author: COLE, Judge.

text:
    Patsy Jean DeHAVEN v. Ronald Lee DeHAVEN.
    No. 14117.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Rehearing Denied Aug. 5, 1981.
    Kenneth R. Williams, Baker, for plaintiff-appellee Patsy Jean DeHaven.
    George L. Clauer, III, Baton Rouge, for defendant-appellant Ronald Lee DeHaven.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

This case involves an agreement entered into by the parties upon the dissolution of their marriage. The issues presented are whether or not the district court had subject matter jurisdiction over the dispute and if so, whether or not the court erred in ordering the husband to pay certain sums allegedly due under the agreement. Because we find the court did not have subject matter jurisdiction we need not address the second issue.

The record reflects plaintiff-appellee Patsy Jean DeHaven and defendant-appellant Ronald Lee DeHaven were divorced in Saline County, Missouri by order of a “Judgment Entry” signed May 24, 1976. The judgment granted Mrs. DeHaven custody of the three children and Mr. DeHaven visitation rights. Additionally, the judgment contained the following provision:

“3. The husband shall pay to the wife for the maintenance of each child the sum of $200.00 per month, or an aggregate of $600.00 per month, the payments having heretofore commenced, and on the first day of each month hereafter until a certain Deed of Trust covering Lot Number Twenty-one (21), in Bowling’s Subdivision of Lot Number Seven (7), in Stephen’s Addition, to the City of Columbia, Boone County, Missouri, titled in DeHa-ven Investment Company, having a current principal loan balance of $41,674.99, payable to First Federal Savings, Moberly, Missouri, is satisfied by being paid off in its entirety or the husband and wife mutually agree in writing to a satisfactory alternative such as husband executing a secured note payable to wife, together with husband providing credit life insurance in the then principal amount of the loan. When the husband has paid off the Deed of Trust or made other satisfactory arrangements for the payment of the said Deed of Trust, the child-support payments shall reduce to one dollar per month per child until such child marries, dies, or attains the age of majority. If one or more children should reach the age of majority prior to the First Federal Savings note being paid off and released, the $600.00 per month payment shall in all events continue to wife until husband has paid off the said note or made mutually satisfactory alternative arrangements to pay off the Note.”

The judgment referred to an attached “agreement” which repeated the language of the judgment and further specified the rights of the parties in respect to various pieces of real estate.

Mr. DeHaven paid the monthly payment from June 1976 to May 1977 and then made no further payments. Meanwhile, Mrs. De-Haven sold the mortgaged property in July 1976 and used approximately two-thirds of the proceeds to pay off the balance of the note. She filed suit in the Nineteenth Judicial District Court of this state (Mr. DeHa-ven had relocated to Baker, Louisiana) alleging Mr. DeHaven owed her $29,545.00 in arrearages and $46,182.48 for the balance of the loan which she had paid off.

Mr. DeHaven failed to answer the suit so a preliminary default was entered and a confirmation hearing held. The court ordered the judgment of the Missouri court be made executory in this state and ordered appellant to pay $21,600.00 in arrearages and to continue to pay $600.00 per month to appellee, until the amount of $41,674.99 was paid in full.

Mr. DeHaven appealed and filed a declinatory exception urging the district court had no subject matter jurisdiction because the subject of the lawsuit was child support which is a matter under the exclusive jurisdiction of the Family Court. La. R.S. 13:1401(7). We agree.

Although the husband’s agreement to pay the money was contingent upon the existence of a loan balance on the real estate, the agreement specifically labeled his obligation to pay for the “maintenance of each child.” We concede the arrangement was a bit unorthodox but nonetheless find the obligation incurred was one of child support. The husband clearly obligated himself to pay a certain amount per month for the children and it is immaterial that the agreement was phrased as being contingent upon the outstanding loan balance.

Appellee argues that because the agreement was basically one involving property settlement only, the matter was properly before the district court rather than the family court. She argues the obligation incurred was not one of child support because the duty to pay was to virtually end when the loan balance was paid off by the husband, as opposed to continuing for as long as the children were minors and in need of support. We have examined the applicable Missouri statutes and have determined that in Missouri, as in this state, agreements and judgments involving child support are always subject to modification in accordance with the circumstances, regardless of any language to the contrary. Mo.R.S. § 452.325(6); Houston v. Snyder, 440 S.W.2d 156 (Mo.App. Springfield Ct. of App.1969). It has been specifically held in Missouri that an agreement as to the amount to be awarded as alimony or support and maintenance of the children is not a contract settling property rights and is always subject to further modification by the court. Cervantes v. Cervantes, 239 Mo. App. 932, 203 S.W.2d 143 (Springfield Ct. of App.1947).

Since the amount awarded in the judgment is subject to modification, regardless of the fact the parties agreed the obligation would virtually end when the husband paid off the disputed note balance, we have no difficulty in characterizing this matter as one of child support. As a child support matter it should have been brought in the family court. To avoid the hardship that would be caused if we merely dismissed the suit and forced plaintiff to refile, in the interest of justice we order this case remanded to the trial court and instruct the trial court to transfer it to the Family Court for the Parish of East Baton Rouge. We do so under the authority of La.Code of Civ.P. art. 932, which allows such a transfer when a declinatory exception has been sustained. The objection to subject matter jurisdiction comes under the heading of declinatory exception, although unlike the other objections listed there, it can be raised at any time in the proceedings, even on appeal. Piper v. Olinde Hardware & Supply Co., Inc., 288 So.2d 626 (La.1974). It may even be noticed by the court on its own motion. Louisiana Power & Light Company v. City of Houma, 229 So.2d 202 (La.App. 1st Cir. 1969), writ refused 1969.

For the foregoing reasons, the judgment of the trial court is vacated and the case is remanded to the trial court where it shall be transferred to the Family Court for the Parish of East Baton Rouge.

Assessment of costs is to await final disposition. '

VACATED AND REMANDED.

      . Counsel for appellee stated at the hearing that the correct amount of arrearages was $21,-600 and judgment was entered accordingly.

      . La.R.S. 13:1401(7) reads as follows:
      “There is hereby established the family court for the parish of East Baton Rouge, which shall be a court of record with exclusive jurisdiction in the following proceedings: ....

        (7) All actions for divorce, separation from bed and board, annulment of marriages, establishment or disavowal of the paternity of children, alimony and support, custody and visitation of children, as well as of all matters incidental to any of the foregoing proceedings, including but not restricted to the issuance of conservatory writs for the protection of community property, the awarding of attorney fees to the wife in judgments of divorce and separation, the cumulation of and rendering executory of alimony, the issuance of writs of fieri facias and garnishment under judgments of the court for alimony and attorney fees, jurisdiction of which was vested in the Nineteenth Judicial District Court for the parish of East Baton Rouge prior to the establishment of the family court for the parish of East Baton Rouge. The Nineteenth Judicial District Court for the parish of East Baton Rouge however, shall retain jurisdiction of all proceedings involving liquidation and partition of the community after a judgment of divorce or separation from bed and board.”

      . La.Code Civ.P. art. 932 reads in part as follows:
      ' “If the grounds of the objection cannot be so removed, or if the plaintiff fails to comply with an order requiring such removal, the action shall be dismissed; except that if it has been brought in a court of improper jurisdiction or venue, the court may transfer the action to a proper court in the interest of justice.”


source: Caselaw Access Project

author: WATKINS, Judge.

license: Public Domain

text:
    The AMERICAN INSURANCE COMPANY et al. v. Doize M. HOLLAND.
    No. 14128.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Rehearing Denied Aug. 5, 1981.
    Michael R. Daigle, New Orleans, for plaintiff-appellee.
    Bernard S. Smith, Covington, for defendant-appellant.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This suit involves the following causes of action arising from a motor vehicle accident: (1) by The American Insurance Company to recover sums to which it was subro-gated upon paying its named insured the sum of $1,454.69 under the collision coverage of its policy; (2) by Edwin Harvey as trustee of American to recover the sum of $749.40 paid by American to Harvey under the uninsured motorist clause of that policy; (3) by Phyllis Harvey as trustee of American to recover the sum of $3,856.80 paid by American to Mrs. Harvey under the uninsured motorist clause of that policy; and (4) by Edwin Harvey to recover the sum of $100.00 deductible under the collision coverage of said policy. Doize Holland and her husband Harold Holland, were named defendants. Mrs. Holland reconvened. The trial court rendered judgment in the amounts stated against only Mrs. Holland and dismissed the reconventional demand. Mrs. Holland appealed, and American and Harvey answered the appeal, seeking judgment against Harold Holland as well as Mrs. Holland. We affirm.

The attempted answer by American and Harvey to Mrs. Holland’s appeal is without legal effect as to Mr. Holland. This court is without jurisdiction over Mr. Holland, although the claim against him, if properly presented, might have had merit, for the reason that only Mrs. Holland appealed, and no appeal was taken from the judgment in favor of Mr. Holland. An answer to appeal is effective only as to an appellant. See LSA-C.C.P. art. 2133; Ogaard v. Wiley, 325 So.2d 642 (La.App. 3d Cir. 1975); Smith v. Girley, 242 So.2d 32 (La.App. 1st Cir. 1970).

On July 28, 1977, Mrs. Holland was driving a car owned by herself individually in a westerly direction on Caroline Street approaching Louisiana Highway 59 in St. Tammany Parish. She stopped at a stop sign which gives the right of way to Highway 59, and proceeded into the intersection. She struck an automobile proceeding in a southerly direction on Highway 59, which was driven by Phyllis Harvey and owned by Edwin Harvey, her husband, a passenger in the Harvey vehicle. Both of the Harveys sustained physical injuries, and the Harvey vehicle was damaged. Mr. Harvey was paid for damage to his automobile by American under collision coverage of his policy issued by that company, less the $100.00 deductible, and Mr. and Mrs. Harvey were both paid for their personal injuries, pain and suffering, and loss of wages under the uninsured motorist clause of that policy. The present lawsuit against Mr. and Mrs. Holland was then filed.

The Hollands assert many arguments in brief, almost all of which we are convinced, after careful review of the transcript of testimony, pleadings, and exhibits, and the applicable law, are totally devoid of merit, and deserve no written mention in this opinion.

