author: GULOTTA, Judge.

text:
    Margaret Jean HALL v. The CITY OF NEW ORLEANS, New Orleans Police Department, Detective Charles Schlosser and Dale Bonura, District Attorney Harry Connick, Robert K. Brondum, Leonard C. Brondum, Jo Ann Mershad, Larry J. Wood, Sr., Robert K. Brondum and Associates, Inc., Midland Insurance Company and Christopher Eardley Hall.
    No. 10686.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1980.
    Rehearing Denied Aug. 5, 1980.

      Favret, Favret, Demarest & Russo, J. Paul Demarest, New Orleans, for plaintiff-appellant.
    William F. Wessel, Victoria Lennox Bar-tels, New Orleans, for defendant-appellee (Harry Connick, District Attorney).
    Before GULOTTA, BOUTALL and CHE-HARDY, JJ.
   GULOTTA, Judge.

The issue presented here is whether a district attorney is subject to civil liability in damages for advising the police to release from custody a person accused by plaintiff of committing a felony.

Plaintiff, Mrs. Margaret Jean Hall, instituted this suit for damages sustained by her as the result of the alleged abduction of her minor son from her home in New Orleans, and the removal of the child to the State of California. Several defendants are named in the suit, including plaintiff's former husband, Christopher Eardley Hall, the New Orleans Police Department, several detectives and private investigators, and Harry Connick, the District Attorney for the Parish of Orleans. District Attorney Connick filed an exception of no cause of action, pleading “absolute immunity which protects prosecutors from civil suit for damages.” Judgment was rendered by the trial court sustaining that exception and dismissing this suit as to Connick. Plaintiff appeals.

Connick answered, alleging that the appeal was frivolous and without merit, and praying that the appellant be condemned to pay damages and the costs incurred in both courts.

Our primary concern here is whether plaintiff’s petition states a cause of action as to Connick.

The peremptory exception of no cause of action tests the legal sufficiency of the petition. For the purpose of determining the validity of such an exception, all well pleaded allegations of fact are accepted as true. Haskins v. Clary, 346 So.2d 193 (La.1977).

In this suit plaintiff alleges that she is the mother of two minor children, Christopher Eardley Hall, Jr. and Tiffany Susan Hall, issue of her marriage to her former husband, Christopher Eardley Hall. Mrs. Hall was awarded custody of these children by judgment of the Civil District Court for the Parish of Orleans, rendered on August 29, 1978, which judgment prohibits her former husband from visiting the children away from petitioner’s home and from removing the children from the jurisdiction of that court.

The petition further alleges that on September 1, 1978, Mrs. Hall’s young son, Christopher, was abducted from the front of her home in New Orleans, forced to enter an automobile and was transported away. Plaintiff promptly informed the New Orleans Police Department that her son had been kidnapped, and that the possible perpetrator was her former husband. She told them that she had a valid judgment awarding her the custody of her son and prohibiting the father from removing the child from the Parish of Orleans.

Plaintiff also alleges that two detectives of the New Orleans Police Department learned several hours later that plaintiff’s husband was then in Mobile, Alabama, and that he had plaintiff's son in his custody. Upon instructions of the New Orleans Police Department, Mr. Hall was then detained by the Mobile Airport Security. She alleges, however, that her former husband informed the Mobile authorities, as well as the detectives of the New Orleans Police Department, that he had “court papers” from the State of California which granted him custody of the child. The above detectives, with the advice and consent of other members of the New Orleans Police Department, then allowed the release of the said Christopher Eardley Hall from the custody of the Mobile authorities, and Mr. Hall thereupon returned to California with the child. Plaintiff alleges that since that time she has been prohibited from contacting her son.

The petition contains the following allegations with reference to the alleged acts of defendant Harry Connick:

“X
. However, the Defendants herein, DETECTIVE CHARLES SCHLOS-SER and DETECTIVE DALE BONURA, and other supervisors and employees of THE NEW ORLEANS POLICE DEPARTMENT made the decision either upon their own advice or that of the District Attorney’s, and refused to place a hold on CHRISTOPHER EARDLEY HALL, so that the child could be retrieved and returned to New Orleans.
XI
Petitioner avers that because of the inaction and failure of THE NEW ORLEANS POLICE DEPARTMENT, its agents and employees, and in particular the Defendants DETECTIVE CHARLES SCHLOS-SER and DALE BONURA, and further, the inaction of the DISTRICT ATTORNEY, HARRY CONNICK, his agents and employees, who advised the said NEW ORLEANS POLICE DEPARTMENT, in this matter, caused your Petitioner herein to suffer the permanent loss, of her minor child, CHRISTOPHER EARDLEY HALL, JR.
XII
Petitioner further avers that upon information furnished by THE NEW ORLEANS POLICE DEPARTMENT the District Attorney for the Parish of Orleans, the HONORABLE HARRY CONNICK, his agents and employees, did advise THE NEW ORLEANS POLICE DEPARTMENT, its agents and employees that they were authorized to release from custody CHRISTOPHER EARDLEY HALL, although he had clearly violated a Louisiana Felony Statute by his actions both individually and in conspiracy with other named Defendants herein.
* * * * * *
XVI
Petitioner avers that as a result of the willful, intentional, malicious and negligent actions of the above named Defendants, she has been damaged by all named Defendants to the extent that she has suffered a great deal of mental anguish, pain and suffering for the loss of her child, and will continue to suffer additional loss until such time as her son is lawfully returned to her and Petitioner avers that her damages are at a minimum of $1,000,000.00.”

The trial judge concluded that the allegations in plaintiff’s petition were not sufficient to state a cause of action against the District Attorney.

Plaintiff argues that this appeal concerns “the involvement of the District Attorney for the Parish of Orleans in a kidnapping.” She contends that the authorization to release her former husband from the custody was given by defendant Connick or his assistant, that the authorization was granted despite the fact that “appellee knew that a complaint had been made to the New Orleans Police Department by the appellant,” and that by allowing Mr. Hall to retain physical custody of the child the District Attorney “assisted, caused and encouraged the successful completion of an unlawful act.”

Connick contends that the custody and control of persons who have been arrested rests with the police, that he has no authority to either release or retain a person, and that in the final analysis plaintiffs allegations boil down to an assertion that the District Attorney refused to accept a charge of kidnapping against Mr. Hall. He argues that there is no duty on the part of the public prosecutor in Louisiana to initiate any particular criminal proceeding; nor is there any standing to object on the part of any person who perceives himself aggrieved by the prosecutor’s failure to prosecute. The immunity of the prosecutor under these circumstances, he argues, is absolute.

Because plaintiff has failed to show there was any duty toward her violated by the District Attorney, and has failed to state a cause of action on that ground, we find it unnecessary to discuss the immunity question.

The Louisiana Constitution of 1974, Art. 5, Sec. 26(B), provides:

“(B) Except as otherwise provided by this constitution, a district attorney, or his designated assistant, shall have charge of every criminal prosecution by the state in his district, be the representative of the state before the grand jury in his district, and be the legal advisor to the grand jury. He shall perform other duties provided by law.”

R.S. 16:1(C) more or less reiterates the language of the Constitution, setting forth the duties and powers of the District Attorney for the Parish of Orleans.

More specifically, Article 61 of the Code of Criminal Procedure provides,

“Subject to the supervision of the attorney general, as provided in Article 62, the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute.” (Emphasis added).

Under C.Cr.P. art. 691, the district attorney has the power to dismiss a prosecution at his discretion.

In addition, C.Cr.P. art. 381 states,

“A criminal prosecution is brought in the name of the state in a court of criminal jurisdiction, for the purpose of bringing to punishment one who has violated a criminal law.
The person Injured by the commission of an offense is not a party to the criminal prosecution, and his rights are not affected thereby.” (Emphasis added.)

The cited laws give the district attorney broad discretionary power in both instituting and handling criminal prosecutions. Plaintiff’s claim, therefore, is that the district attorney refused to prosecute her ex-husband for kidnapping their son, and she has stated no cause of action because such a decision is within the district attorney’s constitutionally-granted powers.

Having so concluded, we find no error in the trial court’s judgment maintaining the District Attorney’s exception of no cause of action. We find no merit further to the District Attorney’s claim for damages for frivolous appeal. Plaintiff’s appeal was on a valid legal question not yet settled by the law of this state.

Accordingly, the judgment is affirmed.

AFFIRMED.

      . The federal courts have held district attorneys immune from liability under 42 U.S.C.A. § 1983 for civil rights violations stemming from false arrest or malicious prosecution. See Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Conner v. Pickett, 552 F.2d 585 (5th Cir. 1977). However, Louisiana law does not hold district attorneys immune from civil liability for malicious prosecution. See, e. g., Crier v. City of New Orleans, 365 So.2d 35 (La.App. 4th Cir. 1978).


source: Caselaw Access Project

author: BARRY, Judge.

license: Public Domain

text:
    Giselle COOPER v. Vera M. ANDERSON.
    No. 11228.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1980.
    Rehearing Denied Aug. 5, 1980.
    Steven M. Koenig, New Orleans, for plaintiff-appellant, Giselle Cooper.
    Wilson F. Shoughrue, Jr., New Orleans, for defendant-appellee, Vera M. Anderson.
    Dillon & Cambre, David M. Cambre, New Orleans, for defendant-appellee, Bellefonte Insurance Co.
    Before SAMUEL, BOUTALL and BARRY, JJ.
   BARRY, Judge.

Plaintiff Giselle Cooper was a tenant of defendant Vera Anderson. On the morning of March 1, 1978, Cooper was leaving her apartment when she met Anderson who requested entry into the premises for maintenance work. An argument ensued and Anderson pulled a handgun from her purse and allegedly threatened Cooper. The facts leading up to and during this incident are disputed by both parties. A second incident occurred later the same day but need not be considered for the reasons explained below.

Plaintiff sued defendant for damages alleging embarrassment, humiliation and mental anguish. Defendant filed a general denial and further answered with her explanation of the incident. Subsequently, plaintiff joined the defendant, Bellefonte Insurance Company, as the insurer of Anderson under an Owner, Landlord, and Tenant policy in existence at the time of the incident. The insurer filed a general denial, then a motion for summary judgment based on the ground there was no genuine issue as to the material fact that the owner (insured) intentionally committed the alleged tort which would exclude coverage under the O.L.&T. policy. The District Court “reluctantly” granted the summary judgment from which the owner and tenant both appeal.

