author: CHIASSON, Judge. COVINGTON, Judge,

text:
    Boris F. NAVRATIL v. James H. SMART, d/b/a Road Runner Wrecker Service, et al.
    No. 13912.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.

      J. Rodney Ryan, Baton Rouge, for plaintiff-appellant Boris F. Navratil.
    Bryan E. Bush, Jr., Baton Rouge, for defendant-appellant James H. Smart d/b/a Road Runner Wrecker Service.
    Charles K. Watts and Robert L. Kleinpeter, Baton Rouge, for defendant-appellee Associates Financial Services Co., Inc.

      Before COVINGTON, CHIASSON, PONDER, LEAR and WATKINS, JJ.
   CHIASSON, Judge.

Plaintiff, Boris F. Navratil, sued for damages for the unlawful conversion of his automobile by defendants, James H. Smart, d/b/a Road Runner Wrecker Service and Associates Financial Services Company, Inc. (Associates). The trial court rendered judgment in favor of the plaintiff and against Smart for $1,500.00 for loss of use of his vehicle and inconvenience. Plaintiff’s suit against Associates was dismissed. Both Navratil and Smart appealed.

The undisputed sequence of events of this case is correctly stated by the trial court in its written reasons for judgment, as follows:

“The events of this drama arose on Ben-nington Avenue which is located in a growing area of Baton Rouge. Several nightclubs, business establishments, and restaurants are compacted into this area. Because this area attracts so many people, vehicular parking has become a major concern especially to the business firms and restaurants. Associates, one of the business firms in this area, had sustained a large amount of damages which was allegedly caused by persons parking in their lot while patronizing the surrounding nightclubs. To solve this problem and protect their property, Herbert Fink, branch manager of Associates, authorized Smart to remove vehicles which were illegally parked after hours on Associates’ property. [Exhibit P-1]. Five signs were installed on Associates property. These signs stated ‘Customer Parking Only, others will be towed away at owner’s expense.’ Smart testified that two of these signs were located on each side of the drive leading to the street, two were located in the back lot, and one was located in the side lot.
“On weekend nights Smart would survey the Associates’ parking lot. If any vehicles were parked illegally in the lot, he would proceed to tow them away one at the time. He would bring these vehicles to a fenced lot on Airline Highway where they would be stored until the owner paid Smart towage and storage fees.
“The plaintiff, an attorney, spent the evening of April 6,1979, entertaining a client and other friends. Around midnight the plaintiff decided to end the evening’s festivities with a nightcap at the Split Decision which is one of the nightclubs located on Bennington Avenue. Being unable to locate a vacant parking spot in the club’s lot, the plaintiff spied an empty space in the Associates’ parking lot which was almost completely occupied. The plaintiff parked his Lincoln in the southeast corner of the side parking lot. While the plaintiff and his client imbibed Smart made his rounds, noticed the Associates’ lot was filled with illegally parked ears and proceeded to tow the cars to the pound, including the plaintiff’s Mark IV. When the plaintiff alighted from the Split Decision with his client, he found that his vehicle was missing. Thinking it was stolen, the plaintiff called the Baton Rouge City Police who informed him that his car had been towed away by Road Runner Wrecker Service. Shortly thereafter, the plaintiff telephoned Road Runner Wrecker Service, but received no answer. The plaintiff had his son pick him and his client up and take them home. The next morning the plaintiff contacted Smart and demanded the return of his vehicle. Smart refused until the plaintiff paid him towage and storage fees in the amount of $57.50. This suit was filed the following Monday.”

The only factual matter that was disputed at the trial was whether the signs were up on the night of this incident. Smart testified that the signs were posted that night while Navratil denied the presence of the signs. We agree with the further finding of fact of the trial court that there was no sign either at the entrance of the parking lot of Associates or where the plaintiff eventually parked his car.

The trial court found that the initial towing of plaintiff’s car was not an unlawful act. It found that Associates had taken “reasonable effort to keep their property free of intruders.” The signs, contend the trial court, warned noncustomers of the consequences of noncompliance. The court concluded that “Associates and Smart had the right to remove these vehicles, including the plaintiff’s, and charge towing and storage fees” citing the case of Hopper v. Bills, 255 La. 628, 232 So.2d 296 (1970). We do not think that case stands for such a proposition and therefore reverse the trial court on this initial determination.

The Hopper case cited by the trial court does not stand for the proposition that a private property owner can use the “self-help” of a wrecker service to remove a vehicle from his property. In Hopper, supra, the State Police requested a wrecker service to remove a vehicle that had overturned near the highway and which constituted a traffic hazard. The Supreme Court concluded that the wrecker service was acting with authority from the State Police who were exercising their police power.

The question that is presented to us is whether a private property owner can take whatever means he determines to remove a vehicle from his property that is trespassing on it or is on his property without the landowner’s consent.

In defining the legal criteria for finding a trespass, the trial court correctly stated that:

“ * * * To be a trespasser it must be shown that the party entered the premises despite evidence indicating the desire of the owner to maintain the privacy of his premises or where the property is such that the intruder would be well aware that his entry would be against the owner’s wishes. An example of the latter would exist in the case of a private yard or estate where a residence is located. However, where the owner of the property attempts to attract business patrons, the owner’s intention in restricting activity must be clearly manifested to the public. This can be done by erecting fences or maintaining other restraining devices which evidence the owner’s intent to limit entry on his property.”

According to the trial court, Associates had demonstrated to noncustomers its intention to restrict activity on its parking lot. However, in this case the court made a determination that no signs were visible to the plaintiff when he parked his car in the almost completely filled parking lot. We must conclude that there was no manifestation to the public or to the plaintiff at this time that Associates wanted to restrict the use of its parking lot.

Next we must consider whether the towing away of plaintiff’s car was a right vested in a property owner or whether the actions amounted to “self-help” which is shunned by the courts. Neither of the defendants have cited any law, statute or case, that gives them the right as property owners to remove unwanted movables from their property.

Plaintiff, on the other hand, contends that the defendants cannot take such action but must resort to legal proceedings. In support of his contention he analogizes to the situation where the courts frown upon creditors seizing property that they have a legal lien on. He argues that Associates does not have as strong a legal claim to plaintiff’s property as some of those creditors. Plaintiff also cites Civil Code Article 688 which prohibits a landowner from cutting or removing branches from his neighbor’s trees that have come onto his property. Finally, he also cites Civil Code Article 667 and its construction in Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971) for the proposition that a landowner is liable to third parties for injuries suffered by them due to noxious substances._

None of these contentions directly determine the predicament that many private landowners are faced with. As is the case here the practice of parking a car for a period of hours on Friday and Saturday nights would not be adequately remedied by landowners who would have to wait until Monday morning to file an injunction prohibiting these people from parking their cars. On the other hand, the tolerance of letting people park on one’s property without permission infringes on the landowner’s right to “acquire, own, control, use, enjoy, protect and dispose of private property.” Plaintiff makes one other contention in his brief that the landowner could 1 ave had the City Police Department issue a ticket to plaintiff for parking on private property according to Title 11, Section 17 of the Baton Rouge Traffic Code.

Our limited holding is that under the circumstances presented by this case the towing away of plaintiff’s car by Smart under contract with Associates was illegal. The illegality consisted of using self-help in the removal of plaintiff’s vehicle without adequate warning to the public of Associates’ desire to restrict parking on its property.

The illegality of taking plaintiff’s car amounted to a conversion which, although is of common law descent, is recognized as actionable as a tort in Louisiana law under Civil Code Article 2315. This actionable wrong was recognized by the Supreme Court in Importsales, Inc. v. Lindeman, 231 La. 663, 92 So.2d 574 (1957). See also Deshotels v. Statewide Trailer Sales, 333 So.2d 259 (La.App. 1st Cir. 1976).

The trial court found that no conversion had occurred until Smart refused the request of Associates to release the vehicle to the plaintiff. We find that Associates, as principal, was liable to the plaintiff until Smart, as Associates’ mandatory, denied Associates’ request to release plaintiff’s vehicle. Up until that time both parties are liable and after this period Smart alone is responsible for the unlawful detention of the vehicle.

The reason for the detention asserted by Smart is that the car was the only security he had to be compensated for his expenses in towing and storing the car. This reasoning is not valid and Smart had no right to retain possession of the car. As stated by the Supreme Court in previously granting the supervisory writs in this case: “The defendant has retained possession of the vehicle without any right to do so.”

Smart also contends that he was possessing for Associates initially and that Associates cannot in midstream change its position. We do not find any merit in this contention. Smart was only a mandatory of Associates by way of the letter of agreement between the two. Associates revoked the mandate when it requested Smart to return plaintiff’s vehicle. Once that mandate was revoked, Smart was liable for any consequences which exceeded his authority. La.C.C. art. 3010. The expenses and losses incurred by Smart should have been reimbursed by the principal, Associates. La.C.C. arts. 3022 and 3024. Nothing in this opinion derogates from any rights Associates may have against the plaintiff.

Our final determination is on the question of damages. The trial court awarded plaintiff $1,500.00 for loss of use of his car and inconvenience. We now modify this award due to our determination above.

The plaintiff seeks the following damages: $3,000 for loss of use of vehicle; $2,000 for depreciation of vehicle; $5,000 for shock, embarrassment, humiliation and inconvenience; $112 for repair of air conditioner; $98 for loss of radar detector unit; and $5,000 for attorney’s fees for dissolving an illegal seizure.

It was established that the rental value of a like car would be $500 a month. The car was towed away on April 6, 1979 and returned to the plaintiff in mid July. The award of $1,500 for loss of use of the car is affirmed. Awards for depreciation of a vehicle illegally seized and shock, embarrassment and inconvenience are compensa-ble items. Hernandez v. Harson, 237 La. 389, 111 So.2d 320 (1958), Peterson v. Olinde Hardware & Supply Co., 356 So.2d 92 (La.App. 1st Cir. 1978). We think the evidence supports a finding of $1,500 for depreciation and $500 for the shock, humiliation and inconvenience.