We note that Edwin Harvey was awarded the sum of $749.40 for medical expenses, and pain and suffering. It is quite true that one portion of Mr. Harvey’s testimony, taken out of context, would seem to indicate that he was entitled to only $20.00 for medical expenses, and to no sum for pain and suffering. However, another portion of Mr. Harvey’s testimony indicates that he still suffers pain as a result of the accident. We cannot say that the trial court, which had the opportunity to view the witnesses on the stand, abused its “much discretion” or erred in allowing the sum of $749.40 as subrogated damages. LSA-C.C. art. 1934.

We affirm the judgment of the trial court, at the cost of Mrs. Holland.

AFFIRMED.


author: COLE, Judge. WATKINS, Judge

text:
    CITY OF BATON ROUGE and Parish of East Baton Rouge v. Pearl Price TULLIER et al.
    No. 14129.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Rehearing Denied Aug. 5, 1981.

      Walter G. Monsour, Jr., Parish Atty., Charles E. Pilcher, Asst. Parish Atty., Baton Rouge, for plaintiff-appellee City of Baton Rouge and Parish of East Baton Rouge.
    Steve M. Marks, Baton Rouge, for defendants-appellants Pearl Price Tullier, et al.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

The major issue in this expropriation case is how to divide the compensation awarded between the landowner and the tenant, where the tenant is also the expropriating authority. Two minor issues are also presented. The first is whether or not the trial court erred in accepting defendants’ expert’s appraisal of the subject property. The second is whether or not the defendants are entitled to attorney fees.

The facts giving rise to this litigation are as follows: In 1958 Benjamin Tullier and his wife, Pearl Price Tullier, as lessors, executed a lease of 10.02 acres of land fronting on Plank Road with lessee, Commercial Properties Development Corporation. The lease had a 25 year initial term with renewal options at 25 year intervals and was to end ultimately on October 31, 2057. The lessee was to pay $750.00 per month ($9,000 per year) and was specifically precluded from subordinating the landowner’s interest for financing of improvements. The lease further provided at the termination of the lease all improvements would become the property of the landlord and the lessee was obligated to return the improvements in good repair. The lease also contained a condemnation clause which will be discussed in detail later.

Commercial Properties built a Shopper’s Fair and a Kroger store on the site. In 1963 Commercial assigned the lease to Tan-son Enterprises, Inc. Because of changes in land use patterns the improvements were vacated sometime during the 1970s and the buildings stood deserted and vandalized. In 1979 the City of Baton Rouge and the Parish of East Baton Rouge (hereinafter referred to as the City-Parish) began negotiating with Tanson to acquire the lease. The City-Parish desired the site in order to house federally funded programs under the Comprehensive Employment Training Act (CETA) and the Equal Employment Opportunity Program (EEOP). The City-Parish paid Tanson $531,000 for the leasehold interest, including the existing structures which the City-Parish negotiator felt were worth approximately $500,000. After spending $3,446,780.34 to renovate the buildings, the City-Parish was informed the federal government would require it to have full title to the property before funding would be provided for the programs. The City-Parish’s offer to the landowners of approximately $100,000 was refused. The City-Parish then filed suit to expropriate. A partial summary judgment was rendered on the City-Parish’s right to expropriate and a trial was held on July 18, 1980 to determine the proper award.

Testimony at trial consisted of appraisals by the various experts. Plaintiff’s experts, Chester Driggers and Richard Bullard, appraised the land at values of $250,000 and $220,000 respectively. They used as their main comparable a tract of land “to the rear” of the subject tract, which had no frontage on Plank Road. Defendants’ expert, John LeJeune, based his evaluation on two other comparables, each having frontage on Plank Road, and estimated the land to be worth $654,700.

Mr. Kermit Williams, another expert called by defendants, testified the improvements (as renovated by the City-Parish) were worth $4,623,000. His estimate of the land value essentially was the same as that given by Mr. LeJeune.

Plaintiff complains the trial court erred in accepting Mr. LeJeune’s appraisal of land value. In its written reasons for judgment the trial court stated it was unimpressed with plaintiff’s appraisers because of their heavy reliance on a “comparable” having no frontage on Plank Road. The court was impressed with the credentials of Mr. LeJeune, found his comparables to be more appropriate and therefore accepted his appraisal as being accurate. As always, the trial court is granted a great deal of discretion in assessing the probative value of evidence and since we find no manifest error, we decline to disturb his findings on this issue.

The trial court rendered judgment in favor of the City-Parish and against the Tulli-ers, granting the ownership of the property to the City-Parish. In written reasons for judgment the trial court determined the various values to be as follows:

Value of the land: $ 654,700.00
Value of the improvements: +4,623,000.00
Total due landowner: $ 5,277,700.00
Less lessee's loss of use of the improvements; -4,616,990.10
Balance due landowners: $ 660,709.90

The trial court arrived at the figure representing the loss of use by the lessee by taking the present value of the improvements and subtracting the reversionary interest of the lessor, in the year 2057. (This assumes all options to extend the lease would have been exercised by the City-Parish.) Using this method, the trial court applied a 9% discount rate and figured the present value of the right to receive $4,623,-000 in 77 years is $4,623,000 multiplied by the inward co-efficient factor of .0013 which equals $4,616,990.10. Therefore, this amount was deducted from the total due the landowner and given as a credit to the City-Parish. The landowner was awarded the balance of $660,709.90.

Defendants appealed and plaintiff answered the appeal. Both parties argue the division of proceeds was not done according to the terms of article 17(d) of the lease. The pertinent parts of article 17 read as follows:

“(a) In the event the entire demised premises shall be appropriated or taken under the power of eminent domain by any public or quasi-public authority, this lease shall terminate and expire as of the date of such taking and the Tenant shall thereupon be released from any further liability hereunder.
“(d) There shall be such division of the proceeds and awards such (sic) condemnation proceedings as shall be just and equitable under the circumstances. Although title to the improvements placed by Tenant upon demised premises will pass to the Landlord, nevertheless for purposes of condemnation, the fact that the Tenant made such improvements on the demised premises shall be taken into account, and the depriviation (sic) of the Tenant of the use of such improvements shall, pro tanto, be an item of damage in determining the amount of condemnation award to which the Tenant is entitled.” (Emphasis added.)

There is much discussion in defendants’ brief about the proper interpretation of article 17(d). We agree with defendants that the lease was apparently drafted for the usual situation in which the lessee and the expropriator are two different entities. However, we also agree with the trial court’s assessment that even though the City-Parish occupies a dual role of lessee and expropriator, it cannot be denied any rights flowing from the lease agreement. These rights include compensation for damage due to deprivation of use of the premises caused by the expropriation. It is logical to compensate the City-Parish for being unable to use the premises, as lessee.

We find the trial court did not err in awarding the City-Parish, as lessee, a sum relative to the terminated use of the improvements. We differ, however, in that we do not find the sum awarded to be “just and equitable under the circumstances,” as required by article 17(d) of the lease. The following figures are illustrative of this point.

Total award (credit) granted to lessee for loss of use: $4,616,990.10
Amount expended by City-Parish ,
--to obtain leasehold interest: 531,000.00
—for improvements: 3,446,780.34
Total Output: $3,977,780.34
Credit granted: $4,616,990.10
Less amount expended: -3,977,780.34
Windfall to City-Parish: $ 639,209.76

We conclude it is equitable for the City-Parish to be reimbursed for all expenditures it made as lessee, but it is not entitled to make a “profit” from the expropriation proceeding. The landowner is contractually entitled to the total value of the land and improvements at the time of the taking, and the damage caused by the deprivation of use is necessarily sustained as of the same time. The “damage” to the lessee caused by the deprivation of use is the amount of the sums expended, not the value of ongoing of use of the property calculated over a period that might extend 77 years.

Several considerations weigh heavily in support of allowing the City-Parish credit for only the sums expended by it as lessee. The logical interpretation of article 17(d) is that the City-Parish is entitled to damages for deprivation of use, i.e., the act of being deprived of use, not for the value of loss of actual use over a period of time. Also, the method used by the trial court to compute lessee’s loss of use is of a highly speculative nature. It is difficult to assume the last two 25 year options of the lease would be exercised or that the discount rate used would be validated over such a long period of time (77 years). Such economic factors are obviously subject to instability.

A final, overriding consideration supporting an increased award to the defendants is the lack of affirmative evidence regarding the value of deprivation of use of the improvements, or of any other damage suffered by the City-Parish, as lessee, caused by condemnation. The burden to produce such evidence was imposed upon the City-Parish by the condemnation clause in the lease and none was offered by it. To the contrary, the defendants offered extensive evidence to show the residual values due them. Both of their appraisers testified at length as regards the value of the land and the value of improvements which they considered inured to the benefit of defendants. Although we do not agree with all facets of reasoning used by defendants’ appraisers, or with their bottom line figures, we do find that logic employed more closely results in a “just and equitable” division of the proceeds from the condemnation than does the invocation of the formula used by the trial court. Parenthetically, Mr. Williams felt the defendants were entitled to a total award of $2,150,450 and Mr. LeJeune felt the award should be $2,000,000, or at the very least, $1,544,400.

Accordingly, we decrease the “credit” given to the City-Parish by $639,209.76 and increase the award to the defendants-landowners by this same amount. This results in a modification of the judgment insofar as it grants the landowners the total sum of $660,709.90, by adding to that amount the sum of $639,209.76, making a total award of $1,299,919.66.

The last issue to be considered is whether or not defendants are entitled to reasonable attorney fees. La. R.S. 19:109 deals specifically with expropriation by municipal corporations and reads in pertinent part as follows:

“. . . If the trial judge decides in favor of the expropriating authority, then within thirty days after such decision, a jury shall be impaneled to determine the measure of compensation. Immediately after compensation has been determined, the plaintiff shall, upon motion of the defendant, present evidence as to the highest amount it offered the defendant for the property prior to trial on the merits. After hearing evidence on the issue, the court shall determine the highest amount offered. If the highest amount offered is less than the compensation awarded, the court may award reasonable attorney fees.”

