author:
DOMENGEAUX, Judge.
      STOKER, J.,

text:
    Robert A. RAYFORD, Plaintiff-Appellee, v. LOUISIANA SAVINGS ASSOCIATION, Defendant-Appellant.
    No. 7416.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.
    Rehearing Denied March 19, 1980.

      Anderson, Leithead, Scott, Boudreau & Savoy, Everett R. Scott, Jr., Lake Charles, for defendant-appellant.
    Ledbetter, Percy & Stubbs, William H. Ledbetter, Jr., Alexandria, for plaintiff-ap-pellee.
    Before CULPEPPER, DOMENGEAUX, and STOKER, JJ.
   DOMENGEAUX, Judge.

In this appeal from a declaratory judgment we are called upon to decide whether the Louisiana Savings Association (defendant or Association) has the right, under the circumstances of this case, to (1) condition its approval of a sale between co-owners, who are also co-obligors, upon the payment of a loan transfer fee of one percent of the current principal balance, and (2) declare all sums secured by the mortgage to be immediately due and payable after one co-owner co-obligor has purchased the interest of the other two co-owners without the prior written approval of the Louisiana Savings Association.

The facts are as follows: On December 13,1974, Rapides Savings and Loan Association extended a loan of $704,800.00, secured by a conventional mortgage, to Robert A. Rayford (the plaintiff in this matter), Ted D. Price, and Walter E. Price, Jr. (the Prices). The mortgaged property, located in Rapides Parish, was owned in indivisión by the three men and their wives, and is the site of the Pecan Grove Nursing Home. The interest rate on the loan was 9½% and the monthly installments were $6,222.68.

On August 28, 1978, in a letter to the Association, Mr. Rayford requested permission of the Association “personally to assume the loan, in total, deleting Ted and Walter Price.” The outstanding loan value at the time of this request was $675,000.00, and Mr. Rayford reported that the value of the mortgaged property exceeded one and a half million dollars.

Via a letter dated September 12, 1978, the Association informed Mr. Rayford that his request to assume the mortgage was approved, subject to several conditions. The Association agreed that the interest rate would remain at 9½%, but refused to release Ted and Walter Price. The Association conditioned its approval of plaintiff’s acquisition of the Prices’ two-thirds interest in the mortgaged property upon the payment by Mr. Rayford of a loan transfer fee of 1% of the current principal balance. After listing several additional conditions, the letter further stipulated that “all other terms and conditions of the original loan will apply” and left the offer open for fifteen days for plaintiff’s acceptance of the agreement. This commitment was later extended to October 9, 1978, at the request of Mr. Rayford.

On October 6, 1978, Mr. Rayford purchased his co-owners’ two-thirds interest in the Pecan Grove Nursing Home. The Association learned of Mr. Rayford’s acquisition of the property and informed him in a letter written October 26, 1978, that until all conditions of the September 12, 1978, letter “are properly satisfied and the transfer fee paid” the Association had the option to declare all sums secured by the mortgage to be immediately due and payable pursuant to paragraph 17 of the Act of Mortgage and La.R.S. 6:837. The Association also informed Mr. Rayford that it would not draft his account for the monthly installments nor receive any payment on the loan until the requirements of the September 12th letter were complied with.

Plaintiff responded by filing a suit for declaratory judgment asking that he be allowed to deposit into the Registry of the Court (1) $6,742.94, representing the transfer fee allegedly due the Association; (2) $6,516.34 every month, beginning October 15, 1977, with such payments representing the monthly note payments as they became due. The trial judge allowed this request. As further relief, plaintiff asked that he not be required to pay the 1% transfer fee. After trial on the merits the District Judge signed the judgment on May 18, 1978, favorable to plaintiff. The judgment decreed that there is no obligation for the payment of the 1% transfer fee by plaintiff to defendant; nor does defendant have the right to declare all sums secured by the mortgage to be immediately due and payable. Prom this judgment defendant has appealed. We affirm.

