author: PER CURIAM:

text:
    STATE of Louisiana v. Philip J. FRANKLIN.
    No. 66343.
    Supreme Court of Louisiana.
    March 12, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., William W. Hall, Abbott Reeves, Asst. Dist. Attys., for plaintiff-respondent.
    John M. Lawrence, New Orleans, for defendant-relator.
   PER CURIAM:

Defendant is charged in separate grand jury indictments with aggravated rape, La. R.S. 14:42 and aggravated crime against nature, La.R.S. 14:89.1, both offenses involving the same victim. He entered pleas of not guilty, and moved in the trial court to suppress his confession given to the authorities shortly after his arrest. He also moved to suppress any in-court identification testimony from the victim at trial. After a hearing conducted on November 14, 1979, the trial court denied both motions.

We have granted defendant’s application for supervisory writs to review the judgment below. We affirm as to the identification question, agreeing with the trial court that the victim’s failure to identify defendant in any pretrial context put to rest defense concern her in-court testimony might carry the taint of prior, out-of-court suggestiveness. We note, however, that the state failed to rebut defendant’s specific and detailed allegations of physical abuse used by the police to secure his statement. We therefore remand the case to the trial court for retrial of the motion. State v. Simmons, 328 So.2d 149 (La.1976).

Evidence adduced at the hearing on the motion to suppress showed the following. On August 9, 1978, two men sexually assaulted the victim in this case. Investigation of the offense, headed by Detective Stanley Ferguson with the Gretna Police Department, eventually led to defendant’s arrest at the home of his parents in New Orleans, August 13, 1978. The arrest came at the hands of a combined force of New Orleans and Jefferson Parish police officers, including Ferguson, who travelled across the river in the company of Officers Breaux and Yaeger. After defendant’s booking in New Orleans, the officers returned with their prisoner to Gretna. Shortly thereafter, defendant confessed.

Of the three Gretna police officers, Ferguson alone testified for the state at the suppression hearing. In his account, defendant had received his Miranda warnings immediately upon arrest in his parents’ home and again at the Gretna stationhouse, just prior to the tape recorded interrogation. That interrogation took place in his office, Ferguson testified, with Yaeger also present. Ferguson flatly denied the use of any threats, force, intimidation or promises to secure the statement.

Defendant gave a sharply differing ■account. He testified that the officers stormed into his parents home with guns drawn, snatched him out of bed to Breaux’s admonition, “[t]ell him to go ahead and say he did it so it will go easy on him,” and thrust him nearly naked into a patrol car. Booking at the New Orleans lock-up proceeded without incident, defendant recounted, but matters took a different course on the trip to Gretna. Defendant claimed that threats by the officers to “kick his black ass” turned to physical abuse at the Gretna stationhouse. The alleged abuse spanned: Ferguson’s attempt to smash defendant’s head against the side of a car; a beating administered by the officers outside the sta-tionhouse followed inside by the taking of a pubic hair sample at knifepoint; and beatings by all three officers in turn, alone in Ferguson’s office. Defendant added that he was recovering at the time from surgical removal of one of his testicles and became alarmed at the prospect of harm to the operation. This confession, he alleged, came on the heels of the last set of beatings. Defendant’s parents corroborated his account of the arrest in New Orleans.

Although Ferguson returned to the stand at the close of defendant’s testimony, he did not specifically rebut any of defendant’s allegations. The defense therefore argues in its application that the trial court erred in overlooking defendant’s testimony and finding the confession voluntary. On this record, we agree.

As set forth in State v. Bouffanie, 364 So.2d 971, 973 (La.1978), this Court has repeatedly held that “fbjefore a confession or inculpatory statement can be introduced in evidence the State must prove affirmatively and beyond a reasonable doubt that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.” Bouffanie acknowledges that the trial court’s findings in this respect are entitled to great weight. The opinion cautions, however, that “. . . because of the State’s burden it is required to rebut specific testimony introduced on behalf of defendant concerning factual circumstances which indicate coercive measures or intimidation. [citation omitted].”

The state has not met that burden here. We find Ferguson’s general disclaimer of coercion insufficient to dispell alone the doubt cast on the statement’s voluntariness by defendant’s specific and detailed allegations of physical abuse. State v. Peters, 315 So.2d 678 (La.1975). As we emphasized in State v. Simmons, supra, 328 So.2d at 151, “. . . the state [can] not merely ignore testimony by the defendant and thereby sustain its burden of proof . . . ” Moreover, the officer himself admitted at the hearing that he left defendant in his office with Officer Yaeger for approximately ten minutes while he looked about for a tape recorder. That admission provides some corroboration at least of defendant’s account the officers set upon him one at a time. We have repeatedly warned in this regard that the state “cannot simply rely on general testimony of officers not present that they witnessed no coercion, intimidation or other undue influence.” State v. Monroe, 305 So.2d 902, 912 (La.1974) (on rehearing). See also State v. Stevenson, 374 So.2d 1189 (La.1979). In this case Officers Yaeger and Breaux, counted by defendant among his assailants, did not testify at the hearing. Their absence weighs critically in the balance here. State v. Monroe, supra.

We therefore hold that on this record, the state has not met its heavy burden of proving beyond a reasonable doubt the voluntar-iness of defendant’s confession. To this extent, we reverse the judgment below. We note, however, that retrial of the motion may cure the error here. State v. Simmons, supra; State v. Franklin, 353 So.2d 1315 (La.1977). Accordingly, we remand this case to the trial court for that hearing, and all proceedings not‘inconsistent with this opinion.

REVERSED AND REMANDED.

      . Shortly after the offense, the victim identified two individuals (not including defendant) in a photographic line-up. The authorities later determined that the persons identified had no involvement in the case. After his arrest, defendant appeared in a line-up conducted on August 10, 1978. The victim failed to make any identification. It therefore seems clear that the suggestiveness (if any) in the identification procedures could not have led, of its own weight, to the possibility of misidentification in this case. State v. Guillot, 353 So.2d 1005 (La.1977); Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). On this record, we express no opinion on whether defendant’s appearance as the accused at trial might alone raise the question of a possible misidentification. See State v. Williams, 375 So.2d 364 (La.1979); State v. Drew, 360 So.2d 500 (La.1978). In any event, as we pointed out in State v. Batiste, 318 So.2d 27, 34 (La.1975), the lack of a pre-trial identification is generally a matter “which addresses itself to the weight'of [a witness’] testimony rather than its admissibility.”


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Aaron SINGLETON.
    No. 66422.
    Supreme Court of Louisiana.
    March 12, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Marvin Opotowsky, Louise Korns, Asst. Dist. Attys., for plaintiff-relator.
    Edward Haggerty, Jr., New Orleans, for defendant-respondent.
   PER CURIAM:

Defendant is charged by bill of information with possession of Talwin in violation of La.R.S. 40:969. He moved in the trial court to suppress statements made to an assistant district attorney in the Career Criminal Bureau of the Orleans Parish District Attorney’s Office on November 8, 1979. After a hearing conducted on December 17, 1979, the trial court granted the motion. We then granted the state’s application for supervisory writs to review that judgment below. We now reverse.

Defendant was initially arrested on October 31, 1979 for simple robbery, La.R.S. 14:65, and incarcerated in the Orleans Parish Prison. The district attorney’s office thereafter formally charged him with the more serious offense of purse snatching, La.R.S. 14:65.1 for the same incident. Apparently in the mistaken belief that the district attorney’s office had refused the robbery charge altogether, the prison authorities then released defendant.

On November 17,1979, defendant arrived at the Career Criminal Bureau in search of his clothing taken by the police at the time of his arrest. His inquiry led him to an assistant district attorney who discovered the mix-up with the prison officials over the charges. At the direction of the district attorney, defendant found himself placed under arrest for the purse-snatching offense by an investigator for the office. In a search incident to that arrest, the investigator discovered tablets of Talwin and Pyri-benzamine (so-called “T’s and Blues” in the trade) in defendant’s pockets. Rearrested for the narcotics offense by the investigator, and in the presence of both men, defendant identified the pills as “only ‘T’s and Blues.’ ” It was this statement that the trial court suppressed.

At the hearing on the motion, both the district attorney and the investigator testified unequivocally that defendant had received his Miranda warnings twice in the Career Criminal Bureau: ’once, after his arrest on the purse snatching charge; and again after his arrest for possession of Tal-win. In both instances, the advice was verbal. The witnesses also denied that any force or intimidation, promises or threats, had been used against defendant to secure his statement. The defense called no witnesses of its own.

The trial court, however, looked to a printed Miranda waiver form bearing the notation that defendant had refused to sign. Observing that “[i]f [defendant] was questioned after his refusal to sign, I will have to sustain the motion,” the trial court specifically found that the investigator “advised [defendant] of his rights and filled out the form in the [Career Criminal Bureau] Office and then there was a questioning.” The trial judge granted the motion accordingly.

In its application for supervisory writs, the state argues that defendant refused to sign the printed Miranda form not in the Career Criminal Bureau but in Central Lock-Up where he had been taken for booking after his re-arrest on the Talwin charge. The state concludes that a refusal to sign a written waiver cannot retrospectively invalidate fully-informed statements already made. Although we find the record ambiguous on the question when defendant refused to sign the form, we agree with the state that, in this instance, the refusal did not outweigh an otherwise adequate showing of voluntariness.