The appellee insurer urges that because the insured intentionally committed the alleged tort her action was clearly excluded from coverage. The policy covered property damage and bodily injury caused by an “occurrence" and arising out of the ownership, maintenance or use of the insured premises. The definition of “occurrence” in the policy provides:

“Occurrence means an accident . neither expected nor intended from the standpoint of the insured;”

A resolution of this appeal is necessarily restricted to an examination of the pleadings. Plaintiff alleged that when she explained to the defendant she had to leave the premises temporarily, the defendant pulled a pistol from her purse, detained the tenant, and threatened her with bodily harm. This version of the incident was seriously questioned in defendant Anderson’s answer which states in part:

“Plaintiff then made threats to defendant, the nature of which will be brought out at the time of the trial of this suit.”
and
“That because of threats made by plaintiff . . . defendant . . . took a pistol from her purse . . . ”

With this answer defendant affirmatively pleads self-defense to explain her action of utilizing the pistol.

The District Judge cited Lawrence v. Moore, 362 So.2d 803 (La.App. 4th Cir., 1978) as authority to grant the summary judgment. The decision in Lawrence was based on a deposition by the insured which described all of the facts and circumstances surrounding that incident, including the insured’s intent to commit the battery sued upon. Here we only have the insurance policy and court records indicating that Mrs. Anderson pleaded guilty to a battery affidavit. The guilty plea standing alone without explanation has no probative value and can be considered after a trial on the merits.

Summary judgment is a very harsh measure which can be considered only after careful analysis of all facts found in the entire record. Courts should move with great caution where summary relief is sought because it effectively closes the door to a full hearing.

A well established principle in our law is that summary judgment cannot be granted where there is a material fact(s) in dispute. Odom v. Hooper, 273 So.2d 510 (La.1973); Emp. Surplus Line Ins. v. City of Baton Rouge, 362 So.2d 561 (La.1978). Where a determination of subjective facts are involved, such as motive, intent or good faith, summary judgment is rarely appropriate. Langlois v. Eschet, 378 So.2d 189 (La.App. 4th Cir., 1979) and cases cited therein.

What the tenant and landlord said, or did, or intended to do or not do, based upon the circumstances, is a matter of factual determination. Defendant Anderson’s affirmative plea of self-defense raises a genuine issue as to a material fact, Sinclair Oil & Gas Company v. Delacroix Corporation, 235 So.2d 187 (La.App. 4th Cir., 1970); therefore, we find it unnecessary to review the conflicting allegations or to analyze our jurisprudence on accidental (responsive) versus intentional acts as they relate to insurance indemnification. These are matters which should be determined at a trial on the merits.

Accordingly, the judgment of the District Court granting summary judgment in favor of the defendant, Bellefonte Insurance Company, is reversed. This matter is remanded for further proceedings in the District Court. All costs of this appeal are to be paid by defendant-appellee Bellefonte Insurance Company.

REVERSED and REMANDED.

      . Plaintiff filed 31 detailed interrogatories which were never answered.


text:
    James R. PICTON v. SEWERAGE AND WATER BOARD.
    No. 11198.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1980.
    Rehearing Denied Aug. 5, 1980.
    J. Courtney Wilson, New Orleans, for plaintiff-appellant.
    John A. Gordon, Vincent T. Lococo and Gerard M. Victor, New Orleans, for defendant-appellee.
    Before SAMUEL, BOUTALL and BARRY, JJ.
   BARRY, Judge.

Appellant was terminated as a plumbing inspector for the Sewerage and Water Board by letter from the appointing authority. The dismissal was based upon Mr. Pic-ton’s “entire work record” which included “false and improper” inspection reports. A Hearing Examiner recommended termination which was affirmed by the Civil Service Commission of New Orleans. The employee appeals basically alleging insufficiency of notice in the termination letter and that the Civil Service Commission erred in ruling that appellant’s affirmative defense was not admissible as a defense to the charges in the termination letter.

This court has review of both fact and law on appeal from the Civil Service Commission. Louisiana Constitution, 1974, Article 10, Section 12: “The decision of a Commission shall be subject to review on any question of law or fact upon appeal.” Michel v. Dept. of Pub. Saf. Ah Bev. Con. Bd., 341 So.2d 1161 (La.App. 1st Cir., 1977), writ denied, 343 So.2d 1078; Armant v. Housing Authority of New Orleans, 351 So.2d 1262 (La.App. 1st Cir., 1977).

Before reviewing the facts for dismissal, we initially consider appellant’s contention that the notice of termination was insufficient and not in conformity with Rule IX, Section 1.2 which provides:

“In every case of removal, suspension, reduction in pay, or fine of any employee in the classified service, or of involuntary retirement or demotion of the employee, the appointing authority shall immediately furnish the employee and the Director a statement in writing of the reasons therefore. The Director shall notify the employee in writing at his last known address that he has a right to make a reply in writing, shall receive and consider the reply, and may make an investigation of the facts.” (emphasis added).

Mr. Picton did receive from the appointing authority a termination letter citing incidents as the alleged basis for his removal. However, he argues he did not receive notice from the Director of his right to reply to the termination. Appellee’s response is that since Mr. Picton did appeal he must have received some notice of his right to reply. There is no letter or evidence in the record which proves that Mr. Picton was notified in writing by the Director of his right to reply to his dismissal as required under Rule IX, Section 1.2.

Our Supreme Court has mandated that Civil Service Rules be strictly construed. Day v. Department of Institutions, 228 La. 105, 81 So.2d 826 (1955); Boucher v. Division of Employment Security, 226 La. 227, 75 So.2d 343 (1954); Bonnette v. National Surety Corporation, 75 So.2d 345 (La.1954); Pettit v. Reitzell, 202 La. 12, 11 So.2d 13 (1942).

In Boucher, supra, the Supreme Court held that a person who had acquired permanent civil service status could not be dismissed, demoted, or discriminated against by the appointing authority without furnishing to the employee in writing the safeguards required under the statutes. In Day, supra, our highest court stated the standard clearly: “If the rules adopted by the Commission must have the effect of law, as directed by the Constitution, they must be strictly followed.” 81 So.2d at page 828.

The language in Rule IX, Section 1.2 is clear and unambiguous in its mandate that the employee be advised in writing of his right to reply. Since that requirement must be strictly construed and the requirement may not have been met according to the record before us, this issue will be remanded for an evidentiary hearing at which the Director has the burden to prove that Mr. Picton received written notice of his right to reply to his dismissal in accordance with the rules of the Civil Service Commission.

When this matter was heard before the Hearing Examiner appellant’s counsel advised that he would present an affirmative defense to his dismissal. The Hearing Examiner ruled that the employee’s defense would be limited to contesting the specifications contained in the letter of dismissal. Appellant’s counsel appealed to the Civil Service Commission which upheld the Hearing Examiner’s ruling. Writs of Certiorari and Review were refused by our appellate courts because “our usual practice will not interrupt the proceedings of the Commission at this stage.” Picton v. Sewerage and Water Board, 356 So.2d 1391 (La.1978).

The Commission’s refusal to permit appellant an opportunity to present and introduce evidence of alleged discrimination or impure motives clearly constitutes reversible error. The record reveals that the Commission limited appellant’s evidence to answer charges contained in the letter of dismissal and declined to allow evidence that the employee was discharged because of motives other than the causes assigned in the letter of dismissal. As stated by counsel for appellee in his brief at page 15: “It was not necessary for the Board or Mr. Lawrence to respond to the appellant’s proffer because the appellant’s affirmative defense was ruled as inadmissible evidence.”

Our jurisprudence has been consistent in holding that if an employee on appeal from an order of dismissal claims that the assigned cause therefore is not the real cause, but that the underlying cause is politics or religion, it seems too plain for extended argument that he has the right to have the Civil Service Commission consider the factual accuracy of the claim. Bonnette v. Louisiana State Penitentiary, 148 So.2d 92 (La.App. 1st Cir., 1962).

The validity of the charges in the letter of dismissal are questions of fact. Their verity or falsity must be judged by all evidence pertinent to the inquiry, and the decision of the Commission necessarily depends on its belief or disbelief of testimony given by the witnesses. Consequently, any evidence intending to show that the action of the appointing authority was founded on impure motives, political considerations, or religious prejudices is clearly admissible and should be given consideration by the Commission. Obviously, such evidence has a direct bearing on the genuineness of the assigned charges and also may well effect the weight to be given the Director’s testimony and that of his supporting witnesses. King v. Department of Public Safety, 234 La. 409, 100 So.2d 217 (1958). The refusal to hear and consider appellant’s claims of impure motives effectively denied him a fair and impartial trial. Mr. Pieton is entitled to a full hearing not only to refute the charges against him, but also to present evidence, if there be any, to prove impure motives or discrimination as the basis for his dismissal.

We should note that in the writ application to the Supreme Court on the Hearing Examiner’s refusal to permit the affirmative defense, Justice Tate concurred in the writ denial, but said: “The ruling appears to be erroneous and to require a reversal on judicial review.” Picton v. Sewerage and Water Board, supra.

We do not find it necessary to determine if the specifications of the letter of dismissal contained proper grounds for termination of employment or if the reasons given therein were specific enough to allow the employee to properly prepare his defenses and rebuttals. The letter of dismissal will stand or fall on its legal sufficiency after the entire record is completed and if this matter is again presented on appeal.

For the above reasons the decision of the Civil Service Commission is reversed and this matter is remanded to the Commission for a new hearing consistent with the views expressed herein.

REVERSED and REMANDED.


author: DOUCET, Judge.

text:
    Margie RIMMER, Plaintiff-Appellant, v. Sammie E. JOWERS, Defendant-Appellee.
    No. 7576.
    Court of Appeal of Louisiana, Third Circuit.
    June 12, 1980.

      Gravel, Burnes & Robertson, Dan E. Mel-ichar, Alexandria, for plaintiff-appellant.
    Kennedy & Yeager, Ralph W. Kennedy, Alexandria, for defendant-appellee.
    Before CULPEPPER, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

This is a petitory action. Plaintiff, Margie Rimmer, filed suit on December 16, 1975, claiming ownership by record title of 2.28 acres in the possession of defendant, Sammie Jowers. Defendant filed an answer denying plaintiff’s record title and a reconventional demand alleging ownership by acquisitive prescription of 30 years. Following a trial, the trial judge finding that plaintiff had failed to prove title “good against the world”, as required in a petitory action against a defendant in possession, dismissed plaintiff’s suit. Judgment was not rendered on defendant’s reconventional demand. On appeal to this court, we held that plaintiff had proved record title “good against the world” and remanded the case to the trial court for a determination of whether defendant had acquired the disputed tract by 30 years acquisitive prescription. Rimmer v. Jowers, 367 So.2d 37 (La.App. 3rd Cir. 1978), writ denied, 369 So.2d 156 (La.1979).

