author: WATKINS, Judge.

text:
    Donald J. SMITH v. W. Lee OVERTON.
    No. 14933.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Richard Kilbourne, Clinton, for plaintiff-appellant.
    W. Lee Overton, pro se.
    William G. Carmichael, Clinton, for defendant-appellee.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is a boundary action filed by Donald J. Smith against W. Lee Overton. Upon the filing by Overton of a peremptory exception of non-joinder of an indispensable party, plaintiff filed a supplemental petition, naming Saundra P. Overton, wife of W. Lee Overton, as a party defendant. The trial court fixed the boundary; Smith appealed, and the Overtons answered the appeal.

By instrument dated August 24, 1946, Haynes Lumber Company sold to Robert C. Graham, ancestor in title of Donald J. Smith, plaintiff, the following described property:

“A certain piece or parcel of ground containing 5.65 acres situated in East Felicia-na Parish, Louisiana and described as the South One-half (SV2) of the parcel of ground acquired by vendors from John C. Rogers on June 27,1946 which said parcel of ground is described as follows, to-wit: “1st: 10.80 acres described as beginning at the east corner of Section 47, T2S R2E; thence north 36 degrees west 7.82 chains; on section line to Ligon’s southeast corner; thence south 54 degrees west 10.50 chains on Ligon’s line to Highway 36; thence south 33 degrees east 12.30 chains on Highway 36 to Section line; thence north 33 degrees east 12.00 chains on section line to place of beginning. Location in Section 47, T2S R2E.
“2nd: One-half (V2) Acre described as beginning north 36 degrees west 7.82 chains from the east corner of Section 47, T2S R2E; thence north 37 degrees west 0.477 chains to Ligon’s southeast corner; thence south 54 degrees west 10.50 chains on Ligon’s line to Highway 36; thence south 33 degrees east 0.477 chains on Highway 36; thence north 54 degrees east 10.50 chains to point of beginning, embracing one-half acre in Sec. 47, T2S R2E.”

By instrument dated August 30, 1946, Haynes Lumber Company sold to James H. McQuirter, ancestor in title of the Over-tons, the following described property:

“A certain piece or parcel of ground, being and situated in East Feliciana Parish, Louisiana and containing 5.65 acres, described as being the North One-Half (N%) of the parcel of ground acquired by Haynes Lumber Company from John C. Rogers on June 27,1946 which said parcel of ground is described as follows, to-wit: “1st: 10.80 acres described as beginning at the east corner of Section 47, T2S R2E; thence north 36 degrees west 7.82 chains on section line to Ligon’s southeast corner; thence south 54 degrees west 10.50 chains on Ligon’s line to Highway 36; thence south 33 degrees east 12.30 chains on Highway 36 to Section line; thence north 33 degrees east 12.00 chains on section line to place of beginning. Located in Section 47, T2S R2E.
“2nd: One-half (V2) acre described as beginning north 36 degrees west 7.82 chains from the east corner of Section 47, T2S R2E; thence north 37 degrees west 0.477 chains to Ligon’s southeast corner; thence south 54 degrees 10.50 chains on Ligon’s line to Highway 36; thence south 33 degrees east 0.477 chains on Highway 36; thence north 54 degrees east 10.50 chains to point of beginning, embracing lk acre in Section 47, T2S R2E.

It will be noted that Haynes Lumber Company was the common ancestor in title of both plaintiff and defendants, and that the instruments of conveyance describe the properties conveyed by the instruments as respectively the “South One-half (SV2)” and the “North One-Half (NV2)” of a parcel of ground acquired by Haynes Lumber Company from John C. Rogers. The parcel of ground acquired by Haynes Lumber Company from Rogers is irregular in shape and the respective instruments make no attempt to establish by metes and bounds a boundary between the North and South One-halves. Therein lies the root of the present problem; the instruments out of the common ancestor in title do not establish a definite boundary.

Robert C. Graham sold the South One-half to Smith, the present plaintiff, by instrument dated July 31, 1951, no precise boundary being given between that One-half and the North One-half.

The history of transfers of the North One-half is somewhat more complicated. By instrument dated June 28,. 1946, James H. McQuirter and Archie McQuirter sold to Haynes Lumber Company the North One-half, the property conveyed being stated to be bounded on the South by the “south half of said tract, now owned by Graham.” Under identical description, by instrument dated November 19, 1947, Haynes Lumber Company sold the North One-half to Manuel Rivette and his wife, Geneva Cooper Rivette. Under the same description, by instrument dated July 2, 1949, Manuel J. Rivette and Geneva Cooper Rivette sold to Delos Morgan the North One-half. Delos Morgan and Jennie Romano Morgan, from whom he was judicially separated, then sold the North One-half to Nell H. Haynes by instrument dated October 13, 1972, under similar description.

Because Mrs. Haynes was having boundary problems with the owners of the tract to the north, who were Henry and Ida Wulff, she hired R. Dale Hodges, a licensed civil engineer affiliated with Pan American Engineers in Baton Rouge, to mark her northern boundary, and incidentally to fix her other boundaries, including the boundary with Donald J. Smith, who by that time owned the South One-half. The plat of survey made at that time, dated February 28, 1973, prepared by Hodges, was introduced in evidence as Exhibit D-2 and is made a part of this opinion. The trial court fixed the boundary between the Overtons (Mrs. Haynes’ vendees, as will appear below) and Smith along the same line, as was done by Hodges in the 1973 survey.

By instrument dated July 10, 1978, Nell Haynes sold to W. Lee Overton, married to and living with Saundra P. Overton, the following described property:

“A certain parcel of ground with all the buildings and improvements thereon and appurtenances thereunto belonging, being and situated in the Parish of East Feliciana, State of Louisiana, containing 5.20 acres and designated on a plat of survey by Pan American Engineers, dated June 12, 1973 as A-l in Section 47, T2S, R2E, more particularly described as: Begin at the southeasternmost corner of said Tract ‘A-l’ on Plank Road and proceed along Plank Road N 32° 52' 41" W a distance of 362.23 feet to a point and corner; thence proceed N 54° 36' 02" E a distance of 653.325 feet to a point and corner; thence proceed S 35° 48' 24" E a distance of 322.50 feet to a point and corner; thence S 51° 14' 38" W a distance of 672.706 feet to a point of beginning and corner, all as shown on a said tract of survey.”

It will be noted that thus Mrs. Haynes conveyed to the Overtons, present plaintiffs, the North One-half, subject to a plat of survey annexed to the instrument that had been prepared by R. D. Hodges under date June 12, 1973. We have examined the plat of survey annexed to the instrument, another copy of which was introduced in evidence as Exhibit D-l, and find it practically identical to Exhibit D-2, which we have annexed to our opinion.

At the time of the purchase of the North One-half by the Overtons, Smith stated to Lee Overton that he would not accept t^ie boundary between the North and South halves which had been fixed by Hodges. The dispute lay dormant for several years, and then after an exchange of messages with regard to the boundary, Smith filed the present boundary action.

At the trial it was established that Hodges, who was the only expert witness but who was appointed surveyor only to establish the trial court’s findings on the ground, had used as his point of origin in fixing the boundary when he made the 1973 survey the Southeast corner of Tract “A”, as he found a fence post at that point which he assumed marked Smith’s Northeast boundary. The fence post, Smith testified, was not intended to indicate a boundary but was merely part of a fence used to pen calves. In any event, we must assume, since Smith had erected the fence post, that Smith thought he owned at least as far to the Northeast as the location of the fence post.

Hodges further testified that there was a driveway used by Smith which entered Plank Road, which bordered the two properties on the West, at a point some eight feet (8') South of where he established the Northwest corner of the Smith tract. Hodges made no effort to run the boundary on the ground other than establishing the eastern and western ends of the boundary line, which he established as running in a straight line generally East and West.

Smith’s main objection to the boundary as fixed by Hodges is that it cuts across a northern circular projection of his driveway (which circle leaves and then reconnects with the driveway, there being only one access to Plank Road). Part of this circular projection of Smith’s driveway lies to the North of Hodges’ line, so that the Overtons, defendants, would own part of the circular driveway. Smith contends that the boundary line should run parallel to the northern boundary of Tract “A”, which, incidentally, is parallel to the other boundaries of tracts to the North, which derive from a common ancestor in title. Thus, under Smith’s contention, the line would pivot to the South on the East end and to the North on the West end from the line as established by Hodges. In further support of this contention, Smith notes that the testimony establishes that there is a house on the Overton property lying two hundred feet North of the Hodges line, and that there is a house on the Smith property lying only fifty feet South of the Hodges line. If the line were pivoted as sought by Smith, the distances between the houses and the boundary line would be more nearly equal.

The Hodges’ line gives the respective properties unequal frontages on Plank Road, the Smith property being allotted some one hundred feet more frontage on Plank Road. The testimony establishes that the portions of the respective tracts fronting on Plank Road are the most valuable portions of those tracts. Both properties are allotted equal acreages. The Over-tons contend that the frontages on Plank Road should be equal as well as the acreages. (The Hodges’ line establishes equal acreages.) It will be noted that Hodges testified that when he ran the 1973 line he attempted as nearly as possible to award equal frontage and equal acreage, while respecting the possession of the properties as nearly as possible at the same time.

The Overtons’ argument that precisely equal frontages should be awarded the two properties on Plank Road overlooks the fact that the Overtons’ title incorporates the 1973 survey, the plat of which is annexed to the instrument by which they acquired their property from Mrs. Haynes. That survey, as is evidenced from the plat, awards Mrs. Haynes’ tract, which was conveyed to the Overtons, about 100 feet less frontage on Plank Road. In seeking to have the line on Plank Road moved to the South, the Overtons defy their own title, and seek to own frontage property that was not conveyed to them. We find the Over-tons’ claim is limited by their title, and deem it unnecessary to give further consideration to their answer to the present appeal.

The circular driveway which lies partly to the North of the Hodges’ line was in use for less than thirty years, but for well over ten years, Smith having used the circular driveway since shortly after he acquired the property in 1951. Smith, therefore, contends that he has acquired land up to a line north of the circular driveway by ten years’ acquisitive prescription. See LSA-C.C. art. 3478.

