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    Willie W. JOHNSON, Plaintiff-Appellee, v. James A. ALEXANDER, et al, Defendants-Appellants.
    No. 8450.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Rehearings Denied Jan. 4, 1982.

      McClain, Morgan & Savoy, Robert E. Morgan, Lake Charles, for plaintiff-appel-lee.
    Voorhies & Labbe, William M. Bass, Lafayette, for defendant-appellant.
    Raggio, Cappel, Chozen & Berniard, Christopher M. Trahan, Lake Charles, for intervenor-appellee.
    Before GUIDRY, FORET and DOUCET, JJ.
   GUIDRY, Judge.

Plaintiff, Willie W. Johnson, instituted this action against defendant, James A. Alexander, a backhoe operator, for damages sustained when a steel pipe being lifted by Alexander fell and struck plaintiff’s forefoot causing extensive injuries. Subsequent to the filing of plaintiff’s petition, United States Fidelity and Guaranty Company (hereafter USF&G), workmen’s compensation insurer of plaintiff’s employer, Vincent Construction Company, Inc., intervened praying for reimbursement for medical expenses and workmen’s compensation benefits paid to Johnson as a result of his work-related injuries. Plaintiff filed several amending and supplemental petitions additionally naming Dupont and Alexander Equipment Corporation, the regular employer of Alexander, and its liability insurer, Western World Insurance Company, as defendants. Prior to trial, the parties stipulated that intervenor, USF&G, had paid workmen’s compensation benefits to plaintiff in the sum of $7,540.00 as well as medical expenses of $1,495.37.

The trial court held in favor of plaintiff granting judgment against all defendants, in solido, in the sum of $102,479.06 with interest until paid. Additionally, the trial court ordered that intervenor, USF&G be paid for its expenditures with preference in accordance with LSA — R.S. 23:1103. Defendants appeal suspensively from that judgment.

FACTS

On February 22, 1978, plaintiff, Willie W. Johnson, was employed as a pipefitter by Vincent Construction Company, Inc. (hereafter Vincent) and was engaged in laying firelines at the Continental VCM plant in Westlake, Calcasieu Parish, Louisiana. At the time of the accident, Vincent’s pipefit-ting crew, of which plaintiff was a member, was preparing a length of steel pipe for installation. The pipe was approximately twelve inches in diameter, twenty feet in length, and weighed between 1200 and 2000 pounds. Immediately prior to the accident, the pipe was situated on pipe jacks, which elevated the pipe approximately three feet above the ground, with a portion of the pipe extending underneath a welding shed owned by Vincent. Before the pipe could be installed, it was necessary to affix a valve upon the flange of the pipe which necessitated that the pipe be moved from underneath the shed. Plaintiff’s supervisors, also Vincent employees, instructed him and a co-worker to use a 550 Ford Tractor (commonly referred to as a backhoe) to raise the pipe off of the pipe jacks and place it on the ground.

Prior to February 22, 1978, Vincent contracted with Dupont and Alexander Equipment Corporation (hereafter Dupont) for the rental of a backhoe and the services of an operator to assist in laying the firelines at the VCM plant. The backhoe furnished by Dupont was operated by defendant, James Alexander. At the request of one of the pipefitters in plaintiff’s crew, Alexander positioned his machine so that the bucket of the backhoe was located at the approximate mid-point of the pipe. Subsequently, a choker was wrapped around the pipe by plaintiff and a co-worker and the steel eye of the choker was slipped over one or more of the teeth of the backhoe bucket in order that the machine could lift the pipe and place it on the ground. Plaintiff testified that within seconds of signaling Alexander to lift the pipe, the choker holding the pipe slipped off the teeth of the backhoe and the pipe fell to the ground onto plaintiff’s forefoot crushing three of his toes and allegedly causing the damages complained of in this suit.

ISSUES

The following issues are presented on appeal:

(1) Was Alexander negligent in the operation of the backhoe and if so, was his negligence the cause in fact of plaintiff’s injuries?

(2) Was the defendant, James Alexander, a borrowed employee or statutory employee of Vincent Construction Company, Inc. and if so, does his status as such affect plaintiff’s right of recovery in tort?

(3) Was plaintiff contributorily negligent so as to bar his recovery?

(4) Did plaintiff knowingly assume the risk of harm presented by moving the pipe with the backhoe?

(5) Is the award of damages by the trial court to the plaintiff excessive?

WAS ALEXANDER NEGLIGENT IN THE OPERATION OF THE BACKHOE, AND, IF SO, WAS HIS NEGLIGENCE A CAUSE IN FACT OF PLAINTIFF’S INJURIES?

The record reflects that plaintiff and a co-worker wrapped the choker around the pipe to be lifted and placed the eye of the choker on one or two of the teeth of the backhoe bucket. Evidence adduced at trial indicates that when the bucket of the backhoe is pulled up tight against the forward boom of the machine, it results in the teeth of the bucket being pointed slightly upward. Apparently, this was the position of the teeth at the time the eye of the choker was placed upon the bucket prior to the accident. As the lifting began, the pipe’s weight stretched out the choker and as the boom of the backhoe went up, it resulted in a changing of the plane of the backhoe teeth from a slightly upward position to a level position, and, depending upon how high the bucket is raised, eventually to a downward or negative position.

Testimony at trial indicates that there was only one choker at the jobsite available for use in lifting the pipe. The eye of the particular choker utilized was too thick to fit snugly and securely behind the shoulder of the backhoe teeth. Thus, obviously, special caution was required in lifting the pipe.

Fred Liebkemann, an expert in the field of mechanical engineering, testified that he examined a backhoe identical to the one in use at the time of plaintiff’s accident. In the course of his examination, Mr. Liebkem-ann took various measurements and considered numerous variables present at the time of the accident, such as, the dimensions of the choker used, the extension of the boom of the backhoe, and the effect of the extension of the outriggers of the machine. Mr. Liebkemann testified that, by his calculations, with the outriggers of the machine fully extended and thus, the rear wheels raised six inches off the ground, and with the eye of the choker attached to a tooth of the backhoe bucket, the lifting of the pipe would be relatively safe as long as the teeth of the bucket were less than six feet from the ground. Liebkemann indicated that at a height of less than six feet, the teeth remained in an upward position thereby preventing the eye of the choker from slipping off. He further stated that at six feet above the ground, the teeth would be parallel to the ground, thus, presenting a more dangerous situation. Finally, Liebkemann testified that at a height of greater than six feet, the teeth of the backhoe would be in a negative position and the weighted eye would surely slip off.

Several witnesses, including Liebkemann and Alexander, himself, testified that the operator of the backhoe was in the best position to observe the changing angles of the teeth of the bucket as the bucket was lifted. According to the record, Alexander was experienced and knowledgeable regarding the operation of the 550 Ford tractor including the capabilities of and the dangers inherent in operating such a machine. Further, we note that he was charged with the duty of watching the bucket as he operated the machine since he was in complete control of the bucket’s movement. It was Alexander who controlled the elevation of the pipe and it was Alexander who could maintain such elevation so as to avoid the critical point at which the choker would, in all probability, slip off the backhoe bucket.

The trial judge, in his written reasons for judgment, notes that there exists conflicting testimony in the record concerning how high the pipe was raised by Alexander. However, the trial judge concluded that the most reliable testimony was that of Alexander himself. Alexander testified that the teeth of the bucket were raised at least six feet and more likely seven feet above the ground at the time the pipe fell and injured the plaintiff. The trial court concluded that in light of the expert testimony received at trial, the teeth of the backhoe were, at the very least, at a precariously level position and most likely at a dangerously negative position at the time of the accident. Thus, the trial court concluded that Alexander was negligent in the operation of the backhoe in that he raised the bucket to such a height that the choker slipped off of the teeth of the backhoe and the pipe struck the plaintiff.

It is well settled that a reviewing court must give great weight to the factual conclusions of the trier of fact, and where there is a conflict in the testimony, reasonable evaluation of credibility and reasonable inferences of fact should not be disturbed, even though the appellate court may feel that its own evaluations and inferences are as reasonable. See Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, writ granted, 359 So.2d 1303 (La.1978), 365 So.2d 1330 (La.1978), on remand, 370 So.2d 1262 (La.App. 3rd Cir. 1979); Bertrand v. Aetna Casualty & Surety Company, 306 So.2d 343 (La.App. 3rd Cir. 1975), writ denied, 310 So.2d 641 (La.1975). We find no manifest error on the part of the trial court in his conclusion that defendant Alexander was negligent.

WAS ALEXANDER A BORROWED AND/OR STATUTORY EMPLOYEE OF VINCENT CONSTRUCTION COMPANY AT THE TIME OF PLAINTIFF’S ACCIDENT?

Defendant Alexander contends that he was a borrowed or statutory employee of Vincent at the time of the subject accident. In such regard, Alexander argues that since he was a borrowed or statutory employee of Vincent and thus, a co-employee of the plaintiff, the plaintiff may not maintain the instant action against him since such suits are prohibited by the Louisiana Workmen’s Compensation Act, specifically LSA-R.S. 23:1032. Should we conclude that Alexander is in fact a borrowed or statutory employee of Vincent and immune from suit by Johnson, this would necessarily raise as a corollary issue the responsibility of Alexander’s general employer, Dupont, for its regular employee’s delictual acts.

