author: PONDER, Judge. CHIASSON, Judge,

text:
    Edward James GAIDRY v. Thayne Hamilton GAIDRY.
    No. 12837.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    Stephen M. LaRussa, Houma, counsel for plaintiff and appellee.
    Guy A. Módica, Baton Rouge, counsel for defendant and appellant.
    Before ELLIS, COVINGTON, CHIAS-SON, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Mrs. Rockhold, the former Mrs. Gaidry, appealed from the judgments awarding $475.00 per month support for three children and setting certain visitation rights. Mr. Gaidry answered the appeal seeking a reduction in the support and an increase in visitation rights.

The issues are the amount of child support, the extent of visitation rights and the reduction in child support during extended visitation in the summer months.

We amend and affirm as amended.

Originally, Mr. Gaidry was ordered to pay $600.00 per month, which by agreement was allocated $375.00 as alimony and $225.00 as child support. When Mrs. Rockhold remarried, Mr. Gaidry sought and obtained a reduction of the payment to $225.00 per month. Mrs. Rockhold filed a rule to increase the child support. Mr. Gaidry filed a rule to fix visitation rights, asking that they be fixed on alternate weekends and six weeks every summer. After trial the court increased the amount of support to $475.00 per month and gave visitation rights on alternate weekends and during four weeks in the summer time. The amount of child support was fixed at $100.00 per month during these four weeks.

Both appellant and appellee have devoted much time and effort in arguing about some interrogatories and subpoenas duces tecum and proof of changed circumstances. We find it unnecessary to discuss these points since Mr. Gaidry admitted that he was making more money than he had at the time of the first decree. The court increased the amount of child support which had to be based on a finding of changed circumstances. We agree with that conclusion.

We disagree, however, with the amount set for support. The father’s ability to pay is not seriously questioned since his 1977 total income was shown to be in excess of $100,000.00. He attempts to prove limited ability because of large payments being made to the banks on mortgage indebtedness arising out of some business transactions. However, the father cannot avoid or limit his child support by contracting to pay larger payments on indebtedness. We are more concerned with his income.

While the testimony in regard to the amounts needed for the children were not skillfully and most effectively presented, nevertheless, we believe that the following amounts were proved:

Housing $100.00
Pood & Household 250.00'
Transportation 130.00
Dental 25.00
Medical 15.00
Utilities 75.00
Dry Cleaning 10.00
Haircuts 20.00
Lunches 21.00
School Supplies 25.00
Recreation, etc. 50.00
Summer Camps 75.00
Swim Club 20.00
Piano 30.00
Gymnastics 25.00
Tutor 80.00
Orthodontist 83.00
$1034.00

It is seriously contended that some of the above items are more luxuries than necessities. However, within the parents’ ability to pay, the children should be afforded the same standard of living that would be afforded them were they living with the father. Ducote v. Ducote, 339 So.2d 835 (La.1976).

Also it is argued that some of these items are of at least partially an emergency nature that should be paid by the father above any award made. Evidently, such has not been done in the past, so we elect to include them in the award.

We believe that the amount of support should be increased to $900.00 per month.

Appellee argues that the duty to support also falls upon the mother. We agree. However, at least part of her obligation is satisfied by her daily attendance to their needs. Ducote v. Ducote, supra. Mrs. Rockhold, also, had recently entered into a new business which had not yet attained a profitable status.

While the visitation rights border on the excessive, we do not alter them. When the children grow older and cultivate more interests on their own, it may be necessary to amend these, but at the present time we do not reduce.

We believe that the reduction of child support to $100.00 per month during extended visitation in the summer to be erroneous. The latest example we find is in Simon v. Calvert, 278 So.2d 792 (3rd Cir. 1973) which we interpret to be of special circumstances, and distinguishable in any event. Most of the expenses are of the nature to continue even in the temporary absence of the children. Furthermore the list given above shows that some of the expenses, for example, camps and day camps, would be higher in the summer. Any saving during the visitation with the father would be offset.

For these reasons we amend the judgment to $900.00 per month and eliminate the reduction during the children’s visitation with the father. As amended the judgment is affirmed. The costs are allocated to the appellee.

AMENDED AND AFFIRMED.

CHIASSON, Judge,

dissenting:

I cannot conclude from the record before us that the trial judge abused the great discretion granted him in fixing the amount of child support. Appellant’s testimony and the itemized list she submitted were not substantiated by either corroborative testimony or evidence, both of which should have been quite easy to obtain. Poydras v. Poydras, 155 So.2d 221 (La.App. 1st Cir. 1963).

Appellant’s estimate of the children’s needs totaled $1,413.30 per month. Apparently, both the trial judge and the majority herein found the needs of the children to be exaggerated and only disagree as to the amount thereof. Judges should not have to guess as to the needs of the children in a case such as this where records and receipts should be available. The case, at most, should have been remanded to the trial court for presentation of evidence as to the needs of the children. Sanford v. Sanford, 328 So.2d 915 (La.App. 4th Cir. 1976).

I also dissent from the reversal of the trial judge’s ruling that child support be reduced during the time the children are with their father in the summer. I find no distinction between this case and Simon v. Calvert, 278 So.2d 792 (La.App. 3rd Cir. 1973) cited by the majority. See also Williams v. Barnette, 226 La. 635, 76 So.2d 912 (1954).

For these reasons I respectfully dissent.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    Alfred E. MAHFOUZ, Sr. v. Gordon OGDEN, Jr. et al. Alfred E. MAHFOUZ, Sr. v. Gordon C. OGDEN, Jr.
    Nos. 12939, 12940.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.

      August H. Tabony, Eugene A. Booth, Michael C. Palmintier, Baton Rouge, for plaintiff-appellant Alfred E. Mahfouz, Sr.
    William H. Cooper, Jr., Conrad S. Adkins, Baton Rouge, for defendant-appellee J. A1 Amiss, Sheriff.
    Gerard E. Kiefer, Baton Rouge, for Gordon C. Ogden.
    R. Michael Caldwell, Baton Rouge, for defendant-appellee Zurich Ins. Co.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

These consolidated cases arise out of a lease agreement between the plaintiff and one defendant. Plaintiff-lessee sued for damages caused by wrongful sequestration (12939) in one case and for breach of lease (12940) in the other. The first suit was brought against the lessor, Ogden, and J. A1 Amiss, sheriff of East Baton Rouge Parish, and the second suit against Ogden. After consolidating the cases and hearing plaintiff’s evidence, the trial judge granted the defendants’ motion for a directed verdict. Plaintiff appeals from that judgment. Both cases will be handled in this opinion.

The primary issues before us are whether plaintiff, the sole stockholder of The Hut of Louisiana, Inc., can sue in his own name for damages suffered by the corporation and, if he can, whether he has proven any damages were incurred through defendants’ fault. Also at issue is whether plaintiff has proven any damages suffered by him personally.

Plaintiff leased a building from Ogden on October 2, 1976 as an outlet for his retail clothes business in Baton Rouge. The lease provided for a five-year term initially and gave plaintiff the option to renew for another five years. Under the terms of the lease, Ogden agreed to make certain repairs to the building, including repair of leaks in the roof.

Plaintiff paid his rent timely in November but he stopped payment on his December rent check because he felt Ogden had not complied with the lease terms regarding repairs.

Plaintiff then brought suit against Ogden for breach of the lease and Ogden, in retaliation, sued to cancel the lease, accelerate the rent and sequester the inventory and fixtures in the building. The parties decided to settle their differences out of court and entered into an amended lease agreement on December 15, 1976.

In the lease amendment, both parties agreed to drop their suits. Additionally, the term of the lease was amended to 16 months, with defendant agreeing to lease or sell the building as soon as possible. Plaintiff also agreed to pay December’s rent.

Plaintiff drew a check to Ogden’s order on December 17, 1976, with the understanding that the check would be paid the following Monday. However, upon checking with the bank, defendant learned there were insufficient funds to pay the check so he continued the sequestration which he previously had agreed to lift.

On December 21st, fire gutted almost all of the building. The December rent check cleared the following day. Plaintiff claims that some of the inventory in the building survived the fire but that his attempts to remove and secure the salvageable inventory were blocked by Ogden’s wrongful sequestration.

Soon after the fire, plaintiff exercised his option to renew the lease for five years as provided in the original contract. He also requested that Ogden rebuild the building within 6 months, as Ogden was obligated to do under the original lease agreement. Ogden refused, contending that the option to renew and the obligation to rebuild were cancelled when the lease term was shortened to 16 months. Ogden’s sequestration was eventually lifted in January, but plaintiff claims that the inventory which was left in the building had been taken by Ogden or thieves.

After the fire, The Hut of Louisiana, Inc. sued its insurer and recovered some $45,-000.00 for loss of inventory. Hut of Louisiana, Inc. v. Zurich Ins. Co., 372 So.2d 687 (La.App.1st Cir. 1979). The plaintiff then personally sued Ogden for breach of lease, alleging loss of $270,000.00 in profits because of Ogden’s refusal to rebuild. In this same suit, plaintiff also claimed $6,000.00 for repairs he made to the building before the fire. Plaintiff also sued Ogden and Amiss for loss of inventory through sequestration; employees’ salaries; attorney’s fees; damage to reputation and punitive damages for a sum of $1,523,428.00. His claim in that suit was that some of the inventory was not covered by the judgment against his insurer and that this inventory was lost through the fault of Ogden and the sheriff.

After plaintiff presented his case, the defendants moved for a directed verdict under C.C.P. art. 1810, claiming that the merchandise and fixtures in the building were owned by The Hut of Louisiana, Inc. and not by plaintiff, the sole stockholder. Their claim, therefore, was that plaintiff had suffered no damages personally and that he had no right to sue in his own name for damages allegedly incurred by the corporation. Ogden also contended that plaintiff failed to prove breach of lease in the suit against him (Ogden). The trial judge granted both motions for directed verdict.