I. ACCELERATION OF REMAINING PRINCIPAL

Do paragraph 17 of the mortgage contract and La.R.S. 6:837 include or apply to situations where one of three solidary mortgagors acquires the undivided interest in the mortgaged property from the other two co-owner mortgagors? We regard this question as one of first impression since no Louisiana cases disposing of the issue have been located.

Defendant Association claims it has a statutory and contractual right to declare all sums secured by the mortgage to be immediately due and payable since Ted and Walter Price sold their interests in the Pecan Grove Nursing Home to Mr. Rayford without first obtaining the consent of the Association. In support of its claim, the Association relies upon La.R.S. 6:837 and paragraph 17 of its loan contract with Mr. Rayford and the two Prices. La.R.S. 6:837 provides, with respect to the Association’s contention:

“§. 837. Conveyance of property securing loan
A. Whenever property is subject to a vendor’s privilege or mortgage in favor of an association and, without the written consent of the latter, the property is sold or transferred, by contract, either with or without the assumption of the association loan, the loan and obligation held by the association shall at the option of the association immediately mature and become at once subject to enforcement according to law and to the terms of the loan contract. . . . ”

Paragraph 17 of the loan contract provides, in pertinent part:

“17. Transfer of the Property; Assumption. If all or any part of the Property or an interest therein is sold or transferred by Borrower without Lender’s prior written consent, Lender may, at Lender’s option, declare all the sums secured by this Mortgage to be immediately due and payable.” []

The trial court in its supplemental reasons for judgment, rejected defendant’s argument that it has the right to accelerate, and held as follows:

“. . paragraph 17 of the Mortgage and the statute do not refer to situations where one of the- original obli-gors acquires the property interest of the other co-obligors.
LSA — R.S. 6:837 clearly contemplates a sale to someone who was not an original borrower. The last sentence of paragraph A of that statute provides: ‘In all such cases where the loan was assumed by the purchaser even without the consent of the association, the purchaser will be and remain liable in solido with the original borrower on the loan.’ This contemplates a purchaser who was not previously liable on the loan.
Paragraph B of LSA R.S. 6:837 mentions the sale to a person ‘other than the party or parties originally executing the security instrument . . . .’ This further indicates that the statute does not apply to a situation where one obligor purchases the interests of the co-obligors.
For these reasons, the defendant does not have the right to declare all sums secured by the mortgage to be immediately due and payable.”

We agree with the reasoning of the trial court and add reasons of our own why we are convinced that neither paragraph 17 nor La.R.S. 6:837 was intended to include the factual situation before us here. Our decision was reached after considering the historical justifications for the inclusion of such clauses in mortgage contracts, as well as the specific language of the statute and the mortgage contract itself.

A. DUE ON SALE CLAUSES: JUSTIFICATIONS

A recent publication, sanctioned by the American Bar Association, cites two primary reasons why due on sale clauses have become standard in mortgage contracts. Historically, the clause was designed to protect lenders from unapproved sales by their borrowers to possibly uncreditworthy purchasers. The report states, at page 894:

“. . . Only when the lender is satisfied with the qualities of the borrower and the security, based upon the lender’s underwriting standards, will the loan be made. When this mortgaged property is then transferred, the lender seeks, through the requirement of consent to transfer, an opportunity to consider the purchaser as a prospective borrower, or the adequacy of the property as security in the purchaser’s hands. The lender’s right to accelerate in the event of an unapproved transfer thus provides the opportunity for the lender to prevent its involvement with an uncreditworthy purchaser or inadequate security, thereby enabling the lender to limit its exposure to lending risks which it otherwise would not agree to by either requiring payment in full of the secured debt, or modification of those risks prior to consent to the transfer.”

Secondly, and more recently, lenders have utilized the due on sale clause to require a change in the terms of the loan instrument as a consideration for waiver of acceleration. Usually this consideration takes the form of an agreement by the purchaser to pay an increased interest rate for amortization of the loan balance. Concerning this recent trend the ABA report summarizes as follows, at page 896:

“Thus, the due-on clause, originally conceived and historically used to protect the lender’s security became a means to protect a lender’s economic position in the money marketplace. The lender uses the clause to prevent assumption of a low-interest rate mortgaged debt, either insisting upon payment of the secured obligation so that the money may be loaned out at prevailing rates, or by agreeing to waive exercise of acceleration upon purchaser’s agreement to amortization of the loan balance at the current rate.”