As set forth in State v. Adams, 347 So.2d 195, 199 (La.1977), this Court has repeatedly cautioned that:

Before a confession can be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La.R.S. 15:451; La.Code Crim.P. art. 703(C). It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Adams also notes that the trial court’s “conclusions on the credibility and weight of the testimony relating to the voluntariness of a confession will not be overturned unless they are not supported by the evidence, [citations omitted].”

We find that latter showing here. The testimony of the assistant district attorney and investigator at the hearing was unrebutted and to the point: defendant had received his Miranda warnings before he made any statements; and no threats, promises, or coercion had been used against him. Although apparently satisfied with this testimony in all other respects, the trial court thought that defendant’s refusal to sign a printed Miranda form alone indicated the involuntariness of his subsequent statement. We disagree. While the authorities must “scrupulously honor” any request by an accused to remain silent, Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); State v. Manning, 380 So.2d 46 (La.1980), do not find a refusal to sign a written waiver form of itself tantamount to such request. As set forth in State v. McNeal, 337 So.2d 178, 180 (La.1976), the presence of defendant’s signature on a waiver form is only one element among many in determining the voluntariness of a statement.

Accordingly, we hold that on this record the state met its heavy burden of proving the statement voluntary even assuming (without deciding) that defendant gave his statement after refusing to sign the waiver form. We therefore reverse the judgment of the trial court and remand this case for all proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

      . The legislature added Talwin to Louisiana’s list of controlled dangerous substances by Act No. 659, 1979. That act became effective on September 7, 1979 before the date of this offense. This case, therefore, does not present the same problem with regard to the legislature’s delegation of authority under La.R.S. 40:962(B) that we considered in State v. Rodriguez, 379 So.2d 1084 (La.1980). The state, therefore, may prosecute defendant consistent with the Rodriguez opinion.

      . After defendant’s arrest for Talwin, the district attorney apparently took him aside for questioning on the robbery offense. In the course of this interview, defendant allegedly stated that he had “snatched the purse from the old black woman because he needed the money to pay off a loan.” Our granting of the state’s application for supervisory writs brought before us only the record in the Talwin case, although both charges are pending before the same trial judge. To this extent, we limit our decision here to the Talwin prosecution alone.

      . The investigator in fact never testified where he read the printed form to defendant, although the form itself, as the trial court admitted, bears the initials “CLU,” i. e., Central Lock-Up. In view of our decision here, we do not attempt to resolve this factual ambiguity.


text:
    STATE of Louisiana v. Willie EDWARDS.
    No. 67081.
    Supreme Court of Louisiana.
    March 17, 1980.
   In re Willie Edwards, applying for Writs of Certiorari, Prohibition, Mandamus and Stay Order. Parish of Caddo. No. 113,643.

Granted. Finding that the state failed to show that the proof is evident and the presumption great that defendant is guilty of first degree murder and finding no probable cause to charge defendant with first degree murder, defendant is entitled to be released on bail. Hence, the ruling of the trial judge is set aside and the trial judge is ordered to fix bail in accordance with law.


author: SWIFT, Judge.

text:
    TRINIDAD PETROLEUM CORPORATION, Plaintiff-Appellant, v. PIONEER NATURAL GAS COMPANY et al., Defendants-Appellees.
    No. 6787.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1979.

      George W. Hardy, III, Houston, Tex., and J. P. Mauffray, Jr., Jena, for plaintiff-appellant.
    Provosty & Sadler, David Spence, Alexandria, Plauché, Hartley, Lapeyre & Ottinger by Patrick S. Ottinger, Lafayette, McKeithen & Burns, Don Burns, Columbia, Wm. Henry Sanders, Jena, Breazeale, Sachse & Wilson, James E. Toups, Jr., Baton Rouge, Gaharan & Wilson, Joseph Wilson, Jena, for defendants-appellees.
    Before CULPEPPER, GUIDRY and SWIFT, JJ.
   SWIFT, Judge.

This possessory action is on appeal from judgments which sustained exceptions of no cause and no right of action, and dismissed the suit at plaintiff’s costs. We reverse the judgments of the district court and remand the case for a trial on the merits.

On November 6, 1969, defendant, Pioneer Natural Gas Company, the owner of the minerals in certain lands in Section 19, Township 11 North, Range 3 East, granted a mineral lease to Nelson Oil Corporation for a primary term of two years. The lessee’s working interest was subsequently acquired by the plaintiff, Trinidad Petroleum Corporation.

Trinidad drilled five wells on the land in Section 19, some or all of which produced gas. However, the last production was from Trinidad No. Three, which ceased producing on November 17, 1974, and was plugged and abandoned. Shortly prior thereto, Trinidad Ño. Two “blew out” and became uncontrollable. It appears that the only activities by the lessee on the premises after November 17,1974, were unsuccessful attempts to control the “blow out” of Trinidad No. Two and to plug and abandon the well. However, Trinidad’s equipment remained on the premises and its president, Charles D. Beard, Jr., testified he intended to drill another well as soon as this was accomplished. He also said his company was relieved of further drilling or reworking operations under the “force majeure” clause in the lease and an oral agreement with the lessor. However, the latter was not confirmed by other evidence.

On February 16, 1976, Pioneer Natural Gas Company executed a mineral lease in favor of Royal Mineral Corporation covering most of the land described in Trinidad’s prior''leases. It was recorded on April 20, 1976. Alleging that its possession had been disturbed thereby, Trinidad instituted this possessory action against Pioneer and Royal on June 29, 1976.

In October of 1976 Royal subleased its rights under the February 16, 1976, mineral lease to MBM partnership. Both parties have drilled producing wells on the leased premises. On March 28, 1977, Trinidad filed a supplemental and amending petition joining MBM Partnership as an additional defendant and alleging that its possession had been disturbed further by recordation on October 29, 1976, of MBM’s acquisition of Royal’s 1976 lease and also by subsequent recordation of another mineral lease from Pioneer to MBM. Attached to this petition was an order sequestering all minerals produced from the premises covered by Trinidad’s lease and the revenues derived from the sale thereof. Bond was posted and the writ was issued on March 28, 1977.

All defendants filed peremptory exceptions of no cause and no right of action, motions for summary judgment and motions to dissolve the writ of sequestration.

After a hearing on the exceptions and motions the district court ruled orally, sustaining the exceptions of no cause and no right of action of Royal and MBM and also their contradictory motions to dissolve the writ of sequestration. The judge later rendered written reasons for judgment sustaining only the exception of no right of action filed by Pioneer and dissolving the writ of sequestration that was issued at its instance on March 28, 1977. Thereafter, two formal judgments were read and signed by the judge, one sustaining the peremptory exceptions of no cause and no right of action filed by Royal and MBM and their motions for dissolution of the writ of sequestration and also dismissing the suit as to these two defendants with prejudice. The other judgment sustained Pioneer’s peremptory exception of no right of action, dissolved Trinidad’s writ of sequestration and dismissed the plaintiff’s suit.

This devolutive appeal was taken by Trinidad following the denial of its motion for a new trial.

Trinidad first contends that the judgment sustaining the exception of no cause of action is in error and we agree.

The petition sets forth all of the elements of a possessory action required by Article 3658 of the Louisiana Code of Civil Procedure. Trinidad alleged that at the time of the disturbances it was in possession of a real right as a mineral lessee continuously producing or conducting operations on the premises; that such possession had continued without interruption for more than a year before the disturbances; that the disturbances were both in fact (the removal of some of its equipment from the premises) and in law (the recordation of the subsequent leases); and that the suit was filed within a year of the disturbances. This is all that is required to assert a possessory action. The exception, of course, is triable only on the face of the petition. Since no contrary facts were alleged therein, it clearly states a cause of action.

Secondly, the appellant contends that the judgments sustaining the peremptory exceptions of no right of action were in error, because the issue of title to Trinidad’s mineral lease or real right was tried therein contrary to the provisions of LSA-C.C.P. Article 3661. With this, we also agree.

It is apparent from the pleadings, the evidence admitted and the trial judge’s ruling on this exception, that he concluded Trinidad’s lease had expired and as a consequence the plaintiff had no interest in any such real right affecting the subject property at the time of the disturbances. Thus, the title of the mineral lessee was determined on the trial of the exceptions of no right of action contrary to Article 3661.

In our-opinion the viability of Trinidad’s mineral lease involves the issue of the plaintiff’s ownership or title which cannot be raised in a possessory action either in limine or on the merits. Under Article 3661 evidence of ownership or title is admissible in this case only to prove that the plaintiff was in possession of the property as a mineral lessee, the extent or area of its possession and the duration of the possession of the plaintiff and its ancestors in title. Consequently the trial judge erred in admitting and considering on exceptions of no right of action evidence concerning the plaintiff’s mineral operations on the property for the purpose of determining whether or not its lease was in effect.

We do not mean by this decision, however, that the defendants herein will not be able to introduce any evidence at the trial of the merits of this possessory action relating to the plaintiff’s production, reworking or drilling operations on the leased premises simply because it may tend to show that Trinidad’s lease expired. Such evidence is admissible on the issue of whether or not the plaintiff was in possession of the mineral right which it claims at the time of the alleged disturbances.

According to LSA-R.S. 31:153:

“Mineral rights are possessed by their use or exercise according to their nature.”

The comment thereunder states in part:

“. ... A mineral servitude or mineral lease is possessed by conducting drilling or mining operations or producing according to the character of the rights grant-ed."