RIGHT TO SUE

On appeal, the plaintiff claims that defendants judicially admitted through their answers to his suit that he was the owner of the inventory remaining in the building. Alternatively, plaintiff asserts that he was the alter ego of the corporation and as such had the right to sue for wrongful sequestration. Sheriff Amiss contends that he only admitted that plaintiff’s property in the building was seized, and not that plaintiff owned any or all of the property in the building.

After a careful review of the record, the briefs and the trial court’s reasons for judgment, we find that the defendants did not judicially admit plaintiff’s ownership of any inventory in the building. Further, we hold that plaintiff, who conducted business in corporate form and reaped the benefits of incorporation, cannot sue individually for damages incurred by the corporation. C.C. art. 432; C.C.P. art. 690; Mintz Furniture, Inc. v. Audubon Insurance Co., 159 So.2d 719 (La.App. 4th Cir. 1964); Mioton v. Del Corral, 132 La. 730, 61 So. 771 (1913); see also Dawson Engineers, Inc. v. Lemel Iron Works, Inc., 307 So.2d 771 (La.App.1st Cir. 1975). Even if plaintiff had brought this suit in the name of the corporation, the evidence he presented at trial to substantiate the damages he claimed was sketchy at best. The plaintiff failed to prove by a preponderance of the evidence that any salvageable inventory remained in the building after the fire or that the insurance proceeds did not cover all inventory losses sustained by either him or the corporation. The evidence further fails to show any negligence on the part of either Ogden or Amiss or Amiss’ employees.

We also hold that the plaintiff has failed to prove that he personally suffered loss as *a result of the sequestration. To show loss of business reputation plaintiff had to first show that he had a good reputation. This he failed to do. Plaintiff simply failed to carry the burden of proof imposed upon him in this lawsuit.

BREACH OF LEASE

Plaintiff’s claim that Ogden breached the lease by refusing to rebuild turns solely on the interpretation of the original lease and the amendment. Had the lease not been amended, Ogden unquestionably would have been obligated to rebuild or, in lieu thereof, to pay any damages suffered by plaintiff as a result of the refusal.

However, the amendment to the lease, especially that portion of the amendment shortening the term from 5 years to 16 months, changed the tenor of the entire lease agreement. By shortening the time he had to remain in the building and by requiring Ogden to sell or re-lease the building as soon as possible, plaintiff evidenced an intent to rid himself of the lease as soon as he could. This new intent simply does not square with the original lease provisions allowing plaintiff an option to renew and requiring defendant to rebuild. Both plaintiff and defendant Ogden wanted out of their original contract quickly and quietly. Plaintiff apparently changed his mind after the building burned, and tried to capitalize on an opportunity by holding the defendant to the original lease terms.

Like the trial judge, we hold that the amendment impliedly altered those provisions of the original agreement on renewal and rebuilding. Plaintiff’s intent was to get out of the building as soon as he could, and the fire brought that about even quicker than the amendment.

We likewise find that plaintiff’s claim for improvements are unsubstantiated.

Therefore, for the above and foregoing reasons the decision of the trial court is affirmed as to both appeals. Plaintiff will bear the costs of these appeals.

AFFIRMED.


author: REDMANN, Judge. BOUTALL, Judge,

text:
    Celeste PONTICO et al. v. Darren J. ROUSSEL et al. LIBERTY MUTUAL INS. CO. et al. v. Darren ROUSSEL.
    Nos. 10225, 10226.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 4, 1980.
    Rehearing Denied March 17, 1980.

      Henry D. McNamara, Jr., Hailey, McNamara, McNamara & Hall, Metairie, for Darren Roussel.
    Frank H. Walk, Jr., Hammett, Leake, Hammett, Hulse & Nelson, New Orleans, for Government Employees Ins. Co.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   REDMANN, Judge.

An automobile insurer appeals from a judgment for damages caused by its named insured’s minor son during a one-time operation of the son’s employer’s pick-up truck. The policy expressly covers non-owned automobiles when used by a relative residing in the named insured’s house. The questions are of interpretation of exclusionary clauses.

The policy provides that the insurer undertakes

To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:
A. bodily injury .
B. injury to or destruction of property
arising out of the . . . use of the owned automobile or any non-owned automobile .
******
. The following are insureds under Part I:
******
(b) with respect to a non-owned automobile,
(1) the named insured,
(2) any relative [“resident of the same household”], but only with respect to a private passenger automobile or trailer, provided his actual operation or (if he is not operating) the other actual use thereof is with the permission, or reasonably believed to be with the permission, of the owner and is within the scope of such permission, and
(3) any other person or organization not owning or hiring the automobile, but only with respect to his or its liability because of acts or omissions of an insured under (b)(1) or (2) above.
* * * * * *
“Non-owned Automobile” means an automobile or trailer not owned by or furnished for the regular use of either the named insured or any relative, other than a temporary substitute automobile;
“Private Passenger Automobile” means a four wheel private passenger, station wagon or jeep type automobile;
* * * * * *
Exclusions: This policy does not apply
(a) to any ■ automobile while used as a public or livery conveyance, .
$ # ‡ ⅜ ⅜ *
(g) to an owned automobile while used by any person while such person is employed or otherwise engaged in the automobile business, but this exclusion does not apply to the named insured, a resident of the same household as the named insured, a partnership in which the named insured or such resident is a partner, or any partner, agent or employee of the named insured, such resident or partnership;
(h) to a non-owned automobile while maintained or used by any person while such person is employed or otherwise engaged in (1) the automobile business of the insured or of any other person or organization, (2) any other business or occupation of the insured, but this exclusion (h)(2) does not apply to a private passenger automobile operated or occupied by the named insured or by his private chauffeur or domestic servant or a trailer used therewith or with an owned automobile .

We preliminarily note that a pick-up truck is within the policy’s definition of “private passenger automobile.” Employers Mut. L. Ins. Co. of Wis. v. Richards, La.App. 4 Cir. 1976, 332 So.2d 588.

We also rule that the son’s employer’s business of selling and repairing automobile radiators (and related parts) is not “repairing . . . automobiles ” and therefore is not “the automobile business” as defined, notwithstanding that two or three out of 40 or 50 radiators serviced a week came to the shop still attached to automobiles. We therefore do not further discuss exclusion (h)(1), which apparently intends a broader exclusion as to “automobile business” because it excludes in respect to the automobile business “of the insured or of any other person or organization ” while exclusion (h)(2) is only as to “any other business or occupation of the insured” (emphasis added).

We now turn to the principal question, which is the interpretation of exclusion (h)(2).

Helmich v. Northwestern Mut. Ins. Co., 7 Cir. 1967, 376 F.2d 420, 424, citing Cherot v. United States F & G Co., 10 Cir. 1959, 264 F.2d 767, 769, 71 A.L.R.2d 959, reasons that business or occupation in the exclusionary clause means “an undertaking engaged in with some regularity and for profit and income.” Helmich refused to apply an exclusion similar to (h)(2) to a university student’s driving a car from Chicago to Denver, which was for profit in that it provided him transportation back to school (as well as a flat sum intended as a gas and oil allowance). Our own minor driver was not employed to drive and driving was ordinarily no part of his occupation; he had never previously driven for his employer.

Also in point is the reasoning of Bowen v. Merchants Mut. Cas. Co., 1954, 99 N.H. 107, 107 A.2d 379, 385-6, which refused to apply a similar exclusion against an insured iceman who was driving his brother’s gravel truck while the iceman was briefly disabled to lift ice:

The test for interpreting a contract of insurance is the meaning a reasonable person in the position of the insured would give to its terms. Farm Bureau Mutual Automobile Ins. Co. v. Manson, 94 N.H. 389, 392, 54 A.2d 580. The words “business” and “occupation” may have various meanings under particular circumstances but in general they are each commonly used in reference to the work in which one is regularly or usually engaged. See Canney v. Massachusetts Bonding & Ins. Co., 88 N.H. 325, 327, 189 A. 168. “One’s business * * * is the activity upon which he spends the major portion of his time and out of which he makes his living.” Employer’s Liability Assurance Corp. v. Accident & Casualty Ins. Co., 6 Cir., 134 F.2d 566, 568. Neither “business” nor “occupation” is generally understood to mean “an isolated or * * * temporary adventure in another line of endeavor.” Farmers Automobile Inter-Insurance Exchange v. Calkins, 39 Cal.App.2d 390, 394, 103 P.2d 230, 232.

The Bowen and Helmich interpretation is inconsistent, however, with one expression but not with the result in Lee v. Allstate Ins. Co., La.App. 1 Cir. 1973, 274 So.2d 433. Lee’s result was that the driver’s insurer was not liable. The court’s first explanation for its decision, at p. 437, was that the minor driver “was not driving with the permission of the named insured . .” (In fact, he was driving against the owner’s express wishes.) Because of lack of permission the court released the insurer of the automobile owner and, as the Supreme Court did in American Home Assur. Co. v. Czarniecki, 1969, 255 La. 251, 230 So.2d 253 (cited in Lee), the First Circuit Court in Lee could equally have released the minor driver’s father’s insurer on that basis: the insurer only insures a relative using a non-owned automobile who does so with permission of its owner (see our insuring clause (b)(2) above). But the court added that the minor driver was driving a non-owned automobile “in his occupation” (although only on one occasion and not as a regular part of his job) and therefore was not insured because of a clause excluding non-owned automobiles used in the “occupation of the insured.” It must be conceded that Lee’s interpretation is not consonant with that here espoused, although Lee’s interpretation may be said to have been unnecessary to its apparently correct result. Lee also gave a third reason for that result: the minor driver’s father’s insurance was expressly excess coverage over the minor’s employer’s insurance, and the damages were stipulated to be only $6,761 (apparently less than the primary insurance). Lee is clearly distinguishable from our case in that our driver did have permission to drive the non-owned car from its owner, and in that our driver’s insurance is not excess but the only insurance in this case.

