author: CARTER, Judge.

text:
    Janice Campbell EDWINS, et al. v. Roy M. LILLY, Jr., et al. CONSUMER CREDIT CORPORATION, et al. v. Roy M. LILLY, Jr., et al.
    Nos. 15074, 15075.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Rehearing Denied Dec. 16, 1982.
    Writs Denied Feb. 4, 1983.

      R.C. Edwins, Baton Rouge, for Janice Campbell Edwins.
    Henry O’Connor, Jr., New Orleans, for Consumer Credit Corp.

      Roy M. Lilly, Jr., in pro. per.
    Anthony J. Clesi, Jr., Baton Rouge, Richard F. Knight, Bogalusa, Lawrence R. Anderson, Baton Rouge, Dale E. Branch, Bo-galusa, France W. Watts, III, Franklinton, Kenneth E. Barnette, Baton Rouge, H.F. Foster, New Orleans, for Roy M. Lilly, Jr., et al.
    Before CARTER, SAVOIE and SHOR-TESS, JJ.
   CARTER, Judge.

Plaintiff, Consumer Credit Corporation in Liquidation filed suit against Roy M. Lilly, Jr., Jim W. Richardson, Jr., Robert Morton Roche, and Washington Bank & Trust Company, seeking to recover funds allegedly misappropriated during the liquidation of Consumer. Plaintiff appeals from a judgment in its favor against Lilly only and which dismissed its claim against Richardson and the Bank. The judgment also dismissed all third party demands and the claim against Roche as barred by the bankruptcy laws.

Plaintiff was a commercial lending institution operating in Washington Parish, Louisiana, and the State of Mississippi. Hal J. Hendricks, Sr., L. Rowe Davidson, and Roche (one of the defendants) acted as its “executive committee” during all times relevant to the negotiations of the sale of its assets to Allstate Credit Plan, Inc., and during the development of a plan of liquidation. In July, 1972, the shareholders of Consumer voted to place it in non-judicial liquidation contemporaneously with the sale to Allstate. In the resolution authorizing liquidation, Richardson was appointed liquidator of Consumer. Lilly of (Richardson & Lilly) was to act as counsel for Consumer during its liquidation. The sale price of the assets of Consumer was $2,088,335.00 ($2.50 per share for common stock), which was calculated to retire all outstanding long-term debts.

According to the plan of liquidation, the liquidator was to pay the long-term debts immediately upon presentation to him of the notes and bonds representing them and to distribute to the shareholders 90% of the price of each share ($2.25) upon presentation of the certificates. The remaining 10% of the value of the stock ($208,833.50) was to be retained by the liquidator for a year as a reserve against contingent liabilities. This reserve fund was to be held in the form of a certificate of deposit.

At this time Jim W. Richardson, Jr. and Roy M. Lilly, Jr. practiced law together in Bogalusa under the partnership name of Richardson & Lilly, and for some time pri- or to the sale and liquidation had represented Consumer, the Bank, Hendricks and Roche in various legal matters. There were no written articles of partnership defining their business relationship, although Richardson and Lilly held themselves out to the public as a professional law partnership, with each of them performing law firm business. They shared equally in the profits and expenses, and for all apparent purposes operated as a traditional small-town two-man law partnership, with each of them more or less devoting his time mainly to clients he considered “his client”, but handling matters for each other as the occasion demanded. St. Paul Fire and Marine Insurance Company was the professional liability insurer of the law firm of Richardson & Lilly and each of the partners.

On the night of July 19, 1972, Allstate delivered to Lilly the sale price for the assets of Consumer. Lilly placed the money in the night depository of the Bank’s branch office in Bogalusa. The next day, Lilly opened two separate checking accounts and purchased a certificate of deposit from the Bank. First, Lilly opened the Consumer Credit Corporation Liquidator’s Account and deposited in this account the sale price received from Allstate. A portion of the funds in this account was then used to buy the certificate of deposit # 4503 in the amount of $208,833.50. Next, Lilly opened the second account, the Richardson & Lilly Special Escrow Account. These accounts were in addition to the existing law firm accounts at the Bank and at another bank in the parish. Authorized signatories on the liquidator’s account were Richardson and a secretary of the law firm, Carolyn Cesario. Lilly and Ms. Cesario were authorized to sign on the special escrow account. Both Richardson and Lilly were authorized to sign checks drawn on the firm’s operating accounts. The initial deposit in the special escrow account was a check from the law firm in the amount of $1,000.00. On that same day, July 20, 1972, Lilly forged the liquidator’s signature to a check in the amount of $100,000.00 drawn on the liquidator’s account, and deposited this amount in the special escrow account. Also, on July 20, 1972, two checks were drawn on the special escrow account in the amounts of $13,640.04 and $15,270.29, to the order of the Bank to pay certain mortgages held by the Bank on certain properties which had been transferred by notarial acts passed before Lilly as notary public, but for which he had retained the funds, rather than paying off the mortgages. These mortgage payoffs were but the first of several such pay-offs to the Bank from the special escrow account, totalling $125,-835.45, and for which no corresponding deposits were made into the account.

By September 18, 1972, the liquidator’s account had been depleted, and there were still outstanding unsatisfied claims which had to be paid under the plan of liquidation. In order to cover this shortage, Lilly forged Richardson’s name to a letter dated September 18, 1972, requesting the transfer of $50,000.00 from the certificate of deposit to the liquidator’s account. This payment from the certificate of deposit, having been requested in advance of the stated maturity date, required the authorization of an officer of the Bank. Roche authorized this transfer of funds. The requested amount was transferred into the liquidator’s account, and a new certificate of deposit (# 4602) was issued in the amount of $159,-216.13. The new certificate was backdated to July 20,1972, for the purpose of allowing Consumer to earn interest from that date.

By December 22,1972, the special escrow account was overdrawn in the amount of $175,612.52. To cover these overdrafts Lilly forged Richardson’s name to a check on the liquidator’s account for the sum of $183,-537.06. Since the balance of the liquidator’s account was insufficient to cover this check, Lilly also forged Richardson’s name to a letter dated December 22, 1972, requesting the transfer of the proceeds represented by the certificate of deposit # 4602 to the liquidator’s account. These funds were then transferred from the liquidator’s account to the special escrow account. Roche authorized payment of certificate of deposit # 4602 in advance of its stated maturity date and handled the deposit of the check from the liquidator’s account to the special escrow account.

In this suit plaintiff seeks to recover from Lilly, Richardson, Roche, and the Bank, the money that was misappropriated. The trial court found that Lilly was responsible for the misappropriation and thus liable to the plaintiff. The trial court considered Richardson to be merely a “nominal liquidator,” and thus not liable; Roche to be an adjudicated bankrupt, whose liability was preter-mitted; the Bank to have no knowledge of the forgeries or the misappropriation of the funds involved in the lawsuit, and not to have been in bad faith nor to have had actual knowledge of Richardson’s breach of duty, and thus not liable under the Uniform Fiduciaries Act (LSA-R.S. 9:3801 et seq).

Plaintiff has perfected this appeal and seeks reversal on three basic grounds: first, appellant contends that it was error to find that Richardson (as liquidator) did not breach his fiduciary duty to Consumer; second, appellant contends that it was error to find that the Bank was not liable under the Uniform Fiduciaries Act and not liable for having honored forged instruments; and third, appellant contends that it was error to find that St. Paul was not liable under its professional liability policy insuring Lilly, Richardson, and the law partnership of Richardson & Lilly.

LIABILITY OF RICHARDSON

We have carefully scrutinized this lengthy record and conclude that the evidence in the record does not support the trial court’s finding that Richardson was merely a “nominal liquidator.” He was duly selected and appointed as liquidator of this corporation, and he accepted that trust. The record also does not support the finding that Richardson acted with the diligence, care, judgment and skill which an ordinarily prudent man would have exercised under the circumstances of the instant case.

The standard of conduct expected of a liquidator in the performance of his duties is expressed in LSA-R.S. 12:145(G), as follows:

“In the performance of his duties, each liquidator shall be bound to exercise that care and prudence in the listing, custody, possession, control and disposition of the property and moneys of the corporation coming into his hands, and in the proper accounting therefor, and distribution thereof, as by law is imposed upon fiduciaries.”

Moreover, during the liquidation process, all of the rights, powers and duties of corporate officers are vested in and imposed on the liquidator, LSA-R.S. 12:141(C); Noe v. Roussel, 310 So.2d 806 (La.1975).

In Noe, the Supreme Court held that there was a fiduciary relationship between the liquidator and shareholders of a corporation. The Court reasoned that when a corporation was placed in liquidation, the duties and powers of the former corporate officers and directors devolved upon the liquidator; hence, he was obligated to conduct himself in the same manner as are officers and directors. The standard of care exacted of corporate officers and directors is expressed in LSA-R.S. 12:91, as follows:

“Officers and directors shall be deemed to stand in a fiduciary relation to the corporation and its shareholders, and shall discharge the duties of their respective positions in good faith, and with that diligence, care, judgment and skill which ordinarily prudent men would exercise under similar circumstances in like positions

The record does not reflect that Richardson took any steps toward actually discharging the duties of his office. There is no evidence that he even made any inquiry of Lilly, his law partner, who was also counsel for the corporation in liquidation, about the status of the liquidation process. He seems to have been content to let his law partner run the whole show; even though, as an attorney himself, he knew that as liquidator he had certain duties and obligations, and that he was not performing or meeting them. Richardson testified to his activities, or lack thereof, as liquidator. He never looked at a bank statement. He never checked a bank balance. As the liquidation continued, presumably toward termination, he never inquired as to its status. He delivered all mail addressed to him (as liquidator) to Lilly, unopened and unread. From the beginning to the end he completely ignored the duties and obligations incumbent upon him as liquidator.