A concursus proceeding involving a similarly indefinite boundary in the title description and a claim of ten years good faith acquisitive prescription arose in Pure Oil Company v. Skinner, 284 So.2d 608 (La. App. 3d Cir. 1973), reversed on grounds not here pertinent, 294 So.2d 797 (La.1974). In that case, the party claiming acquisitive prescription held under a title deed dating from 1880 which conveyed “IV2 acres situated in the SE corner of the SWVi of the NWVi Sec. 32, T. 19 North, R. 3 West” without further location of bounds. In that case, it was held 10 years’ acquisitive prescription never commenced to run, as the description in the deed was insufficient to permit identification of the property. Similarly, in the present case, the description of the Smith property as the South One-half of an irregularly shaped tract was insufficient to constitute a basis to commence the running of 10 years’ acquisitive prescription. That description did not put the world at large, or the ancestor in title of the Overtons, on notice that Smith owned or possessed, to a definite boundary, north of the circular drive or otherwise. Furthermore, Smith concedes that for the circular drive to be included in his tract, the Hodges’ boundary would have to be pivoted to the South on its eastern end. Yet, Hodges ran his line from a fence post put up by Smith on the East. Smith thus never put the Overtons, their ancestors in title, or the world, on notice for a period of 10 years that he possessed to a definite line North of the circular drive under definite title. Both the possession and the title were uncertain and indefinite as to the precise extent of title or possession. Possession must be certain for 10 years’ acquisitive prescription to apply, as must the property description. See Authement v. Theriot, 292 So.2d 319 (La.App. 1st Cir. 1974) in which the description was held sufficiently definite, but not the possession. Indeed in the present case Smith’s complaint is that the boundary which he claims he possessed to was never fixed.

Smith contends that the boundary should be parallel to the northern boundary of the Overtons’ tract. Were the entire tract once owned by Haynes Lumber Company to be a tract between parallel lines, perhaps that contention would have merit. However, no two sides of the tract are parallel or of equal dimensions. In such a case, no intention to run the boundary between the two halves parallel to either the North or South bound can be ascertained.

Smith contends that a line farther to the North is established not only by prescription, but by usage, arguing that the driveway and houses lying on the respective tracts would not have been positioned as they were had it not been the intent of the parties to the original deeds out of Haynes Lumber Company that the line would lie to the North of the line later fixed by Hodges. In that regard, LSA-C.C. art. 792 reads as follows:

“The court shall fix the boundary according to the ownership of the parties; if neither party proves ownership, the boundary shall be fixed according to limits established by possession.”

Thus, under LSA-C.C. art. 792, the boundary shall be fixed in a boundary action by title or possession, preferably title. There is only one exception to this rule, or perhaps explanation of the rule as it relates to possession, LSA-C.C. art. 794:

“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 then their title called for, the boundary shall be fixed along these bounds.”

That article is inapplicable, because as we have seen prescription does not apply.

The Civil Code places great weight upon titles. LSA-C.C. art. 793 reads as follows:

“When both parties rely on titles only, the boundary shall be fixed according to titles. When the parties trace their titles to a common author preference shall be given to the more ancient title.”

It will be noted that at no point does the Civil Code mention usage as a factor to be considered in determining boundary. However, if usage were considered, Smith’s fence post to the Northeast would have to be considered as well as Smith’s circular drive to the Northwest. If the boundary were run to the North of the circular drive and hence to the fence post, the Overtons would have less acreage than Smith. Smith concedes the parties should have equal acreage. Thus, even if usage applies, the results of usage are, by Smith’s own admission, inequitable, as awarding Smith land to the full extent of his usage would give him more than one-half the acreage. However, usage cannot be totally discounted, as the trial court found, and we agree, that to overlook usage in favor of equal frontage could be inequitable, as to do so would take the entire Smith driveway and possibly part of the Smith house.

Smith contends that the boundary as drawn by Hodges was improperly drawn, as Smith was not given notice before the 1973 boundary was drawn by Hodges. Hodges testified he “might have” told Smith of running the boundary. In this regard, Smith cites LSA-C.C. art. 838 as it stood before amendment. However, the trial court in written reasons did not accept the Hodges’ line as being authoritative, but rather found that it represented the most nearly equitable fixing of bounds that could be made, the same as if the court itself were drawing the boundary. It then appointed Hodges to run or mark the boundary on the ground. The Hodges’ line was accepted not because it was a fait accompli, but because, were the Court called upon to fix the bounds by markers and a plat, in other words, were the court a surveyor, it could not do so more equitably. We agree that the Hodges’ line represents the most nearly equitable resolution of the competing interests and considerations that it is possible to reach. We, therefore, affirm the action of the trial court in adopting the Hodges’ line.

The trial court appointed Hodges survey- or to fix the line on the ground. This is a purely mechanical act which requires no further policy determinations. Thus, the contention of possible prejudice on the part of Hodges made by Smith is not well taken, as only a mechanical act is required by Hodges. Nor do we believe, having fully read Hodges’ testimony in open court, that Hodges is incompetent or incapable of arriving at a just solution, were he called upon to do so.

The general rule is that the fixing of a boundary is of benefit to both parties to a boundary action, and hence the costs should be equally divided. Babin v. Montegut Insurance Agency, Inc., 271 So.2d 642 (La.App. 1st Cir. 1972). In the present case, Smith was ordered to pay two-thirds of the costs and the Overtons one-third. Both parties benefited from the fixing of the boundary, which had never been fixed by boundary agreement or judicial action before. Hence, plaintiff and defendant should bear the costs equally. We, therefore, assess the costs of survey and all other costs equally.

The judgment of the trial court is affirmed, except that the judgment is amended to assess all costs, including costs of the survey, equally between the parties.

AMENDED AND AFFIRMED.

      . “Haynes Lumber Company” is used herein to refer to Frank Haynes and George D. Haynes d/b/a Haynes Lumber Company and Haynes Lumber Company, a partnership composed of George D. Haynes and Frank Haynes, as the case may be in the individual instruments mentioned herein.

      . Why Archie McQuirter is joined as a vendor when he was not a vendee in the prior deed from Haynes Lumber Company to James H. McQuirter is not explained.


source: Caselaw Access Project

author: CARTER, Judge.

license: Public Domain

text:
    Shirley R. GINTER v. GOUDCHAUX’S, INC., et al.
    No. 14981.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Dennis R. Whalen, Baton Rouge, for plaintiff-appellant Shirley R. Ginter.
    R. Michael Caldwell, Baton Rouge, for defendants-appellees Goudchaux’s, Inc., et al.
    Before LEAR, CARTER and LANIER, JJ.
   CARTER, Judge.

Plaintiff-appellant, Shirley R. Ginter, appeals the decision of the trial court in favor of defendants-appellees, Goudchaux’s, Inc. and Fireman’s Fund Insurance Company, holding that her recovery in this workers’ compensation suit was limited to the “scheduled loss” provided in LSA-R.S. 23:1221, with judgment in her favor being limited to her claim for unpaid medical benefits, amounting to the sum of $718.45.

Mrs. Ginter contests the denial of her basic claim that she is totally and permanently disabled, or her alternative claim of at least permanent partial disability.

In denying appellant’s claims, the trial judge in his written reasons for judgment has fully and correctly answered the complaints the appellant made in this appeal. We have examined the entire record and conclude that the trial judge correctly decided the case and applied the applicable law to the facts presented. For the reasons expressed by the trial judge, which we adopt as our own, we affirm the judgment appealed.

As shown by his opinion, the trial judge discussed disability, and he correctly held that, if Mrs. Ginter was disabled, her disability was limited to the “scheduled loss” represented by the 35% disability to the foot assigned by Dr. Ray J. Haddad, Jr., the orthopedic surgeon who performed the surgical procedures on Mrs. Ginter. Plaintiff contends that this holding was in error and seeks to have this Court find her totally and permanently disabled, or at least permanently partially disabled. However, the record does not reveal that Mrs. Ginter produced sufficient evidence to carry her burden of proving any such disability. The cases of Hamilton v. Georgia Pacific Corp., 344 So.2d 400 (La.App. 1 Cir. 1977); and Robertson v. Valhi, Inc., 345 So.2d 149 (La. App. 1 Cir. 1977), hold that a workers’ compensation claimant must prove the existence and extent of his disability to a legal certainty by a reasonable preponderance of the evidence. In addition, the Hamilton and Robertson cases note that, on the determination of disability, great weight is to be given to the trial court’s factual findings. In the present case, the trial court had before it the reports of all of the physicians who had examined or treated Mrs. Ginter, the deposition of Dr. Haddad, and the testimony of Mrs. Ginter. Based upon the lower court’s decision, it was not persuaded of Mrs. Ginter’s complaints of pain and disability.

Furthermore, the reports from the physicians and Dr. Haddad’s deposition do not support her claims. The reports from Dr. J. B. Sullivan and Dr. Donald Ames (her physicians in Florida), show numerous visits with the absence of any objective findings, and also show that Mrs. Ginter followed a sometimes contradictory pattern of therapy and recovery. At times she failed or refused to wear the shoes and innersoles prescribed for her, and wore instead shoes which the doctors felt were “bad” for her. In addition, while complaining of “constant pain”, she stated that she could engage in such athletic activity as playing several holes of golf before she had pain. We find that the evidence relevant to the issue of disability shows no disability beyond the 35% loss of use of function assigned by Dr. Haddad.

As the trial court noted, compensation in excess of the amount due for a 35% disability to the foot had already been paid by the defendants. The amount due for that disability was computed in accordance with the formula set forth in Anderson v. Continental Can Company, 141 So.2d 48 (La.App. 2 Cir. 1962), cert. denied June 20, 1962; Bearb v. Boutte, 295 So.2d 533 (La.App. 3 Cir. 1974), writ refused, 299 So.2d 797 (La.1974), and came to $3,750.00. Compensation already paid totaled $6,871.00. The Anderson and Bearb cases, supra, also indicate that defendants are entitled to a dollar-for-dollar credit for all prior payments; hence, no further compensation is due to Mrs. Ginter.

As a further argument, Mrs. Ginter contends that she should be found to be disabled under the “odd-lot” doctrine, as set forth in Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980). She contends that her pain makes her unable to return to work as a saleslady, and that defendants thus had the burden of proving that there was other work available to her.

The record does not establish that her “pain” was such as to disable her. Moreover, in order for the “odd-lot” doctrine to be applicable, it was necessary that she prove more than the mere existence of some pain; the plaintiff was required to prove that her physical condition, mental capacity, education, training, and age, or other factors placed her at a substantial disadvantage in the competitive labor market. Lattin v. HIGA Corporation, 395 So.2d 690 (La.1981); Augustine v. Courtney Construction Company of Alexandria, Inc., 405 So.2d 579 (La.App. 3 Cir. 1981). No such evidence was offered by her to show that she was entitled to application of the “odd-lot” doctrine, thus the burden of proof was not shifted to the defendants to show that some form of gainful occupation was regularly and continuously available to her within reasonable proximity to her residence.