Defendants’ attorney prayed for attorney fees in his answer to plaintiff’s petition. Judgment was signed on September 26, 1980, a motion for appeal was filed by defendant the same day and a motion for attorney fees was filed September 29, 1980. The trial court apparently declined jurisdiction over the matter since the motion for appeal had already been signed. La. Code Civ. P. art. 2088. The issue presented here is whether or not this court can award attorney fees based on the record, even though there has been no contradictory hearing on the matter.

Our brethren in the Second Circuit were recently faced with a similar issue. In Claiborne Elec. Cooperative, Inc. v. Garrett, 357 So.2d 1251 (La.App. 2d Cir. 1978), writ refused 1978, the defendants in an expropriation case sought to have the amount of attorney fees increased on appeal. Plaintiff contended defendants were not entitled to any attorney fees because compensation had been determined by a judge rather than a jury and because there had been no trial on a contradictory motion.

The Second Circuit noted (as is the situation in the present case) the defendants had petitioned for reasonable attorney fees but did not request a jury trial on issues of compensation. It held since the district judge was aware of the disparity between the amount offered by plaintiff and the compensation awarded, a trial of the contradictory motion would have been a useless exercise. The court stated:

“We hold defendant landowners are entitled to reasonable attorney fees in any case in which the highest amount offered is less than that obtained through the landowners’ judicial assertion of their rights. This interpretation of the statute does not do violence to its language.”

We therefore conclude defendants are entitled to reasonable attorney fees. The petition of the expropriating authority clearly stated the landowners had been offered approximately $100,000. The trial court awarded a total of $660,709.90, which we have increased to $1,299,919.66. In light of this great disparity, the defendants should be awarded reasonable attorney fees. Considering the complexity of the issues involved, the preparation, briefs and trial time, an award of $20,000 for attorney fees is appropriate. To avoid a remand, thereby conserving judicial time, we further modify the judgment appealed to make the award. La. Code Civ. P. art. 2164.

For the foregoing reasons, the judgment of the trial court is amended to increase the award to defendants from $660,709.90 to $1,299,919.66, and to cast the plaintiff for attorney fees in the additional sum of $20,-000. In all other respects the judgment of the trial court is affirmed.

Plaintiff is cast for costs, as provided by law.

AMENDED AND, AS AMENDED, AFFIRMED.

WATKINS, J., concurs and assigns reasons.

WATKINS, Judge

(concurring).

The trial court correctly states the governing legal principle to be that “The City-Parish may not benefit nor be denied any legitimate rights merely because it is both lessee and expropriating authority.” We must, therefore, consider the benefits due the City-Parish as lessee under Article 17(d) of the 1958 lease instrument without consideration that it is a public body with expropriating authority.

The trial court found the City-Parish entitled to a portion of the award based on the “value of its loss of use (as tenant presumably) of the improvements,” under Article 17(d). I do not believe that the City-Parish as lessee sustained any damage due to deprivation of use of the improvements by the taking, for the reason that but for the expropriation it would not be able to obtain the funds to operate the programs for which it declares the improvements are to be used. In addition the City-Parish neither alleged nor offered proof of any damages as lessee. Nor is there anything in the record to even indicate that the City-Parish could have used the improvements for some other purpose.

If we assume arguendo that the City-Parish is entitled to damages for deprivation of use, the effect of the trial court’s method of arriving at the value of the loss of use is to award the landowners only the sum of $6,009.90 for the value of the improvements at the termination of lease, notwithstanding the requirement of the lease that the lessee maintain the improvements in a good state of repair. Clearly this amount is grossly inadequate.

I believe a better way to accomplish a “just and equitable” division of the proceeds would be to follow the method dictated by Article 17(d) and thus to hold the City-Parish is entitled to credit for only those sums actually expended by it in obtaining the improvements, the quoted language in Article 17(d) being directly pertinent:

“Although title to the improvements placed by Tenant upon demised premises will pass to the landlord, nevertheless for purposes of condemnation, the fact that the Tenant made such improvements on the demised premises shall be taken into account. ...” (emphasis ours)

I,therefore, concur in the majority opinion.

      . The following persons were named as defendants: Pearl Price Tullier, Leola Tullier Davis, A. J. Tullier, Jr., James Joseph Tullier, Sr., Elliott J. Tullier, Sr., Juanita Martin, Herman C. Tullier, Sr., Clarence J. Tullier, John Hilary Tullier, Ruby Tullier Hartley, Leroy Tullier, Evelyn McGowan, Brenda Bankston Kraemer, Roxanne Bankston Allen, Benjamin J. Tullier, Jr., Corinne Tullier Landry, Gerald J. Tullier, Warren J. Tullier.

      . According to the trial judge, this figure was calculated using a concept advanced by Mr. LeJeune in his appraisal report and a co-efficient factor set forth in a textbook on real estate appraisal which was cited by Mr. Le-Jeune. While the report and an excerpt from the textbook are in evidence, we have been unable to locate and verify the referenced basis for the calculation.

      . It is significant that of the amount paid by the City-Parish for the leasehold interest, nearly ail of it represented the value of the old structures which, through renovations, resulted in new improvements valued at $4,623,000. In effect, the new improvements cost the City-Parish nearly four million dollars.

      . Instead of receiving a credit of $4,616,990.10 the City-Parish now receives a credit of $3,977,-780.34.

      . The applicable statute in Claiborne was La. R.S. 19:8, which deals with general expropriation cases and contains the identical language concerning the attorney fees as 19:109.


text:
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS v. Sterling BOUDREAUX, Jr.
    No. 14138.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Rehearing Denied Aug. 5, 1981.

      James C. Russell, Jr., and J. Bryan Miller, Jr., and Johnie E. Branch, Jr., Baton Rouge, for plaintiff-appellant, State of La., through the Dept, of Highways.
    Stanley L. Perry, Galliano, for defendants-appellees, Sterling Boudreaux, Jr. and Sterling Boudreaux, Sr.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an appeal from a judgment adverse to the State of Louisiana, through the Department of Highways (DOTD) rendered in an expropriation proceeding. We affirm.

Sterling Boudreaux, Jr., was incorrectly stated to be landowner in the State’s original petition filed December 18, 1975. The petition was amended by pleading ordered filed by the trial judge on December 6, 1979. The amended petition recited that Sterling Boudreaux, Sr., and Helen Hens-gens Boudreaux were the landowners. That latter recitation was correct, all parties agree. The trial court correctly found that the expropriation took place only upon its ordering the amended petition filed, on December 6, 1979.

These facts are well and clearly set forth in the trial court’s written reasons for judgment. We quote the trial court’s recitation of facts in full for purposes of this decision:

“On November 20, 1975, Sterling M. Boudreaux, Jr. executed an act of cash sale in favor of his father, Sterling Bou-dreaux, Sr., conveying to him for $18,-000.00 a certain tract of land situated in the Parish of Lafourche on the right or west descending bank of Bayou La-fourche in the Galliano community, lying on the north side of West 163rd Street (formerly known as Myrtle Street), which property measured 202.63 feet on West 163rd Street by a depth of 106 feet. On December 18, 1975, the State of Louisiana, through the Department of Highways, filed suit against Sterling Bou-dreaux, Jr. to expropriate a right-of-way across the above-described property for the relocation of State Highway Louisiana 1 from Golden Meadow to Larose, which is State Project Number 60-04-19. On that same date an order of expropriation was signed by this Court and the sum of $2,169.00 was deposited into the registry of the Court. The amount of land to be taken was 0.497 acres and the tract is shown as Parcel 27-9 on the Department’s map. This order of expropriation is recorded in Conveyance Book 555, Folio 367, under entry number 417180. Notice was issued by the Court to Sterling Boudreaux, Jr. in accordance with law, but the citation was returned dated December 29, 1975, and marked ‘Empty house’ by the process server.
On November 15, 1979, answer was filed by Sterling Boudreaux, Jr. in which he admitted his ownership of the property in question. On November 30, 1979, a First Supplemental and Amending Petition and a First Supplemental and Amending Order of Expropriation were filed by the Department of Highways, substituting Sterling Boudreaux, Sr. and Helen Hensgens Boudreaux as parties defendant in lieu of Sterling Boudreaux, Jr. On December 4, 1979, Sterling Bou-dreaux, Sr. and Helen Hensgens Bou-dreaux filed an answer admitting their ownership of the property and praying for awards substantially in excess of the amount deposited in the registry of the Court.
On December 6, 1979, this Court signed an order permitting the filing of the Supplemental and Amending Petition; signed the First Supplemental and Amending Order of Expropriation but made it effective only from December 6, 1979; and ordered that a pre-trial conference be held in this matter on February 25, 1980. On December 14, 1979, the notices of expropriation were served on Sterling Boudreaux, Sr. and Helen Hens-gens Boudreaux.
The pre-trial conference was held on February 25, 1980, and the parties stipulated all facts alleged by the plaintiff except the issues of quantum and the effective date of the transfer of title from the defendants to the State of Louisiana. The trial of this matter was originally scheduled for April 28, 1980, but on joint motion of the parties it was continued until June 17, 1980, at which time it was held and completed.”

The expropriation took place under the authority of LSA-R.S. 48:441 et seq., entitled Expropriation By Declaration of Taking and commonly known as the “Quick Taking” statute. The principal issue is whether the expropriation and vesting of title in the DOTD took place on the date of the filing of the original petition for expropriation and deposit in the name of Sterling Boudreaux, Jr., December 18, 1975, or only upon the filing of the amended petition as permitted by order of the trial court dated December 6, 1979, and the issuance of an amended order of expropriation on that date. The original petition named the incorrect party, Sterling Boudreaux, Jr., as defendant, and the amended petition named the correct parties, Sterling Boudreaux, Sr. and Helen Hensgens Boudreaux.