In regard to attorney’s fees, the plaintiff contends that he should be compensated since such fees are awarded for dissolution of judicially sanctioned seizures. La.C.C.P. art. 3608. He argues that it would be an injustice if a person could not receive an award for dissolution of an illegal seizure. The general rule is that “attorney fees are not allowed except when authorized by statute or contract.” Killebrew v. Abbott Laboratories, 359 So.2d 1275 (La.1978). There is no contract between the plaintiff and the defendants that provides for such fees and the legislature has not provided any law for compensation of attorney’s fees in this instance. As sympathetic as we are to this plaintiff, an award of attorney’s fees cannot be maintained.

No evidence was presented as to the value of the radar detector unit nor that the air conditioning unit was broken due to the fault of defendant. Therefore, we agree with the denial of these awards by the trial court.

Finally, Associates and Smart contend that Mr. Navratil should have mitigated his damages by initially paying the towing and storage fees to retain his car. Navratil was under no duty to pay for the return of his illegally seized automobile. The record shows that Navratil made demand for his car on the Saturday morning but to no avail. He then resorted to the courts for legal help, via injunction, to secure his vehicle on the following Monday. Having resorted to summary legal action as soon as possible fulfills the requirement to mitigate one’s damages. See Weber v. McMillan, 285 So.2d 349 (La.App. 4th Cir. 1973).

The judgment of the trial court is reversed in part, modified in part and affirmed in part. Judgment is rendered in favor of the plaintiff, Boris F. Navratil, and against the defendants, James H. Smart, d/b/a Road Runner Wrecker Service and Associates Financial Services Company, Inc., in the sum of $3,500 with interest thereon from date of judicial demand, until paid, and for all costs of these proceedings. Associates is liable in solido with Smart in the sum of $1,500 and costs; and Smart is individually liable for the remainder in the sum of $2,000.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.

COVINGTON, Judge,

dissenting.

I dissent. I find that the trial court’s reliance upon Hopper v. Bills, 255 La. 628, 232 So.2d 296 (1970), is well placed. A landowner has a right to use reasonable means to remove a trespasser’s property from his premises. The towing away and storage of the Navratil vehicle under the circumstances of this case were reasonable. Conversion, a wrongful act, cannot spring from the exercise of a legal right, i. e., the landowner’s right to enjoy his property to the exclusion of others [LSA-C.C. art. 491; see Giroir v. Dumesnil, 248 La. 1037, 184 So.2d 1 (1966).] See Commercial Credit Equipment Corporation v. People’s Loan Service, Inc., 351 So.2d 852 (La.App. 2 Cir. 1977); Bryant v. McCann, 297 So.2d 262 (La.App. 3 Cir. 1974). Associates was entitled to protect its premises by reasonable means from trespassing motorists. I think the measures taken by Associates were reasonable and justified.

The record reflects the following facts: On Friday night, April 6, 1979, Navratil, an attorney, was hosting another attorney and went down to the area of Bennington Avenue in Baton Rouge for a nightcap. The area had several “Disco-type” clubs and the clubs did not have a sufficient number of parking places. After cruising the area, looking for a place to park, plaintiff chose the night club known as “The Split Decision,” and he parked in the parking lot of Associates, which was nearby.

Associates had had a considerable problem with non-customers parking on its premises after its business hours. Its vice-president testified that the unauthorized parking on its premises resulted in trash on the premises and damages to tne building, including broken windows, broken shutters, and the lawn being damaged by ruts in wet weather. He testified that every Monday, prior to opening, he had to pay his janitor extra money to come down and clean up the liquor bottles, beer cans, etc. In an effort to stop this, defendant Smart, on January 19,1979, had been given a letter from Associates, authorizing him “to remove cars which are illegally parked on my property after hours.” Parenthetically, Smart testified that Associates at that time had five signs on the premises; other evidence indicated that they read “CUSTOMER PARKING ONLY OTHERS WILL BE TOWED AWAY AT OWNERS EXPENSE.” Plaintiff testified that there was no sign, although Smart testified that Navratil was parked “right in front of one of their signs.”

About 1:00 A. M., plaintiff and guests came out of the nightclub, and the car was missing. He returned to the establishment, called the city police to report his car as stolen, whereupon the police told him that it may have been towed away by Road Runner Wrecker Service (Smart), a defendant herein. The police also gave Navratil the name and telephone number of Road Runner. He allegedly called the number but it did not answer. Later that same morning, Saturday, at about 10 A. M., he called Smart and was informed that Road Runner had the car and that it would cost plaintiff $57.50 cash to get it back.

On Monday, plaintiff informed Smart that he intended to file suit against him if he did not return the car at no cost to Navratil. Smart refused to return it, and Navratil filed suit on April 9,1979. A court order was obtained, and Smart delivered the car to plaintiff on or about July 16, some three months after Road Runner had picked it up.

In the interim, Associates, about three or four weeks after the towing, and subsequent to suit being filed, instructed Smart, by telephone, followed up with a letter, to release the car, but Smart did not do so.

The evidence clearly reveals that any reasonable person would have realized that Associates’ property was not a public parking lot or a parking lot for the customers of “The Split Decision,” the night club selected by plaintiff in which to entertain a client and other friends. Trespassers were clearly forewarned.

I agree with the trial judge’s decision and his written reasons for judgment; hence, I would affirm the trial court’s judgment and adopt his written reasons for judgment, attached hereto as Appendix A, as the opinion of this Court. Therefore, I respectfully dissent from the majority opinion.

APPENDIX A

BORIS F. NAVRATIL NUMBER 223,154 DIVISION F

VERSUS 19TH JUDICIAL DISTRICT COURT

JAMES H. SMART d/b/a ROAD PARISH OF EAST BATON ROUGE

RUNNER WRECKER SERVICE AND ASSOCIATES FINANCIAL SERVICES COMPANY, INC. STATE OF LOUISIANA

WRITTEN REASONS FOR JUDGMENT

The plaintiff, Boris F. Navratil, brought this suit to recover damages that resulted when his 1974 Lincoln Continental Mark IV was towed away by the defendant, James H. Smart d/b/a Road Runner Wrecker Service, from the premises owned by the defendant, Associates Financial Services of America, Inc. The plaintiff asserts that Smart has converted the vehicle to his own use with the aid of Associates Financial Services of America, Inc., hereafter referred to as Associates. By twc supplemental and amending petitions, the plaintiff sought a preliminary injunction and an increase in the amount of damages.

This court first became acquainted with some of the facts of this case when plaintiff’s rule for a preliminary injunction was pending. This rule was vacated by this court, and writs were refused by the First Circuit Court of Appeal. Supervisory writs were granted by the Louisiana Supreme Court. The court found that the plaintiff was entitled to injunctive relief and stated, “The defendant has retained possession of the vehicle without any legal right to do so. Furthermore, an injunction may lie against an illegal act.” Navratil v. Smart, et al. [373 So.2d 544], No. 64,946, La.S.Ct., July 2, 1979.

It is not for this court to interpret the extent of the Supreme Court’s ruling. It is manifestly clear from its ruling however, that one is entitled to injunctive relief under the circumstances of this case. In light of the posture of this case when it was submitted to the Supreme Court, it is doubtful that a determination on the merits was intended without a complete trial. Because the equities are strong, a careful review of the facts is necessary at this point.

The events of this drama arose on Ben-nington Avenue which is located in a growing area of Baton Rouge. Several nightclubs, business establishments, and restaurants are compacted into this area. Because this area attracts so many people, vehicular parking has become a major concern especially to the business firms and restaurants. Associates, one of the business firms in this area, had sustained a large amount of damages which was allegedly caused by persons parking in their lot while patronizing the surrounding nightclubs. To solve this problem and protect their property, Herbert Fink, branch manager of Associates, authorized Smart to remove vehicles which were illegally parked after hours on Associates’ property. [Exhibit P-1] Five signs were installed on Associates property. These signs stated “Customer Parking Only, others will be towed away at owner’s expense.” Smart testified that two of these signs were located on each side of the drive leading to the street, two were located in the back lot, and one was located in the side lot.

On weekend nights Smart would survey the Associates’ parking lot. If any vehicles were parked illegally in the lot, he would proceed to tow them away one at the time. He would bring these vehicles to a fenced lot on Airline Highway where they would be stored until the owner paid Smart tow-age and storage fees.

The plaintiff, an attorney, spent the evening of April 6, 1979, entertaining a client and other friends. Around midnight the plaintiff decided to end the evening’s festivities with a nightcap at the Split Decision which is one of the nightclubs located on Bennington Avenue. Being unable to locate a vacant parking spot in the club’s lot, the plaintiff spied an empty space in the Associates’ parking lot which was almost completely occupied. The plaintiff parked his Lincoln in the southeast corner of the side parking lot. While the plaintiff and his client imbibed Smart made his rounds, noticed the Associates’ lot was filled with illegally parked cars and proceeded to tow the cars to the pound, including the plaintiff’s Mark IV. When the plaintiff alighted from the Split Decision with his client, he found that his vehicle was missing. Thinking it was stolen, the plaintiff called the Baton Rouge City Police who informed him that his car had been towed away by Road Runner Wrecker Service. Shortly thereafter, the plaintiff telephoned Road Runner Wrecker Service, but received no answer. The plaintiff had his son pick him and his client up and take them home. The next morning the plaintiff contacted Smart and demanded the return of his vehicle. Smart refused until the plaintiff paid him towage and storage fees in the amount of $57.50. This suit was filed the following Monday.

Initially, it must be determined whether a property owner has the right to remove from his premises personal property belonging to another without recourse to legal action. Further, if it is found that the defendants acts constituted a conversion of the plaintiff’s vehicle, it must decide what damages are due.