B. LOUISIANA’S DUE ON SALE CLAUSE

Although Louisiana’s due on sale statute (R.S. 6:837) does not particularize the reasons for its enactment into law, it is reasonable to assume that it was enacted for the same or similar reasons as those set out in the ABA’s report. The defendant has observed in brief that R.S. 6:837(A) was originally enacted to overturn or correct an anomalous situation developed by early jurisprudence which had stated that the obligation of a purchasing — assumer is only “in favor of the party selling the property, and is not for the benefit of the holder of the mortgage.” See Freedman v. Ratcliff, 183 La. 1, 162 So. 783 (1935), and cases cited therein.

Whatever its original intent may have been, paragraphs (A) and (B) of the statute clearly contemplated a situation where the property is transferred to some third party who was a stranger to the original loan contract, as the trial court correctly pointed out. Paragraph (A) of 6:837 speaks óf a sale without the consent of the Association,

“. . . either with or without the assumption of the association loan . . . In all such cases where the Joan was assumed by the purchaser even without the consent of the association, the purchaser will be and remain liable in solido with the original borrower on the loan.” (Emphasis added).

Such language can have no application here. Mr. Rayford was the original borrower and was already solidarily liable with the Prices for the entire amount of the loan. The term “assumption” is defined in Black’s Law Dictionary, Revised Fourth Edition, (1968) as follows:

“The act or agreement of assuming or taking upon one’s self; the undertaking or adoption of a debt or obligation primarily resting upon another, as where the purchaser of real estate ‘assumes’ a mortgage resting upon it, in which case he adopts the mortgage debt as his own and becomes personally liable for its payment.”

Although Mr. Rayford explained to the defendant that he wished to assume the entire mortgage, his only concern was to secure the release of the Prices, who might then be more agreeable to selling their interest in the property to Mr. Rayford. His desire to “assume” the loan we do not view as legally significant since he was undertaking no obligation primarily resting upon another; there was no mortgage debt to adopt since he was already its legal parent.

Paragraph (B) of 837, although not applicable here, also implies that transfers between co-obligors are not contemplated:

“In the event the ownership of the real estate security or any part thereof becomes vested in a person other than the party or parties originally executing the security instrument . . . .” (Emphasis added).

Mr. Rayford was one of the parties originally executing the security instrument.

C. PARAGRAPH 17 OF THE MORTGAGE

The legitimacy of paragraph 17 of the mortgage contract is based upon the statute, which authorizes the due on sale provision and which provides for its enforcement according “to law and to the terms of the loan contract.” The terms of paragraph 17 of the loan contract in no way suggest or provide that co-owner co-obligor transfers will activate thé acceleration clause. On the contrary, paragraph 17 contains language which would indicate that only transfers to a stranger are anticipated. The sub-heading of paragraph 17 identifies the subject matter contained therein as “Transfer of Property; Assumption” which suggests that the two occurrences are related. Also, paragraph 17 is concerned with transfers of the mortgaged property “by Borrower” but makes no provisions to cover the situation when the Borrower is also the purchaser, which is the situation here. Since we earlier decided that a solidary co-obligor cannot assume his own debt, a reasonable interpretation would be that paragraph 17 does not refer to co-obligor transactions, but instead applies to a transfer from a borrower[s] to a stranger[s] who may wish'to assume the mortgage.

Defendant argues that the statute does not specifically exempt co-owner transfers from the general rule that outstanding loan obligations may be matured at the Association’s option if its consent is not obtained prior to a sale of the mortgaged property by one of the Association’s borrowers. Hence, the argument concludes, no such exemption should be inferred or created. Defendant also urges that language from paragraph 17 of the mortgage, “[i]f all or any part of the Property or an interest therein is sold . . .” (emphasis added), is very explicit and is susceptible to only one meaning — that the lender’s option to accelerate becomes choate when any transfer, even one between co-owner co-ob-ligors, is made without the consent' of the lender. Although the defendant’s argument is plausible, the contract failed to expressly provide that transfers between co-owner co-obligors, made without prior consent of the lender, will activate the acceleration clause.