On remand, the trial judge held that defendant had acquired the disputed tract by 30 years acquisitive prescription and rendered judgment in his favor. Plaintiff appeals, arguing that the trial judge erred in accepting defendant’s plea of prescription.

When this matter was before us earlier, we noted that the evidence pertaining to the issue of prescription was in great conflict. The testimony of plaintiff and her witnesses was directly opposed to that of defendant and his witnesses. We remanded so that the trial judge, who is in a better position to assess the credibility of witnesses, could determine which version was the correct one. He found that defendant’s was, and we find no error in that ruling.

Briefly stated, the facts found by the trial judge are that in 1937 the disputed property was enclosed by defendant’s father, John Jowers. It was enclosed with adjoining property, which had been purchased by John Jowers and Edward Jowers in a 1936 tax sale. Defendant’s father used the enclosed area as a calf pasture until 1947, when he sold his property to defendant. The act of sale did not describe the disputed tract. However, defendant, believing that he had acquired title to it through the sale, built a residence on it. The property, including the disputed tract, has remained fenced as originally enclosed in 1937. Since 1947, defendant has resided on the enclosed property and has continually cultivated a portion of it.

Generally, thirty-year acquisitive prescription is governed by LSA-C.C. Arts. 3499 and 3500, which read as follows:

Article 3499:

“The ownership of immovables is prescribed for by thirty years without any need of title or possession in good faith.”

Article 3500:

“The possession on which this prescription is founded must be continuous and uninterrupted during all the time; it must be public and unequivocal, and under the title of owner.”

Defendant’s possession since 1947 was clearly of the type required. However, at the time that this petitory action was brought he had possessed the property for only 28 years. His possession alone does not satisfy the requirement of possession for thirty years under LSA-C.C. Article 3499.

However, LSA-C.C. Art. 852 provides: “Whether the titles, exhibited by the parties, whose land are to be limited, consist of primitive concessions or other acts by which property may be transferred, if it be proved that the person whose title is of the latest date, or those under whom he holds, have enjoyed, in good or bad faith, uninterrupted possession during thirty years, of any quantity of land beyond that mentioned in his title, he will be permitted to retain it, and his neighbor, though he have a more ancient title, will only have a right to the excess; for if one can not prescribe against his own title, he can prescribe beyond his title or for more than it calls for, provided it be by thirty years possession.”

See State, Dept. of Highway v. Kilchrist, 225 So.2d 25 (La.App. 3rd Cir. 1969).

Here, defendant’s authors in title used the disputed tract of land as a calf pasture for 10 years prior to the 1947 sale to defendant. The use of the property as a calf pasture was public, continuous and uninterrupted, and adverse to the record owners. Defendant is entitled to tack the possession of his author in title to his own, giving him a total of 38 years. He has, therefore, proven his title by 30 years acquisitive prescription under LSA-C.C. Article 852.

For the above and foregoing reasons, the judgment appealed by plaintiff is affirmed. All costs of this appeal are assessed against plaintiff.

AFFIRMED.


author: SCHOTT, Judge.

text:
    Lambert PETERS v. BARRY MANUFACTURING COMPANY.
    No. 11622.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 19, 1980.
    Lambert Peters, pro se.
    J. Edgar Clayton, Jr., Noble, Slaughter, Clayton & Lorenz, New Orleans, for defendant-appellee.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   SCHOTT, Judge.

On our own motion we required appellant to show cause why his appeal taken on May 6, 1980, from a judgment rendered and notice of judgment mailed on April 8, 1980, should not be dismissed.

Pursuant to LSA C.C.P. Art. 5003 the last day for appealing from this judgment of the First City Court was April 21, 1980. The motion for appeal contains the statement that the exception to the expiration of the appeal period is waived by appellees. However, the timely filing of an appeal is essential for the Court of Appeal to have jurisdiction over the matter and consent of opposing counsel cannot cure this defect. Jones v. Starr, 295 So.2d 50 (La.App. 4th Cir. 1974).

Accordingly, the appeal is dismissed.

APPEAL DISMISSED.


author: CULPEPPER, Judge.

text:
    BUNKIE BANK & TRUST COMPANY, Plaintiff-Appellant, v. Mark A. JOHNSTON et al., Defendants-Appellees.
    No. 7485.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.

      Boatner & Luke, Peter John Lemoine, Bunkie, for plaintiff-appellant.
    David P. Townsend, Bunkie, for defendants-appellees.
    Before CULPEPPER, SWIFT and STOKER, JJ.
   CULPEPPER, Judge.

This is a suit for damages caused by fraudulent misrepresentation. Plaintiff, Bunkie Bank & Trust Company, alleges that defendant, Mark Johnston, while a minor, made fraudulent misrepresentations to plaintiff in securing a loan of $12,585 to produce a soybean crop. Also made a defendant is Johnston’s mother, Eleanor Johnston White, as the parent with whom the minor was living. Defendants filed Exceptions of No Cause of Action and No Right of Action. The trial judge sustained the Exception of No Cause of Action, holding plaintiff’s damages did not arise from a tort but instead from a breach of contract, for which neither the minor nor his parent could be held liable. Plaintiff appealed.

The substantial issue is whether under the facts alleged, the Bank has a cause of action in tort against the minor and/or his parent.

Plaintiff’s petition contains the following allegations:

“Petitioner shows that on or about April 14, 1978, defendant, MARK A. JOHNSTON, did submit an application to petitioner, through its Executive Vice-President, H. L. Kelley, Jr., for collateral credit in the sum of FIFTEEN “THOUSAND AND NO/lOO ($15,000.00) DOLLARS, which was to be paid in December of 1978. Upon submitting his application, defendant, MARK A. JOHNSTON, deliberately, fraudulently and with intent to permanently deprive petitioner of cash money, misrepresented the following, to wit:
“(1) That he was a person of the full age, having been born August 3, 1959; when in fact said defendant was born August 3, 1960,
“(2) That he was leasing approximately 700 acres of land located in St. Landry Parish, LA for the crop year 1978 for the purpose of growing soybeans; when in fact he had no lease whatsoever regarding said properties, and in fact grew no crops in 1978.
“(3) That he would pledge all crops grown or to be grown for the 1978 growing season, and in particularly, soybeans, on approximately 700 acres of land located in St. Landry Parish, LA, in return for petitioner granting said defendant collateral security in the sum of FIFTEEN THOUSAND AND NO/100 ($15,-000.00) DOLLARS,
“(4) That on at least four (4) subsequent occasions, i. e.,; April 27, 1978, June 1, 1978, June 12, 1978 and July 5, 1978, defendant, MARK A. JOHNSTON, represented to petitioner that the funds received from petitioner were for the purposes of purchasing soybean seeds and/or fertilizers and/or operating expenses for making the 1978 soybean crop.”

Plaintiff further alleged Mark Johnston received from plaintiff the total of $12,585, on the above dates, when he was residing with his mother.

In written reasons, the trial court found, in part, as follows:

“In this petition, the contractual obligation and the alleged tort liability are so interwoven and connected that for this court to hold these defendants liable would result in giving full force and effect to a contract which cannot legally be enforced.
“It is well settled that the parent of an unemancipated minor cannot be held responsible for damages arising ex contrac-tu and that the unemancipated minor is simply incapable of contracting.
“Also, there exists a legal distinction between a simple tort and a tort which occurs as a result of, or which may be the cause of, a breach of contract.
“Reading the Plaintiffs petition and considering the demand as one for damages arising ex contractu, Plaintiff cannot recover against the unemancipated minor or the mother for the breach of contract by the son.
“Reading the Plaintiff’s petition and considering the demand as one arising ex delicto, in connection with a contract, still there can be no recovery, for the added reason that to recognize the asserted right to recover would be to permit Plaintiff to profit by an alleged tort wrong to which it voluntarily was a party.”

Plaintiff contends it does not seek to recover against either the minor or his mother for breach of contract. Therefore, we do not consider this issue. Plaintiff’s sole contention is that it alleges a cause of action for fraud against the minor and his mother.

It is well settled that a cause of action for intentional fraudulent misrepresentation as to present or past facts exists in Louisiana. Wilder v. Wilder, 263 So.2d 730 (La.App. 1st Cir. 1972); Swann v. Magouirk, 157 So.2d 749 (La.App. 2d Cir. 1963). It has further been established that in the case of a contract confected under circumstances involving such fraud, a plaintiff may elect to pursue an action for damages for fraud rather than breach of contract. Maniscalco v. Shell Petroleum Corporation, 176 La. 492, 146 So. 33 (1933).

The trial judge concluded the action in contract was barred by Johnston’s minority, and the action in tort barred because it would indirectly give effect to the contract and make the parent liable for the minor’s breach of contract. From the language of the trial judge’s opinion, he apparently relied on Maloney v. Goelz, 12 La.App. 31, 124 So. 606 (Orl.App.1929) where the court stated:

“It is true that, under the codal provision, the parent is responsible for the torts of a minor, but it seems to us that there is a distinction between a simple tort and a tort which occurs as a result of or which may be the cause of a breach of contract. When the Rent-A-Car Company allowed young Goelz to take out a car, it entered into a contract which required him to safely return it. His failure to do so constituted a breach of that contract. Conceding that his negligent act in driving the car was the cause of the breach, still the contractual obligation and the tort liability are so inseparably connected that, if we could hold that the father is liable in this case, we would in effect be holding the father liable for the breach of the contract of the minor.”

In Ohio Casualty Insurance Company v. Nunez, 134 So.2d 309 (La.App. 3rd Cir. 1961) this Court approved of Maloney in the following discussion:

“Counsel for plaintiff argues that the Maloney case is not sound in making a distinction between a ‘simple tort’ and a ‘tort * * * which may be the cause of a breach of contract.’ We think, however, that the reasoning in that case is sound, and that the conclusions reached are supported by Doumeing v. Haydel, supra [9 La. 446], and by Overhultz v. Row, 152 La. 9, 92 So. 716; and Jackson Cookie Company v. Burks, La.App. 2 Cir., 45 So.2d 226.
“In the instant suit, according to the allegations contained in the petition, the McFillens allowed young Nunez to use an airplane under a rental agreement which required Nunez to return it undamaged. The plane was damaged through the negligence of Nunez, and because of that damage there was a breach of contract in his failure to return the plane in good condition. Under those circumstances, it appears to us that the McFillens would have a cause of action against young Nunez for damages either in tort or for breach of contract. Under the jurisprudence hereinabove cited, however, the McFillens, as the owners of the plane would not have a cause of action against the father of young Nunez, under LSA-R.C.C. Art. 2318, because the contractual obligation and the tort liability are so inseparably connected that the father could not be held liable for the tort without also in effect holding him liable for his son’s breach of contract.”