For the reasons assigned by the trial judge in his written reasons for judgment, a copy of which is attached hereto, marked “Appendix” and made part hereof, the judgment of the trial court is affirmed, at the appellant’s costs.

AFFIRMED.

APPENDIX

Shirley Ginter (plaintiff), while working at Goudchaux’s Department Store, slipped and caught her left foot in a door jam on or about May 3, 1977. She was initially seen by Dr. Charles S. Kennon, an orthopedic surgeon, with complaints of pain in the first, second and third metatarsal heads of her left foot. His reports (P-2), which were introduced in evidence, indicate that he treated her conservatively but after obtaining no significant relief felt she probably had a Morton neuroma between the second and third metatarsal heads, and in July of 1979, surgery was performed and the neuroma excised. Further complications ensued, and in September of 1977, Dr. Martin Bell, a plastic surgeon, operated and freshened the wound. Plaintiff then moved to Florida and was treated by Dr. J. B. Sullivan, an orthopedic surgeon in Fort Pearce, Florida. He began treating her on October 3, 1977, and saw plaintiff on several occasions through March 21, 1978. As the court appreciates Dr. Sullivan’s reports (D-3) introduced into evidence, plaintiff presented multiple complaints; however, he was never able to find any objective orthopedic pathology.

On April 17, 1978, plaintiff was seen by Dr. Ray J. Haddad, Jr., an orthopedic surgeon in New Orleans, and a member of the teaching faculty of the Tulane Medical School. Plaintiff was referred to Dr. Had-dad by Dr. Kennon for evaluation. Dr. Haddad was of the opinion that the type injury plaintiff sustained in her fall could result in a neuroma. He felt she still had a problem with a neuroma on the plantar surface of her left foot. He attempted conservative measures with an innersole but then her complaints worsened. In September of 1978, in view of plaintiff’s continued complaints, he performed surgery after telling plaintiff that he estimated no better than a 50-50 chance of improvement. He found an additional neuroma between the second and third metatarsal heads which was entwined by a great deal of scar tissue, all of which he excised. Her initial post-operative course was good and she returned home to Florida a few days later. On June 25, 1979, she returned to Dr. Haddad with the same complaints, and he performed surgery again and found a neuroma at the third and fourth metatarsal heads which he excised. Plaintiff continues to have problems because, as Dr. Haddad explained in his deposition, even after a nerve ending is excised the nerve continues to grow, and when it reaches a bone or scar tissue, it will become painful. He indicated that excisions of Morton neuromas are usually successful with classic results because there is no feeling left in the toe. He felt that while plaintiff was truthful in her complaints of pain, she had a very low pain threshhold. From an orthopedic point of view, he has nothing left to offer her because she has already had four operations. Continued operations only build more scar tissue around the nerve endings. He felt she needed to adjust the way she walked, be careful on the surfaces she walked upon, and wear well-made innersoles. He also felt she had to use her leg and walk as much as possible in order to keep her foot and leg muscles active. He found that the mechanics of her foot were working well and she had good circulation, but that she was possibly overreacting to her problem. Dr. Haddad was of the opinion that she should not work in an environment which required prolonged standing on a concrete or hard floor but felt she could pursue the sort of occupation which permitted her to sit down, slip her shoe off, rest her foot and put it down. In a response to a suggestion of phone sales or secretarial work, he answered, “yes.” He assigned a 35% disability of the foot, attributing that disability to scarring and the loss of sensation. Dr. Haddad referred plaintiff to Dr. Donald Ames, an orthopedic surgeon in Vero Beach Florida, for continued treatment after his last surgery. Dr. Ames saw her initially on January 15, 1979. On February 8, plaintiff indicated to Dr. Ames that she had obtained a pair of tennis shoes which made her foot better and that she could play five holes of golf before she had pain. On May 21,1979, Dr. Ames was of the opinion that plaintiff had reached maximum medical improvement and he had nothing further to offer surgically. He felt any disability she had was based upon subjective symptoms and that she could be gainfully employed in at least a sedentary capacity not requiring walking or standing.

It was stipulated that compensation was paid through June 8, 1979. The court feels this case falls under the temporary or partial disability provisions of R.S. 23:1221. A 35% disability was apportioned to plaintiff’s foot by Dr. Haddad. Under the schedule of payments provided in Section 1221, defendant has no further legal obligation to plaintiff for this partial disability.

On May 21, 1979, the date of Dr. Ames’ final report, there were outstanding medical bills. Under the provisions of R.S. 23:1203, the employer is obligated to furnish all necessary medical, surgical, hospital services and medicines, or any non-medical treatment recognized by the law of this State as legal. In addition, the employer is liable for actual expenses reasonably and necessarily incurred by an employee for mileage necessarily traveled in order to obtain services medicines and prosthetic devices. Accordingly, any unpaid medical expenses incurred through May 24, 1979, are due and owing: The court calculates these as follows:

Dr. Charles Kennon (P-12) 20.00
Wheel chair expenses (P-11) 157.26
University of Miami
Hospitals & Clinic (P-7) 44.00
Phone expenses to Drs.
Kennon, Haddad &
Ames (P-8) 57.24
Prescriptions by Dr.
Kennon or his partners, Dr. Haddad, and Dr.
Ames (P-6) 208.95
Air fare to New Orleans (P-14) 231.00

For these reasons, there is judgment for plaintiff for the unpaid medical benefits amounting to $718.45, and in all other respects, plaintiff’s suit is dismissed at defendant’s costs. The expert witness fee of Dr. Ray J. Haddad is fixed at $150.00.

Judgment is rendered and will be signed accordingly.

BATON ROUGE, LOUISIANA, this 20 day of July, 1981.

/s/ Melvin A. Shortess

JUDGE


text:
    Judy B. HARDEE, et ux., Plaintiff-Respondent, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, et al., Defendants-Relators.
    No. 82-328.
    Court of Appeal of Louisiana, Third Circuit.
    July 14, 1982.
    Watson, Murchison, Crews, Arthur & Corkern, Wm. P. Crews, Jr., and Brittain & Williams, Joe Payne Williams, Natchitoch-es, for defendants-relators.
    Thomas, Dunahoe & Gregory, Gerard F. Thomas, Jr., Natchitoches, for plaintiff-respondent.
    Whitehead & McCoy, Kenneth D. McCoy, Jr., Natchitoches, for defendant-respondent.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   Writ application on severance question denied. Although we may not agree with the trial judge’s action, we nevertheless cannot say that he abused his discretion under LA.C.C.P. Article 1038. Presumably, had severance not been granted, trial of the principal action fixed for July 14, 1982, would be delayed.

On the question of the application of St. Paul Fire and Marine Insurance Company concerning its right to jury trial, the writ is granted and made preemptory. In connection therewith, the issue is whether or not the trial court erred in recinding its order dated June 30, 1982, which granted the motion of St. Paul Fire and Marine Insurance Company and Merry S. Smith for a trial by jury as to all issues herein. The issue presented is identical with that presented in the case of City Stores Co. v. Johns-Manville Sales, 395 So.2d 953 (La. App. 4th Cir. 1981) and for the reasons therein stated, with which we agree, we conclude that the trial court in the instant case erred in recalling and setting aside its previous order of June 30,1982, granting to St. Paul Fire and Marine Insurance Company and Merry S. Smith a jury trial in these proceedings. Accordingly it is Ordered that the trial court’s previous order granting St. Paul Fire and Marine Insurance Company and Merry S. Smith a jury trial as to all issues, upon their posting bond in the total amount of $2,500.00, be, and is reinstated.


author: KLEES, Judge. SCHOTT, Judge,

text:
    ZEMO’S HEAVY EQUIPMENT REPAIRS, INC. v. Alwyn CORNE, d/b/a Al Dozer Service.
    No. 12949.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 16, 1982.
    Rehearing Denied Aug. 19, 1982.

      David L. Kelly, Metairie, for plaintiff-appellant.
    Wayne J. McDougall, Chalmette, for defendant-appellee.
    Before REDMANN, SCHOTT and KLEES, JJ.
   KLEES, Judge.

Plaintiff, Zemo’s Heavy Equipment Repairs, Inc., filed against defendants, Alwyn Corne and Alwyn “Al” Corne Grading and Dozer Service, Inc., a petition on open account claiming a balance of $2,600.43 for providing trucking, hauling, and bulldozing services to defendants. Defendant denied liability, additionally pleading a setoff for work improperly performed by plaintiff and failure of consideration. The trial court dismissed plaintiffs petition on the basis that an item included in the account for $6,206.05, although included as a routine charge in the open account, was in fact based on an oral contract between the parties and as such required proof by at least one credible witness and other corroborating circumstances under LSA-C.C. Art. 2277. The trial court concluded that plaintiff did not carry this burden of proof and consequently could not recover. The issue is whether the record supports this conclusion.

The trial judge concluded that the parties enlarged the pleadings thereby converting the suit into one for a breach of an oral contract rather than a suit on an open account. Since the record supports this conclusion we believe the trial judge acted correctly.

After reaching this conclusion the trial judge evaluated the testimony of the plaintiff in light of Civil Code Article 2277 and reasoned that the plaintiff did not carry his burden of proof because he failed to present other corroborating circumstances to establish that there was an oral agreement between the parties to have an engine repaired for $6,206.05.

Our review of the record reveals a rather hopeless conflict in the testimony of the plaintiff and the defendant.

According to Dan Manuel Zemo, plaintiff’s principal officer, he and defendant had a verbal agreement that he would remove an engine from a particular bulldozer and rebuild it. However, after removal of the engine Zemo discovered that the engine block had a hole in it and he notified Corne who told him to locate another engine for the machine. Zemo located one in Jackson, Mississippi, rebuilt the engine, made the other repairs and Corne picked the machine up.