The issue of whether or not an individual is a “borrowed employee” is an issue of fact. Vincent v. Ryder Enterprises, Inc., 352 So.2d 1061 (La.App. 3rd Cir. 1977); LeBlanc v. Roy Young, Inc., 308 So.2d 443 (La.App. 3rd Cir. 1975), writ denied, 313 So.2d 240 (La.1975); Nichols Construction Corporation v. Spell, 315 So.2d 801 (La.App. 1st Cir. 1975). The most commonly employed test utilized by the courts to determine if one is a “borrowed servant” is the “right of control” test. Benoit v. Hunt Tool Co., 219 La. 380, 53 So.2d 137 (La.1951), on remand, 56 So.2d 292 (La.App. 1st Cir. 1952); McCutchen v. Fruge, 132 So.2d 917 (La.App. 3rd Cir. 1961); Pagitt Well Service, Inc. v. Sam Broussard, Inc., 293 So.2d 631 (La.App. 3rd Cir. 1974), writ denied, 295 So.2d 817 (La.1974); Berry Brothers General Contractors, Inc. v. Air Marine, Inc., 328 So.2d 771 (La.App. 1st Cir. 1976); Highlands Insurance Co. v. L. J. Denny and Son, 328 So.2d 779 (La.App. 3rd Cir. 1976), writ refused 333 So.2d 237 (La.1976); Dupre v. Sterling Plate Glass & Paint Company, Inc., 344 So.2d 1060 (La.App. 1st Cir. 1977), writ denied 347 So.2d 246 (La.1977).

In Dupre v. Sterling Plate Glass & Paint Company, Inc., supra, our brethren of the First Circuit stated:

“The most widely accepted test cited for establishing an employer-employee relationship involves the right of control. Benoit v. Hunt Tool Company, supra; Ruiz v. Shell Oil Company, 413 F.2d 310 (5th Cir. 1969) (action arising under the Longshoremen and Harbor Workers Compensation Act). The right of control has been described to include the following factors: the right to select and discharge the employee, the right to supervise and direct his work, and the method by which it is done, and the manner in which the employee is paid, (citations omitted)
Implicit in the right to control is the necessity that the lending employer relinquish its control over its employee to the borrowing employer and that he is performing work for the borrowing employer’s business. Benoit v. Hunt Tool Company, supra; Berry Brothers General Contractors, Inc. v. Air Marine, Inc., supra. Additionally, the concept of the ‘borrowed employee’ doctrine, by its terms, connotes an agreement of some type between the lender and the borrower, that the lender relinquished such control of the employee' to the borrower. Ruiz v. Shell Oil Company, supra; Malone, § 57, pp. 61-66, pocket part, § 57, pp. 14-21.”

In the instant action, it is not disputed that Alexander was regularly employed by Dupont and was paid for his services as a backhoe operator by that company. Vincent was charged an hourly rate for the use of the backhoe and the services of an operator. Dupont submitted invoices reflecting the number of hours of service performed by Alexander and payment for such services was made directly to that corporation in accordance with such invoices. Alexander was not paid by Vincent. Additionally, we note that the 550 Ford tractor employed by Alexander in the performance of his duties was owned and furnished by Dupont.

Regarding the degree of control exercised by the supervisory personnel of Vincent over Alexander’s work, we observe that although Vincent’s foreman directed Alexander as to what tasks needed to be accomplished, they did not instruct him as to how he was to accomplish and complete such jobs. The method and manner employed by Alexander to complete his assigned jobs were left strictly up to him. In addition, although Vincent had the authority to terminate the contract between it and Dupont if the services of the operator selected by Dupont were unsatisfactory, Vincent did not have the power to fire Alexander from his job as a backhoe operator.

The trial judge concluded that Alexander was not the borrowed employee of Vincent. We find no clear error in this determination. As we stated in Universal Engineers and Builders, Inc. v. Lafayette Steel Erector Corporation, 235 So.2d 612 (La.App. 3rd Cir. 1970):

“. .. there is a presumption that the general employer retains control of and remains liable for the negligent acts of his employee. If the general employer seeks to avoid liability on the ground that his employee is the ‘borrowed servant’ of another, then the burden of proof rests upon the general employer to show that the relationship of master and servant which previously existed between the general employer and employee has been suspended, that a new such relationship has been created between the borrowing employer and that employee, and that such new relationship was in existence at the time the accident occurred.”

Dupont has not successfully carried its burden of proof as set forth above. From our careful reading of the record, we conclude that Alexander was under the control of Dupont and was performing the work of the aforesaid corporation at the time of plaintiff’s injury.

Alternatively, defendant contends that Alexander was a statutory employee of Vincent’s Construction Co., Inc. and thus, a co-employee of the plaintiff which under the provisions of LSA-R.S. 23:1032 and 1061 would prohibit plaintiff from suing Alexander. The trial court found no statutory employer-employee relationship. We find this conclusion to be manifestly in error.

There are four essential elements which must be present in order for LSA-R.S. 23:1061 to be applicable:

“(1) The relationship of principal-contractor (as distinguished from another type of relationship, i.e., vendor-vendee) must exist.
(2) There must be a contract between the principal and contractor for the execution by the contractor of the whole or any part of the work being undertaken by the principal.
(S) The ‘work’ which is the subject of the contract must be part of the principal’s trade, business or occupation.
(4) The injured employee must be engaged in the execution of the ‘work’ as described above.
LSA-R.S. 23:1061; Broussard v. Heebe’s Bakery, Inc., 263 La. 561, 268 So.2d 656 (1972); Liles v. Riblet Products of Louisiana, Inc., supra.”

All of the essential requisites are present in the instant case. The record establishes a principal-contractor relationship between Vincent and Dupont whereby Dupont would furnish and maintain one 550 tractor with an operator at a rate of $24.00 per hour. The backhoe was to be utilized in the laying of firelines at the Continental VCM plant in Westlake. The laying of such fire-lines was part and parcel of the work undertaken at the VCM plant by Vincent. The record reflects, that Vincent, itself, owned and operated a number of backhoes, however, contracted for the subject machine due to a shortage of such equipment. The excavating of the trenches wherein the pipe would be placed and the lifting and moving of various supplies, both accomplished by the backhoe, were an essential and integral part of Vincent’s construction contract, and is thus, part of Vincent’s trade, business or occupation. Defendant Alexander was engaged in lifting pipe to be ultimately incorporated into the firelines at the time of plaintiff’s accident, thus, he was engaged in the execution of the work which was the subject of Vincent’s contract with Continental VCM clearly a part of Vincent’s trade or business. Therefore, we conclude that Alexander was a statutory employee of Vincent’s Construction Company at the time of plaintiff’s injury.

Alexander avers that since he is a “co-employee” of the plaintiff by virtue of his statutory employer-employee relationship with plaintiff’s employer, the instant suit is barred by virtue of LSA-R.S. 23:1032 which prohibits suits in tort as between co-employees.

Although LSA-R.S. 23:1032 and 1061 do not clearly provide that a statutory employee becomes a co-employee of all of the regular employees of the statutory employer, it appears to us that this status is necessarily intended by those cited sections of Louisiana’s Workmen’s Compensation Act.

LSA-R.S. 23:1032 explicitly provides that the rights and remedies granted via the Louisiana Workmen’s Compensation Act to an injured employee are exclusive of all other rights and remedies (e.g. suits in tort) “. .. against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal . . . ”. However, the aforesaid statute does not provide for the particular factual situation presently before this court. In the instant case, a regular employee of defendant Alexander’s principal (also, plaintiffs employer) is suing his employer’s statutory employee and such statutory employee’s general employer and its liability insurer. The language of LSA-R.S. 23:1032 provides for the more common situation where the statutory employee is injured on the job while in the employ of his special employer by providing that the injured statutory employee can sue neither his statutory employer nor the regular employees of his statutory employer in tort. For example, in the instant case, Vincent is the regular employer of Johnson and the principal of Alexander. Clearly, if Alexander had been hurt he could not bring a tort suit against Johnson because under Section 1032 the rights and remedies granted under the Workmen’s Compensation Act are exclusive of all other rights and remedies against an “employee of his employer or principal.” However, the aforesaid statute is silent in regard to the right of a regular employee of a principal to sue the principal’s statutory employees in tort. Although as far as we have been able to determine, this particular issue is res novo, in our view it would be incongruous to hold that the provisions of LSA-R.S. 23:1032 would bar suits in tort by a statutory employee against the regular employees of the principal but would not bar suits in tort by the regular employees of the principal against statutory employees of the principal. Thus, we conclude that when an employee acquires the status of a statutory employee by application of the provisions of LSA-R.S. 23:1061, he becomes a co-employee vis-a-vis the regular employees of the principal within the intendment of Section 1032. Therefore, we determine that since Alexander was a statutory employee of plaintiff’s employer, Vincent, he, thus, became a co-employee of Johnson. Since, the explicit language of LSA-R.S. 23:1032 prohibits suits in tort as between co-employees, we conclude that the plaintiff may not maintain the instant suit against Alexander.

Having concluded that plaintiff may not maintain this suit against his co-employee, Alexander, the issue now becomes whether or not Dupont and its liability insurer are responsible by virtue of the doctrine of re-spondeat superior for the torts of Dupont’s regular employee even though such employee was at the time of the tort a statutory employee of plaintiff’s employer and a co-employee of the injured plaintiff.