In order to prevail in this possessory action Trinidad must establish that when disturbed it was using or exercising the real right or mineral lease which it claims to own. Otherwise, it lacked the requisite possession for such a suit. The mere fact that evidence offered to establish lack of possession may also tend to show the plaintiff has no lease because it has expired will not prevent its admission on the issue of possession when it is properly before the court.

In regard to the defendants’ contention that the trial court’s judgment should be affirmed because the evidence taken on the trial of the exception of no right of action established that the plaintiff did not have sufficient possession to maintain the suit, it is our opinion that the lack or want of possession of plaintiff in a pos-sessory action cannot be attacked through the peremptory exception of no right of action. Evidence, of course, is admissible on the trial of such an exception on an issue properly raised thereby. However, it is not available to urge that the plaintiff is without interest simply because the defendant has a defense to the action. Guillory v. Nicklos Oil and Gas Company, 315 So.2d 878 (La.App. 3 Cir. 1975).

Furthermore, Act 241 of 1946, which required a defendant in possessory action to raise and plead the defense of plaintiff’s lack of sufficient possession by means of an exception filed in limine litis or waive it, was repealed by Act No. 32 of 1960 and replaced by Articles 3651-3664 of LSA— Code of Civil Procedure. Since no similar or alternative procedure to challenge the sufficiency of the plaintiff’s possession in limine litis was provided in these articles of the Code of Civil Procedure, we do not think that such defense can be raised in limine litis by way of an exception even in a simple possessory action where the actual possession of an owner of land has been disturbed. Instead, this issue must be raised by answer and tried and resolved on the trial of the merits.

We therefore, will remand this case for further proceedings.

It may very well be that all of the evidence available to either side on the issue of possession has already been presented and is in the record of this case. If so, of course, upon remand the parties may resubmit this case on such evidence at the trial of the merits for a decision by the trial judge as to the sufficiency of the plaintiff’s possession (without regard to the validity of its mineral lease) and whether such possession was disturbed. On the other hand, upon the remand all parties will have an opportunity to offer such additional evidence as is properly admissible on these two issues.

We further conclude that the writ of sequestration should not have been dissolved. As pointed out hereinabove, the question of the defendant’s title to the mineral lease cannot be determined in this pos-sessory action. Consequently,- Trinidad’s right, if any, to the production obtained by MBM under its subsequent lease and the proceeds derived therefrom have not yet been resolved.

LSA-C.C.P. Article 3571 provides that: “When one claims the ownership or right to possession of property, or a mortgage, lien, or privilege thereon, he may have the property seized under a writ of sequestration, if it is within the power of the defendant to conceal, dispose of, or waste the property or the revenues therefrom, or remove the property from the parish, during the pendency of the action.” [Emphasis added]

The comment following LSA-C.C.P. Article 3506 which deals with dissolution of such a writ says the code

“. . . retains the jurisprudential rule that only the grounds for the auxiliary remedy can be inquired into on the motion to dissolve, and not the merits of the ■ main demand.” [Emphasis added]

It is clear that there is a substantial basis for Trinidad’s claim of ownership and right to possession of the gas produced by MBM, although it has not yet been established that it is in fact the owner thereof. There is no dispute as to the existence of the second ground required for issuance of the writ of sequestration. Therefore, the trial court erred in dissolving the writ.

Apparently, there has been no ruling on the defendants’ motions for summary judgment. Since no specification of error has been urged in this respect by any party, such motions appear to have been abandoned.

For the foregoing reasons, the judgments appealed are reversed and set aside. It is now ordered, adjudged and decreed that the exceptions of no right of action and of no cause of action filed by the defendants are overruled, and the motions to dissolve the writ of sequestration are denied. This case is remanded to the district court for further proceedings in accordance with law and the views expressed herein. All costs of this appeal are assessed against the defendants-appellees. Assessment of costs in the trial court must await a final judgment there.

“REVERSED AND REMANDED.”

      . Pioneer also executed a similar lease on September 28, 1970, to Jackie D. Nelson, et al. covering lands in Section 30, Township T1 North, Range 3 East, which was assigned to Trinidad. However, in oral argument, Trinidad’s counsel acknowledged this lease had terminated and that his client no longer claimed any real right in the lands formerly covered thereby.

      . The words “or cause” following “no right” were stricken by the trial judge from the decree presented for signature by counsel for Pioneer. Apparently, he simply neglected to make such correction in the other, formal judgment, because in his oral reasons for denying the plaintiffs motion for a new trial he said he had not ruled on the exceptions of no cause of action as there was no necessity to do so in view of having sustained the exceptions of no right of action.


author: DOMENGEAUX, Judge.

text:
    Donald Ray DEVILLE, Plaintiff-Appellant-Appellee, v. Mr. & Mrs. Lloyd LaGRANGE, Sr., Defendants-Appellees-Appellants.
    No. 7120.
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 1979.
    On Rehearing Aug. 9, 1979.
    Rehearing Denied Feb. 4, 1980.

      Dubuisson, Brinkhaus & Dauzat, Opelou-sas (Jerry J. Palgoust and William- A. Brinkhaus, Opelousas, of counsel), for plaintiff-appellant-appellee.
    Paul J. deMahy, St. M'artinville, for defendant-appellee.
    Poteet & Landry by Walter J. Landry, Lafayette, for defendants-appellees-appel-lants.
    Before DOMENGEAUX, WATSON, and SWIFT, JJ.
   MOTION TO REMAND

DOMENGEAUX, Judge.

The court reporters of the Sixteenth Judicial District Court, Parish of St. Martin, Vivian A. Aycock, Vivian B. Aycock, and Kathleen 0. Willis, move to remand this suit to the trial court to enable them to traverse the right of the defendants-appellants, Mr. and Mrs. Lloyd LaGrange, Sr., to proceed with their appeal in forma pauper-is. The motion is unopposed. We remand.

Judgment was rendered in this case on October 30, 1978. A timely application for new trial was made and denied on September 25, 1978.

On October 16, 1978, the appellants moved to proceed in this matter in forma pauperis, which motion was granted by the trial court that date, and on October 19, 1978, the appellants moved for and were granted an appeal in forma pauperis.

We particularly note that LSA-R.S. 13:971 provides special provisions for the court reporters of the Sixteenth Judicial District to traverse by rule a party’s rights to the benefits of our pauper statutes, and, therefore, we need not decide at this time whether a court reporter is an “adverse party” given the right to traverse under LSA-C.C.P., Article 5184.

The jurisprudence is well settled that where a devolutive appeal had been taken in forma pauperis without allowing the appellee sufficient time in which' to traverse the affidavits of poverty, the appellate court may, upon timely application therefor, remand the cause to give the ap-pellee the opportunity to do so. Oldham v. Hoover, 140 So.2d 417 (La.App.1st Cir. 1962).

Under the facts of this case, the movers have had insufficient opportunity to traverse in the district court, and thus are clearly entitled to an opportunity to do so. Ross v. Hatchette, 247 So.2d 399 (La.App.3rd Cir. 1971); Darby v. Travelers Ins. Company, 272 So.2d 798 (La.App.3rd Cir. 1973); Shepard v. Shepard, 349 So.2d 1026 (La.App.3rd Cir.1977).

The appeal is hereby remanded to the trial court for the purpose of allowing the movers to traverse the appellants’ right to proceed with their appeal in forma pauper-is.

APPEAL REMANDED.

ON REHEARING

We granted a rehearing for the purpose of reviewing our determination as to the applicability of LSA R.S. 13:971. We now conclude that R.S. 13:971 is not applicable, since the parties moving to proceed in forma pauperis were defendants rather than plaintiffs. We recall and vacate our previous order of May 23, 1979 which remanded the appeal to the trial court to permit the court reporters of the Sixteenth Judicial District Court to traverse the appellants’ right to proceed in forma pauperis.

It is further ordered that the appeal proceed according to law.

ORDER TO REMAND RECALLED •AND VACATED.


author: GREENE, Judge.

text:
    ILLINOIS CENTRAL GULF RAILROAD v. STEVENS READY-MIX CONCRETE, INC.
    No. 13027.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    Rehearing Denied March 31, 1980.
    Writ Refused May 19, 1980.
    James F. Abadie, Baton Rouge, for defendant-appellant Stevens Ready-Mix Concrete, Inc.
    James E. Toups, Jr., Baton Rouge, for plaintiff-appellee Illinois Central Gulf Railroad Co.
    Before EDWARDS, LEAR and GREENE, JJ.
   GREENE, Judge.

Plaintiff filed suit seeking recovery of demurrages which accrued on its railroad cars consigned to defendant. From judgment granting plaintiff the amount sued for, defendant appeals.

The record establishes that the demurrag-es sought by plaintiff accumulated on cars consigned to defendant from Novemher 24, 1973 to March 26, 1975. Defendant had' been receiving materials shipped in plaintiff’s cars for use in its business since it started operations in 1973. Actually, the principals operating defendant corporation did similar business with plaintiff from 1959 to 1965 under another .corporate name.

Plaintiff delivered cars to defendant’s spur track and gave defendant two days free time to unload each car. This free time commenced running at 7:00 a. m. in the morning after the car was placed on defendant’s spur for unloading. A per diem demurrage was charged defendant after the lapse of these two free days. This demurrage procedure was applied in accordance with Freight Tariff 4-J promulgated under the Interstate Commerce Act. 49 U.S.C.A. § 1 et seq. Both parties agree that Freight Tariff 4-J applies to their contractual relationship.