We distinguish the above cases by the alleged presence of actionable fraud. Nothing in the jurisprudence of Louisiana persuades us that a minor should be relieved of liability for the intentional tort of fraudulent misrepresentation as to present or past facts. It was said in Guidry v. Davis, 6 La.Ann. 90 (1851), “It is an error to suppose that the law can sanction the perpetration of frauds by minors; the truth and reality of bona fide transactions are as binding upon them as upon majors.” In Christian v. Welch, 7 La.Ann. 533 (1852), it was also said, “Where there is fraud, the minors stand on no better footing than one of full age.”

Furthermore, an examination of both civil law and common law authorities reveals a long standing exception to the policy favorable to minors in matters of contract induced by the minor’s fraud. See Civil Law Translations, Vol. 1, Aubry & Rau, Obligations, Sec. 335; Planiol, Civil Law Treatise, Vol. 2, No. 879, et seq., and No. 1088. We are impressed by the rationale stated in Prosser, Law of Torts, 4th Ed., pages 997-100 as follows:

“A further qualification is that the tort liability must be applied with due regard for the settled doctrine that the infant may not be held liable on his disaffirmed contracts. Where the wrong complained of consists merely in the nonperformance or the improper performance of an agreement, the plaintiff will not be permitted to recover merely by changing the form of the action to one of tort. He cannot, for example, maintain a tort action for breach of warranty, or for failure to perform a duty undertaken by voluntary agreement; and he cannot hold the infant liable for negligent performance of a contract to transport the plaintiff, or to receive and store his goods. On the other hand if the tort can be regarded as a distinct and independent one, as to which liability can be made out without relying on the existence of the contract or in effect enforcing it, the action will lie.
******
“The question of tort frequently arises where the infant has obtained a contract by misrepresentation. Where the representations concern a collateral matter inducing the contract, most courts are agreed that the minor is liable in deceit. Where he has misrepresented only his age, there is a great deal of disagreement. The English courts have held in such a case that there is no tort liability, considering that it would amount to an indirect enforcement of the contract, from which the tort is regarded as inseparable. A few courts in the United States have come to the same conclusion. Most of the American courts have allowed the action in deceit, since the plaintiff is not seeking to enforce the contract to obtain its benefits, but only to recover compensation for the damage he has suffered through the fraud. Other courts have found an estoppel against the infant which prevents him from asserting his minority in his affirmative action for rescission, or as a defense when he is sued on the contract, although here there is more authority to the contrary. In a few states there are statutes creating the es-toppel, or requiring the infant to make complete restitution as a condition of rescission.
“The effect of the decisions refusing to recognize tort liability for misrepresentation is to create a privileged class of liars who are a great trouble to the business world. The decisions seem to rest on a failure to distinguish between a shield and a sword-—between the obligation which the infant has agreed to assume and that which the law imposes upon him for the protection of others. The immunity has a legitimate place where the contract is really being enforced under the guise of a tort action developed long since to avoid the stringencies of common law pleading; but where a genuine duty is independently created by the law because of the relation of the parties, the existence of a contract should not prevent the tort liability, even though the two obligations closely coincide.”

Of course, the general rules governing actionable fraud are applicable to minors as well as adults. In Swann v. Margouirk, supra, it is stated:

“[1] Louisiana courts have long recognized that a party who is injured by the fraud and deceit of another has a cause of action against the offending party for damages.
£ * ‡ ‡ sH *
“[2] In an early annotation, 51 A.L.R. 49, the general rule, supported by numerous decisions in almost all jurisdictions, is that fraud must relate to a present or pre-existing fact, and cannot ordinarily be predicated on unfulfilled promises or statements as to future events.”

In the present case, the Bank’s petition alleges the defendant minor deliberately and fraudulently made the following misrepresentations: (1) That the minor was over the age of 18, (2) that he had a lease on 700 acres of land for the purpose of growing soybeans, (3) that he would pledge to the Bank all crops grown during 1978 on the 700 acres, and (4) that on four occasions he represented to the Bank that he needed funds, for the purpose of purchasing soybean seeds and fertilizer and for operating expenses for making his 1978 soybean crop.

There may be some question as to whether the mere misrepresentation as to age is sufficient to constitute actionable fraud. We will pretermit this question.

However, it is clear the minor is alleged to have made a deliberate and fraudulent statement that he already had a lease on 700 acres of land, when in fact he had no such lease. Under the rules set out above, this is a false and fraudulent statement as to a present or past fact, and is sufficient to constitute actionable fraud.

As to the allegation that the minor stated he would in the future pledge all crops grown, this is a promise to do something in the future and, under the rules set out above, it is not actionable fraud.

As to the four occasions on which the minor went to the Bank and secured funds, these must be treated separately. The allegation that he represented funds were needed to purchase soybeans for future planting is a representation as to a future event, and, under the rules set out above, is not actionable fraud. However, the allegation that the minor represented he needed money to buy fertilizer and for operating expenses for “making the 1978 soybean crop”, is sufficient for the introduction of evidence that the minor represented he had already planted a soybean crop, when in truth and in fact no such crop had been planted. Viewing these allegations in the light most favorable to plaintiff, admissible evidence could show the minor fraudulently misrepresented that a soybean crop had already been planted, in which event there would be an actionable fraud. Of course, if the evidence shows that the minor’s representations were only that he promised to plant soybeans for which he needed fertilizer and operating expenses, then there would be no misrepresentation as to a present or past fact and hence no actionable fraud.

Por the reasons stated above, we conclude the plaintiff has stated a cause of action in tort against the defendant, Mark Johnston, under LSA-C.C. Article 2315, and a cause of action against the minor’s mother, Eleanor Johnston White, under LSA-C.C. Articles 237 and 2318.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that the defendants’ Exception of No Cause of Action be overruled, and this case be remanded to the district court for further proceedings in accordance with law and the views expressed herein. All costs of this appeal are assessed against the defendants-appel-lees. Assessment of costs in the trial court must await a final judgment there.

REVERSED and REMANDED.


text:
    Colonel Amos RICHARDSON et al., Plaintiffs-Appellants, v. Joseph Croyce SCRANTZ et al., Defendants-Appellees.
    No. 7635.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.
    Dubuisson, Brinkhaus & Dauzat, William A. Brinkhaus, Opelousas, for plaintiffs-appellants.
    Sandoz, Sandoz & Schiff, Lawrence B. Sandoz, Jr., Opelousas, for defendants-ap-pellees.
    Before CULPEPPER, SWIFT and STOKER, JJ.
   CULPEPPER, Judge.

This is a boundary action. Plaintiffs, Colonel Amos Richardson and Mary Prince Richardson, brought suit to establish the boundary between their property and that of defendants, Joseph Croyce Scrantz and Zettie Schilling Scrantz. Defendants contend a visible boundary exists up to which they have possessed for more than 30 years. They allege acquisitive prescription of 30 years under LSA-C.C. Article 852, now replaced by Article 794. From an adverse judgment, plaintiffs have appealed. We affirm.

The issue on appeal concerns a fence defendants contend is the visible boundary to which they and their ancestors in title have possessed. The question is whether the fence existed and has been continuously maintained for more than 30 years prior to the time this suit was instituted on June 6, 1974.

The facts show plaintiffs and defendants have record title to adjoining tracts of land in the Atchafalaya basin in St. Landry Parish. Plaintiffs’ land is described of record as all of Section 16, Township 7 South, Range 7 East. Defendants’ land is described as all of Section 9, except certain portions not pertinent here. The true section line dividing Sections 9 and 16 was established in a survey performed by William H. Jarrell, Jr. by order of the lower court. A survey performed at defendants’ request by Edmond E. Dupuy, Jr. shows the fence almost parallel to and some 660 feet south of the section line. Along with the levee and Bayou Courtableau, the fence forms one side of a roughly triangular enclosure, which is completed by short fence lines not at issue here. The area in dispute is the 25 acres lying between the true section line and the fence in question.

There is no evidence in the record as to who built the fence or when it was built. Defendants’ ancestor in title, who owned the property from 1940 to 1961, Mrs. Norma Vicknair Kuhlmann, is now dead.

The existence of a fence at the time of Mrs. Kuhlmann’s purchase was established through the testimony of Clinton C. Artigue, a retired fisherman 73 years old at the time of trial. Artigue first testified to seeing the fence between 1947-1948 when fishing at night in two slews emanating from Bayou Courtableau and running north to south on the property. Fishing with him was Abra Artigue, who testified the fence was strung across both slews.

Clinton Artigue further testified to seeing the fence when hunting on the property. He stated as follows:

“Q. And you mentioned rabbit hunting — were you rabbit hunting at night or in the daytime?
A. In the daytime most of the time.
Q. And you mentioned you came up to this fence. From which direction were you coming — North or South?
A. Usually from the North.
Q. Now, what years did you rabbit hunt in this area?
A. Well — uh—I guess — I don’t know— 1940 on — off and on, you know. I’d be (inaudible) but with dogs, I’d say from 1940 on — off and on, you know.
Q. Were you — and—well, did you go at different points along this fence with your hunting, or just one particular area?
A. No, sir — you see — you would — uh— rabbit hunting you’d just go all over the woods, you know — I mean — you get up to the fence — close to the fence — and you’d vary along one way or the other, you know — just going through the woods.
Q. And how many years did you rabbit hunt in that area?
A. Well, I’d say from — some time in the early ’40’s on through — well, till about three years ago.”