This very issue, albeit within a different factual context, was considered by our brethren of the Second Circuit in the recent case of Franklin v. Haughton Timber Co., 377 So.2d 400 (La.App. 2nd Cir. 1979), writ denied, 380 So.2d 624 (La.1980). The facts in Franklin are as follows: Keith Hoffee was engaged in the business of producing pulpwood from a certain tract of land. His sole employee was Donald Holm. Holm’s duties consisted of cutting and stacking pulpwood, driving the pulpwood truck to the market and doing whatever else he was instructed to do by Hoffee. Hoffee planned to be absent from the business for a week and, in response to requests by Holm, agreed to permit Holm to continue to work in Hoffee’s absence. Holm, without authorization from Hoffee, employed plaintiffs’ decedent, Mark Franklin, to assist him in his work. During the course of such work, plaintiffs’ decedent was electrocuted. The decedent’s parents filed a wrongful death action against Holm’s employer, Hof-fee, and his liability insurer, for damages alleging that Hoffee as employer of Holm was responsible for the negligence of Holm and was vicariously liable to them for the damages they sustained by virtue of Holm’s negligence. In rejecting the plaintiffs’ demands the court reasoned as follows:

“An employee who employs another on his master’s behalf without his master’s expressed or implied authority does not create a relationship of employer-employee between his helper and his employer in absence of ratification by the employer of the employment agreement at a subsequent time. Gentry v. Peterson, 19 So.2d 623 (La.App. 2d Cir. 1944); Harris v. Sun Indemnity Co. of N. Y., 28 So.2d 403 (Ct. of App. Orleans 1946); Porter v. La. Grocers Co-operative, Inc., 233 So.2d 709 (La. App. 4th Cir. 1970). Mark who was employed by Holm without the knowledge or authorization of Hoffee, did not become Hoffee’s casual employee. Holm testified he had agreed to pay decedent, though the specific amount of his compensation had not been determined. Holm had enlisted decedent’s assistance and had engaged Mark to help him measure the wood to be cut. Therefore, he had power of control over Mark’s action while on the job and the power to dismiss Mark. Under these circumstances Mark, having worked throughout the day and having assisted in the production and hauling of approximately four cords or a truckload of pulpwood for compensation which he was to receive from Holm, became Holm’s employee. Carter v. Lanzetta, 249 La. 1098, 193 So.2d 259 (1966). He was not the employee of Hoffee who was totally unaware of Mark’s participation in the pulpwood operation until after his death. Porter v. La. Grocers Co-operative, Inc., supra. Because the employer-employee relationship existed between Mark and Holm, plaintiffs’ exclusive remedy against Holm lies in the workmen’s compensation statute under the provisions of LSA-R.S. 23:1032.
The only negligence which brought about the electrocution of decedent was Holm’s failure to secure the boom in its proper and lower position upon the loaded Pack-a-Back. His failure to lower the boom to a height of less than 18-feet was the reason why the boom became engaged in the electric transmission lines. The absent Hoffee had no part in the negligence of Holm in attempting to travel under the line with the boom in a raised position to a height above 18-feet. Under these circumstances the plaintiffs do not assert that Hoffee was guilty of any personal fault in connection with decedent’s death. Plaintiffs’ sole contention concerning Hoffee’s liability is that he is vicariously responsible for the negligent conduct of his employee Holm.
In Louisiana the liability of a servant for damages under LSA-C.C. Art. 2315 for the wrongful death of another caused through his negligence is primary. The master’s liability imposed by LSA-C.C. Art. 2320 in favor of third persons for the damages occasioned by his servant’s negligence rests solely on the principle of respondeat superior and is derivative or secondary in all cases where the master himself is not at fault. Williams v. Marionneaux, 240 La. 713, 124 So.2d 919 (1960); Caldwell v. Montgomery Ward & Co., Inc., 271 So.2d 363 (La.App. 2d Cir. 1972).
In Marionneaux, supra, the court described the master’s liability as follows:
“In Louisiana, the liability of the servant for damages under Article 2315 of the Civil Code for injuries to another caused through his negligence is primary. Conversely, the liability imposed on the master by Article 2320 of the Code in favor of third persons for the damages occasioned by his servant’s negligence, while exercising the functions in which the servant is employed, rests solely on the principle of respon-deat superior and is derivative or secondary in all cases where the master himself is not at fault.” Id. 124 So.2d at 922.
The court while discussing the plaintiff’s release of the servant containing a reservation of the claim against the master stressed plaintiff had but one cause of action against the servant and the master. The court stated:
“There was but one cause of action which the law gave plaintiff in recompense for his injuries. That cause of action sounded exclusively in tort under Article 2315 of the Civil Code. Under Article 2320 this same cause of action for Blanchard’s alleged tort was assertable against Marionneaux but it was cognizable only because Blanchard was allegedly acting in his function as an employee of Marionneaux at the time Blanchard committed the negli-gencet [sic] act causing plaintiff’s injury.” Id. 124 So.2d at 923 (emphasis supplied)
See also Thomas v. Clarklift and Reliance Ins. Co., 375 So.2d 375 (La.1979) where the supreme court made the following statement with regard to the liability of a master for the negligent acts of his servant:
“It is true, of course, as held in Caid-well, that a master’s liability with respect to his employee’s negligence is secondary or vicarious, and that the employer is not a joint tortfeasor with its employee.”
Hoffee, the master here, cannot be vicariously liable for the negligence of his servant Holm because Holm is not primarily liable under LSA-C.C. Art. 2315 for the tort he committed. LSA-R.S. 23:10321 removed Holm’s primary tort liability by making Holm liable exclusively in workmen’s compensation for any injuries caused to his employee. The tort remedy of Article 2315 is eliminated by the workmen’s compensation remedy.
This provision has been construed to eliminate the Civil Code Article 2315 cause of action against an employer whose negligent acts brings about the injury or death of an employee. Colorado v. Johnson Iron Works, 146 La. 68, 83 So. 381 (La.1919); Atchison v. May, 201 La. 1003, 10 So.2d 785 (1942); Hawkins v. Employers Casualty Company, 177 So.2d 613 (La.App. 3d Cir. 1965); Cripe v. Haynes, 350 So.2d 956 (La.App. 2d Cir. 1977).
The court in Atchison, supra, in discussing the workmen’s compensation cause of action against the employer whose negligence brought about the death of plaintiff’s brother quoted from the earlier Colorado v. Johnson, supra:
“. . . Said act, by its plain and express terms, does make the remedy which it provides exclusive in a case like the present; it therefore does apply to this case, and does supersede article 2315 of the Code . . . First, because formerly the right to sue for the death of a human being, which is the right plaintiff is seeking to exercise did not exist in this state, but was given by statute, and, of course, the Legislature may repeal a statute enacted by itself, or supersede it by another statute; second, because the regulation of what recourse one person may have against another for personal injury is a matter entirely within legislative discretion.” Id. 10 So.2d at 787
The court further stated:
“The mere fact that it so happens that the deceased employee in this case left no dependents cannot have the effect of providing a right of action in the plaintiffs under Article 2315 of the Civil Code, when that right had been superseded and abated by the provisions of the Employer’s Liability Act.” Id. at 789
In the decision of Cripe, supra, this court recognizes that the compensation act in providing that remedies therein are exclusive against the employer created a substantive change in the law and eliminated the tort cause of action against a negligent employer:
“The injured employee has no cause of action against the employer for the damages caused by the employer’s fault.” Id. 350 So.2d at 961
The Civil Code 2315 cause of action against a negligent employer by an injured employee or his dependents is totally eliminated by the Louisiana Workmen’s Compensation law which provides in lieu thereof designated specific benefits to the injured employee or his dependents.
The cited jurisprudence construing LSA-R.S. 23:1032 requires the conclusion that plaintiffs have no cause of action against Holm and the jurisprudence construing the master’s liability requires there to be primary legal responsibility in the servant before the master becomes secondarily liable. Under these circumstances Hoffee cannot be vicariously liable for the death of Mark due to the negligence of Holm.”

As noted, the Louisiana Supreme Court denied writs in the Franklin case and, although a writ denial is not controlling, it is persuasive in that the principal issue on appeal in Franklin concerned the vicarious liability of the tortfeasor’s employer.

We agree with the holding in the Franklin case considering same to be logical and reasonable and one which reaches a just result in keeping with the legislative purpose and intent of the Workmen’s Compensation Act. Accordingly, we conclude that since Alexander, a co-employee of Johnson is not primarily liable in tort to Johnson by reason of the co-employee exemption set forth in LSA-R.S. 23:1032, Alexander’s general employer and its insurer cannot be held secondarily liable.

We recognize that the conclusion which we reach in this case is seemingly in conflict with the La. Supreme Court decision in LeJeune v. Allstate Insurance Company, 365 So.2d 471 (La.1978). The factual circumstances of the instant case are extremely similar to those present in LeJeune. In the LeJeune case, plaintiff’s decedent was a regular employee of Ardoin’s Funeral Home of Mamou, Inc. (Mamou). He was killed as a result of the negligence of the defendant, LaFleur, a regular employee of Ardoin’s Funeral Home of Ville Platte, Inc. (Ville Platte), who had been borrowed by Mamou. Decedent’s survivors sought tort recovery from the insurer of the general employer, Ville Platte, under the doctrine of “Respon-deat Superior.” In LeJeune, the Court concluded that Ville Platte, the general employer, was liable for damages caused to a third person (LeJeune) as a result of the loaned employee’s negligence.