Defendant claims it is entitled to a reduction of these demurrages due to delays in unloading caused by rain, bunching of cars by plaintiff and run-arounds. Bunching occurs when plaintiff accumulates ears and delivers them to defendant all at one time instead of properly delivering one ear per day. The term run-arounds refers to the situation in which a recently tendered car is placed for unloading in front of a car previously tendered.

Freight Tariff 4-J requires defendant consignee to request credit for all demur-rage caused by bunching and rain delay in writing within thirty days of the occurrence. Credit for run-arounds could be obtained by defendant giving oral notice of such to plaintiff. There was no time requirement in giving this oral notice.

Appellant claims that plaintiff is es-topped in demanding and has waived its right to demand strict adherence to this tariff by its actions. The record establishes and the lower court found that plaintiff accepted notification of credit due after this thirty-day period. Plaintiff allowed defendant to write its request for credit for bunching and rain delays on the face of the freight bill and acquiesced in receiving many of these requests for credit long after the lapse of the thirty-day time limit.

Plaintiff claims that no act or omission on its part can estop it from enforcing the applicable provisions of the tariff, and it can not waive enforcement of these provisions by its actions.

There is a strong public policy behind the regulations and fees found in these freight tariffs which can be achieved only by the full implementation of these tariffs. The public policy sought to be achieved by these tariffs is the avoidance of any preference or discrimination in rates charged for the carriage of goods by common carriers such as plaintiff. Atchison, Topeka and Santa Fe Railway Co. v. Bouziden, 307 F.2d 230 (10th Cir. 1962); Colorado and Southern Railway Company v. Southwestern Roofing & Sheet Metal Company, 374 F.Supp. 24 (W.D.Okl.1974); St. Louis, Southwestern Railway Co. v. Mays, 177 F.Supp. 182 (E.D.Ark.1959); Chicago B. & Q. R. Co. v. Blunk, 101 F.Supp. 219 (S.D.Iowa 1951). This public policy affects demurrage, as seen in St. Louis, Southwestern Railway Co. v. Mays, supra, where the court stated:

“In the application of the rule that carriers, shippers and consignees are bound by the provisions of the tariffs filed by the former, it is now well settled that where, as here, demurrage charges are prescribed by tariff, and where a liability for such charges accrues, the carrier is under a duty to collect and the shipper or consignee is under a duty to pay the same. They have no choice in the matter, and it is not a legitimate subject for compromise or settlement between them. (Citations omitted). Were the law otherwise, waivers and adjustments of demurrage claims would be ready means for the effectuation of prohibited preferences, discriminations and rebates.” 177 F.Supp. at 184.

Against this line of cases mandating a strict application of freight tariff charges, appellant cites to us another line of federal jurisprudence in which tariff charges were not imposed because to do so would have been unfair or inequitable. See Davis v. Akron Feed & Milling Co., 296 F. 675 (6th Cir. 1924); Cincinnati Northern R. Co. v. Beveridge, 8 F.2d 372 (E.D.Va.1925); Missouri Pacific Railroad Company v. National Milling Company, 276 F.Supp. 367 (D.N.J. 1967); Farrell Lines Incorporated v. Titan Industrial Corporation, 306 F.Supp. 1348 (S.D.N.Y.1969); and Consolidated Freightways Corporation of Delaware v. Admiral Corporation, 442 F.2d 56 (7th Cir. 1971). These cases are inapposite to the matter before this Court because in each of these cases the defendant already had been misled into paying someone the amounts required by the tariffs and the issue was whether these defendants should have to pay this amount again. The public policy concerning preferences had been satisfied in these cases. The present case involves amounts required of appellant by the tariffs that have not yet been paid by it. Accordingly, the defenses of estoppel and waiver are not available in this case to appellant.

Appellant also claims that the lower court erred in not granting it credit for run-arounds. The trial court found that appellant had been granted all the credit for run-arounds to which it was entitled. After a close examination and review of the entire record we are unable to find any error made by the trial court in determining that appellant received all the credit due for run-arounds.

The judgment is affirmed at appellant’s cost.

AFFIRMED.


text:
    Mike ANDERSON d/b/a Collegetown Seafood v. The CITY OF BATON ROUGE.
    No. 13052.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    Rehearing Denied March 31, 1980.
    Lewis O. Unglesby, Baton Rouge, for plaintiff-appellant Mike Anderson.
    Joseph Keogh, Norbert C. Rayford, Parish Attys. Office, Baton Rouge, for defendants-appellees City of Baton Rouge.
    Before EDWARDS, LEAR and GREENE, JJ.
   GREENE, Judge.

Plaintiff appeals the lower court judgment denying him a municipal liquor license permitting the sale of alcoholic beverages having an alcoholic content of more than six per cent by volume. The Baton Rouge Alcoholic Beverage Control Board and the City Council had previously denied appellant this liquor license.

We notice ex proprio motu that this appeal was not filed timely. The trial court judgment sought to be appealed was signed on April 27, 1979. The order granting this appeal was signed and filed on May 23, 1979.

This appeal is controlled by Louisiana Revised Statute 26:104 which provides for devolutive appeal of the trial court’s judgment “Within ten calendar days of the signing of the judgment by the district court in any such appeal case . . . .” The question of timeliness of an appeal is jurisdictional which we must consider. In re State in the interest of Curley, 287 So.2d 558 (La.App. 1st Cir. 1973). Since this appeal was not perfected within ten days of the signing of the judgment by the district court, it must be dismissed.

APPEAL DISMISSED.


text:
    Louis MEYERS v. Norman BASSO et al.
    No. 13067.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    Rehearing Denied March 31, 1980.
    Writ Refused May 9, 1980.

      Hobart O. Pardue, Jr., Springfield, Phillip T. Hager, New Orleans, for plaintiff.
    Joseph F. Keogh, Baton Rouge, for defendants.
    Before EDWARDS, LEAR and GREENE.
   GREENE, Judge.

Plaintiff filed suit seeking damages caused to his two houseboats by a wake created by defendant’s boat in the Tangipa-hoa River. As per jury verdict, the trial court rendered judgment in favor of plaintiff against defendant in the amount of $2,500.00 for cost of repairs to these houseboats and $5,000.00 for mental anguish suffered by plaintiff plus costs of meals for the jurors during trial. Defendant appeals from this judgment, alleging the jury erred in finding negligence and in the amount awarded.

Appellant’s minor son, age 15, was operating a 16 foot ski barge powered by a 55 horse power outboard motor with two companions in the boat on May 30, 1977. He had been skiing and swimming with friends that day and was returning to the launching area when his boat began running slowly due to some mechanical problem. Although testimony conflicts on this point, the record establishes that appellant’s son motored past appellee’s houseboats twice at a slow speed. The large wake created by appellant’s boat slammed the houseboat in which appellee was living against piling causing the damage sued for herein. The boat wake deposited one side of appellee’s other houseboat, which was smaller than the one he was living in, up on the bank.

Where the record reveals a reasonable factual basis for the finding of the trial court and the record does not establish this finding to be clearly wrong an appellate court should not disturb this factual finding. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). The record supports the finding of the jury that appellant’s son was negligent in the operation of this boat causing damage to appellee’s houseboats.

Although there is testimony to the effect that some of the repair work done on one of the houseboats was caused by decay and deterioration, the record establishes that the repair work performed on these two houseboats was necessitated by the damage done to these houseboats by the operation of appellant’s boat. There is no manifest error in this finding by the jury.

Mr. Burley Mobbs repaired the smaller of the two houseboats in return for receiving six months free rent on this houseboat. After negotiations, appellee and Mr. Mobbs agreed that the rent was to be at the rate of $75.00 per month, resulting in total compensation to Mr. Mobbs of $450.00 for this repair work. In addition to other work done on the houseboat, Mr. Mobbs replaced twelve 55-gallon drums used for flotation of the houseboat which had been purchased by plaintiff at the rate of $8.00 per drum. Therefore, the total cost of the repair work done on this houseboat amounted to $546.00. The estimate of repair work needed to fix the damages caused to the houseboat where appellee lived was $951.00, which included labor and material.

The total repair bill for both these houseboats is $1497.00. There is no testimony in the record to support any award greater, than this amount for repair work. Accordingly, the award by the jury to ap-pellee for damages incurred by his houseboats must be reduced from $2500.00 to $1497.00.

Appellant claims plaintiff is not entitled to recover for mental anguish. First, appellant claims the trial court erred in charging the jury on mental anguish and damages allowable for mental anguish when there was no evidence to support the existence of a mental anguish claim. The record establishes that plaintiff was upset and excited during this episode. Plaintiff, age 76, was aboard one of the houseboats when appellant’s boat passed causing these damages to the houseboats. He was so upset at the damage being caused by appellant’s boat and at not being able to flag down the driver of this boat, that he grabbed a rifle and shot at the offending boat. This testimony establishes a reasonable basis to allow the trial court to subnjit the question of mental anguish to the jury. Therefore, no error was committed by the trial court in submitting the question of mental anguish to the jury.

The court, in Hymel v. Tom Alexander Brokerage Co., 348 So.2d 104 (La.App. 4th Cir. 1977), writ refused, stated:

“Damages for mental anguish are allowed to persons who are present or nearby when the accident causing the damage occurred and experienced a real psychic trauma in the nature of or similar to a physical injury as a result of the incident.”

