircraft owned or operated by or rented or loaned to any insured, . .. ’

Under the ‘Definitions’ section of the policy, an ‘automobile’ is defined as:

‘. .. a land motor vehicle, trailer, or semitrailer designed for travel on public roads (including any machinery or apparatus attached thereto), but does not include mobile equipment;’ (Emphasis added)

It is quite clear from the foregoing portions of the CGL policy that if the 1977 pickup truck involved in this accident is considered to be an ‘automobile’, then there is no insurance coverage. On the other hand, however, if the pickup truck is considered to be ‘mobile equipment’, the foregoing exclusion is inapplicable. The Court must therefore determine whether or not the 1977 Ford pickup truck may permissibly be classified as ‘mobile equipment’ within the meaning of that term as defined by the insurance policy.

‘Mobile equipment’ is defined in the policy as follows:
‘ “mobile equipment” means a land vehicle (including any machinery or apparatus attached thereto), whether or not self-propelled, (1) not subject to motor vehicle registration, or (2) maintained for use exclusively on premises owned by or rented to the named insured, including the ways immediately adjoining, or (3) designed for use principally off public roads, or (4) designed or maintained for the sole purpose of affording mobility to equipment of the following types forming an integral part of or permanently attached to such vehicle: power cranes, shovels, loaders, diggers and drills; concrete mixers (other than the mix-in-transit type); graders, scrapers, rollers and other road construction or repair equipment; air-compressors, pumps and generators, including spraying, welding and building cleaning equipment; and geophysical exploration and well servicing equipment;’

Bituminous argues that the pickup truck cannot be classified as ‘mobile equipment’ because (1) the welding equipment did not form an integral part of and was not permanently attached to the vehicle, (2) it was not designed or maintained for the sole purpose of affording mobility to the welding equipment, and (3) it was devoted to Todd’s ‘personal use, to get to and from school and to get around with friends.’

To determine the merits of these contentions, the Court has closely examined the pertinent provisions of the insurance policy. Because the 1977 Ford pickup is a self-propelled land vehicle, it is ‘mobile equipment’ if it fulfills one or more of the four definitional criteria. For the following reasons, the Court concludes that this truck meets the requirements of section (4) of the definition, and is therefore ‘mobile equipment’ within the meaning of the Bituminous policy-

The terms of the ‘mobile equipment’ definition clearly indicate that Bituminous intended distinctions as to the meaning of the words ‘maintained’, ‘designed’, and ‘use’. Section (2) of the definition includes within the meaning of ‘mobile equipment’ a land vehicle ‘maintained for use exclusively on premises owned by or rented to the named insured.’ Thus, regardless of a vehicle’s design, it can be considered ‘mobile equipment’ if its ‘use’ is restricted to a certain territory.

Section (3) of the definition includes within the meaning of ‘mobile equipment’ a land vehicle ‘designed for use principally off public roads.’ It is clear that the vehicle contemplated by this section must possess an engineering design ‘for use principally off public roads’ regardless of the manner in which it is maintained.

In section (4) of the ‘mobile equipment’ definition, Bituminous has employed both the words ‘designed’ and ‘maintained’, but has omitted the word ‘use’. The Court finds that the omission of the word ‘use’ is significant in terms of the meaning of this section. Under this section, a land vehicle is ‘mobile equipment’ if it is ‘designed’, i. e., structurally suited, or ‘maintained’, i. e., functionally suited, ‘for the sole purpose of affording mobility to ‘welding equipment’ forming an integral part of or permanently attached to such vehicle.’ There is no doubt in this Court’s mind, under the evidence presented, that the 1977 pickup truck was ‘maintained’ by Joseph Theriot ‘for the sole purpose (not use) of affording mobility to’ welding equipment. The evidence clearly creates an inference that Mr. Theriot’s sole purpose, i. e., his goal or aim, for maintaining the pickup truck was to provide mobility to a second welding rig which would be used by his son. It is true that the evidence indicates that the truck was ‘used’ for personal transportation. However, this fact is not in conflict with the court’s conclusion. If Bituminous had intended to make ‘use’ of the vehicle a significant factor in applying section (4) of the definition, it certainly would have included this word in the text of section (4) as it did in sections (2) and (3). The omission of the word ‘use’ from section (4) clearly indicates that the use of a vehicle for personal convenience is not relevant in determining the inclusion of such a vehicle within the meaning of ‘mobile equipment’.

The additional contention urged by Bituminous that the welding equipment was neither an integral part of nor permanently attached to the 1977 pickup truck is without merit. Although the welding rig was transferred to Todd’s 1979 pickup after the accident, both of the Theriots testified that the rig was ‘bolted and welded’ to the bed of the 1977 vehicle. Such an attachment is as permanent as the attachment of the truck body to the truck chassis. The Court must therefore conclude that the welding equipment was ‘permanently attached’ to the 1977 pickup.

In concluding that the 1977 pickup truck is ‘mobile equipment’ within the meaning of the Bituminous insurance policy, the Court has applied the well-established rule that ‘any doubt or ambiguity as to the meaning of a provision in an insurance policy must be construed liberally in favor of the insured and against the insurer’. Credeur v. Luke, 368 So.2d 1030 (La.1979) at p. 1032. Although there are reasonable constructions of the phrase ‘maintained for the sole purpose of affording mobility to (welding) equipment’ which would result in denial of coverage, the Court has adopted a reasonable construction which affords protection to the insured. In Carney v. American Fire & Indemnity Company, 371 So.2d 815 (La. 1979), the Louisiana Supreme Court cited with approval portions of Judge Tate’s dissent in a 1963 Third Circuit case. In instances of ambiguity,

... as a. matter of law the Courts are required to adopt that policy construction which affords protection to the insured, as against another construction which does not — however much the Court may feel that the insurance company which wrote and sold the policy and collected a premium therefor might have intended an equally reasonable construction which is, however, less favorable to its policyholder. (371 So.2d at 819).

Because the Court has found that the 1977 pickup which was involved in the accident is ‘mobile equipment’, the automobile exclusion clause of the CGL portion of the policy is not applicable in this case.

Counsel for Bituminous also argues that this Court should find the CGL portion of the Bituminous policy inapplicable on the basis of the principles set forth in the recent Third Circuit case of Lucas v. Deville (No. 7185, April 9, 1980) and the cases cited therein. The following language from the Lucas decision is pertinent:

We think the distinction made in the Sparkman [v. Highway Insurance Company, 266 F.Supp. 197 (W.D.La.1967)] case and others is valid and is a common sense interpretation. We are impressed with the analysis which draws a distinction between a transportation or locomotion hazard on the one hand, and an operational hazard on the other. The former would reasonably call for application of automobile liability insurance. With respect to circumstances such as those present in Heiser [v. Gibson, 386 F.Supp. 901 (E.D.La.1974)], involving accidents occurring during locomotion on highways, the automobile exclusion in comprehensive liability policies is properly invoked to eliminate coverage, (p. 13)

Because the instant case involves an accident which occurred during locomotion on a highway, Bituminous contends that the automobile exclusion clause precludes coverage under the CGL portion of the policy. The Court, however, concludes that Lucas and the cases cited therein are inapplicable in this case because the CGL portion of the Bituminous policy specifically provides coverage for accidents occurring during locomotion on highways.

Part II of the CGL policy, ‘Persons Insured’, provides:

Each of the following is an insured under this insurance to the extent set forth below:
* * * * * *
(e) with respect to the operation, for the purpose of locomotion upon a public highway, of mobile equipment registered under any motor vehicle registration law.
******
(ii) any other person while operating with the permission of the named insured any such equipment registered in the name of the named insured and any person or organization legally responsible for such operation .... (Emphasis added)

Because of this provision in the Bituminous policy, the Court cannot take the position urged by Bituminous. To interpret this policy according to the principles set forth in Lucas would be to ignore the clear language of the policy, and such an interpretation would eliminate the possibility of coverage under the provision cited above. Under this provision, it is clear that Todd and Joseph Theriot are insureds under the CGL policy with respect to Todd’s operation of the mobile equipment at the time of the accident.

Bituminous further argues that the Safe-co insurance policy which covered the 1977 pickup constitutes ‘other valid and collectible insurance’ which is available to the Theriots, and that the Theriots are therefore not insureds under the Bituminous policy with respect to this accident. Part II of the CGL policy, ‘Persons Insured’, provides:

Each of the following is an insured under this insurance to the extent set forth below:
******
(e) with respect to the operations of . . . of mobile equipment . ..,
******
(ii) any other person while operating with the permission of the named insured any such equipment registered in the name of the named insured and any such person or organization legally responsible for such operation, but only if there is no other valid and collectible insurance available, either on a primary or excess basis, to such person or organization. (Emphasis added)

Bituminous argues that this provision allows it to escape liability completely because the Safeco policy, with a twenty thousand ($20,000.00) dollar limit of liability, is valid and collectible. The Court, however, concludes that there is no valid and collectible insurance available to the Theriots after the twenty thousand ($20,000.00) dollar Safe-co policy is exhausted. Bituminous is therefore liable up to the policy’s limit of Liability for all damages which exceed twenty thousand ($20,000.00) dollars.