In LeJeune, the court expressly held that both a general and a special employer may be held liable to third persons for the employee’s torts. Justice Tate in LeJeune noted that the determination that an employee tortfeasor is a borrowed employee “. . . should not relieve the general employer of his liability for his employee’s negligent acts done in the pursuance of duties designated for him by his employer, in whose pay he continued, and who had the sole right to discharge him.”

We conclude that it is consistent to apply the LeJeune rationale to cases involving a statutory employer-employee relationship. That is to say, as to third persons injured by an employee’s torts both the statutory employer and the general employer are responsible. However, in our view, for the reasons heretofore stated, plaintiff cannot be considered a “third person” entitled to delictual recovery from Vincent, Alexander or Dupont.

Although in LeJeune plaintiffs’ decedent, under similar factual circumstances, was allowed recovery as a “third person,” the court reached this result without considering Ville Platte’s immunity from suit under R.S. 23:1032, by reason of the co-employee relationship which existed between the decedent in LeJeune and the tortfeasor. This issue was not raised nor considered. Under the circumstances we do not consider LeJeune, although factually similar, to be dispositive of the issues presented in this case.

Having concluded that the trial court judgment on the issue of liability must be reversed and plaintiff’s suit as against all defendants dismissed, we need not consider those issues pertaining to the contributory negligence and/or assumption of the risk of plaintiff or the issue of quantum of damages.

For the above and foregoing reasons, the judgment of the trial court is reversed and it is now ordered, adjudged, and decreed that plaintiff’s suit against defendants, James A. Alexander, Dupont and Alexander Equipment Corporation and its liability insurer, Western World Insurance, be dismissed with prejudice. It is further ordered that the intervention of United States Fidelity and Guaranty Company be dismissed with prejudice.

It is further ordered that all costs of these proceedings both at the trial level and on appeal be born one-half (V2) by United States Fidelity and Guaranty Company and one-half (V2) by plaintiff, Willie W. Johnson.

REVERSED AND RENDERED.

      . LSA-R.S. 23:1103 provides:
      “In the event that the employer or the employee or his dependent becomes party plaintiff in a suit against a third person, as provided in R.S. 23:1102, and damages are recovered, such damages shall be so apportioned in the judgment that the claim of the employer for the compensation actually paid shall take precedence over that of the injured employee or his dependent; and if the damages are not sufficient or are sufficient only to reimburse the employer for the compensation which he has actually paid, such damages shall be assessed solely in his favor; but if the damages are more than sufficient to so reimburse the employer, the excess shall be assessed in favor of the injured employee or his dependent, and upon payment thereof to the employee or his dependent, the liability of the employer for compensation shall cease for such part of the compensation due, computed at six per cent per annum, and shall be satisfied by such payment.
      No compromise with such third person by either the employer or the injured employee or his dependent shall be binding upon or affect the rights of the others unless assented to by him.”

      . The record reveals that Dupont and Alexander Equipment Corporation is owned by two stockholders, one of whom is the defendant, James Alexander. Alexander was also serving as President of the aforesaid corporation on February 22, 1978.

      . The choker employed at the time of plaintiff’s accident was described as a piece of belting approximately 12-14 inches wide and approximately six feet in length with two metal eyes at each end, one eye being smaller than the other so as to fit through the larger eye.

      . LSA-R.S. 23:1032 provides:
      “The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word “principal” shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.
      Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
      The immunity from civil liability provided by this Section shall not extend to: 1) any officer, director, stockholder, partner or employee of such employer or principal who is not engaged at the time of the injury in the normal course and scope of his employment; and 2) to the liability of any partner in a partnership which has been formed for the purpose of evading any of the provisions of this Section.”

      . LSA-R.S. 23:1061 provides:
      Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.
      Where the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.”

      . In LeJeune, the Court considered the issue of delictual responsibility of a general employer for the negligence of the general employer’s regular employee which caused injury to a regular employee of the special employer within the “borrowed servant” context.

      . In LeJeune, plaintiffs did not bring suit against LaFleur or Ville Platte. Rather, plaintiffs sued only Insurance Company of North America, Ville Platte’s insurer.

      . The LeJeune court only considered the effect of the “fellow employee” relationship between LeJeune and LaFleur under a “fellow employee” exclusion clause contained in INA’s policy concluding that “. . . a ‘borrowed employee’ is not necessarily to be defined as a ‘fellow employee’ for purposes of an exclusion clause, given the usual construction of language in insurance policies.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, Petitioner, v. John Edward GEE, Respondent.
    No. 60295.
    Supreme Court of Florida.
    Nov. 25, 1981.
    Jim Smith, Atty. Gen. and Evelyn D. Golden, Asst. Atty. Gen., Daytona Beach, for petitioner.
    James B. Gibson, Public Defender and James R. Wulchak, Chief-Appellate Division, Daytona Beach, for respondent.
   PER CURIAM.

Affirmed. 400 So.2d 466 (Fla.App.1981) Murray v. State, 403 So.2d 417 (Fla.1981).

ADKINS, Acting C. J., and BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Michael ASHWOOD, Respondent.
    No. 60737.
    Supreme Court of Florida.
    Nov. 25, 1981.
    Jim Smith, Atty. Gen. and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for petitioner.
    Carl S. McGinnes, Asst. Public Defender, Tallahassee, for respondent.
   PER CURIAM.

Affirmed. 405 So.2d 991. Murray v. State, 403 So.2d 417 (Fla.1981).

ADKINS, Acting C. J., and BOYD, OVERTON, ALDERMAN and MCDONALD, JJ. concur.


author: BARRY, Judge.

text:
    Dr. Lawrence J. KERN, Jr. Individually and on Behalf of His Minor Daughter, Kevin Kern v. TRAVELERS INSURANCE COMPANY, et al.
    No. 12053.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 21, 1981.
    Rehearing Denied Dec. 18, 1981.
    Frank Sloan, Metairie, for plaintiffs-appellants.
    Darryl J. Carimi, Gretna, for defendants-appellees.
    Before GULOTTA, GARRISON and BARRY, JJ.
   BARRY, Judge.

On March 25, 1970 plaintiff’s minor daughter was a guest passenger in an automobile that was struck by an automobile driven by Glen Carimi. It was stipulated that at the time of this accident Carimi was an unemancipated minor residing with his father and that Travelers Insurance Company had a liability policy in force covering the father’s vehicle which the minor was driving with his father’s consent.

Plaintiff originally sued the minor’s father, Travelers, and others, alleging negligence of the minor. On March 24, 1971 plaintiff filed a supplemental petition adding Chrysler Corporation as a defendant alleging the Carimi vehicle was defective. Chrysler answered with an exception of vagueness that was maintained and which plaintiff failed to cure allowing Chrysler to be dismissed without prejudice. On March 16, 1979 plaintiff sued Glen Carimi, then of majority, and also prayed that the petition against Chrysler be re-alleged and reiterated. On April 4, 1979 an amended petition was filed asserting the joint and solidary liability of Carimi, his father, Travelers and Chrysler.

On April 7, 1980 Glen Carimi filed an exception of prescription which was maintained. Plaintiff now appeals urging that Carimi is liable in solido with his father, Travelers, and Chrysler and a timely lawsuit against any solidary obligor interrupts prescription as to other solidary obligors.

The District Court cited Wooten v. Wimberly, 272 So.2d 303 (La.1972) in determining that this tort action did not create a solidary obligation between father and son. The majority in Wooten held that C.C. Art. 2318, which imposes liability on the father for the torts of his minor, does not expressly create an in solido obligation, therefore solidarity cannot be presumed because C.C. Art. 2093 provides:

An obligation in solido is not presumed; it must be expressly stipulated.
This rule ceases to prevail only in cases where an obligation in solido takes place of right by virtue of some provisions of the law.

Wooten relied upon Cox v. Shreveport Packing Co., 213 La. 53, 34 So.2d 373 (1948) which said that a vicariously liable master and servant were not solidarily obligated for the latter’s employment-related tort. Thomas v. W. & W. Clarklift, Inc. and Reliance Insurance Company, 375 So.2d 375 (La.1979) held that a vicariously liable employer was a solidary obligor with a concurrently negligent stranger; however, Cox was distinguished. In Thomas “the fact that the employer’s liability was vicarious was held not to bar solidary liability between the employer and the concurrently negligent tort-feasor.” Foster v. Hampton, 381 So.2d 789 (La.1980) at p. 790.

In Foster our Supreme Court found a master and servant solidarily liable although the master’s liability is vicarious and they are not joint tort-feasors. The Foster court said both master and servant are obligated for the same thing and come under C.C. Art. 2091 which states:

There is an obligation in solido on the part of the debtors, when they are all obliged to the same thing, so that each may be compelled for the whole, and when the payment which is made by one of them, exonerates the others toward the creditor.

Foster concluded that the injured party has only one cause of action against the employer and employee, and suit against either will interrupt prescription as to the other. Cox v. Shreveport Packing Co. was expressly overruled.