According to Corne, he bought this machine for $2,500 and made a special agreement with Zemo to repair it for not more than $2,500.00. Corne stated that the machine was worth $2,500 in its broken condition but if put into running condition it would be worth $5,000. Unlike their previous arrangements where Zemo would pick up machinery to be repaired, the understanding in this case was for Corne to bring the machine to Zemo and pick it up afterward and Zemo would work on the machine only in his spare time. When he received Zemo’s bill for $6,206.05 he “was really outdone about it.” When he spoke to Zemo the latter said that the machine was worth $10,-000 and Corne told him if he could sell it for $10,000 he would “make the extra thousand dollars.” After three months went by without the machine being sold by Zemo, Corne told him to take the machine for his payment and the two would be even but Zemo refused this offer. Corne further testified as follows:

“We talked about $2,500. But if it would have exceeded $3,000, it would have made me a little aggravated and when I seen the $6,200, it made me flip. It made me extremely mad and I told him the machine was not worth over $5,000 and all the time he said he could sell it for $9,000 or $10,000. He wasn’t able to sell it. I eventually sold the machine.”

Zemo admitted that he offered to sell the machine for Corne after the repairs were made and the bill was submitted. He thought he had a buyer for between $8,500 and $10,000, but this sale did not materialize. He stated that around Christmas of 1979 he had his last conversation with Corne and in that conversation Corne told him to “just take the machine back” because it was “doing [him] no good.” Zemo went to examine the machine and found that the clutches had been torn out and the tracks taken off but he told Corne he would take the machine back in payment. When he went back to pick it up three and a half months later the machine was gone and Corne’s men told him that Corne had sold the machine.

The record discloses that the trial judge was aware of the conflict in testimony and because of this he was unable to accept the version of the plaintiff. The trial judge concluded in his Reasons for Judgment “.. . and the court holds that he has not carried his burden of proof by a preponderance of the evidence and accordingly the Court will dismiss the suit.” We cannot conclude that the trial judge was clearly wrong.

Accordingly, the judgment of the trial court dismissing the plaintiff’s suit is affirmed with the costs of this appeal to be borne by the respective parties.

AFFIRMED.

SCHOTT, J., dissents with written reasons.

SCHOTT, Judge,

dissenting:

These parties did business with each other without disputes for some time until May 24, 1977, when an invoice was presented by plaintiff for repairs on a bulldozer owned by defendants. The ledger sheet on defendants’ account shows that it was paid in full until May 9, 1977, when plaintiff billed defendants for $7006.61 for repairs on another machine owned by defendants. Thus, when the second disputed invoice was submitted plaintiff showed defendants’ balance to be $13,212.66. Between June 30 and August 18 defendants paid $9000 on the account, leaving a balance of $4212.66. On August 20, plaintiff submitted three more bills to defendants for work that is not in dispute calling for payments in the amount of $1599.68, which brought the balance up to $5812.34. Between August 22, 1977, and September 25, 1978, defendants paid $3211.91 on the account, leaving a balance of $2600.43. Since both parties agree that the only disputed item was the $6206.05 it is clear that defendant paid $3605.62 on this disputed bill, leaving the balance sued on in the amount of $2600.43.

In his reasons for judgment, the trial court reasoned that the burden of proof was on the plaintiff to prove the disputed bill and it was required to offer the testimony of a witness and other corroborating circumstances in order to carry this burden. He continued:

“The testimony is in rather hopeless conflict. The plaintiff shows he did work on the machine. He testified that the engine cost more than $2500. The used engine, according to his invoice, was $1400 something and the other parts placed in there necessary for the machine to work came to over $3000. $3174.53 and labor $2776, and I imagine the balance is overhead and profit or taxes. However, I do not believe that the plaintiff has carried the burden of proof in proving that this was done as other work was done for the Corne account; as the other invoices he testified have regularly been paid. They were formerly friends and apparently fell out over this account. Since they had been friends for some seven or eight years that they fell out over this account, there must have been some justifiable dispute .... The testimony of the plaintiff and the defendant are equal as to what the transaction was, one affirms and one denies. There have been no outside corroborating circumstances which would substantiate the plaintiff’s demand and the court holds that he has not carried his burden of proof by a preponderance of the evidence and accordingly the court will dismiss this suit.”

I respectfully disagree with the trial court as to the absence of corroborating circumstances to support plaintiff’s position and would find that the same circumstances left unexplained by defendants require that the judgment of the trial court be reversed. In the first place, defendant’s own action in making payments on the account contradicts his testimony that he agreed to pay only $2500.00. Had this been so there would have been a balance of $3706.05 on the account. Instead defendants paid $3605.62, and left a balance of $2600.43. Secondly, both parties agree that when the balance of $2600.43 was supposedly owed on the account defendant was willing to turn the machine over to plaintiff in payment of the invoice. To defendant, the machine in its original broken condition was worth $2500. He again admitted that after the repairs were made it was still worth $2500 and this approximates the amount of the claim. Plaintiff agreed to take the machine in payment but when he went to pick it up defendant had sold the machine and pocketed the proceeds. The record does not show how much he got for the machine. However, as the trial judge noted, plaintiff had expended over $3000 for engine parts alone not to mention considerable labor costs incurred in the repair of the machine after which the machine was worth at least $2500 to defendant but defendant subsequently sold the machine for an undisclosed amount. Thus, the trial court’s conclusion that there was no corroborating circumstances in support of plaintiff’s position is clearly wrong.

Accordingly, I would reverse the trial court and render judgment in favor of plaintiff and against defendant, Alwyn “Al” Corne Grading & Dozer Service, Inc. for $2600.43 plus interest and costs. I would not cast Corne, individually, in the judgment.


author: DOMENGEAUX, Judge.

text:
    WOODMEN OF the WORLD LIFE INSURANCE SOCIETY v. Debra A. LeBLANC, Keith J. Bearb, Kaysha J. Bearb, and Judy Bearb. Appeal of Judy BEARB, Individually, and on Behalf of the Minors, Keith J. Bearb, and Kaysha J. Bearb.
    No. 8579.
    Court of Appeal of Louisiana, Third Circuit.
    July 21, 1982.

      Harold L. Savoie, Lafayette, for plaintiff-appellant.
    Joseph A. Koury, Lafayette, for defendant-appellee.
    Brinkhaus, Dauzat & Falgoust, Jerry J. Falgoust, Opelousas, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   DOMENGEAUX, Judge.

This appeal evolves from a concursus proceeding initiated by the Woodmen of the World Life Insurance Society, wherein it deposited the sum of $19,937.61 into the Registry of the Court. That deposit represented the proceeds from two life insurance policies which it issued on the life of Terry A. Bearb, who died on October 12,1979, as a result of Hodgkin’s disease.

During his last illness the decedent, Terry A. Bearb, while in the hospital, caused the formerly designated beneficiaries on the policies to be changed from his wife, Judy Bearb, and their two minor children, Keith and Kaysha, to Debra A. LeBlanc, with whom the decedent had been living for approximately one year prior to his death. In view of the fact that Judy laid claim for herself and her children to the proceeds of the policies, the insurer impleaded them as well as the newly changed and designated beneficiary, Debra A. LeBlanc, as defendants.

At trial, as agreed to by all counsel, the only issue facing the district judge was whether or not the decedent, Terry A. Bearb, was mentally competent at the time he made the change of beneficiary designation from his first family to Debra A. Le-Blanc. If he was, the proceeds would go to Debra A. LeBlanc, and if he was not, they would go to Judy Bearb and her children.

The trial judge, pursuant to very thorough and analytical reasons for ruling, decided that the decedent was mentally competent when he caused the change of beneficiary to be made and consequently awarded the proceeds of the two policies to the newly designated beneficiary, Debra A. Le-Blanc.

From this ruling, Judy A. Bearb has appealed individually and on behalf of the two minor children, questioning in effect, the trial judge’s factual determinations. On appeal, as at trial, the sole issue is the state of decedent’s mental competency at the time when he caused the change of beneficiaries to be made.

For about a year prior to decedent’s demise it was necessary that he be hospitalized periodically. His last hospitalization commenced on September 14, 1979, and he remained as a hospital patient until his death on October 12, 1979. September 19, 1979, was the day on which he caused the above-mentioned change of beneficiaries to be made.

In essence there were two sets of witnesses at trial, those who favored Mrs. Bearb’s position who generally testified that at certain times before he died, Terry A. Bearb, who was under various sedations, seemed groggy and uncommunicative. The other set of witnesses, including a graduate nurse who attended the decedent, testified generally to the effect that on or about September 19, 1979, the decedent was awake and alert, perambulated in the hospital hall, was communicative, and “kidded” with the people around him. It is to be remembered that the date of the change of beneficiaries, September 19, 1979, was 24 days before Terry died.

One fact seems clear and uncontradicted, i.e., that beginning October 6, 1979, decedent began to rapidly deteriorate mentally and physically, which acceleration continued until October 12, 1979, when the ravages of the dread disease took its final toll.

We have carefully reviewed the record, and particularly the testimony of the various witnesses, and we readily conclude that the record supports the factual findings of the trial judge who in summary of the evidence stated:

“On balance it appears that the testimony of the witnesses put forward on behalf of the first family (who were the previous beneficiaries) that upon their sporadic visits to the hospital, they found the deceased heavily sedated and therefore not mentally alert, is not in the Court’s view factually irreconcilable with the other line of witnesses to the effect that when not sedated, the deceased was competent, for two reasons: 1) they may have been there at the time when he was sedated because of pain, but there may have been many periods when he was not sedated, and other testimony was to the effect that when he was not, in fact, sedated to the point of being too groggy to function, that he was mentally competent; and 2) the evidence of the nurse, the hospital records, the insurance agent, Christine LeBlanc and Debra A. LeBlanc (although the Court recognizes her status as a possible beneficiary) appear to the Court to clearly preponderate to the finding that the decedent was mentally competent and was in control of his mental faculties and knew what he was doing at the time he made the beneficiary change.”

We can see no manifest error in the trial judge’s findings, hence we affirm his decision. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

It was not for the trial judge then, nor is it for us now, to pass judgment on the decedent for his decision to change beneficiaries on these policies; nor is it within our province to determine whether the result reached here is the most equitable. As we indicated in footnote 1 herein, there were no legal impediments preventing the decedent from changing beneficiaries. The factual findings of the trial judge to the effect that Terry was mentally competent to effect the change is amply supported by the record. We have no choice but to agree with the trial judge’s conclusions.

All costs at trial and on appeal to be paid from the proceeds of the concursus deposited in the district court.

AFFIRMED.

      . From whom the decedent was judicially separated.