‡ *

QUANTUM

The district court detailed Richard (Ricky) Doty’s injuries in the following manner:

“Richard Doty is twenty-one years old and has been studying diesel mechanics at vocational-technical school since February, 1978. He had fallen asleep prior to the accident and was leaning against the right rear window of the Lester vehicle at the time of the collision. As a result he sustained severe lacerations and abrasions of the right side of his face and head. He was taken by ambulance to Our Lady of Lourdes Hospital, where he remained for several days. Ricky testified that the hair was shaved from half of his head and that his hair is ‘just now back in shape’. Dr. Mes, a plastic surgeon, treated Ricky from March 24 to June 12, 1979. In addition to the abrasions and lacerations, he stated that Ricky had sustained a mild whiplash injury and a fracture of the right zygomatic bone. At the last visit on 6/12/79, pieces of glass were still coming through his skin. Ricky testified at the trial that he can still feel small pieces of glass in his head and face. At the trial, the Court observed several facial scars and an area of discoloration on Ricky’s face. Dr. Mes classifies the scar on Ricky’s cheek as Grade 4, which is the most conspicuous grade, visible from across a room. Corrective surgery could improve the scar to Grade 2, one which is visible at conversational distance. Ricky testified that he wore a neck brace (not prescribed) for approximately IV2 months after the accident in order to relieve his neck pain. He also stated that he developed knee and back pain subsequent to the accident. Dr. Cobb, an orthopedic surgeon, saw him on two occasions in March, 1980. He stated that Ricky’s back complaints were ‘primarily postural in nature, secondary to an apparent flexion injury’, and that his knee problems were caused by a ‘contusion or a subchronial injury to his patella’. He recommended exercises for his back and gave him conservative treatment for his knees. The only medication he prescribed was aspirin. Although heavy work would have aggravated the pain, Dr. Cobb felt that these injuries would not be long-lasting and would not prevent Ricky from doing anything that he wants to do. The Court will award Ricky the sum of twenty thousand ($20,-000.00) dollars as general damages for these injuries.”

In addition to the general damage award, the court awarded Doty $2,646.61 for proven medical expenses incurred in connection with the accident.

The Theriots argue that the general damage award is too high and should be reduced to $12,500.00. Doty has answered the appeal asking for an increase to the amount originally prayed for, $350,000.00.

Although the general damage award to Doty is more generous than the awards made in the cases cited by the Theriots and less generous than the awards made in the cases cited by Doty, we cannot say, after reviewing the severity of this plaintiff’s injuries, that the trial court has abused its ‘much’ discretion in placing the general damage award at $20,000.00 rather than a lower or higher amount. Reck v. Stevens, 373 So.2d 498 (La.1979).

DECREE

For the above and foregoing reasons the judgment of the district court is affirmed. Costs are assessed one-half to Bituminous and one-half to the Theriots.

AFFIRMED.

CULPEPPER, Judge,

dissenting.

I dissent from that portion of the majority opinion which holds the Bituminous policy is ambiguous and must be construed against the insurer so as to afford coverage.

The Bituminous policy in question is a combination automobile and comprehensive general liability policy issued to Mr. Joseph Theriot, d/b/a T-Joe’s Welding Service. Joseph Theriot owned a 1976 Ford pickup truck which was specifically described in the policy and covered by the automobile liability provisions thereof. In addition to this 1976 pickup truck, Joseph Theriot also owned the 1977 Ford pickup truck at issue here, which he originally purchased solely for his son’s personal use, but which at the time of the accident was being used in the welding business as well. The 1977 truck is not described specifically in the policy. The contention by plaintiff is that the truck was covered under the comprehensive general liability provisions of the policy.

The comprehensive general liability provisions of the policy expressly exclude liability arising out of the maintenance or use of “any automobile.” The term “automobile” is defined as a “land motor vehicle ... designed for travel on public roads . . . but does not include mobile equipment.” The term “mobile equipment” is defined as a “land vehicle . . . whether or not self propelled, (1) not subject to motor vehicle registration, or (2) maintained for use exclusively on premises owned by or rented to the named insured, including the ways immediately adjoining, or (3) designed for use principally off public roads, or (4) designed or maintained for the sole purpose of affording mobility to equipment of the following types forming an integral part of or permanently attached to such vehicle: power cranes, shovels, loaders, diggers . .. generators .. . welding and building cleaning equipment. ...”

The obvious intent of the definition of “mobile equipment” was to cover such equipment maintained by Joseph Theriot for use in his welding business. Definition (1) covers vehicles not subject to motor vehicle registration, (2) covers those vehicles maintained for use exclusively on the premises owned by or rented to Mr. Theriot, and (3) covers vehicles designed for use principally off public roads. Then definition (4) is intended to cover vehicles which may be subject to motor vehicle registration or may be maintained for use on public roads, but (4) is expressly limited to those vehicles which are “maintained for the sole purpose of affording mobility to equipment ... permanently attached to such vehicles.” (Emphasis supplied) Thus, in the present case, the 1977 Ford pickup truck at issue is covered by (4), provided it is “maintained for the sole purpose of affording mobility to equipment ... permanently attached to such vehicles.” (Emphasis supplied) If the truck was not maintained for this “sole purpose”, it was not covered by the comprehensive liability provisions. It would have to be described in the automobile liability provisions, and a premium paid for that coverage.

In the present ease, the evidence shows clearly, as the majority states in its opinion, that the 1977 pickup was not maintained by Mr. Joseph Theriot for the “sole purpose” of affording mobility to the welding equipment. The truck was also maintained for the personal use of Joseph Theriot’s son, Todd. As a matter of fact, at the time of the accident one morning at 3:00 A.M., Todd was using the vehicle to return home from a disco.

The trial judge held, and the majority in this Court adopts the reasoning of the trial judge, that the failure of the policy to employ the word “use” in definition (4) of mobile equipment makes it ambiguous. Essentially, the trial judge states:

“The evidence clearly creates an inference that Mr. Theriot’s sole purpose, i. e., his goal or aim, for maintaining the pickup truck was to provide mobility to a second welding rig which would be used by his son. It is true that the evidence indicates that the truck was ‘used’ for personal transportation. However, this fact is not in conflict with the court’s conclusion. If Bituminous had intended to make ‘use’ of the vehicle a significant factor in applying section (4) of the definition, it certainly would have included this word in the text of section (4) as it did in sections (2) and (3). The omission of the word ‘use’ from section (4) clearly indicates that the use of a vehicle for personal convenience is not relevant in determining the inclusion of such a vehicle within the meaning of ‘mobile equipment’.”

I cannot follow this reasoning. In my view, the words “maintained for the sole purpose of affording mobility to equipment” are clear and free of ambiguity. This simply means that if Mr. Theriot maintained the truck solely for moving the welding equipment it was covered. But if he maintained it for any other purpose, such as his son’s personal transportation, it was not covered. Obviously, the risk was increased by his son’s driving the truck for non-business transportation.

The trial judge’s reasoning, adopted by the majority, is that if the words “for use” had been added in (4) after “maintained”, the definition would not be ambiguous. In my view, the words “maintained for the sole purpose” are more clear and express better the intent of the policy than would the words “maintained for the sole use” of affording mobility to equipment.

The applicable rule of construction of insurance policies is set forth in Harmon v. Lumbermen’s Mutual Casualty Company, 247 La. 363, 170 So.2d 646 (1965) as follows:

“A contract of insurance, like every other contract, is the law between the parties, and every stipulation therein must be construed as written. Smith v. Washington Nat. Ins. Co., La.App., 178 So. 691. ‘An insurance policy is a contract, and the rules established for the construction of written instruments apply to contracts of insurance. Hemel v. State Farm Mutual Automobile Insurance Company, 211 La. 95, 29 So.2d 483. The words used in such a contract are to be understood in the common and usual significance, without' attending so much to grammatical rules as to general and popular use. LSA-C.C. Art. 1946. Also, all ambiguities in the provisions of an insurance policy are to be construed in favor of the insured and against the insurer, subject to the qualification that if the intent of the policy is clearly evidenced by the terms of the contract, then the policy must be given a reasonable interpretation with relation to such intent. * * *’ Liprie v. Michigan Millers Mutual Insurance Co., La.App., 143 So.2d 597. * * *” 170 So.2d 646, 651.

In my view, the provisions of the policy at issue are not ambiguous. Moreover, the intention of the policy is clearly evidenced by the terms of the contract as a whole. The comprehensive liability provisions were not intended to cover a pickup truck unless that truck was maintained by the insured for the “sole purpose” of affording mobility to equipment required in his welding business. Since this truck was also maintained for Todd’s personal non-business transportation, it was not covered.

It is noteworthy that in Agency Management Corporation v. Riviere, 302 So.2d 388 (La.App. 1st Cir. 1974), the court considered the identical policy provisions defining “mobile equipment” and held them to be free of ambiguity. The arguments as to ambiguity made in that case are not the same as in the present case, but the court concluded the definition of “mobile equipment” is not ambiguous.

For the reasons assigned, I respectfully dissent, both in this case and in the two companion cases. It is my view that the Bituminous policy did not cover the 1977 Ford pickup truck involved in the accident.

      . Chaudoir v. Theriot, 400 So.2d 730 (La.App. 3rd Cir. 1981) (# 8207), and Deshotel v. Safeco Insurance Company, 400 So.2d 728 (La.App. 3rd Cir. 1981) (# 8208).