The Bowen and Helmich interpretation is also consistent with the result, but not the reasoning, of Redden v. Liberty Mut. Ins. Co., La.App. 2 Cir. 1976, 327 So.2d 474, writ refused La., 331 So.2d 495. There the insured drove on only one occasion a non-owned truck for pay, delivering it from Ford Marketing Corporation by driving it from the railway station in Shreveport to its purchaser, Crescent Ford Truck Sales in New Orleans. It thus seems that the (h)(1) “automobile business” exclusion was squarely in point. The court reasoned, instead, that coverage was excluded because the insured was driving a non-owned automobile in his (“other”?) business or occupation. But Redden’s facts are clearly distinguished from ours in that the nature of our driver’s employment was not the automobile business.

Voelker v. Travelers Indem. Co., 7 Cir. 1958, 260 F.2d 275, applied a somewhat similar exclusion to deny coverage to an insured driving a military convoy truck (size not stated) on National Guard summer maneuvers. The court indicated early in its opinion that the insured did not “press” the contrary argument and thus the court “think[s]” that “any other automobile” includes a military convoy truck. Yet the court’s very first explanation of its ultimate decision is that it is “grossly unreasonable to think that . . . coverage applicable ‘to any other automobile,’ contemplated that the coverage extended to the insured while driving a truck as a member of the National Guard.” 260 F.2d at 278. The court also reasoned that, because the insured was a regular truck driver in the Guard, the truck was furnished for his “regular use.” And the court added last that the truck was being “used in a business * * * of such named insured,” quoting the policy. Blackwell v. United States, 5 Cir. 1963, 321 F.2d 96, followed Voelker in applying the exclusion to a Guardsman’s use of a 2½ ton military truck.

Both Voelker and Blackwell are distinguishable in that they involve part-time employment as truck drivers, in which the drivers regularly and for profit drive, and we do not view those cases as in conflict with our position.

Our position is that of Bowen and Helmich. A reasonable person, in the position of a father who buys a family automobile policy with coverage for occasional use (with permission) of non-owned automobiles, would not interpret exclusion (h)(2) to exclude coverage for a one-time, non-essential and unanticipated driving of a non-owned automobile in his minor son’s summer job, but instead would interpret it to exclude regular driving as part of employment. That is our interpretation, and we therefore agree with the trial judge that the exclusion does not defeat coverage.

Affirmed.

BOUTALL, Judge,

dissenting.

I cannot agree that the insurance policy affords coverage under the facts of this case. The policy exclusion under the heading “Exclusions” § (h)(2) quoted in the majority opinion applies to this case. In Lee v. Allstate Insurance Company, 274 So.2d 433 (La.App. 1st Cir. 1973), the court found that the minor son of the insured was using a non-owned automobile in his occupation under a clause very similar to the one at issue here. In that case, as here, the use of the vehicle was only one time and not within the regular duties of the employee. Another Louisiana case maintaining a similar exclusionary clause is the case of Redden v. Liberty Mutual Insurance Company, 327 So.2d 474 (La.App. 2d Cir. 1976) in which one-time driving of a vehicle was determined to be a use in the business or occupation of the insured.

I quite agree that there are some distinguishing features amongst these cases, and note for example that in the Lee case, the named insured was the owner of the business in which his son worked, while in the Redden case, the driver was the named insured. It also may be that the court in each case could have decided the issue on other grounds or on other policy provisions which may have been contained in those policies. Nevertheless, the issue decided was, insofar as the particular policies are concerned, only the application of the exclusionary clause corresponding to our exclusionary clause (h)(2).

I find the Lee case to be especially persuasive of an opposite result to the majority opinion, and accordingly I dissent.

      . To complete the Louisiana picture, we note that in Barnett v. City of Monroe, La.App. 2 Cir. 1960, 124 So.2d 249, the named insured was a police officer driving his regularly-assigned police car. The court applied the (h)(2) exclusion. We are not in disagreement with that application (assuming that the exception of “private passenger automobile operated . by the named insured” from (h)(2) does not except a publicly-owned passenger automobile, although the contrary view might be espoused by contrast with the “public or livery convey-anee” exclusion). We add also that one’s regularly-assigned car at work may not meet the policy definition of a non-owned automobile, that is, “not owned by or furnished for the regular use of’ the insured.


author: REDMANN, Judge.

text:
    RED BALL MOTOR FREIGHT, INC. v. Larry N. BURAS et al.
    No. 11034.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 14, 1980.
    Rehearing Denied March 17, 1980.
    Gary T. Breedlove, Francipane, Regan & St. Pee, Metairie, for plaintiff.
    Rhett M. Powers, Powers & Nass, New Orleans, for Larry N. Buras and Delta Refrigeration Service, Inc.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   REDMANN, Judge.

From the factual finding by the trial judge that the goods were damaged when delivered, his legal conclusion that the consignee is not obliged to pay for them is correct.

Plaintiff carrier, because of its breach of its contract to collect by cashier’s or certified check, itself owed and paid the price of the goods to the consignor. But that payment did not relieve the consignor of its obligation arising from shipping damaged goods (if that is what happened). If the consignee had paid for the goods but could demand return of their price from the consignor because the consignor shipped damaged goods, then the carrier who paid the price of the damaged goods should also be allowed to recover it upon proving that the goods were damaged when shipped. But the problem is that the carrier did not prove that. For all the evidence shows, the consignor may have shipped undamaged goods and the carrier itself may have caused the damage. Thus the carrier has not proven any entitlement to recovery on this theory.

The carrier sought to prove pre-existing ill will between consignee and consignor, and argued that the consignor should have warned the carrier of the circumstances and the necessity of obtaining payment by certified check. Whatever merit this argument might have otherwise, it has no merit against the C.O.D. Shipment contract (under I.C.C. Reg. 430-C) which obliged the carrier to deliver only for cashier’s or certified check or money order. Whether merely desirable as a convenience to the consign- or, or indispensable because of ill will of the consignee, a cash-equivalent-only contract was exacted from the carrier and the carrier cannot be heard to complain that it was damaged by its own breach of that contract.

Affirmed.


author: SCHOTT, Judge.

text:
    Sheryl A. LEDET v. CONTINENTAL GRAIN CO. et al.
    No. 11088.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 14, 1980.
    Rehearing Denied March 17, 1980.
    Peter A. Feringa, Jr., and David R. Richardson, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for defendant-appellee Orleans Elec. Constr.
    Gibson Tucker, Jr., New Orleans, and Ann Clark Lazzara, Gretna, Tucker & Schonekas, New Orleans, for plaintiff-appellant.
    Rene A. Pastorek and Thomas L. Gaudry, Jr., Gretna, for defendant-appellee Aetna.
    Thomas J. Wyllie, Lloyd W. Hayes and Robert J. Conrad, Jr., New Orleans, for defendant-appellee Continental Grain.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from the dismissal of her suit on exceptions.

On December 22, 1977, plaintiff’s fiance was killed in the explosion of a grain elevator owned and operated by Continental Grain Company, Inc., at Westwego. The couple was to have been married on December 30, 1977.

Named as defendants were Continental Grain Company, Inc., the manager of its Westwego plant, two of its other executive officers, their insurer and three independent contractors providing service to the company. Damages were for loss of companionship and consortium, pain, suffering, and mental anguish, and for loss of support.

Exceptions titled lack of procedural capacity and no right of action were filed by several of the defendants on the ground that plaintiff was not within the class survivors entitled to bring suit under LSA-C.C. Art. 2315. The exceptions were maintained and plaintiff’s suit was dismissed as to these defendants.

Plaintiff seems to acknowledge that she has no right to pursue a wrongful death action on her own behalf or to maintain a survival action derived from the decedent’s claim. She contends, however, that she is entitled to assert her claim against Continental, its executive officers and insurer (hereinafter referred to as appellees) based on allegations that they committed intentional torts causing the explosion, the death of her fiance and the damages she sustained from a broken contract of marriage. Thus, the issue on appeal is whether the petition states a cause of action which we consider on our own motion pursuant to LSA-C.C.P. Art. 927.

Annexed to and made part of the petition is a copy of a citation issued on May 16, 1978, to Continental for numerous violations of the United States Occupational Safety and Health Act of 1970 on the basis of an inspection begun after the explosion and completed on May 11, 1978. In this connection plaintiff alleged that the causes of the explosion were the intentional and/or negligent failure to act by the individual appellees as to the things shown in the citation along with other deficiencies, and the individual appellees intentionally and/or negligently failed to act with the active knowledge that this substantially increased the risk of harm to plaintiff’s fiance.

In Forcum-James Co., Inc. v. Duhe Transportation Co., 231 La. 953, 93 So.2d 228 (1957), the Court stated:

“It is a basic principle of the law that a tort-feasor is responsible only for the direct and proximate result of his acts and that, where a third person suffers damage by reason of a contractual obligation to the injured party, such damage is too remote and indirect to become the subject of a direct action ex delicto, in the absence of subrogation. . . . ”
‡ sfc ⅜ ⅝: ⅝ sjt
“Even the broad language used in Article 2315 of our Code does not justify a departure from the above stated doctrine. Indeed, to permit a person to proceed against a wrongdoer in every instance where such person has sustained damage by reason of his contractual obligation to the injured party would open the door to the prosecution of claims for damages indirectly and remotely connected with the tortious act and encourage a multiplicity of suits from which numerous conflicts of interest might ensue. Parties situated in plaintiff’s position can readily protect themselves by obtaining from the injured person a conventional subrogation of the latter’s rights and, thus, the tort-feasor can be made to respond for the direct and foreseeable consequences of his act in a single suit.”

In Forcum-James, the plaintiff was seeking to recover damages which he incurred because of contractual obligations it owed to the party injured by the tort feasor. The same principle has been applied to prevent recovery against the tort feasor who negligently caused injury to a third person and thereby prevented him from performing his contractual obligations to plaintiff. Baughman Surgical Assoc., Ltd. v. Aetna Cas. & Sur. Co., 312 So.2d 316 (La.App. 1st Cir. 1976); Messina v. Sheraton Corp. of America, 291 So.2d 829 (La.App. 4th Cir. 1974). Similarly, in Desormeaux v. Central Industries, Inc., 333 So.2d 431 (La.App. 3rd Cir. 1976) writ denied 337 So.2d 225, plaintiff had no cause of action against the tort feasor who negligently damaged a culvert preventing a third person from performing his contractual obligations to plaintiff to provide irrigation.