Civil Code Article 2315 provides: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” Although conversion is a common law term, it has been used by the courts of this state. It is one of the “acts” contemplated by our Civil Code in Article 2315. Conversion is the wrongful denial of another property owner’s rights. It is only necessary to show that one intended to exercise dominion over another’s property without the owner’s consent: bad faith is not required. Lincecum v. Smith, 287 So.2d 625 (La.App. 3rd Cir. 1973), writ refused, 290 So.2d 904 (La.1974). Ownership of property, either moveable or immoveable, confers the right of exclusive use and enjoyment of the thing. Civ.Code Article 477. However, in the present situation, the property rights involved give rise to competing equities, and it must be determined whether the landowner has impinged on the personal property owner’s rights thereby converting the property to his own use.

A property owner may use reasonable methods to prevent others from using his property. It is not mandatory to file criminal trespass proceedings against an intruder in order to prevent entry on ones property. The nature and character of the property will govern the extent to which a property owner must manifest his intention to keep his property free of illegal entry in order that the landowner legally deprive the intruder of any vested rights. Although this court recognized that the classifications of trespasser-licensee-invitee were abrogated in Cates v. Beauregard Electric Cooperative, 328 So.2d 367 (La.1976), cert. denied [429 U.S. 833], 97 S.Ct. 97 [50 L.Ed.2d 98] (1976), this court will use the term trespasser since this case deals with the civil effects of an alleged criminal trespass. A trespass is the “unlawful physical invasion of the property or possession of another.” Patin v. Stockstill, 315 So.2d 868 (La.App. 1st Cir. 1975). To be a trespasser it must be shown that the party entered the premises despite evidence indicating the desire of the owner to maintain the privacy of his premises or where the property is such that the intruder would be well aware that his entry would be against the owner’s wishes. An example of the later would exist in the case of a private yard or estate where a residence is located. However, where the owner of the property attempts to attract business patrons, the owner’s intention in restricting activity must be clearly manifested to the public. This can be done by erecting fences or maintaining other restraining devices which evidence the owner’s intent to limit entry on his property.

Associates employed the use of signs to warn noncustomers that their cars would be towed away at their expense. Associates, though a business establishment, intended to limit the use of their parking to their customers only.

The plaintiff testified that no signs were up at the entrance of Associates’ parking lot or where he parked his car. Pictures taken on the following Monday showed there were no signs in place when the pictures were taken. Exhibits P-2, 3, 4, 5, 6, 7, 8. Although Smart admitted that these signs were sometimes torn down, he stated that two of the signs were in place on Friday night — one in the back and one at the entrance. This court finds that the signs at the entrance of the drive and on the side parking lot were missing on the date of this incident. However, other signs were erected in the lot and Associates manifested a bona fide effort to prohibit the use by noncustomers of their parking lot both day and night. Associates made every reasonable effort to keep their property free of intruders. It is unreasonable to require the owner to erect a fort around his property to protect it from intruders. The signs adequately warned the public that their vehicles would be towed away at their expense if they were not an Associates’ customer. The fact that flagrant trespassing existed on the night of April 6,1979, does not show implied consent by Associates especially since Smart continued to tow these cars away as quickly as possible.

Additionally, although the United States and Louisiana Constitutions provide that a person should not be deprived of their property except by due process of law, these restrictions only apply to state action and not private action. Vangraff, Inc. v. McCearley, 314 So.2d 483 (La.App. 1st Cir. 1975), writ denied 320 So.2d 549 (La.1975). Noncustomers were aware of the consequences if they chose to ignore the warning signs. Therefore, Associates and Smart had the right to remove these vehicles, including the plaintiff’s and charge towing and storage fees. Hopper v. Bills, 255 La. 628, 232 So.2d 296 (La.1970).

However, a month after this incident, Sam Davis, an employee of Associates, instructed Smart to release the plaintiff’s vehicle. Smart refused to do so. At this point, Smart converted plaintiff’s vehicle to his own use. Once Smart’s mandate was revoked, any future action by Smart exceeded his authority making Smart liable for any consequences. LSA Civil Code Article 3010. He illegally detained the plaintiff’s vehicle against his principal’s wishes thereby depriving Navratil of his property. Because the principal must pay his agent’s expenses, Smart should have looked to Associates to be reimbursed for his expenses. Civil Code Article 3022.

The plaintiff claims he should be compensated for the depreciated value of his car. This court does recognize that plaintiff’s Lincoln was held during the gasoline crisis. However, since the car was returned, plaintiff is not entitled to the value of the car at the time the property was converted. Moreover, the fact that the plaintiff lost his option to sell his car is purely speculative. Since this court determined that no conversion initially occurred, the plaintiff’s claim for embarrassment and humiliation is not allowable especially in light of the plaintiff’s own testimony. The court limits the plaintiff’s damages to loss of use of the vehicle and inconvenience in the amount of $1500.00. However, since Smart was entitled to towage and storage fees, Smart is entitled to a set off in the amount of the towage fee plus storage fees until Smart’s agency relationship terminated concerning this vehicle. Because the plaintiff presented no evidence on the value of his missing radar detector, this claim is disallowed.

Generally, attorney’s fees are not included in a damage award unless they are authorized by statute or contract. Killebrew v. Abbott Laboratories, 359 So.2d 1275 (La.1978). Attorney’s fees have been allowed when there is a wrongful seizure, but these fees are limited to the situation when a conservatory writ is dissolved. Cvitanovich v. Sorli, 347 So.2d 1204 (La.App. 1st Cir. 1977). Attorney’s fees have not been awarded in cases where a writ has been issued; accordingly no attorney’s fees are allowed.

For reasons set forth, there is judgment in favor of the plaintiff, Boris F. Navratil, and'against the defendant, James H. Smart d/b/a Road Runner Wrecker Service, in the amount of $1500.00 plus legal interest from the date of judicial demand and all costs of these proceedings. Mr. Smart is entitled to a credit in the amount of the towage and storage fees up to the time Associates instructed Mr. Smart to release the vehicle to the plaintiff. Further, there is judgment in favor of the defendant, Associates Financial Services of America, Inc., dismissing plaintiff’s suit against them with prejudice.

Judgment will be signed accordingly.

Baton Rouge, Louisiana, this 28th day of April, 1980.

/s/ Lewis S. Doherty, III

Lewis S. Doherty, III, Judge

Division “F”

19th Judicial District Court

      . In Runde v. Biddle, 41 IIl.App.3d 223, 353 N.E.2d 410 (1976) and Murrell v. Trio Towing Services, Inc., 294 So.2d 331 (Fla.App.1974), the plaintiffs conceded the right of the property owners to remove their vehicles.

      . In support of this contention, plaintiff cites Samaniego v. Horseless Carriage, Inc., 350 So.2d 193 (La.App. 2nd Cir. 1977) writ denied 352 So.2d 240 (La.1977); Martinez v. Therma-King Sales & Serv. Div., 346 So.2d 798 (La.App. 1st Cir. 1977) writ denied 349 So.2d 884 (La.1977).

      . 1974 La.Const. Art. I, Sec. 4.

      . Associates did admit that they erected a fence around the property eventually to prohibit people from parking in its lot.

      . See Kunde, supra, and Murrell, supra.

      . This case received some local publicity and Mr. Navratil admitted, on trial, that he was probably correctly quoted in one newspaper as saying “... even if the sign had been where I could see it, even if they had a big sign draped over the entrance, I probably would still have parked there. The sign said ‘customers only.’ This was midnight on Friday, I knew they weren’t going to have any customers until Monday morning.” Plaintiff’s photograph, with his car, accompanied the story.


source: Caselaw Access Project

author: CUTRER, Judge.

license: Public Domain

text:
    James Stanley BEESON, Jr.; James Stanley Beeson, III; Lorraine Fay Beeson Dove, Plaintiffs-Appellees, v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant-Appellant.
    No. 8188.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Rehearing Denied July 8, 1981.
    William T. Kivett and Wm. J. Doran, Baton Rouge, for defendant-appellant-ap-pellee, State, Dept, of Transp. & Dev.
    Neblett & Weeks by Robert B. Neblett, Jr., Alexandria, for plaintiff-appellee-appel-lant.
    McClure & McClure by John G. McClure, Alexandria, for defendant-appellee and plaintiff-appellant, U. S. Fidelity & Guaranty Co.
    Kennedy & Yeager by Ralph W. Kennedy, Alexandria, for defendant-appellee, Maryland Cas. Co.

      Trimble, Randow, Smith & Wilson, Harry F. Randow, Alexandria, for defendant-ap-pellee, Hartford Acc. & Indem. Co.
    Gist, Methvin, Hughes & Munsterman by H. B. Gist, Jr., Alexandria, for plaintiff-ap-pellee, James Beeson.
    Before GUIDRY, FORET and CUTRER, JJ.
   CUTRER, Judge.

This is a companion case to the cases of Gates Carlisle, Jr. v. State of Louisiana, through the Department of Transportation and Development, 400 So.2d 284 (La.App. 3rd Cir. 1981), and United States Fidelity & Guaranty Company v. State of Louisiana, through the Department of Transportation and Development, 400 So.2d 287 (La.App. 3rd Cir. 1981). We render separate decisions in each case this date.

These three suits arise out of a collision in the town of Florien, Louisiana, between an automobile being driven by Ollie Beeson and a large truck being driven by Douglas Howard.

Shortly after dark on March 14, 1977, Ollie Beeson was driving west along Louisiana Highway 118 approaching U. S. Highway 171. She was employed by Central Louisiana State Life Insurance Company as an insurance sales person. Gates Carlisle, her immediate supervisor, was a passenger in her car. U. S. 171 is a major highway running north and south and Louisiana 118 runs roughly east from U. S. 171. The two highways thus form a “T” intersection, but are not exactly perpendicular. Louisiana 118 intersects U. S. 171 at an angle. Traffic on Louisiana 118 is controlled by a stop sign which required Mrs. Beeson to stop at this intersection. Mrs. Beeson drove into the intersection, failing to yield to the large truck which was traveling north. The truck struck the left front of Mrs. Beeson’s vehicle. It is undisputed that Howard had the right of way and that he was unable to avoid the accident.

Mrs. Beeson was killed and Mr. Carlisle was severely injured in the accident.