Counsel representing the liquidator appropriately refers to Richardson’s interest in the liquidation process as a “passing awareness.” Unfortunately for Mr. Richardson the law demands more of a liquidator than such slight attention to the affairs of his trust. The law does not permit a liquidator to stand insouciantly on the sidelines while the liquidation is being frustrated or frittered away. The liquidator must actively be involved in the administration of his trust. He is the fiduciary to the corporation in liquidation, its shareholders and its creditors. As fiduciary, his duty is of the highest obligation required by law. He must “zealously, diligently and honestly guard and champion the rights of his principal against all other persons whomsoever.” Noe v. Roussel, supra at 819. If Mr. Richardson did not care to perform the duties of liquidator, he should have resigned his position. By remaining as liquidator without fully performing the duties required of him, he failed to prudently handle the affairs of the corporation in liquidation. His failure in this respect is one of the primary reasons Lilly was able to so easily steal the funds of Consumer (the other reason being the cooperation of Roche). As liquidator, Mr. Richardson failed to measure up to even the least minimum standard that one has a right to expect of a fiduciary. When Mr. Richardson was questioned about his performance as liquidator, the record reflects the following testimony:

“Q. During the period from July of ’72 through July of ’73, what actions did you take so far as monitoring the status of the funds of Consumer Credit Corporation in liquidation?
A. I don’t believe I ever took any.”

He cannot now claim that he was liquidator in name only. He was the only appointed liquidator. As such, it was incumbent upon him to perform the duties exacted of the liquidator. The fiduciary duties of the corporate liquidator are discussed in Todd Shipyards Corporation v. Lomm, 190 So.2d 125 (La.App. 4th Cir.1966), writ refused 249 La. 1022, 192 So.2d 370 (1966); and 204 So.2d 80 (La.App. 4th Cir.1967). As shown by the Todd decisions, the liquidator will be held liable for breach of his fiduciary duties. We thus find that it was error for the trial court to hold that Richardson was not liable for the breach of his fiduciary duty to Consumer.

We further point out that Richardson’s argument that his appointment as liquidator was never operative because he failed to comply with LSA-R.S. 12:142(B) is without merit. See Todd Shipyards Corporation v. Lomm, supra.

LSA-R.S. 12:142(B) provides:

“B. The shareholders or incorporators authorizing the dissolution may authorize liquidation of the affairs of the corporation out of court, by appointment of one or more liquidators to conduct the liquidation, but the appointment shall not be operative until:
(1) Notice of authorization of the dissolution, stating that the corporation is to be liquidated out of court and giving the name and post office address of each liquidator, has been published at least once in a newspaper of general circulation in the parish in which the corporation’s registered office is located, and a copy of such notice, with the affidavit of the publisher of the newspaper to the fact of such publication attached, has been filed with the Secretary of State; and
(2) A certificate that the dissolution has been authorized in accordance with this section, setting forth the manner of such authorization, has been signed by the president or a vice-president and the secretary or an assistant secretary of the corporation, acknowledged by one of the signing officers, and filed with the Secretary of State, who, after all fees and charges have been paid as required by law, shall record the same in his office, and endorse thereon the date of filing thereof with him.”

The quoted statute is not designed to protect the liquidator; its purpose is to give proper notice to third persons dealing with a corporation that the corporation is in liquidation and is winding up its affairs. This Court is of the opinion that one who accepts the trust of liquidator and serves in the capacity of liquidator cannot rely on these technical provisions of the law to insulate him from liability for breach of his fiduciary duty.

Counsel for Richardson is in error when he argues that any cause of action which plaintiff may have against the liquidator would sound in tort, and is thus barred by LSA-C.C. art. 3536 establishing the liberative prescription of one year for such actions. The plea of one-year prescription is not good. The relation between Richardson as liquidator and the corporation in liquidation (and its shareholders) is a fiduciary relationship and his duty owed to them is a special duty, and not a general one due everybody. The prescription of ten years, not of one year, is applicable. Dawkins v. Mitchell, 149 La. 1038, 90 So. 396 (1922); Pool v. Pool, 16 So.2d 132 (La.App. 1 Cir.1943).

LIABILITY OF THE BANK

Our careful study of the record convinces us that the trial court was in error in not finding that the Uniform Fiduciaries Act, LSA-R.S. 9:3801 et seq., was applicable to the situation at hand so as to hold the Bank liable to Consumer.

The pertinent section of the Uniform Fiduciaries Act is LSA-R.S. 9:3807, which provides:

“If a deposit is made in a bank to the credit of the fiduciary as such, the bank is authorized to pay the amount of the deposit or any part thereof, upon the check of the fiduciary, signed with the name in which such deposit is entered, without being liable to the principal, unless the bank pays the check with actual knowledge that the fiduciary is committing a breach of his obligation as fiduciary in drawing the check; or with the knowledge of such facts that its action in paying the check amounts to bad faith. If, however, such check is payable to the drawee bank and is delivered to it in payment of, or as, security for a personal debt of the fiduciary to it, the bank is liable to the principal if the fiduciary in fact commits a breach of his obligation as fiduciary in drawing or delivering the check.”

Under the Act for plaintiff to recover it was necessary to show that the Bank had “actual knowledge” of the misappropriation or was in “bad faith” in handling transactions by which the misappropriation occurred. The Act also permits recovery if checks were payable to the Bank and delivered to it in payment of, or as security for, personal debt of the fiduciary to it where there was a breach of fiduciary obligation. We find that the evidence establishes facts that can only lead to the conclusion that the Bank (through Roche) had actual knowledge the funds belonging to Consumer were being misappropriated and that the Bank (through Roche) was in “bad faith” with regard to those transactions.

At the time of the institution of the lawsuit, there were no funds remaining to the account of Consumer. The record reflects that through forgeries and misappropriations, funds belonging to the corporation in liquidation were diverted to the special escrow account, a substantial portion of the funds being paid to the Bank for debts of the law firm (or Lilly or Richardson, individually). Lilly has admitted his own actions in connection with the forgeries and misappropriations. The evidence in the record clearly establishes the complicity, cooperation and collaboration of Roche with Lilly.

The record establishes a long-standing personal and business relationship between Lilly and Roche which had existed prior to and throughout the course of Lilly’s actions. Roche depended upon Lilly to handle gambling debts for him and to advance large sums of cash to him far beyond Lilly’s apparent means and without any documentation. Roche was charged with supervision of the Bank office at which all of Consumer’s transactions were conducted. Roche personally handled many of them, including the most critical. Roche supervised Lilly’s accounts at the Bank and allowed almost constant substantial overdrafts to exist. As a member of the executive committee for Consumer and as a Bank executive officer, Roché was singularly well-equipped to recognize the impropriety of the account manipulations and the early redemptions of the certificate of deposit and he was obviously in a position “to question” the transfer of funds from the liquidator’s account and the early redemptions of the certificate of deposit. Rather than preventing the misappropriations, Roche continued to support Lilly’s public representations that the liquidation was in order, that the escrow was secure in the Bank, and that the shareholders could expect their money soon. The inescapable conclusion is that Koche knew of the manipulations of Consumer’s accounts by Lilly.

We believe the observation made by the Court in Lilliedahl & Mitchel, Inc. v. Avoyelles Trust & Savings Bank, 352 So.2d 781, 787 (La.App. 3 Cir.1977), is pertinent herein:

“Looking to the facts and circumstances of this case, we note at the outset that this is a suit against a bank involving large sums of money. Banks stand in a peculiarly unique place in the business world. They are entrusted with huge sums of money by their depositors and must proceed cautiously when dealing with deposited sums. We also note that it is axiomatic that a corporation can only act through individuals and these individuals must be given legal power to act on behalf of a corporation. Furthermore, the resolution in this case was very detailed as to the type of transactions in which Lilliedahl was authorized to act. We feel that the Bank should proceed cautiously when applying corporate funds entrusted to the Bank to the personal debt of a corporate officer, especially when large sums of money are involved, and that some form of specific corporate authorization should be required.” (Emphasis added.)

The Bank through Roche did not “proceed cautiously” in dealing with the several accounts involved, the mortgage pay-offs and the certificates of deposit. On the contrary, the Bank through Roche proceeded most dangerously, giving Lilly carte blanche to manipulate his personal transactions, his law firm’s and law partner’s transactions, Consumer’s transactions, Roche’s transactions and the liquidator’s transactions as Lilly willed. We feel the Bank should have proceeded most cautiously when allowing the liquidator (or Lilly through forged papers) to prematurely redeem two certificates of deposit (on two occasions) and channel the funds through the liquidator’s account into a special escrow account (not belonging to Consumer), especially when large sums of money were involved. The Bank’s knowledge through Roche concerning the uses to which the accounts were being put, the situation surrounding the premature redemption of two certificates of deposit, and the involvement of Lilly rather than the liquidator, Richardson, in the liquidation process, constituted actual knowledge that Richardson was breaching his fiduciary relationship with Consumer within the contemplation of LSA-R.S. 9:3807.

The essence of the relationship between Roche and Lilly is distilled in Lilly’s final response to a line of questioning on direct examination regarding the manner of their personal dealings:

“(We knew that) ... there would be no problems because we did stuff all of the time where it was not strictly according to sound banking practices and it was handled and there was no problem. Morton (Roche) was a forerunner of Bert Lance”

(Emphasis added).

The Bank through Roche was fully aware of the transfers and transactions between the special escrow account and the liquidator’s account, and the redemption of the certificate of deposit. In fact, Roche actively participated in some of them. The Bank had before it clear evidence of misappropriation. Therefore, we hold that the Bank is liable to Consumer under the Uniform Fiduciaries Act. Guaranty Bank & Trust Company of Alexandria v. C & R Development Company, Inc., 260 La. 1176, 258 So.2d 543 (1972).

The record establishes that there were eight checks drawn on the special escrow account to the order of the Bank in satisfaction of mortgages held by the Bank on the properties previously sold by notarial acts passed before Lilly in connection with which Lilly had received funds to pay off these mortgages, but had retained the funds in his already overdrawn operating account. The checks totalled $125,835.45 for which no corresponding deposits were made to the special escrow account or to the liquidator’s account. The Bank was fully aware of these transactions, being both payee and depository of all of the funds involved. The fiduciary checks from the liquidator’s account were forgeries obvious to the Bank since it had on record the valid signatures of all concerned.