It is plaintiff’s position that the line of cases referred to might be controlling if appellees were charged only with negligence but her allegations of intentional torts by appellees bring her case within the purview of Kernan v. Humble, 51 La.Ann. 389, 25 So. 431 (1899) and its progeny, Sandlin v. Coyle, 143 La. 121, 78 So. 261 (1918) and Carson v. Stephens, 14 La.App. 272, 129 So. 381 (2nd Cir. 1930). Kernan and Sandlin were instituted by land owners whose share-cropper tenants were terrorized by the defendants and were thus driven off plaintiffs’ land. As a result plaintiffs suffered immediate and direct losses to their crops for which they were entitled to recover. In Carson a building contractor was allowed to recover his loss of profits from a contract which was aborted by the owner as a result of threats of personal violence against the owner by defendant if he moved into the completed building.

These three cases are readily distinguishable from the instant case. They involved intentional criminal acts of personal violence against plaintiffs’ obligors which naturally and foreseeably caused direct losses to the plaintiffs. In the instant case the use of the word “intentional” in plaintiff’s allegations does not supply the facts necessary to bring her case within the cited jurisprudence. We cannot read the petition to mean that appellees deliberately caused the explosion and/or killed plaintiff’s fiance-thereby causing her damage.

A fair reading of plaintiff’s petition is that an ex post facto investigation by OSHA inspectors prompted them to cite Continental for safety violations; appellees had the duty to correct the conditions described in the citation; and their breach of this duty caused the explosion. These are allegations of negligence which, if proven, would warrant recovery for damages directly caused by such negligence. But they do not state a cause of action for the indirect and remote damages claimed by plaintiff. This result is consistent with the Forcum-James case and its progeny.

The judgment dismissing plaintiff’s suit is affirmed.

AFFIRMED.


author: STOULIG, Judge.

text:
    CONSOLIDATED SEWERAGE DISTRICT OF the CITY OF KENNER v. OKC DREDGING, INC.
    No. 10634.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 24, 1980.
    Rehearing Denied March 17, 1980.

      Michael J. Power, Yondenstein & Power, Kenner, for plaintiff-appellee.
    John M. Landis, Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, for defendant-appellant.
    Before GARRISON, CHEHARDY and STOULIG, JJ.
   STOULIG, Judge.

The sole issue presented by this appeal is the adequacy of the quantum awarded for the expropriated property.

On January 30, 1978 plaintiff, Consolidated Sewerage District of the City of Kenner (Sewerage District), filed this proceeding to expropriate certain property owned by the defendant, OKC Dredging Inc. (OKC), which formed part of a 25 acre site to be used for the construction and operation of a sewerage treatment plant.

It was stipulated the Sewerage District has the right to expropriate and that OKC is the legal record owner of the property which has an area of 370,880 square feet.

The trial court determined the value of the property to be 52 cents per square foot and granted defendant a judgment in the sum of $192,867.60, together with $6,275 expert and attorney fees. Appellant contends, based upon the expert testimony, this award does not justly and fully compensate it for the true value of its property as required by law.

Appellant’s property is vacant, unimproved, covered with brush and trees. It is bounded on the north by vacant land known as Coffey-Dupre Subdivision, the southern part of which comprises a part of the proposed sewerage site; on the south by the right-of-way of Interstate Highway 10; and on the west by the disputed Hurricane Protection Levee right-of-way.

One of the most significant matters in dispute is the accessibility to defendant’s property from Belleview Avenue, which lies to the west of the property. Apparently, this is the only means of access presently existing which does not entail the construction of a bridge or the installation of a roadway across the I — 10 right-of-way.

The Sewerage District contends between Belleview Avenue and the western boundary line of OKC’s property is the right-of-way of the Hurricane Protection Levee as established by the U.S. Corps of Engineers. It claims this right-of-way is now under the control of the Pontchartrain Levee District (or its successor, the Jefferson Levee District) and is no longer open to use by the public or adjacent property owners.

Appellant argues that the Sewerage District has not offered any evidence to establish that the Pontchartrain Levee District or its successor ever acquired title to the right-of-way of the Hurricane Protection Levee and therefore, it does have access to its property from Belleview Avenue.

In support of its position, the Sewerage District’s surveyor, Ronald L. Schumann, located and identified the U.S. Corps of Engineers monuments establishing the right-of-way which was adjacent to and between the western boundary line of OKC’s property and Belleview Avenue. He testified there was a steel barricade across the entire width of the roadway from which extended cables to cover the entire right-of-way at the end of Williams Boulevard and prevent traffic from entering Belleview Avenue. He did admit there were some vehicle tracks parallel to the levee and some shells north of 1-10 right-of-way, indicative of the use of Belleview Avenue. No documentary evidence was tendered to show that the Levee District acquired the right-of-way.

In opposition thereto, appellants submitted evidence that Belleview Avenue and its extension, Grand Lake Boulevard, were accepted by the Parish of Jefferson as part of its major street plan on October 18, 1978, some nine months after the taking. Both OKC’s real estate manager and expert appraiser testified they had access to the property by the shell road.

We conclude that the record does not support a finding that the Pontchartrain Levee District or its successor ever acquired the title to the right-of-way for the Hurricane Protection Levee. The mere fact that the Levee District is a political entity with certain designated functions and powers does not relieve it of the requirement that transactions affecting the title to realty, to be effective against third persons, must be in writing and placed of record. No evidence of compliance with these requirements was introduced. The erection of barricades and policing of the area by the Levee District is not in itself sufficient to establish legal record title in that body. Therefore, we find defendant did have legal access to its property from Belleview Avenue.

The next factor to be considered is the highest and best use of the expropriated property. The appraisers for the Sewerage District and for OKC both agreed that if defendant has access to its property — which we determine it has — the highest and best use would be light industrial. Usually a less restrictive zoning classification of light industrial increases the value of the property over that burdened with the more onerous requirements of residential, etc. However, in the instant matter there is a peculiar condition which renders this result incorrect.

In setting the criteria for determining the highest and best use of expropriated property for market value purposes, the Supreme Court in Parish of Iberia v. Cook, 238 La. 697, 116 So.2d 491, 496 (1959) stated in part:

“The possibility for its use for all available purposes for which it is adapted and to which it might in reason be applied should be considered. The ultimate test of value in that respect is what .men of wisdom and prudence and having adequate means would devote to the property if owned by them. . . .”

Applying these standards, we find that light industrial is not the highest and best use of defendant’s property. The unrefuted testimony of Lawrence W. Lambert, the expert engineer presented by the Sewerage District, established that the average ground elevation of this property is 14.1' Cairo data and that 3.75' of fill is necessary to meet the minimum elevation required by the City of Kenner for the issuance of a building permit in this area. His estimate of the cost for the required fill of 70 cents per square foot is likewise not disputed.

Defendant’s own appraiser valued the 370,880 square feet of property at $1 per square foot for industrial use or a total of $370,880 without any allowance for the required fill. If this appraisal is adjusted downward to the extent of the cost of the fill of $259,616 ($370,880 X 70 cents) necessary to utilize the property for industrial purposes, the net value to any knowledgeable buyer would be $111,264.

“The possibility for use” of the property for industrial purposes requires a permit from the City of Kenner which in turn requires it to be filled to grade and unquestionably, no “men [buyers] of wisdom and prudence” would purchase the property for such use without deducting from the purchase price (appraisal value) the cost necessary to comply with the municipal requirements for such use. While normally light industrial is a more desirable classification, in the instant matter the highest and best use to this defendant is its present zoning classification of RR-1.

Using comparable sales of the Coffee-Dupre Subdivision which has the same zoning classification, identical topography, and is contiguous to the northern boundary of the expropriated land, the appraisers for the Sewerage District and for the defendant value the property as residential at 40 cents and 55 cents per square foot respectively.

The trial judge apparently concluded that RR-1 classification was the highest and best use of the property and accepted the valuation of 40 cents per square foot, which he adjusted to 52 cents per square foot to accommodate any increment in value from the date of the comparables to the date of the taking and for the differential in size of the property. We concur in these determinations and find them to be in accord with the existing jurisprudence.

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal to be borne by the appellant.

      . The pertinent provisions of Art. 1, § 4, La. Const, of 1974, C.C. art. 2633, and R.S. 19:9 and 110 B all require that the property owner be compensated to the full extent of the true value of the expropriated property which it possessed at the time of taking.

      . The Coffee-Dupre Subdivision fronts on a drainage canal.

      . The Jefferson Levee District was created by Act 62 of 1979.

      . Survey of Ronald L. Schumann dated August 15, 1978. Exhibit P-2.


author: LEMMON, Judge.

text:
    Gary BREAUX v. Isabel Perez, Wife of/and Herbert PEREZ, Herbert Perez, Harry DeKay d/b/a Prytania Private School & Travelers Insurance Company.
    No. 11018.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 28, 1980.

      Edward R. Drury and Clark A. Richard, New Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter,. Poitevent, Carrere & Denegre, Donald 0. Collins, New Orleans, for defendants-appellees.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   LEMMON, Judge.

' Plaintiff has appealed from a judgment dismissing his tort suit after a trial on the merits. At issue is the liability of Mrs. Isabel Perez, the driver of a school bus which struck a telephone wire hanging across a residential street and knocked plaintiff, a telephone repairman, from the ladder on which he was working.

The accident occurred in the late afternoon of a clear, dry day. Plaintiff was attempting to repair a telephone wire which extended from a permanent telephone pole across Ames Boulevard to a temporary pole and then to a house, where it had become partially disconnected. He parked his service truck partially on the street and partially on the narrow shoulder, leaving the brake light flashing, but making no other attempt to block the street or to warn oncoming traffic of overhead activity. Since there was not enough slack to reconnect the wire to the house, he placed his ladder against the strand next to the telephone pole and climbed the ladder for the purpose of disconnecting the wire from the pole.