Williams v. Marionneaux, 240 La. 713, 124 So.2d 919 (1960) considered whether a plaintiff, after settling with the tort-feasor and reserving his rights, can proceed against the tort-feasor’s employer. The Williams court, relying upon Cox, held that the employer was also released reasoning that without solidarity a release of the employee precluded recovery against the employer whose liability was only derivative in nature. However, Sampay v. Morton Salt Company, et al, 395 So.2d 326 (La.1981), again considering the employer-employee relationship, stated that an obligation is solidary if the requisites of C.C. Art. 2091 are met and overruled Williams, holding that the reservation of rights against the solidarily liable employer was effective. Chief Justice Dixon criticized the Cox court for “utilizing a restrictive method of interpreting the Civil Code” in its conclusion that solidarity cannot exist without an express provision of law. The Sampay court reasoned that liability is imposed upon the employer without regard to his own negligence or fault and is a consequence of the employment relationship; and although the employer and employee are not joint tort-feasors, they are nonetheless each obligated for the same thing — total reparation of the damages to the victim. “The derivative nature of the employer’s liability is of no concern to the victim, and he can compel either the employer or the employee to compensate him for the whole of his damages.” Sampay, supra, at p. 328.

Our interpretation of Foster and Sampay leads us to conclude that the vicarious responsibility of the father for the del-icts of his minor child creates an obligation whereby the father and child are each obligated for the same thing — total reparation of the damages to the victim. The victim can compel either the father or minor to compensate for the whole of his damages and payment by either exonerates the other. That being so, the requisites of C.C. Art. 2091 are met and the father’s vicarious liability under C.C. Art. 2318 is in solido with the minor. One consequence thereof is that citation served on one solidary obli-gor interrupts prescription as to all other solidary obligors. Sampay, supra, and Foster, supra.

As to the solidary liability between the minor and Travelers, this court has held that suit against the omnibus insured (the minor driver) interrupted prescription as to the insurance company since the insured and insurer are solidarily liable under C.C. Art. 2097. Aetna Insurance Company v. Boh Brothers Construction Company, 365 So.2d 927 (La.App. 4th Cir. 1978). Conversely, if suit was timely filed against Travelers, which is solidarily liable with the omnibus insured minor, prescription was also interrupted as to the minor.

Plaintiff alleged the joint negligence of the minor and Chrysler and as joint tort-feasors they are liable in solido. C.C. Arts. 2324, 2091, 2093.

For the foregoing reasons the judgment of the District Court maintaining the exception of prescription filed by the defendant, Glen Carimi, is hereby reversed and set aside and this matter is remanded to the District Court for further proceedings.

REVERSED AND REMANDED.

      . Justice Tate concurred in the result but wrote that “... the majority reasoning is erroneous and does fundamental violence to our civil law concept of solidary obligations, ... ”. Justice Barham adopted Justice Tate’s reasoning but dissented from the result urging “. . . the majority opinion in this case not be allowed to stand in our jurisprudence. I believe it to be totally erroneous in its discussion of the solida-ry obligation and totally erroneous in its application of the law of prescription.”

      . The minor is liable to the plaintiff for his tort by virtue of C.C. Art. 2315 which requires a tort-feasor to pay for damage done by his fault. Minority is not a defense against personal liability for damages occasioned by negligence. C.C. Arts. 1785, 1874, and 2227.
      The father of the minor is also liable for damages caused by his minor’s delicts. C.C. Art. 2318, Deshotel v. Travelers Indemnity Company, 257 La. 567, 243 So.2d 259 (1971).


author: KLEES, Judge.

text:
    Rennie COLUDROVICH v. Roy HESS.
    No. 12311.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 9, 1981.

      Martin E. Regan, Jr., New Orleans, for appellant.
    David J. Hebert, Marrero, for appellee.
    Before REDMANN, SCHOTT and KLEES, JJ.
   KLEES, Judge.

On July 4, 1978, the plaintiff and the defendant and members of their respective families were at Fort Jackson located in Plaquemines Parish, Louisiana celebrating Independence Day. About 6:00 P.M. a fist fight broke out between the defendant’s sixteen year old son and another young man while they were standing on a bridge. Mr. Camille Gomez, the maintenance superintendent at the park attempted to break up the fight and while doing so was thrown over the bridge into the muddy moat below by a man he later identified as the defendant.

It was after Mr. Gomez was thrown over the bridge that the plaintiff Coludrovich came into the picture. He was a Plaque-mines Parish Sheriff’s Deputy on 24 hour call and was not in uniform on this day. When he heard that there was a fight and someone was thrown into the moat he ran to his police car and called for assistance. At trial, the plaintiff testified that he approached the defendant, who knew him for years and knew that he was a police officer. He asked what was the trouble as the defendant was “cussing and raising cane” and the defendant attacked him and beat his head against the brick floor two or three times causing serious injuries to his inner ear. While the defendant was on top of the plaintiff, he stated that he told him that he was under arrest.

The defendant presented a much different version of the facts. He admits that he did push Mr. Gomez over the bridge railing into the moat but that he did so only because he thought Mr. Gomez was attacking him. He stated that he only punched him slightly and that if Mr. Gomez had not been drunk he would not have fallen over. However, he could produce no evidence to prove that Mr. Gomez was drunk other than his own self-serving statement.

The defendant also claims that he went to apologize to Mr. Gomez and while doing so he was hit on the head from behind. He became enraged and while in this condition was approached from the side by plaintiff who he knew for years and knew he was a police officer. Finally, he claimed that as the plaintiff grabbed him he retaliated believing that the plaintiff was someone attempting to harm him.

The only issue raised in this appeal is whether the defendant Hess used more force than was reasonably necessary in self-defense. The trial judge found that defendant used unnecessary force and we agree.

The general rule of Law, as properly stated by appellant is that where a person reasonably believes he is threatened with bodily harm he may use whatever force appears to be reasonably necessary to protect himself. Each case depends on its own facts, such as relative size, age and strength of the parties, their reputations for violence, the degree of physical harm reasonably feared and the presence or absence of weapons. Byrd v. Isgitt, 338 So.2d 374 (3rd Cir. 1976) and the authorities cited therein.

The question of whether or not the defendant acted in self-defense is one which has to be decided on the facts of the case. In the present suit the trial judge, who was in a position to observe the demeanor of the witnesses, chose to believe the story as told by the plaintiff and his witnesses and obviously found that the defendant was the aggressor and did not act in self-defense.

A review of the record discloses that Mr. Hess admitted he had previously been convicted several times of disturbing the peace.

Additionally, the defendant voluntarily interjected himself into a fight on the day of this incident resulting in his pushing Mr. Gomez into the moat. Continuing, the defendant was involved in another incident wherein he was struck on the head. We note that defendant failed to mention this when he was first put on the stand under cross examination.

Finally defendant ended up in a fight with plaintiff, a man he knew for many years and knew was a police officer.

The trial judge has a great deal of discretion when making factual determinations, as in the present case, and when that determination is based in part on a credibility evaluation the decision of the trial court should not be disturbed absent a clear showing of manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1130 (La.1978).

Accordingly, for the reasons assigned, the judgment appealed from is affirmed. Costs to be paid by appellant.

AFFIRMED.


author: FORET, Judge. GUIDRY, Judge,

text:
    Herbert COLEMAN, as Executor for the Estate of Ed Coleman, Plaintiff-Appellant, v. OCCIDENTAL LIFE INSURANCE COMPANY OF NORTH CAROLINA, et al, Defendants-Appellees.
    No. 8338.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Rehearing Denied Jan. 4, 1982.

      O’Dowd & O’Dowd, George O’Dowd, New Orleans, for plaintiff-appellant.
    Provosty, Sadler & DeLaunay, Frederick B. Alexius and F. Rae Swent, Crowell, Owens & Tudor, Richard T. Crowell, William P. Polk, Alexandria, for defendants-appellees.
    Before GUIDRY, FORET and DOUCET, JJ.
   FORET, Judge.

Herbert Coleman (appellant), as executor of the estate of Ed Coleman, brought this action to recover $10,105.20 under a credit life insurance policy issued to decedent by Occidental Life Insurance Company of North Carolina (Occidental). In addition to Occidental, General Motors Acceptance Corporation (GMAC) and Walker Oldsmobile Company, Inc. (Walker) were named as defendants.

The trial court rendered judgment in favor of defendants and against plaintiff, who appeals from that judgment. Appellant raises the following issues:

(1) Whether the trial court properly admitted decedent’s credit application in evidence, and
(2) Whether the trial court committed manifest error in finding that decedent made certain false statements of material fact with an actual intent to deceive.

FACTS

On June 19, 1979, decedent purchased an automobile from Walker in Alexandria, Louisiana, and financed it through GMAC. The loan was secured by a chattel mortgage on the automobile. As part of the loan negotiations, credit life insurance was arranged by Walker through Occidental. A premium of $538.86 for the credit life insurance was included in the purchase price. Decedent died on October 3, 1979.

Subsequently, plaintiff submitted proof of decedent’s death to GMAC, the holder of the promissory note, and claimed the amount of the debt remaining under the credit life insurance policy. Occidental denied coverage alleging that decedent had represented his age to be 65 at the time of purchase, when, in fact, he was 75. The terms of the group policy issued to Walker by Occidental expressly excludes coverage of anyone over 65.