Ollie Beeson’s husband, James Beeson, Jr., and their two major children, filed this suit against the State of Louisiana through the Department of Transportation and Development (Department) for the wrongful death of Mrs. Beeson.

Mr. Carlisle sued the Department, Maryland Casualty Company (Maryland), United States Fidelity & Guaranty Company (U. S. F. & G.) and Hartford Accident & Indemnity Company (Hartford). Maryland is the liability carrier for the Beeson vehicle. Hartford and U. S. F. & G. both provided underinsured motorists coverage to Carlisle.

Finally, U. S. F. & G., which was also the workmen’s compensation carrier for Central Louisiana State Life Insurance Company, sued the Department, the Estate of Mrs. Beeson, the Beeson family and Maryland, for reimbursement of medical expenses paid and compensation payments made to Mr. Carlisle and compensation death benefits paid to Mr. Beeson.

The trial court found the sole, proximate cause of the collision and the resulting damages and injuries was the negligence of the Department. The trial court expressly exonerated the truck driver and Mrs. Beeson of any negligence. Accordingly, the judgments were rendered as follows:

In the instant case, Beeson, Jr., et al. v. State of Louisiana, through the Department of Transportation and Development, judgment was awarded in favor of James Stanley Beeson, Jr., and against the Department in the amount of $66,736.00, plus legal interest. Judgment was also rendered against the Department in favor of James Stanley Beeson, III, and Lorraine Fay Bee-son in the amount of $37,500.00 each, plus legal interest.

That judgment also recognized the “intervention” of U. S. F. & G. and ordered the payment of $8,304.00, death benefits paid to the surviving husband by preference from the proceeds awarded Beeson herein and stated that U. S. F. & G.’s third party demand against Beeson, Jr., Beeson, III, and Lorraine Dove, for compensation benefits paid by U. S. F. & G., were dismissed with prejudice. Maryland was granted judgment against the Department for $2,100.00, plus legal interest, to pay for the wrecked automobile.

Judgment was also rendered in the case of United States Fidelity & Guaranty Company v. State of Louisiana, through the Department of Transportation and Development, Number 8187, granting U. S. F. & G. recovery against the Department in the amount of $14,172.00. Some $8,304.00 of this award was reimbursement of death benefits paid to James Beeson, Jr., and the other $5,868.00 was medical expenses paid on behalf of Gates Carlisle. It was further decreed that the judgment be given preference and priority over the judgments rendered in favor of James Beeson, Jr., et al. and Gates W. Carlisle, Jr., against the Department, in the above amounts, respectively-

In the case of Carlisle, Jr. v. State of Louisiana, through the Department of Transportation and Development, judgment was granted in favor of Carlisle and against the Department in the amount of $90,000.00 plus legal interest. Carlisle’s claims against Maryland, U. S. F. & G. and Hartford were dismissed. Judgment was also rendered in favor of U. S. F. & G. for $5,868.00 (medical expenses paid by U. S. F. & G.) against the Department.

In the instant case, Beeson, Jr., et al. v. State of Louisiana, through the Department of Transportation and Development, the Department appealed, contesting both liability and quantum. The Beesons answered the appeal seeking an increase in judgment in favor of James Beeson, Jr., to $200,000.00 and an increase of $50,000.00 each for the other two appellees.

The issues presented by this appeal are:

(1) Whether the Department was negligent or the highway defective due to improper signing, and if so, whether such negligence or defect was a cause of the accident;
(2) Whether Mrs. Beeson was negligent and, if so, whether such negligence was a cause of the accident; and
(3) Whether the judgments granted the plaintiff were excessive, inadequate or proper.

LIABILITY OF THE DEPARTMENT

The trial judge, in his reasons for judgment, made no findings of fact but adopted, by reference, the facts and law set forth in a brief filed by counsel for the Beesons. The brief referred to by the trial judge is not made a part of the record. The trial court concluded that:

"... the proximate cause of the collision and resulting damages and injuries was the poorly constructed and improperly signed intersection, and that there should be judgment against the Department of Transportation.”

This brings us to the crucial question of whether the trial judge was clearly wrong in the factual conclusion that the intersection was poorly constructed and improperly signed.

As we examine the facts we must keep in mind the extent of the obligations imposed by law upon the Department in the performance of its duties to keep the highways in a reasonably safe condition. The general principles in this regard are set forth by this court in the case of Norris v. State, 337 So.2d 257, at 260 (La.App. 3rd Cir. 1976), where the court stated as follows:

“The Department of Highways is not the guarantor of the safety of all travelers on state highways nor is it the insurer against all injuries and damages which may result from defects or obstructions thereon. Wilkinson v. American Insurance Company of Newark. New Jersey. 311 So.2d 584 (La.App. 3rd Cir. 1975); Doucet v. State, Department of Highways. 309 So.2d 382 (La.App. 3rd Cir. 1975), writ denied 312 So.2d 340 (La.); Laborde v. Louisiana Dept. of Highways. 300 So.2d 579 (La.App. 3rd Cir. 1974), writ den. 303 So.2d 182 (La.).
“The duty of the Department of Highways has been most recently stated by this court in the case of Doucet v. State. Department of Highways, supra:
‘The duty of the Department of Highways is only to see that state highways are reasonably safe for persons exercising ordinary care and reasonable prudence. It is liable for damages only when the evidence shows (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver. ...”
(Emphasis added) (Citations omitted) See also Von Cannon v. State. Department of Highways. 306 So.2d 437 (La.App. 3rd Cir. 1975), writs refused 309 So.2d 681 (La.) and numerous cases cited therein.
“Also pertinent is the recent Supreme Court case of Pickens v. St. Tammany Parish Policy Jury. 323 So.2d 430 (La.1975), in which the court stated:
‘There is no fixed rule for determining what is a dangerous defect in a public way; the facts and surrounding circumstances of each particular case control. The test usually applied, however, requires an answer to the question: Was the public way maintained in a reasonably safe condition for persons exercising ordinary care and prudence?’ (Citations omitted)”

With these principles in mind, we examine the facts leading up to this accident.

Ollie Beeson was employed by Central Louisiana State Life Insurance Company as a sales person. She had held this position for approximately 3% months prior to the fatal accident. She had some prospects located in the Florien-Mt. Carmel area which she intended to call upon. On March 14, 1977, she and her supervisor, Gates Carlisle, met in Tioga (near Alexandria) for the purpose of making calls on her Mt. Carmel prospects. At 4:00 P.M., Mrs. Beeson and Carlisle left Tioga, bound for the Mt. Car-mel area. Mrs. Beeson was driving her Toyota automobile with Carlisle as passenger. They proceeded to Natchitoches, Louisiana by way of Louisiana 1. From Natchi-toches to Many, Louisiana, they traveled Louisiana 6. At Many they turned south following U. S. 171 to the north edge of the town of Florien, Louisiana. At this point they turned east on Louisiana 118. At the time they made this turn onto Louisiana 118 it was still daylight. (It was at this intersection that the accident occurred two or three hours later.)

Mrs. Beeson traveled east on Louisiana 118 to the Mt. Carmel area. Carlisle testified that they made their calls and were successful in selling two insurance policies. They finished their work and began their return trip to Tioga at approximately 7:30 P.M. Carlisle remembers leaving the house of the last call but that is the last he remembers until after the accident. He stated that they intended to return to Tioga by the same route that they had taken in their trip to Mt. Carmel.

As Mrs. Beeson left Mt. Carmel, she was then approximately 4 miles from U. S. 171 which she had traveled upon a few hours earlier. Since Carlisle had retrograde amnesia and remembered nothing of the trip back to U. S. 171, and since Mrs. Bee-son was unfortunately killed in the accident, we have no testimony as to the events occurring, up to the time of the accident, except that of the truck driver. He was only able to state that Mrs. Beeson failed to yield by driving out into the intersection directly in front of the truck causing the collision.

There is extensive evidence, however, including numerous pictures and testimony concerning the conditions of the intersection, the existence of and location of signs, including a stop sign along Louisiana 118 as one approached U. S. 171. As Mrs. Beeson arrived at a point approximately one-half mile from the intersection, the first sign indicating that she was nearing U. S. 171 was a sign on the right shoulder of the road reflecting “Florien Corp. Limit.” As she passed this sign, she crossed a cattle guard. The photograph, that reflects this sign, also shows that this two lane black topped road is straight from this point to the intersection. Louisiana 118 is practically level except for a slight downgrade beginning approximately 600 feet east of the intersection.

As Mrs. Beeson arrived at a point approximately 850 feet from the intersection, she was faced with a sign located on the outer portion of the right hand shoulder reflecting the words “Stop Ahead.” This sign was partially obscured on the night in question by a pine tree limb as Mrs. Beeson approached it. As she got close to the sign, however, it became clearly visible. This sign was reflectorized for nighttime motorists. There is some dispute as to the distance it was clearly visible. The estimates range from 15 feet to 105 feet. The photographs in evidence convince us that the sign was clearly visible for a distance of approximately 50 to 60 feet.

After Mrs. Beeson passed the “Stop Ahead” sign, and at a point approximately 500 feet from the intersection, she was faced with a sign located on the edge of the right shoulder which reflected “JCT 171.” This sign was likewise reflectorized for night drivers. This sign was clearly visible with no obstructions to impair the view.

Upon passing the Junction 171 sign and as she moved toward the intersection, another sign would be in view. This sign is also located on the outer edge of the right shoulder and reflects “171” and below this number is a double arrow reflecting that the intersection of U. S. 171 and Louisiana 118 is near. This sign is approximately 250 feet from the intersection.

At the intersection and approximately 15 feet to the right of the edge of Louisiana 118 is a reflectorized stop sign facing traffic approaching the intersection along Louisiana 118. This stop sign is not faced parallel with Louisiana 118 but was turned slightly toward Louisiana 118 and facing motorists traveling thereon, as was Mrs. Beeson on the night in question.