      . Life insurance proceeds, unless so designated, form no part of the estate of a decedent, but inure directly to the named beneficiary, and consequently the invalidity of donations between persons living in concubinage, as set out in Civil Code Article 1481, has no application to life insurance policies. Kelly v. National Life & Accident Insurance Co., 393 So.2d 130 (La.App. 1st Cir. 1980); Sizeler, et al. v. Sizeler, 170 La. 128, 127 So. 388 (1930). The law does not prevent a person from taking out a policy on his own life, paying the premiums, and naming as beneficiary any person he may choose, including his concubine. Morris v. Providential Life & Accident Ins. Co., 162 So. 443 (La.App. 1st Cir. 1935).


author: CUTRER, Judge.

text:
    James E. MOUTON, et al., Plaintiffs-Appellants, v. ARMCO, INC., et al., Defendants-Appellees.
    No. 8840.
    Court of Appeal of Louisiana, Third Circuit.
    July 21, 1982.
    LeGardeur & Fitzsimmons, Ltd., J. F. Le-Gardeur, Jr., for intervenor-appellant.
    Andrus & Preis, Edwin G. Preis, Jr., Jeansonne, Gibbens, Blackwell & Briney, John A. Jeansonne, Jr., Lafayette, Gugliel-mo & Lopez, James T. Guglielmo, Opelou-sas, John K. Hill, Jr., Lafayette, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

This appeal presents the issue of whether a wife has a cause of action to recover damages for mental anguish, loss of consortium and embarrassment allegedly caused by injuries suffered by her husband.

James Mouton filed suit for damages resulting from injuries allegedly caused by the negligence of several defendants. Mouton’s wife intervened seeking damages for mental anguish, loss of consortium and embarrassment resulting from the husband’s injuries. The intervention named Armco, Inc., Ball Marketing, Inc., and Bituminous Insurance Company as defendants.

The trial court dismissed the wife’s inter-véntion by granting a motion for summary judgment, filed by Armco, Inc., and sustaining exceptions of no cause of action filed by Ball Marketing and Bituminous. The trial court rendered separate judgments in its rulings on the motion and exception. The wife appeals. We affirm.

The issue presented herein was put to rest in the recent case of Lanham v. Woodward, Wight & Co., Ltd., 386 So.2d 131, 134 (La.App. 3rd Cir. 1980), writ den., 392 So.2d 668 (La.1980), where this court held as follows:

“We recently addressed this issue in McFarland v. Cathy, 349 So.2d 486 (La.App. 3rd Cir. 1977). In that case we faced a fact situation similar to the one presently before us. The children and wife of Booker T. McFarland asserted a claim for their damages resulting from an accident which left Mr. McFarland a quadriplegic. Citing a long line of jurisprudence, we made the following observation:
‘The established rule in this State is that, except in death cases, one person may not recover damages for mental pain and anguish suffered by him merely as a result of physical injuries sustained by another person. ’
“In Bourque v. American Mutual Liability Ins. Co., 345 So.2d 237 (La.App. 3rd Cir. 1977), we also faced the issue of whether or not one spouse could claim damages for mental anguish and loss of consortium because of physical injuries sustained by her husband. In denying recovery we approvingly quoted from our brothers of the First Circuit who in McKey v. Dow Chemical Co., Inc., 295 So.2d 516 (La.App. 1st Cir. 1974) said:
‘Traditionally and historically our jurisprudence has consistently declined to allow recovery to one party for mental pain and anguish resulting from mere personal injury to another.
% * * * * *
‘The rationale of this premise is the avoidance of opening a field of litigation which will flood the courts with actions in which practical justice cannot be meted out to both plaintiff and defendant alike. Another basic premise of the rule is that, under such circumstances, there is no breach of a legal duty toward the party claiming damages.’
* * * ft

Intervenor contends that Louisiana’s position should be changed as it is in a minority in its view. This argument was also answered in Lanham as follows:

“We recognize that a growing number of jurisdictions allow a recovery for loss of consortium. According to Rodriguez v. Bethlehem Steel Corporation, 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669 (1974), the California decision which held that such a claim would be recognized in that state, thirty-one jurisdictions do recognize such a remedy. See also F. F. Stone, Louisiana Tort Doctrine: Emotional Distress Occasioned by Another’s Peril, 48 Tulane L.Rev. 782 (1974), for an excellent discussion of this area and a criticism of Louisiana’s no recovery position.
“Despite the fact that our position appears to be a minority view and open to criticism, we believe it is the preferable position based on the public policy consideration discussed in McKey v. Dow Chemical Co., Inc., supra. It is a determination that the claimant is not within the ambit of the risk invaded by the tort-feasor’s conduct and hence the defendant owed no duty to him. Further, considering the body of jurisprudence beginning with our Supreme Court’s decision in Black v. Car-rollton Railroad Company, 10 La.Ann. 33 (La.1855), to date, wherein the established rule is to deny such recovery as the plaintiffs seek in the instant suit, we are of the opinion that any change in this established rule, if there is to be a change, should be instituted by our legislature.”

Under these well established principles, the trial court, in the case at hand, correctly dismissed the wife’s intervention.

For the foregoing reasons, the judgments of the trial court are affirmed. All costs of this appeal shall be paid by intervenor-ap-pellant.

AFFIRMED.


text:
    Candy Ann HUSTON, Plaintiff-Appellant, v. Danny Ray GRANSTAFF, Defendant-Appellant.
    No. 8858.
    Court of Appeal of Louisiana, Third Circuit.
    July 21, 1982.

      Showers & Guidry, Jack P. Showers, Lafayette, for defendant-appellant-appellee.
    David K. Balfour of Jeansonne, Gibbens, Blackwell & Briney, Lafayette, for plaintiff-appellee-appellant.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   DOMENGEAUX, Judge.

This case arises under the Uniform Child Custody Act (Act), La.R.S. 13:1700, et seq. The sole issue at this stage of the child custody contest between the mother, Candy Ann Huston, and the natural father, Danny Ray Granstaff, is the issue of expenses and attorney fees awarded by the district judge to the plaintiff.

In November of 1980, and for some time prior thereto, plaintiff, Candy Ann Huston, lived with defendant, Danny Ray Granstaff, in Lafayette, Louisiana. During this time Danielle Renee Huston was conceived to Candy. On or about November 16, 1980, the couple quarreled and Danny demanded that Candy leave the residence they were sharing. She returned to her mother’s home in Corpus Christi, Texas, and on May 5, 1981, Danielle Renee Huston was born.

Shortly thereafter Danny traveled to Corpus Christi, met with Candy and convinced her to allow him to take the infant with him back to Lafayette for a week’s visit with him and his parents. Danny brought Danielle back to Lafayette, but instead of returning the child as promised, he instituted legal proceedings to be named as Danielle’s provisional tutor, and further seeking temporary emergency custody under La.R.S. 13:1702. Thereafter, on June 29,1981, the district court appointed Danny provisional tutor and Charles Granstaff, Danny’s father, undertutor for Danielle. Subsequently, Candy obtained legal custody (but not physical) of Danielle by a validly taken Texas decree. Candy next petitioned the Louisiana court seeking to annul the tutorship decree, alleging that the court lacked jurisdiction in the matter. At that hearing, the district judge held that there was no emergency, giving rise to Louisiana jurisdiction over Danielle, consequently, the tutorship decree was nullified.

At this point Danny still refused to voluntarily surrender Danielle to Candy. A rule to show cause why Danny should not surrender custody of the infant was issued, after which time a hearing was held on the rule, and the district judge ordered Danny to comply with the Texas decree and relinquish custody of Danielle to her natural mother. Additionally, the district judge awarded $350.00 to Candy for traveling expenses and $350.00 for attorney fees. Both parties appealed whereafter defendant’s appeal was dismissed by this Court for having failed to file a brief, which dismissal has now become final.

On appeal Candy contends that the award for expenses and attorney fees is grossly inadequate. She claims that the expenses and attorney fees awarded by the trial court represent expenses incurred in bringing the rule only, and do not account for the expenses and attorney fees incurred by her in her suit to nullify the previous order appointing a provisional tutor. For this reason plaintiff contends that the trial court erred in its award. We agree.

Pertinent to the issue at hand is La.R.S. 13:1714 B which provides:

“A person violating a custody decree of another state which makes it necessary to enforce the decree in this state may be required to pay necessary travel and other expenses, including attorneys’ fees, incurred by the party entitled to the custody or his witnesses.”

It is evident from a reading of the record before us that the court below limited the award of expenses and attorney fees to those incurred in bringing the rule only. As we read the Act its general tenor is to outline uniform procedures for establishing jurisdiction in child custody cases, and to allow procedurally for the recognition of out of state custody decrees. In this case, plaintiff, after obtaining a Texas custody decree, petitioned the Louisiana court to nullify the previously granted orders of tutorship on the ground that the Louisiana court lacked jurisdiction. Plaintiff pled that Texas was the state with proper jurisdiction. The court agreed, and nullified the orders naming Danny as tutor and Danny’s father as undertutor. Subsequently, Candy was forced to bring a rule to compel Danny to comply with the Texas custody decree. It seems obvious to us that the hearings were wholly interrelated. The entire proceedings concern themselves with determining jurisdiction and the recognition of the out of state decree as outlined in the Act. Ultimately the district court found that it lacked jurisdiction, and subsequently, on the rule, recognized the Texas decree granting Candy custody. In view of the above, we feel that the plaintiff should be entitled to recover reasonable expenses and attorney’s fees, as provided for in La.R.S. 13:1714(B), supra, for expenses incurred in her suit to nullify the tutorship orders as well as expenses incurred in bringing the rule to force defendant to relinquish the child to her.

For the above and foregoing reasons the judgment of the district court is amended to increase the plaintiff’s award to $700.00 for traveling expenses, and $1,500.00 for attorney’s fees, both amounts subject to legal interest from October 12, 1981, until paid. In all other respects the judgment is affirmed.

Costs at trial and on appeal are assessed against defendant, Danny Ray Granstaff.

AFFIRMED, AS AMENDED.

      . La.R.S. 13:1702 provides:
      “A. A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
      * :fs * * * *
      (3) The child is physically present in this state and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or ”

      . The trial judge held that he had no jurisdiction to name Danny as provisional tutor of Danielle, and he declined to grant custody to either Candy or Danny for the same reason.


author: GUIDRY, Judge.

text:
    John S. GUILLORY, Plaintiff-Appellee, v. AUDUBON INSURANCE CO., et al., Defendants-Appellants.
    No. 82-86.
    Court of Appeal of Louisiana, Third Circuit.
    July 21, 1982.