      . Footnote by the Court of Appeal. The definitions of “automobile” and “mobile equipment” in the Lucas policy are identical to those in the Bituminous policy. However, there apparently is no corresponding provision in the Lucas policy to the “Persons Insured” provision of the CGL coverage in the Bituminous policy, which provision indicates that coverage exists “with respect to the operation, for the purpose of locomotion upon a public highway, of mobile equipment .... ” Inclusion within the Bituminous policy of language which so clearly contemplates CGL coverage of highway accidents involving (self-propelled) mobile equipment surely forecloses reliance upon the Lucas distinction between locomotion hazards and operational hazards and renders that distinction inapplicable to the present case.

      . All references to the record have been deleted.

      . The Theriots rely upon McDonald v. American Fire & Indemnity Ins., 378 So.2d 1013 (La. App. 2nd Cir. 1979); Parker v. Travelers Insurance Company, 369 So.2d 1120 (La.App. 1st Cir. 1979), writ denied 371 So.2d 1342 (La. 1979); Ceiestine v. Segura, 364 So.2d 246 (La. App. 3rd Cir. 1978); and Watson v. Bechtel, 360 So.2d 260 (La.App. 4th Cir. 1978). Doty’s bid for a higher award is based upon the cases of Ashley v. Roberts, 331 So.2d 539 (La.App. 1st Cir. 1976); Martin v. Roberts, 331 So.2d 541 (La.App. 1st Cir. 1976); and McDonald v. Fidelity & Casualty Company of New York, 317 So.2d 267 (La.App. 3rd Cir. 1975).


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Tammy DESHOTEL, Plaintiff-Appellee, v. SAFECO INSURANCE COMPANY, et al., Defendants-Appellants.
    No. 8208.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Rehearing Denied July 8, 1981.
    Adams and Reese, Edward Markle, New Orleans, Franklin, Moore and Walsh, James E. Moore, Baton Rouge, for defendant-appellant.
    Davidson, Meaux, Sonnier and Roy, L. Lane Roy, Voorhies and Labbe, E. Gregory Voorhies, Lafayette, Lewis and Lewis, James C. Lopez, Opelousas, for defendants-appellees.
    Shelly E. Bohannon, Alexandria, Knoll and Knoll, Clark C. Roy, Marksville, Michael J. Johnson, Cottonport, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and LABORDE, JJ.
   DOMENGEAUX, Judge.

This is the second companion suit to Doty v. Safeco Insurance Company, 400 So.2d 718 (La.App. 3rd Cir. 1981). Therein we affirmed the trial court’s finding that (1) Todd Theriot alone was negligent in causing the accident of March 24, 1979, and (2) Bituminous Casualty Company insured the Theriots against the accident under the comprehensive general liability portion of a policy issued to Joseph Theriot (Todd’s father and the owner of the truck) and was therefore responsible, along with the Theri-ots and Safeco Insurance Company, for paying the losses incurred by those injured as a result of Todd Theriot’s negligence.

In the instant case, the court rendered judgment in favor of Tammy Deshotel and against Bituminous in the amount of $26,-495.00, for injuries caused by the accident. Miss Deshotel has answered the appeal filed by Bituminous and seeks to increase the trial court’s award to the amount prayed for in the original petition, $312,000.00.

In its reasons for judgment, the trial court described Tammy’s injuries:

“Tammy Deshotel is twenty years old, and is presently employed as a clerical worker at an insurance agency. She was seated behind the driver’s seat in the Lester vehicle at the time of the accident. She testified that she does not remember either the accident, or anything that happened for approximately a week after the accident. She stayed in bed for one or two months and was out of school (trade school) for three months. Immediately after the accident, Tammy was taken by ambulance to Our Lady of Lourdes Hospital where she remained for several days. She sustained injuries to her neck and right arm, and received multiple abrasions of her face and neck. She was hospitalized again from April 5 to April 7 for a cervical myelogram, but the myelo-gram was normal. Dr. Goldware, a neu-ro-surgeon, treated Tammy on several occasions between March 25 and July 7. He testified by deposition that the weakness of her arm was caused by a brachial plexus injury. She also had an avulsion fracture of the transverse process, an injury which usually causes a lot of pain for a few months. Shoulder exercises were prescribed and she was told to wear a sling for her right arm (which she wore until July 6.) Dr. Goldware stated that he did not treat Tammy long enough to know whether the damage to her arm is permanent or not. Tammy and her father testified that she had exercised her arm for one hour a day for several months following the accident. She also stated that she continues to have numbness of her arm at times, and that her arm is much weaker than it was before the accident. Her arm also tires easily when she types at work. In addition to Tammy’s arm and facial injuries, she sustained injury to her right vocal cord, which causes her voice to be quite husky. Dr. Graves, an ear, nose and throat specialist, has treated her for this condition. His deposition indicates that Tammy’s right vocal cord is paralyzed as a result of the accident, and that the damage appears to be permanent. Surgery which was performed in February, 1980, resulted in moderate improvement to Tammy’s voice, but this improvement dissipated fast. In order to improve Tammy’s voice permanently, Dr. Graves recommends surgery which would involve a permanent teflon injection. The Court will award Tammy general damages of thirty thousand ($30,000.00) dollars for these injuries.”

In brief, counsel for Miss Deshotel states simply that, given the plaintiff’s age and injuries, $30,000.00 is too little. However, after considering the facts and circumstances peculiar to this case, we are unable to conclude that the trial court abused its discretion in awarding Miss Deshotel $30,-000.00 in general damages. We believe the evidence establishes that her injuries were more severe than those suffered by her two injured companions. Accordingly, she was awarded more than the other two. As initial triers of fact, we might have been inclined to award a more generous amount. However, as a reviewing body, we cannot say the amount awarded is outside the broad range of the trial court’s discretion.

For the above reasons, and for the reasons stated in Doty v. Safeco Insurance Company, 400 So.2d 718 (La.App. 3rd. Cir. 1981), the judgment of the district court in favor of Tammy Deshotel and against Bituminous Casualty Company in the amount of $26,495.00 is affirmed. Costs are assessed to Bituminous.

AFFIRMED.

      . AU references to the record have been deleted.

      . Since Tammy received $5,000.00 in settlement of her claim against Safeco and the Theri-ots, Bituminous is liable only for their excess, $25,000.00, as well as the proven expenses, which total $1,495.00.


text:
    Billy Edward CHAUDOIR et al., Plaimtiffs-Appellees, v. Mr. and Mrs. Joseph THERIOT et al., Defendants-Appellants.
    No. 8207.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Rehearing Denied July 8, 1981.
    Adams and Reese, Edward Markle, New Orleans, Franklin, Moore and Walsh, James E. Moore, Baton Rouge, for defendant-appellant.
    Davidson, Meaux, Sonnier and Roy, L. Lane Roy, Voorhies and Labbe, E. Gregory Voorhies, Lafayette, Lewis and Lewis, James C. Lopez, Opelousas, for defendants-appellees.
    Shelby E. Bohannon, Alexandria, Knoll and Knoll, Clark C. Roy, Marksville, Michael J. Johnson, Cottonport, for plaintiffs-appellees.
    Before CULPEPPER, DOMENGEAUX and LABORDE, JJ.
   DOMENGEAUX, Judge.

This is a companion suit to Doty v. Safeco Insurance Company, 400 So.2d 718 (La. App.3rd Cir. 1981) (# 8206). Therein we affirmed the trial court’s findings that (1) Todd Theriot alone was negligent in causing the accident of March 24, 1979, and (2) Bituminous Casualty Company insured the Theriots against the accident under the comprehensive general liability portion of a policy issued to Joseph Theriot (Todd’s father and the owner of the truck), and was therefore responsible, along with the Theri-ots and Safeco Insurance Company, for paying the losses incurred by those injured as a result of Todd Theriot’s negligence.

In the instant case, the court rendered judgment in favor of Billy and Iona Chau-doir and against Bituminous in the amount of $37,655.50 for the wrongful death of their minor daughter, Pamela Sue. Judgment was also awarded to Jennifer Chau-doir against Bituminous in the amount of $21,495.93 for injuries she suffered in the accident.

Billy and Iona Chaudoir answered Bituminous’ appeal and seek to increase the trial court’s award to $70,000.00. Jennifer Chaudoir has not answered the appeal so the judgment in her favor of $21,495.93 is affirmed.

Pamela Sue Chaudoir was a 17 year old high school student who was living with her parents at the time of her unfortunate death. As a result of massive head injuries, she died immediately or shortly after the accident. From the testimony elicited, the trial court concluded that a very close relationship existed between Pamela Sue and her parents, and that Billy and Iona have suffered and continue to suffer a great sense of loss and grief. Consequently, the court awarded $40,000.00 to the Chaudoirs for the wrongful death of their daughter.

The Chaudoirs argue that there should be uniformity among wrongful death awards to parents, and cite Parks v. Liberty Mutual Insurance Company, 291 So.2d 505 (La. App.2nd Cir. 1974), writ denied 292 So.2d 240 (La.1974), in support of their contention. In Parks, the Court of Appeal found that the jury abused its discretion in awarding each parent $75,000.00 in general damages for the wrongful death of their 17 year old son. After considering recent similar cases, the Court reduced the award to the upper limits of the jury’s discretion, amounts which the Court felt were equal to the highest amount previously awarded to a parent for the death of a single child — $35,-000.00 for each parent.