In the meantime Mrs. Perez had turned her school bus onto Ames Boulevard, with plaintiff’s truck on her right about one block away. There was no other traffic moving in either direction, but plaintiff’s ladder was partially obstructed by the truck, and Mrs. Perez did not see plaintiff, the ladder or the wire until she drove around the truck, whereupon she saw plaintiff on top of the ladder and then saw the wire draping down above her near the top of the bus. She had insufficient time to stop the bus before striking the wire.

Plaintiff stated that safety regulations required wires to have an 18-foot clearance over roadways and that this wire was 15 to 18 feet above the ground. However, this estimate was clearly wrong because the 12-foot high bus struck the wire which plaintiff disclaims having moved before the accident.

Plaintiff contends that since Mrs. Perez had an unobstructed view of the wire for an entire block, she had the duty to see what she should have seen and was negligent in failing to see the wire and to avoid striking it. However, this record provides no basis for imposing a duty on Mrs. Perez to have seen the wire. An overhead wire cannot reasonably be characterized as an obvious obstruction, and the only precaution utilized by plaintiff to warn motorists of the barely perceptible wire was his leaving the truck’s brake lights flashing. These flashing lights, however, simply indicated to oncoming motorists that the truck was stopped partially on the roadway, and motorists could otherwise reasonably assume the roadway was free from substantially hidden hazards.

The trial court properly found plaintiff failed to prove any breach of duty by Mrs. Perez which caused his injury.

AFFIRMED.

      . In a written statement submitted to his employer plaintiff stated he had cleared the wire off the road to allow backed-up traffic to pass before climbing the ladder.

      . See Frischhertz Elec. v. State Farm Mut. Auto. Ins. Co., 357 So.2d 1323 (La.App. 4th Cir. 1978), in which the owner of a truck with a hydraulic boom that had a two-inch diameter “stinger” extending from the boom and over the roadway, approximately 11 feet above the ground, was denied recovery for damage to the “stinger”, which was struck by a large truck, on the basis that the truck driver had no duty to see the relatively inconspicuous “stinger” extending above the roadway without warning devices.


text:
    Karen Perkins, Wife of/and Michael PERKINS, v. BULK TRANSPORT, INC.
    No. 11047.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 28, 1980.
    Writ Refused March 21, 1980.
    Joan B. Montero, Kenner, for plaintiffs-appellants.
    Bienvenu, Foster, Ryan & O’Bannon, John W. Waters, Jr., New Orleans, for defendant-appellee.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   LEMMON, Judge.

The sole issue in this appeal is whether the trial court erred in denying plaintiffs’ claim for property damage to a 1976 Corvette sustained upon being struck in the rear by an 18-wheel tractor and trailer.

Plaintiff driver testified that the damage to the bumper and fender of her previously undamaged car was estimated by the repairman and by defendants’ adjuster at $420.82. In support of her testimony she offered both estimates, the repair bill and her cancelled check for the repairs. Defendants’ counsel objected to the estimates and the unitemized bill, complaining he had no opportunity to cross-examine the estimator-repairer.

The trial court admitted the documents, but ultimately denied the particular item of damages, even though the court found defendants liable for the accident and awarded plaintiffs their claimed amounts for car rental and for loss of wages caused by the property damage.

The trial court erred in denying the claim for'property damage on the evidence in this record. Plaintiff driver’s testimony and the supporting documents were corroborated by defendants’ own answers to interrogatories, in which defendants stated their adjuster might testify as an expert on automobile damage that “plaintiff’s car was damaged only in the amount of $420.82”.

Accordingly, the judgment of the trial court is amended to increase the award by $420.82. As amended, the judgment is affirmed. All costs in both courts are assessed to defendants.

AMENDED AND AFFIRMED.

      . Plaintiff had sued for an additional $1,000.00 as “irreparable damage”.


text:
    Lincoln LACOUR, Mrs. Doris Robinson Lacour v. Nelson CHATELAIN, William Krause, State Farm Fire and Casualty Company.
    No. 11086.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 28, 1980.
    Writ Refused March 21, 1980.
    Michael K. Fitzpatrick, Porteous, Toleda-no, Hainkel & Johnson, New Orleans, for defendants-appellants.
    Kerry P. Camarata, Law Offices of Gerald P. Webre, Metairie, for plaintiffs-appel-lees.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   SCHOTT, Judge.

Lincoln Lacour filed this tort suit against Nelson Chatelain and William C. Krause as executive officers of his employer, Mason Chatelain, Inc., and their liability insurer, State Farm Fire & Casualty Company, for injuries he sustained on the job on July 11, 1973. State Farm, which also carried the workmen’s compensation insurance, intervened to claim compensation benefits it was paying to plaintiff for total disability. The case was scheduled for trial on September 25, 1978, when a settlement for $16,000 was reached between the attorneys for the parties on September 22. The settlement drafts were prepared by State Farm and delivered to their attorney, but when he contacted plaintiff’s attorney to arrange to finalize the settlement plaintiff’s attorney advised defendants’ that the plaintiff had died on August 14,1978, whereupon defendants refused to proceed with the settlement.

On November 22 a supplemental petition was filed by Mrs. Doris Robinson Lacour individually and as natural tutrix of the minor children, Lynette, Lincoln, Jr., and Jerome Lacour, and by Mrs. Ella Mae El-more Lacour as natural tutrix of the minors Belinda and Sherry Lacour, seeking a judgment for the $16,000 based on the alleged settlement reached on September 22.

The case proceeded to trial on the basis of documents, some issued by State Farm and others exchanged between the attorneys along with some explanatory testimony on the part of the attorneys.

The documents consisted of a memorandum by State Farm’s representative, dated September 22, to the effect that its attorney had settled the case “for $16,000 total— releasing all claims . . .a letter from plaintiff’s attorney to defendants’ confirming the settlement of the case for $16,000, and a letter to defendant’s attorney by State Farm’s representative enclosing two drafts, one for $14,750 and the other for $1250 with the explanation that the larger draft would settle the workmen’s compensation claim of plaintiff, and the lesser draft the tort claim.

Defendants’ attorney in his testimony acknowledged that plaintiff had a valid claim for workmen’s compensation benefits but regarded the tort claim as weak. It was his intention to have the court approve settlement of the workmen’s compensation claim as a part of the settlement procedure of all claims growing out of the accident. On the other hand, plaintiff’s attorney insisted that he understood the $16,000 would be in settlement of the tort claim exclusively. The trial court apparently decided the case on the basis that the documents were writings sufficient to bring about a transaction or compromise in accordance with LSA-C.C. Art. 3071.

Since one of the parties to this agreement was dead at the time it was purportedly entered into it obviously was not binding on defendants. In fact, when plaintiff’s attorney wrote the letter and made the agreement, which he relies on, he no longer had the capacity to represent his client who was then dead.

Accordingly, the judgment appealed from is reversed and set aside, and there is judgment in favor of defendants, State Farm Fire & Casualty Company and Nelson Cha-telain, dismissing the supplemental petition of Mrs. Doris Robinson Lacour and Mrs. Ella Mae Elmore Lacour at their costs. The case is remanded to the District Court fot further proceedings on the original petition.

REVERSED AND RENDERED.


text:
    Gorgi EZELL et al. v. Francis S. MORRISON, Jr. et al.
    No. 11114.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 28, 1980.

      Charles R. Maloney, New Orleans, for plaintiffs-appellants.
    C. Gordon Johnson, Jr., and Adrianne I. Landry, Porteous, Toledano, Hainkel & Johnson, New Orleans, for defendants-ap-pellees.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   SCHOTT, Judge.

This is a suit for damages sustained by Mr. and Mrs. Lynwood J. Ezell, Jr. in an automobile accident on December 30, 1977. Defendants are the driver, the owner and the insurer of the other car. At the time of the accident, Mrs. Ezell was four and a half months pregnant. On March 18, 1978, she suffered a miscarriage.

Both plaintiffs claim damages for the loss of their unborn child in addition to Mrs. Ezell’s claim for pain and suffering in general, and particularly in connection with her miscarriage; and Mr. Ezell’s claim for property damage.

Defendants filed an exception of no right of action as to the loss of plaintiffs’ unborn child which the trial court sustained ordering “that any claim for damages for the loss of an unborn child be dismissed.” From this judgment plaintiffs have appealed.

While we do not agree with the trial court’s conclusion that plaintiffs have no right to recover for the loss of their unborn child (for reasons to be stated hereafter) we have concluded that the issue was not properly raised and his judgment was erroneous from a procedural point of view.

The exception of no right of action is used to question the plaintiffs’ interest in the subject matter of the litigation. See C.C.P. Art. 927 and cases found in annotation. Thus, the expectant parents are the parties who have the requisite interest in recovering damages for the loss of their unborn child, if a cause of action exists to recover such damages.

Plaintiffs’ cause of action is for damages they sustained as a result of defendants’ negligence. One of the items of damage they claim is the loss of their unborn child. The judgment appealed from is a piecemeal adjudication which is offensive to basic principles of efficiency in judicial administration. The question is not whether plaintiffs have a right of action or state a cause of action but simply whether they are entitled to recover their one item of damages among the several they claim. Neither the exception of no right nor no cause of action can be employed to eliminate an isolated element of damage and the court was in error in sustaining such an exception. Bailey v. Texas Pacific Coal and Oil Company, 134 So.2d 339 (La.App. 3rd Cir. 1961).

However, defendants urge alternatively that their exception be treated as a successful motion for partial summary judgment under C.C.P. Art. 966. Assuming the absence of any impediment to such a procedure, we have concluded that the judgment is erroneous in substance.

The judgment was apparently based on Wascom v. American Indem. Corp., 348 So.2d 128 (La.App. 1st Cir. 1977), writ denied 350 So.2d 1224. However, this case was overruled by that court in Danos v. St. Pierre (La.App. 1st Cir. 1980) and Diefenderfer v. Louisiana Farm Bureau (La.App. 1st Cir. 1980). [Both decided January 21, 1980].