Clinton Artigue also testified as to the purpose of the fence as follows:

“Q. Let me — let’s go back to the old fence. Do you know who built— who strung that wire across the trees that you saw when you crossed those slues?
A. No, sir — I wouldn’t know.
Q. Do you know when it was built?
A. No, sir — I don’t.
Q. Do you know what purpose it was built for?
A. Yes, sir. To put cattle in.
Q. Across the — across the trees in the slue?
A. That—
Q. We’re talking about the fence you—
A. Across the slues, where the fence was — you’re referring to where we had to go under?
Q. Yes, sir.
A. Well, across the slues that was to keep the cattle from going out, you see. They had to build across the slues, too — because the slues, in the summer time, would go practically dry, you see, — and cattle is something that will get in water and go on through. I don’t know whether you know anything about cattle or not.
Q. Did you see any cattle there?
A. Yes, sir.
Q. At night — you saw cattle there?
A. In daytime.
Q. You saw cattle there?
A. At that very place — you know where I’m referring to? You mean—
Q. Yeah — I’m taling about right there.
A. Right there — yes, sir.
Q. You saw cattle there?
A. Certainly.
Q. Whose cattle were they?
A. They’re supposed to have been Mrs. Kuhlmann’s cattle old Mrs. — uh—I forget her name now, — but Mrs. Kuhlman — the one that—
Q. Do you know that for a fact?
A. I guess I do — I’ve seen it myself,— and I—
Q. What?
A. I guess I do — I’ve seen it myself, and I knew that the old lady’s cattle — uh—I mean, her cattle and her fence had been put there — for that purpose.
Q. In ’47?
A. In ’47 — yeah—
Q. Mr. Artigue—
A. I mean — before—before /47.
******
A. That’s what I was reffering to. I know there was some cattle there, because I’ve seen them myself—
Q. Yeah, and—
A. —went rabbit hunting in daytime and seen them.
******
Q. All right — let’s back up. Did Mrs. Kuhlmann have a brand?
A. Yes, sir.
Q. You saw the brand?
A. Yes, sir.
Q. Did you see any Scrantz cattle up there?
A. No, sir.
Q. Now you say that you went rabbit hunting up there.
A. That’s right.
Q. Did you run across the fence when you were rabbit hunting?
A. I went up to the fence — yes, sir — I didn’t go across the fence.”

Four members of the Scrantz family testified on defendants’ behalf, including defendant Joseph and his brothers, Emery, Sherby and Calvert. The Scrantz family moved onto nearby property in 1947, and the brothers all stated they saw the fence then. Sherby Scrantz, who showed the greatest familiarity with the disputed area, stated he frequently visited in the area as early as 1943 when his father first bought their homestead. He stated logging was done on the property in 1945-46 “from the fence.”

There is no doubt the fence fell into some disrepair during Mrs. Kuhlmann’s ownership. The area is subject to annual flooding and heavy silting. Sherby Scrantz testified, however, that Mrs. Kuhlmann allowed him to use the property and two years before Mrs. Kuhlmann’s death, he found the fence again. Trees had fallen on the fence and briars had taken over parts, but Sherby described the fence as “good — all the way around.”

When Mrs. Kuhlmann died, the property was inherited in 1962 by her sister, Mrs. Mathilda V. Story. Clinton Artigue made arrangements with Mrs. Story to use the l^nd, and in 1963 he built another fence. He described his work as follows:

“A. That’s right. And then — uh—I had my cattle there, you see, and I got some cattle out of the oil field— some more cattle, and they were real wild, so I asked Mrs. Story about fencing in on the riverside, see — the old fence—
Q. What year was that?
A. That was — well, I would say in ’63 or ’64 — something like that. When I asked to put this fence here, you see, — and she told me to go ahead and she said, ‘I’d like to have it fenced in. So, just go ahead and do what you want with it.’ We were good friends and she didn’t charge me anything for the rent — you wouldn’t hear anything about the rent.
Q. All right — would you state whether or not you built this fence in the new area or not?
A. No, sir — I tried to follow the old fence. But, you see — I didn’t try to follow the old fence, I wanted to be on the inside of the old fence, — and, so — on account of they was cutting timber on the South side of Ms. Story’s place, and I was putting wild cattle in there, so — the cattle that I captured out of the oil field — I had a bunch of cattle in oil field, and I’d catch a few of them at a time, you see — and kind of tame them a little; —and I was going to put them back there. So I didn’t want them to throw no trees on my fence because the cattle would — my wild cattle might get out, you see— so I would rather have the fence a little on the inside than on the outside — on the line, you see — so that’s why I kept trying to put the fence on the inside of the — her property— instead of right on the line. It would keep them then from throwing trees — in other words, they weren’t suppose to cut on her property, so that way they would — keep them from having trees on my fence. And — on up here — well, I done the same thing here. I didn’t follow the — the line right on — I just — and this fence here was nailed on the trees, except in places where the skip was too far apart, I used posts.”

Sherby Scrantz testified that he accompanied Mr. Dupuy on his survey in 1975 and was still able to locate both fences. He stated the old and new fences were approximately 12-16 feet apart and may have come together at times.

The only evidence in opposition to all of the testimony from defendants’ witnesses came from another one of the Scrantz brothers. Creighton Scrantz stated he never saw the fence in question in 1947.

In written reasons for judgment, the trial court stated:

“There is a fence with trenches on plaintiff’s titled property, but the evidence is overwhelming that the defendant and his ancestors in title exercised dominion of all the land up to the fence, — this being a ‘possession’ rather than a title. As a matter of fact, the land is inside the Atchafalaya levee and periodically floods to a rather extensive depth.
“The Court finds the defendant has acquired title to the fence and so decrees.”

The applicable law was recently explained in the case of Leblanc v. LaBorde, 368 So.2d 1126 (La.App. 3d Cir. 1979) where we stated:

New LSA-C.C. Article 794 provides:

“When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles. If a party and his ancestors in title possessed for thirty years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds.”
This article became effective January 1, 1978, and applies to this action since suit was not filed herein until January 6, 1978. The new Article 794 replaces Article 852 of the Louisiana Civil Code of 1870 but does not change the law as stated within Article 852, nor does it affect the line of jurisprudence which developed in interpreting Article 852.
Under Article 8521, and now under Article 794, where there is a visible boundary and where there has been actual uninterrupted possession, either in person or through ancestors in title, for thirty years or more of the land extending beyond that described in the title and embraced within the visible bounds, then the party who possesses acquires the right to the land beyond their title. William T. Burton Industries, Inc. v. Wellman, 343 So.2d 996 (La.1977); Brookshire v. Guidry, 355 So.2d 559 (La.App. 3 Cir. 1978).
The requirements of these articles indicate that one must maintain an enclosure, such as a fence, around the property and exercise open, physical possession as owner for a continuous and uninterrupted period of thirty years. Martin Timber Company v. Taylor, 187 So.2d 196 (La.App. 3 Cir. 1966). There must have been not only evidence of a corporeal possession of the property for the required period of time, but also a positive intent to possess as the owner shown by the possessor during the time. William T. Burton Industries, Inc. v. McDonald, 346 So.2d 1333 (La.App. 3 Cir. 1977). Finally, the tacking of possession of all predecessors in title is permitted for acquisitive prescription beyond title to a visible boundary. Dubois v. Richard, 223 So.2d 198 (La.App. 3 Cir. 1969). ******
It is well settled that in a boundary action, where the boundary is located is a question of fact to be determined by the trier of fact, and such a determination should not be reversed on appeal in the absence of manifest error. Gelpi v. Shall, 355 So.2d 1014 (La.App. 4 Cir. 1978).

Based on the evidence in the record, we cannot say the trial court manifestly erred. Defendants have shown the existence of the fence and possession to the fence by defendants and their ancestors in title for more than 30 years. Defendants have further shown sufficient maintenance of the fence to establish the present fence line as the boundary between plaintiffs’ and defendants’ adjoining tracts. See, Savoie v. Savoy, 252 So.2d 582 (La.App. 3rd Cir. 1972); Dubois v. Richard, 223 So.2d 198 (La.App. 3rd Cir. 1969).

For the reasons assigned, the judgment appealed is affirmed at appellants’ cost.

AFFIRMED.


author: SWIFT, Judge.

text:
    Kirby A. ROY, III, Plaintiff-Appellee, v. COMMERCIAL UNION ASSURANCE COMPANY (American Employers Insurance Company), Defendant-Appellant.
    No. 7643.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.

      Gist, Methvin, Hughes & Munsterman, Dor wan G. Vizzier, Alexandria, for defendant-appellant.
    Ben C. Bennett, Jr., Marksville, for plaintiff-appellee.
    Before CULPEPPER, SWIFT and STOKER, JJ.
   SWIFT, Judge.

American Employers Insurance Company (American), defendant-appellant herein (originally designated as Commercial Union Assurance Company), appeals from a judgment of the district court finding it liable for alleged water damage to the 1974 Chevrolet Monte Carlo of its insured, Kirby A. Roy, III, the plaintiff.

The facts are that in the early morning hours of New Year’s Day, 1979, Mr. Roy was driving his automobile on a flooded highway in Avoyelles Parish when it became partially submerged in a flooded ditch. The car remained in the water until early the next morning when it was removed to a nearby field. At plaintiff’s request the automobile was towed to Ideal Chevrolet Company (Ideal) in Marksville on January 2 where its engine and transmission were drained that day.

Some time between January 8 and 10 Mr. Francis Smith, an independent appraiser engaged by American, the comprehensive insurance carrier, inspected the vehicle and prepared an appraisal of the damages. During this time in accordance with Smith’s estimate Ideal flushed the engine and transmission with oil four times, changed the filters, removed the spark plugs, tested the compression, cleaned the distributor, checked the transmission and other parts, road tested the car and tried to dry its interior through vacuuming, ventilation and sunlight.

Ideal’s mechanic, Mr. Gene LaGrange, with over 25 years experience, testified that the only problems he found on testing the car were a lack of play in the steering wheel and the seats were still damp.

According to the plaintiff, about one month later Ideal advised the insured the car was ready. When Mrs. Roy went to pick up the ear, she complained of the steering, so Ideal kept the automobile an additional week to correct the difficulty. American sent a check to Mr. Roy in the amount of Smith’s appraisal, $218.87, but it was returned uncashed. In March the insured returned the automobile to Ideal, complaining of transmission problems. Repairs were begun, but halted when a dispute arose over responsibility for payment of the repairs. The car was left at Ideal with the transmission disassembled, and was still there when the case was tried on October 23, 1979.

Following the trial the judge awarded plaintiff $2,395.00 for the total loss of the vehicle.