We note that the Bank offered no testimony on its good or bad faith, other than that of Mr. Roche to the effect that he saw nothing wrong in all of the activity involving Lilly and the various accounts and the lack of response from Richardson (who he knew was the liquidator). This Court observed in Charles Ragusa & Son v. Community State Bank, 360 So.2d 231, 234 (La.App. 1 Cir.1978):

“Considering this burden on a bank seeking the protection of the statute, we do not believe that it is sufficient for a bank merely to utter the conclusionary allegation of good faith. On the contrary, when a bank’s actions are put at issue, it is incumbent upon the bank to show that it exercised the requisite care with regard to its customer. This the bank has failed to do in the instant case. In fact, the bank did not introduce any evidence in support of its actions or to prove its alleged good faith.”

Under the circumstances, even if we accept Roche’s testimony at face value, we find that it was commercially unjustifiable for the Bank to disregard and refuse to learn facts readily available. “At some point, obvious circumstances become so cogent that it is ‘bad faith’ to remain passive.” Maryland Casualty Company v. Bank of Charlotte, 340 F.2d 550, 554 (4th Cir.1965).

The record establishes that the Bank’s dealing with Consumer in the redemption of the certificate of deposit and the various transfers from the liquidator’s account to the special escrow account and to the Richardson & Lilly firm account fall within the class of dealings contemplated by LSA-R.S. 9:3807. That being the case, the breach of fiduciary duty of Richardson having been shown and the actual knowledge (and also bad faith) of the Bank having been proven, the Bank is liable to Consumer for its loss.

We also find that the evidence establishes that the liquidator’s forged checks (which the Bank through Roche knew to be forged) were delivered to the Bank in payment of personal debts of the law firm (and, thus, Richardson) constituting another ground for breach of the fiduciary obligation. LSA-R.S. 9:3807.

LIABILITY OF ST. PAUL

Consumer urges this court on appeal to render judgment in its favor against St. Paul Fire and Marine Insurance Company, liability insurer of Richardson. Consumer filed no proceedings whatsoever making St. Paul a defendant in this proceeding. Nor did Richardson file any proceeding either directly or by third-party petition making St. Paul a defendant or third-party defendant. Therefore, the liability of St. Paul to Consumer or Richardson is not before this Court.

For the reasons assigned, this Court reverses the judgment of the trial court in favor of Jim Warren Richardson, Jr. and Washington Bank & Trust Company and finds Jim Warren Richardson, Jr. and Washington Bank & Trust Company liable, jointly and in solido, for the full sum of $208,833.50, together with legal interest thereon from the date of judicial demand until paid, and all costs of these proceedings. In all other respects, the judgment of the trial court is affirmed.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

      . On October 23, 1975, Consumer Credit Corporation instituted proceedings entitled “Consumer Credit Corporation vs. Roy Lilly, Jr., Jim Warren Richardson (Jr.), Robert Morton Roche and Washington Bank & Trust Company,” under docket number 39,747-C of the Twenty-second Judicial District Court, Parish of Washington, Louisiana. On October 24, 1975, the proceedings were consolidated with the proceedings entitled “Janice Campbell Edwins, et al. vs. Roy Lilly, Jr., Jim Warren Richardson (Jr.), Robert Morton Roche and Washington Bank & Trust Company, “under docket number 38,657-B of the Twenty-second Judicial District Court, Parish of Washington, Louisiana.”

      . Roche was an executive officer of Washington Bank & Trust Company (and manager of the branch in Bogalusa) and an executive officer of Consumer Credit Corporation.

      .A special meeting of Consumer shareholders was held on July 17, 1972. At this meeting the shareholders adopted a plan of liquidation, and agreed to sell the corporate assets to Allstate for $2,088,335.00. By resolution, Richardson was appointed liquidator. Lilly formulated the plan of liquidation, prepared all of the necessary documents and arranged the special meeting. According to the plan, approximately 90% of the funds received from Allstate were to be immediately disbursed to the shareholder. A reserve (not to exceed 10% of the sale price) was to be retained (in a certificate of deposit) to meet contingent liabilities of Consumer. As part of the plan, Consumer was to be completely liquidated within one year for tax purposes.

      . Immediately following the sale, a checking account, “Consumer Credit Corporation Liquidator’s Account,” was opened at the Bank, and this amount was deposited in the account.

      . A check for $208,833.50 was drawn on the Bank on the liquidator’s account for the issuance of certificate of deposit # 4503, bearing interest at the rate of 7% per annum and maturing in one year.

      . It appears that each partner had a separate Richardson & Lilly legal or operating account as well as separate firm escrow accounts, and that for business purposes, these accounts were kept at different banks in the parish.

      . Subsequent to the opening of these two accounts large sums of money were periodically transferred from the liquidator’s account to the special escrow account. From July 20, 1972 to December 26, 1972, numerous checks were written to the various shareholders and bondholders, and funds were transferred among the several accounts for the purpose of paying these obligations. The evidence shows that some of these payments were made by checks issued by Richardson, but the majority of the disbursements from these accounts were made by Lilly. In addition to paying obligations under the plan of liquidation, several checks were drawn to the order of the Bank in satisfaction of mortgages held by the Bank for which Lilly was obligated.

      . Apparently, Lilly and Roche handled this entire series of transactions without consulting or confiding in Richardson.

      . A corporate officer (liquidator) has no authority in the absence of a specific corporate resolution to pay from corporate funds the personal debts of a corporate officer or any third person. First National Bank of Ruston v. Pine Belt Producers Co-op, 363 So.2d 1201 (La.App. 2 Cir.1978), writ denied, 365 So.2d 262 (La.1978); Lilliedahl & Mitchel v. Avoyelles Trust & Savings Bank, 352 So.2d 781 (La.App. 3 Cir.1977).

      . Lilly confessed his crime to federal and state authorities in July of 1974, and he resigned from the Louisiana State Bar Association in August of 1974.


source: Caselaw Access Project

author: COVINGTON, Judge.

license: Public Domain

text:
    Eldridge Mack WILLIAMS v. CINCLARE CENTRAL FACTORY, et al.
    No. 15080.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Rehearing Denied Dec. 16, 1982.
    Writ Denied Feb. 4, 1983.

      Otha Curtis Nelson, Sr., Simmons, Nelson & Dunn, Baton Rouge, for plaintiff-appellant.

      Stephen W. Glusman, Glusman, Moore, & Wilkinson, Baton Rouge, for defendants-ap-pellees.
    Before COVINGTON, LEAR and LANIER, JJ.
   COVINGTON, Judge.

This is an appeal by the plaintiff, El-dridge Mack Williams, from the judgment of the District Court in favor of the defendants, Cinclare Central Factory and Liberty Mutual Insurance Company, dismissing his petition for modification of a workmen’s compensation judgment. We affirm.

The background of the instant case is that plaintiff filed a suit against his employer, Cinclare, and its compensation carrier, Liberty Mutual Insurance Company, for workmen’s compensation benefits allegedly due him for a job-related back injury sustained by him on March 14, 1979. The defendants responded to the suit, denying the pertinent allegations. In due course, the matter came on for trial, with judgment being signed on May 21, 1980, pursuant to the trial judge’s written reasons. The court found the plaintiff was partially disabled from October 2, 1979, through October 18, 1979 (all disability having terminated prior to the trial in January, 1980), and awarded him, for that period, sixty-six and two-thirds percent of his wages earned at the time of the injury.

Following the judgment, the plaintiff moved for a new trial on the ground that since the trial, he had discovered that he was no longer able to perform his duties as an employee of Cinclare. The motion for new trial was denied and the plaintiff de-volutively appealed to this Court.

On January 26, 1981, another panel of this Court affirmed the judgment of the trial court, commenting in its opinion that “the trial judge correctly concluded that the plaintiff-appellant was only partially disabled to October 18, 1979.” The plaintiff’s application for rehearing was denied. Then, he applied for writs to the Supreme Court of Louisiana; writs were denied with comment by the Supreme Court.

In September, 1981, a little over four months after the writ denial, Williams filed the instant action against the same defendants, alleging that he desires, pursuant to LSA-R.S. 23:1331, to reopen the case “for the purpose of proving that he is classified as an ‘odd lot employee’ as a result of his injury; and that he has attempted to maintain employment subsequent to the date of the judgment and has not been able to do so without experiencing substantial pain.”

With written reasons, which are attached hereto as Appendix, the trial judge rendered judgment dismissing plaintiff’s petition for modification. We have reviewed the lower court’s reasons for judgment and the entire record herein, and agree with his opinion. We adopt his “Reasons for Judgment” as our own, and affirm the judgment appealed at appellant’s costs.

We also assign as reasons for our affirmation of the judgment of the trial court the comments made by Professors Malone and Johnson in 13 Louisiana Civil Law Treatise, Workers’ Compensation, § 284, p. 661 (1980), as follows:

“The power of modification found in Section 1331 is not a substitute for the appellate process. It exists for the purpose of modifying an award due to change in the capacity of the employee or for fraud in the procurement of the judgment. It cannot be employed for the purpose of reviewing a prior judgment denying compensation on the ground of mistake of law or fact, or even to amend a judgment palpably incorrect if there has been no fraud or change in the employee’s capacity. The appellate process should be used for that purpose.” (Citations omitted.)

We believe that to grant the relief sought by the plaintiff would actually be a reversal of the prior judgment, not merely a “modification” thereof, as contemplated by LSA-R.S. 23:1331. See Gaspard v. Fidelity and Casualty Company of New York, 109 So.2d 278 (La.App. 1 Cir.1959).

For the reasons assigned, we affirm at the appellant’s costs.

AFFIRMED.

APPENDIX

REASONS' FOR JUDGMENT

Petitioner applies to this Court to reopen his compensation case and modify the judgment rendered therein on May 2, 1980 and signed May 21, 1980. That judgment is now final, the First Circuit Court of Appeal having affirmed it and denied rehearing thereon (Williams v. Cinclare Central Factory, 396 So.2d 301 (La.App. 1st Cir.1981), rehearing denied March 16, 1981), and the Supreme Court having denied writs thereon (Williams v. Cinclare Central Factory, 399 So.2d 621 (1981).