Apart from citing the Parks case, the Chaudoirs have offered nothing which would suggest that the trial court abused its discretion in awarding them $40,000.00 or $20,000.00 for each parent. Although the $40,000.00 award may be towards the lower end of the trial court’s “much discretion” spectrum, if awards in “similar” cases are considered, we feel constrained to heed our Supreme Court’s admonition against tampering with a trial court’s award unless the facts disclose a clear abuse of that discretion. Reck v. Stevens, 373 So.2d 498 (La.1979). Finding no such facts in the record before us, we will not disturb the award.

For the above reasons, and for the reasons stated in Doty v. Safeco Insurance Company, 400 So.2d 718 (La.App. 3rd Cir. 1981) (# 8206), the judgment of the district court is affirmed. Costs on appeal are assessed to Bituminous Casualty Company.

AFFIRMED.

      . Since the Chaudoirs had previously released Safeco and the Theriots for $5,000.00, this amount was deducted from the $40,000.00 award to determine Bituminous’ liability. To the remainder "of $35,000.00 the court added the proven special damages to $2,655.50. Therefore, if the Chaudoirs were to succeed on appeal in increasing the award to $70,000.00, then Bituminous would be liable for only $67,655.50.

      . In fact, the facts of this case are very similar to the facts in Bailes v. Casualty Reciprocal Exchange, 279 So.2d 255 (La.App.2nd Cir. 1973) wherein the parents of a teenage boy who was killed in a motorcycle accident were each awarded $25,000.00. Also, this Court has recently awarded $20,000.00 to each parent for the wrongful death of their major son with whom they enjoyed a close relationship. See Bond v. Jack, 387 So.2d 613 (La.App.3rd Cir. 1980).


author: GUIDRY, Judge.

text:
    Louis BELLARD et al., Plaintiffs-Appellants, v. MOWATA RICE DRIER, INC., Defendant-Appellee.
    No. 8221.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Rehearing Denied July 21, 1981.

      Guillory, McGee, Mayeux & Fontenot, A. Frank McGee, Eunice, for plaintiffs-appellants.
    J. W. Landry, Jr., Crowley, for defendant-appellee.
    Before GUIDRY, FORET and CUTRER, JJ.
   GUIDRY, Judge.

In this suit, plaintiffs, Louis Bellard, Charles Bellard and Jude Bellard, seek to recover damages in the sum of $96,052.00, from Mowata Rice Drier, Inc. In support of their demand plaintiffs allege that the defendant, acting through its general manager, Paul Frey, mishandled the sale of their 1976 crop of soybeans resulting in a loss to plaintiffs in the sum sued for. The instant suit is consolidated with a companion matter entitled Carl Sloan v. Mowata Rice Drier, Inc., our docket number 8222, La.App., 400 So.2d 735, which is one filed by the owners of the land from which the crops were produced and harvested. In this latter suit the land owners seek to recover their proportionate part of the damages allegedly sustained. We this day render a separate opinion in that suit.

The salient facts, as gleaned from the record, are for the most part without dispute.

Mowata Rice Drier, Inc., hereafter Mowa-ta, is an old established firm which dries and stores rice and soybeans. As a necessary adjunct to its business Mowata handles the sale of rice and soybeans for the farmers doing business with them. Paul Frey, an employee of some 30 years, is Mowata’s general manager.

Paul Frey and Louis Bellard were long time friends having worked together as co-employees at Mowata for some twelve years. In addition to his employment at Mowata, Mr. Bellard farmed rice and soybeans and at his request Mr. Frey handled the sale of his crops each year. The record reflects that at the end of each crop year Mr. Bellard would consult with Mr. Frey concerning price, when to sell, etc. and would generally rely upon the advice tendered, allowing Mr. Frey to handle the sale of his crops.

Sometime prior to the year 1975, Continental Grain Company, a major exporter of soybeans, initiated a program for the sale of soybeans to it which is alternately referred to in the record as a “price to be fixed contract” or the “Seventy Per Cent Program”. Under the program, the soybeans are sold by the farmer to Continental Grain Company, either directly or through an agent, and upon delivery of the soybeans, the farmer-seller receives seventy per cent of the market value of the beans on the date of delivery. Under the terms of the contract, the farmer-seller at this time selects a month in the future as the “trading date” for the final settlement and the ultimate price which the farmer-seller receives for the beans. The ultimate price is based on the future price quoted by the Chicago Board of Trade for the month selected. The farmer has the right to sell his beans at any time prior to the month picked by him as the “trading date”, however if sold prior to such date the price received is based upon the price quoted for the month picked as quoted on the Chicago Board of Trade on the date of sale. Mowata began to participate in the Continental program in the year 1974. The obvious advantage derived by the farmer in participating in this program is that he pays no storage and receives a cash advance of 70% at the time his beans are delivered.

At the end of the 1975 crop year Mr. Bellard informed Mr. Frey that he would like to get into the “Seventy Per Cent Program”. Mr. Frey testified that at that time he fully explained the program to Mr. Bel-lard. Mr. Bellard agreed in his testimony that the program was explained to him, however, he testified that he was never told that the ultimate price for final settlement was to be based upon the price quoted by the Chicago Board of Trade for a future month selected. Rather, Mr. Bellard testified that it was his understanding he could sell at any time prior to the date selected for the market price quoted on the date of sale. In any event, Mr. Bellard participated in the “Seventy Per Cent Program” in the year 1975, although Bellard testified that he was not too well pleased with the program in 1975, because he calculated that he lost about $3000.00, he did not mention any dissatisfaction to Mr. Frey.

In the year 1976 Mr. Bellard, together with his two sons, Charles and Jude, produced some 17,464 bushels of soybeans on lands owned by the plaintiffs named in the suit which bears our docket number 8222. Louis Bellard, acting individually and as agent for his two sons and the several landowner plaintiffs, contacted Mr. Frey and elected to commit the entire crop to the “Seventy Per Cent Program”. The record appears to indicate some dispute as to whether or not Frey again explained the program to Mr. Bellard. The latter testified that the program was not again explained to him at this time. Frey was uncertain as to whether or not it was discussed in view of the fact that Bellard had participated in the program in the year 1975. Pursuant to Bellard’s request Mr. Frey negotiated a sale of the beans to Continental Grain Company with the month of September 1977 being picked as the “trading date”. Although it is not clear from the record, presumably the “trading date” was selected by Mr. Frey without consultation with Bellard. Mr. Frey testified that he selected the month of September because in his judgment, considering the market at the time of delivery, this would assure Mr. Bel-lard and associates the highest ultimate price.

Mr. Bellard testified that after the beans were committed to the program his group met and decided that they would sell when the bean market reached a price of $10.40 per bushel. He testified further that in March of 1977 he was discussing market conditions with an acquaintance who was also participating in the “70% Program”. This acquaintance suggested to him that although the bean market was approaching the $10.00 level he was tied to a September trading date which would bring a sales price of less than $10.00. The acquaintance suggested in conversation that very possibly Bellard was likewise tied to a future trading date. Upon receiving this information Mr. Bellard testified that he contacted Mr. Frey and learned for the very first time that he was tied to a future month and would have to sell his beans based on September quotations. On the date he contacted Mr. Frey September beans were quoted at $8.40 per bushel. Mr. Bellard decided not to sell at $8.40 per bushel and thereafter made no effort to dispose of the beans from March to September and simply, as he stated, “let them take the beans over” on September 1st. The price on September 1st was $5.28 per bushel or $4.90 net after deduction of the standard discounts. In these consolidated matters the damages sued for and allegedly suffered is the difference between $5.28 and $10.40 per bushel on 17,464 bushels.

The trial court in dismissing the demands of plaintiffs in both suits stated:

“The court concludes that Mr. Bellard knew what he was doing and after March gambled rather than attempted (sic) to minimize his loss. He cannot now complain that his gamble was not fruitful.”

Plaintiffs in both suits appealed. We affirm.

The thrust of plaintiffs’ argument on appeal is that the program was never fully explained to Mr. Bellard and therefore the trial court erred in not awarding the total amount of damages sought. In the alternative, appellants urge, assuming correctness of the trial court’s finding that damages could have been minimized, that they should have been awarded judgment for the difference between $10.40 per bushel and the highest price paid for September beans during the year 1977.

Although we agree with the trial court that “Mr. Bellard knew what he was doing”, we prefer to base our decision to affirm on the ground that a perusal of the record clearly indicates that in committing Mr. Bellard’s 1976 crop to the “70% Program” with September as the “trading date”, Paul Frey acted in good faith and as the agent for all plaintiffs.

There is no question but that under our law an agency may be created verbally. Neiman-Marcus Co. v. Viser, 140 So.2d 762 (La.App. 2nd Cir. 1962), writ denied; Busby v. Walker, 84 So.2d 804 (La.App. 2nd Cir. 1955), writ denied; Nunn v. W. H. Kennedy & Sons, Inc., 308 So.2d 845 (La.App. 2nd Cir. 1975); LSA-C.C. Article 2992. In Nunn, supra, the court stated:

“There is no requirement that the authority to act as agent to sell a movable be in writing.”

The record reflects that Mr. Frey had much experience in marketing soybeans, having worked in that field for over 30 years. He was considered by most of the farmers in the area, including Mr. Bellard, as honest, sincere and extremely knowledgeable. Because of his expertise in the field of marketing, most of the farmers who did business with Mowata sought his advice and counsel on such matters as when to sell and what marketing programs would assure the ultimate gain on sale of their produce.