Defendant first contends on this appeal that the trial judge erred in allowing evidence concerning damages to the vehicle over its objection as being beyond the scope of the pleadings. In this connection the petition alleged:

“6.
“On January 1, 1979, petitioner notified his local agent, Mr. Merlin Lacombe, concerning the water damage in petitioner’s automobile. The insurance adjuster had petitioner’s automobile picked up and taken to Ideal Chevrolet Company in Marksville, Louisiana for repair.
“7.
“After being informed that his automobile had been repaired, petitioner picked up his automobile from Ideal Chevrolet Company and began driving it. He noticed immediately that his transmission was not in good working condition. Petitioner notified his insurance agent, Mr. Merlin Lacombe, of this problem soon after petitioner began driving his automobile again. After driving for a period of approximately 20 days, petitioner’s automobile transmission broke entirely, causing said automobile to become inoperable.
“8.
“Said automobile is now inoperable, and the cost to place the automobile in an operating condition similar to that condition which existed before December 31, 1978 would exceed the value of the automobile, which value at the time of the loss was $3,000.00.”

Our Code of Civil Procedure sets forth a system of fact pleading. Articles 854, 891, 1003, 1004. Cox v. W. M. Heroman & Co., Inc., 298 So.2d 848 (La.1974). While we are mindful that pleadings are to be construed so as to afford a litigant his day in court, they are also to be construed so as to do substantial justice for both parties. LSA-C.C.P. Articles 5051, 865.

In the present case the petition provided no notice whatsoever to the defendant that the plaintiff intended to introduce evidence pertaining to damages other than that of the transmission. A timely objection being made, we believe the admission of evidence of any other damages constituted an unwarranted expansion of the pleadings and it should not have been considered by the trial judge in the absence of his granting a motion to amend the petition. Piediscalzo v. Deutsch, 200 So.2d 114 (La. App. 4 Cir. 1967); Wanda Petroleum Co. v. Mac Drill. Inc., 353 So.2d 474 (La.App. 3 Cir. 1978).

Be that as it may, we have reviewed the evidence offered by plaintiff in support of his claim that the flooding caused the automobile to be a total loss and are convinced that the trial judge was clearly wrong in reaching this conclusion.

In our opinion the preponderance of evidence is to the effect that no damage was done to the car by the flood except possibly to its upholstery and carpet. But even if it was otherwise, no evidence whatsoever was offered as to what it would cost to repair the steering mechanism, the engine, the transmission, the brakes and the car’s interior to eliminate the damages which plaintiff contends were caused by the water. Upon questioning by the trial judge Mr. LaGrange estimated the cost of a new and a rebuilt motor, a new transmission and a new steering gear. According to the witness, with labor the respective costs would be about $2220.00 or $1420.00 for the motor, $945.00 for a transmission and $500.00 for a new steering gear or a maximum of approximately $3,665.00. Although Mr. La-Grange was never qualified as a dealer or an expert in regard to the price or value of used automobiles, in answer to the judge’s questions he expressed the opinion that a 1974 Monte Carlo in good shape would be worth about $2395.00. From these figures the court obviously concluded that the plaintiff had proved his vehicle was a total loss as a result of the incident and gave judgment for $2395.00

This was clearly error. Neither Mr. La-Grange nor anyone else testified that a new motor, transmission or steering gear were needed to repair the vehicle or to return it to its original state. He merely responded to the court’s questions as to the cost of replacing those particular items with new ones.

In order to recover under an insurance policy it is the burden of the plaintiff to establish every fact essential to his recovery and to establish that the claim falls within the policy coverage. Ceasar v. Great Falls Ins. Co., 371 So.2d 1286 (La. App. 3 Cir. 1979). Under our law an automobile is deemed a total loss when the cost of repairs exceeds its value before the accident. To prove a total loss a plaintiff must introduce evidence not only as to the car’s prior value, but also as to how much it would cost to repair the automobile. Nicholas v. Continental Insurance Company, 296 So.2d 468 (La.App. 4 Cir. 1974). And it has been held that proof of salvage value is essential to a recovery for the total loss of a vehicle. Burton v. Southwestern Gas & Electric Company, 107 So.2d 67 (La.App. 2 Cir. 1958); Cheramie v. Jones, 327 So.2d 601 (La.App. 4 Cir. 1976).

The plaintiff has failed in these respects. However, he is entitled to recover for the work initially performed on his automobile by Ideal amounting to $218.87, which he has not actually received. The trial court’s judgment will be amended accordingly.

For the foregoing reasons, the judgment of the district court is amended to reduce the principal amount thereof from $2,395.00 and $218.87. In all other respects, it is affirmed. The costs of this appeal are assessed to plaintiff-appellee.

AMENDED and AFFIRMED.


author: FORET, Judge.

text:
    Alton D. McGREW, Plaintiff-Appellee-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Defendants-Appellees-Appellants.
    No. 7645.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.

      Charles F. Wagner, Pineville, for plaintiff-appellant.
    Stafford, Stewart & Potter, Ronald J. Fiorenza, Alexandria, for plaintiff-appellee.
    McLure & McLure, John G. McLure, Alexandria, for defendants-appellants.
    Gist, Methvin, Hughes & Munsterman, David A. Hughes, Alexandria, for defendants-appellees-appellants.
    Provosty, Sadler & deLaunay, David P. Spence, Alexandria, for defendants-appel-lees.
    Shelby E. Bohannon, Alexandria, for plaintiff-appellant.
    Before DOMENGEAUX, FORET and CUTRER, JJ.
   FORET, Judge.

This matter arises out of a three-vehicle collision which occurred on August 14, 1977, south of the intersection of Highway 71 and Claiborne Street in Pineville, Louisiana.

The following scenario is offered in order to clearly delineate the issues arising herein and apprise the reader of the posture of this case.

Robert A. Lee, operating a Chevrolet van, was traveling in a southerly direction on Highway 71 near Pineville, Louisiana. Upon approaching the intersection of Highway 71 and Claiborne Street, Lee engaged his left turn signal. T. 0. Roshto was following the Lee vehicle in his Pinto station wagon. Upon observing that the Lee vehicle would, in all probability, make a left turn, Roshto moved to the right onto a length of paved shoulder, which apparently had been surfaced by the Highway Department to facilitate passing at the intersection. Lee, however, abandoned his intent to make the left turn and proceeded forward. The Lee vehicle and the Roshto vehicle subsequently collided at a point approximately two hundred feet north of the intersection where the paved shoulder merged with the travel lane. As a result of the collision, the Roshto vehicle entered into the lane of opposing traffic and collided with Alton McGrew, who was traveling in a northerly direction in a vehicle owned by his employer, Joe Gossett. McGrew and Roshto received serious injuries. Likewise, the vehicles which were driven by all parties were damaged.

As a result of the above described accident, four suits were filed.

Suit # 106,076 on the docket of the Ninth Judicial District Court, # 7645 on the docket of this Court (hereinafter McGREW), was initiated by Alton D. McGrew in an attempt to recover general and special damages. Named as defendants in that suit were T. 0. Roshto and his liability insurer, State Farm Mutual Automobile Insurance Company; Allstate Insurance Company as the uninsured motorist carrier of a policy issued on McGrew’s personal vehicle; Robert A. Lee and his liability insurer, Nationwide Insurance Company; and the Hartford Insurance Company as the uninsured motorist carrier for McGrew’s employer, Joe Gossett. Allstate made a third party demand against T. 0. Roshto and Robert Lee. Subsequently, Hartford was dismissed from the suit. Plaintiff brought a claim for penalties and attorney’s fees against Allstate pursuant to LSA-R.S. 22:658 by way of supplemental and amended petition. The defendant, Lee, was never served in this suit.

Suit # 106,082 on the docket of the Ninth Judicial District Court, # 7646 on the docket of this Court, 385 So.2d 1285 (hereinafter GOSSETT), was instituted by plaintiff, Joe Gossett, d/b/a Westend Amusement Company, the employer of Alton McGrew. Gossett filed suit against T. O. Roshto and his insurer, State Farm and Robert A. Lee and his insurer, Nationwide Insurance Company, to recover for property damage to his vehicle. Again, Robert A. Lee was never served.

Great American Insurance Company instituted suit # 106,158 on the docket of the Ninth Judicial District Court, # 7647 on the docket of this Court, 385 So.2d 1285 (hereinafter GREAT AMERICAN), seeking to recover benefits paid to McGrew pursuant to a contract for workmen’s compensation coverage Great American had with McGrew’s employer, Joe Gossett. Made defendants were T. O. Roshto and State Farm; Robert A. Lee and Nationwide Insurance Company; Allstate Insurance Company as the uninsured motorist carrier for McGrew; and Hartford Insurance Company as uninsured motorist carrier for Joe Gos-sett. Both Allstate and Hartford were subsequently dismissed. Robert A. Lee was never served.

Suit # 106,290 on the docket of the Ninth Judicial District Court (hereinafter ROSHTO) was a suit T. O. Roshto brought against Robert A. Lee and Nationwide Insurance Company to recover general and special damages. Both defendants were served in this suit.

In ROSHTO, Nationwide Insurance Company filed a motion for consolidation, which was granted, and a motion for trial by jury. The motion for trial by jury was subsequently withdrawn. Then, in the same case, T. 0. Roshto filed a motion for trial by jury, which was granted.

All four cases were consolidated for trial. The presentation of the evidence was bifurcated, with evidence relative to the ROSH-TO case only being presented to the jury. It was stipulated that:

(1) $2,000.00 was the amount of property damage in GOSSETT;
(2) $4,810.00 was the amount of lost wages in McGREW;
(3) $11,175.26 was the amount of benefits paid by GREAT AMERICAN, which amount includes $8,705.26 in medical payments and $2,470.00 in compensation.