Contrary to petitioner’s claim, there is no provision in the judgment of May 21, 1980 reserving any right of modification to petitioner. That judgment, pursuant to the reasons stated therefor, found petitioner partially disabled from October 2, 1979 through October 18, 1979, and fully recovered thereafter. The remainder of the judgment is not pertinent to this latest pleading. Petitioner’s claim of a right to modification of the judgment of compensation must, therefore, be based upon LSA-R.S. 23:1331. That statute permits modification of a judgment of compensation by subsequent agreement between the parties, with approval of the Court which rendered the judgment. Petitioner does not allege agreement between the parties herein. The statute further permits modification if the judgment was obtained through fraud, error or misrepresentation. Again, petitioner does not make these allegations. Finally, the statute permits modification if the incapacity of the employee (petitioner) has increased or diminished subsequent to the judgment; he simply alleges that he should be classed as an “odd lot employee”, that he has been unable to maintain steady employment since his injury, and that he experiences substantial pain when he performs duties required in the course of his employment. These allegations do not justify review or modification of the compensation judgment rendered herein. At best, they merely constitute an application for a new trial of the merits originally decided. As previously stated, this matter has been taken to a final judgment. This Court finds no allegation in petitioner’s latest pleading to justify the modification of judgment sought, nor even to justify hearing thereon.

For these reasons this petition for modification of the workmen’s compensation judgment is dismissed. Petitioner to pay all costs.

Port Allen, Louisiana this 30th day of September, 1981.

/s/ Daniel P. Kimball

DANIEL P. KIMBALL, JUDGE

      . LSA-R.S. 23:1331 provides:
      “A judgment of compensation may be modified by subsequent agreement between the parties, with the approval of a judge of the court which rendered the same.
      “At any time six months after the rendition of a judgment of compensation, a judge of the trial court that rendered the judgment shall review the same upon the application of either party for a modification thereof, on the grounds that the incapacity of the employee has been subsequently diminished or increased, or that the judgment was obtained through error, fraud, or misrepresentation. In such cases the provisions of R.S. 23:1121 through R.S. 23:1124 with reference to medical examinations shall apply.”


author: LANIER, Judge.

text:
    Rosemary K. SELLERS v. Floyd J. BREAUX, et al.
    No. 15081.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Rehearing Denied Dec. 16, 1982.
    Gerald J. Block, Come & Block, Lafayette, for plaintiff-appellant.
    John A. Jeansonne, Jr., Jeansonne, Briney & Lewis, Lafayette, for C.M. Miciotto & Sons, Inc. and Employers Mut. Liability Ins. Co. of Wis.
    Don L. Broussard, Lafayette, for Travelers Ins. Co.
    J. Louis Gibbens, Gibbens & Blackwell, New Iberia, for Royal Globe Indem. Co. and Floyd J. Breaux.
    John E. McElligott, Jr., Davidson, Meaux, Sonnier & Roy, Lafayette, for Power Rig Drilling Co. and Houston General Ins. Co.
    William E. Logan, Jr., Logan & Viguerie, Lafayette, for Floyd J. Breaux Painting Contractor’s, Inc. and Floyd J. Breaux.
    Coleman T. Organ, Organ & Meyer, New Orleans, for intervenor Coleman T. Organ.
    Before COVINGTON, LEAR and LANIER, JJ.
   LANIER, Judge.

This is a suit for damages in tort alleging that the plaintiff-appellant, Rosemary K. Sellers Jacobs, was injured from inhaling toxic creosote fumes for which the defendants were responsible. Suit was filed by the appellant against Power Rig Drilling Company (hereinafter referred to as Power Rig) and its insurer, Houston General Insurance Company; C.M. Miciotto & Sons, Inc. (hereinafter referred to as Miciotto) and its insurer, Employers Mutual Liability Insurance Company of Wisconsin; and Floyd J. Breaux Painting Contractors, Inc. (hereinafter referred to as Breaux Painting) and its insurer, Royal-Globe Indemnity (Insurance) Company. The Travelers Insurance Company (hereinafter referred to as Travelers) intervened in these proceedings as the workmen’s compensation insurer of appellant’s employer for $24,032.40, representing $19,680.00 for compensation benefits and $4,352.40 for medical payments. At the close of the plaintiff’s case, the trial judge granted a directed verdict in favor of Power Rig and its insurer. The jury found that the appellant was entitled to a verdict against Breaux Painting and Miciotto and their insurers and gave a lump sum award of $5,000.00. The trial judge ruled that Travelers was entitled to judgment on its intervention. The appellant took this de-volutive appeal and claims that the jury award is inadequate.

I. FACTS

In November of 1976, appellant was employed by the Life Preserver, a vitamin and health food store, located in Morgan City, Louisiana. The office of Power Rig was located in the samé building. Power Rig contracted with Miciotto for certain renovation work on the office. Miciotto subcontracted the painting portion of this work through Breaux Painting. During the Thanksgiving holidays of November 1976, Alton Breaux, an employee of Breaux Painting, used Cabot Creosote Stain to paint the doorframes in the Power Rig office. The building housing the Life Preserver and the Power Rig office was closed over the Thanksgiving weekend. The appellant returned to work at the Life Preserver on November 30, 1976, and suffered an allergic reaction and bronchitis from the inhalation of creosote fumes which were circulated throughout the building by the air-conditioning unit.

On December 2, 1976, the appellant consulted Dr. F.H. Metz, Jr. at the Fairview Hospital in Morgan City, Louisiana. She gave a history of inhaling fumes several days before at the place where she worked in Morgan City. She described her symptoms as shortness of breath, wheezing and a skin rash. When the symptoms did not abate, she called Dr. Metz. Dr. Metz examined appellant and discovered a slight amount of respiratory distress, breathing a little fast, some wheezes, and a cough. Dr. Metz diagnosed appellant’s condition as a moderately severe chemical bronchitis secondary to allergy with contact dermatitis. He treated her primarily with cortisone and determined that she was disabled at this point in time. Appellant remained in the hospital from December 2, 1976, to December 5, 1976, when she was released for two days to attend the funeral of her son who was killed in an accident. Appellant was readmitted to the hospital on December 7, 1976, and remained until December 12, 1976.

Dr. Metz again examined the appellant on December 15, 1976. She gave a history of having difficulty in breathing and some hair falling out. The doctor’s examination determined that her breath sounds were clear and she had no wheezes. At this time, Dr. Metz referred appellant to Dr. William Coulter, a specialist in internal medicine. On December 16,1976, appellant was examined by Dr. Coulter. She gave a history of inhaling Cabot Creosote Stain at her place of work and becoming short of breath, coughing, and getting a skin rash. Dr. Coulter’s examination revealed that the appellant no longer had a skin rash. Her chest X-rays were normal and she had no congestion in her lungs. Lung function and pulmonary function tests were performed to determine the capacity of her lungs to take in oxygen and blow off carbon dioxide and the results were normal. Tests were run on her blood gases to determine the capacity of the lungs to absorb and the blood to carry oxygen and carbon dioxide and they were also normal. Dr. Coulter diagnosed the appellant’s condition as allergic bronchitis and determined that she was not disabled at that time. Dr. Coulter saw the appellant again on December 20, 1976, and she complained of pain in her chest on deep breathing. Dr. Coulter did not find any objective symptomatology at that time.

On January 6, 1977, the appellant returned to Dr. Metz and gave a history of visiting the Life Preserver and that her face started burning and her voice became hoarse. Dr. Metz’s examination revealed no positive findings except for “a little cold”. Appellant returned to see Dr. Coulter on January 10, 14 and 20, 1977. She gave a history of having returned to her place of work and developing shortness of breath, pain in the chest, and a cough. Dr. Coulter did not find any objective symptomatology other than a bacterial bronchitis which a sputum culture revealed to be caused by staphylococcus aureus. Dr. Coulter was of the opinion that the bacterial bronchitis condition was unrelated to the creosote allergy. Dr. Coulter prescribed an antibiotic, ampicillin, to treat this condition. Dr. Coulter was of the opinion that appellant was not disabled when she was in his office, but could become disabled if she breathed the allergen which caused her reaction. In his deposition, which was read to the jury, Dr. Coulter was of the opinion that if appellant was not exposed to creosote fumes since January of 1977, but continued to have allergic reactions, that she must also be allergic to something other than creosote.

On January 24, 1977, appellant returned to Dr. Metz. She stated that she was taking ampicillin prescribed by Dr. Coulter and gave a history of nausea, vomiting, diarrhea with bleeding, and severe headaches. Dr. Metz diagnosed this condition as a reaction to the medication and directed appellant to stop taking the medication. On February 8, 1977, appellant returned to Dr. Metz complaining of a sore throat. A throat culture was taken and showed a staphylococcus infection. Dr. Metz could not say if this infection was related to the creosote exposure. Appellant again returned to see Dr. Metz on February 10, 1977, complaining of burning in her stomach. Appellant saw Dr. Metz again on February 23 and 28, 1977. At this time, Dr. Metz determined that her throat was better. Dr. Metz testified that appellant never evidenced any respiratory problems prior to November of 1976.

On March 9, 1977, appellant went to Dr. Victor Feske. Appellant gave Dr. Feske a history of inhalation of creosote based paint fumes at her place of work several months previously. Dr. Feske’s examination revealed occasional rhonchi (harsh, abnormal lung sounds) and “obvious presence of irritability of the respiratory tract”. Dr. Feske had no objective findings of the nose or throat. He felt that the appellant was disabled at that time because she had “great respiratory distress” caused by exposure to irritants, such as dust, cigarette smoke and chemical fumes, which resulted in symptoms of cough, shortness of breath, pain on respiration, watery eyes and sneezing.

Appellant returned to see Dr. Coulter on June 3, 1977, and apparently was referred to Dr. William Brooks Emory, a specialist in internal medicine with a sub-specialty in pulmonary medicine, at the Ochsner Hospital in New Orleans. Dr. Emory examined the appellant on June 21, 1977. She gave a history of inhalation of creosote fumes at a health food store in Morgan City, Louisiana. She complained of shortness of breath, pain in her chest, and difficulty in breathing. Dr. Emory testified that during the course of his examination of the appellant, she talked to him in whisper tones due to a “claimed” hoarseness. An examination of the eyes, ears and nose was normal and her pharynx was clear. Her lungs were clear and she had no squeaks, rattles or wheezes. Appellant’s breathing was tested with a digital flow meter and it was within normal limits. Dr. Emory found no objective physiological evidence of impairment and his examinations were within normal limits, except for appellant’s moderate overweight. Dr. Emory recommended a personality profile for appellant because her symptoms far outweighed the objective findings.