Also located at this intersection is a re-flectorized double arrow sign located facing the motorist on Louisiana 118 and across U. S. 171 indicating the presence of the intersecting highway U. S. 171 which runs north and south. This double arrow sign is flanked by two reflectorized striped panels standing on each side of the double arrow sign. We also note that a yellow “no passing” line exists extending from the intersection for some distance east along the center of Louisiana 118.

The above reflectorized signs and indicators were in place on the night of the accident. There were no adverse weather conditions that would impede a driver’s view. Mrs. Beeson had traveled through this intersection just two or three hours before the accident.

Duane L. Calhoun, Chief of Police of Flo-rien, testified that he received a call at 7:50 P.M. that the accident had occurred at the intersection of U. S. 171 and Louisiana 118 near the north edge of Florien. Upon arrival he found that the left front of the truck had struck the left front and side of the Beeson vehicle. Chief Calhoun further testified that he drove his vehicle east on Louisiana 118 to a point past the Florien Corporation limits sign and turned around to check the various signs leading up to the intersection. He found that all signs were in place and had not been disturbed. He explained that he checked the signs because, at times in the past, log trucks had dislocated some of the signs. He was shown the photographs that are in the record and he stated that the photographs correctly reflect the positions and conditions of the signs as they existed the night of the accident and as we have described heretofore. He stated that the signs were reflec-torized and could all be seen for the distance of the range of his headlights. As to how far he could see the stop sign, he was asked at what distance he could see the same. His answer was as follows:

“A. Well, the length of your headlights at night ...

Chief Calhoun stated that he knew of no accidents occurring at this intersection prior to the one in question. He had been chief of police for close to four years.

Assisting Chief Calhoun in the investigation of the accident on that night was Trooper Guy Singletary, of the State Police. Trooper Singletary testified that he observed the stop sign which was facing traffic approaching on Louisiana lu8. He had no difficulty seeing the sign.

The trial court apparently relied heavily upon the testimony of plaintiff’s expert, Robert Canfield, in coming to its conclusions.

Robert Canfield was called by the plaintiff to give his opinion as to whether the intersection was properly signed. He stated that he found the signing of this intersection had deviated, in several instances, from the requirements of the Uniform Traffic Control Device Manual. He criticized the location of the stop sign which was 15 feet from the edge of Louisiana 118. This would be 3 feet further than the suggested 12 feet in the manual. He further criticized the fact that the stop sign was turned slightly toward Louisiana 118 instead of facing straight down Louisiana 118. He felt that this condition may have a tendency to confuse the driver as to whether the stop sign controlled traffic on Louisiana 118 or U. S. 171.

Canfield also found fault with the placement of the large double arrow sign which ran parallel to U. S. 171. His reason for this criticism was not entirely clear.

Canfield also criticized the fact that the stop ahead sign was located 832 feet from the intersection instead of the suggested distance of 750 feet. He also noted the partial obscurement of the stop ahead sign by the tree limb. As noted previously herein, this condition kept the sign from coming into view until the traffic was 50 or 60 feet from the sign.

Canfield noted that the junction sign nearest the stop sign had the effect of obscuring the stop sign as a motorist approached the intersection. The motorist’s view of the stop sign would only be obscured momentarily. Otherwise the stop sign was in clear view of the motorist traveling on Louisiana 118.

Canfield concluded that the lack of compliance with the manual created an unsafe condition for the public traveling through this intersection.

The Department called Dr. Ned Walton, a traffic expert, to give his opinion as to the signing of the intersection. Dr. Walton testified that the manual sets forth suggested standards for the signing of a usual situation. These standards are not mandatory and may be adjusted to accommodate particular situations. Dr. Walton then discussed each of the criticisms made by Can-field. He then explained how each of such criticisms was within the discretionary guidelines of the manual.

As we examine Canfield’s testimony along with that of Dr. Walton and the clearly established facts discussed heretofore, we conclude that, while there may have been some deviation from the suggestions of the manual, such deviations were not such as would render the intersection as being improperly signed, creating an undue risk of harm to the traveling public.

“Failure to comply with the requirements of the Highway Department’s manual does not constitute negligence per se.... ” Norris v. State, supra.

Also, there are several eases in the jurisprudence where the courts have found that, although there was room for some improvement in the road conditions and signing on a certain road, the efforts of the Department were adequate to discharge its duty to the motoring public. Norris v. State, supra; Roberts v. Winston Carriers, Inc., 304 So.2d 818 (La.App. 3rd Cir. 1974), writ ref’d, 309 So.2d 341 (La.1975).

We conclude that the trial court was clearly wrong in finding that the intersection in question created an undue risk of harm to the reasonably prudent driver. We have carefully examined the various views of the scene as depicted by the numerous photographs, the testimony of the investigating officers and the experts. We are fully convinced that at the time of this accident, this intersection and the approach to same along Louisiana 118 was properly signed and constructed. While there could have been some improvement in the situation, it cannot be said that the Department abrogated its duty to maintain a reasonably safe condition of the intersection for persons approaching same in a reasonably careful and prudent manner.

The judgment in the principal demand against the Department must be reversed and dismissed.

Having come to this conclusion, there is no necessity to discuss the remaining issues.

As we have previously noted in Footnote 1, 2 and 3, we will also rule upon those demands which were erroneously incorporated in this judgment, but actually emanate from the companion cases.

For the reasons set forth herein, the judgment of the trial court in favor of James Stanley Beeson, Jr., James Stanley Beeson, III, and Lorraine Fay Beeson Dove and against the State of Louisiana, through the Department of Transportation and Development is reversed, set aside and is hereby dismissed.

For the reasons set forth in the companion case of United States Fidelity & Guaranty Company v. State of Louisiana, through the Department of Transportation and Development, that portion of the judgment herein recognizing United States Fidelity & Guaranty Company’s “intervention” and rendering judgment ordering payment by preference of $8,304.00 to United States Fidelity & Guaranty Company, is reversed, set aside and is hereby dismissed.

For the reasons set forth in the companion case of Carlisle, Jr. v. State of Louisiana, through the Department of Transportation and Development, that portion of the judgment herein, recognizing a third party demand of Maryland Casualty Company and rendering judgment against the State of Louisiana, through the Department of Transportation and Development in the amount of $2,100.00, is reversed, set aside and is hereby dismissed.

Otherwise, than as herein reversed, the judgment of the trial court is affirmed.

All costs of this suit, both on appeal and in the trial court, shall be paid by plaintiffs-appellees.

AFFIRMED IN PART; REVERSED IN PART.

      . This portion of the judgment, recognizing U. S. F. & G.’s “intervention” is a duplicate of a portion of the judgment rendered in the companion case of U. S. F. & G. v. State of Louisi
        ana, through the Department of Transportation and Development.

      . This demand does not appear in this suit but such demand was made in the companion case of U. S. F. & G. v. State of Louisiana, through the Department of Transportation and Development.

      . We find no incidental demand by Maryland in this suit. We do find, however, that a third party demand by Maryland was incorporated in their answer in the companion Carlisle case. The judgment in Carlisle makes no disposition of such demand, however.
      In these footnotes we point out errors that were made in the framing of these judgments. These errors result in ambiguity. Due to the conclusions that we have reached in these suits, however, correction of such errors is unnecessary. We have concluded that all claims, both in the principal actions and incidental demands, in all three cases must be dismissed. Under these circumstances, we will rule upon the judgments as they appear in each suit.

      . This manual does not appear in the record. Apparently, it was never filed since the trial judge noted the absence of same.


text:
    Gates W. CARLISLE, Jr., Plaintiff-Appellee-Appellant, v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant-Appellant-Appellee.
    No. 8186.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Rehearing Denied July 8, 1981.

      4 William T. Kivett and Wm. J. Doran, Baton Rouge, for defendant-appellant-ap-pellee, State, Dept, of Transp. & Dev.
    Neblett & Weeks by Robert B. Neblett, Jr., Alexandria, for plaintiff-appellee-appel-lant.
    McClure & McClure by John G. McClure, Alexandria, for defendant-appellee and plaintiff-appellant, U. S. Fidelity & Guaranty Co.
    Kennedy & Yeager by Ralph W. Kennedy, Alexandria, for defendant-appellee, Maryland Cas. Co.
    Trimble, Randow, Smith & Wilson, Harry F. Randow, Alexandria, for defendant-ap-pellee, Hartford Acc. & Indem. Co.
    Gist, Methvin, Hughes & Munsterman by H. B. Gist, Jr., Alexandria, for plaintiff-ap-pellee, James Beeson.
    Before GUIDRY, FORET and CUTRER, JJ.
   CUTRER, Judge.

This is a companion suit to the suits of Beeson, Jr., et al. v. State of Louisiana, through the Department of Transportation and Development, 400 So.2d 278 (La.App. 3rd Cir. 1981), and United States Fidelity & Guaranty Company v. State of Louisiana, through the Department of Transportation and Development, 400 So.2d 287 (La.App. 3rd Cir. 1981). The facts are set forth in the former case.

In the instant suit the trial court granted judgment in favor of Carlisle and against the State of Louisiana, through the Department of Transportation and Development (Department) for $90,000.00. That court also dismissed Carlisle’s claim against Maryland Casualty Company (Maryland), the liability carrier of Mrs. Ollie Beeson, and the two underinsured motorists carriers, Hartford Accident & Indemnity Company (Hartford) and United States Fidelity & Guaranty Company (U. S. F. & G.). Judgment was further rendered in favor of U. S. F. & G. and against the Department for $5,868.00. No mention was made in this judgment of Maryland’s third party demand against the Department for $2,100.00 in collision benefits.

The Department appeals as to both liability and quantum. Carlisle appeals that portion of the judgment dismissing his claim against the three insurers. U. S. F. & G. appeals the dismissal of its alternative demand for indemnity against Maryland, the Estate of Christine Ollie Beeson and/or James Stanley Beeson, Jr., James Stanley Beeson, III, and Lorraine Fay Beeson Dove.

For the reasons assigned in Beeson, et a/. v. State of Louisiana, through the Department of Transportation and Development, we find that the Department is not liable and the judgment making an award to Car-lisle against the Department shall be reversed. Also, for those reasons, the Department cannot be held liable for the third party demand of Maryland for the $2,100.00 claimed by Maryland for collision insurance paid to Beeson.