Contrary to the statement in Wascom that “[t]he law is clear” that plaintiffs are not entitled to recovery for the loss of their unborn child we find clear authority that they are in Valence v. Louisiana Power & Light Co., 50 So.2d 847 (La.App.1951) wherein our predecessor court stated:

“We cannot be persuaded that, under no circumstances, should there be awarded damages to the parents of the unborn child if the foetus, while in its mother’s womb, has been so injured that it cannot be born alive. We are certain that the redactors of our code had no such purpose in mind in enacting Article 28.
“There can be no doubt at all that there could be a recovery for a result of an accident which might cause sterility, or which might otherwise prevent parents from having children, if, as the result of actionable negligence, a husband or a wife should be so injured that either, in the future could not expect to produce children, surely this would be taken into consideration as an item of damage. It necessarily follows, we think, that when parents are actually expecting the arrival of a child, and they are deprived of the fruition of that great expectation by the actionable negligence of someone else, they may recover from the tortfeasor as an item of damage for that particular loss.”
* * * * * *
“And that is our conclusion here — that as a matter of law, there may be recovery by the parents where there is actionable negligence which causes such injury to a viable foetus as to prevent its being born alive, but that there must be strict proof that the actionable negligence was the cause of the unfortunate occurrence.”

Accordingly, the judgment appealed from is reversed and set aside. The exception of no right of action filed by defendants is overruled and the case is remanded to the trial court for further proceedings. Costs of this appeal are taxed against defendants.

REVERSED AND REMANDED.


author: SAMUEL, Judge.

text:
    Harry T. BEGG, III et al. v. The ROMAN CATHOLIC CHURCH OF the ARCHDIOCESE OF NEW ORLEANS et al.
    No. 11124.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 28, 1980.
    Writ Refused March 21, 1980.

      Harry T. Begg, III, in pro. per., and Ferguson & Lane, April Ferguson, Memphis, Tenn., for respondents.
    Lemle, Kelleher, Kohlmeyer & Matthews, H. Martin Hunley, Jr., and David S. Kelly, New Orleans, for defendants-relators.
    Before SAMUEL, GULOTTA and SCHOTT, JJ.
   SAMUEL, Judge.

On April 15, 1977 plaintiff filed suit against Associated Catholic Charities of New Orleans, Inc., the Archdiocese of New Orleans, its insurers, and others seeking damages allegedly sustained by him and his alleged minor child as a result of certain services and counseling rendered to the mother of the child by the defendants or some of the defendants. The matter is before us on our grant of defendants’ application for writs.

The case has not been tried on its merits. The only issue presented is the propriety of an April 20, 1979 trial court order and an October 31, 1979 trial court judgment. The order reads: “IT IS ORDERED, that attorney Mark Lane and attorney April R. Ferguson, be hereby allowed to represent plaintiff, Harry T. Begg, III, as co-counsel in the above numbered cause.” The judgment reads: “IT IS ORDERED, ADJUDGED AND DECREED that attorney Mark Lane and attorney April R. Ferguson be allowed to associate as co-counsel of record with plaintiff Harry T. Begg, III, in proper person, in this cause.” The judgment was rendered following a hearing on a defendant motibn to strike the names of Mark Lane and April R. Ferguson from the record as co-counsel for plaintiff.

The controlling law is R.S. 37:213, 214 and 215, and Article 14, Section 9, Articles of Incorporation of the Louisiana State Bar Association, which read (in pertinent part as to 213 and 214):

“No natural person, who has not first been duly and regularly licensed and admitted to practice law by the Supreme Court of this state, no partnership except one formed for the practice of law and composed of such duly licensed natural persons, and no corporation or voluntary association except a professional law corporation organized pursuant to Chapter 11 of Title 12 of the Revised Statutes, shall:
(1) Practice law;” R.S. 37:213.
“Except as provided in this Section, no person licensed or qualified to practice as an attorney at law or as an attorney and counsellor at law in any other state and temporarily present in this state shall practice law in this state, unless he has been first duly licensed to practice law by the supreme court of this state or unless he acts in association with some attorney duly licensed to practice law by the supreme court of this state.
Nothing in this Chapter prevents the practice of law in this state by a visiting attorney from a state which, either by statute or by some rulé of practice accorded specific recognition by the highest court of that state, has adopted a rule of reciprocity that permits an attorney duly licensed and qualified to practice law in this state to appear alone as an attorney in all courts of record in the other state, without being required to be admitted to practice in such other state, and without being required to associate with himself some attorney admitted to practice in the other state.” R.S. 37:214.

“Whenever any visiting attorney desires to exercise the privilege of appearing alone as counsel of record in any case in any court of record in this state, under the provisions of the second paragraph of R.S. 37:214, he shall, before filing the first pleading or other appearance on behalf of his client in the cause, produce evidence satisfactory to the court before which he wishes to appear, or to the presiding judge if there be two or more judges of the court, to the effect that the state in which he is then licensed and qualified to practice law has in force a statute or rule of practice of the character specified in R.S. 37:214. Upon the judge being satisfied of this, he shall enter an order authorizing the appearance of the visiting attorney before his court in the case. This order shall specifically refer to the appropriate statutory provision or to the requisite judicial recognition of the appropriate rule of practice of the other state in question.” R.S. 37:215.

“An applicant, who has been licensed to practice in another state or territory of the United States or in the District of Columbia must meet the conditions imposed on any other applicant.

A person licensed or qualified to practice as an attorney at law or as an attorney and counselor at law in any other state and temporarily present in this State (hereinafter termed a visiting attorney) may practice law in this State, if such visiting attorney acts in association with some attorney duly and regularly licensed and admitted to practice law by the Supreme Court of Louisiana.

A visiting attorney from a state which, either by statute or by some rule of practice accorded specific recognition by the highest court of said state, has adopted a rule of reciprocity that permits an attorney duly and regularly licensed and qualified to practice law by the Supreme Court of Louisiana to appear alone as an attorney in all courts of record in such other state without being required to be admitted to practice in such state and without being required to associate with himself some attorney admitted to practice in such other state, may engage in the practice of law in this State upon complying with the following conditions:

Whenever any visiting attorney desires to exercise the privilege of appearing alone as counsel of record in any case in any court of record in this State under the provisions of the preceding paragraph of this Section, such visiting attorney, before filing the first pleading, or other appearance on behalf of his client in said cause, shall produce evidence satisfactory to the judge of the court of record in this State before which he wishes to appear, or to the presiding judge if there be two or more judges of said court, to the effect that the state in which he is then licensed and qualified to practice law has in force a statute or rule of practice of the character specified in the preceding paragraph of this section, and, upon the said judge being satisfied of this, he shall enter an order on the pleading, or other appearance presented to him, authorizing the appearance of said visiting attorney before his court in said case, which order shall specifically refer to the appropriate statutory provisions or to the requisite judicial recognition of the appropriate rule of practice of the other state in question.” Art. 14, Sec. 9, Articles of Incorporation, La. State Bar Association.

The record reveals the following: At the time the original petition was filed plaintiff was represented by Louisiana counsel. Subsequently, that counsel withdrew, plaintiff retained and discharged several other Louisiana counsel, and then handled his case in proper person. Together with Mark Lane and April R. Ferguson, he then filed a motion to have those persons represent him “as co-counsel” and the April 20, 1979 order followed. Both the motion and the order were ex parte. Relators then objected to the order, and the judgment now before us followed. Other than evidence establishing the fact that neither Lane nor Ferguson is licensed to practice law in the State of Louisiana, no evidence at all was introduced at the hearing on the motion to strike. The record is totally devoid of any evidence showing or tending to show either Lane or Ferguson is licensed to practice law in any state.

We conclude the order and judgment complained of were improvidently issued and rendered. The above quoted controlling law has not been complied with in any respect. In addition, Lane and Ferguson do not here attempt to associate themselves with Louisiana counsel, they attempt to become the sole attorneys for the plaintiff, a layman, and this is not changed by the fact that plaintiff appears in proper person. Of even greater significance is the fact that there is no showing that either Lane or Ferguson is licensed to practice law in any state.

For the reasons assigned, the writ is made peremptory and it is ordered that both the April 20,1979 trial court order and the October 31, 1979 trial court judgment be vacated, set aside and annulled.

WRIT MADE PEREMPTORY.

      . R.S. Title 37, Chapter 4 — Appendix, at page 148. In this connection see R.S. 37:211 and Rule XVII of the Louisiana Supreme Court Rules.

      . In a brief submitted in this court it is stated Lane is licensed to practice law in the state of New York and Ferguson is licensed to practice law in the states of Florida and Tennessee. These statements, of course, are not evidence and cannot be accepted as such.

      . Even if this were true, there is a clear failure to follow the required procedure.


text:
    James KELLY and his wife, Josephine Kelly, v. LOUISIANA STADIUM AND EXPOSITION DISTRICT et al.
    No. 10426.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 29, 1980.
    William F. Grace, Jr., Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for Superdome Services, Inc. and U. S. Fidelity & Guaranty Co.
    Mary Ann McGrath Swaim, Rudolph R. Schoemann Law Offices, New Orleans, for ADF Services, Inc., a division of Premier Enterprises, Inc. and Western World Ins. Co., Inc.

      Before SAMUEL, REDMANN and SCHOTT, JJ.
   REDMANN, Judge.

For personal injury to plaintiff wife allegedly caused in part by the negligence of an “usherette” in the Louisiana Superdome by her “failure to warn petitioner of the peril which she was not likely to see,” plaintiffs sued, among others, Superdome Services Inc. and its insurer (SSI), which third-partied ADF Services and its insurer. SSI alleged that ADF contracted to furnish to SSI various services and personnel, including ushers for the Superdome.

SSI now appeals from a summary judgment dismissing its third-party demand. The judgment was granted on ADF’s motion relying on La.C.C.P. 1067 and on the fact that the third-party demand was filed seven months after service of the main demand.