The medical bills filed of record show that during the period of June 21, 1977 to February 4, 1979, the appellant on several occasions visited different doctors and a chiropractor. These doctors were not called to testify at the trial or by way of deposition. Accordingly, there is no expert medical evidence concerning the appellant’s condition during this period.

On February 4, 1979, appellant returned to see Dr. Feske complaining of chronic respiratory problems and irritations. Dr. Feske’s examination revealed harsh, abnormal lung sounds and he hospitalized her at the Franklin Foundation Hospital for diagnostic studies and treatment. X-rays of the appellant’s lungs at that time revealed no significant findings. Blood gas studies were conducted and were within normal limits. Pulmonary function studies were conducted and found to be within normal limits. A basic blood count test was performed and was within normal limits. An electrocardiogram was taken and showed evidence of a heart block. A treadmill examination was conducted and the results were indeterminate. Appellant returned to see Dr. Feske on February 22, April 4 and 24, and May 24, 1979, complaining of the same symptoms. During this time, there was some improvement in her condition. At this time, Dr. Feske was of the opinion that the appellant’s “respiratory condition was directly related to and precipitated by an episode of inhalation of some respiratory irritant; and by history from Mrs. Jacobs, that respiratory irritant was a creosote-based paint that she was exposed to at work.” Dr. Feske felt that creosote was a known respiratory irritant, being made of phenol and aromatic hydrocarbons, but admitted that on occasion it was taken by mouth and by inhalation for respiratory illness. Dr. Feske did not have a sputum culture made to determine if appellant had a bacterial infection. Dr. Feske testified that he had treated appellant since 1961 and that she had no significant respiratory problems prior to November of 1976. Appellant did not mention a rash to Dr. Feske, nor did he find any evidence of one. Dr. Feske also treated the appellant for hypothyroidism. Dr. Feske felt that the appellant was disabled because when she was exposed to minor respiratory irritants such as cigarette smoke, she developed episodes of coughing, wheezing, and shortness of breath and could not function.

On June 11, 1979, appellant returned to Dr. Metz and gave a history of working over the weekend at a hospital and developing congestion, stuffiness and hoarseness from cigarette smoke at the hospital.

On October 26, 1979, appellant went to Dr. Brent W. Allain. She gave a history of respiratory distress and tenderness in the abdomen in the left upper quadrant and mid-epigastric region. Dr. Allain had previously treated appellant for hypothyroidism and the toxic condition of thyroiditis. At this time, Dr. Allain found no objective findings of respiratory problems. He treated the appellant with ulcer control medicine. On October 30, 1979, appellant returned to Dr. Allain and her condition was unimproved. She was committed to the Franklin Foundation Hospital from October 30, 1979, until November 1, 1979. Her epi-gastric pain was improved, but she was transferred to the Neurosurgical Service due to an abnormal skull X-ray.

On December 13, 1979, the appellant was again examined by Dr. Emory at the Ochs-ner Hospital. She gave a history of being unable to work because of sensitive airways and could not stand any type of strong odors, fumes or smoke because they caused paroxysms of severe coughing. Dr. Emory’s examination revealed no breathing distress, and no coughing during the 45 minute interview. The appellant’s eyes, ears, nose, throat and lungs were clear. Dr. Emory performed spirometry testing to evaluate the appellant’s breathing capacity and checked her arterial blood gases. The spiro-metry test was within normal limits and there was a mild reduction of oxygen in the arterial blood gases due to obesity. Dr. Emory testified that the 1977 and 1979 tests were compatible and that if there was an impairment of the pulmonary functions, it would have shown up over the two year period. Dr. Emory was of the opinion that the appellant was capable of returning to her normal activities.

On January 18, 1980, the appellant again consulted Dr. Allain concerning a tender region on her right thigh and a sore throat. Dr. Allian could not associate these symptoms with the creosote inhalation. The appellant again visited Dr. Allain on March 21, 1980, concerning the tender region on her right thigh. Appellant consulted with Dr. Allain on March 27,1980, for breast and pelvic examinations which were normal.

On September 10,1980, the appellant consulted with Dr. Metz and gave a history of wheezing whenever she got around smoke. Dr. Metz’s examination detected no wheezing and found no remarkable physical findings. He was unable to give a disability rating at this time because of the brief nature of the examination. His diagnosis was an inflammatory reaction to “something”.

On January 19, 1981, the appellant again consulted with Dr. Allain and for the first time referred to her history of creosote related problems. She complained of coughing, congestion and sputum production. Dr. Allain’s examination revealed thick postnasal drainage, a flushed appearance over the maxillary sinus area, and coarse breath sounds throughout the chest. Dr. Allain assumed that the congestion and sputum production was caused by a streptococcal infection. Dr. Allain gave the appellant a broad spectrum antibiotic, a decongestant and an expectorant and recommended that she continue to use a bronchial dilater. He diagnosed this condition as bronchitis.

On February 3, 1981, the appellant consulted Dr. Phillip S. Perret, a specialist in pulmonary disease and internal medicine. She gave a history of chronic cough, bronchial irritability, nasal congestion and postnasal drainage after being exposed to creosote fumes in November of 1976. Dr. Per-ret’s examination revealed no respiratory distress, quiet breathing, and easy and regular respirations. He observed that the lining of the nose was dry, reddened, and inflamed with some congestion in the nasal membranes.

On February 10, 1981, the appellant returned to Dr. Allain complaining of coughing, congestion and wheezing. Dr. Allain diagnosed this condition as recurrent bronchitis secondary to inhalation of creosote fumes. On February 18,1981, the appellant returned to Dr. Allain complaining of coughing and congestion. Dr. Allain determined that her condition had not improved from the previous visit and was of the opinion that she was disabled from gainful employment at that time. The appellant returned to Dr. Allain again on March 2, 1981. Dr. Allain determined that her condition was greatly improved, her chest was clear, and there was no wheezing. He did detect redness of the oral pharynx and throat. On March 30, 1981, the appellant returned to Dr. Perret. Dr. Perret determined that there was no change in her condition from the February 3,1981, examination. He diagnosed the appellant’s condition as recurrent asthmatic bronchitis associated with previous chemical inhalation with residual chronic bronchial inflammation, coupled with chronic rhinitis and sinusitis resulting from the previous chemical inhalation. Dr. Perret was of the opinion that the appellant was disabled from the point of view that irritating fumes, vapors and smoke would cause her to have attacks. Dr. Perret found that none of the medication he prescribed for the appellant helped her condition and was of the opinion that nothing can be effectively done to eradicate the problem or give significant improvement. Dr. Perret conceded that he took no sputum cultures and that the nasal mucosa culture that he took was positive for staphylococcus.

The appellant again visited Dr. Allain on May 7, 1981, giving a history of coughing, congestion and wheezing because the court reporter was smoking at a deposition taken the previous day. Dr. Allain examined the appellant and found shortness of breath and an elevated respiratory rate. He advised her to continue to use the bronchial dilater and use inhalation steroids and avoid smoke and nauseous fumes.

The trial of this matter was held and completed on May 11 through 14, 1981.

II. QUANTUM

A. LENGTH OF DISABILITY. Appellant claims that the exposures to creosote fumes in November of 1976 and January of 1977 have rendered her permanently and totally disabled. The appellees contend that the appellant’s allergic reaction from exposure to creosote fumes resulted in a disability of a short duration, and that her present problems are not causally related to that initial exposure. The jury’s award of $5,000.00 indicates that it concluded as a matter of fact that the appellant’s disability was for a minimum period of time. An appellate court should not disturb such a finding of fact unless it is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

When the appellant was examined by Dr. Metz on December 15, 1976, her breath sounds were clear and she had no wheezes. When she was examined by Dr. Coulter on December 16,1976, she no longer had a skin rash, and her chest X-rays, pulmonary function and blood gas tests were normal. Dr. Coulter was of the opinion that she was not disabled at that time. Appellant apparently had a second allergic reaction to creosote when she went to the Life Preserver after New Year’s day in 1977. This second reaction was not nearly as severe as the initial one. After examining the appellant subsequent to the second exposure to creosote, Dr. Coulter was of the opinion that she was not disabled and would become disabled only if she came in contact with the creosote. He felt that subsequent allergic reactions when she was not exposed to creosote fumes indicated that she must be allergic to something other than creosote. He was further of the opinion that the bacterial bronchitis and the allergic reaction to the ampicillin prescribed to treat this condition were not causally related to the creosote exposure. The examination by Dr. Emory on June 21,1977, revealed no objective physiological evidence of abnormality in the appellant’s pulmonary system. Dr. Emory recommended a personality profile because the appellant’s symptoms far exceeded the objective findings. The X-rays, blood gas studies and pulmonary function studies performed for Dr. Feske in February of 1979 were within normal limits. Dr. Emory again examined and tested the appellant in December of 1979, and the tests on her pulmonary system were within normal limits, except for a mild reduction of oxygen in the arterial blood gases due to obesity. Dr. Emory testified that if there was an impairment of the pulmonary functions over the two year period between his tests in 1977 and 1979, it would have shown up. Dr. Emory in 1979 was of the opinion that the appellant was capable of returning to her normal activities. There is no expert medical evidence of record concerning the appellant’s condition from June of 1977 to February of 1979. In view of the above evidence of record, we cannot say that the jury was clearly wrong in determining that the appellant’s allergic reaction to creosote and the disability resulting therefrom were resolved in a short period of time.

B. LOSS OF WAGES. The parties stipulated that the appellant was earning $700.00 per month at the time of the exposure to creosote fumes. Since the evidence of record most favorable to the appellees indicates that the appellant was disabled for a period of approximately one and one-half months, she is entitled to an award for loss of wages of $1,050.00.