With particular regard to the relationship between Mr. Bellard and Mr. Frey, the record reflects that they were co-employees for over twelve years and that during such period Mr. Bellard relied on Mr. Frey to handle his crop sales each year. In the year previous to the controversial transaction Mr. Bellard, after consultation with Mr. Frey, authorized the latter to commit his entire crop to the “70% Program” and although at the time of trial he indicated some dissatisfaction with the result, he did not complain to Mr. Frey but rather again requested that Mr. Frey commit his entire 1976 crop to the same program. Under such circumstances we opine that Mr. Bel-lard constituted Mr. Frey as his agent to market his 1976 soybean crop.

The trial court did not resolve the apparent conflict in the testimony of Messrs. Bellard and Frey, i. e., whether or not the latter explained to the former that the ultimate price to be received for the sale was to be based on the future price quoted by the Chicago Board of Trade for the month selected, other than to state as aforementioned that “Mr. Bellard knew what he was doing”. We do not consider it necessary that we resolve this conflict in the testimony for even if such explanation was not given and Mr. Frey, in the exercise of his judgment, supplied such date, he did so on behalf of Bellard in his capacity as agent. Although we do not resolve this conflict in the testimony, we observe that it would seem plausible that Mr. Bellard should have become aware of this contractual condition when his 1975 crop was marketed. If in fact Mr. Bellard did not become aware of this contractual condition until March of 1977, then presumably Mr. Frey selected the future “trading date” for the 1975 crop and upon receiving no complaint from Mr. Bellard upon consummation of that contract could reasonably assume that his agency extended to the selection of the “trading date”.

LSA-C.C. Article 3000 provides:

“Powers granted to persons, who exercise a profession, or fulfill certain functions, or do any business in the ordinary course of affairs to which they are devoted, need not be specified, but are inferred from the functions which these mandataries exercise.”

Volume 3 Am.Jur. 2nd, Agency Sec. 206 states in pertinent part:

Where the instructions are clear, precise, and imperative, they should be followed strictly and exactly . .. Nor should the principal’s instructions be construed as intended to be obligatory, unless they are distinct, positive, and express; an agent should not be held liable for a departure from the will of his principal where his orders are ambiguous, doubtful, or not explicit.”

Our brethren of the Fourth Circuit made reference to the above quotation from American Jurisprudence 2nd in Toranto v. Morton’s Auction Exchange Inc., 292 So.2d 767 (La.App. 4th Cir. 1974) stating:

“Defendant’s instructions obviously were not that explicit. Plaintiff’s error then, if any, could only be one of judgment. Such errors in good faith of an agent who contracts to perform personal services cannot serve as a basis for recovery against that agent. As pointed out in 3 Am.Jur.2d Agency Sections 204 and 205, an agent who has particular skills and talents in a certain field must exercise the care and skill expected of one in that field ‘But even an agent with purported special skills is not an insurer of his work and he will not be responsible for a mere error in judgment where he exercised the due care and appropriate skill of his profession’.”

In sum we conclude that plaintiffs-appellants, through Louis Bellard, constituted Paul Frey as their agent to market their 1976 crop through the Continental Grain Company’s “70% Program”, with authority to exercise his best judgment in the selection of a future “trading date”. There being no evidence that Paul Frey failed to use due care and skill in the execution of such mandate, the trial court correctly dismissed the plaintiffs’ demands at their costs.

For the above and foregoing reasons the judgment appealed from is affirmed at appellants’ cost.

AFFIRMED.

      . It is not disputed that Mr. Bellard was fully authorized by his sons, Charles and Jude, and the landowner plaintiffs, to negotiate a sale of the beans for the account of all interested parties.


text:
    Carl SLOAN et al., Plaintiffs-Appellants, v. MOWATA RICE DRIER, INC., Defendant-Appellee.
    No. 8222.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Rehearing Denied July 21, 1981.

      Guillory, McGee, Mayeux & Fontenot, A. Frank McGee, Eunice, for plaintiffs-appellants.
    J. W. Landry, Jr., Crowley, for defendant-appellee.
    Before GUIDRY, FORET and CUTRER, JJ.
   GUIDRY, Judge.

For the reasons assigned in the companion matter of Louis Bellard v. Mowata Rice Drier, Inc., La.App., 400 So.2d 731, our docket number 8221, the judgment of the trial court is affirmed at appellants’ cost.

AFFIRMED.


author: CUTRER, Judge.

text:
    James Louis CRAWFORD, Plaintiff-Appellee, v. Betty Jo R. CRAWFORD, Defendant-Appellant.
    No. 8239.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Rehearing Denied July 21, 1981.
    Edward Larvadain, Jr., Alexandria, for defendant-appellant.
    John P. Navarre, Oakdale, for plaintiff-appellee.
    Before GUIDRY, FORET and CUTRER, JJ.
   CUTRER, Judge.

This is an appeal from a default judgment of divorce granted to plaintiff. Plaintiff’s petition for divorce was filed in Allen Parish on June 9, 1980. The ground for divorce was that plaintiff and defendant had been living separate and apart for one year. Subsequently, declinatory exceptions of improper venue and lack of jurisdiction were filed by the defendant on June 13, 1980 and September 19, 1980, respectively.

The defendant alleged in the exceptions that plaintiff was not domiciled in Allen Parish but was domiciled in Rapides Parish. Defendant also contends that a separation suit was pending in Rapides Parish and that a judgment for alimony pendente lite in the amount of $350.00 had been granted by that court. A preliminary default by plaintiff was entered on September 23, 1980. That default was confirmed on September 29, 1980. The record is void of any disposition of the exceptions. The defendant appeals. We reverse and set aside the judgment of the trial court and remand the case for further proceedings.

Defendant contends that the judgment of default is void because he was not given notice, as he requested, of the trial court’s ruling on the exceptions in accordance with LSA-C.C.P. art. 1914. We find no indication that any such ruling was ever made and the judgment must be reversed for the reasons set forth herein.

The following articles of our Code of Civil Procedure are pertinent to the matter presented herein:

“Art. 929. Time of trial of exceptions.
“The declinatory exception, the dilatory exception and the peremptory exception when pleaded before answer, shall be tried and decided in advance of the trial of the case.
* * $ a
“Art. 1001. Delay for answering.
“A defendant shall file his answer within fifteen days after service of citation upon him, except as otherwise provided by law.
“When an exception is filed prior to answer and is overruled or referred to the merits, or is sustained and an amendment of the petition ordered, the answer shall be filed within ten days after the exception is overruled or referred to the merits, or ten days after service of the amended petition.
“The court may grant additional time for answering. ”
“Art. 1701. Judgment by default.
“If a defendant in the principal or incidental action fails to answer within the time prescribed by law, judgment by default may be rendered against him. This judgment must by obtained upon motion in open court, but shall consist merely of an entry in the minutes of the court."
“Art. 1702. Confirmation of default judgment.
“A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default.
‡ $ 3Jí J*

It is clear from a reading of these articles that the filing of a declinatory exception extends the time allowed for a defendant to answer until ten days after the disposition of the exception. It then follows that when no such disposition has been made the time allowed for answering has not elapsed and no default judgment may be entered.

This is supported by the decision of Cobb v. Coleman Oldsmobile, Inc., 346 So.2d 831 (La.App. 1st Cir. 1977), writ den., 349 So.2d 1269 (La.1977). That case deals with a preemptory exception which was filed subsequent to the entry of a preliminary default. The court found that since a peremptory exception could be raised at any point in the proceeding, it was properly before the court and went on the say, at page 833, that:

"... the only pleadings which operate as a bar to a default judgment are an answer, which necessitates a trial on the merits, and an exception which extends the time for answering until after the exception has been disposed of.
$ $ * # a|e afe
“Since the exception has not yet been disposed of by the trial court, the delay for answering has not yet expired, and, under Article 1707, supra, the default judgment could not be legally confirmed."

The declinatory exceptions herein were filed prior to the entry of the preliminary default and so were properly before the trial court. Since the record reflects no disposition of these exceptions the default judgment was improvidently granted.

We do not reach the merits of the exceptions in this opinion.

For the above reasons the judgment of the trial court is reversed and set aside and this suit is remanded to the trial court for further proceedings in accordance with law and the views expressed herein. The costs of this appeal are assessed to plaintiff-ap-pellee.

REVERSED AND REMANDED.


author: SAMUEL, Judge.

text:
    Maureen HERRMANN v. Ralph L. HERRMANN.
    No. 11758.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 1981.
    Rehearing Denied July 13, 1981.
    William H. Egan, Chalmette, for plaintiff-appellant.
    Miriam G. Waltzer and Ruth S. Samuels, New Orleans, for defendant-appellant.
    Before SAMUEL, KLIEBERT and McBRIDE, JJ.
   SAMUEL, Judge.

Plaintiff has appealed from a judgment condemning her husband to pay her $150 per month alimony pendente lite. The issue before us is the adequacy of the award as judged against the standards of Civil Code Article 148.

Defendant, Ralph L. Herrmann, who is an employee of South Central Bell Telephone Company, earned gross wages of $24,397 in 1979 (until December 1) including substantial overtime pay.