Because we find that paragraph 17 of the mortgage contract is susceptible to two conflicting but reasonable interpretations, one which would include co-owner co-obligor transfers and one which would not, we find paragraph 17 to be ambiguous. Ambiguous phrases in contracts are strictly construed against the party who prepared the contract. La.C.C. Art. 1957 and 1958; Par-Co. Drilling, Inc. v. Franks Petroleum, Inc., 360 So.2d 642 (La.App. 3rd Cir. 1978); Fontenot v. Monsanto Co., 363 So.2d 1309 (La.App. 4th Cir. 1978). As the evidence establishes that this mortgage contract was a standard Rapides Savings and Loan mortgage prepared by the Savings Association we are compelled to adopt the interpretation most favorable to the plaintiff. Accordingly, we hold that the defendant, Louisiana Savings Association, does not have the right to exercise the acceleration clause of paragraph 17 because that paragraph does not apply to transfers between co-owner co-obligors.

We note another compelling reason why the due-on-sale clause of paragraph 17 should not be applicable in this case involving a co-owner co-obligor transfer. Since the statute was enacted for the protection of the savings association, there is no reason for its application here because the Association was in no need of protection from such a transfer. Uncontradicted evidence shows that Mr. Rayford was the only co-owner who actively sought the loan. He alone among the three co-owners managed and operated the nursing home. The loan was acquired solely through his efforts. The liability of the Prices was simply additional security. The Association was in no need of protection when Mr. Rayford acquired the complete ownership of the nursing home. His creditworthiness with defendant was already established and defense counsel admitted at trial that Mr. Rayford’s credit was not questioned. Defendant’s security has in no way been impaired by the transfer to Mr. Rayford. Defendant still holds a first mortgage over the entire property, including all improvements made since the mortgage was executed, and the Prices, together with Mr. Rayford, are all still soli-darily liable for the debt.

Defendant does not contend that it will be injured by being denied the right to renegotiate the interest rate. Indeed, defendant was willing to approve the transaction and continue the mortgage at the original interest rate of 9*/2%.

II. TRANSFER FEE

The Association claims its entitlement to a transfer fee arises out of its contractual ability to withhold its consent to a transfer of the property. Payment of the transfer fee was one of the conditions the mortgagor was required to meet in order to secure the Association’s consent to the transfer. However, since the Association did not have the right under the circumstances present here to accelerate the balance of the loan, its consent to a transfer was not essential. Since its consent was not needed for the transfer to take place, any conditions the Association sought to place upon the securing of its consent were meaningless. Thus, the Association is not entitled to a transfer fee.

The Association might not be entitled to the transfer fee even if the acceleration clause applied to co-owner co-obligor sales. As this issue is res nova, we again turn to the jurisprudence of our sister states for guidance. Continental Federal Savings & Loan Association v. Fetter, 564 P.2d 1013 (Okl.1977), is a persuasive case which is factually similar to the case before us. There the mortgagee, acting pursuant to a due on sale clause in a mortgage contract, sought to accelerate the balance of the loan after a transfer of the property was completed without the consent of the mortgagee. The mortgagee had conditioned its consent upon the payment of a 1% transfer fee, which the purchaser refused to pay. The mortgage contract there, similar to the one here, had failed to provide for the payment of an extra fee before consent could be secured. Holding against the mortgagee, the Supreme Court of Oklahoma, said:

“Neither the mortgage nor the note contained a provision requiring payment of a transfer fee. The undisputed evidence was the actual transfer cost to Continental Federal was $100 and that comparable transfer figures for VA and FHA were $35. Printed contracts are interpreted most strongly against the party preparing the form. The rule of strict construction against the drafter of the instrument is particularly applicable in the case of a contract prepared by an expert or experienced party, and it has special force where it is sought to create and impose an obligation when none would otherwise appear.
We . . . find that it was unreasonable and inequitable for appellant to impose a one percent transfer fee as a condition precedent to giving its consent to transfer the mortgage because neither the note nor the mortgage contained such a provision; it was not a bargained-for element of the note and mortgage; it bore no relationship to the actual cost of transferring the mortgage, and there was no jeopardizing of mortgagee’s security.” (Emphasis added)

The decision of the Oklahoma Court we think is logically and legally sound and would be applicable here.