Plaintiff instituted this action alleging that Occidental had no just cause for refusing to pay his claim. In the alternative, plaintiff alleged that Walker and GMAC were liable to him for the full amount specified in the insurance contract because Walker, acting as agent for Occidental, made false and/or misleading statements and/or improperly received funds from decedent in executing the insurance contract. Plaintiff brings this devolutive appeal from the judgment of the trial court dismissing his action against Occidental and Walker.

ADMISSIBILITY OF CUSTOMER’S STATEMENT

Appellant contends that the trial court erroneously allowed decedent’s credit application admitted in evidence because it was not attached to the policy of insurance as required by LSA-R.S. 22:618(A) which provides:

“No application for the issuance of any insurance policy or contract shall be admissible in evidence in any action relative to such policy or contract, unless a correct copy of the application was attached to or otherwise made a part of the policy, or contract, when issued and delivered. This provision shall not apply to policies or contracts of industrial insurance subject to R.S. 22:213A(1) and 22:259(2).”

To preserve a party’s right to urge error on appeal, it is necessary to make formal objection to admissibility or competency of evidence sought to be introduced. LSA-C.C.P. Article 1635 (formerly LSA-R.S. 13:4448); Bertoli v. Flabiano, 116 So.2d 76 (La.App. 1 Cir. 1959). The record shows that appellant made no objection to the introduction in evidence of the credit application and, in fact, was the one who introduced that document. Thus, we find no merit to appellant’s contention.

DECEDENT’S MISREPRESENTATION

Occidental contends that it would not have issued a policy to decedent had it been aware of his true age at the time he applied for credit life insurance. The evidence shows that decedent was 75 years old at that time, which is some ten years above the age limit set by Occidental in the master policy issued to Walker. Occidental bases its avoidance of the policy terms on LSA-R.S. 22:619, which provides:

“§ 619. Warranties and misrepresentations in negotiation; applications
A. Except as provided in Sub-section B of this Section and R.S. 22:692, no oral or written misrepresentation or warranty made in the negotiation of an insurance contract, by the insured or in his behalf, shall be deemed material or defeat or avoid the contract or prevent it attaching, unless the misrepresentation or warranty is made with the intent to deceive.
B. In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer.”

In Fruge v. Woodmen of the World Life Insurance Society, 170 So.2d 539 (La.App. 3 Cir. 1965), this Court set out the burden of proof required of the insurer by LSA-R.S. 22:619, supra:

“We think it is settled, therefore, that in view of the provisions of LSA-R.S. 22:619 an insurer cannot succeed in avoiding liability on a life insurance policy on the ground that false statements were made in the application, unless the insurer establishes: (1) That the false statements were made with actual intent to deceive; and (2) that the facts allegedly misstated were material. The law also is clear that where the insurer asserts a special defense of this sort the burden of proof rests on the insurer to establish both the materiality and an actual intent to deceive.”

The principal witness was Douglas Tid-well, the business manager for Walker. After decedent negotiated the price of the automobile with a Walker salesman, he was referred to Tidwell to arrange financing. Tidwell completed the credit application and sale and chattel mortgage forms involved in the transaction, with decedent providing him with the necessary information. He testified that decedent stated his date of birth to be December 30, 1913, which placed his age at 65 years. Tidwell testified that decedent’s application for the credit life insurance would have been rejected if he had known that decedent was over 65. The uncontradicted testimony establishes that a misrepresentation of age in the present case is material since it would have a direct bearing on Occidental’s decision to accept the risk.

Thus, the crucial issue is whether decedent made the false statement of material fact with an actual intent to deceive. The trial court’s written reasons for judgment provide a good summary of the law applicable to a decision on this issue, and we adopt them as our own:

“The question of what constitutes intent to deceive was examined by the Supreme Court in Cousin v. Page, 372 So.2d 1231 (1979), at 1233:
“The courts of appeal in interpreting a similar provision in R.S. 22:619B have reasoned that strict proof of fraud is not required to show the applicant’s intent to deceive, because of the inherent difficulties in proving intent. Intent to deceive must be determined from surrounding circumstances «indicating the insured’s knowledge of the falsity of the representations made in the application and his recognition of the materiality of his misrepresentations, or from circumstances which create a reasonable assumption that the insured recognized the materiality.” (citations omitted).
The clear import of that case, from the facts found and the discussion of the findings by the Court of Appeal, at page 1235, is that not only must the insured be aware of the falsity, but that he must also be aware of the materiality of his misrepresentation. In other words, to prove intent to deceive, it is incumbent on the insurer to show that the decedent must have known he was misstating his age and that it would make a difference in whether or not he would be accepted as an insured.
In the present case, this Court finds that intent to deceive was present. Mr. Coleman must have known that the date of birth he gave was incorrect. As Mr. Tid-well testified, all information used to complete the credit application was supplied by Mr. Coleman. While it may be possible for a person of considerable years to not accurately remember his date of birth, the Court is impressed with the fact that Mr. Coleman correctly stated to Mr. Tidwell, his drivers’ license number. To.have recalled so little used number and to have forgotten his date of birth, appears unlikely. It is more likely that Mr. Coleman was looking at his drivers’ license at the time he gave Mr. Tidwell the number. Several lines below that number is the date of birth. To have read or recalled one number exactly and then misread or misrecollected another which is equally obvious on the face of the license and more likely to be remembered is untenable. Accordingly, Mr. Coleman, must have known the date of birth he gave was incorrect.
The second prong of the test to prove fraudulent intent announced in Cousin v. Page, supra, is that there be a showing in effect, that Mr. Coleman knew that misstating his age would make a difference in the insurer’s decision to accept the risk. In Johnson v. Occidental Life Insurance Company of California, 368 So.2d 1032 (Sup. 1979), the Supreme Court found it proper and reasonable to assume that the insured recognized the materiality of a misrepresentation upon consideration of the number and nature of the misrepresentations and a finding that the insured knew of the falsity of his representations in that case.
It has been determined that Mr. Coleman knew or should have known that he misstated his age. The misrepresentation made was only one in number, but was of such a nature as to indicate that Mr. Coleman was fully aware of the significance of his age. He misstated his birth date by a full ten years with the result that his represented age was such as to just barely fit him within the policy limitations.
The sale and chattle [sic] mortgage form signed by Mr. Coleman contained a section for an application for credit life insurance through Prudential Insurance Company with express mention of the 65 years age limitation. It is true that Mr. Coleman did not sign that portion of the form, but its presence on the front of the form together with the other considerations addressed above indicate that it is more likely than not that Mr. Coleman did possess the requisite intent to deceive.”

Plaintiff presented no evidence to show that Tidwell had made any false and/or misleading statements to decedent. The evidence indicates that decedent’s daughter was present when he gave the information to Tidwell, as his credit application was being prepared. Occidental argues that appellant’s failure to call her as a witness gives rise to a presumption that her testimony would have been unfavorable to appellant.

It is well established that such a presumption is available in this State. Morgan v. Matlack, Inc. 366 So.2d 1071 (La.App. 1 Cir. 1979); Walters v. Coen, 228 La. 931, 84 So.2d 464 (1955); Wolfe v. Employers Commercial Union Insurance Company, 272 So.2d 714 (La.App. 3 Cir. 1973). The unexplained failure of a party to call a witness who possesses peculiar knowledge of material facts pertinent to the resolution of the litigation entitles the opposing party to the presumption that the witness’s testimony would be unfavorable.

Our review of the record establishes that the trial court’s finding that decedent misrepresented a material fact with an actual intent to deceive is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978); Canter v. Koehring Company, 283 So.2d 716 (La. 1973).

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

GUIDRY, J., dissents and assigns written reasons.

GUIDRY, Judge,

dissenting.

I respectfully disagree with my brethren of the majority in their conclusion that the decedent, at the time his credit application was received, misstated his age with actual intent to deceive. There is no evidence in the record indicating that the decedent had knowledge of the age limitations for procuring the credit life insurance. On the other hand, Mr. Tidwell, the business manager for Walker, knew the policy restrictions but made no effort to determine the applicant’s eligibility when it should have been apparent to him that decedent was at least near the age limitation. Although the record clearly shows that the decedent misstated his age, this misstatement, whether intentional or not, was made in connection with the credit application and before any discussion with regard to credit life insurance. When credit life insurance was later discussed it would have been a simple matter for Mr. Tidwell to explain the age limitations to the decedent and to then reaffirm that the decedent was, in fact eligible or ineligible for insurance. In sum, I would conclude that the decedent cannot be held to have misrepresented his age with an intent to deceive where the record does not reflect that the decedent was aware of the age limitations applicable to the Occidental policy.

For these reasons I respectfully dissent.

      . The trial court’s judgment makes no mention of defendant, GMAC.

      . See Estate of Borer v. Louisiana Health Service, 398 So.2d 1124 (La. 1981) which held that failure to attach application for insurance to policy when issued and delivered did not affect insurer’s right to defend on basis that, by terms of policy, coverage was excluded.


author: SWIFT, Judge.

text:
    Viola L. FRANK, Plaintiff-Appellee, v. CONTINENTAL STATES AUTO CLUB, INC., and Manchester Life Insurance Company, Defendants-Appellants.
    No. 8364.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Rehearing Denied Jan. 4, 1982.

      Ardoin & Daigle, J. Winston Ardoin, Eunice, for defendant-appellant-appellee.
    Preston N. Aucoin, Ville Platte, for plaintiff-appellee-appellant.
    Before CULPEPPER, GUIDRY, FORET, SWIFT and LABORDE, JJ.
   SWIFT, Judge.