An expropriation is in the nature of an in rem proceeding. Garber v. Phillips Petroleum Company, 146 So.2d 518 (La. App.3d Cir. 1962). However, Constitutional and statutory rules regulate and limit the manner in which expropriation may be effected. There are several expropriation statutes in this state. LSA-R.S. 48:441 et seq. is only one of those expropriation statutes. If expropriation is made under this statute the statutory provisions must be strictly complied with as only then does the vesting of title in the State take place under LSA-R.S. 48:445, because, as was said in State v. Bordages, 156 So.2d 617 (La. App.3d Cir. 1963):

“[I]f the Department of Highways obtains an order of expropriation without complying with the provisions of Act 107 of 1954, then its title under such an order could not be said to have been ‘acquired under these provisions,’ and the Department would not be entitled to the protection against divestiture of title as provided in LSA-R.S. 48:460.” (156 So.2d 617, 620)

Under this expropriation statute, title vests in the Department only upon the making of a deposit for the “use and benefit of the persons entitled thereto. . . . ” LSA-R.S. 48:445. That statutory provision, read in full, states as follows:

“Upon the deposit of the amount of the estimate in the registry of the court, for the use and benefit of the persons entitled thereto, the clerk shall issue a receipt showing the amount deposited, the date it was deposited, the style and number of the cause, and the description of the property and property rights, as contained in the petition. Upon such deposit, title to the property and the property rights specified in the petition shall vest in the department and the right to just and adequate compensation therefor shall vest in the persons entitled thereto.”

The “persons entitled thereto” must be either the record owner or some other person legally the owner but not the titleholder of record. There is no one else who would be entitled to the amount deposited. This view is dictated by a consideration of Art. 1, Sec. 4 of the Louisiana Constitution of 1974, which reads in part as follows:

“Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into the court for his benefit.” (emphasis added)

Thus, it is clear that the deposit must be made for the benefit of the “owner” either record or legal. A deposit for the benefit of a third person can have no legal efficacy.

The DOTD has failed to show that Sterling Boudreaux, Jr. was the legal owner at the time the deposit was made on December 18, 1975. He was clearly not the record owner. Since the law requires that the expropriation statute utilized must be strictly followed (see Bordages, supra) we see that the making of the deposit did not vest title in the state, as Sterling Bou-dreaux, Jr. was not the person entitled to the deposit, the legal or record owner. He was, at the time of the deposit, an outsider, a third party. Only when the petition was corrected to show the record owners, who were also the legal owners, was title vested in the Department.

The DOTD contends that if LSA-R.S. 48:445 is taken literally, vesting takes place only when the Clerk issues a receipt reflecting the deposit. The DOTD contends further that since the deposit in this case was made “for the use and benefit of the persons entitled thereto” the statute was substantially complied with even though the petition for expropriation did not name either the legal or record owner of the property being taken. However, we note that the statute states, “Upon such deposit, title to the property . . . shall vest in the department....” “Upon such deposit ...” clearly indicates title vests upon the making of the deposit for the benefit of the person who is entitled thereto as legal or record owner, not that title vests when the receipt is issued.

Thus, title vested in DOTD upon the court’s permitting the amended petition to be filed on December 6,1979, and issuing on that date an amended expropriation order, as only then did the deposit take effect for the benefit of the true owners. The value of the property must be ascertained as of that time, December 6, 1979.

QUANTUM AND ATTORNEY’S FEES

The trial court’s determination of quantum and attorney’s fees is correct, and well stated, and we quote from its written reasons on those two matters:

“HI. QUANTUM
Counsel for the plaintiff, on instructions from his superiors, declined to present any evidence on the value of the property taken as of December 6, 1979. The only evidence presented by the plaintiff was the testimony of the appraisers, L. J. Roy and Peter J. Talluto showing December 18, 1975 values for the property-
The defendants introduced the testimony of Larry D. Weidel, a licensed realtor, who indicated that West 163rd Street is a fifty foot dedicated right-of-way street maintained by the Lafourche Parish Police Jury and is blacktopped to within 600 feet of the property. The street has a shell road surface to within 200 feet of the portion taken for the highway right-of-way. A single family dwelling is located 200 feet from the subject property and utilities are extended to that residence. The property is partially cleared and well drained and is in an area where there has been substantial development in recent years. The highest and best use of this property is for single family residences. In the neighborhood of this property there are homes ranging in value from $15,000.00 to over $100,000.00. School, churches, medical and shopping facilities, and a post office are nearby.
Mr. Weidel considered three relevant comparable sales in the immediate vicinity in reaching his market approach valuation for the property. The first was the sale by Sterling Boudreaux, Jr. to Sterling Boudreaux, Sr. of $18,000.00 or $30.00 per front foot previously discussed. The second was a sale by Champ Service Company to the Department of Transportation and Development on February 14, 1979, of a tract of land directly across the street from the subject property. The purchase price was $5,857.00 for a tract measuring 202.63 feet by 108 feet, or $28.90 per front foot. The third comparable was a sale dated September 11, 1979, by Moise Galliano to Clifton Terre-bonne of a lot 100 feet by 107 feet for $4,500.00, or $55.00 per front foot, which lot is immediately adjacent to the subject property. Mr. Weidel also considered four other comparables in the South La-fourche area but they are not in such immediate proximity as the comparables above mentioned. Mr. Weidel was of the opinion that in December of 1979 the value of the property taken was $40.00 per front foot or $8,105.20. Since his opinion is the only one before the court concerning value in 1979 and since it appears to be based on relevant compara-bles and is realistic in view of the property situation in the South Lafourche area (State, Department of Highways v. Terrebonne, 349 So.2d 936 (La.App. 1st Cir., 1977) (writs refused, 351 So.2d 166 (La., 1977)), this Court will accept it as the proper valuation in this case.
IV. ATTORNEY’S FEES
The amount deposited in the registry of the Court was $2,169.00. At the trial in this matter the plaintiff conceded that this valuation was not valid because it introduced the testimony of Mssers. Roy and Talluto who fixed values in 1975 at more than double this amount. Since the amount of the award in this case exceeds the amount of the deposit, the defendants are entitled to a reasonable attorney’s fee. R.S. 48:453. In accordance with State, Department of Highways v. Terrebonne, supra, this Court has considered the services performed by the attorney for the defendants under the eye of the Court and after reviewing the record in this matter will fix an attorney’s fee of $500.00.”

The judgment of the trial court is affirmed, all costs to be borne by appellant.

AFFIRMED.

      . In his answer Sterling Boudreaux, Jr., did not admit he owned the property in question. He merely admitted the State’s allegation that the State believed he owned the property. Thus, all that Sterling Boudreaux, Jr. admitted was that the State, was in good faith.

      . Since expropriation proceedings are in derogation of the common right of individuals to own property, the law governing these proceedings must be strictly construed and the proceedings highly scrutinized so that a property owner is afforded every opportunity to protect his property interests consistent with law and equity. State, Etc. v. Jeanerette Lumber & Shingle, 350 So.2d 847 (La.1977).


author: LOTTINGER, Judge.

text:
    Ethel Rutland TRAVIS et al. v. LAKE SUPERIOR PILING COMPANY et al.
    No. 14147.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Rehearing Denied Aug. 5, 1981.

      Charles M. Reid, Amite, for plaintiffs.
    Charles G. Walker, Hammond, for defendant Lake Superior Piling Co.
    M. LaMarr Clemons, Amite, for defendant Clemons Brothers Lumber Co.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a boundary action. The plaintiffs, Ethel Rutland Travis, Gary Virgil Travis and Gilbert Hardy Travis, claim ownership by 30 years acquisitive prescription of a 42.8-acre fenced in pinewood “belly land” tract in Tangipahoa Parish. The area, which abuts plaintiff’s property on the southwest border, is encircled by a fence which has been in existence more than 45 years. The defendants, Lake Superior Piling Company and Clemons Brothers Lumber Company, are record owners of the disputed land and timber and of the property surrounding the “belly land” on three sides. Plaintiffs seek to have the fence made the boundary between their property and defendants’.

In written reasons for judgment the trial judge found that the fence and road constitute a “well defined boundry [sic] to the property” and have been in existence for more than 80 years. The court held that the plaintiffs and their ancestors in title possessed the property as owners by exercising various acts of possession — maintaining the fence, clearing the land around the fence, attending to diseased trees and grazing cattle. “This would be about as much as an owner could do to possess the type of property in question,” he commented. Because the plaintiffs’ two previous ancestors in title also possessed the disputed area as owners, the plaintiffs were allowed to tack possession to make up the requisite 30-year prescriptive period.

The trial judge also found that the defendants’ activities, primarily foot patrols and selective logging, came long after the 30-year prescriptive period had run. There was therefore no interruption of prescription. The final judgment established the fence as the boundary between the immovable properties and declared plaintiffs owners of the “belly land.” The defendants’ reeonventional demand for trespass damages was dismissed, and this appeal ensued.

The issues on appeal are whether the boundary action is the proper vehicle for assertion of ownership rights; whether plaintiffs sustained their burden of proof on the issue of prescriptive ownership; and whether any of the defendants’ activities interrupted prescription.

OWNERSHIP AND THE BOUNDARY ACTION

The defendants first argue that the boundary action is not the proper procedural vehicle for determination of ownership rights. They cite no law in support of this contention.

Under La.C.C.P. art. 3693, either as amended in 1977 or as originally enacted in the Code of Civil Procedure, the trial court in a boundary action is required to fix the boundary in accordance with “the ownership or possession” or “the rights and titles” of the parties. The official comment to Article 3693 as it originally appeared in the Code of Civil Procedure states:

“This article makes a significant change in the law. The language ‘in accordance with the rights and titles of the parties’ was inserted in the above article to overrule legislatively the cases holding that questions of title and ownership cannot be determined in an action of boundary.”

The 1977 amendment to La.C.C.P. art. 3693, substituting the words “ownership or possession” for the words “rights and titles,” does not change the law. See comment, La.C.C.P. art. 3693, as amended by Act 169 of 1977.

Likewise, the Louisiana Civil Code indicates that ownership can be a relevant inquiry, and an object of judicial decree, in a boundary action. La.C.C. art. 792 states that: “The court shall fix the boundary according to the ownership of the parties . . . . ” La.C.C. art. 794 provides: “When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles. If a party and his ancestors in title possessed for thirty years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds.” These Civil Code Articles, enacted in 1977, make no change in the previous law, according to the official comments. See also former La.C.C. art. 852.

Thus, under both the Code of Civil Procedure and the Louisiana Civil Code the question of ownership can be determined in a boundary action.