See also Barbay v. Parish of East Baton Rouge, 343 So.2d 235 (La.App. 1st Cir. 1977), writ refused; Cane River Needle Art v. Reon, Inc., 335 So.2d 751 (La.App. 3rd Cir. 1976); Hayward v. Carraway, 180 So.2d 758 (La.App. 1st Cir. 1965); and Fontenot v. Magnolia Petroleum Company, 227 La. 866, 80 So.2d 845 (1955). In order to recover for mental anguish, it must be proven that plaintiff suffered more than minimal worry and inconvenience over the consequences of the damage. Farr v. Johnson, 308 So.2d 884 (La.App. 2d Cir. 1975), writ refused.

Although the facts articulated above suggest that plaintiff was excited and upset during this incident, the record does not establish that he sought medical help for this psychic trauma nor does the record show any independent testimony concerning the extent of any mental anguish which he might have received. The record in fact suggests that any mental anguish suffered by plaintiff abated soon after the incident. Further, there is no evidence in this record that plaintiff suffered any residual or continuing psychic or physical injuries as a result of his alleged distress. Nevertheless, the record does support that plaintiff did suffer some mental anguish from this incident. However, under an interpretation of the evidence most favorable to plaintiff we feel the award of $5,000.00 for this anguish to be grossly excessive and amounts to a clear abuse of the trial court’s “much discretion”. Reck v. Stevens, 373 So.2d 498 (La.1979); Thomisee v. State Farm Mutual Automobile Insurance Co., 376 So.2d 1056 (La.App. 3d Cir. 1979). Therefore, after considering the particular effects on this plaintiff of the particular injuries that he suffered and being able to draw very little guidance from awards made in other cases involving damaged homes, while still viewing all the evidence in this record in a light most favorable to plaintiff, we conclude that the evidence supports a finding of damages for mental anguish in the range of de minimus damages to $1,000.00. Accordingly, for the reasons articulated above, we reduce the award for mental anguish to $1,000.00. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

Appellant also claims the lower court erred in charging the meals for the jury as court costs. The trial of this matter lasted from 9:30 a. m. to 12:00 Midnight.

The jurisprudence of this State is well settled to the effect that the only costs that can be taxed against the litigant are those provided for by a positive law. Gore v. American Motorists Insurance Company, 244 So.2d 894 (La.App. 1st Cir. 1971), writ. refused. Louisiana Revised Statute 13:3049 provides for the payment of jurors who attend court and serve on a jury and jurors who attend but do not serve giving the amount of daily compensation for each category together with a fee for mileage traveled to and from the courthouse. Louisiana Revised Statute 13:3050 sets forth the posting of a bond in jury cases as follows: Louisiana Revised Statute 13:4533 states as follows:

“In all civil cases in which a jury is prayed for and allowed, the party praying for the jury shall give bond in favor of the parish for such amount as may be determined by the judge to cover the cost of the jury, which cost shall be taxed as provided for in Louisiana Code of Civil Procedure Articles 1920 and 2164.”
. “The costs of the clerk, sheriff, witness’ fees, costs of taking depositions and .copies of acts used on the trial, and all other costs allowed by the court, shall be taxed as costs.”

The question of whether the cost of meals for civil juries can be taxable as court costs has never been decided by our courts. A trial court must be given much discretion in presiding over a civil jury trial in order to promote justice, court time efficiency, fairness to the litigants and the civil jury and to protect court personnel. If the trial is not completed by mealtime, there may be reasons for a trial court to want the jury to stay together for lunch or supper accompanied by. a bailiff in order to accomplish these objectives. Louisiana Revised Statute 13:4533 gives the trial court discretion in whether or not to feed the civil jury with the verbiage “. . . and all other costs allowed by the court . . . .” For these reasons, inasmuch as the record does not reflect that the trial court abused its discretion in the amount expended on jury meals, we find that the trial court was not in error in casting the cost of meals served to the jury during the trial of this matter as court costs.

The judgment appealed from is therefor amended so tfyat there will be judgment in favor of plaintiff in the sum of $2,497.00 together with legal interest from date of judicial demand and for all costs of these proceedings to include expenses of the jury including meals. In all other respects, the judgment of the trial court is affirmed, with costs of this appeal to be shared one half by plaintiff and one half by defendant.

AMENDED AND AFFIRMED.

      . Hayward v. Carraway, 180 So.2d 758 (La. App. 1st Cir. 1965); Cooper v. Christensen, 212 So.2d 154 (La.App. 4th Cir. 1968); Barbay v. Parish of East. Baton Rouge, 343 So.2d 235 (La.App. 1st Cir. 1977); Hymel v. Tom Alexander Brokerage Company, 348 So.2d 104 (La.App. 4th Cir. 1977); Romero v. Town of Welsh, 370 So.2d 1286 (La.App. 3d Cir. 1979).


text:
    Gail Horne RAY v. FEDERATED GUARANTY LIFE INSURANCE CO.
    No. 13170.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    Rehearing Denied March 31, 1980.
    James A. Gray, New Orleans, of counsel for plaintiff-appellee Gail Horne Ray.
    Robert J. Vanda worker, Baton Rouge, of counsel for defendant-appellant Federated Guaranty Life Ins. Co.
    Before EDWARDS, LEAR and GREENE, JJ.
   GREENE, Judge.

Plaintiff was paid the face amount plus a cost of living increase due her as beneficiary on a policy of insurance issued by defendant on the life of her husband. Defendant appeals the trial court judgment which granted plaintiff triple indemnity under a rider providing additional benefits for accidental drowning.

The record establishes that insured drowned face down in a bath tub while in a mental hospital on January 19, 1976. It is uncontested that he was insane at the time of his death. There was no evidence of- any foul play or that insured slipped and fell into the tub. The evidence is clear that the insured placed himself face down in the tub partially filled with water. He had been experiencing delusions of grandiosity. The death certificate filled out by the coroner’s office listed the death as accidental drowning.

Appellant claims that appellee did not establish that the insured’s death resulted directly from accidental drowning, independent of any and all other causes. Appellant contends that the insured died while insane as a result of his own actions consisting of placing himself under water and remaining there until asphyxiated resulting in there being no “accident” as the ordinary layman understands that term.

It is necessary for us to examine the meaning of the following pertinent policy verbiage:

“Triple Indemnity. The Company will pay . . . upon proof that the death . resulted directly, and independent of any and all other causes, from accidental drowning .. . . effected solely through external, physical, violent and purely accidental means . . .

It is clear that death was caused here by drowning, independent of any and all other causes. Death by drowning is death by external means since it was inflicted by an outside agency, water. It is also unnatural death as being out of the usual course of nature. An unnatural death is a violent death. Canal-Commercial Trust & Savings Bank v. Employers’ Liability Assur. Corporation of London, England, 155 La. 720, 99 So. 542 (1924). The question which remains is whether this drowning was accidental.

In suits similar to this, Louisiana courts have held that a death is accidental when shown to result from violent and external means where the injury is unforeseen by the victim. See Cutitto v. Metropolitan Life Ins. Co., 185 La. 161, 168 So. 761 (1936) and Chambers v. First National Life Insurance Company of New Orleans, 253 So.2d 636 (La.App. 4th Cir. 1971). Both of these cases dealt with questions of coverage under policies insuring against accidental death, although neither is fully dispositive of the issues here since each case.dealt with the insured being killed by the act of a third party. Nevertheless, the test applied in these cases is valid here. Therefore, this drowning death was accidental if it was unforeseen by the insured.

The insured.was insane at the time of his death, feeling he had supernatural powers and was above the human race. A preponderance of the evidence establishes that the insured did not foresee the consequences of his actions, resulting in death. Therefore, this drowning was accidental.

We give no weight to the death certificate. A coroner’s certificate of death is limited only to proof of death itself and is not admissible for the purpose of proving the cause of death. Lee v. Aetna Life Insurance Company, 147 So.2d 703 (La.App. 1st Cir. 1962).

Appellant further contends that it is not liable for any accidental death benefits regardless of whether insured was sane or insane at his death based on exclusionary provisions of its policy, set forth as follows:

“Incontestability. This Policy shall be incontestable after it has been continuously in force during the lifetime of the Insured for a period of two years from the Date of Policy except for non-payment of premiums and except for any provisions granting benefits in the event of accidental death or in the event of total disability, if contained herein.”
“Suicide. If the Insured, whether sane or insane, shall die by his own hand or act within two years after the Date of Policy the liability of the Company under this Policy shall be limited to the premiums paid hereon.”

The death occurred more than two years after issuance of appellant’s policy. Appellant reads the above two clauses together, claiming that although after two years it can no longer contest the payment of the basic death benefit based upon the insured dying by his own hand whether sane or insane, it retains the right to contest the claim for accidental benefits on those grounds. We do not believe these provisions can be read in this manner. The suicide clause by its own terms is only effective for two years after issuance of the policy. It is only during this period that death by the insured’s own hand, whether sane or insane, is excepted from coverage. After this two year period passes the suicide clause has no further effect. Appellant argues that this suicide clause continues in effect at least as to the scope of the insurer’s coverage for accidental death because of the wording of the incontestability clause which states that after two years the policy becomes incontestable “. . . except for any provisions granting benefits in the event of accidental death . . . .” This clause does not incorporate the suicide clause or make any reference to it. These two. clauses cannot be read together to form this strained interpretation. We read this portion of the incontestability clause as preserving to the insurer the right to challenge an assertion that a death was accidental no matter how long the policy had been in force when the insured dies.

The judgment is affirmed at appellant’s costs.