C. MEDICAL BILLS AND EXPENSES. The medical bills of record for Dr. Coulter for the period of December 16, 1976, to January 20, 1977, are $56.50. The bill for the Fairview Hospital during the period of December 2, 1976, to December 12, 1976, is $908.15. The bills of record for Dr. Metz from December 2,1976, to December 12, 1976, are $170.00. There are bills during the period of January 11, 1977, to January 26,1977, for prescriptions from the Hebert Walgreen Agency Drugs, Inc. totall-ing $18.11, and there is a bill dated January 14, 1977, from Hamilton Medical Group in the sum of $20.00. There is no evidence of record to show whether the Hamilton and Hebert bills are connected to the initial creosote exposure or to the unrelated bacterial bronchitis subsequently contracted, and, accordingly, appellant has failed to prove entitlement to them. Appellant is entitled to recover a total of $1,134.65 for the bills of Drs. Coulter and Metz and the Fairview Hospital.

D. GENERAL DAMAGES. It is undisputed that the appellant suffered a severe allergic reaction from the inhalation of creosote fumes on November 30, 1976. She was hospitalized for 8 days as a result of respiratory distress and a chemical bronchitis resulting therefrom. She had a second but less severe reaction to a reexposure at the beginning of January of 1977. The disability that the appellant incurred as a result of these allergic reactions was resolved by the middle of January of 1977.

The jury in this case was not required to itemize the different elements of damages and gave a lump sum award of $5,000.00. In view of our determination that the appellant is entitled to $1,050.00 for loss of wages and $1,134.65 for medical bills and expenses, the balance of $2,815.35 is attributable to general damages. An appellate court should not disturb an award for damages made by a trial court unless the record clearly reveals that there was an abuse of the “much discretion” afforded the trier of fact under La.C.C. art. 1934(3). Reck v. Stevens, 373 So.2d 498 (La.1979). In the instant case, the jury apparently accepted the testimony of Drs. Metz, Coulter and Emory and rejected that of the appellant and the other doctors concerning the extent of her disability. After reviewing all of the .evidence in this case, although we feel that the award for general damages is on the low side, we cannot say that the jury abused the much discretion vested in it under the law.

III. CONCLUSION

For the foregoing reasons, we conclude that the jury in the instant case was not clearly wrong in its factual findings and its award for general damages did not abuse the much discretion afforded to it. The judgment in the trial court is affirmed at the appellant’s costs.

AFFIRMED.

      . The appellant remarried while this litigation was pending in the trial court.

      . The appellees do not contest the causal relationship between the inhalation of the creosote fumes and the initial disability and/or allergic reaction.

      . The records filed by Travelers in connection with their intervention indicate that the appellant was paid workmen’s compensation benefits on the basis of an average weekly wage of $116.65.


author: CARTER, Judge:

text:
    MODERN HOMES & EQUIPMENT COMPANY, INC. v. COLLECTOR OF REVENUE.
    No. 15107.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Rehearing Denied Dec. 16, 1982.

      Melvin W. Mathes, New Orleans, for plaintiff-appellee Modern Homes & Equipment Co., Inc.
    Douglas F. Herbert, Riley F. Boudreaux, Jr., Dept, of Revenue & Taxation Legal Section, Baton Rouge, for defendant-appellant Collector of Revenue.
    Before LOTTINGER, COLE and CARTER, JJ.
   CARTER, Judge:

This is an appeal from a district court judgment which upheld a decision of the Board of Tax Appeals dismissing the sales tax assessment on the “labor” portion of the sales price charged by defendant, Modern Homes and Equipment Company, Inc.

Modern Homes, an out-of-state company, contracted with Sunrise Homes, a Louisiana general contractor in the business of building homes, to supply labor and materials to construct roof trusses and wall sections in accordance with certain plans and specifications, for a portion of the framing requirements for seven different styles of homes to be constructed by Sunrise.

These items were constructed by Modern Homes and then shipped by common carrier to the job site in Louisiana. On the invoices, the price of the items was broken down into “materials”, “labor”, and “freight” ■components. Modern Homes charged sales tax on that portion of the sales price designated as “materials”, but not on the “labor” or “freight” portions.

The Collector of Revenue (hereinafter called the Department) assessed a tax of $26,610.63 plus interest on the “labor” portion of the sales price. Modern Homes appealed this assessment to the Louisiana Board of Tax Appeals, which ruled in its favor without written reasons. The Department appealed the decision to the Nineteenth Judicial District Court which upheld the decision.

The Department appeals to this court alleging three assignments of error.

ASSIGNMENTS OF ERROR

(1) The Standards of Judicial Review enumerated in the Administrative Procedure Act, La.R.S. 49:964(G), should not have been applied by the Nineteenth Judicial District Court to its review of the Board of Tax Appeals decision in this case.

(2) Both the Louisiana Board of Tax Appeals and the District Court should have found that the transaction at issue here amounted to a sale of tangible personal property by Modern Homes to Louisiana contractors under La.R.S. 47:301(12).

(3) Both the Board of Tax Appeals and the District Court should have found that the “labor” portion of the sale price as invoiced by Modern Homes forms part of the sale price as defined in La.R.S. 47:301(13) and, as such, is subject to the Louisiana General Sales Tax.

ASSIGNMENT OF ERROR NO. 1

The district court judge stated in his oral reasons for judgment that he would follow the standard of judicial review as stated in La.R.S. 49:964(G)(5)(6) (the Administrative Procedure Act). The Department correctly points out that the Board of Tax Appeals is specifically exempted from the provisions of the Administrative Procedure Act (except for certain provisions relating to the rule making powers) by La.R.S. 49:967.

The lower court found that the action taken by the Board was “reasonable in light of the evidence before it that Modern Homes was a framing subcontractor of Sunrise, insofar as the construction of roof trusses and wall sections are concerned, and that the items in question were designed for and could only be used in connection with the construction of specific immovable property being constructed by Sunrise in Louisiana.”

The court thus found that “(N)o substantial rights of the Collector of Revenue have been prejudiced because the Board’s decision was arbitrary, capricious or an abuse of its discretion” and that “(T)he Board’s decision was not manifestly erroneous in view of the reliable, probative and substantial evidence on the whole record.”

Though La.R.S. 49:964(G)(5)(6) was incorrectly applied in this case, the trial judge’s reasons for judgment indicate that he basically followed the correct standard of review as enunciated in Collector of Revenue v. Murphy Oil Co., 351 So.2d 1234 (La.App. 4th Cir.1977). In that case, the court gave the following analysis:

“. .. Judicial review of decisions of the board (Board of Tax Appeals) is afforded by R.S. 47:1434, which provides that the original transcript of the record, together with all exhibits and evidence thereto attached, shall be the basis for any action on review and the decision of the district court shall be rendered upon the said record as made up before the board. § 1435 grants exclusive jurisdiction to the district courts to review the decisions of the board, and the court shall have the power to affirm or, if the decision or judgment of the board is not in accordance with law, to modify, or to reverse the decision or judgment of the board, with or without remanding the case for further proceedings as justice may require.
.... It is apparent from a reading of the statutes above cited conferring jurisdiction upon the district courts that the scope of review is limited by the provisions of those statutes, and is not unlimited. The statutes provide that the record of the proceeding before the board shall be the basis for any action on review, and this, coupled with the provision that the court has the power to modify or reverse a decision if not in accordance with law, by implication limits the scope of review to facts on the record and questions of law.”

After stating that the Board of Tax Appeals is not governed by the Administrative Procedure law (with certain exceptions), the court in Murphy said:

“In this type of case, the Board acts as a trial court, its findings of fact should be accepted where there is substantial evidence in the record to support them, and should not be set aside unless they are manifestly erroneous in view of the reliable, probative and substantial evidence on the whole record. If the Board has correctly applied the law and adhered to correct procedural standards, its judgment should be affirmed.”

We find that the trial judge reviewed the record substantially in accordance with the Murphy case and therefore, this assignment of error has no merit. This finding, however, does not dispose of the ease, as we are constrained to disagree with the conclusion reached by the trial judge that the board’s decision was “not manifestly erroneous.” In the instant case, as in Murphy, the facts are not really in dispute. The question is whether the law was correctly applied to the facts. For the reasons given in the two following assignments of error, we find that the law was not correctly applied and reverse the decision of the trial court.

ASSIGNMENT OF ERROR NO. 2

The Department argues that the Board and the district court should have found that the transactions at issue amounted to sales of tangible personal property under La.R.S. 47:301(12). We agree.

La.R.S. 47:302A and La.R.S. 47:321A impose a tax which is a percentage of the sales price upon “the sale at retail, the use, the consumption, the distribution, and the storage for use or consumption in this state, of each item or article of tangible personal property, as defined herein... ”.

“Sale” is defined in La.R.S. 47:301(12) as follows:

(12) “Sale” means any transfer of title or possession, or both, exchange, barter, conditional or otherwise, in any manner or by any means whatsoever, of tangible personal property, for a consideration, and includes the fabrication of tangible personal property for consumers who furnish, either directly or indirectly, the materials used in fabrication work, and the furnishing, preparing or serving, for a consideration, of any tangible personal property, consumed on the premises of the person furnishing, preparing or serving such tangible personal property. A transaction whereby the possession of property is transferred but the seller retains title as security for the payment of the price shall be deemed a sale.”

“Sale at retail” is defined in La.R.S. 47:301(10) as follows:

(10) “Retail Sale,” or “sale at retail,” means a sale to a consumer or to any person for any purpose other than for resale in the form of tangible personal property, and shall mean and include all such transactions as the collector, upon investigation, finds to be in lieu of sales; provided that sales for resale must be made in strict compliance with the rules and regulations. Any dealer making a sale for resale, which is not in strict compliance with the rules and regulations, shall himself be liable for and pay the tax.
The term “sale at retail” does not include sales of materials for further processing into articles of tangible personal property for sale at retail, nor does it include an isolated or occasional sale of tangible personal property by a person not engaged in such business.