The Louisiana Supreme Court recently held that possession to a physical boundary for 30 years, like the acquisitive possession of 30 years under Article 3475 of the Civil Code, entitles the possessor to the ownership of the property possessed. “An obvious public interest requires that boundaries established for more than thirty years should not be disturbed, and the law so provides.” William T. Burton Industries, Inc. v. Wellman, 343 So.2d 996 (La.1977). See also Sessum v. Hemperley, 233 La. 444, 96 So.2d 832 (1957).

In the more recent case of Fruge v. Lyons, 373 So.2d 220 (La.App. 3rd Cir. 1979), the court held that former La.C.C. art. 852 allows ownership to be determined on the basis of 30 years acquisitive prescription. Fruge v. Lyons was a petitory action but the court noted that the boundary prescription provided in former Article 852 may be pleaded not only in boundary actions, but also in petitory actions. See also Ledoux v. Waterbury, 292 So.2d 485 (La.1974).

Professor A. N. Yiannopoulos states that: “One who claims the ownership of a strip of land adjoining the land of a neighbor may bring the petitory action or the action of boundary, or he may cumulate the two. It is true that the burden of proof is different in each of the two actions but when ownership is claimed the proof of ownership is the same.” 2 Louisiana Civil Law Treatise — Property Section 225, page 600 (2nd Edition 1980, West).

Thus, when the boundary action is brought to set a boundary at a visible bound which has been in existence for more than 30 years and which encloses land outside of the record title of the person seeking to have the boundary established, proof of ownership is a necessary prerequisite to establishing the boundary. Unless the plaintiff in such an action can prove that he and his predecessors in possession have acquired the ownership of the property by 30 years acquisitive prescription, he cannot prevail in the boundary action. In other words, under either former La.C.C. art. 852 or under present Article 794 ownership must be proved before the boundary can be established. The proof required under either of those articles is the same proof that would be required to prove ownership in a petitory action based on the acquisitive prescription of 30 years. See Yiannopoulos, supra.

EVIDENCE OF POSSESSION

The defendants also contend that the plaintiffs did not prove that they possessed the property as owners. They contend, alternatively, that acts conducted by them or their agents were sufficient to interrupt the possession of the plaintiffs. These are both factual questions. The plaintiffs at trial introduced the testimony of a number of persons who have been familiar with the “belly land” property for more than 45 years. The testimony of these witnesses proved that the fence was constructed more than 30 years ago and has been maintained by the plaintiffs and their predecessors in possession since it was built. One of the plaintiffs, Gary Virgil Travis, testified that he cleared a path around the fence in order to facilitate maintenance. The testimony also showed that the Travis-es conducted dairy operations, primarily cattle grazing, in the fence enclosed area. Some selective timber cutting was engaged in by the Travises and their predecessors in possession, and Gary Travis’ father placed posted signs along the fence.

We agree with the trial court that these acts of possession were probably about as much as the Travises and their predecessors in possession could do to show they were possessing the property as owners. The fence is clearly a visible bound separating the property of the plaintiffs and the defendants. The plaintiffs and their ancestors in title have possessed the area encircled by the fence for more than 30 years without interruption and they are therefore entitled to have the boundary fixed along the fence line.

The defendants’ contention that some of their activities interrupted the plaintiffs’ possession is not borne out by the evidence in the record. As the trial court noted any activities conducted by the defendants that could have been sufficient enough to interrupt the plaintiffs’ possession were conducted long after the plaintiffs had established prescriptive ownership of the property.

Therefore, for the above and foregoing reasons, the decision of the trial court is affirmed. The defendants will pay the costs of this appeal.

AFFIRMED.

      . This was a term used by Ethel Rutland Travis to describe the fenced in area. On a map, the area resembles a bloated belly hanging from the stomach of the land.


author: PONDER, Judge.

text:
    Leroy BANKSTON and Gerald Allen v. The ESTATE of Sam BANKSTON et al.
    No. 14163.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Rehearing Denied Aug. 5, 1981.
    A. C. Powell and Michael R. Tregle, Hammond, for plaintiffs.
    Ronald A. Curet, Hammond, for defendants.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Defendants appealed from a judgment in favor of plaintiffs ordering the conveyance of real property in accordance with a lease-option to purchase.

The issues are: ambiguity of the lease-option and timeliness of defendants’ exercise of the option and notice thereof.

We affirm.

Plaintiffs and defendant, Sam Bankston (now deceased), and his wife entered into a lease-option agreement for a twenty-four month term commencing May 1, 1976 and ending April 30, 1978. The pertinent parts of the lease-option agreement read as follows:

“As further consideration of the monthly rental, Lessor agrees to grant to Lessees the option to purchase the above described property and movables for $68,-950.00. In the event that Lessees decide to exercise the option, they shall be given credit for the rental paid up to the point of the exercise of the option, Less and Except therefrom six (6%) per cent simple interest as calculated on the purchase price $68,950.00.
“Lessees may exercise the option any time within the twenty-four (24) month period. Lessor is responsible for transferring a merchantable and clear title to Lessees. In the event that any title work is necessary to clear the title, said title work shall be done at the expense of Lessor-Vendor.
“In the event Lessees desire to exercise their option as granted herein, they must notify Lessor at Route 1, Box 223, Independence, Louisiana, by ordinary mail, thirty days prior to said sale.
“It is understood between the parties that if the Lessee abandons the lease or violates the lease-purchase terms, they thereby forfeit their rights to the option.
“Lessor-Vendor, Sam Bankston is given permission to live in the home located on the above-described property during this entire lease period, however, he agrees to leave the home within thirty (30) days from the passing of the act of sale.”

On April 27, 1978, plaintiffs mailed defendants written notice of their desire to exercise the option, designating May 26, 1978 as the date upon which to pass the act of sale. The notice was received by defendants May 1, 1978. Defendants refused to convey the property, claiming plaintiff’s attempt to exercise the option was untimely. Plaintiffs then filed suit for specific performance which the trial court granted.

Defendants interpret the agreement to require the act of sale be passed within the twenty-four month lease term. Citing Standard Oil Co. of Louisiana v. Milholland, 167 La. 707, 120 So. 59 (La.1929), they argue the phrase “exercise the option” means to purchase the property during the term of the lease. We find Standard Oil distinguishable. There, the court stated the privilege granted the lessee was to actually purchase the property during the lease term. Here the agreement grants the lessee the right to exercise the option during the lease.

An option is a binding offer for a stipulated time which, when accepted, ripens into an agreement to sell which may be specifically enforced by either party. LSA-C.C. Art. 2462; Moresi v. Burleigh, 170 La. 270, 127 So. 624 (La.1930). We interpret the phrase “exercise the option” to mean an acceptance of the offer. Plaintiffs’ written acceptance tendered to defendant was sufficient to “exercise the option”. Kinberger v. Drouet, 149 La. 986, 90 So. 367 (La.1922).

Defendants next claim the notice provision of the lease-option is ambiguous. Relying on Mrs. Bankston’s testimony that she “was looking for a pay off within twenty-four months”, they argue the agreement must be interpreted to require the act of sale be passed within the lease term. Citing LSA-C.C. Arts. 1957 and 1958, they contend that because the document was prepared by plaintiff’s attorney any ambiguity in the instrument must be construed against the plaintiffs. Defendants’ claim is without merit. Although we agree that, standing alone, the notice provision may be susceptible of more than one interpretation, when read with the entire agreement, its meaning is clear. LSA-C.C. Art. 1955. Lessees are obligated to accept the offer of sale within the twenty-four month lease term, if at all, and give defendants’ thirty days notice prior to passing of the act of sale.

Defendants next contend that even if plaintiff could validly exercise the option by accepting the offer of sale, that acceptance was untimely. As noted above, plaintiffs’ notice of acceptance was mailed April 27, 1978 and received by defendants May 1, 1978. The lease expired April 30, 1978. Defendants argue that the acceptance must have been communicated to them by April 30, 1978.

By the terms of the contract the acceptance was to be communicated by ordinary mail. We believe plaintiffs’ posting of the letter of acceptance April 27,1978 perfected the option agreement. LSA-C.C. Art. 1802.

For the above reasons, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.

      . LSA-C.C. Art. 1802:
      “He is bound by his proposition, and the signification of his dissent will be of no avail, if the proposition be made in terms, which evince a design to give the other party the right of concluding the contract by his assent; and if that assent be given within such time as the situation of the parties and the nature of the contract shall prove that it was the intention of the proposer to allow.”


text:
    Imogene Sweeney ABNEY v. CONTINENTAL CASUALTY COMPANY.
    No. 14174.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Rehearing Denied Aug. 5, 1981.
    Alvin D. Singletary, Slidell, for plaintiff-appellee.
    John H. Musser, IV, John J. Farrell, Jr., New Orleans, for defendant-appellant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit for insurance proceeds allegedly due under a policy of life insurance issued to the late Robert H. Abney, Sr. The suit was filed by Imogene Sweeney Abney, wife of the deceased, against Continental Casualty Company, a foreign insurance corporation. From a default judgment in favor of the plaintiff, the defendant brought this devolutive appeal.

The thrust of the defendant’s contention on appeal is that Mrs. Abney failed to prove by a preponderance of the evidence her entitlement to double indemnity proceeds of $75,000.00 under the insurance policy. Among other things, Continental claims that Mrs. Abney failed to show that she was the beneficiary under the insurance policy.

A presumption of correctness attaches to a default judgment. Ascension Builders, Inc. v. Jumonville, 262 La. 519, 263 So.2d 875 (1972). However, this is only a prima facie presumption which may be overcome by evidence or the lack thereof in the record. Ashy v. Cosmopolitan Credit & Investment Corporation, 365 So.2d 1171 (La. App. 3rd Cir. 1978). This record contains in addition to the pleadings the transcription of the testimony taken at the confirmation of the default judgment.