He itemized his monthly expenses as follows:

Mortgage Note $ 90.14
Insurance (Home). 24.00
Food 400,00
Utilities 59.12
Phone 15.00
Clothing 30.00
Cleaning 10.00
Doctor 10.00
Dentist 10.00
Medical Supplies 10.00
Automobile Note 300.00
Automobile Upkeep 20.00
Automobile Insurance 62.50 Gasoline • 80.00
Entertainment 25.00
Life Insurance 20.69
Household Items 20.00
A.A.A. 2.00
Haircuts 12.00
Union Dues 19.36
Charity 10.10
Paper 4.40
Personal Hygiene 20.00
S.S.P. (Company Savings Plan) 80.00
TOTAL $1,334.31.

His gross monthly income without overtime is $1,677, net $1,042.25. He has the following personal items deducted from his paycheck each month: $50 for a savings bond; $300 for payment on a car loan; and $80 for a company savings plan. The home he lives in is his separate property. He provides a Delta 88 for his wife and he drives a Dodge van. His automobile note of $300 per month should be paid off in seven months. Defendant testified that although he put in a lot of overtime in 1979, the company is not able to project overtime for next year.

Mrs. Herrmann testified her monthly income is $581, $175 of which is a disability pension from her former employer, and $406 from social security; and her monthly expenses are:

Rent $240.00
Insurance (Fire, Theft & Water Damage) 37.50
Food 300.00
Utilities 36.99
Phone 35.00
Clothes 150.00
Cleaning 40.00
Doctor 25.00
Dentist 5.00
Medical Supplies 24.00
Automobile Insurance 17.33 Automobile Upkeep 50.00
Gasoline 80.00
Entertainment 15.00
Beauty Shop 20.00
Hospital Auxiliary Dues 1.00
Newspaper 2.80
Legal Fees 45.90
Bowling 30.00
Moving 13.33
TOTAL $1,168.85.

She has a checking account of $280 and savings bonds with a cash value of $800. She lives in a two-bedroom apartment with her 20 year old son. He does not pay room and board, although he has a job. He buys groceries, vitamins and fills her car with gasoline occasionally. Her son earns about $250 per week. Her reason for maintaining a two-bedroom apartment is that her mother is 76 years old and if anything happens to her she will take her.

Plaintiff does not intend to ask her son for money until he is 21, and is willing to support him until that time. Her son will be 21 in a few months, at which time he will either move out or pay room and board.

The trial court awarded Mrs. Herrmann $150 per month, ordered the husband to maintain insurance coverage on his wife during the pendency of the proceedings and issued a writ of injunction prohibiting both parties from disposing of or encumbering any community property.

Civil Code Article 148 contemplates that the “sum for her support, proportioned to her needs and the means of her husband” shall be sufficient to maintain the wife in a style comparable to that which she enjoyed prior to the separation, as limited by her husband’s resources.

Appellant contends the alimony award was an abuse of discretion in view of her needs and her husband’s means.

While it is clear the husband has a greater income than his wife and apparently a larger amount of discretionary spending, it is also evident that he is not required to contribute to the support of an able-bodied 20 year old son of plaintiff by a former marriage whom she chooses to support in spite of the fact that he has a lucrative job and should contribute to his own support. We believe the trial judge may have been influenced by that consideration in arriving at the amount of the award.

We do not disagree with the above consideration. But, even accepting the same, we believe that under the provisions of Civil Code Article 148, the difference in the incomes of the two litigants (the husband’s at least in excess of $20,000 per year and the wife’s approximately $7,000 per year), together with their comparative expenses, requires that the husband pay alimony at the rate of $300 per month.

For the reasons assigned, the judgment appealed from is amended so as to increase the alimony award from $150 per month to $300 per month. As thus amended, and in all other respects, the judgment is affirmed.

AMENDED AND AFFIRMED.


text:
    Robert F. WILSON, as Curator Over the Person and Estate of William A. Smith v. STATE of Louisiana Through the LOUISIANA DEPARTMENT & DEVELOPMENT OFFICE OF HIGHWAYS.
    No. 11892.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1981.
    Rehearing Denied July 13, 1981.
    Dodge, Friend, Wilson & Spedale, Denis Paul Juge, New Orleans, for plaintiff-appel-lee.
    William W. Irwin, Jr., Robert LeDoux, Frederick J. Fuselier, Baton Rouge, and Jesse S. Guillot, New Orleans, for defendant-appellant.
    Before SAMUEL, GARRISON and BAILES, JJ.
   SAMUEL, Judge.

Robert F. Wilson, as curator for William A. Smith, an interdict, filed this suit against the State of Louisiana to compel the defendant to honor an option to reconvey to the interdict’s estate certain property in Metairie, Louisiana, which had been expropriated in 1959 for the construction of Interstate Highway 1-10. The original area expropriated from Smith contained 14,332 square feet for which he was paid $0.30 a square foot by the State. He now seeks to recover 5,281 square feet of land which presently fronts the 1-10 service road. Plaintiff also seeks an injunction prohibiting the State from selling the property at auction.

In 1963, four years after the expropriation proceeding was filed, Smith became engaged in litigation concerning title to the remaining unexpropriated property. His attorney obtained a land survey, which indicated an area of 5,281 square feet of land fronting the 1-10 service road adjacent to Smith’s remaining property had not been incorporated into the 1-10 system, even though it had been expropriated from Smith in 1959 for that purpose. Smith’s attorney sent a copy of the survey to the Department of Highways and requested re-conveyance of the unused property in return for payment of $0.30 a square foot, the expropriation price paid by the State.

A right-of-way attorney for the Department of Highways, Leslie Benton, Jr., advised Smith’s attorney by telephone and letter that the resale of this land to Smith had been approved by the State Department of Highways and the United States Bureau of Public Roads. Smith’s attorney advised Benton the land would be repurchased as soon as Smith ended the litigation over title to the property.

On May 8, 1972, another attorney representing Smith wrote Benton, advising him judgment had been rendered in Smith’s favor and that Smith desired to purchase the property in accordance with the Department’s letter agreement. On November 9, 1972 Thomas C. Bickman, Headquarters Property Manager for the Louisiana Department of Highways, responded to this letter and advised the attorney that another party also claimed the property in dispute and because of these conflicting claims over title to the over-expropriated property, the Department had decided to sell that property at public auction.

In 1974 litigation began which involved, among other things, whether Smith had transferred title to the disputed property to one Joseph A. Danos, Jr. On March 4, 1977 Smith was declared an interdict, and his cousin, Robert F. Wilson, was appointed his curator. Wilson made an appearance in the suit over the disputed property, and in November, 1979 a settlement was reached between Wilson and other interested persons. This agreement acknowledged that Smith was the sole owner of the property in suit.

The foregoing facts were presented to the trial court by a motion for summary judgment filed by Wilson on behalf of the interdict. After a hearing, judgment was rendered granting the motion and ordering the State of Louisiana, Department of Transportation & Development, to sell to Smith, through his curator, the 5,281 square feet in question at the price of $0.30 per square foot. The State has appealed from that judgment.

The facts upon which plaintiff bases his motion were set forth by affidavit and numerous exhibits. At the time of the hearing the State filed affidavits attempting to establish issues of fact. However, a reading of the State’s affidavits show that they do not raise any material issues of fact and the only issue for decision is a question of law.

Plaintiff contends the true issue is whether the State or the original owner of over-expropriated property is entitled to its enhanced value upon its sale. Plaintiff argues that because the State’s power of expropriation over private property is an extraordinary governmental right, the government should have no concomitant right to benefit for any error it may have made in taking more land from a private owner than it needed for public purposes.

Plaintiff concedes the right of eminent domain comes into being automatically with the establishment of a government or body politic, without the necessity of recognition of such right by constitutional or statutory authority. He argues, however, that subsequent provisions of both the federal and state constitutions respecting power to take private property by expropriation are not grants of such power, but rather limitations on the sovereign power of eminent domain. He points out that Amendment V of the United States Constitution provides “. . . nor shall private property be taken for public use, without just compensation.” Such a limitation was established in the Í921 Louisiana Constitution, in Article 1, § 2 thereof as follows:

“No person shall be deprived of life, liberty or property, except by due process of law. Except as otherwise provided in this Constitution, private property shall not be taken or damaged except for public purposes and after just and adequate compensation is paid.”

A similar limitation was retained in the Constitution of 1974, Article 1, § 4, which provides, in pertinent part:

“Property shall not be taken or damaged by the state or its political subdivisions except for public purposes . . . . ”

This is the kernel of plaintiff’s argument, that private property shall not be taken, except for public purposes. He argues that when the State expropriated Smith’s property in 1959 it took 5,281 square feet more than was necessary. He further argues that even though the property was originally taken for public use in accordance with state law, it is nevertheless uncontro-vertible that through the power of eminent domain more property was taken by the State than was necessary. He also points out that at the time of expropriation there was no way for Smith or anyone other than the defendant to determine more land was being expropriated than needed, so that there was in fact no basis for Smith to object to the taking of the over-expropriated property. Consequently, plaintiff contends he is entitled to repurchase the property not taken for public use at the price at which it was “purchased” from him by the State.

The State’s basic argument is that plaintiff should have filed a motion to dismiss the petition for expropriation of his property within 10 days of service of the expropriation suit in accordance with R.S. 48:447, which, in pertinent part, provides:

“Any defendant desiring to contest the validity of the taking on the ground that the property was not expropriated for a public purpose may file a motion to dismiss the suit within ten days after the date on which the notice was served on him.. .. ” (Emphasis ours).