AFFIRMED.


author: COVINGTON, Judge.

text:
    J. K. HAYNES et al. v. LOUISIANA TEACHERS ASSOCIATION et al.
    No. 13059.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    Rehearing Denied March 31, 1980.
    Writ Refused May 19, 1980.

      Nelson D. Taylor, Baton Rouge, of counsel, for plaintiffs-appellants J. K. Haynes et al.
    William R. D’Armond, Baton Rouge, and Arthur G. Thompson, Shreveport, of counsel, for defendants-appellees Louisiana Teachers Ass’n et al.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

This is an appeal from a judgment of the trial court signed on May 18, 1979, granting defendants’ motion for summary judgment and dismissing plaintiffs’ suit at their costs. We affirm.

This suit arises out of a petition for declaratory judgment and injunctive relief filed by a number of petitioners, namely J. K. Haynes, R. J. Neville, Emily Stewart, Willie Climmons, George Thomas, James Edwards, Audrey N. O’Connor, Grady Murphy, Sidney A. Perkins, D. V. Tolliver, Eugene Johnikins, Franchey P. Truewell, La-marr Davis, Lionel Dawson, Philip N. Malcolm, Jr., Hamp Smith, William Ruffin, B. J. Franklin, P. A. Frazier, Lee Edward Joe, Thomas J. Bailey, Charlie Taylor, Jr., Michael Dupre, Frank B. Ross, Carrie Lee Thomas, Kingsley B. Garrison, Sylvester Muckelroy, Emily J. Stewart, Alex Nicholas, Percy L. Wallace, Leon Burns, Mary M. Slaughter, Areola S. Haney, Emanuel L. Prout, Ralph Plaisance, Albert Joseph, John Frank Guillory, Johnny Thomas, Willie V. Jackson, and Arthur J. Lewis. The plaintiffs sue individually and also as representatives of persons similarly situated who have a common interest in the lawsuit. They are allegedly voting members of the Louisiana Education Association (LEA), and officers of the LEA, and executive officers of local affiliate chapters of the LEA whose members are voting members thereof. The suit was brought against Louisiana Teachers Association (LTA), Louisiana Association of Educators (LAE), and certain named officers of LAE.

The controversy arose because the predominantly black teachers’ organization, LEA, and the predominantly white teachers’ organization, LTA, were formally consolidated into LAE. The consolidation successfully terminated some 70 years of separate and racially identifiable teacher organizations in Louisiana. The consolidation agreement, the LAE constitution and bylaws were approved by LEA and LTA and filed with the Secretary of State of the State of Louisiana on January 3, 1978.

In December of 1977, the appellants filed the present action for declaratory judgment and injunctive relief to block the consolidation. No order for injunctive relief was obtained, and the officials of the corporations proceeded with the consolidation. After the consolidation was effectuated the LEA’s former executive secretary, J. K. Haynes (who had been discharged by the executive council of LEA prior to the consolidation) refused to turn over LEA’s premises and property to LAE. LAE obtained injunctive relief against J. K. Haynes ordering him to turn over the premises and property to LAE. The injunction was upheld by this Court on appeal. Louisiana Association of Educators v. J. K. Haynes, Number 12,165 (in an unreported decision).

In this appeal the appellants make two basic contentions: (1) that the consolidation was invalid because LAE failed to comply with the Louisiana Nonprofit Corporation Law; and (2) that the minority guarantees in the consolidation agreement and in LAE’s constitution and by-laws are unlawful as “racially restrictive covenants.”

The record reflects unquestionably that the membership of LEA approved the consolidation by the requisite two-thirds majority. At the 1976 convention in Alexandria, the membership voted in favor of the consolidation or merger. The evidence shows that the members knew that they were voting for consolidation. Mr. Basile Miller, who had run on an anticonsolidation platform, was elected president of the LEA, but Mr. Miller considered himself under mandate of the membership to move towards implementation of the expressed wishes of the membership. Without tracing all the steps with respect to the efforts of Mr. Miller, despite opposition from the Executive Council of LEA and Mr. Haynes, it will suffice to state that the membership at its next convention (November, 1977) elected a pro-consolidation slate of officers, with Mr. Jesse Spears as president, who immediately took action on November 23, 1977, to effectuate the wishes of the membership by taking all necessary actions to complete the consolidation requirements.

Accordingly, Mr.. Spears, the new president of LEA, made demand upon Mr. Haynes to sign the necessary consolidation documents, but Mr. Haynes refused to do so. Then, on December 29, 1977, the LEA Executive Council met, after prior notice, in Alexandria. At the December meeting, Mr. Haynes was discharged as executive secretary and was replaced by Mr. Miller. The necessary documents effectuating the consolidation and the incorporation of LAE were then executed. Thereafter, on January 3, 1978, the agreement of consolidation and articles of incorporation for LAE were filed with the Secretary of State. On that same date the Secretary of State issued a certificate declaring the consolidation and a certificate of incorporation of LAE.

The appellants contend that there was actually no proper merger or consolidation of the two teachers’ organizations because LSA-R.S. 12:243-246 were not complied with. We find, as did the trial court, that the appellants’ contention in this respect is without merit.

The record reflects that the consolidation agreement and the articles of incorporation have been filed with the Secretary of State of the State of Louisiana, and a certificate of incorporation issued certifying that the LEA and LTA have been consolidated into the LAE. We find that the district court correctly ruled that the consolidation was not subject to attack by virtue of LSA-R.S. 12:205 B.

The Nonprofit Corporation Law makes the certificate of incorporation conclusive evidence of due incorporation. The validity of the incorporation of LAE can be directly attacked only by the State in a quo warran-to proceeding; the incorporation cannot be collaterally attacked.

R.S. 12:205 B reads as follows:

“B. When all fees and charges have been paid as required by law, the Secretary of State shall record the articles or the multiple original thereof in his office, endorse thereon the date and, if requested, the hour of filing thereof with him, and issue a certificate of incorporation which shall show the date and, if endorsed on the articles, the hour of filing of the articles with him. The certificate of incorporation shall be conclusive evidence of the fact that the corporation has been duly incorporated, . . . except that in any proceeding brought by the state to annul, forfeit or vacate a corporation’s franchise, the certificate of incorporation shall be only prima facie evidence of due incorporation.” [Emphasis added.]

The predecessor of this provision, which contained similar words, was considered by the Court in Louisiana District Church of the Nazarene v. Church of the Nazarene, 132 So.2d 667 (La.App. 1 Cir. 1961). In that case, the Ponchatoula Church of the Nazarene split away from its parent church, and the parent church sued the defendant to recover title to the local property. The defendant argued that the parent church was not duly incorporated because its articles of incorporation were executed under private signature duly acknowledged rather than by authentic act as required by the statute. The Court ruled that the defendant could not raise the issue, and said:

“ . . . From the foregoing it would appear the. possibility exists that the validity of plaintiff’s incorporation might be subject to attack in a proper proceeding since plaintiff’s Articles of Incorporation were not executed by authentic act as required by the previously mentioned statute. We herein express no opinion in this regard, however, for the reason the present proceeding is not a proper one for determination of the question of plaintiff’s corporate existence, as will hereinafter be shown.
“The Nonprofit Corporation Law of this state contains the following section:
“ ‘L.S.A. R.S. 12:107. Validity and effect of certificate of incorporation
“ ‘The certificate of incorporation issued by the Secretary of State in accordance with the provisions of this Chapter shall be conclusive evidence of the fact that the corporation has been duly incorporated, except in any proceeding brought by the state to annul, forfeit, or vacate the corporation’s franchise, in which case the • certificate of incorporation shall be only prima facie evidence of due incorporation.’
“This section is identical to the section of the Business Corporation Law dealing with the effect to be given to a certificate of incorporation (i. e. LSA-R.S. 12:10), and was taken from Section 9 of the Model Business Corporation Act sometimes known as the Uniform Corporation Act.
These sections deny to all, including the State, the right to collaterally attack the existence of a corporation, reserving only to the State the right to attack corporate existence in a direct action. They further provide corporate existence is conclusively proved by the certificate of incorporation issued by the Secretary of State. There appears in the record such certification of plaintiff’s corporate being and under the unambiguous provisions of the statute defendants may not collaterally attack same.
“As stated by Charles E. Dunbar and Eugene A. Nabors in their articles on ‘The Louisiana Business Corporations Law’ in Volume 5 of LSA-R.S. Page XXXI at page XXXIX:
“ ‘Sections 5 and 10 give certainty to the use of corporations by the establishment of a system which makes it practically impossible to collaterally attack a corporation’s existence. The Attorney General, acting for the state in quo warranto proceedings can, of course, attack the validity of incorporation proceedings because of failure to comply with the requirements of the statute. Compliance with the requirement for filing the articles of incorporation with the recorder of mortgages brings the corporation into existence and enables it to go forward with regular business transactions which cannot be attacked by private parties even though there is failure to comply with any further formalities. In addition, the issue of the certificate of incorporation by the Secretary of State prevents private parties from attacking the validity of any of the incorporation formalities.’
[Emphasis added.]

In the instant case, the Secretary of State issued a certificate of incorporation to LAE. Therefore, any deficiencies in the procedure leading to the issuance of that certificate cannot be raised by appellants. LSA-R.S. 12:205 B.