      Brinkhaus, Dauzat & Falgoust, Jerry J. Falgoust, Opelousas, for defendants-appellants.
    Pucheu, Soileau & Cored, C. Brent Cored, Vide Platte, for plaintiff-appellee.
    Guglielmo, & Lopez, James Lopez, Opel-ousas, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

This is a suit for damages for personal injuries. Plaintiff, John Shirley Guillory, instituted this action against defendants, Audubon Insurance Company (hereafter Audubon) and Standard Fire Insurance Company (hereafter Standard) seeking damages for personal injuries received when a tree, cut by plaintiff’s brother, Larry Guillory, landed on plaintiff’s leg resulting in serious and permanently disabling injuries. Audubon is the liability insurer of the premises where the accident occurred and Standard is the liability insurer of Larry Guillory. Basil Guillory, plaintiff’s father, is the owner of the insured premises. The trial court, after a hearing on the merits, concluded that Larry Guillory was not negligent and dismissed plaintiff’s suit as to his insurer, Standard. The trial court concluded that Basil Guillory, the owner of the premises, was negligent in that he knew or should have known of the existence of certain dangerous conditions on his property, yet failed to warn the plaintiff of their existence. The trial court awarded plaintiff the sum of $25,000.00. Audubon appeals from that judgment. Plaintiff has neither answered defendant’s appeal nor appealed from the aforesaid judgment. Therefore, the aforesaid judgment, insofar as it dismissed plaintiff’s suit as against Standard, is final.

Prior to trial, the parties stipulated to the fact of the accident; coverage by defendant, if liability on the part of Basil Guillory is determined; and, the amount of medical expenses incurred by plaintiff.

The facts of the accident are relatively undisputed. On October 22, 1977, Larry Guillory, accompanied by his son, Joey, age 13, was engaged in cutting down a large tree which had been struck by lightning on some earlier date. The tree trunk had been fractured approximately 12 feet from the ground with the remaining portion of the trunk, about 25 to 30 feet in length, lying at an angle toward the ground. The tree was located on Basil Guillory’s property which was leased at that time to a soybean farmer. The area where the tree had fallen was overgrown with weeds and some scattered soybean plants. Larry was in the process of trimming a few remaining branches from the trunk of the tree when plaintiff arrived to observe the activity. Prior to cutting the two remaining branches which supported the trunk portion of the tree, Larry and the plaintiff discussed the direction in which the tree would fall. Plaintiff surmised that the tree would fall relatively straight down in the direction in which plaintiff was then standing. Immediately prior to the accident, plaintiff was standing near that portion of the fallen tree furtherest from the base of the tree. Larry was positioned on the side of the tree opposite to plaintiff and somewhat closer to the base of the tree. Originally Joey was standing in a position 15-20 feet away from the tree on the same side as plaintiff and approximately where plaintiff was ultimately injured. Prior to the cutting of the remaining supporting branches, plaintiff instructed Joey to move away from the area where Joey was standing to a place of safety. Joey did so. Although plaintiff denies that Larry warned him to move out of the way, both Larry and Joey testified that plaintiff was warned twice to move to a position of safety. Thereafter, Larry proceeded to cut the last supporting branch which resulted in a cracking noise as the tree began to fall. Upon hearing the cracking of the supporting branch, plaintiff instantly froze, then suddenly began moving forward at an angle away from the falling tree to a position approximately where Joey had been standing prior to plaintiff’s warning. In his attempt to move out of danger, plaintiff tripped on a branch concealed by the tall grass growing in the area. Although there is some dispute in the testimony, it appears that the tree trunk rolled, and subsequently, landed on plaintiff’s leg resulting in a compound fracture of plaintiff’s tibula and fibula. Plaintiff’s injuries required two surgical procedures and ultimately resulted in plaintiff being permanently disabled.

In awarding judgment to plaintiff, the trial court found that Audubon’s insured, Basil Guillory, was negligent in allowing a dangerous condition to exist on premises owned by him and failing to correct and/or warn of such condition.

The issues on appeal are: (1) Does a causal relationship exist between the harm to plaintiff and Basil Guillory’s alleged negligent conduct? (2) What, if any, duty was owed by Basil Guillory to the plaintiff? (3) Was there a breach of this duty? (4) Was the risk, and harm caused, within the scope of protection afforded by the duty breached? and, (5) Was plaintiff contributorily negligent or did he assume the risk of harm, thus, barring his recovery? We will consider these issues in the order set forth.

Audubon first contends that the alleged negligence of Basil Guillory, specifically, his failure to correct the condition of the tree branches lying on the ground or, in lieu thereof, of warning the plaintiff of their existence, was not the cause in fact of plaintiff’s injuries. In Shelton v. Aetna Casualty and Surety Company, 334 So.2d 406 (La.1976), our Supreme Court noted:

“It is well settled that for alleged wrongful conduct to be actionable negligence it must be found to be a cause in fact of the resulting harm. Jones v. Robbins, 289 So.2d 104 (La.1973); Dixie Drive It Yourself System v. American Beverage Company [242 La. 471, 137 So.2d 298] supra., Mixon v. Allstate Insurance Co., 300 So.2d 232 (La.App.2d Cir.), writ refused, 303 So.2d 179 (La.1974). This determination of whether the conduct complained of bears a causal connection in fact to the occurrence of the accident is properly made without reference to those policy considerations required when ascertaining liability by the duty-risk approach. Thus if the plaintiff can show that he probably would not have suffered the injury complained of but for the defendant’s conduct, he has carried his burden of proof relative to cause in fact. See Stewart v. Gibson Products Company of Natchitoches Parish Louisiana, Inc., 300 So.2d 870 (La.App. 3rd Cir. 1974); Malone, Ruminations on Dixie Drive It Yourself versus American Beverage Company, 30 La.L.Rev. 363 (1970).”

Thus, in the present case, we must determine if but for Basil Guillory’s failure to correct the allegedly unreasonably dangerous condition existing on his property or at least warning plaintiff of its existence, plaintiff would not have been injured.

The record reflects that a few days prior to plaintiff’s accident, Larry and Basil Guil-lory examined the fallen tree and discussed the best manner in which to cut the same. While at the tree site, Larry under Basil’s direction, trimmed a few of the tree’s branches and left them lying on the ground in the area. The record reflects that Basil made no effort to remove the discarded branches from the premises, nor did he warn plaintiff of their existence. It is clear that Basil had knowledge that there were tree branches lying in the grassy area surrounding the tree at the time of the accident. The evidence and testimony received at trial clearly establish that the cause in fact of plaintiff’s accident was the actual felling of the tree combined with his running into its path and tripping over the tree branches lying on the ground.

The district court concluded from the evidence presented at trial, that the facts of the instant matter satisfied the aforestated “but for” test. Clearly, but for the fallen tree, the scattered branches, Larry’s action in cutting the tree at that point in time when John Shirley was in close proximity to the tree, the accident would not have occurred. Therefore, to that extent, it can be said that Basil Guillory’s permitting such conditions to exist was a cause in fact of the accident.

Although the allowance by the landowner of the aforesaid conditions to exist and his failure to remove the tree branches or warn of their existence may have been a cause in fact of plaintiff’s injuries, our inquiry does not end there. Rather, before the plaintiff can be allowed to recover for such allegedly negligent conduct, it must be established that the conduct complained of constituted a breach of a legal duty imposed to protect against the particular risk involved. See Vidrine v. Missouri Farm Association, 339 So.2d 877 (La.App. 3rd Cir. 1976), writ refused, 342 So.2d 216 (La.1977). In this regard, our Supreme Court in Shelton, supra, stated:

“A finding that defendant’s conduct was the cause in fact of plaintiff’s injury, however, does not establish liability. In addition, we are required to ascertain whether the landowner breached a legal duty imposed to protect against the particular risk involved. Smolinski v. Taulli, 276 So.2d 286 (La.1973); Hill v. Lundin & Associates, Inc., [260 La. 542, 256 So.2d 620] supra; Pierre v. Allstate Insurance Co., 257 La. 471, 242 So.2d 821 (1971); Page v. Green, 306 So.2d 847 (La.App. 2d Cir. 1975). In making this determination, the following inquiries must be made: (1) What, if any, duty was owed by the landowner to the plaintiff? (2) Was there a breach of this duty? (3) Was the risk, and harm caused, within the scope of protection afforded by the duty breached? Jones v. Robbins, [La., 289 So.2d 104] supra; Hill v. Lundin & Associates, Inc., supra; Thomas v. Hanover Insurance Co., 321 So.2d 30 (La.App. 3rd Cir. 1975).”

The duty owed by a landowner to a guest such as the plaintiff was set forth in Vid-rine, supra, wherein we stated:

“. .. (T)he landowner owed plaintiff a duty to discover any unreasonably dangerous conditions on the premises and to either correct the condition or warn him of their existence. Shelton v. Aetna Casualty and Surety Company, supra; Natal v. Phoenix Assurance Co., 305 So.2d 488 (La.Sup.Ct.1974); Foggin v. General Guaranty Insurance Co., 250 La. 347, 195 So.2d 636 (1967).”

In addition, as we stated in Boutte v. Pennsylvania Millers Mutual Insurance Co., 386 So.2d 700 (La.App. 3rd Cir. 1980),

“. . . it is well settled that a landowner is not liable for an injury resulting from a condition which should have been observed by an individual in the exercise of reasonable care or which was as obvious to a visitor as to the landowner. Shelton v. Aetna Casualty Co., supra; Alexander v. General Accident Fire and Life Assurance Corp., 98 So.2d 730 (La.App. 1st Cir. 1957), writ denied Feb. 10, 1958.”

In light of the aforestated jurisprudence, we conclude that Basil Guillory owed to plaintiff the duty to discover any unreasonably dangerous conditions on the premises and to either correct the condition or warn plaintiff of its existence. Presumably, the trial court concluded that the presence of the fallen tree and the tree branches scattered on the ground in the accident area presented an unreasonably dangerous condition, thus, triggering the aforesaid legal duty. In addition, the trial court concluded that Basil’s failure to warn the plaintiff of the tree branches constituted a breach of the legal duty owed by the landowner to the plaintiff and that the risk and subsequent harm caused was within the scope of protection afforded by such duty. We disagree.

We conclude that the fallen tree and the branches lying on the ground in the area of the tree did not create an unreasonably dangerous condition such that the landowner had a duty of prior discovery, correction, and/or warning. In this regard, as stated, a landowner is not liable for injury sustained which results from a condition which should have been observed by the individual in the exercise of reasonable care or which was as obvious to a visitor as to the landowner. See Shelton v. Aetna Casualty & Surety Co., supra. The aforesaid principle is clearly applicable to the facts of the instant matter. When a dangerous condition is patently obvious and easily avoidable, it can hardly be considered to present a condition creating an unreasonable risk of harm.