In Griffin & Zimmer Contracting Company v. Mouton, 231 So.2d 644 (La.App. 1st Cir.1970), this court was presented with a similar factual situation. Massman-Drake contracted with the Louisiana Department of Highways to construct a bridge across the Mississippi River. Massman-Drake then entered into a contract with Griffin whereby Griffin was to supply facine mattresses to Massman-Drake which Massman-Drake would then use in the construction of the bridge. (The mattresses were used to prevent erosion of the river bottom at the site of the bridge piers). Griffin paid a portion of the sales tax, claiming that the amount paid represented the cost of material used to construct the mattresses but that the balance of the contract represented labor and profit on which no sales tax was due. When the Department ruled that the sales tax was due on the entire amount of the contract, Griffin paid the tax under protest and sued for its return. This court cited the same provisions that are cited above and then stated:

“According to the foregoing provisions, the tax will apply if there is (1) a transfer of title or possession of tangible personal property for a consideration and (2) if the sale is to a consumer or any person for any purpose other than for resale and (3) if it is not a sale of materials for further processing into articles of tangible personal property for sale at retail and (4) if it is not an isolated or occasional sale of tangible personal property by a person not engaged in such business.
By applying these statutory definitions to the aforesaid transaction, we find that the transfer of the facine mattresses to Massman-Drake thirteen miles above the bridge site was the transfer of title or possession of tangible personal property for a consideration. We also consider it to be a sale at retail, as the mattresses were sold for a purpose other than resale and not such a sale as excluded by the definition of a ‘retail sale’.”

Here, as in Griffin, there was clearly a transfer of title for a consideration to a consumer. The items did not undergo further processing into articles of tangible personal property for sale at retail, and the sale was not an isolated sale by a person not engaged in such business. The only question in the instant case is whether the items transferred were tangible personal property

“Tangible personal property” is defined in La.R.S. 47:301(16) as follows:

(16) “Tangible personal property” means and includes personal property which may be seen, weighed, measured, felt or touched, or is in any other manner perceptible to the senses. The term “tangible personal property” shall not include stocks, bonds, or other obligations or securities.

In Exxon Corp. v. Traigle, 353 So.2d 314 (La.App. 1st Cir.1977), writ refused, 354 So.2d 1385 (La.), this court, recognizing the inadequacy of the above definitions, sought to clarify the meaning of “personal property”.

The court found that it was only natural to assume that “the legislature intended that Louisiana property law be applied to give explanation to Louisiana tax law.” Therefore, we equated “tangible personal property” with “corporeal movable property” as used in the Civil Code.

Though the items in question later became incorporated into immovable structures as integral parts, as to Modern Homes, they were clearly corporeal movables. In Griffin, this court had no trouble in finding the facine mattresses were tangible personal property even though they obviously later became integral parts of the bridge.

Modern Homes relies on American Sign and Ind. Corp. v. City of Lake Charles, 320 So.2d 234 (La.App. 3rd Cir.1975). In that case, the plaintiff, American Sign, contracted with the city to construct a sign on the city’s property. American Sign did not pay any taxes on labor costs. The tax in dispute was paid on materials used and consumed by it and incorporated in the immovable structure (the sign). (All sales taxes involved had the same provisions as La.R.S. 47:301 et seq., except as to the effective rate). It was stipulated that the sign constructed pursuant to the contract was immovable property.

That case is readily distinguishable. American Sign contracted to “provide and furnish all materials, equipment and labor to perform all work required to build, construct and complete a large, illuminated sign.” American Sign clearly contracted for the construction of immovable property. In the instant case, Modern Homes contracted to supply specific corporeal movable property. As such, that movable property is subject to the provisions of Louisiana’s sales tax law.

Apparently the Board of Tax Appeals and the district court found that the contract was a typical subcontractor construction contract of an immovable. Based on the above discussion, we must conclude that this finding is erroneous and not in accordance with law.

ASSIGNMENT OF ERROR NO. 3

Having found that the contract performed by Modern Homes was a sale of tangible personal property, we must conclude that the “labor” portion of the sale price is subject also to taxation.

La.R.S. 47:301(13) provides:

(13) “Sales price” means the total amount for which tangible personal property is sold, including any services, except services for financing, that are a part of the sale valued in money, whether paid in money or otherwise, and includes the cost of materials used, labor or service costs, except costs for financing which shall not exceed the legal interest rate and a service charge not to exceed 6% of the amount financed, and losses; provided that cash discounts allowed and taken on sales shall not be included, nor shall the sales price include the amount charged for labor or services rendered in installing, applying, remodeling or repairing property sold.” (Emphasis added)

The statute expressly includes the cost of labor in the sales price except for “labor or services rendered in installing, applying, remodeling, or repairing property sold.” It is undisputed that Modern Homes does not install the roof or wall sections which it sells. Modern Homes delivers the items by common carrier to the job site. Thereafter, it has no further responsibility to the purchaser.

Modern Homes argues that it is like any subcontractor who performs the work at the job site and that to tax it on labor is discriminatory because Louisiana subcontractors who work at the job site are not taxed on labor. Thus, the tax imposed is illegally discriminatory because it is in violation of the protection guaranteed in Article 1, § 8, Cl. 3 (the commerce clause) of the United States Constitution.

The comparison used by Modern Homes is not a correct comparison. The court must look to see if in-state and out-of-state taxpayers, similarly situated, are treated equally. Chicago Bridge & Iron Company v. Cocreham, 317 So.2d 605 (La.1975); Halliburton Oil Well Cementing Co. v. Reily, 373 U.S. 64, 83 S.Ct. 1201,10 L.Ed.2d 202 (1963). Modern Homes should be compared with a subcontractor who delivers his completed product to the job site.

There is nothing in La.R.S. 47:301(13) to indicate that in-state manufacturers who construct items and deliver them to purchasers are exempt from labor costs. To the contrary, it is clear that instate manufacturers would not be exempt from sales taxes on labor in a similar factual situation. The only exemption for labor costs is “the amount charged for labor or services rendered in installing, applying, remodeling, or repairing property sold.” Persons who fit into this exception are exempt whether they are in-state contractors or out-of-state contractors. Similarly, persons who sell tangible personal property are liable for taxes on labor costs whether they are in-state manufacturers or out-of-state manufacturers. Appellees constitutional argument is without merit.

For the above reasons, the judgment of the lower court is reversed and all costs are assessed to appellee.

REVERSED.

      . La.R.S. 49:964(G)(5)(6) reads as follows:
      “(G): The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
      (5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
      (6) Manifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record. In the application of the rule, where the agency has the opportunity to judge of the credibility of witnesses by firsthand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

      . The court in Exxon said, “An attempt is made at defining ‘tangible personal property’ in R.S. 47:301(16) 4 It succeeds only in defining ‘tangible’ which is apparently synonymous with ‘corporeal’. C.C. art. 460. (footnote omitted.)”


author: WATKINS, Judge.

text:
    EMPLOYERS INSURANCE COMPANY OF WAUSAU v. Theodore M. DRYDEN.
    No. 15116.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Rehearing Denied Dec. 16, 1982.
    C.T. Williams, Jr., New Orleans, for plaintiff, defendant and appellant.
    Dennis S. Gaubert of St. Martin & St. Martin, Houma, for defendant and appellee.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   WATKINS, Judge.

This is an action for personal injury brought by Theodore M. Dryden, a captain with the Terrebonne Parish Sheriff’s Office at the time of the accident sued upon, against Employers Insurance Company of Wausau, the uninsured and underinsured motorist insurer of the Terrebonne Parish Sheriff’s Office, Ross Hinkie, the driver of a van that struck and seriously injured Dryden, State Farm Mutual Automobile Insurance Company, the automobile liability insurer of Roy Hinkie, Ross Hinkie’s father, and Prudential Property and Casualty Insurance Company, alleged to be the uninsured and underinsured motorist insurer of an undesignated party. Employers of Wau-sau filed a third party demand against Ross Hinkie and State Farm. Consolidated with this action was a prior suit for a declaratory judgment construing the policy filed by Employers of Wausau against Dryden. The parties stipulated before trial that the maximum uninsured or underinsured motorist limits of the policy issued by Employers of Wausau to the Sheriff’s Office was $100,-000.00, and that should the trial court decide for Dryden, judgment was to be rendered in the sum of $100,000.00. It did not rule upon Dryden’s demands against the other co-defendants or upon Employers of Wausau’s third party demand. Employers of Wausau appealed the judgment in favor of Dryden against it. Thus, the sole issue before us on appeal is the correctness of the trial court’s judgment in favor of Dryden and against Employers of Wausau. We affirm, finding the judgment of the trial court to be correct.

On July 28, 1979, two motor vehicle accidents occurred in early morning between 4:00 and 5:30 o’clock on the southbound lanes of Louisiana Highway No. 24 north of Savanne Road near Houma, Louisiana. Dryden was seriously injured in the second accident.

In the first accident, the facts surrounding which concern us only indirectly, a vehicle ran off the highway and wrapped itself around a post supporting a “Dailey Oil Tool” sign near Highway 24. One of the occupants of the vehicle was killed and one was seriously injured. Sheriff’s cars and state police cars arrived on the scene very quickly. Captain Dryden of the Sheriff’s Office, who was in charge of and who drove E-l, a Sheriff’s Office emergency vehicle, drove across to Highway 24 by way of Savanne Road which intersected the two southbound lanes of Highway 24 south of the accident scene. Because of the emergency, Captain Dryden proceeded north, against traffic, on the southbound portion of Highway 24 to the scene of the accident. (At the point of the accident, Highway 24 has two northbound- and two southbound lanes, being respectively on the east and west banks of a bayou.) Captain Dryden parked E-l on the shoulder of the southbound lanes facing north. The front wheels of E-l were on the shoulder several feet from the highway, and the rear wheels were also on the shoulder but much nearer to the highway. The rear bumper of E-l protruded onto the highway several inches. Captain Dryden was injured so severely that he was stipulated to have no memory of the second accident. However, Sheriff’s and State Police officials speculated that E-l was left at a slant because of the emergency situation resulting from the first accident, and the presence of the other vehicles of the Sheriff’s Office and State Police, which made it impossible to park in any other manner.

After parking E-l, Captain Dryden went over to the scene of the first accident and undertook the extrication of the dead man and the injured occupant of the vehicle wrapped around the Dailey sign post. This process took a considerable length of time. Finally, both occupants were extricated and placed in ambulances. Throughout this time, Lt. Rivet of the Sheriff’s Office stood in the center of the highway, directing traffic into the right (west) lane. When the occupants were removed from the vehicle, Captain Dryden called Lt. Rivet away from directing traffic to obtain information about the two persons in the vehicle and also that vehicle’s license number.