We reverse. C.C.P. 1067 is not a prescription statute, fixing a 90-day limitation upon bringing incidental demands. To the contrary, it is an exemption statute, which during its 90-day period exempts any incidental demand from any applicable prescription statute whose prescriptive period would accrue during that 90-day period. Thomas v. W & W Clarklift, Inc., La.1979, 365 So.2d 913; Blue Streak Ent. v. Gulf Coast Marine, La.App. 4th Cir. 1979, 370 So.2d 633.

Reversed.

      . An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the case of a third party defendant within ninety days from service of process of the third party demand.

      . Thomas reversed the district court, which had maintained what we described as “an exception of prescription of 90 days, based on C.C.P. art. 1067.” 365 So.2d 913, 915. We discussed C.C.P. 1067 and its history, disagreeing with the trial judge’s view but agreeing for other reasons that the suit should be dismissed. The Supreme Court reversed, necessarily rejecting the reasoning of the trial judge on C.C.P. 1067.


text:
    Forrest J. SILCIO, Individually and on behalf of his wife, Belinda Silcio and Keith Silcio et al. v. Marie A. HALEY and the Travelers Insurance Company.
    No. 11019.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 31, 1980.

      John H. Brooks, James S. Weidner, Jr., Gretna, for plaintiffs-appellants.
    James J. Morse, Grayson H. Brown, New Orleans, for defendants-appellees.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   LEMMON, Judge.

Plaintiffs (Silcio, the driver, and his automobile passengers) have appealed from a judgment dismissing their tort action based on an automobile accident. The issue is whether plaintiffs’ evidence established liability on the part of defendant, Mrs. Haley, for the collision.

The accident occurred on a rainy night on a four-lane highway divided by a median. Silcio, who had been driving west on the highway, was involved in an earlier collision, in which his car veered across the median and came to rest facing eastward in the left or inside of two eastbound lanes. According to Silcio, after determining his car could not be moved and turning on his flashing hazard lights, he checked on the driver of the other car and then returned to his car, where he attempted to secure help by means of his CB radio for about five minutes, when he was struck from the rear by Mrs. Haley. He did not attempt to flag oncoming eastbound traffic or instruct anyone else to do so, and he kept his family in the car because it was raining and it was safer there than outside.

Mrs. Haley testified that she was driving in the left eastbound lane at approximately 35 miles per hour (the speed limit was 45) behind another vehicle, when the preceding vehicle suddenly moved into the right lane. She then saw the Silcio vehicle for the first time, stopped without lights or any warning devices, about four car lengths ahead. She immediately applied her brakes, but was unable to stop or to avoid hitting the stopped car, and there being another car to her right.

Although Silcio produced two witnesses who stated that his flashers were on prior to the second collision, the investigating officer testified that none of the lights on Silcio’s car were working when he arrived at the scene and that Mrs. Haley had told him the Silcio car had no lights on at the time of the collision.

Penal traffic statutes (R.S. 32:141 B) and reasonable standards of conduct require that a motorist whose disabled car is stopped on the traveled portion of a highway (particularly in the passing lane of a multi-lane highway) take reasonable precautions to protect oncoming traffic from the hazard thus created. Action or inaction in this respect is relevant not only to the determination of negligence on the part of the stopped motorist, but also to the determination of negligence on the part of the oncoming motorist.

In the present case the record supports the trial court’s apparent finding that Mrs. Haley was driving in a prudent manner within the speed limit when the preceding motorist’s sudden and unexpected turn exposed her to a sudden emergency situation which was not of her own making. Perhaps if Silcio had taken steps to warn oncoming traffic, as required by statutory law and by rules of reason, then Mrs. Haley should have been alerted earlier to the hazard and would have been afforded more time to stop or otherwise avoid the accident, and her failure to do so under those circumstances might justify a finding of negligence. Under the overall circumstances established by this record, however, Mrs. Haley’s conduct met the standard of a reasonable motorist, and the trial court properly concluded she was not liable for any plaintiffs’ damages.

AFFIRMED.

      . See, for example, Youngblood v. Oil Well Chemical Co. of La., 352 So.2d 316 (La.App. 4th Cir. 1977), in which a stopped motorist left a passenger in the car and was flagging oncoming traffic when the defendant drove past the signaling motorist and into the stopped car without slowing or swerving.


text:
    Laura Louise Moga, wife of Norris Paul DUBROC, v. Norris Paul DUBROC.
    No. 11023.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 31, 1980.
    Writ Granted March 21, 1980.
    J. Wensles Parra, Jr., New Orleans, for defendant-appellant.
    Roger Dallam, Gretna, for plaintiff-ap-pellee.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   SCHOTT, Judge.

Appellant, Norris Paul Dubroc, and ap-pellee, Mrs. Laura Dubroc, were divorced on January 10, 1975, and in connection therewith appellee was given custody of their two minor children, a boy and a girl. Appellant was ordered to pay $250 per month as child support. Shortly after the divorce the parties agreed that appellant would take custody of the boy. Appellant testified that they agreed also that his child support payments would be reduced to $125 per month. From that time forward appellant paid and appellee accepted $125 per month until October, 1978, when she filed a rule, pursuant to LSA C.C.P. Art. 3945, to make past due support executory, claiming the additional $125 per month, and also to increase support for the girl to $500 a month.

The trial court made the alimony execu-tory for three years in the amount of $4500. In his reasons for judgment, the trial judge also stated that appellee had denied in her testimony that she made the agreement with her husband to take the reduced amount, but he did not make a definitive ruling on whether or not she made such an agreement. He stated that his decision was based on Halcomb v. Halcomb, 352 So.2d 1013 (La.1977).

We find that the agreement was made. In addition to the unequivocal testimony of the appellant and the fact that the reduced payments were made by appellant and accepted without objection by appellee for over three years, her testimony on the point was inconsistent. While she did once deny making the agreement when asked by the court if she did she replied:

“I don’t remember, I don’t think so.”

Then she repeated in response to a question by appellant’s attorney:

“I don’t really remember. The only thing I do remember, he took Aubry.”

Halcomb v. Halcomb, supra, is distinguishable from the instant case. It involved unilateral reductions in child support by the father as each child reached the age of majority. In Henson v. Henson, 350 So.2d 979 (La.App.2nd Cir. 1977), Caraway v. Caraway, 321 So.2d 405 (La.App.2nd Cir. 1975), writs refused, 323 So.2d 479, and Silas v. Silas, 300 So.2d 522 (La.App.2nd Cir. 1974), writs refused, 303 So.2d 177, the child or children were originally placed in the mother’s custody but were voluntarily transferred by her to the father for extended periods of time. On the mother’s claim for the full amount of past due support, the courts gave the father a credit and reasoned that the mother had waived her right to the full amount of child support under such circumstances. We agree with the results in these cases and conclude that appellant is entitled to a credit for the amount he was condemned to pay for the support of the boy, originally placed in ap-pellee’s custody but voluntarily placed by her in the custody of the father, especially since she agreed to take and actually did accept the reduced amount of support following her agreement.

Accordingly, the judgment making past due support executory is reversed and set aside, and there is judgment in favor of defendant, Norris Paul Dubroc, and against plaintiff Laura Louise Moga Dubroc, dismissing her rule. All costs are taxed against appellant.

REVERSED AND RENDERED.

      . Even though appellee could have saved the cost of the transcript by agreeing to a stipulation of the facts proposed by appellant we tax costs against appellant considering the relative means of the parties, with appellant earning about $20,000 per year and appellee $85 per week.


text:
    Madeleine ROACH v. NEW ORLEANS PUBLIC SERVICE INC. et al.
    No. 11098.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 31, 1980.
    John T. Holmes, New Orleans, for plaintiff.
    Floyd F. Greene, New Orleans, for New Orleans Public Service Inc.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   REDMANN, Judge.

Defendant appeals from a judgment for an 83-year-old passenger who fell as a streetcar started up immediately after she boarded, before she had time to get to the nearest seat.

Defendant argues that plaintiff was in good health; that the streetcar is equipped with rods passengers can hold; that there was no substance on the floor; that (according to several witnesses) the streetcar did not start with any unusual jerking motion; and that the carrier is not [we add, ordinarily] liable for normal movement of transit vehicles (citing Harris v. Shreveport Rwys. Co., La.App., 2 Cir. 1955, 83 So.2d 517). We nevertheless conclude that it is within the province of the trial judge to determine, from seeing the 83-year-old plaintiff, that a reasonable operator of a streetcar should have foreseen her need for special consideration and, in the exercise of the care due to the passenger, should have waited for her to reach the nearest seat before starting. We agree with plaintiff that this case is controlled by the principle of Baptiste v. Washington, La.App., 4 Cir. 1978, 359 So.2d 1122, writ refused 360 So.2d 1177.

On plaintiff’s answer to the appeal, we find no abuse of the trial judge’s discretion in awarding $8,000 general damages for a painful broken arm with surgical repair and residual disability in an 83-year-old.

Affirmed.


text:
    SUCCESSION OF Kenneth Lee THURMAN.
    No. 11177.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 31, 1980.
    .Manuel A. Fernandez, Chalmette, for ap-pellee Judy Ann Thurman.
    William L. Von Hoene, New Orleans, for appellant Mrs. Frances Delgado Thurman.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   SCHOTT, Judge.

Frances Delgado had appealed from a judgment removing her as administratrix of this succession. The issue is whether her removal was in accordance with the law.

Appellant and decedent Kenneth Lee Thurman had been married but were divorced in May, 1977. They had only one child, Judy Ann Thurman, who was a minor at the time of her father’s death in August, 1977. In October, 1978, appellant was confirmed as natural tutrix of her daughter and was thus eligible under C.C.P. Art. 3097 to be, and was appointed administratrix of the succession. In June, 1979, Judy Ann Thurman, now of the full age of majority, instituted these proceedings to remove appellant.