This is a suit for benefits allegedly due under an insurance contract.

On June 19, 1979, Ms. Frank allegedly sustained injuries in an automobile accident for which she was hospitalized from June 26,1979, through July 6,1979. At the time plaintiff was a member of the Continental States Auto Club, Inc. (Continental) and as such she was insured by the latter’s underwriter, Manchester Life Insurance Company (Manchester), the defendants herein. The policy contained the following provisions:

“SECTION TWO — IN HOSPITAL INDEMNITY
If such injury as is covered under Parts 1, 2 and 3 herein shall, within 48 hours, confine the Insured to a hospital (as defined herein) as a resident patient for treatment therein, and does not result in any loss described under Section One herein, the Company will pay the Insured for expenses, actually incurred by the Insured, for such hospital service resulting from any one accident and limited as follows:
“(3) Hospital Room and Board and Miscellaneous Hospital Services must commence within 48 hours after the accident and are payable only for the first continuous hospital confinement from the date of the accident causing such injury. No benefits will be provided for subsequent hospital confinement.”
(Emphasis added.)

As Ms. Frank admittedly was not hospitalized within 48 hours after the accident Manchester refused to honor her claim. She has sued for $1,520.00 for eleven days of hospitalization, $250.00 for miscellaneous hospital services and the statutory penalty and an attorney’s fee allegedly for Manchester’s arbitrary and capricious failure to pay the benefits.

The trial judge ruled that the 48 hour restriction is merely directory and not' mandatory and that plaintiff is entitled to the benefits under the policy. He stated:

“It would seem that a hospitalization within forty-eight (48) hours of an accident would be presumptive that the hospitalization was for injuries received in the accident. Hospitalization for injuries received in the accident after forty-eight (48) hours would require stronger proof by a claimant that the hospitalization was for injuries caused by the accident. It is further held that the forty-eight (48) hours exclusion and/or restriction is an unreasonable restriction and exclusion, and further it would be against public policy to enforce such a restriction.”

The demand for the penalty and attorney’s fee was denied as the court concluded that the insurer acted reasonably under the circumstances. The defendant insurer appealed. The plaintiff also appealed from that part of the judgment which denied her the penalty and an attorney’s fee.

The trial judge cited two cases in support of his holding that the 48 hour clause was unreasonable and against public policy. In Valladares v. Monarch Insurance Company, 282 So.2d 569, 572 (La.App. 4 Cir. 1973), writs denied 284 So.2d 603 (La.1973) and 284 So.2d 604 (La.1973), the plaintiff sued the defendant insurer when the latter refused to pay for certain medical expenses on the ground that the expenses were not incurred within one year from the date of the accident, as required by the policy. The court of appeal allowed recovery stating:

“... [W]here, as in the instant case, the injury manifests itself within one year of the accident, the insurer is aware of the nature of the injury, the insured approaches a physician and obtains a diagnosis and recommended course of treatment prior to the expiration of one year from the date of the accident, and the treatment cannot successfully be completed within the one year period that the insured has nevertheless ‘incurred’ an expense within the terms of the policy.”

In Humphries v. Puritan Life Insurance Company, 311 So.2d 534 (La.App. 3 Cir. 1975), the insurance policy provided that the insurer would pay those covered charges which the insured incurred within 52 weeks of the accident, provided the first expense was incurred within 90 days of the accident. The plaintiff’s son sustained an injury and saw a doctor within 90 days. That doctor treated the son several times and subsequently recommended surgery. A second opinion was obtained by the plaintiff more than 90 days after the accident. The second doctor also suggested surgery and it was performed. The insurer refused to pay for the surgery, arguing that the first charges for the surgical expenses were not incurred within 90 days after the accident. This court disagreed, citing Valladares, and ordered the insurer to pay the surgical costs. Since the first treating physician recommended surgery before 90 days elapsed and the insurer knew of such recommendation then the surgery itself was a continuation of treatment that began during the required period.

In neither of these two eases did the courts declare the provisions of the insurance policy void as against public policy. Instead, the decisions focused on contractual provisions which appeared vague and ambiguous and interpreted same in favor of the insureds.

The trial judge in the instant case distinguished Matherne v. Prudential Insurance Company, 362 So.2d 823 (La.App. 3 Cir. 1978). In Matherne the policy contained a provision which automatically ended group insurance coverage upon an employee’s termination of employment. Unlike those in Valladares and Humphries, the policy in Matherne expressly and clearly defined “charges incurred” and limited same to charges incurred on the date the charge arose. As the plaintiff was seeking recovery for a charge which arose after his employment terminated, he was not covered by the policy and could therefore not recover. This policy provision was found to be unambiguous and not violative of public policy.

We believe the trial judge in this case erred in relying on Valladares and Hum-phries and in distinguishing Matherne. Therefore, we reverse.

This court has held that a provision in a life insurance policy which precluded recovery of the additional accident death benefit when the insured died more than 90 days after the accident was not against public policy. Fontenot v. New York Life Insurance Company, 357 So.2d 1185 (La.App. 3 Cir. 1978), writ refused 359 So.2d 622; Hardee v. Kilpatrick Life Ins. Co., 373 So.2d 982 (La.App. 3 Cir. 1979). In Fontenot we said:

“It is well settled law that a policy of insurance is a contract between the Insured and the Insurer and has the effect of law on the parties. LSA-C.C. Article 1901; Smith v. North American Company For Life, Accident & Health Insurance Company, 295 So.2d 483 (La.App. 3rd Cir. 1974), writ granted, 299 So.2d 360, reversed on other grounds, 306 So.2d 751. It is equally well settled law that insurers are at liberty to limit their liability and impose conditions upon their obligations so long as such conditions and limitations do not conflict with statutory law or offend public policy. When such conditions and/or limitations are clear and unambiguous they must be given effect as written. Muse v. Metropolitan Life Insurance Company, 193 La. 605, 192 So. 72 (1939); Andrus v. Police Jury of Parish of Lafayette, 270 So.2d 280 (La.App. 3rd Cir. 1972); Cormack v. Prudential Insurance Company of America, 259 So.2d 340 (La. App. 4th Cir. 1972) writ refused, 261 La. 824, 261 So.2d 230.”

In holding that the 48 hour requirement in the policy before the court is unreasonable and against public policy the trial judge stated:

“To hold otherwise would compel an insured under such a policy to become hospitalized within forty-eight (48) hours after an accident whether or not during that time he would need to be hospitalized. It would compel people to enter the hospital within this period to be covered under a policy. It is well known and recognized by the medical profession and the courts that injuries that can result from accidents such as cerebral hemorrhage, internal vascular or abdominal hemorrhage, incomplete fractures, ruptures of intestinals, or bruises of vital organs, are not discovered for many days after the accident, and people suffering from such injuries would be barred from recovery under such a policy. Such a restriction thereby would punish or penalize innocent insureds from coverage under a policy such as the one at bar. While this is a limited policy, the limitation in question in this suit is an unreasonable restriction as stated above and should allow an insured a longer period to determine whether or not he should be hospitalized for such accidental injuries.”

While we understand the judge’s concern, we do not find this policy limitation so unreasonable to classify it as against public policy. The 48 hour provision is clear and unambiguous and undoubtedly it was a factor in calculating the amount of the premium charged for the policy. Also, as the trial judge pointed out, it minimizes uncertainty as to whether or not the injuries were accidental. Since Ms. Frank did not become hospitalized until seven days after the accident, the insurance policy does not cover her hospital expenses.

Having decided that the plaintiff is not entitled to recover under the insurance policy, we need not address her contention that the trial court erred in failing to award the penalty and attorney’s fee.

For the foregoing reasons, the judgment of the trial court is reversed and plaintiff’s suit is dismissed at her costs. The costs of appeal are also assessed to the plaintiff.

REVERSED AND RENDERED.

FORET, J., dissents for the reasons assigned by the trial judge.

LABORDE, J., dissents.


author: FORET, Judge.

text:
    Johnny HAMMOND, Plaintiff-Appellant, v. FIDELITY & CASUALTY COMPANY OF NEW YORK, Defendant-Appellee.
    No. 8406.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Rehearing Denied Jan. 4, 1982.

      McHale & Bufkin, Louis D. Bufkin, Lake Charles, for plaintiff-appellant.
    Stockwell, Sievert, Viccellio, Clements & Shaddock, John S. Bradford, Lake Charles, for defendant-appellee.
    Before GUIDRY, FORET and DOUCET, JJ.
   FORET, Judge.

This is a workmen’s compensation suit in which plaintiff, Johnny Hammond, appeals from a decision of the district court which denied his claim for benefits for total and permanent disability. We affirm.

Plaintiff alleges that he is totally and permanently disabled as a result of an accident he suffered on June 8, 1979, while engaged in the course and scope of his employment with Morgan Crop Service. The accident occurred as plaintiff was driving a truck on an air strip preparing to load a chemical onto an airplane, when a front wheel of the truck went into a pothole. The steering wheel began to spin, and plaintiff’s arm slipped between the spokes of the wheel, bruising his left arm between his elbow and shoulder. Plaintiff was treated with cold compresses at Memorial Hospital in Lake Charles and released that day. The next day plaintiff returned to work and continued to work for over two months thereafter. Although the swelling of the arm initially subsided after the accident, it began to swell again, and in August of 1979, plaintiff consulted Dr. Gunderson, an orthopedic surgeon. Dr. Gunderson referred plaintiff to Dr. Gore, a cancer specialist, who determined that plaintiff had a malignant cancerous growth in his upper left arm. Plaintiff was next seen by Dr. Melvin M. Romsdahl, a cancer surgeon in Houston, Texas. Dr. Romsdahl removed the malignant tumor and the surrounding muscle. The plaintiff is presently undergoing chemotherapy and is unable to work.