Shortly thereafter, Captain Dryden walked over to the left (driver’s side) of E-l, and opened a small cargo door on the side of the emergency unit to the rear of the passenger compartment in order to stow equipment. He placed unknown items of equipment in the compartment within that door. About that time, a van driven by Ross Hinkie and owned by his father, Ray Hinkie, which was proceeding south on Highway 24 in the left lane, struck the door of the emergency vehicle and Captain Dryden, causing serious injuries to Captain Dryden.

At the time of the second accident, it was still dark. However, the highway was illuminated by street lights and also the Dailey sign, which was still lighted in spite of the fact that the vehicle was wrapped around the supporting post as a result of the first accident. There were several Sheriff’s and State Police cars on both sides of the road and all had red and blue emergency lights flashing. Also, red and blue emergency lights were flashing on the emergency vehicle, and floodlights of considerable candlepower located on the emergency vehicle were illuminated at the scene of the first accident. The road was dry, and it was not raining. Hinkie testified that when he saw the emergency lights, he slowed down from the speed limit of 40 mph to a speed of 25-30 mph. He merely let up on the accelerator; he did not apply the brakes.

The only eyewitnesses who saw the second accident itself, rather than merely the events immediately before and immediately after, were Hinkie and a friend, who was the only occupant of the Hinkie van, Steven C. McGraw. Both had been out drinking all night and Hinkie had a PEI reading of 1.7 (sic). In a separate criminal proceeding, the transcript of which was introduced in the present proceeding by stipulation of counsel for the facts testified to, Hinkie was found guilty of driving while under the influence of alcohol.

Employers of Wausau contends (1) that Dryden was not an insured under the uninsured motorist policy issued by it to the Terrebonne Parish Sheriff’s Office and, further, (2) that Hinkie was free from negligence and Dryden was guilty of contributory negligence.

The policy issued by Employers of Wau-sau contains the following provisions with respect to “PERSONS INSURED”:

“Each of the following is an insured under this insurance to the extent set forth below:
(a) the named insured and any designated insured and, while residents of the same household, the spouse and relatives of either;
(b) any other person while occupying an insured highway vehicle; and
(c) any person, with respect to damages he is entitled to recover because of bodily injury to which this insurance applies sustained by an insured under (a) or (b) above.
The insurance applies separately with respect to each insured, except with respect to the limits of the company’s liability.”

We hold that Dryden was an insured under clause (a) and under clause (b) as well. Because the policy indicates “PERSONS INSURED” includes anyone meeting one of the three categories listed in that definition, it is necessary that Dryden fall under only one category. Dryden falls under two categories, however.

The policy gives “Terrebonne Parish Sheriff’s Office” as Named Insured. The Named Insured is an Insured under clause (a). Obviously, “Terrebonne Parish Sheriff’s Office” includes not only the Sheriff, but all Deputies as well, as, had the policy been intended to designate the Sheriff alone as Named Insured, the Named Insured would have been the Sheriff. By using the broader term, the policy makes the Sheriff and all Deputies the Named Insured. As Dryden was a Deputy, he is a Named Insured, and thus falls into category (a).

Also, when he was injured, Captain Dryden was “occupying” the emergency vehicle under clause (b) as that word is defined in the policy. The policy states “ ‘occupying’ means in or upon or entering into or alighting from”. Captain Dryden was “upon” the vehicle we hold, as he was opening the side cargo door of E-l when he was struck. Although the whole of the testimony is inconsistent and conflicting, the only two eyewitnesses to the accident, Hinkie and his passenger, McGraw, both testified. Dryden was opening the side cargo door when he was struck. The trial court properly found that Dryden was struck while placing items back into the compartment of the emergency unit. Other testimony verifies that Dryden was putting away equipment with the side cargo door open.

Under the holding of the Louisiana Supreme Court in Smith v. Girley, 260 La. 223, 255 So.2d 748 (1971), if a person is physically in contact with the insured vehicle at the time of injury, he is considered to be “upon” the insured vehicle. In the present case Dryden was physically in contact with E-l as he was stowing gear, placing objects inside the truck through the opened cargo door, when he was injured. Thus, the present case contains the element of putting goods or equipment inside the insured vehicle in addition to the element of physical contact with the insured vehicle, and is an even stronger factual situation for finding the injured party to have been “upon” the vehicle than Smith v. Girley, supra. Insurance policies are to be broadly construed in favor of coverage. Hendricks v. American Employers Insurance Co., 176 So.2d 827 (La.App. 2nd Cir.1965), writ refused, 248 La. 415, 179 So.2d 15 (1965). As Smith v. Girley properly notes, many other states do not even require that the injured party be touching the insured highway vehicle for the injured party to be “upon” that vehicle. However, it is apparent Dryden was “upon” the insured vehicle even under the somewhat narrower definition that was sufficient to arrive at in the holding in Smith v. Girley. The policy thus applies to Dryden. We must then determine whether or not the uninsured or unde-rinsured motorist was legally responsible for Dryden’s injuries. If Hinkie was free from legal fault, Employers of Wausau is not liable.

Appellant’s brief states that the trial court, on original hearing, before granting a rehearing which did not alter the result, labored under the erroneous impression that there had been a stipulation of counsel that Hinkie was negligent. However, if we look at the pleadings we see Dryden alleged that Hinkie was negligent and Employers of Wausau admitted that allegation. Furthermore, looking to the testimony, we see negligence was clearly established. Police vehicles were parked on each side of the highway with their emergency lights flashing. Rather than applying the brakes or coming to a virtual standstill, Hinkie merely lifted his foot off the accelerator and slowed down from 40 mph to between 25 and 30 mph. Also, Hinkie should have moved his vehicle into the right lane of travel. Hink-ie's excuse for not doing so is that there was a moving vehicle in the right lane. However, if Hinkie had reduced speed sufficiently, he could have entered the right lane of travel behind the other moving vehicle. Furthermore, Hinkie had been drinking all night, and obviously, his reflexes were slowed.

Employers of Wausau contends that Dryden was contributorily negligent in calling Rivet away from directing traffic, in parking E-l partly on the highway, and in opening the door when Hinkie was approaching. However, an emergency situation existed. One person had just been killed and another seriously injured in the first accident. The ambulances had just been loaded. It is unduly technical to define a precise point at which the emergency ceased, or to expect the Sheriff’s Office to make such a determination among its other numerous duties attendant upon a fatal motor vehicle accident. The emergency situation clearly persisted. The Sheriff’s and State Police cars still had their flashing lights on. Dryden was justified in feeling he had an umbrella of protection in calling Lt. Rivet away from directing traffic, in parking E-l at an angle and leaving it so parked, and in opening the cargo door on E-l.

LSA-R.S. 32:24 clearly takes the driver of an emergency vehicle outside the precise terms of the Highway Regulatory Act (Title 32, Chapter 1, Revised Statutes of Louisiana) and the full breadth of general rules governing use of a vehicle under non-emergency conditions:

“A. The driver of an authorized emergency vehicle, when responding to an emergency call, or when in the pursuit of an actual or suspected violator of the law, or when responding to, but not upon returning from, a fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
B. The driver of an authorized emergency vehicle may:
(1) Park or stand irrespective of the provisions of this Chapter;
(2) Proceed past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation;
(3) Exceed the maximum speed limits so long as he does not endanger life or property;
(4) Disregard regulations governing the direction or movement or turning in specified directions.
C. The exceptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of audible or visual signals sufficient to warn motorists of their approach, except that a police vehicle need not be equipped with or display a red light visible from in front of the vehicle. Amended by Acts 1980, No. 160, Section 1.
D. The foregoing provisions shall not relieve the driver of an authorized vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others. Acts 1982, No. 310, Section 1.”

Because of the emergency situation Dryden did not breach his duty to the users of the public roads by parking with the rear bumper of E-l extending several inches over the highway. It was necessary for Dryden to assess the conditions of the first accident and to attempt to save one or two lives. He could not be expected to park with the precision expected of an ordinary motorist. Also, he could not have parked otherwise, as other vehicles were in the way. Furthermore, the weight of the testimony indicates Dryden was standing on the shoulder when he was struck. It is not at all certain that the fact that the rear bumper of E-l was over the road contributed in any way to the accident, particularly when it is remembered Dryden was opening a side cargo door, which door when closed was not situated above the highway surface in the position in which E-l was parked.

It was necessary for Dryden to call Rivet away from directing traffic to perform other duties. An emergency existed. Rivet was needed off the road to obtain information about the victims of the first accident and to get the license number. Because the flashing lights and all Sheriffs and State Police cars were still flashing red and blue, Dryden was justified in assuming that these lights, the bright street lights, the Dailey light and the flood lights on the emergency vehicles were sufficient to apprise an approaching motorist of the fact that a dangerous situation arising from a recent accident existed and that he should proceed with extreme caution.

For the same reasons, Dryden was free from contributory negligence in walking along the shoulder and opening the side cargo door on E-l. The flashing lights and other lights in the area were sufficient to warn approaching motorists that they should proceed with extreme caution. Because the accident was dramatically called to approaching motorists’ attention, Dryden could reasonably feel he could safely carry out his duties in stowing away equipment. He was justified in relying upon the protection afforded by the fact that it should have been apparent even to a non-observant motorist that a serious accident had occurred. His duties as driver of an emergency vehicle required that he stow equipment and open cargo doors on the side of that vehicle. The accident was very serious, involving the death of one person. To require a driver of an emergency vehicle in an emergency situation to observe the standard of care expected of a driver of a private vehicle under non-extraordinary conditions would be to hamper the use of emergency equipment and to limit the breadth of protection afforded the public by those protecting the public life and property.

Lastly, Employers of Wausau contends Dryden violated LSA-R.S. 32:141 by parking partly on the roadway, and R.S. 32:283 by opening a door on the side next to moving traffic. These provisions, as we have earlier indicated, have little or no application to an emergency vehicle because of the provisions of LSA-R.S. 32:24. As we have indicated, in view of the emergency that existed, Dryden should not be expected to abide by the strict letter of those provisions or to meet that rather high standard of care expected of the ordinary motorist, provided he exercised reasonable care under the circumstances, as he did.

We find Dryden free of contributory negligence.

The judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.