The State thus argues plaintiff is forever barred from contesting the over-expropriation of his property. The State also relies on R.S. 48:221 which, prior to its 1977 amendment, provided in part:

“However, such property may be sold to the original vendor, or his successors in title, of the property to the department or to any adjoining owner whose property is separated from the highway by such excess area at a private sale, within the discretion of the department, upon payment of the original cost to the department or its present appraised market value, whichever is the greater.” LSA-R.S. 48:221.

Thus, the State contends its right-of-way attorney did not possess legal authority to agree to resell the over-expropriated property to plaintiff at the original expropriation price of $0.30 per square foot.

Plaintiff attempts to distinguish the last quoted statute by stating it applies only to property acquired by the State by private sale or donation and cannot be constitutionally applied to property the State has acquired through over-expropriation.

As pointed out above, the Louisiana Constitution of 1921 plainly provided private property shall not be taken or damaged except for public purposes. The settled jurisprudence is that the state is only entitled to take what it needs for public purposes; any over-expropriation is illegal. In New Orleans Pacific Railway Co. v. Gay, the Supreme Court stated:

“There is no. doubt that the title in fee of the property of a citizen may be taken, if necessary for purposes of public utility, adequate compensation therefor being made. But the only basis, for this right of expropriation, is the needs of the public. The property of no man can be taken without his consent, beyond what is demanded by the public necessity. This results, we think, from the provisions of the Federal and State Constitutions, which declare in substance that vested rights cannot be divested by the State, nor private property be taken, except for purposes of public utility. To entitle the public to take private property, two things are necessary; first, the interest of the public must require it, and second, adequate compensation must be made.
We think it a fair deduction and corollary of these propositions, that the public can take no more, either in quantity or estate, than will suffice the public wants. If necessary, the fee may undoubtedly be taken; but if not necessary, it cannot.” (Emphasis ours).

In City of New Orleans v. Giraud, this court stated the proposition as follows:

“We find no merit, however, to the City’s contention that the property adversely affected should be adjudicated to the expropriating body. Clearly established is the rule that only property that is reasonably necessary for the public purpose is to be expropriated.”

Finally, in City of New Orleans v. Moeglich, the Supreme Court stated in pertinent part:

“. . . It would be unreasonable to charge plaintiff with the duty of discovering that the Department, twelve years later, would place the fence, not on the line which it designated as the proper location in its own acquisition, but instead some 25 feet farther within plaintiff’s land.”

Thus, it is clear the State acted illegally by expropriating more land than was needed for highway purposes. The question remaining for our decision is whether the plaintiff is still entitled to take advantage of that illegality in view of the statutory provisions relied upon by the Department.

The State relies on R.S. 48:447, relative to expropriations for highway purposes, quoted above, which gives a property owner ten days to contest the validity of expropriation of his property by motion to dismiss. The remedy afforded by this statute is limited in nature, and harsh from the viewpoint of the landowner, but nevertheless needed in order to facilitate public purposes by allowing the rapid acquisition of land by expropriation.

However, in the present ease plaintiff had no way of knowing the State illegally over-expropriated his land. He thus argues he could not contest an over-expropriation of which he was not aware. The expropriation suit was filed on December 17, 1959, but the first survey revealing the over-expropriation was not made until 1963, after the highway was completed.

The State contends this is immaterial, that Smith shares with every other person the right to file a motion to dismiss the expropriation suit within ten days, and his failure to exercise that right resulted in its forfeiture even though he did not know of the over-expropriation.

The appropriateness of this argument by the State seems doubtful. Should this rule be enforced as the State argues, every property owner henceforth would be in the position of filing, as a matter of course, a motion to dismiss every expropriation proceeding to determine whether the State has expropriated more land than needed for public use. If this practice would be encouraged, the very purpose of the quick-taking statute would be defeated, and the State would be obliged to litigate every expropriation to its finality before a public road or other public project could begin. Such a holding would drastically limit the state’s power of quick expropriation rather than foster it.

A more logical solution was reached in the analogous case of Powell v. Department of Highways. In that case plaintiff sued to recover the value of property actually taken by the state after he sold portions thereof to the Department of Highways. Excess property had been fenced by the Department in 1971, but plaintiff only discovered the error in 1976. At that time he filed suit for the value of the property erroneously fenced by the state. The Department of Highways filed an exception of prescription based on R.S. 13:5111, which provides a three year prescription for damage claims for property taken other than by expropriation. This court ruled as follows:

“It is quite true that the Constitution only allows private property to be taken to the extent that the public interest demands, and no further, and expropriation beyond the public interest and necessity would obviously be unconstitutional.”

The analogy of the Powell case to the cáse now before us is a valid one. Plaintiff had taken from him by the State property which, for all he knew, was needed for highway purposes. He could only have known the property was not to be used for highway purposes after completion of the Interstate Highway and the service road next to it. This was discovered by a land survey made approximately four years after the taking, and only then did plaintiff, through his attorneys, become aware that his property had been over-expropriated. We conclude it is the duty of the State to act within the legal limits of its authority in expropriation matters, and when it fails to do so the property owner has a right to reclaim what has been taken from him illegally and not used for public purposes without regard for the ten day period mentioned in R.S. 48:447. In our view, to hold otherwise would have the effect of rendering the statute unconstitutional under the facts present here. Here, the statute is constitutional only if its ten day limitation period is restricted to contests over the validity of the taking, i. e., its public purpose, and not made applicable to contests over the extent of the taking. Additionally, the construction more accurately conforms to the statute’s literal wording.

The State further argues this court has no authority to review the necessity of an expropriation. It relies on State v. Guidry. However, the holding of the Guidry case on that point was repudiated by the Supreme Court in State, etc. v. Jeanerette Lumber & Shingle, as follows:

“As our discussion of these enactments indicates, the Guidry Court was in error in relying upon the broad reference to public purpose in Section 460 to decide that courts could not review the determinations of the Department on the extent of the taking....”
No language in the Constitution or in the statutes has been found, and none is pointed out, which prohibits judicial review of a Department determination that property should be taken for highway purpose.
.... A need for judicial review of the Department’s determinations is of special significance for it exercises the power of expropriation, one of the attributes of sovereignty most fraught with the possibility of abuse and injustice.”

Thus, we conclude we are within the authority afforded the courts in passing upon the necessity of the expropriation in the present case.

The final question for our determi-' nation is the validity of the agreement by the State Department of Highways to re-convey the property to the plaintiff at the original expropriation price. The fact of the agreement to reconvey the property at the expropriation price is documented by plaintiff’s exhibits. We do not deem the agreement unenforceable as in violation of R.S. 48:221, quoted above. That statute allows property over-expropriated to be sold to the original “vendor” upon payment of the original cost to the Department or the appraised market value of the property, whichever is greater. However, the statute presupposes the excess property offered by the State has been acquired by it legally. Such is not the situation in the present case, and we maintain the State is obligated to reconvey at $0.30 a square foot.

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

AFFIRMED.

      . A judge ad hoc originally heard the motion in the absence of the regular trial judge. However, on rehearing, the trial judge granted plaintiffs motion.

      . This is contrary to C.C.P. Art. 966.

      . See State v. Ouachita Parish School Board, 242 La. 682, 138 So.2d 109.

      . Louisiana Constitution of 1921, Article 1, § 2.

      . As does the corresponding provision of the 1974 Constitution.

      . 32 La .Ann. 474.

      . La.App., 346 So.2d 1113, at p. 1119.

      . 169 La. 1111, 126 So. 675.

      .In the present case the State acted under Art. 6, § 19.1 of the Louisiana Constitution of 1921 which granted ex parte expropriation power for “highway purposes”.

      . We also note R.S. 48:447 is permissive and not mandatory in its wording.

      . La.App., 383 So.2d 425.

      . 240 La. 516, 124 So.2d 521.

      . La., 350 So.2d 847, at pp. 855 and 856.

      . See also State v. Housing Authority of New Orleans, 190 La. 710, 182 So. 725; and Kansas City S. & G. Ry. Co. v. Meyer, 166 La. 663, 117 So. 765.


author: BOUTALL, Judge.

text:
    Henry J. BROCK v. ST. JAMES PARISH COUNCIL, Jerry Fowler, Commissioner of Elections and Jim Brown, Secretary of State, et als.
    No. 5-56.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 15, 1981.

    Reasons for Judgment June 19, 1981.

      Richard J. Brazan, Vacherie, for appellant.
    John L. Peytavin, Asst. Dist. Atty., Luteher, David E. Henderson, Asst. Atty. Gen., Louisiana Dept, of Justice, Baton Rouge, J. Hugh Martin, Sp. Counsel, Foley Judell Beck Bewley & Martin, New Orleans, for appellees.
    Before SAMUEL, C. J., and REDMANN, GULOTTA, BOUTALL, SCHOTT, GARRISON, CHEHARDY, BARRY, KLIEBERT and KLEES, JJ.
   BOUTALL, Judge.

Within sixty days of an election submitting to the voters of St. James Parish a proposition permitting the Parish to impose a sales tax of 1% and authorize issuance of bonds, Henry J. Brock, a registered voter and tax payer brought this election contest. Brock’s suit is based upon two major grounds: First, it is alleged that there was improper publication of the election notice and that the notice was published in a paper unqualified to serve as the official journal of the parish; second, the validity of the tax itself is questioned because it will not be uniformly collected throughout the parish. The trial court dismissed his suit and Brock appeals.