This appeal leaves three additional issues for determination:

(1) Whether Carlisle is entitled to recovery against any or all of ti e defendant insurers;
(2) If Carlisle is entitled to any such recovery, is U. S. F. & G. entitled to indemnity from Maryland and the Bee-sons; and
(3) Is the award of $90,000.00 for Car-lisle’s injuries excessive.

As to the question of whether Car-lisle is entitled to recovery against any of the defendant insurers, they being Maryland, liability insurer of Mrs. Beeson; U. S. F. & G. and Hartford, both uninsured motorist carriers for Carlisle, we conclude that Carlisle is not entitled to recovery from any of these insurers as he has no cause of action against these insurers under the immunity provisions of the workmen’s compensation act.

It is clear from the record that Carlisle and Mrs. Beeson were both employed by Central State Life Insurance Company and that the accident occurred in the course and scope of that employment. The two parties had just left a residence where they had called for the purpose of selling insurance and were returning to where Carlisle had left his car earlier that day. Further, although the automobile being driven by Mrs. Beeson was owned by her, she was given an allowance for the expenses of travel by her employer.

In 1976, the Louisiana Worker’s Compensation Law, LSA-R.S. 23:1032, was amended, extending tort immunity to the fellow employee of the injured worker. That, in pertinent part, reads as follows:

“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. ...”

In the case of Kelley v. M and M Dodge, Inc., 370 So.2d 1267 (La.App. 3rd Cir. 1979), writ denied, 374 So.2d 660 (1979), we held that an employer’s insurer was immune from suit in tort for work related injury just as is the employer. In doing so we relied in part on LSA-R.S. 23:1166 which provides expressly that where an injury falls within the ambit of the compensation scheme, compensation is the exclusive remedy against either the employer or the compensation insurer. We also stated therein that the existence of liability coverage for the employer does not create a cause of action in tort against either the employer or its insurer. The same is true of the existence of liability coverage for a fellow employee. Where applicable the exclusive remedy provisions of LSA-R.S. 23:1032 abolished the worker’s cause of action in tort. Green v. Liberty Mut. Ins. Co., 352 So.2d 366 (La.App. 4th Cir. 1977), writ ref’d, 354 So.2d 210 (1978).

Consequently, the defense of tort immunity under the compensation statute is not personal to the immune party but can be invoked by his insurer sued under the direct action statute. Dandridge v. Fidelity & Casualty Co., 192 So. 887 (La.App. 2nd Cir. 1939). Under this reasoning, Carlisle would have no cause of action against Maryland, the liability insurer of Mrs. Bee-son.

This same reasoning applies to Carlisle’s claim against his uninsured motorist carriers, U. S. F. & G. and Hartford. Uninsured motorist coverage is contingent upon there being liability by an uninsured or underin-sured motorist. Since Carlisle has no cause of action in tort against Mrs. Beeson, no liability by Mrs. Beeson could arise. Thus, no cause of action exists again ¡t Carlisle’s uninsured or underinsured motorist carriers, U. S. F. & G. and Hartford.

Due to the conclusions reached herein there is no necessity to discuss the remaining two issues.

For the reasons assigned, the judgment of the trial court in favor of Gates Carlisle, Jr., and against the State of Louisiana, through the Department of Transportation and Development awarding Carlisle $90,-000.00, with interest, is reversed, set aside, and is hereby dismissed.

For the reasons set forth in the companion case of United States Fidelity & Guaranty Company v. State of Louisiana, through the Department of Transportation and Development, that portion of the trial court judgment in favor of United States Fidelity & Guaranty Company and against the State of Louisiana, through the Department of Transportation and Development awarding United States Fidelity & Guaranty Company $5,868.00 is reversed, set aside, and is hereby dismissed.

Otherwise, than as herein reversed, the judgment of the trial court is affirmed.

Plaintiff-appellee is to pay all costs of appeal and in the trial court.

AFFIRMED IN PART; REVERSED IN PART.

      . The judgment of $5,868.00 reflects reimbursement of medical benefits paid by U. S. F. & G. on behalf of Carlisle and should properly be a part of the disposition of the case of United

        States Fidelity & Guaranty Company v. State of Louisiana, through the Department of Transportation and Development. We will dispose of this ruling in this case, however.
      Judgment in favor of Maryland and against the Department for $2,000.00 was inserted in the judgment of the consolidated case of Bee-son, et al. v. State of Louisiana, through the Department of Transportation and Development. This court ruled upon this issue in the Beeson case where we reversed and dismissed this demand.


text:
    UNITED STATES FIDELITY & GUARANTY COMPANY, Plaintiff-Appellee, v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant-Appellant.
    No. 8187.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Rehearing Denied July 8, 1981.

      William T. Kivett and Wm. J. Doran, Baton Rouge, for defendant-appellant-ap-pellee, State, Dept, of Transp. & Dev.
    Neblett & Weeks by Robert B. Neblett, Jr., Alexandria, for plaintiff-appellee-appel-lant.
    McClure & McClure by John G. McClure, Alexandria, for defendant-appellee and plaintiff-appellant, U. S. Fidelity & Guaranty Co.
    Kennedy & Yeager by Ralph W. Kennedy, Alexandria, for defendant-appellee, Maryland Cas. Co.
    Trimble, Randow, Smith & Wilson, Harry F. Randow, Alexandria, for defendant-ap-pellee, Hartford Acc. & Indem. Co.
    Gist, Methvin, Hughes & Munsterman by H. B. Gist, Jr., Alexandria, for plaintiff-ap-pellee, James Beeson.
    Before GUIDRY, FORET and CUTRER, JJ.
   CUTRER, Judge.

This is a companion suit to Gates Carlisle, Jr. v. State of Louisiana, through the Department of Transportation and Development, 400 So.2d 284 (La.App. 3rd Cir. 1981), and James Stanley Beeson, Jr., et al. v. State of Louisiana, through the Department of Transportation and Development, 400 So.2d 278 (La.App. 3rd Cir. 1981). The facts are set forth in the latter case.

In the instant suit United States Fidelity & Guaranty Company (U. S. F. & G.) sued the State of Louisiana, through the Department of Transportation and Development (Department), the Estate of Christine Ollie Beeson, James Beeson, Jr., James Beeson, III, and Lorraine Fay Beeson Dove, seeking reimbursement of payments it made as Central Louisiana State Life Insurance Company’s compensation carrier. Those payments included medical expenses of Mr. Gates Carlisle, Jr., and death benefits paid to Mr. James Beeson, Jr.

The trial court granted judgment in favor of U. S. F. & G. and against the Department in the amount of $14,172.00. The judgment also ordered payment of same by preference from awards to Carlisle and Beeson. The trial court judgment also gave U. S. F. & G. credit against future compensation benefits up to $90,000.00.

Having found the Department free of negligence for the reasons assigned in James Stanley Beeson, Jr., et al. v. State of Louisiana, through the Department of Transportation and Development, the trial court judgment rendered herein shall be reversed, set aside and dismissed.

As to the liability of Mrs. Beeson’s succession and heirs to U. S. F. & G. for compensation payments made to Carlisle, such is contingent upon whether Mrs. Beeson could have incurred any liability for her negligence. The right of the employer or his insurer for reimbursement of payments made under our compensation statutes is limited to cases where the injury creates a legal liability to pay damages in some third person. LSA-R.S. 23:1101. A third person is one against whom recovery is not barred by LSA-R.S. 23:1032. Recovery against Mrs. Beeson is barred by that statute because she was Carlisle’s co-employee. Since there was no cause of action against Mrs. Beeson, no legal liability to pay damages could have arisen in her succession or her heirs. Thus, LSA-R.S. 23:1101 creates no right to reimbursement to U. S. F. & G. from the Beesons. The trial court properly dismissed such claim. (This was affirmed in the companion Beeson case.)

For the reasons assigned, the judgment of the trial court herein is reversed, set aside, and is hereby dismissed. Plaintiff-appellee is to pay all costs of this appeal and in the trial court.

REVERSED AND RENDERED.

      . The judgment made no reference to U. S. F. & G.’s claim against the Beesons. The trial court’s ruling on this issue was erroneously inserted in the judgment of the companion case of James Stanley Beeson, Jr., et al. v. State of Louisiana, through the Department of Transportation and Development. It was ruled upon by this court in the Beeson case where we affirmed said dismissal. The reasons for this dismissal shall be set forth herein.


author: FORET, Judge.

text:
    Doyle Wayne CRAIG, Plaintiff-Appellee, v. SOUTHEASTERN FIDELITY INSURANCE COMPANY et al., Defendant-Appellant.
    No. 8210.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Rehearing Denied July 8, 1981.
    Watson, Murchison, Crews, Arthur & Corkern by Wm. P. Crews, Jr., Natchitoch-es, for defendant-appellant.
    E. L. Edwards, Jr., Many, for plaintiff-appellee.
    Thomas & Dunahoe, by G. F. Thomas, Jr., Natchitoches, for defendant-appellee.
    Before GUIDRY, FORET and CUTRER, JJ.
   FORET, Judge.

Doyle Wayne Craig (Plaintiff) filed a rule to show cause why an executory judgment should not issue commanding the Travelers Indemnity Company (Travelers), as surety on a suspensive appeal bond, to pay the full amount of the unpaid portion of a judgment rendered in favor of plaintiff.

The trial court, after hearing, overruled a declinatory exception of insufficiency of service of process and rendered judgment in favor of plaintiff.

Travelers appeals and presents three issues:

(1) Whether valid service of process was made upon Travelers;
(2) Whether Oían C. Holder, Jr., a principal to the suspensive appeal bond, should have been made a defendant to the rule against Travelers; and
(3) Whether the trial court should have allowed Travelers ten days to file an answer to plaintiff’s rule once it overruled the declinatory exception of insufficiency of service of process.