Mrs. Abney alleged in her petition, and testified at trial, that she was the wife of Robert H. Abney, Sr. and that she was his universal legatee under Mr. Abney’s last will and testament. However, nowhere in her petition and nowhere in the testimony taken at the confirmation of default was there anything to show that Mrs. Abney was the beneficiary under the insurance policy. The fact that she is her husband’s universal legatee under his last will and testament does not necessarily make her the beneficiary under the insurance policy. Likewise, no evidence was introduced to show that Mr. Abney’s estate was named his beneficiary under the insurance policy. There is simply a lack of evidence in the record to show who is the beneficiary under the policy.

To make out a prima facie case for recovery of insurance proceeds under a life insurance policy, the plaintiff seeking the benefits must show that he or she is entitled to the proceeds by virtue of being the beneficiary or by being entitled to the proceeds in some other manner. This Mrs. Abney has failed to do. It is well settled in Louisiana that insurance law is sui generis and, as such, an insurance contract is not subject to the ordinary rules which govern dispositions mortis causa.

With the reversal, this matter is now in the same posture as if the confirmation of default had never been taken, and “the defendant may file his answer at any time prior to confirmation of a default judgment against him.” La.C.C.P. art. 1002.

Therefore, for the above and foregoing reasons, the decision of the trial court is reversed. This case is remanded for further proceedings consistent with the views expressed herein. Assessment of costs of this appeal and of the trial court proceedings will await the outcome of this case on remand. REVERSED AND REMANDED.


author: EDWARDS, Judge.

text:
    Karen CROCHET v. MARYLAND CASUALTY INSURANCE COMPANY, State Farm Mutual Automobile Insurance Company, Louisiana Farm Bureau Mutual Insurance Company, Clara P. Verdin, and James W. Verdin, Sr. Janice ROBICHAUX and Bernard Robichaux, Jr. v. MARYLAND CASUALTY INSURANCE COMPANY, State Farm Mutual Automobile Insurance Company, and James W. Verdin, Sr.
    Nos. 14181, 14182.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Rehearing Denied Aug. 5, 1981.

      Rudolph D. Hargis, Jr., Houma, for plaintiffs and appellants.
    Leopold B. Babin, Stanwood R. Duvall, Jr., Houma, for defendants and appellees, Maryland Cas. Co. and James W. Verdin, Sr. and Clara Verdin.
    Jerry H. Schwab, Houma, for defendant and appellee State Farm Mut. Auto. Ins. Co.
    David Mitchell, New Orleans, for defendant and appellee Southern Farm Bureau Cas. Ins. Co.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

At 5:30 P.M. on September 19, 1978, an automobile accident occurred at the intersection of East Prospect and East Park streets in the city of Houma. Clara P. Verdin and Janice Crochet Robichaux were the drivers. Karen Crochet was a guest passenger in the Robichaux vehicle. Both Crochet and Robichaux were injured.

Alleging that the negligence of Clara Verdin had caused the accident, Karen Crochet brought suit (No. 14181) against Clara P. Verdin; James W. Verdin, Sr., the husband of Clara Verdin; Maryland Casualty Insurance Company, the Verdins’ liability carrier; State Farm Mutual Automobile Insurance Company, the uninsured motorist carrier of the Robichaux’s; and Louisiana Farm Bureau Mutual Insurance Company, Crochet’s own uninsured motorist carrier. Plaintiff sought $305,000, legal interest and all costs.

In a separate action (No. 14182), Janice Crochet Robichaux, the sister of Karen Crochet, and her husband, Bernard Robichaux, Jr., brought suit against the Verdins, Maryland Casualty Insurance Company and State Farm Mutual Automobile Insurance Company. Janice Crochet Robichaux sought $175,000 while Bernard Robichaux sought $12,775 on behalf of the community. Plaintiffs also prayed for legal interest and all costs.

In Karen Crochet’s suit, Maryland Casualty named Janice Robichaux and her insurer, State Farm, as third party defendants. Maryland Casualty alleged that the accident was solely due to Janice Robichaux’s negligence or that, in the alternative, the accident was caused by both Janice Robi-chaux and Clara Verdin, in which case contribution was sought from Robichaux and her insurer, State Farm.

In further pleadings filed in the Crochet suit, both State Farm and Southern Farm Bureau named the Verdins as third party defendants.

In the Robichauxs’ case, Maryland Casualty denied liability and, alternatively, pled the contributory negligence of Janice Robi-chaux. Additionally, State Farm named the Verdins as third party defendants.

On November 12, 1979, the two separate cases were ordered consolidated. Trial was by jury and was divided into two parts, liability and damages.

At the close of evidence on the matter of liability, the jury was given interrogatories which were answered as follows:

”1. Do you find the defendant, Mrs. Clara Verdin, was negligent in this accident? Yes X ’no_
2. If your answer to Interrogatory No. 1 is "yes", do you find that her negligence was a proximate cause of the accident? Yes X No_
3. If your answer to Interrogatories No. 1 or 2 is "yes", do you find that Mrs. Janice Crochet Robichaux was negligent in this accident? Yes_ No_X
4. If your answer to Interrogatory No. 3 is "yes", do you find her negligence was a proximate cause of the accident? Yes_ No X
5. If your answer to Interrogatories No. 3 and 4 is "no", do you find that Mrs. Janice Crochet Robichaux was contributority negligent in this accident? Yes X No
6. If your answer to Interrogatory No. 5 is "yes", do you find that her contributory negligence was a proximate cause of the accident? Yes X No_
7. Do you find that at the time of the accident Mrs. Clara Verdin was on a mission or acting for the benefit of the community of acquets and gains existing between her and her husband, Mr. James W. Verdin, Sr.? Yes_ No X "

The trial court, during a subsequent and lengthy conference in chambers, decided that the jury findings as to interrogatories 5 and 6 were “clearly wrong” and “not in any way supported by the evidence.” The answers to interrogatories 5 and 6 were therefore stricken from the record, following which the trial court instructed the jury to award damages to Janice Crochet Robi-chaux if the jury were convinced plaintiff had proven same.

At the conclusion of evidence pertaining to damages, general verdicts awarding $1,000 to Janice Crochet Robichaux and $12,600 to Karen Crochet were returned. All plaintiffs have appealed. Maryland Casualty and the Verdins have answered the appeal.

It is clear that the interrogatories given to the jury were improper and confusing. Although two separate cases were consolidated for trial purposes, the acts on which liability was predicated were the same. Essentially, since Janice Crochet Robichaux was found not negligent, she could not possibly have been found contributorily negligent. That the jury arrived at such an irreconcilable result is proof of their confusion. Interrogatories 5 and 6 should have been deleted as was suggested by plaintiff’s counsel.

LSA-C.C.P. Art. 1812 provides in part:

“When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, the court shall not direct the entry of judgment but may return the jury for further consideration of its answers or may order a new trial.”

The trial court neither returned the jury for further consideration nor ordered a new trial. Rather, evidence as to damages was heard. Because it is now impossible to determine exactly what the jury intended or how badly they were confused and because the jury rendered a verdict in favor of Janice Crochet Robichaux despite having found her contributorily negligent (which finding the trial court was not free to ignore under LSA-C.C.P. Art. 1812), we must conclude that the interrogatories as propounded were reversible error. Woods v. Cumis Insurance Society Inc., 364 So.2d 213 (La.App. 4th Cir. 1978).

Despite reversible error, the entire suit was heard and this court has the entire record for review. Based on judicial efficiency and the reality of fact review, we decide the case. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975).

Taken as a whole, the record reveals that just prior to the accident, Clara Verdin was driving her car in a southerly direction on East Park Street while Janice Crochet Ro-bichaux was headed in a northerly direction on the same street. At the intersection of East Prospect Street, Mrs. Verdin, without significantly slowing down, attempted to turn left across the lane occupied by the Robichaux car, but the vehicles collided. The right front of Mrs. Verdin’s car was damaged, whereas the entire front of the Robichaux vehicle was damaged.

We find that this accident was caused solely by the negligence of Clara P. Verdin and that neither Karen Crochet nor Janice Crochet Robichaux was negligent in any way. Thus, the only remaining issue is damages.

Janice Robichaux suffered injuries when her head struck the windshield at the moment of impact. Dr. Stephen Heilman, who saw her two days later, noted as symptoms headaches, sore neck, contusions, and an abrasion on the skull with a temporary loss of some hair. Dr. Heilman’s diagnosis was a mild cervical strain (as contrasted with a moderate or severe strain) and he prescribed muscle relaxants and analgesics.

Dr. Christopher E. Cenac, an orthopedic surgeon, first saw Robichaux eight days after the accident. His diagnosis was a “resolving acute cervical and lumbosacral strain” which he characterized as “mild.” Dr. Cenac testified that Robichaux could expect intermittent pain from a soft tissue injury to last almost two years. He discharged the patient because she had no orthopedic mechanical findings or neurological deficits.

Robichaux went to Dr. Richard Whitney, a chiropractor, from December 8, 1978, to June 14, 1979, because she had backache, headache, and neck pain. Dr. Whitney adjusted her spine until she was symptom free.

Dr. Dexter Gary, an orthopedic surgeon, first saw Robichaux on August 9, 1979. She complained of dizziness and headaches. Dr. Gary prescribed exercises to strengthen the neck musculature.

Dr. W. J. Hagen, an otorhinolaryngologist, saw Robichaux on September 11, 1979, nearly one year after the accident. She complained of dizziness. Dr. Hagen made a diagnosis of labyrinthitis, an upset of the balance portion of the inner ear. Dr. Ha-gen testified that the labyrinthitis could have been caused by the accident. He further testified, however, that he had treated Robichaux on May 8, 1978, for a sore throat and ear infection of two months duration and admitted that labyrinthitis can be caused by any bacterial or viral infection settling in the labyrinth. After the September 11, 1979, visit, Dr. Hagen treated Robichaux with antihistamine to cut down on stimulations causing dizziness. When Robichaux reported on November 13, 1979, that she was no longer dizzy, Dr. Hagen told her to stop the drugs.

In May of 1980, Robichaux saw Dr. Frank Norman, another otorhinolaryngologist. She complained of dizziness, nausea and ringing in the ears. Dr. Norman diagnosed inner ear balance problems and a slight loss of hearing. His prognosis was good with the possible exception of balance problems. Dr. Norman assumed that the problems originated with the accident but, like Dr. Hagen, he conceded that viral infection, drugs and even aspirin could also cause the symptoms. He also testified that since Ro-bichaux had first complained of dizziness one year after the accident and then had waited another year to see a second physician for the same problems, those problems might have been due to a cause other than the accident.