In ROSHTO, the jury returned a verdict finding both Roshto and Lee to be negligent. Thereafter, the suit was dismissed at plaintiff’s costs. No appeal was filed by T. O. Roshto from the adverse judgment rendered against him. One-half of the expert witness fee for Dr. Weiss, which fee was $100.00, was taxed as costs in ROSHTO. The trial court found, as did the jury, in the remaining cases, that the accident was caused by the joint negligence of T. O. Roshto and Robert A. Lee. Accordingly, judgment was rendered against all defendants on the issue of liability. In addition to rendering judgment against all defendants, the trial judge rendered judgment as follows:

(1)In favor of Alton D. McGrew against State Farm Mutual Automobile Insurance Company, Nationwide Insurance Company, Allstate Insurance Company, and T. O. Roshto, jointly, severally, and in solido, in the full sum of $31,016.26, together with legal interest from the date of judicial demand until paid; with the amount of the judgment as against State Farm Mutual Automobile Insurance Company being limited to the amount of its bodily injury policy limits to one person, being $10,000.00, plus the payment of interest and costs; the amount of the judgment as against Nationwide Insurance Company being limited to the limit of its bodily injury policy limits to one person, being $15,-000.00, plus payment of interest and costs; with the amount of judgment as against Allstate Insurance Company, however, being limited to the sum of $6,016.26, plus the payment of interest and costs and with the amount of judgment against T. O. Roshto being limited to the amount of $1,500.00, plus interest and costs.
(2) Judgment was rendered in favor of Great American Insurance Company and against Nationwide Insurance Company, State Farm Mutual Automobile Insurance Company, and T. O. Roshto, jointly, severally, and in soli-do, in the sum of $11,175.00, said judgment as against the parties was to be limited to the sum set forth in the preceding paragraph and to be paid to Great American Insurance Company by preference and priority and from the proceeds of the judgment rendered in the preceding paragraph in favor of Alton D. McGrew, together with legal interest thereon from date of judicial demand until paid, and for all costs.
(3) Judgment was rendered in favor of Allstate and against T. O. Roshto in the sum of $1,500.00, together with legal interest from the date of judicial demand until paid.
(4) Judgment was rendered in favor of Joe Gossett, d/b/a Westend Amusement Company, and against State Farm Mutual Automobile Insurance Company, Nationwide Insurance Company, and T. O. Roshto, jointly, severally, and in solido, in the full sum of $2,000.00, together with legal interest thereon from date of judicial demand until paid; the said judgment against T. O. Roshto being limited to a maximum of $1,500.00, together with costs and legal interest from date of judicial demand until paid.
(5) The expert witness fee of Dr. John T. Weiss was fixed at $100.00, to be taxed as costs.
(6) Nationwide Insurance Company and State Farm Mutual Automobile Insurance Company were cast to pay all costs of these proceedings on a joint and equal basis.
(7) The demand of Alton D. McGrew against Allstate Insurance Company for attorney’s fees and penalties was denied.
(8) The claims of T. O. Roshto against Nationwide Insurance Company were dismissed at his costs.

From this judgment Nationwide and McGrew have appealed. Allstate has answered the appeal seeking a reduction in the amount of damages awarded to Alton D. McGrew by the foregoing judgment and seeking an increase in the amount it was awarded against T. 0. Roshto. We note at this point that no brief has been filed by Allstate.

Nationwide alleges that the jury and trial judge committed manifest error in finding defendant, Robert A. Lee, negligent.

McGrew seeks an increase in quantum, reversal of the trial court’s judgment dismissing his claim against Allstate for attorney’s fees and penalties, and reversal of that part of the judgment not recognizing a privilege of first rank on the professional fees of his attorney.

The following issues are presented for our consideration:

(1) Whether or not the finding of fact by the jury and trial court is manifestly erroneous;
(2) Quantum for the injuries sustained by McGrew;
(3) Mitigation of awards against Roshto in view of his impecunious position;
(4) Rank of the privilege for attorney’s fees for McGrew’s attorney;
(5) Penalties and attorney’s fees against Allstate.

JURY AND TRIAL COURT’S FINDING OF FACTS CONSTITUTING NEGLIGENCE

Both the jury (in ROSHTO) and the trial court (in McGREW, GOSSETT, and GREAT AMERICAN) found as a matter of fact that Robert A. Lee was negligent and his negligence was a proximate cause of the accident.

The standard for appellate review in this State requires a finding of manifest error, i. e., that the finding is clearly wrong, on the part of the trier of fact before said finding can be set aside.

Lee testified that he was traveling below the speed limit. He stated that he could not utilize his rear-view mirror because the curtains on the rear window of his van were closed at the time of the accident and just prior to the accident. He testified further that he did not give a left turn signal and did not slow down at the intersection of Claiborne Street and Highway 71. Lee stated also that he did not see the Roshto vehicle until it struck his vehicle and that he did not check his sideview mirrors, which were properly adjusted and operational, before the accident.

Roshto testified that Lee did give a left turn signal. He stated that Lee never did anything to indicate that he was not going to turn left and that the Lee vehicle was stopped when he saw it.

In view of the conflict in testimony and after a complete review of the record, we conclude that the finding of fact by the jury and trial court is not clearly wrong.

QUANTUM

The trial court awarded McGrew $17,500.00 general damages, $8,705.26 medical damages, and $4,810.00 for lost wages.

McGrew was admitted to Rapides General Hospital on August 18, 1977. He was first treated by Dr. John T. Weiss, an orthopedic surgeon. Dr. Weiss’ diagnosis revealed a fractured left femur, multiple contusions of the body, and an undisplaced fracture of the left acetabulum.

McGrew spent time in traction during his five-week confinement in the hospital. Subsequently, an open reduction/internal fixation of the left femur was performed. He was then placed in a combination brace and cast for approximately ten weeks and thereafter used crutches for approximately one month. McGrew returned to work on February 13, 1978. On August 2, 1978, he was hospitalized for three days in order to have a tibial pin removed. The medical testimony shows that McGrew would suffer stiffness and soreness which would, in all probability, disappear within a year, particularly with increased exercise. Dr. Weiss testified that there was a chance of a 10% disability of the left leg due to possible arthritic changes, but discounted the likelihood of this happening.

McGrew, in brief, has cited several decisions by the appellate courts of this State in an attempt to show that the amount of quantum awarded by the trial court is excessively low.

In Reck v. Stevens, 373 So.2d 498 (La.1979), the Supreme Court stated:

“The use of such a scale of prior awards, made for merely generically similar medical injuries, has been expressly and repeatedly disapproved by Gaspard and the succeeding jurisprudence. Such a hypothetical scale of hypothetical awards cannot be used to determine whether or not this trier of fact has abused its discretion in the award to this particular plaintiff under the facts and circumstances peculiar to this case.
Before a trial court award may be questioned as inadequate or excessive, the reviewing court must look first, not to prior awards, but to the individual circumstances of the present case. Only after analysis of the facts and circumstances peculiar to this case and this individual may a reviewing court determine that the award is excessive.
******
In the initial determination of exces-siveness or insufficiency, an examination of prior awards has a limited function — if indeed the facts and circumstances of the prior awards are closely similar to the present. The prior awards may serve as an aid in this determination only where, on an articulated basis, the present award is shown to be greatly disproportionate to past awards (not selected past awards, but the mass of them) for (truly) “similar” injuries, see Coco [v. Winston Industries, Inc. et al.] at 341 So.2d [332,] 334 [(La.1977)].
However, absent an initial determination that the trial court’s very great discretion in the award of general damages has been abused under the facts of this case, the reviewing court should not disturb the trier’s award. Wilson v. Magee, 367 So.2d 314 (La.1979).

Under the facts and circumstances of this case, we conclude that the trier of fact did not abuse his “very great discretion” in making the award he did.

MITIGATION OF AWARD AGAINST ROSHTO

The “inability to pay” doctrine is established on the premise that courts will not grant vain and useless relief, or render a judgment which is incapable of execution. Landry v. Martin, 353 So.2d 449 (La.App. 3 Cir. 1977), writ denied, 355 So.2d 257 (La.1978); Henton v. Southeastern Fidelity Insurance Company, 364 So.2d 1383 (La.App. 3 Cir. 1978). This rule has been recognized by our courts as early as 1886 in the case of Williams v. McManus, 38 La.Ann. 161. In the later case of Loyacano v. Jurgens, 50 La.Ann. 441, 23 So. 717 (La.1898), our Supreme Court stated that an individual’s circumstances may be considered in determining damages to be awarded in a personal injury case.

The record leaves little doubt as to the impoverishment of Roshto. In this regard, the trial judge stated:

“Evidence as to Roshto’s financial situation shows him to be 66 years old with a history of mental illnesses. Social Security in the amount of $327.00 per month and retirement benefits in the amount of $60.00 per month are the only sources of income for both Roshto and his wife. The couple does not own any assets. Additionally, Roshto was seriously injured in the collision with McGrew, which further reduced his ability to pay.
“The courts find that these facts warrant mitigation, Tarver v. U-Haul Company, Inc., 362 So.2d 1157 (2nd Cir., La.App. 1978), Henton v. Southeastern Fidelity Insurance Co., 364 So.2d 1383 (3rd Cir., La.App.1978), and limits Allstate’s right of reimbursement to the amount of $1,500.00.”

In invoking the “inability to pay” doctrine, the trial court limited judgment in favor of McGrew, Great American, Joe Gos-sett d/b/a Westend Amusement Company, and Allstate, against Roshto, to $1,500.00 each, although Roshto was liable in solido with State Farm Mutual Automobile Insurance Company, Nationwide Insurance Company, and Allstate Insurance Company.

LSA-C.C. Article 2324 provides:

“He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act.

As the above quoted article points out, each joint tort-feasor is liable to the fullest extent for the damages the plaintiff sustains. See also LSA-C.C. Articles 2103 and 2104.

In Howell v. Knight, 193 So.2d 282 (La.App. 1 Cir. 1966), the court addressed an issue similar to the one which confronts us. In that case the court stated that where co-defendants are cast in solido, the evidence must show the inability of all defendants to respond before a judgment is rendered in a lesser amount than would ordinarily be assessed against in solido defendants. Therefore, when two solidary ob-ligors may be responsible for payment of the amount of the judgment, the inability of one solidary obligor to pay does not become relevant until the solvent co-obligor seeks contribution from the insolvent one. Daniels v. Conn et al., 382 So.2d 945 (La.1980).

In the instant case there are several solvent defendants. Therefore, the court was in error in applying the inability to pay doctrine to the portions of the judgment rendered in favor of McGrew, Great American and Joe Gossett d/b/a Westend Amusement Company against Roshto. Only Allstate has attempted to seek indemnity from Roshto for the amounts which it paid to McGrew pursuant to its uninsured motorists coverage.

As stated in Daniels v. Conn et al., supra:

“In Brown v. New Amsterdam Casualty Company, 243 La. 271, 142 So.2d 796 (1962), this Court stated that although the injured party’s cause of action against either or both of two joint tort-feasors comes into being and the obligation of each tortfeasor to the injured party commences at the time a tort is committed, the rights and obligations as between the joint tortfeasors do not then arise, because the obligation between the joint tortfeasors are not created by the commission of the tort, but rather spring from the principle of contribution.”