Although the appellants’ attack purports to be on the consolidation rather than the incorporation of LAE, it amounts to an attack on LAE’s incorporation. A consolidation is by definition the formation of a new corporation from two previously existing corporations, LSA-R.S. 12:242. The statutory procedures dealing with consolidation call for the preparation and filing of articles of incorporation for the new corporation, LSA-R.S. 12:244. The consolidation becomes effective when the consolidation agreement and articles of incorporation are recorded by the Secretary of State, LSA-R.S. 12:245 B; and, at that time the two consolidating corporations cease to exist, LSA-R.S. 12:246 B. Thus, the issuance of a certificate of incorporation to the new corporation is the end product of the consolidation procedure. The protection from attack by anyone other than the State that LSA-R.S. 12:205 B gives to thé incorporation therefore necessarily applies to the consolidation procedure. The consolidation procedure is the incorporation procedure for the new corporation.

The record shows that the consolidation agreement and LAE Articles of Incorporation were certified by the secretary of each corporation as having been approved by the members, and signed and acknowledged by each president. All of the appropriate documents were approved by both organizations, as discussed above. The LAE Articles of Incorporation were filed and recorded in the office of the Secretary of State and a certificate of incorporation was issued. LSA-R.S. 12:205 B provides that the certificate of incorporation is conclusive evidence of the fact that the corporation has been duly incorporated. Here, because of the unique circumstances, the memberships of all associations involved told the world what they wanted. The boards of the associations were bound by the mandates of their memberships. The will of the membership cannot be thwarted by failure of subordinate boards to comply with technical provisions of incorporation procedures.

The appellants also contend, as they did in the court below, that certain minority guarantee provisions of the consolidation agreement and the LAE constitution and by-laws were violative of their Fourteenth Amendment rights, federal statutory rights, and state constitutional rights in that they each allegedly contain “racially restrictive covenants.”

In ruling on the minority guarantee provisions, the trial court said:

“It is clear that the minority guarantee provisions at issue here were in no sense intended to exclude a racial minority. Rather, they were designed to insure that members of the predominantly black teachers’ association woúld be afforded a fair opportunity to participate in the affairs of the new association. The consolidation agreement, the LAE Constitution and the LAE By-Laws were written by a joint committee composed of an equal number of members from both former organizations. The guarantee provisions are to continue in effect for a six-year transitional period after consolidation and then, cease to operate. These benign transitional guarantees are remedial provisions designed to eradicate the effects of racially restrictive covenants that previously barred black teachers from participating in the dominant' all-white teachers’ association in Louisiana.
“Uses of minority guarantees to eliminate the present effects of past discrimination have been upheld as remedies for constitutional or statutory violations which resulted in identified race-based injuries. United States v. Jacksonville Terminal Company, 451 F.2d 418 (5th Cir. 1971), Hicks v. Crown Zellerbach Corporation, 310 F.Supp. 536 (E.D.La.1970), Lee v. Macon County, 283 F.Supp. 194 (M.D.Ala.1968). In United Jewish Organizations v. Carey [430 U.S. 144], 97 S.Ct. 996, [51 L.Ed.2d 229] (1977), the Supreme Court affirmed the use of racial criteria in redistricting, holding that New York’s reapportionment plan did not violate the Fourteenth or Fifth Amendment merely because of the use of specific numerical quotas. In a later case, Regents of the University of California v. Bakke [438 U.S. 265], 98 S.Ct. 2733 [57 L.Ed.2d 750] (1978), the Court did strike down a medical school’s admissions program which was based on racial quotas because the operation of the special admissions program preferred the designated minority groups at the expense of other individuals. The Court distinguished Bakke and United Jewish Organizations, reaffirming the use of ‘ . . . measures to improve the previously disadvantaged group’s ability to participate, without excluding individuals belonging to any other group from enjoyment of the relevant opportunity . . . ’, 98 S.Ct. 2733 at 2756.
“The present case is in line with United Jewish Organizations. The transitional minority guarantees in the .consolidation agreement are designed to insure members of both former organizations meaningful participation in the operation of the new association, the LAE. No one is excluded. None of the challenged provisions violate the Federal or State Constitution or 42 U.S.C. 1981. Therefore, the consolidation agreement, the LAE Constitution and the LAE By-Laws are constitutionally valid and enforceable.”

This matter is before the Court on a motion for summary judgment filed by the defendants. The plaintiffs also filed a motion for summary judgment. There are no material facts in dispute. LSA-C.C.P. art. 966.

We believe that it is important to recognize that the minority guarantees herein are not “racially restrictive covenants” as this phrase has been used to denote invidious arrangements designed to exclude members of a racial minority from participating in a particular activity. See Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). The minority guarantee provisions at issue here were in no sense intended to exclude a racial minority. Rather, they were intended to ensure that members of the predominately black teachers’ association would be afforded a fair opportunity • to participate in the affairs of the new association (which is approximately one-third black and two-thirds white). The guarantee provisions are to continue in effect for a transitional period, and then cease to have effect. These transitional guarantees are benign; they are remedial provisions intended to eradicate the effects of racially restrictive covenants that formerly barred black teachers from participating in the dominant, all-white teachers’ association in Louisiana. Such benign transitional guarantees are sanctioned by the United States Supreme Court’s recent decision in United Steelworkers of America, AFL-CIO-CLC v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979). In Weber, the Court upheld Kaiser Aluminum’s “affirmative action” plan (collective bargaining agreement) which reserved 50% of the places in a training program for blacks for a period of time. The Court emphasized that “the plan is a temporary measure; it is not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance.”

The use of minority guarantees to eliminate present effects of past discrimination has judicial sanction. In a variety of situations where a history of racial or minority discrimination is found to exist, tlie implementation of programs drawing racial or minority lines as a means of ensuring that the effects of past discrimination do not continue to deny equal opportunity to blacks or other minorities in the future have been sanctioned. Affirmative action of this kind has been approved in United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977) (past history of discrimination in voting); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) (past history of school segregation); Franks v. Bowman Transportation Company, Inc., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976) (past history of employment discrimination); Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (2d Cir. 1968) (past history of housing discrimination); Local 53 of Ass’n of Heat & Frost I & A Workers v. Vogler, 407 F.2d 1047 (5th Cir. 1969) (past history of labor union membership discrimination).

Labor organizations are a prime example of previously segregated groups that have integrated in recent years through the use of court-sanctioned minority guarantees. In Hicks v. Crown Zellerbach, 310 F.Supp. 536 (E.D.La.1970), the Court, after finding that the maintenance of separate racial local unions for employees at Crown Zeller-bach’s paper mill violated Title VII of the Civil Rights Act of 1964, ordered immediate merger of the local unions with guarantees of black participation in the leadership of the local union over a transitional period.

The Fifth Circuit Court of Appeals has also recognized that transitional relief measures may be appropriate in United States v. Jacksonville Terminal Company, 451 F.2d 418 (5th Cir. 1971), cert. denied, 406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815 (1972), when the Court directed the district court to order the consolidation of labor union organizations during and after any necessary transition period. See also Long v. Georgia Kraft Co., 455 F.2d 331 (5th Cir. 1972), where the Court stated that protective transitional measures may be an appropriate means of eliminating the present effects of past discrimination in labor union merger cases.

We hold that the minority guarantee provisions of the consolidation agreement and the LAE constitution and by-laws herein are lawful.

For the assigned reasons, this Court finds that the incorporation and consolidation were proper, and the consolidation agreement and the LAE constitution and by-laws were valid. The defendants-appellees were entitled to summary judgment. Accordingly, we affirm at appellants’ costs.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    Arthur BRITTEN v. Thomas L. PAYNE et al.
    No. 13016.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    Rehearing Denied March 31, 1980.
    Writ Refused May 19, 1980.

      Joel B. Dickinson, Baton Rouge, of counsel for plaintiff-appellee, Arthur Britten.
    Kenneth R. Williams, Baker, of counsel for defendant and third party plaintiff-appellant, Thomas L. Payne.
    James E. Moore, Baton Rouge, of counsel for third party defendant-appellee, Aetna Cas. & Sur. Co.
    Herschel C. Adcock, Baton Rouge, of counsel for third party defendant-appellee, Kenilworth Ins. Agency, Inc.
    • James L. Ellis, Baton Rouge, of counsel-for intervenor-appellee, Travelers Ins. Co. and W. J. Spano Co., Inc.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

This is an automobile accident case. The primary issue is whether the defendant, Thomas L. Payne, Sr., is covered by an automobile insurance policy which Aetna Casualty and Surety Company claims has been cancelled.

Plaintiff, Arthur Britten, filed suit against the defendant Payne for damages incurred as a result of an automobile accident between plaintiff and defendant’s minor son, Thomas Payne, Jr. The defendant answered the suit and filed a third party petition against Kenilworth Insurance Agency and Aetna Casualty and Surety Company, seeking to have these third party defendants hold him harmless for any damages he might be required to pay and seeking attorney’s fees for defending the suit. Two parties intervened in the suit seeking property damages, but these parties are not before us on appeal and the $450.00 judgment in their favor is final.

The trial court awarded plaintiff $1,282.00 — $750.00 for pain and suffering, $40.00 for medical, $12.00 for prescriptions and $480.00 for lost wages. In his first judgment he held Aetna liable for all damages the defendant was required to pay, but after reargument he relieved both Aetna and Kenilworth of liability, finding there was no insurance policy covering the defendant for this accident. The defendant Payne has timely brought this appeal.

THIRD PARTY DEMANDS

Our main concern is whether the trial judge, after reargument of the case, erred in relieving Aetna and Kenilworth of liability for the damages the defendant had to pay. The trial court initially held Aetna liable for the damages but reversed itself after reargument on the ground that Aetna had effectively cancelled the defendant’s liability insurance policy.