FACTS

Plaintiff was negligently injured in an automobile accident and was awarded judgment in the sum of $74,351.71 against Oían C. Holder, Jr. (Holder) and his automobile liability insurer, Travelers. Travelers’ liability was set at its policy limit of $10,000.00 for personal injury, and in addition, $500.00 for damage to plaintiff’s property.

Travelers and Holder were granted a sus-pensive appeal and were named as principals to the suspensive appeal bond. Travelers was also named as surety on the appeal bond. We affirmed plaintiff’s judgment in Craig v. Southeastern Fidelity Insurance Company, 377 So.2d 1271 (La.App. 3 Cir. 1979), writ denied, 381 So.2d 510 (La.1980).

Plaintiff attempted to execute on his judgment by having a writ of fieri facias issued, but the writ was returned nulla bona as no property belonging to Holder could be found. Plaintiff thereafter filed a rule against Travelers which is the subject of the present action.

Plaintiff alleged, as grounds for his rule, that Travelers was the surety on the sus-pensive appeal bond filed by it and Oían C. Holder, Jr., who failed and refused to pay the judgment against him. Therefore, plaintiff alleged that Travelers was liable for the unpaid balance on that judgment.

The trial court held a hearing on plaintiff’s rule on June 6, 1980 and rendered judgment against Travelers for the sum of $74,351.71, subject to a credit of $12,800.00 which it had already deposited in the registry of the court. Travelers was granted a devolutive appeal after its motion for a new trial was denied.

VALIDITY OF SERVICE OF PROCESS

Plaintiff instituted this summary proceeding by a rule to show cause and attempted to effect service of process on Travelers by making personal service on May 5, 1980, upon William Crews, Jr. Crews had represented Travelers and Olan C. Holder, Jr. in plaintiff’s earlier tort action. Crews filed a declinatory exception and alleged that he had no authority to accept service of process for Travelers. The trial court overruled the exception.

Travelers argues that the overruling of the declinatory exception filed by Crews constitutes error. Basically, Travelers contends that Crews was retained to represent it in plaintiff’s tort action and had no authority to accept service of plaintiff’s rule on its behalf. Therefore, Travelers takes the position that the judgment of the trial court rendered against it is an absolute nullity since no valid service of process was made upon it.

Plaintiff argues, to the contrary, that under the clear provision of LSA-R.S. 13:4451, infra, personal service upon Crews was effective with respect to Travelers.

LSA-R.S. 13:4451 provides that:

“§ 4451. Judgment against surety on appeal bond
In all cases of appeal to any of the appellate courts, if the judgment appealed from be affirmed, the party in whose favor it is rendered on return of execution in the lower court that no property has been found, or not enough to satisfy the judgment and execution, after due demand on both parties, or their attorneys or legal representatives, may obtain a decree against the surety on the appeal bond, or his legal representative, for the amount of the judgment or any unsatisfied balance thereof, on motion, after ten days’ notice. This motion shall be tried summarily and without the intervention of a jury, unless the surety or his legal representative shall allege, under oath, that the signature to the bond, purporting to be that of the surety, is not genuine, or that judgment has been satisfied.” (Emphasis ours.)

The record leaves no doubt that Crews was attorney of record for Travelers and Oían C. Holder, Jr. in plaintiff’s tort action and their suspensive appeal therefrom. Crews signed Travelers’ and Holder’s pleadings and appeared for and represented them in those proceedings. Further, Crews signed the suspensive appeal bond on behalf of Travelers, in both its capacity as principal and surety thereto, as its legal representative. Therefore, valid service of process was made upon Travelers when Crews was personally served with plaintiff’s rule pursuant to the provisions of LSA-R.S. 13:4451.

PLAINTIFF’S FAILURE TO JOIN HOLDER

Travelers argues that Oían C. Holder, Jr. should have been made a party-defendant to plaintiff’s rule and cites Succession of Moody, 245 La. 429, 158 So.2d 601 (La.1963). We find no merit in this contention.

Moody involved a rule to tax costs against an unsuccessful appellant and the surety on appellant’s appeal bond. Appellant died before a judgment on the rule was rendered but the trial court proceeded to render judgment against the surety on the appeal bond. Moody held that where the principal on an appeal bond was originally made a party to a rule to tax costs but died before judgment was rendered and principal’s legal representatives were not made parties, proceeding for judgment against the surety alone was then without legality and judgment against the surety was invalid.

Certainly Moody can be distinguished on its facts from the action before us. Here, the judgment rendered against the principal on the suspensive appeal bond was affirmed. This had the effect of fixing the extent of the principal’s obligation thereon. Therefore, plaintiff could properly proceed against the surety on the suspensive appeal bond, under LSA-R.S. 13:4451, supra, once return of execution in the trial court showed that no property of the principal could be found.

TRIAL COURT’S FAILURE TO ALLOW TRAVELERS TO ANSWER

The record indicates that Crews filed his declinatory exception of insufficiency of service of process on June 6, 1980, which was the same date on which the hearing on plaintiff’s rule was held. Travelers argues that, since Crews’ exception was overruled, the trial court should have afforded it ten days within which to file an answer to plaintiff’s rule and cites LSA-C. C.P. Article 1001. We find no merit in this contention.

LSA-C.C.P. Article 2593 provides that:

“Art. 2593. Pleadings
A summary proceeding m.iy be commenced by the filing of a contradictory motion or by a rule to show cause, except as otherwise provided by law.
Exceptions to a contradictory motion, rule to show cause, opposition, or petition in a summary proceeding shall be filed prior to the time assigned for, and shall be disposed of on, the trial. An answer is not required, except as otherwise provided by law.
No responsive pleadings to an exception are permitted.” (Emphasis ours.)

Therefore, the trial court properly refused to allow Travelers ten days to file an answer to plaintiff’s rule.

For the above and foregoing reasons, the judgment of the trial court is affirmed.

All cost of this appeal are assessed against Travelers.

AFFIRMED.

      . The Southeastern Fidelity Insurance Company was the automobile liability insurer of one of the original parties named as defendant in plaintiffs tort action, Marvin Sepulvado. The trial court dismissed plaintiffs demand against these two parties.
      The reconventional demand of Oían C. Holder, Jr. against plaintiff, Southeastern Fidelity Insurance Company and Marvin Sepulvado was dismissed together with the third party demand of Southeastern Fidelity Insurance Company and Marvin Sepulvado against the plaintiff.

      . We note that the automobile liability insurance policy issued to Oían C. Holder, Jr. simply bears the corporate name of the Travelers Insurance Companies. However, plaintiffs petition names the Travelers Indemnity Company as the insurer on that policy and the trial court’s original judgment is rendered against the Travelers Indemnity Company.

      . LSA-C.C.P. Article 2592(4) provides:
      “Art. 2592. Use of summary proceedings
      Summary proceedings may be used for trial or disposition of the following matters only:

      (4) An action against the surety on a judicial bond after judgment has been obtained against the principal, or against both principal and surety when a summary proceeding against the principal is permitted.”

      . LSA-C.C.P. Article 2002(2) provides:
      “Art. 2002. Annulment for vices of form; time for action
      A final judgment shall be annulled if it is rendered:

      (2) Against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken;”


author: STOKER, Judge.

text:
    Beverly LITTLEFIELD, Plaintiff-Appellant, v. Robert B. HANCOCK, Defendant-Appellee.
    No. 8217.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.

      Davidson Meaux, Sonnier & Roy, J. J. Davidson, III, Lafayette, for plaintiff-appellant.
    Logan and Viguerie by William E. Logan, Jr., Lafayette, for defendant-appellee.
    Before SWIFT, STOKER and DOUCET, JJ.
   STOKER, Judge.

Plaintiff appeals from a trial court judgment sustaining defendant’s exception of no right or cause of action. We affirm.

Plaintiff filed suit seeking an injunction ordering defendant to remove a structure from his property. In the alternative plaintiff prayed for damages. Plaintiff alleged in her petition that she was the owner of and resided on Lot No. 232 of Greenbriar Estates, City of Lafayette, Louisiana. Plaintiff further alleged that defendant was the owner of Lot No. 5, Greenbriar Estates, Extension No. 1 and that defendant had constructed a metallic structure impermissibly close to the property line of Lot No. 232 and that in so doing he had violated certain recorded subdivision restrictions applicable to Lot No. 5 of Greenbriar Estates, Extension No. 1. Plaintiff further alleged that she suffered' inconvenience, loss of use and enjoyment of Lot No. 232 in the amount of $5,000. Plaintiff prayed that defendant be ordered to remove the structure from his property. In the alternative, in the event the structure was not found to violate the subdivision restrictions, plaintiff prayed for damages for the decrease in and diminution of the value of Lot No. 232 of Greenbriar Estates and the improvements thereon.

Defendant alleged that plaintiff could not claim damages to Lot No. 232 as a result of defendant’s violations of subdivision restrictions since Lot No. 232 was not within the area covered by subdivision restrictions applicable to defendant’s lot. Plaintiff’s lot and defendant’s lot were in fact located in separate and distinct subdivisions.

The trial court maintained defendant’s exception of no cause of action. In written reasons for judgment the judge relied on Lillard v. Jet Homes, Inc., 129 So.2d 109 (La.App. 2nd Cir. 1961), as holding that a party residing in one subdivision had no right of action to enjoin a violation of a restriction in another subdivision. The Lil-lard case may be regarded as having considered the plaintiff’s exception only in terms of the plaintiff’s right or interest to complain of this violation. Nevertheless, we consider the reasoning of Lillard to apply equally to an exception of no cause of action. The exceptor there, as here, had filed “an exception of no cause and no right of action.” The trial judge in the case before us found that the plaintiff did not have a right to enforce the restrictions as a personal obligation under LSA-C.C. art. 779.