We find Janice Robichaux to have suffered a mild cervical strain together with contusions and a skull abrasion. Plaintiff has not shown that her mild balance problem was more likely than not caused by the accident. We therefore fix general damages at $5,000.

Karen Crochet suffered a whiplash injury in the accident. Dr. Heilman first saw her on September 21, 1978, and treated her neck and head pain with a soft cervical collar. Finding that she was recovering and that she had no muscle spasm, he discharged her in two weeks.

Crochet first saw Dr. Richard M. Landry, an orthopedic surgeon, on October 24, 1978. She had limited spinal motion, swelling and tenderness in the shoulder, and mild muscle spasm in the lower back. Dr. Landry diagnosed a fracture of the L-4 vertebral body but found no injury to the cervical spine. He also diagnosed a shoulder strain. To give the fracture time to heal, Dr. Landry prescribed conservative treatment which consisted of wearing a corset and sleeping on a firm surface. On December 21, 1978, Crochet had normal motion of the spine and no neck complaints. An x-ray showed the fracture healing well.

Crochet’s next visit to Dr. Landry was on July 19, 1979. During the interim, Crochet had received spinal manipulation from Dr. Whitney until she was symptom free. (Dr. Whitney described Crochet’s spinal troubles as “a congenital problem.”) On July 19, Dr. Landry found Crochet’s fracture had healed. On August 24, 1979, Crochet told Dr. Landry that she only had occasional pain. Her exam was “completely normal” and Dr. Landry prescribed certain exercises. On September 24, 1979, Crochet stated that her back felt much better. X-rays showed the fracture to be all but healed.

On April 16, 1980, Crochet again visited Dr. Landry complaining of pain in the buttock area. X-rays revealed a narrowing of the L-5 disk. Dr. Landry felt “that the particular condition was normal for her.” He advised Crochet to limit her activities.

On July 16, 1980, at the time of trial, Crochet again saw Dr. Landry and complained of back pain. Her examination, however, was normal with no neurological findings, no muscle spasms and no neck pain.

Dr. Landry testified that the L-5 disk narrowing might have been aggravated by the accident and stated that Crochet had suffered a 10% disability. He suggested that Crochet’s problems might increase with age and that surgery might someday be needed. On cross-examination, Dr. Landry conceded that there was no present need for surgery, only a possible future need, and that plaintiff “could do nearly everything she did before.” Dr. Landry also admitted that the possible presence in Crochet’s spine of a congenital condition (Schmarl’s nodule) might in itself cause problems, even without a disk fracture.

Dr. Dexter Gary, a partner of Dr. Landry, and also an orthopedic surgeon, saw Crochet once as a substitute for Dr. Landry. He testified that Crochet’s back problem was not congenital.

Dr. Claude S. Williams, an orthopedic surgeon, saw Crochet once, on May 28, 1980. He observed no mechanical or neurological signs and no nerve root compression. He noticed that plaintiff’s symptoms had diminished since the accident and the prognosis was good. He found the L-5 disk problem to be a natural one.

We find Karen Crochet to have suffered a fracture of the L-4 disk and to have endured sporadic back pains for two years. We find no real prospect for future surgery and plaintiff has shown only a remote possibility for the need of same. We therefore fix general damages at $15,000.

Pursuant to stipulation by counsel, Karen Crochet will be awarded $475 in medical costs. State Farm Mutual Automobile Insurance Company will likewise be awarded $3,300.51 for medical expenses already paid to plaintiffs.

Expert witness fees will be taxed as costs as follows:

Dr. Stephen Heilman $250.00
Dr. Christopher E. Cenac $250.00
Dr. Richard Whitney $150.00
Dr. Dexter Gary $250.00
Dr. W. J. Hagen $250.00
Dr. Frank Norman $250.00
Dr. Richard M. Landry $250.00

For the foregoing reasons, the judgment appealed from is amended and affirmed. It is hereby adjudged, ordered and decreed that in the above consolidated cases, there be, and there hereby is, judgment in favor of Karen Crochet and against Maryland Casualty Insurance Company in the amount of $15,475.00; judgment in favor of Janice Crochet Robichaux and against Maryland Casualty Insurance Company in the amount of $5,000.00; judgment in favor of State Farm Mutual Automobile Insurance Company and against Maryland Casualty Insurance Company in the amount of $3,300.51; judgment condemning Maryland Casualty Insurance Company to pay legal interest on the above amounts from the date of judicial demand. All other demands are hereby dismissed. All costs, both trial and appellate, including the above $1,650.00 in expert witness fees, are to be paid by Maryland Casualty Insurance Company.

AMENDED AND AFFIRMED.

      . Plaintiff incorrectly identified her own uninsured motorist carrier as Louisiana Farm Bureau Mutual Insurance Company. Answer was made and the suit was defended by Southern Farm Bureau Casualty Insurance Company.

      . Appellants urge that technical errors should have resulted in a denial of trial by jury. In view of our decision today, this argument need not be answered.

      . A review of the record of the in chambers conference on the morning of July 17, 1980, reveals that both the trial court and certain counsel were markedly confused as to the significance of the interrogatories. The jury can hardly be expected to have been less so.

      . R 93-96.

      . Were the facts close in this case, we would remand. Ragas v. Argonaut Southwest Insurance Co., 388 So.2d 707 (La.1980). The facts, however, are clear and decisive.


text:
    Marian Bruce McKNIGHT v. Robert McKNIGHT.
    No. 14183.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Rehearing Denied Aug. 5, 1981.
    Walton J. Barnes, Baton Rouge, for plaintiff-appellant Marian Bruce McKnight.
    Ralph W. Brewer, Baton Rouge, for defendant-appellee Robert McKnight.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This divorce suit is before us on appeal on the question of whether the trial court properly found the wife was guilty of fault sufficient to deprive her of permanent alimony.

Marian Bruce McKnight and Robert McKnight were married on February 28, 1970, in East Baton Rouge Parish. The couple had lived together since 1958. Five children were born of the union and three of them were minors at the time of trial. The parties began experiencing marital difficulties some four months after they were legally married. Mrs. McKnight proved at trial that her husband often drank excessively, stayed away from the matrimonial domicile on numerous weekends and, by the husband’s own admission, committed adultery during the marriage.

She filed this suit on December 17, 1979, for separation on the grounds of cruel treatment and non-support, and sought $650.00 per month as alimony and child support. Mrs. McKnight was granted the temporary care and custody of the minor children and was awarded alimony penden-te lite and child support in the sum of $400.00 per month. Additionally, defendant was ordered to maintain payment of the house note on the matrimonial domicile and all reasonable medical, dental and drug bills incurred on behalf of the minor children. Mrs. McKnight later amended her petition seeking a divorce on the grounds of her husband’s adultery. As noted above, the husband admitted adultery at trial and the trial court found that a divorce should be granted on the grounds of adultery. However, the trial judge also stated in his judgment that Mrs. McKnight was “not without fault” and, on that ground, he denied permanent alimony, although awarding her $300.00 per month as child support. Mr. McKnight was ordered to continue payment of the mortgage notes on the family home and all reasonable medical and dental bills incurred on behalf of the minor children.

Mr. McKnight claims that, under the manifest error rule, the trial court’s decision on the grounds of fault is entitled to great weight and should only be disturbed on appeal if the judgment of the trial court is clearly wrong. Mr. McKnight claims he proved at trial that his wife argued with him, failed to cook for him and, on occasion, refused to share the matrimonial bed with him. However, the evidence shows clearly that Mrs. McKnight was a good and faithful wife. She took care of the household, washed. and dried the clothes, cooked all meals and, indeed, acted as the spiritual leader of the household. She admitted that on one occasion she refused to share the marriage bed with Mr. McKnight for about three weeks because she had contracted venereal disease from him. She refused to go to bed with him until he took the cure for the disease but, when he showed that he had taken the cure, she resumed marital relations with her husband. Mrs. McKnight’s testimony in this regard was not refuted or in any way weakened by any evidence presented by Mr. McKnight at trial. We find that she certainly had good reason to refuse to go to bed with him on this particular occasion.

Under Louisiana Civil Code Article 160, dealing with alimony after final divorce, a spouse who seeks alimony must show that he or she was free from fault in terminating the marriage. Our courts have frequently interpreted the word “fault” to mean conduct or substantial acts of commission or omission by the spouse violative of his or her marital duties and responsibilities. To constitute fault, a wife’s misconduct must not only be of a serious nature but must also be an independent contributory or proximate cause of the separation. Adams v. Adams, 389 So.2d 381 (La.1980); Pearce v. Pearce, 348 So.2d 75 (La.1977). For the purpose of permanent alimony, fault is synonymous with one of the grounds for separation or divorce under La. C.C. arts. 138 and 139.

Our close review of the pleadings and trial transcript in this case convinces us that Mrs. McKnight was in no way at fault for the termination of her marriage. She did her best to keep the marriage together. The arguing that occurred between the spouses was, by itself, insufficient to establish an independent ground of fault against Mrs. McKnight. The arguments, indeed, were often brought about by Mr. McKnight staying away from the matrimonial domicile and Mrs. McKnight questioning him as to his whereabouts. She clearly had legitimate reasons for asking these questions and the fact that she sometimes quarrelled with him under the circumstances of this case is, in our minds, insufficient to show that she was at fault in bringing about the dissolution of the marriage. Suffice it to say that for purposes of Article 160, Mrs. McKnight was completely free of fault.

In appealing Mrs. McKnight seeks permanent alimony, the award of which is now justified since we find her to be without fault. The only difference between the trial court pendente lite and permanent award was $100.00. Though the criteria for alimony pendente lite, La.C.C. art. 148, and alimony after divorce, La.C.C. art. 160, are different, we are of the opinion that the pendente lite award made by the trial court is reasonable enough to be used as the award after divorce.