A somewhat detailed delineation of the facts of this case is important to show the relationship of the parties. On September 8, 1977, Mrs. Thomas L. Payne applied for an automobile insurance policy from the Kenilworth Insurance Agency in Baton Rouge. She sought coverage for herself, her husband and her minor son on three different automobiles. A Kenilworth employee took the policy information on an application form supplied by Aetna. The employee quoted a premium price of $213.59 at the time the application was taken and Mrs. Payne made a downpayment of $85.00 on the total premium price. Mrs. Payne was told by the Kenilworth employee that the remaining premium amount could be paid in three monthly installments of $42.83 each and that the installments should be made in response to billing notices from Aetna. The Kenilworth employee subsequently placed the insurance with Aetna Casualty and Surety Company and Aetna later issued a policy, dated September 8, 1977. The policy contained a total premium price of $265.00, but Mrs. Payne testified she did not notice the discrepancy in premium prices at that time.

Sometime in late October Mrs. Payne received the first premium billing notice. The notice stated that a minimum sum of $127.00 or a total sum of $180.00 was due at that time. Mrs. Payne testified that she felt there was some mistake in this amount' and that instead of paying the minimum of $127.00 she forwarded Aetna a money order for $42.83, the price she had agreed upon with the Kenilworth employee. Aetna accepted the payment.

However, on November 24, 1977, Aetna mailed the Paynes a notice of cancellation, stating that unless the total premium amount of $138.54 was paid by December 8, the policy would be cancelled effective December 13, 1977. At this time Mrs. Payne called Clayton Shill, president of Kenil-worth Insurance Agency, in regard to the premium discrepancy. There is conflict in the testimony as to whether Mrs. Payne mentioned the cancellation notice to Mr. Shill. She said she did; he said she didn’t. In any event, the premium discrepancy was discussed and Mrs. Payne thereafter mailed a $70.00 money order to Aetna instead of paying the minimum amount specified in the cancellation notice. The testimony shows clearly that Mrs. Payne believed the $70.00 payment would keep. the policy in effect.

On December 15,1977, some 11 days prior to the accident, Aetna sent a computerized statement showing the policy was cancelled along with a refund check of $55.46 to the Kenilworth Insurance Agency. Both the cancellation statement and the refund check were to be forwarded to the Paynes in the event that the Kenilworth Agency did not have a setoff for the amount of the refund. However, neither the refund check nor the cancellation certificate was ever sent to the Paynes. Eleven days after the policy was allegedly cancelled, on Christmas Eve 1977, young Thomas Payne, Jr. was involved in an automobile accident. A few days after the accident, Mrs. Payne informed the Kenilworth agency of the accident. Upon learning of the claim against it, Aetna refused coverage.

There is no question that the Kenilworth employee who quoted the premium price to Mrs. Payne was in error. The actual premium was more than $50.00 above that quoted by Kenilworth.

Testimony at trial conclusively shows that Kenilworth had been a licensed agent of Aetna since about 1974 and that the Kenilworth agency was authorized to quote premiums, premium schedules and payments. Mr. Shill testified that his agency had authority to bind Aetna on the issuance of a policy, and he indicated that he could bind Aetna °n the premium quotes he made to potential insureds, subject to Aetna’s approval. Aetna’s New Orleans comptroller— the only Aetna employee to testify — reiterated that Kenilworth had been a licensed agent of Aetna since 1974. The application form filled out by the Kenilworth employee and signed by Mrs. Payne was furnished by-Aetna and bore Aetna’s insignia and an Aetna sign or monogram appeared on the plate glass window near the entrance of the Kenilworth Agency. Other evidence shows that Kenilworth placed only about one-third of its insurance with Aetna.

The question we must decide, given the facts listed above, is whether Kenilworth was Aetna’s agent so as to bind Aetna for the premium price and other conditions quoted by the Kenilworth employee, or whether Kenilworth was a broker acting as the agent of the Paynes.

In oral reasons for his first judgment, the trial judge had no doubt that Kenilworth was Aetna’s agent. However, he did not base his decision on this finding but rather on the fact that Aetna had failed to send the refund check directly to the Paynes’ residence in violation of R.S. 22:636(D) and had therefore failed to cancel the policy. After reargument the judge reversed himself and held that Aetna did not have to send the refund check directly to the Paynes to effect cancellation of the policy. The trial judge then absolved both Aetna and Kenilworth of any liability towards the Paynes.

Aetna’s counsel cites a number of cases concerning the distinction between an agent and a broker. Karam v. St. Paul Fire and Marine Insurance Company, 265 So.2d 821 (La.App.3rd Cir.1972), affirmed for other reasons, 281 So.2d 728 (La.1973); and United Credit Plan of Jena, Inc. v. Hailey, 341 So.2d 58 (La.App.3rd Cir.1976). In a recent opinion in this court, Scoggins v. Smith, 342 So.2d 1130 (La.App.1st Cir.1977), we held that an agent’s tortious conduct cannot be imputed to the principal.

We think these cases, combined with the factual setting in this case, show that Kenilworth was not Aetna’s agent for purposes of binding Aetna to the premium price quoted by Kenilworth. Of particular importance is the fact that Kenilworth could only quote premiums and premium schedules but could not bind Aetna prior to Aetna’s approval of a policy. Additionally, Kenilworth was not bound to place all its insurance with. Aetna but could place the coverage with any company with which it was licensed to do business. Indeed, only one-third of Kenilworth’s business went to Aetna. The facts show that Kenilworth, at the time it took the application from Mrs. Payne, was a broker acting in behalf of the Paynes and not as an agent of Aetna. Karam v. St. Paul Fire and Marine Insurance Company, supra; United Credit Plan of Jena, Inc. v. Hailey, supra; Scoggins v. Smith, supra.

Our inquiry does not end here, however. While Kenilworth is not an agent of Aetna under the general principles of agency law, Kenilworth was a broker as that term is understood in our law, La.C.C. arts. 3016, 3017, and as such was the agent of the Paynes. Karam, supra. Kenilworth stood in a fiduciary relationship to the Paynes, and was answerable to them for its fault and neglect in failing to notify them of the policy cancellation. La.C.C. arts. 3003, 3018. The Paynes were certainly under the impression that they were covered by insurance on the date of the accident. Kenil-worth was solely at fault for failing to notify them that the policy had been can-celled. In short, Kenilworth violated its contractual obligation to the Paynes, and by its negligence, prevented the Paynes from being covered by insurance on the date of the accident. Kenilworth must therefore bear the responsibility for the damages assessed against the Paynes. La.C.C. arts. 3003, 3018; Walker v. Fontenot, 329 So.2d 762 (La.App.1st Cir.1976), writ denied 332 So.2d 217 (La.1976); Board of Trustees of Phillips Memorial Methodist Church v. St. Louis Fire & Marine Insurance Company et al., 306 So.2d 777 (La.App.4th Cir.1974).

QUANTUM — PRINCIPAL DEMAND

While the negligence of the defendant’s son is not at issue on appeal, the defendant contends that the trial court’s award of $1,282.00 was excessive and erroneous, particularly the $480.00 awarded for lost wages. At trial, plaintiff alone testified as to the amount of wages he lost as a result of the accident. No effort was made to introduce income tax returns, W-2 forms or any other corroborative evidence to substantiate plaintiff’s claims on the issue of wage loss, and no evidence was offered to show that such corroborating proof was unavailable. Plaintiff did attempt to offer an affidavit of his employer attesting to the wages he previously earned, but this proof was properly excluded, there being no indication that the employer was unavailable or that other proof was lacking. We therefore feel the trial judge was in error in awarding damages for lost wages, so the judgment on the principal demand will be reduced accordingly. Boyles v. Bridgeman, 342 So.2d 1150 (La.App.1st Cir.1977).

However, we feel the trial judge’s award for general damages was inordinately low for the type of injury involved here.

Testimony shows that plaintiff’s injuries were diagnosed as lumbrosacral myalgia, which is an inflammatory reaction in the low back skeletal muscles and which can lead to disc problems; arthralgia of the left hip, which is a painful inflammatory reaction of the hip joints; and foreign matter in the right ear. The plaintiff visited the doctor four times after the accident and still complained of pain on the last visit. Plaintiff testified that he still has pain in his hip and his back and that he quit his job as a stock puller at an auto parts house because of hip pain when climbing up and down the stairs. We think the lowest amount the trial judge could have awarded without abusing his discretion was $2,000.00.

The defendant also seeks attorney’s fees against Kenilworth. The claim has a basis in equity, perhaps, but our law does not allow an award of attorney’s fees against an agent in this type of case. La. R.S. 22:658; Board of Trustees of Phillips Memorial Methodist Church v. St. Louis Fire & Marine Insurance Company et al., supra; Bordelon v. Herculean Risks, Inc., 241 So.2d 766 (La.App.3rd Cir.1970).

Therefore, for the above and foregoing reasons, the decision of the trial court in favor of plaintiff and against defendant Payne is amended to increase the award for pain and suffering, medical expenses and prescriptions to $2,052.00; the decision of the trial court for lost wages is reversed; the decision of the trial court relieving Aet-na of liability is affirmed; and the decision of the trial court relieving Kenilworth of liability to the Paynes is reversed, with Kenilworth to pay all damages awarded and all costs of this appeal.

AMENDED IN PART, REVERSED IN PART AND RENDERED.