The first issue is the validity of that portion of the judgment maintaining an exception of no cause of action.

The defendants filed exceptions of no cause of action based upon the provisions of LSA-R.S. 18:1401(C) which authorizes a person in interest to bring an action contesting any election in which any proposition is submitted to the voters “if he alleges that except for irregularities or fraud in the conduct of an election the result would have been different.” Brock in his petition alleges only that “Had the ordinance properly been advertised in the paper that should have been the official journal, more people would have been put on notice and the result of the election could have been different. It is impossible to determine the effect the use of the proper official journal would have had.”

The trial judge concluded that that allegation was insufficient to fulfill the requirements of § 1401(C) and dismissed that portion of the suit. We agree with the reasons that he detailed and adopt them as our own.

Additionally, it should be noted that the trial judge permitted evidence to be introduced on this issue in order that a complete record might be had. We have examined that evidence, and we find that the plaintiff has not proven facts which would support his contention. During the pertinent time, the St. James Council had appointed a newspaper to be an official journal, and the validity of that appointment has never been adjudicated upon. Accordingly, that newspaper is the parish journal at the time in question. We do not think it appropriate to inquire into the qualifications of that newspaper and the validity of its appointment in the context of this suit. However, even conceding for the sake of argument that the newspaper was not qualified as an official journal, nevertheless the facts show it to be a newspaper of general circulation in the parish and fulfilling the qualifications imposed by LSA-R.S. 18:1285. Lastly, we point out that there is no evidence adduced which showed that any more or less voters would have voted or that they would have voted differently. Accordingly, we conclude that plaintiff’s attack on the election process lacks merit.

The second basic issue raised is the validity of the imposition of the sales tax itself.

The factual background is this. Within the geographical area of St. James Parish there had been three sales taxes imposed. In two separate elections the St. James Parish School Board imposed a sales tax of 1% in each election making a total of 2%. Another 1% sales tax had been imposed in the municipal limits of the municipalities of Luteher and Gramercy under the provisions of LSA-R.S. 33:2737.9, which created the “Lutcher-Gramercy General Improvement District” and authorized the district to levy and collect a sales and use tax not to exceed 2%. Thus there is already in existence a total 3% sales tax in the geographical limits of Luteher and Gramercy but 2% in the rest of the parish. It is contended that the 1% sales tax sought to be imposed in this election will be in violation of the Louisiana Constitution of 1974, Article 6, § 29 which imposes a limitation of 3% on sales taxes collected within any local governmental subdivision. Thus the tax would be unevenly applied because it would be imposed upon sales made outside of those municipalities but not imposed upon sales made inside those municipalities.

It has been argued that the parish intends to impose the tax only in those sections outside of the municipalities. If this plan was contained within the confines of the proposition submitted to the voters, we would agree basically with the detailed reasons for judgment given by the trial judge, in his disposition of this contention. However, we see the matter as presenting a different resolution. The proposition put before the people is as follows:

“PROPOSITION
Shall the Parish Council of the Parish of St. James, State of Louisiana (the “Council”), under the provisions of Article VI, Section 29(A) of the Constitution of the State of Louisiana of 1974, and other constitutional and statutory authority supplemental thereto, be authorized to levy and collect, and adopt an ordinance providing for such levy and collection, a tax of one per cent (1%) (the “Tax”) upon the sale at retail, the use, the lease or rental, the consumption, the storage for use or consumption, of tangible personal property and on sales of services in the Parish of St. James (the “Parish”), to the extent permitted by law, all as presently defined in R.S. 47:301 through 47:317 with [1] twenty-five per cent (25%) of the proceeds of the Tax (after paying reasonable and necessary costs and expenses of collecting and administering the Tax) to be used for the purpose of providing care and assistance to the elderly persons of the Parish and providing health service to the residents of the Parish, including the acquisition, operation and maintenance of vehicles necessary in connection therewith; [2] twenty-five per cent (25%) of the Tax to be used to provide solid waste management and disposal, including the acquisition of land, plants, buildings, machinery and equipment necessary in connection therewith; [3] twenty-five per cent (25%) of the Tax to be used to pay the cost of providing recreational facilities including the acquisition of land, buildings, machinery and equipment necessary in connection therewith; and [4] twenty-five per cent (25%) of the Tax to be used for the payment of the general operation and maintenance expenses of the Parish and/or for the acquisition of capital improvements for the Parish; and shall the Council be authorized to fund the proceeds of the Tax into bonds from time to time for the purpose of making capital improvements for the purposes listed above for the Parish to the extent and in the manner permitted by the laws of Louisiana, including, but not limited to, Sub-Part F, Part III, Chapter 4, Title 39 of the Louisiana Revised Statutes of 1950?”

It will be noted that the Council seeks the authority to impose the tax both under the provisions of the Constitution, Article 6, § 29 and the statutory law, “to the extent permitted by law”. We refer to LSA-R.S. 33:2721 which specifically authorizes St. James Parish to levy and collect within the parish a sales tax not exceeding 1%. Thus the real problem presented is whether the imposition of the 1% tax by the Lutcher-Gramercy General Improvement District prevents St. James Parish from enacting its 1% sales tax. We hold that it does not. We reiterate that this is not a contest involving a municipal tax and a parish tax, but one involving a district tax and a parish tax.

The authority for St. James Parish to impose a sales tax is found statutorily in LSA-R.S. 33:2721, and constitutionally in Article 6, § 29. The authority for the district to impose a tax is found statutorily in LSA-R.S. 33:2737.9 and constitutionally Article 6, § 30 relating to political subdivisions. When we compare the authorization statute of the parish as opposed to the district, there is nothing in either statute that would preclude the other from issuing a tax. Thus the issue revolves about the interpretation of Article 6, § 29 which imposes a limitation of 3% on local governmental subdivisions and school boards. We conclude that § 29 does not apply to districts but only to parishes, municipalities and school boards. The article only authorizes the governing authority of “any local governmental subdivision or school board” to levy and collect the tax. Similarly the 3% limitation is applicable to those taxes “levied and collected within any local governmental subdivision”. Article 6, § 44 provides specific definitions for the terms used in Article 6, and subsection (1) provides that local governmental subdivision means any parish or municipality. On the other hand subsection (2) provides that a “political subdivision” means a parish, municipality, and any other unit of local government, including a school board and a special district. Hence we do not see that the district is authorized to issue any taxes under § 29. Instead its constitutional authority can only come from Article 6, § 30 relating to political subdivisions. That section provides that a political subdivision may exercise the power of taxation subject to limitations elsewhere provided in the constitution, under authority granted by the Legislature for parish, municipal and other local purposes, strictly public in their nature. However, the section concludes that it shall not affect similar grants to political subdivisions under self-operative sections of this constitution. Clearly, Article 6, § 29 is a self-operative section authorizing a parish sales tax. Thus the district tax cannot affect it.

We point out that an alternative argument might be considered, that is, that the enactment of LSA-R.S. 33:2721 provides an additional authority granted by the Legislature to St. James Parish to impose a sales tax either under Article 6, § 29(B), or under the proposition that the additional statutory grant is inapplicable to the sales tax levied under Article 6, § 29. See for example Duplantis v. Terrebonne Parish School Board, 328 So.2d 374 (La., 1976) refusing writs from a trial court decision, holding LSA-R.S. 33:2737 is inapplicable.

Accordingly, we conclude that the proposition presented to the voters imposing a 1% sales tax within the parish of St. James is legal, and that the tax applies to the entire parish. For these reasons, it becomes unnecessary to consider the constitutional issues considered by the trial court and argued before us on appeal relative to unequal imposition of the tax and unequal distribution thereof.

There remains only two other issues. The first is the appellant’s insistence that he is entitled to proceed in a class action. We agree with the conclusions of the trial judge and state that an election contest suit is not an appropriate subject for a class action, and that LSA-R.S. 18:1281, 1294, and 1401(C) so demonstrate. Appellee has filed exceptions of no cause or right of action in this court complaining of the procedure used, and we simply state that the uniform election code for bond, debt and tax elections and especially the articles specified provide the procedure to be used in this type of case.

Accordingly, for the reasons assigned the judgment appealed from is affirmed at appellant’s cost.

AFFIRMED.

GULOTTA, J., concurs.

      . Redmann and Schott, J.J. note reservations about the trial judge’s discussion of constitutionality but otherwise join in this opinion and therefore withdraw their dissent from the decree handed down within 24 hours of hearing.


text:
    W. Paul STEWART v. Jeff STACEY and Rodney Chamblee, a Partnership, d/b/a Clinton Times.
    No. 52557.
    Supreme Court of Mississippi.
    June 3, 1981.
    D. Shackelford Shipp, Yazoo City, for appellant.
    William B. Wicker, Richard A. Montague, Jr., Wells, Downey & Wicker, Jackson, for appellees.
   Appeal from Circuit Court, Rankin County; Rufus H. Broome, Judge.

Before PATTERSON, C. J., and LEE and HAWKINS, JJ.

REVERSED AND RENDERED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM and BOWLING, JJ., concur.

HAWKINS and SUGG, JJ., specially concur.