Therefore, for the above and foregoing reasons,

IT IS ORDERED, ADJUDGED and DECREED that the judgment of the trial court finding Marian Bruce McKnight to be not without fault and alimony to her denied is reversed;

IT IS FURTHER ORDERED, ADJUDGED and DECREED that the judgment be amended to render judgment in favor of the plaintiff, Marian Bruce McKnight, and against the defendant, Robert McKnight, ordering and condemning the defendant to pay as permanent alimony the sum of $100.00 per month, and to pay as child support the sum of $300.00 per month, payable in installments of $150.00 each, on the first and fifteenth days of each month, both commencing the first day of October, 1980; and the defendant Robert McKnight is ordered to continue the payment of the mortgage notes on the matrimonial domicile and all reasonable medical and dental bills incurred on behalf of his minor children; and

IT IS FURTHER ORDERED, ADJUDGED and DECREED that in all other respects the judgment appealed from is affirmed at defendant-appellee’s costs.

REVERSED AND RENDERED.


text:
    Mary Kay E. LUCIO v. Louise K. ROBERTS and Gerald S. Humphreys.
    No. 14189.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Rehearing Denied Aug. 5, 1981.
    Douglas L. Nicholson, Baton Rouge, for plaintiff-appellee.
    Ralph Brewer, Baton Rouge, for defendant-appellant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is an appeal by defendant, Gerald S. Humphreys, from a judgment rendered in favor of plaintiff in the amount of $850.00 for property damages sustained as a result of an automobile accident. Liability is not at issue.

Appellant-Humphreys, citing La.C.C. art. 2277, contends the trial court erred in rendering judgment on the plaintiff’s uncorroborated testimony.

La.C.C. art. 2277 provides:

“All agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be proved at least by one credible witness, and other corroborating circumstances.”

This article makes reference to agreements and contracts and the proof required when the amount does not exceed $500 and when it does. An agreement or contract is not an offense or quasi offense; thus, article 2277 is not applicable.

Plaintiff testified that she had three estimates as to how much it would cost to repair her automobile. She filed into evidence two cancelled checks made payable to the repair shop, totalling $850.00, as well as photographs of the damages to her automobile.

We find none of the cases cited by appellant controlling. Plaintiff proved the amount she paid the repair shop, and it is not questioned that this payment was for any repairs other than those caused by the accident.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


text:
    Harvey Clinton HUGHES, Betty Lou Hughes Martin, Pauline Hughes Braase, Hubert L. Hughes, Elsie J. Hughes Granger, Chester B. Hughes, Edith Hughes Gill, Shirley Ann Hughes McClendon, Harvey Clinton Hughes, Jr., Arthur Wayne Hughes and Ronald Joe Hughes v. ST. PAUL FIRE & MARINE INSURANCE COMPANY.
    No. 14244.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Rehearing Denied Aug. 5, 1981.
    John deGravelles and Paul Due, Baton Rouge, for plaintiffs.
    Lawrence McNamara, New Orleans, for Dr. R. E. Goldsby and Hartford Acc. & Indem. Co.
    Kenneth Barnette, Baton Rouge, for Hood Memorial Hospital, Mike Pizzolato, and St. Paul Fire & Marine Ins. Co.
    A. R. Christovich, Jr., New Orleans, for Terrence E. Young & Continental Ins. Co.

      Duncan S. Kemp, III, Hammond, for Dr. R. E. Goldsby.
    Joseph H. Simpson and Charles M. Reid, Amite, for Hood Memorial Hospital.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Annie Hughes died at Hood Memorial Hospital in Amite on March 12, 1975. Decedent’s husband, Harvey Clinton Hughes, and her ten children, Betty Lou Hughes Martin, Effie Pauline Hughes Braase, Hubert Lee Hughes, Chester Boyd Hughes, Elsie Jean Hughes Granger, Edith Evelyn Hughes Gill, Shirley Ann Hughes McLen-don, Harvey Clinton Hughes, Jr., Arthur Wayne Hughes and Ronald Joe Hughes, brought suit alleging that negligence had caused her death. Named as defendants in the original and four amended and supplemental petitions were St. Paul Fire & Marine Insurance Company, Hartford Accident & Indemnity Company, Continental Casualty Company, The Continental Insurance Company, Hood Memorial Hospital, Dr. Reggie E. Goldsby, J. W. Brasher, Terrence E. Young and Mike Pizzolato. Plaintiffs sought $1,603,000 plus legal interest and costs.

Continental Casualty Company filed a motion for summary judgment and was dismissed from the suit without prejudice.

At trial, following the conclusion of plaintiffs’ case, all defendants moved for dismissal of the action. Dismissal was granted as to Hood Memorial Hospital, J. W. Brasher, Mike Pizzolato and St. Paul Fire & Marine Insurance Company. The remaining defendants then presented their case.

Subsequent to trial and in accordance with lengthy reasons for judgment, judgment was signed in favor of plaintiffs and against Terrence Young and his insurer, Continental Insurance Company, condemning defendants to pay $417,264 in varying amounts to the plaintiffs. Defendants were also condemned to pay all costs including $1,400 in expert witness fees. The liability of Continental Insurance Company was limited to $200,000, its policy limits, plus interest.

On September 17, 1980, plaintiffs accepted $264,728 from Continental Insurance Company as full payment of all amounts owed by either Continental or Terrence Young, both of whom were released from further liability. Plaintiffs specifically reserved their rights to proceed against all other defendants including, but not limited to, Dr. Goldsby and Hartford Accident & Indemnity Company.

Plaintiffs appeal only that part of the judgment failing to find Dr. Reginald E. Goldsby and his insurer, Hartford Accident & Indemnity Company, liable. Essentially appellants urge that Dr. Goldsby’s treatment of decedent on March 12, 1975, was negligent. Alternatively, plaintiffs claim that Dr. Goldsby is somehow responsible for the negligent acts of Terrence Young. We cannot agree with either contention.

Mrs. Hughes was an obese, fifty-nine year old patient who suffered from chronic asthma. Dr. Goldsby had treated her since 1971. At her final admission to the hospital on March 5, 1975, she had an acute attack of asthma. Her marked wheezing, productive coughing and anxiety were treated with antibiotics, intravenous fluids and bronchodilators. Following a week of mixed results, decedent suffered a respiratory crisis in which her blood level of carbon dioxide reached life-threatening levels despite the use of nasal oxygen. The patient quite suddenly became unresponsive and, on instructions of Dr. Goldsby, Terrence Young, a certified registered nurse anesthetist, attempted nasal intubation. Due to the negligence of Young, this attempt to ventilate Mrs. Hughes failed. Dr. Goldsby ultimately performed a tracheotomy, placed the patient on a mechanical ventilator, and administered an intracardiac injection to increase the rate of heartbeat. Despite these desperate procedures, Mrs. Hughes shortly died of acute respiratory failure.

Appellants argue that Dr. Goldsby’s failure to act in the face of blood gas tests showing an ominous rise in the level of carbon dioxide proves negligence. Dr. Goldsby clearly testified that he first saw the critical blood gas results after the final attempts to resuscitate Mrs. Hughes had begun.

We have attempted to reconstruct an accurate chronology of events on the morning of March 12, 1975, but are faced, as was the trial court, with irreconcilable time conflicts. Regardless of the exact time that the blood gas results were first seen by Dr. Goldsby, we agree with the trial court that defendant could rely on his clinical impression that Mrs. Hughes’ condition had declined but was not critical. Thus, Dr. Goldsby was not, himself, negligent.

Nor can we find Dr. Goldsby vicariously liable for the acts of Terrence Young. Young was neither an employee of Goldsby nor was he a borrowed employee under the guidelines of Vincent v. Ryder Enterprises, Inc., 352 So.2d 1061 (La.App. 3rd Cir. 1977).

Finally, regardless of whether Louisiana allows use of the “captain of the ship” doctrine, it is clear that this doctrine would have no application in the present case since Dr. Goldsby did not actually supervise or control the acts of Young.

For the foregoing reasons, the judgment appealed from is affirmed. All costs of this appeal are to be paid by appellants.

AFFIRMED.

      . Suit was originally brought in the incorrect name of McClendon.

      . Suit was brought against The Continental Insurance Company but answer was made and the suit was defended by Continental Insurance Company.

      . Harvey Clinton Hughes was awarded $76,-839. Betty Lou Hughes Martin was awarded $25,042.50. All other plaintiffs were awarded $35,042.50 each.

      . Decedent was five feet tall and weighed between 185-190 pounds.

      . Whether Young was, despite his claimed status of independent contractor, an employee of defendant Hood Memorial Hospital need not be decided by this court since counsel for appellants has chosen both to release Terrence Young and not to appeal the dismissal of Hood Memorial Hospital.


text:
    Robert D. PONDS v. Honorable David C. TREEN, Governor of the State of Louisiana, et al.
    No. 14423.
    Court of Appeal of Louisiana, First Circuit.
    May 26, 1981.
    Rehearing Denied Aug. 5, 1981.
    Writ Granted Sept. 11, 1981.
    Jimmie C. Peters, Jena, for plaintiff-ap-pellee Robert D. Ponds.
    Carmack Blackmon, Baton Rouge, for defendants-appellants David C. Treen, Governor of Louisiana, et al.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

On February 18, 1981, the trial court rendered judgment granting a preliminary injunction that barred the holding of a special election on April 4, 1981. Defendants appealed on February 20, 1981 from the judgment signed on February 19. On April 7, 1981, we issued an order to show cause why the appeal should not be dismissed as moot.

We make the rule peremptory and order the appeal dismissed.

Whatever the merits of the case may be, the judgment appealed from in very narrow terms barred defendants from taking any action in the “furtherance of the conducting of any special election on Saturday, April 4, 1981” (emphasis ours). It is now impossible to hold any such election or to take any steps in furtherance thereof. Any decision we would make would be merely advisory.

Appellants argue that the underlying issue is whether the recall petition had lapsed because of end of term, and that if the appellate court should reverse on that point, another election could be set without the necessity of another recall petition. We decline to issue such an advisory opinion. The judgment before us simply barred the election on April 4. We confine our consideration to that judgment.

For these reasons we make the rule peremptory and order the appeal dismissed.

APPEAL DISMISSED.