At trial, the plaintiff admitted that the cutting of the tree presented a dangerous situation. He also testified that he observed several tree branches lying in the grassy area surrounding the tree. Plaintiff conceded that he warned Joey Guillory to move away from the same area in which he was ultimately injured, thus, indicating that plaintiff had prior knowledge of the danger associated with the area. Further, Larry and Joey both testified that Larry had warned plaintiff on two occasions to move away from the area to a position of safety, yet plaintiff elected not to do so. The record reflects that defendant’s insured was not present at the accident site, nor did he have knowledge that either plaintiff or his brother would be on his premises engaging in the tree cutting task on the day of the accident. Thus, it is clear that the hazardous nature of the activity, as well as the obstacle presented by the tree branches lying in the area, was as obvious to the plaintiff, if not more so, than to defendant’s insured who was not even present at the accident scene. Surely a reasonable man would anticipate the presence of tree branches lying in the area surrounding a fallen tree. Clearly, an invitee, such as the plaintiff, has the duty to exercise due care while on another’s premises. It would be unreasonable to impose upon a landowner the duty of prior discovery, correction and/or warning under the present factual circumstances. Thus, we determine that the trial court erred in concluding that the landowner owed a legal duty to plaintiff and that the fallen tree and branches lying on the ground on Basil’s premises constituted an unreasonably dangerous condition.

In brief, plaintiff refers to defendant’s liability under LSA-C.C. Article 2317 (Louisiana’s strict liability statute), although he fails to elaborate on the aforesaid article’s applicability to the instant matter. We find the article inapplicable under the circumstances presented.

In the recent Louisiana Supreme Court case entitled Kent v. Gulf States Utilities Company, 418 So.2d 493 (La.1982), Justice Lemmon, in distinguishing liability based on LSA-C.C. Articles 2315 and 2316 from liability based on LSA-C.C. Article 2317, stated:

“In a typical negligence case (those based on C.C. 2315 and 2316) against the owner of a thing (such as a tree) which is actively involved in the causation of injury, the claimant must prove that something about the thing created an unreasonable risk of injury that resulted in the damages, that the owner knew or should have known of that risk, and that the owner nevertheless failed to render the thing safe or to take adequate steps to prevent the damage caused by the thing. Under traditional negligence concepts, the knowledge (actual or constructive) gives rise to the duty to take reasonable steps to protect against injurious consequences resulting from the risk, and no responsibility is placed on the owner who acted reasonably but nevertheless failed to discover that the thing presented an unreasonable risk of harm.
In a strict liability case against the same owner, the claimant is relieved only of proving that the owner knew or should have known of the risk involved. The claimant must still prove that under the circumstances the thins: presented an unreasonable risk of harm which resulted in the damage (or must prove, as some decisions have characterized this element of proof, that the thins: was defective).”

(Emphasis ours)

Since we have concluded that the trial court erred in finding that Basil Guillory breached a legal duty owed to plaintiff, we need not address the remaining issues here-inabove set forth.

For the above and foregoing reasons, the judgment of the trial court is reversed and set aside and plaintiff’s suit against Audubon is dismissed with prejudice. All costs of this appeal and all costs at the trial level are assessed to plaintiff-appellee, John Shirley Guillory.

REVERSED AND RENDERED.

      . The trial court, in concluding that Larry Guil-lory was not negligent, found as fact that Larry warned plaintiff twice to move to a position of safety.


text:
    Katie LEBLANC, Plaintiff-Appellant, v. Robert BULLER, Defendant-Appellee.
    No. 82-96.
    Court of Appeal of Louisiana, Third Circuit.
    July 21, 1982.

      Andrus & Preis, Vance R. Andrus, Lafayette, for plaintiff-appellant.
    Fruge & DeJean, Kenneth W. DeJean, Lafayette, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

This is an appeal from the trial court’s interpretation of a marriage contract. The issue of interpretation arose out of a suit for partition of the community property.

Katie M. LeBlanc (Katie) and Robert Bul-ler (Robert) entered into a marriage contract on June 9, 1976. The contract provided that any mineral royalties due either spouse would remain that spouse’s separate property. In all other respects, the marriage was governed by the legal matrimonial regime; community of acquets and gains. The marriage contract was filed into the conveyance records in the Parish of Lafayette, the matrimonial domicile. Katie and Robert were subsequently married on June 12, 1976, in Lafayette, Louisiana.

Katie filed a petition for separation from Robert on August 27, 1979, based upon his alleged abandonment of her on August 9, 1979. Robert answered and filed a recon-ventional demand alleging constructive abandonment on the part of Katie and/or mental cruelty. Katie answered the recon-ventional demand denying its allegations. Judgment was rendered on January 7,1980, granting a separation based upon mutual fault.

On January 24, 1980, Robert filed a petition for divorce based upon Katie’s adultery which she denied in her answer. Robert filed a petition for partition of community property on July 23, 1980. Katie answered the partition petition and further alleged:

". . . that she is the owner of an undivided one-half interest in and to any and all royalty payments, fruits and revenues, bonuses or any other assets whatsoever deriving from the Grosse Isle Oil field and the St. Martinville oil field, together with an accounting from Robert Buller for any and all sums he received during the existence of the community, and subsequent thereto until said accounting is made, together with a future share in such assets equivalent to one-half the value of the same.”

Upon trial of the partition suit, the trial judge reviewed the marriage contract, the mineral lease and the assignment of an overriding royalty interest to Robert by Dynamic Exploration. He found the marriage contract to be clear and unambiguous and, therefore, refused to allow Katie or any other witness to testify concerning the intent of that marriage contract in regard to the ownership of the mineral royalties. The trial judge found parol evidence to be inadmissible. Judgment was rendered holding that certain mineral royalties were the separate property of Robert as per the marriage contract. The judgment also ordered the partition by licitation of the community immovable property, subject to the reimbursement owed to Robert for one-half of all payments for mortgage notes, taxes, maintenance and interest. Each spouse is to receive one-half of the remaining proceeds.

Katie appeals from the adverse judgment on her claim for one-half of the oil royalties paid to her husband. We affirm.

The sole issue presented on appeal is whether the trial court erred in finding the marriage contract unambiguous, thereby disallowing parol evidence to show that Katie was owner of one-half of the overriding royalties which had been acquired by her husband.

Upon trial of the matter, certain documents were introduced into evidence by stipulation. These documents were:

(1) A mineral lease of certain lands by Wesley and Margaret Steen to Robert Buller, dated January 30, 1978. (An exhibit attached to the lease shows that this lease was later assigned to Dynamic Exploration, Inc.)
(2) An assignment of overriding royalty interests from Dynamic Exploration to Robert Buller dated December 1, 1978.
(3) The marriage contract, in question, dated June 9, 1976.

Counsel for Katie then attempted to introduce parol evidence to support Katie’s claim for one-half of the overriding royalty interests that had been acquired by Robert during their marriage. Katie contended that she should be allowed to introduce the parol evidence to show the “common intent of the parties” to the marriage contract. Counsel for Robert objected to the evidence on the ground that the marriage contract clearly reflected the intent of the parties and that, since the overriding royalty interests were acquired by and in Robert’s name, such royalties were his separate property according to the unambiguous terms of the contract. The trial judge sustained the objection and disallowed the parol evidence.

This brings us to the question on appeal as to whether the marriage contract clearly expresses the intent of the parties. Only three sentences make up the substantive provisions of the contract which provide:

“The said intended husband and wife do formally agree that all royalty income shall be the separate income and property of the spouse in whose name the right to receive said royalty income is recorded or otherwise determinable. This reservation of royalty income as the separate income of either spouse shall apply to royalty income presently being received by either spouse and to any royalty income which either spouse shall receive after the date of marriage, whether such royalty income receivable after the date of marriage is due to contracts entered before the marriage or after the date of marriage. It is thus the purpose and intent of the parties that royalty income shall never form a portion of the community of acquets and gains otherwise existinsr between the said intended spouses, but shall remain the separate property and income of the spouse in whose name the risrht to receive said royalty originates. ” (Emphasis added.)

Counsel for Katie reiterates in its brief only the first sentence of the contract contending that the words “or otherwise determinable” opens the door to the parol evidence as these words render unclear the intention of the parties to the contract. We disagree.

LSA-C.C. art. 1945 provides, in pertinent part, as follows:

“Legal agreements having the effects of law upon the parties, none but the parties can abrogate or modify them. Upon this principle are established the following rules:
# if! * * * *
Second — That courts are bound to give legal effect to all such contracts according to the true intent of all the parties;
Third — That the intent is to be determined by the words of the contract, when these are clear and explicit and lead to no absured consequences

With these principles in mind, we look at the provisions of the contract as a whole in order to ascertain the intent of the parties.

We cannot isolate a portion of the contract and exclude the other provisions in resolving the question of intent. Counsel’s argument, that the intent of the parties cannot be ascertained from the contract, fails because he relies only on the first sentence of the contract without considering or discussing the remainder thereof and especially the last sentence.

This contract may be said to be unique in that it expressly, clearly and unequivocally sets forth the “purpose and intent” of the parties in the last sentence. We reiterate this sentence which provides:

“... It is the purpose and intent of the parties that royalty income shall never form a portion of the community of acquets and gains otherwise existing between the said intended spouses, but shall remain the separate property and income of the spouse in whose name the right to receive said royalty originates.”

This sentence clearly expresses the intent of the parties that royalty income shall remain the separate property and income of the spouse in whose name the right to receive said royalty originates. It is undisputed that the right to receive the royalties originated in Robert’s name. Since the right to receive the royalties originated in Robert’s name, it became his separate property under the clear provisions of the contract. Parol evidence would be inadmissible to alter the contract.

In summary, after a consideration of the contract in its entirety, it is clear that both parties desired that royalty income would never form a part of the community otherwise existing between the parties, but would remain the separate property and income of the spouse in whose name the royalties originate.

The case of Henry v. Ballard & Cordell Corp., 401 So.2d 600 (La.App. 3rd Cir. 1981), is not applicable. That case dealt with the interpretation of the words “market value” used in mineral leases. The leases contained no provision setting forth the meaning of the term “market value.” Parol evidence was admitted to explain the intent of the parties as to the meaning of the term. In the case at hand, the intent of the parties was clearly set forth, thus, no parol evidence to the contrary is admissible.