In accordance with the above discussed jurisprudence, we find that there were solvent tort-feasors from which the plaintiff could recover who were liable in solido with Roshto. The evidence of the insolvency or impecunious status of Roshto should not therefore have been considered by the trial judge in apportioning damages as between those joint tort-feasors.

However, in the case of Allstate, we reach a different result. Allstate is attempting to exercise its right of reimbursement pursuant to LSA-R.S. 22:1406D(4). In Niemann v. Travelers Insurance Company, 368 So.2d 1003 (La.1979), the Supreme Court stated:

“On the basis alone of statutory interpretation, we find that the UM insurer has no right under R.S. 22:1406D(4) other than the right to reimbursement from such proceeds, if any, that the insured in fact recovers from the underinsured tort-feasor.”

Roshto argues that the judgment against him in favor of Allstate for $1,500.00 is not in recognition of Allstate’s “right to reimbursement”, but was on the basis of the trial court’s conclusion that Allstate had a right of subrogation against him. We agree. Judgment was rendered against Roshto in favor of McGrew. Due to Rosh-to’s being underinsured, Allstate had to respond pursuant to the uninsured motorist’s provision of its policy with McGrew. Under the holding of Niemann, Allstate cannot recover from Roshto the sum which it paid to McGrew, but must instead seek indemnification from McGrew if and when he recovers from Roshto. Allstate cannot assert against Roshto a claim based on contribution, ergo, Roshto’s inability to pay is of no moment.

RANKING OF ATTORNEY’S FEES

Great American Insurance Company has filed in this Court peremptory exceptions of no cause of action and no right of action.

Great American excepts to plaintiff’s raising on appeal the issue of whether or not his attorney is entitled to a privilege of first rank on the proceeds of the judgment obtained in the proceedings in the trial court. The ground for this exception is that no allegations of fact contained in any of the pleadings filed in the record in this case state a cause of action relative to attorney’s fees. Paragraph 3 of LSA-C.C.P. Article 931 states:

“No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.”

The peremptory exception of “no cause of action” questions whether the law affords a remedy under the allegations made in plaintiff’s petition. Arnold v. Arnold, 376 So.2d 528 (La.App. 3 Cir. 1979); Bamber Contractors, Inc. v. Henderson Brothers, Inc., 345 So.2d 1212 (La.App. 1 Cir. 1977). After a review of the pleadings filed by plaintiff herein, we conclude that the exception of no cause of action should be sustained. Nowhere in the record do we find any allegations as to the attorney’s fees due to counsel for McGrew. In so ruling, we need not pass on the merits of the exception of no right of action urged by Great American and same is dismissed.

PENALTIES AND ATTORNEY’S FEES

LSA-R.S. 22:658 provides for penalties and attorney’s fees if an insurer fails to pay a claim within the delays set out therein if such failure to pay was arbitrary, capricious, or without probable cause. This statute is not applied when the insurer has a reasonable basis to defend the claim. Soniat v. State Farm Mutual Automobile Insurance Company, 340 So.2d 1097 (La.App. 4 Cir. 1976).

McGrew argues that due to the extent of his injuries, Allstate was arbitrary and capricious in refusing to pay under the UM provisions of the policy issued to him. Allstate counters by arguing it is only an excess insurer and that McGrew’s injuries did not merit an award greater than that available through State Farm and Nationwide. The trial court disallowed penalties and attorney’s fees, stating:

“Where, as here, there is a serious question of quantum and two other parties as primary insurers, it is not unreasonable for the UM carrier to withhold payment.”

Having reviewed all of the evidence, we do not think that this is an abuse of his discretion. See Manuel v. American Indemnity Company, 368 So.2d 1200 (La.App. 3 Cir. 1979).

For the above and foregoing reasons, the judgment of the trial court is reversed in part, amended, and as amended, affirmed.

Judgment is recast to read as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Alton D. McGrew and against State Farm Mutual Automobile Insurance Company, Nationwide Insurance Company, Allstate Insurance Company, and T. 0. Roshto, jointly, severally, and in solido, in the full sum of $31,016.26, together with legal interest thereon from date of judicial demand until paid; with the amount of the judgment as against State Farm Mutual Automobile Insurance Company, however, being limited to the limit of its bodily injury insurance policy limits to one person, being $10,000.00, plus the payment of interest and costs; the amount of judgment as against Nationwide Insurance Company, however, being limited to the limit of its bodily injury policy limits to one person being $15,000.00, plus the payment of interest and costs; with the amount of the judgment as against Allstate Insurance Company, however, being limited to the sum of $6,016.26, plus the payment of interest and costs.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Great American Insurance Company and against Nationwide Insurance Company, State Farm Mutual Automobile Insurance Company, and T. 0. Roshto, jointly, severally, and in solido, in the full sum of $11,175.00, said judgment as against the parties to be limited to the sums set forth in the preceding paragraph and to be paid to Great American Insurance Company by preference and priority, and from the proceeds of the judgment rendered in the preceding paragraph in favor of Alton D. McGrew, together with legal interest thereon from date of judicial demand until paid and all costs of these proceedings;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the judgment herein in favor of Allstate Insurance Company and against T. 0. Roshto in the full sum of $1,500.00, together with legal interest thereon from the date of judicial demand until paid is reversed, vacated, and set aside.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Joe Gossett, d/b/a Westend Amusement Company, and against State Farm Mutual Automobile Insurance Company, Nationwide Insurance Company, and T. 0. Roshto, jointly, severally, and in solido, in the full sum of $2,000.00, together with legal interest thereon from date of judicial demand until paid.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the expert witness fee of Dr. John T. Weiss is hereby fixed at the sum of $100.00, to be taxed as costs;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the demand of Alton D. McGrew against Allstate Insurance Company for penalties and attorney’s fees is hereby denied.

In all other respects, the judgment of the trial court is affirmed. All costs of this appeal are assessed against Nationwide Insurance Company, State Farm Mutual Automobile Insurance Company, and Allstate Insurance Company on a joint and equal basis.

AFFIRMED IN PART, REVERSED IN PART, AMENDED AND RENDERED.

      . This article has been amended by Act 431 of 1979 to provide for the apportionment of damages among in solido tortfeasors according to degrees of negligence, pursuant to the establishment of comparative negligence in Louisiana. This amendment, however, does not apply to claims arising from occurrences prior to August 1, 1980.

      . “Art. 2103. When two or more debtors are liable in solido, whether the obligation arises from a contract, a quasi contract, an offense, or a quasi offense, it should be divided between them. As between the solidary debtors, each is liable only for his virile portion of the obligation.
      A defendant who is sued on an obligation which, if it exists, is solidary may seek to enforce contribution, if he is cast, against his solidary co-debtor by making him a third party defendant in the suit, as provided in Article III1 through 1116 of the Code of Civil Procedure, whether or not the third party defendant was sued by the plaintiff initially, and whether the defendant seeking to enforce contribution if he is cast admits or denies liability on the obligation sued on by the plaintiff.” As amended by Acts, 1960, No. 30, § 1, (effective Jan. 1, 1961).”
      Article 2103, like Article 2324, has been changed by Act 431 of 1979, to reflect the implementation of a comparative negligence system in Louisiana. This change in the law does not affect claims arising from events occurring prior to the Acts’ effective date, as provided by section 4 of the Act.
      “Art. 2104. If one of the codebtors in solido pays the whole debt, he can claim from the others no more than the part and portion of each.
      If one of them be insolvent, the loss occasioned by his insolvency must be equally shared amongst all the other solvent codebtors and him who has made the payment.”

      . LSA-C.C.P. Article 2163 allows an appellate court to consider a peremptory exception filed for the first time in that court, if pleaded before the case is submitted for a decision, and if proof of the grounds of the exception appears of record. We note that counsel for Great American has clearly delineated and treated separately the exceptions pleaded. We think counsel should be lauded for his preciseness in so doing and in applying the rules applicable to each.


text:
    Joe GOSSETT, d/b/a Westend Amusement Company, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Defendants-Appellants.
    No. 7646.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.
    Charles F. Wagner, Pineville, for plaintiff-appellant.
    Stafford, Stewart & Potter, Ronald J. Fiorenza, Alexandria, for plaintiff-appellee.
    McLure & McLure, John G. McLure, Alexandria, for defendants-appellants.
    Gist, Methvin, Hughes & Munsterman, David A. Hughes, Alexandria, for defendants-appellees-appellants.
    Provosty, Sadler & deLaunay, David P. Spence, Alexandria, for defendants-appel-lees.
    Shelby E. Bohannon, Alexandria, for plaintiff-appellant.
    Before DOMENGEAUX, FORET and CUTRER, JJ.
   FORET, Judge.

For the reasons stated in the companion case of Alton D. McGrew v. State Farm Mutual Automobile Insurance Company et al., 385 So.2d 1276 (La.App. 3 Cir. 1980), in which a separate decision has been rendered by us on this date, the judgment appealed herein is affirmed in part, reversed in part, and amended. All costs of this appeal are assessed against Nationwide Insurance Company, State Farm Mutual Automobile Insurance Company, and Allstate Insurance Company on a joint and equal basis.

AFFIRMED IN PART, REVERSED IN PART, AMENDED AND RENDERED.


text:
    GREAT AMERICAN INSURANCE COMPANY, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Defendant-Appellant.
    No. 7647.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.
    Charles F. Wagner, Pineville, for plaintiff-appellant.
    Stafford, Stewart & Potter, Ronald J. Fiorenza, Alexandria, for plaintiff-appellee.
    McLure & McLure, John G. McLure, Alexandria, for defendants-appellants.
    Gist, Methvin, Hughes & Munsterman, David A. Hughes, Alexandria, for defendants-appellees-appellants.
    Provosty, Sadler & deLaunay, David P. Spence, Alexandria, for defendants-appel-lees.

      Shelby E. Bohannon, Alexandria, for plaintiff-appellant.
    Before DOMENGEAUX, FORET and CUTRER, JJ.
   FORET, Judge.

For the reasons stated in the companion case of Alton D. McGrew v. State Farm Mutual Automobile Insurance Company et al., 385 So.2d 1276 (La.App. 3 Cir. 1980), in which a separate decision has been rendered by us on this date, the judgment appealed herein is affirmed in part, reversed in part, and amended. All costs of this appeal are assessed against Nationwide Insurance Company, State Farm Mutual Automobile Insurance Company, and Allstate Insurance Company on a joint and equal basis.

AFFIRMED IN PART, REVERSED IN PART, AMENDED, AND RENDERED.