The issue on appeal is whether or not the trial judge erred in finding that plaintiff’s present disability is not causally related to the employment accident he suffered on June 8, 1979.

In workmen’s compensation claims, the plaintiff-employee bears the burden of proving, by a preponderance of the evidence, causation between the work-related accident and the disability. Hall v. Houston General Ins. Co., 377 So.2d 561 (La.App. 3 Cir. 1979), writ, denied, 379 So.2d 10 (La. 1980); Soileau v. Bituminous Casualty Corporation, 348 So.2d 1313 (La.App. 3 Cir. 1977).

Three doctors examined and/or treated the plaintiff. The testimony of these physicians is unanimous that there is no causal relationship between the trauma plaintiff experienced on June 8, 1979 and the cancer and resulting disability. Dr. Gunderson, who initially examined the plaintiff, testified by deposition that the cancer was not caused by the accident. Dr. Romsdahl, who excised the cancer, in a report admitted into evidence, indicated that the cancer was not caused by the accident, nor was it rendered more malignant by it. Dr. Gore, a cancer specialist, testified at trial that there was no causal relationship between the cancer and the accident.

We are well aware of the legal principle relied upon by plaintiff, stated in Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (La.1969), that “Where there is proof of an accident and of a following disability, without any intervening cause, it is presumed that the accident caused the disability.” This presumption was recently explained in Allor v. Belden Corp., 393 So.2d 1233 (La.1981), as follows:

“On the specific issue of the causal connection between the accident and the disability, the claimant is entitled to the benefit of a presumption in certain cases. If an otherwise healthy worker suffers an accident at work and is thereafter disabled, it is presumed that there is a causal connection between the two, so long as the medical evidence establishes a reasonable possibility of such a connection. See Cadiere v. West Gibson Products Co., Inc., 364 So.2d 998 (La.1978); Haughton v. Fireman’s Fund American Ins. Cos., 355 So.2d 927 (La.1978); Lucas v. Ins. Co. of North America, 342 So.2d 591 (La.1977); Bertrand v. Coal Operators Cas. Co., 253 La. 1115, 221 So.2d 816 (1969); Malone & Johnson, supra, § 259, p. 572-3. This presumption is not conclusive, but it forces the defendant to come forward with sufficient contrary evidence to rebut it.”

We believe, as did the trial court, that the medical evidence sufficiently overcame this presumption. All the physicians who examined and treated the plaintiff were of the opinion that the work-related accident of June 8, 1979 did not cause the disabling cancer. The trial court’s factual determinations will be given great weight on appellate review and will not be disturbed in the absence of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Crump v. Hartford Accident & Indemnity Co., 367 So.2d 300 (La.1979); Hall v. Houston General Ins. Co., supra. Our review of the record indicates that the trial court was correct in finding that the plaintiff had not proved that his disability was caused by the work-related accident.

For the above and foregoing reasons, the judgment of the trial court denying the plaintiff’s claim for workmen’s compensation benefits is affirmed. All costs of this appeal are assessed against plaintiff-appellant, Johnny Hammond.

AFFIRMED.


author: LABORDE, Judge.

text:
    Allen BEYER, et al., Plaintiffs-Appellants, v. F & R OILFIELD CONTRACTORS, INC., et al., Defendants-Appellees.
    No. 8415.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1981.
    Rehearing Denied Jan. 4, 1982.

      Frederic G. Hayes, Hayes, Fazzio, Durio & Richard, Steven Durio, Lafayette, for plaintiffs-appellants.
    Provost, Ernest & Schwing, James W. Schwing, Sr., New Iberia, for defendants-appellees.
    Before CULPEPPER, CUTRER and LA-BORDE, JJ.
   LABORDE, Judge.

This is a suit by the minority shareholders of a corporation against the corporation and its directors and officers. Allen Beyer, Laura Beyer, Claven Frederick and Shirley Frederick (plaintiffs) filed suit against F & •R Oilfield Contractors, Inc. (F & R), Dalton Fremin, Roy Fremin, and Roland Breaux (defendants), seeking to recover damages sustained through the defendants’ fraudulent and ultra vires acts. The defendants filed an exception of no right of action alleging that plaintiffs have no right of action to recover individually for the damages alleged; that recovery must be had through a shareholder’s derivative action to bring the allegedly illegal dispersed funds back into the corporation. The trial court sustained the exception and dismissed the suit. From this decision, the plaintiffs have perfected this appeal. We affirm.

The sole issue on appeal is whether or not shareholders of a corporation can directly recover damages from the officers and directors of that corporation for alleged illegal and ultra vires acts.

The plaintiffs are stockholders in F & R Oilfield Contractors, Inc. (F & R) The defendants are officers and directors of F & R. The plaintiffs’ petition alleges that they have suffered damages due to the defendants’ illegal and ultra vires acts which improperly raised the expenses of the corporation. These complained of acts of defendants are: the defendants paid themselves excessive salaries and bonuses; the defendants have denied plaintiffs access to the corporate books and have improperly maintained the corporate books; the defendants have failed to properly insure corporate property; the defendants have given excessive credit to poor credit risks; the defendants have improperly obtained loans from the corporation, depleting the working capital; the defendants have claimed fictitious loans to the corporation; and the defendants have illegally removed the plaintiffs from the board of directors.

The defendants filed an exception of no right of action. The trial court held that the cause of action asserted by plaintiffs is one belonging solely to the corporation and the proper procedural vehicle is a shareholder’s derivative action and not a suit by the individual shareholders in their own behalf. However, the trial court did hold that the plaintiffs have a right of action in their own behalf to gain access to the corporation’s books and records.

We agree with the trial court that the right of action asserted by the plaintiffs, i.e., one to bring the illegally dispersed funds back into the corporation, can only be asserted through the corporation by a shareholder’s derivative suit. Mahfouz v. Ogden, 380 So.2d 646 (La.App. 1st Cir. 1979); Carey v. Dalgarn Const. Co., 171 La. 246, 130 So. 344 (1930); Orlando v. Nix, 171 La. 176, 129 So. 810 (1930). Such an action for mismanagement or fraud belongs to the corporation, not the stockholders. The right to recover for such losses was explained in Orlando v. Nix, supra:

“As the Reliance Homestead Association is a body corporate its assets belong to it, and no individual stockholder has a property right in them. If the corporation sustains a loss by reason of mismanagement or fraud upon the part of its officials, the right to recover for the loss is an asset of the corporation, and not of the stockholders. It is only in extreme cases that a stockholder is permitted to sue for damage done a corporation, and even then the right does not arise until an ineffectual demand has been made on the corporation to institute the suit, and the suit, when brought, must be brought in behalf of the corporation, which alone is entitled to the amount recovered. Levert v. Shirley Planting Co., 135 La. 929, 66 So. 301; Dawkins v. Mitchell et al., 149 La. 1038, 90 So. 396.”

Likewise in the instant case, as an asset of the corporation, such a right to recover loss for mismanagement or' fraud may only be asserted secondarily by a shareholder through a shareholder’s derivative suit.

The plaintiffs contend that the above cited cases are not controlling because they were decided prior to the 1968 amendment of the corporate code (LSA-R.S. 12:1 et seq.) and that such a right of action against directors is conferred by LSA-R.S. 12:91 which reads:

“Officers and directors shall be deemed to stand in a fiduciary relation to the corporation and its shareholders, and shall discharge the duties of their respective positions in good faith, and with that diligence, care, judgment and skill which ordinarily prudent men would exercise under similar circumstances in like positions. Nothing herein contained shall derogate from any indemnification authorized by R.S. 12:83.”

Although this statute extends the officers’ and directors’ fiduciary relationship to the shareholders, it does not extend a direct right of action by the shareholders against the officers and directors. The comments under LSA-R.S. 12:91 explain that an action to recover from an officer or director for such a breach of a fiduciary duty is secondary and must be asserted through a shareholder’s derivative suit:

“Committee Comment — 1968
The fiduciary relationship has been expressly extended to shareholders. The second sentence of this Section is new. Articles 591-611 of the Code of Civil Procedure contain procedural provisions applicable to shareholders’ secondary actions, which are also subject to the provisions of R.S. 13:3201-3207.”

Articles 591-611 of the Code of Civil Procedure deal solely with class and secondary actions. Counsel for the plaintiff cites no authority which allows the plaintiffs to recover directly from the officers and directors of a corporation for losses sustained by the corporation due to the officers’ and directors’ mismanagement or fraud.

We hold that the plaintiffs’ sole remedy is through a shareholder’s derivative suit.

For the above and foregoing reasons, the decision of the trial court, dismissing without prejudice plaintiffs’ suit except the plaintiffs’ demands to inspect the books and records of the corporation, is affirmed. All costs are taxed to plaintiffs-appellants.

AFFIRMED.