The trial judge correctly sustained the objection to the parol evidence and his judgment dismissing Katie’s claims to be recognized as an owner of the royalties in question shall be affirmed.

For these reasons, the judgment of the trial court is affirmed. The costs of this appeal shall be paid by plaintiff-appellant.

AFFIRMED.

      . Counsel for Katie contends that the substance of the parol evidence, if allowed, would show that Katie became an employee of Dynamic Exploration after her marriage to Robert. As an employee of Dynamic, she became acquainted with Juan Diliberto, a geologist retained by Dynamic. Diliberto was working on a drilling prospect and apparently needed some assistance in obtaining leases. Katie suggested that Diliberto talk to Robert about assisting him. Katie introduced Diliberto to her husband. Diliberto worked out an agreement with Robert wherein they would work together on the prospect and divide the overriding interest that may accrue therefrom. Robert actively participated in the prospect and, as a result, he was assigned the overriding royalty interests in question.


text:
    DOMINGUES MOTORS, INC., Plaintiff-Appellant, v. John A. LALONDE, Defendant-Appellee.
    No. 82-112.
    Court of Appeal of Louisiana, Third Circuit.
    July 21, 1982.

      Gauthier & Cedars, Stanford B. Gauthier, II and Chester R. Cedars, Breaux Bridge, for plaintiff-appellant.
    Charles N. Wooten, Ltd. by Linda G. Smith, Lafayette, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

In this suit plaintiff-appellant (hereafter, Domingues) seeks a judgment against the defendant-appellee (hereafter, Lalonde) for the sum of $1,855.82 with interest and attorney’s fees allegedly due under an agreement of continuing guaranty executed by Lalonde in favor of Domingues, dated July 25, 1978. Lalonde filed answer to Do-mingues’ petition admitting execution of the agreement of continuing guaranty but denying all other allegations of plaintiff’s petition and further responded by filing a motion for summary judgment. The trial court sustained Lalonde’s motion for summary judgment and dismissed Domingues’ suit. Domingues appeals.

The pleadings, affidavits etc., submitted in support of Lalonde’s motion for summary judgment reflect the following material facts to be without dispute. On July 25, 1978, Deborah Lalonde purchased a 1978 Chevrolet automobile from Domingues for the sum of $8,576.13. A cash downpayment of $171.40 was made leaving a balance of $8,404.73 to be financed. On the aforesaid date Deborah Lalonde executed, as sole maker, a promissory note for the sum of $11,119.20, made payable to bearer in 48 monthly installments of $231.65. Because of the small downpayment, Domingues requested additional security. In compliance with this request Deborah Lalonde offered, and Domingues accepted, as further security, a continuing guaranty agreement from Deborah’s father, John A. Lalonde, the defendant-appellee. The continuing guaranty agreement, executed by Lalonde on July 25, 1978 provides in part as follows:

“In consideration of the making of the within contract by the seller therein, the undersigned does hereby guarantee to said seller, or any assignee of said contract, payment of all deferred payments as specified therein and covenants in default of payment of any installment or performance of any requirement thereof by buyer to pay full amount remaining unpaid upon demand. The liability of the undersigned shall not be affected by any settlement, extensions, variation of terms of the within contract effected with, or by the discharge or release of the obligation of the buyer or any other person interested, by operation of law or otherwise. Notice of acceptance of this guaranty, notices of non-payment and nonperformance, notices of amount of indebtedness outstanding at any time, protests, demands, and prosecution of collection, foreclosure and possessory remedies, and the right to remove any legal action from the court originally acquiring jurisdiction, are hereby expressly waived.”

The promissory note, chattel mortgage and surety agreement were assigned, with recourse, by Domingues to General Motors Acceptance Corporation (GMAC). On August 10, 1979, Deborah Lalonde instituted voluntary bankruptcy proceedings in the United States District Court for the Western District of Louisiana. In these proceedings, she sought a discharge from her debt incurred in the subject transaction. The balance due on the obligation at that time was $9,033.30. During the course of the bankruptcy proceeding, GMAC applied for and secured an order enabling it to foreclose on the mortgaged property. Subsequently, GMAC applied for and was granted an order in the bankruptcy matter allowing a sale of the mortgaged property to it in full satisfaction of GMAC’s claim. On September 18, 1979, the trustee in bankruptcy, in the matter of Deborah A. Lal-onde, Bankrupt No. B-79-1343-LO, sold, transferred and delivered unto GMAC all right, title and interest of the bankrupt in the mortgaged automobile in full satisfaction of GMAC’s claim. Thereafter, GMAC negotiated the promissory note, chattel mortgage, surety agreement and automobile back to Domingues. Domingues then sold the vehicle at private sale for $5,200.00. Domingues then filed this suit seeking judgment against Lalonde under the terms of the continuing guaranty agreement, for the alleged balance owed after allowing credit for rebates of unearned interest and insurance premiums and the amount received at the private sale of the car. On October 15, 1979, the bankrupt, Deborah Lalonde, was discharged in bankruptcy.

The trial court did not assign written reasons in support of its judgment sustaining the motion for summary judgment.

Before this court, counsel for plaintiff-appellant has devoted his entire argument to the propositions that (1) the liability of a surety under a third party guaranty contract is unaffected by the principal debt- or’s discharge in bankruptcy; and, (2) a motion for summary judgment should be granted only if there is no genuine issue as to material fact and mover is entitled to judgment as a matter of law. Although we concede the correctness of these legal principles, we find that the judgment of the trial court does violence to neither.

Plaintiff-appellant has not pointed out in brief, or otherwise, any material factual issue which it considers to be in dispute but merely avers that “the contents of the record of this proceeding dictate that appellee is not entitled to a judgment as a matter of law”. For the reasons which follow, we conclude that the record reflects no dispute as to any fact material to a determination that defendant-appellee is entitled, as a matter of law, to a judgment dismissing plaintiff-appellant’s demand.

As aforestated, the record reflects as undisputed the fact that the mortgage creditor, GMAC, provoked a sale of the movable property, which secured the debt, to it, without the benefit of appraisement. It is immaterial that this occurred after the principal debtor had instituted voluntary bankruptcy proceedings, in that the sale of the mortgage chattel, without benefit of appraisement, irrespective of the adjudication in bankruptcy, had the effect of barring absolutely any deficiency judgment against the principal debtor and her surety.

It is well settled law that a mortgage creditor is absolutely barred from a deficiency judgment against the principal debtor where he provokes a sale, judicial or private, without the benefit of appraisement. LSA-R.S. 13:4106, 4107; David Investment Co., Inc. v. Wright, 89 So.2d 442 (La.App. 1st Cir. 1956); Universal C.I.T. Credit Corp. v. Hulett, 151 So.2d 705 (La.App. 3rd Cir. 1963); Carr v. Lattier, 188 So.2d 645 (La.App. 2nd Cir. 1966).

This circumstance, i.e., sale, judicial or private, of mortgaged property without appraisement, likewise bars a deficiency judgment against the debtor’s surety, notwithstanding the surety’s contractual stipulation that his liability “shall not be affected ... by the discharge or release of the (principal debtor) ..., by operation of law or otherwise”. This was so held by our brethren of the Fourth Circuit in General Motors Acceptance Corporation v. Smith, 399 So.2d 1285 (La.App.1981). In speaking to the effect of this circumstance on the liability of a surety under a continuing guaranty agreement, identical to that involved in the instant case, Judge Redmann, the organ of the court in GMAC v. Smith, supra, stated:

“The public policy of R.S. 13:4106 is so strong and unwaivable that it prevents even a judgment by default for the “deficiency” in the absence of allegation and proof of sale with appraisal, Gumine v. Dupas, La.App. 4 Cir. 1964, 159 So.2d 377.
That public policy ordinarily discharges persons secondarily liable because the discharge of the person primarily liable releases one in the position of a surety, Simmons v. Clark, La.App. 1 Cir. 1953, 64 So.2d 520,3 or an indorser, Southland Inv. Co. v. Motor Sales Co., 1941, 198 La. 1028, 5 So.2d 324, unless the secondary obligor consented to the sale without appraisement, Southland above; Farmerville Bank v. Scheen, La.App. 2 Cir. 1954, 76 So.2d 581; Commercial Cr. Eq. Corp. v. Larry Parrott of Gueydan, La.App. 3 Cir. 1968, 212 So.2d 860, writ refused [252 La. 895] 214 So.2d 719 (see also Exchange Nat. Bank v. Spalitta, La.App. 4 Cir. 1974, 295 So.2d 18, rev’d on other grounds, La.1975, 321 So.2d 338).
Plaintiff argues in our case, however, that the surety’s contractual agreement was that his liability “shall not be affected” by discharge of the debtor and that therefore, as in Louisiana Bank & T. Co.; Crowley v. Boutte, La.1975, 309 So.2d 274, the ordinary rule of law that the discharge of the debtor discharges the sureties, C.C. 2205, does not apply.
Our surety, unlike the sureties in Boutte, is not bound in solido with the debtor,4 but we will accept plaintiff’s argument that Boutte might imply enforceability of his agreement that his liability is to be unaffected by discharge of the debtor. Yet plaintiff’s argument concedes that Boutte, 309 So.2d at 278, n.7, preserves the surety’s personal right to reimbursement from the debtor (apart from simple subrogation to the creditor’s now-extinguished right). The consequence would thus be that the principal debtor would be liable to the surety if the creditor obtains a judgment against the surety.
That consequence is inconsistent with R.S. 13:4106 and -7. The debtor cannot himself waive the public policy of § 4106, and a surety cannot be allowed to waive it for the debtor, and the creditor cannot be allowed to defeat that public policy by the simple device of obliging the debtor to provide a surety who can then collect from the debtor. The provision of the surety’s contract making his liability unaffected by the discharge of the debtor is inconsistent with the unwaivable public policy of R.S. 13:4106 and is therefore unenforceable ...”

(footnotes omitted)

We are in total agreement with the holding in General Motors Acceptance Corporation v. Smith, supra, and find the principles of law announced therein to be dispositive of the issue presented in the instant case. Accordingly, we affirm the trial court’s judgment without considering defendant-appellee’s contention that under LSA-C.C. Article 3062, GMAC’s voluntary acceptance of a return of the mortgaged property in payment of the principal debt operated to discharge defendant-appellee from all liability under the agreement of continuing guaranty.

AFFIRMED.