In her petition to remove appellant, ap-pellee alleged that appellant had created a conflict of interests by asserting a claim against the succession and was guilty of misconduct and breach of trust by appropriating property of the succession for her own personal use. Most important, she alleged that appellant was no longer qualified as administratrix since appellant was no longer her tutrix.

The trial judge reasoned that appellant’s only basis for being appointed administra-trix in the first place was her position as her daughter’s tutrix and with the child, appellee, becoming of age and no longer requiring a legal representative appellant has now become disqualified under the terms of LSA C.C.P. Art. 3097.

Appellant contends that in order for ap-pellee to prevail she must come within the provisions of C.C.P. Art. 3182, which provides:

“The court may remove any succession representative who is or has become disqualified . . . .”

Appellant further contends that the definition of the word “disqualified” must be ascertained by reference to Art. 3097, which prohibits confirmation as administrator one who is incompetent because of age, interdiction, or mental incompetency; a convicted felon, non-resident, a corporation or a person who is proved to be unfit for the appointment because of bad moral character. Appellant argues, and we agree, that none of these grounds for disqualification apply to her. However, this is not a case where appellant has become disqualified. It is the situation where the only basis for her appointment in the first instance was her position as tutrix of her then minor child and she no longer occupies that position. Under the express terms of C.C.P. Art. 3097 appellant would not have been eligible for appointment as administratrix of the succession if she had not been serving as tutrix of the minor.

Under C.C.P. Art. 4235 a tutor who has resigned or who has been removed shall have no further authority as such and no further duty except to render a final account under Art. 4392. While this article does not specifically refer to the expiration of the tutorship by virtue of the child reaching the age of majority the same principle must apply. Compare Art. 4206, which provides that the under-tutor is relieved of further duty and authority when the minor reaches majority.

We have found no cases which have decided this issue and have not been cited any, but logic requires that the succession representative, whose only basis for appointment was her capacity as tutrix of her child, must yield that appointment to the child, the sole heir of the decedent, who has attained the age of majority and applies for the administration especially since there was no showing that the orderly administration of the succession would in any way be impaired by the child assuming the administration.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


text:
    Frances Radosta, wife of and Stephen J. DEFELICE v. Herbert J. GARON and Rufus M. Carimi.
    No. 10344.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 4, 1980.
    Victoria L. Bartels and William F. Wes-sel, New Orleans, for plaintiffs-appellees.
    Garon, Brener & McNeely, Milton E. Brener, New Orleans, for defendants-appellants.
    Before SAMUEL, LEMMON and GARRISON, JJ.
   LEMMON, Judge.

Defendants have appealed from a partial summary judgment which declared invalid a contract they had executed with plaintiff and prohibited them from acting as trustees under the contract. The issue on appeal is the validity of the contract.

I

Prior to the execution of the contract at issue, plaintiff was the owner of 50% of the shares of stock in Pascal-Manale, Inc., and defendants Garon and Carimi were the attorney and accountant respectively for the corporation. Plaintiff had contracted to purchase the other 50% of the stock from her sister for the price of $450,000.00, but had difficulty obtaining financing. Through defendants’ efforts a bank agreed to lend plaintiff $600,000.00 (which included the pay-out of an existing $150,000.00 loan), but required the pledge of the corporate stock and mortgages of other property owned by plaintiff, as well as personal guaranties by defendants and three other persons (intervenors in this suit) and additional security valued in excess of $200,-000.00 to be furnished by defendants and intervenors.

As part of the agreement to guarantee the loan and furnish the necessary security defendants and intervenors required plaintiff to execute two contracts. In the first contract, entitled Joint Venture Agreement, the parties stated that it was in their best interest for the corporation to be managed and directed under a definite and fixed policy in order to properly develop the corporation’s business opportunities and to repay the loan, and they agreed that defendants and intervenors would guarantee the loan and provide the additional security and that plaintiff would pay them $2,000.00 per month during the term of the loan (or a minimum of $120,000.00). Plaintiff further agreed that, in the event of her default on the note, she would assign all of her interest in the corporation to defendants and intervenors upon their demand, subject to plaintiff’s right to reacquire the stock within 60 days by paying all sums expended to remedy the default.

In the second contract, entitled Voting Trust Agreement, plaintiff, as sole shareholder, and defendants, as trustees, reasserted that it was in plaintiff’s best interest for the corporation to be managed and directed during the next ten years under a definite and fixed policy, and for this purpose plaintiff “requested” defendants to hold legal title to the stock in trust for ten years under the contract terms. Defendants were further given the unqualified right to vote the stock as shareholders, free from any interference by plaintiff, but without liability as shareholders, and were also given the following powers:

a)The right to vote for election of directors and in favor of or in opposition to any resolution or proposed action of any character whatsoever which may be presented in any meeting requiring the consent of shareholders of the corporation;
b) The right to set salaries, bonuses, and other compensation for all employees, agents, officers, and directors of the corporation;
c) The right to declare all dividends;
d) The right to hire and fire all personnel employed by the corporation;
e) The right to approve of any and all remodeling, alterations and repairs of any property owned or leased by the corporation;
f) The right to authorize and approve all capital expenditures for any purpose whatsoever; and
g) The right to dispose of the collateral securing the debt of shareholder in any manner deemed appropriate by the trustees and to pledge the stock to secure any corporate loan.

The contract specified a term of ten years, but reserved to the trustees the right to terminate the agreement sooner by unanimous vote.

II

Plaintiff’s motion for partial summary judgment attacked the second contract (Voting Trust Agreement) on two grounds: (1) the contract is invalid as a voting trust agreement, because R.S. 12:78 only authorizes such an agreement when contracted by two or more shareholders, and (2) the contract is invalid as an ordinary contract, because it contains a potestative condition in that the trustees are free to terminate at will. The trial court invalidated the contract on the second ground.

Taken in the context of the overall circumstances, the contract at issue is not a voting trust contemplated by R.S. 12:78. Rather, the contract is a security device, designed to protect the guarantors of plaintiff’s promissory note by giving them the right to control the management of the corporation during the term of the loan. The intent of the contract therefore was to constitute defendants as pledgees, rather than trustees.

Normally, only the registered owner of shares listed on the books of the corporation have the right to vote the stock. Chappius v. Spencer, 167 La. 527, 119 So. 697 (La.1928); D’Amico v. Canizaro, 256 La. 801, 239 So.2d 339 (La.1970). In Emile Babst Co. v. Commercial Enterprises, Inc., 274 So.2d 742 (La.App. 4th Cir. 1973), cert. den. 277 So.2d 673, noted 68 A.L.R.3d 674 (1976), this court held that, despite the revision and reenactment of the Business Corporation Law, a mere pledgee cannot vote the pledged stock unless the shares have been transferred on the books of the corporation to the pledgee.

In the Babst case the owner had not expressly authorized the pledgee to vote the shares, and the pledgee sought to do so simply on the basis of his status as pledgee. The present case, however, does not involve a mere pledgee, but rather a pledgee upon whom the owner of the stock has expressly conferred by contract the right to vote the shares. Since R.S. 12:75 D requires a transfer on the books of the corporation to entitle the pledgee to vote the shares, the contract expressly granting the pledgee the right to vote the share can only be interpreted reasonably as implicitly granting the pledgee the right to obtain a transfer of the shares upon the books of the corporation.

Under our interpretation of R.S. 12:75 D the type of security device executed by the parties in the present case is statutorily authorized. Under the contract plaintiff turned over the shares of stock to defendants and granted them “the unqualified right, without any restrictions or limitations, to vote the stock deposited with them in accordance with their own best judgment and free from any interference or control” by plaintiff. The right to vote the shares (a right not necessarily accorded to a mere pledgee) could hardly have been more clearly conferred, and with this right the pledgee necessarily was given the right to take the formal steps necessary to accomplish utilization of that right.

We therefore conclude that a contract giving the pledgee the unqualified right to vote shares of stock pledged to him is not invalid as a contract which separates voting rights from ownership interest, but is valid as a contract authorized by R.S. 12:75 D, and that the pledgee may enforce the contract by having the shares of stock transferred on the books of the corporation during the existence of the pledge.

Ill

Finally, the contract was not invalid as one containing a potestative condition. Nullity on account of a potestative condition is limited to those potestative conditions which make the obligation dependent solely on the exercise of the obligor’s will. C.C. arts. 2034, 2035. Under the contract at issue defendants were clearly the obligees (the parties in whose favor the obligation was contracted), since they had performed their obligation concurrently with the execution of the contract by guaranteeing the loan and furnishing the additional security. C.C. art. 3556(20). An obligation may validly be made to depend on the will of the obligee for its duration. C.C. art. 2036. The contract was therefore not null on account of an invalidating potestative condition.

Accordingly, the partial summary judgment rendered by the trial court is set aside, and the matter is remanded for further proceedings. Costs are to be assessed upon final disposition.

PARTIAL SUMMARY JUDGMENT SET ASIDE, CASE REMANDED.

      . The judgment, couched in terms of a preliminary injunction, was not appealed within 15 days as required by C.C.P. art. 3612 for judgments relating to preliminary injunctions. However, the only matter before the court at the time of the judgment was a motion for partial summary judgment declaring the contract invalid, the rule for preliminary injunction having previously been denied, and the parties had stipulated that an injunction should issue if the contract was invalid. Moreover, the Supreme Court, on application for supervisory writs, ordered the granting of a suspensive appeal at a time more than 15 days after the judgment.
      We therefore treat this appeal as one from a partial summary judgment.

      . The substance, not the title, determines the nature of the contract. Indeed, in their petition plaintiffs asserted that the contract was a “guise for a security device coupled with a managerial mandate”.

      . The Babst case turned on an interpretation of R.S. 12:75 D, which provides:
      “A person whose shares are pledged shall be entitled to vote thereon unless and until such shares have been transferred on the books of the corporation to the pledgee; and thereafter the pledgee shall be entitled to vote thereon.”

      . Defendants and intervenors stated they would not have done so without the protection afforded by the two contracts.