On appeal the plaintiff argues that Lil-lard v. Jet Homes, Inc., supra, is on all fours but that “the reasoning leaves something to be desired.” Plaintiff, without any citation of authority, would have us hold plaintiff entitled to an injunction to enforce the subdivision restrictions applicable to defendant’s lot even though plaintiff does not own property within the restricted area. In Lil-lard the plaintiff owned property in Unit No. 8 of Coleman Park Subdivision and defendant owned property in Unit No. 9. The plaintiff filed suit alleging that defendant was violating certain restrictive covenants applicable to Unit No. 9 and sought an injunction to enforce these covenants. The court held that the units were separate subdivisions with separate and distinct recorded restrictions and that plaintiff was not a grantee entitled to enforcement of the restrictions applicable to Unit No. 9. The court stated that unless the party seeking to enforce the restrictive covenant is a grantee under the covenant he is without a right to enforce it.

We find that Lillard is apposite to the situation before us and affirm the trial court’s judgment that plaintiff has no cause of action to enforce the restrictions through the injunctive process. We do not find that LSA-C.C. art. 779 grants to plaintiff a cause of action to enforce the restrictions as a personal obligation.

In the alternative plaintiff contends that she has a personal action against defendant for damages under LSA-C.C. article 667. We do not believe that plaintiff’s petition states a cause of action arising under Article 667. We are of the opinion that the facts alleged put this case squarely within the scope of LSA-C.C. art. 668 and that plaintiff must bear the “inconvenience” of the metallic structure.

AFFIRMED.

      . Plaintiff also alleged that she was the owner of Lot No. 11 of Greenbriar Estates, Extension No. 1, City of Lafayette. However, her purchase of this lot had been rescinded as of the time of the hearing on the exception involved in this case and her former ownership of Lot No. 11 does not appear to be urged as a foundation for her action as it now stands. The sale was rescinded (Tr. 38) by written agreement of the original seller and plaintiff with the recitation “That the parties hereto acknowledge that said parcel of ground was not suited for the purposes intended ...

      . The facts on which the exception of no cause of action were decided which were not alleged in plaintiff’s petition were entered into the record by written stipulation at the time of the hearing.


author: GUIDRY, Judge.

text:
    Garrison MOREAU, Plaintiff-Appellee, v. Nancy Moreau MOREAU, Defendant-Appellant.
    No. 8223.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.

      Gist, Methvin, Hughes & Munsterman by John W. Munsterman, Alexandria, for defendant-appellant.
    Kennedy & Yeager, Ralph W. Kennedy, Alexandria, for plaintiff-appellee.
    Before GUIDRY, FORET and CUTRER, JJ.
   GUIDRY, Judge.

This is a custody rule instituted by plaintiff, Garrison Moreau, against defendant, Nancy Moreau, wherein plaintiff seeks to obtain custody of the parties’ three minor children pending the outcome of divorce proceedings.

The record discloses that Garrison and Nancy Moreau were married on September 10, 1970. Of this marriage three children were bom: Gary, Susan, and Karen, ages seven, five and three respectively at the time this matter was tried. The parties initially separated in October of 1978. Subsequent to the filing of a separation suit by Garrison Moreau, the defendant began dating Jerry Pearson, a married fellow employee. She engaged in an intimate affair with Pearson which continued from November of 1978 to April of 1979. Mrs. Moreau testified that she and Pearson engaged in sexual relations on numerous occasions in her home while the children were present in the house. Additionally, Mrs. Moreau indicated that Pearson on several occasions would take the defendant and her children on fishing trips, picnics, or riding in his automobile. Testimony received at trial indicated that on two occasions, Mrs. Moreau left her children alone and sleeping in the family home while she drove to a nearby parking lot to pick Pearson up and return him to her home. Defendant’s relationship with Pearson ended in April of 1979. In November of 1978, plaintiff and defendant attempted to reconcile. At that time, defendant informed her husband of her extramarital affair with Pearson. Testimony indicates that defendant’s affair with Pearson was a constant source of conflict between the parties which contributed significantly to the resultant failure of their attempted reconciliation. The Moreaus attempted to reconcile on two additional occasions, however, both proved unsuccessful. Subsequently, Garrison Moreau obtained a judgment of separation from bed and board. In the separation judgment Mrs. Moreau was awarded custody of the couple’s three minor children. Plaintiff at that time did not contest the award of custody to Mrs. Mor-eau. In May of 1980, defendant began dating Sam Cerbus. Mrs. Moreau testified that she engaged in sexual relations with Cerbus on numerous occasions in the family home while the children were in the house. The record reflects that Cerbus was involved in family activities and was permitted by defendant to discipline the Moreau children. The defendant testified that she purchased gifts which were given by the Moreau children to Cerbus on Father’s Day. Mrs. Moreau stated that the children presented these gifts to Cerbus while he lay in bed in defendant’s bedroom. Although Cerbus maintained a separate residence and did not contribute to the maintenance of defendant or her children, the record reflects that Cerbus actually resided with the defendant in her home for a period in excess of one month. Upon service of the instant rule, Mrs. Moreau requested that Cerbus remove his belongings from her home and resume living at his own residence. Thus, at the time of the hearing, Cerbus was no longer residing in defendant’s home. Mrs. Moreau testified that she saw nothing wrong with her relationship with Cerbus and that but for the filing of the instant rule, she would not have requested that he move out of her home. Both Mrs. Moreau and Cerbus testified that they plan to marry once defendant’s divorce is final. There is no dispute regarding defendant’s two adulterous relationships.

Plaintiff contends that the defendant has failed in her duty to demonstrate qualities of good moral character and social values to her children. Plaintiff further alleges that defendant’s conduct has subjected the parties’ minor children to embarrassment and that it is in the best interest of the children to award their custody to him. In addition, plaintiff contends that defendant is guilty of neglect in the maintenance, education, and personal hygiene of the children.

Testimony regarding the general appearance, personal hygiene, and behavior of the Moreau children while in the defendant’s custody is the subject of considerable dispute. Three teachers at the Calvary Baptist Day Care Center indicated in their testimony that Susan and Karen Moreau often arrived at school dirty and in need of bathing. Their testimony revealed that teachers at the school washed Karen’s hair each Friday for a six week period. In addition, one teacher stated that school policy required that parents accompany their children inside the school building each morning upon their arrival, however, the Moreau girls generally entered the building alone or accompanied by the oldest child. Gary. One teacher indicated that Karen frequently cried in class. Ms. Rebecca Reed, Gary Moreau’s second grade teacher, testified that Gary’s grades were insufficient to justify passing him onto the third grade. She stated that Gary’s grades improved in some areas during the period of time in which he was receiving special help from his father and that she felt that Gary could become a “B” or “C” student if he worked his hardest.

In conflict with testimony regarding the unkempt and unclean general appearance of the Moreau girls, was that of other employees of the Calvary Baptist Day Care Center, the children’s maternal grandmother, and the director of the day care facility wherein the Moreau girls are presently enrolled. These witnesses testified that the general appearance and personal hygiene of the Moreau children was good. One teacher at Calvary stated that the children were always neat in appearance and properly attired. In addition, testimony from various witnesses indicated that the Moreau children are well behaved and interact appropriately with their peers.

The sole issue on appeal is whether the trial court clearly erred in concluding that the best interest of the Moreau children requires a change of custody from their mother to their father.

In its amendment of LSA-C.C. Art. 157 in 1977, the legislature expressly provided that the sole criterion applicable to change of custody cases is the best interest of the child. See Bordelon v. Bordelon, 390 So.2d 1325 (La.1980). Thus, LSA-C.C. Art. 157 now provides in pertinent part:

“In all cases of separation and divorce, permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children...”

The standard of appellate review applicable in child custody matters was recently reiterated in Bordelon, supra, wherein the Supreme Court stated:

“... in child custody cases, the procedure for appellate review is to give great weight to the determination of the trial judge, and to overturn a determination only when there is a clear abuse of discretion. Fulco [v. Fulco, 259 La. 1122, 254 So.2d 603 (1971)], supra; Cleeton v. Cleeton, 383 So.2d 1231 (La.1980). This test is substantially similar to the rule applied by the appellate court, which prevents the upsetting of a trial court determination of fact unless it is ‘clearly wrong’. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). Under these rules, a conclusion reached by a trial court derived from the facts is entitled to just as much weight as a conclusion that certain evidence establishes a fact.”

The trial court concluded that Mrs. Mor-eau’s two open and public adulterous affairs were conducted with a total disregard of accepted moral and social principles. Further, the trial judge determined that the defendant’s sexual activities were conducted with apparently no concern for the detrimental effect on her children likely to result from such behavior. Defendant’s lack of parental concern and her apparent lack of remorse for her public indiscretions obviously impressed the trial court. Additionally, in his written reasons for judgment, the trial judge notes that the record reflects that Mrs. Moreau has not properly tended to her children. Apparently, the trial court found the testimony of those witnesses stating that the Moreau children often reported to school unwashed and unkempt more credible than those witnesses who testified to the contrary. Further, the trial court was apparently influenced by the poor academic performance of young Gary Moreau while in his mother’s custody as well as the fact that his grades improved while under this father’s tutelage.

We observe the conflict in the record regarding the maintenance of the Moreau children while in their mother’s custody, however, it is well settled that the trial judge is in the best position to judge the credibility and demeanor of the witnesses while the appellate court must rely upon a “cold record” for its determinations. See Canter v. Koehring Company, 283 So.2d 716 (La.1973); Trosclair v. Trosclair, 337 So.2d 1216 (La.App. 1st Cir. 1976); Harris v. Landry, 345 So.2d 242 (La.App. 3rd Cir. 1977), writ denied La., 347 So.2d 262.

The record indicates that plaintiff has a good job and is capable of providing a financially secure and morally sound environment in which to raise his children.

After considering the voluminous testimony presented in the instant case, the trial judge concluded that plaintiff, Garrison Moreau, is better able to provide the parties’ minor children with a proper moral atmosphere and proper care and accordingly the “best interest of the children” dictates an award of their custody to him. After carefully reviewing the record, we discern no clear abuse of the trial court’s discretion in ordering that the plaintiff have custody of his minor children.

For the above and foregoing reasons, the decision of the trial court is affirmed. All costs of this appeal are assessed to the defendant.

AFFIRMED.