For the above and foregoing reasons the judgment of the District Court is affirmed. All costs aré assessed against defendant-appellant.

AFFIRMED.

ORDER

The Application for Rehearing herein having been duly considered:

IT IS ORDERED that a Rehearing be, and the same is hereby, denied.

STOKER, J.,

votes to grant a rehearing limited to a reconsideration of that portion of our opinion for which we cite as authority to case of Continental Federal Savings & Loan Association v. Fetter, 564 P.2d 1013 (Okl.1977).

      . Rapides Savings and Loan Association was merged with Louisiana Savings Association effective July 1, 1975.

      . All pertinent correspondence was introduced into evidence.

      . The property had a purported value of $1,010,000.00 when the loan was first granted but Mr. Rayford informed the Association in his letter of August 28th that he had made additional improvements on the property.

      . The other conditions, not at issue here, read as follows:

      3. Attorneys for Louisiana Savings Association must certify good first lien and mortgage following the modification. Any expenses to be paid by you.
      4. One certified copy of the act of sale and assumption which must contain a clause regarding escrowed funds, the hazard insurance policy and family homestead clause.

      6. Approval of FSLIC, CLIC and our Participant prior to execution.”
      These conditions are not at issue so we express no opinion as to whether they could be validly imposed under these or different circumstances.

      .The Act of Mortgage prepared by Rapides Savings & Loan called for a monthly payment of $6,222.68. Mr. Rayford deposited $6,516.34 a month into the Registry of the Court as the monthly payment. Nothing in the record explains this discrepancy.

      .In the pleadings, neither party prayed for relief with respect to the Association’s alleged right to accelerate the balance upon failure to obtain consent of the Association before transferring the mortgaged property. Thus, the Judge did not consider the issue in his original reasons for judgment. Only after defendant filed a motion for a new trial, contending that the entire controversy between the two parties could be completely resolved only if the Court disposed of the acceleration issue, did the Judge issue his supplemental reasons for judgment declaring that the Association did not Jjave the right to accelerate under these circumstances. This ruling was incorporated in the judgment. Neither party has complained of this procedure so we will treat both issues as being validly before the Court.

      . Taliancich v. Union Savings & Loan Association, 142 So.2d 626 (La.App. 4th Cir. 1962) is the only Louisiana case considering a similar clause in a mortgage contract. The Court held that the Association’s denial of consent was a valid exercise of its contractual and statutory right. The statute creating the right was La. R.S. 6:770 which preceded 6:837. Taliancich is distinguished because it did not involve a transfer between co-owner co-obllgors.

      . Footnote by the Court of Appeal. Clauses such as the one sanctioned by R.S. 6:837 and found in paragraph 17 are commonly referred to as “due on sale” clauses in other jurisdictions.

      . We have also looked to the jurisprudence of our sister states for guidance. However, none of the due on sale cases was concerned with the application of the clause to co-owner co-ob-ligor transfers.

      . “Enforcement of Due-on-Transfer Clauses”, Report by the Sub-Committee on “Due-on” Clauses of the American Bar Association Corn-mittee on Real Estate Financing, located in the ABA’s Real Property, Probate and Trust Journal, Volume 13, pages 891-940 (Winter, 1978).

      .La.R.S. 6:837(A) was preceded by R.S. 6:770. The statute originally was enacted in 1932 as § 51 of Act No. 140 of the 1932 Regular Session of the Louisiana Legislature. The Act codified all the statutes of Louisiana dealing with homestead and building and loan associations.

      . Freedman was criticized for use of this language by Professor J. Denson Smith in 11 Tul. L.Rev. 18, 34.

      . We are cognizant of paragraph 13 of the mortgage contract which provides, among other things, that “[t]he captions and headings of the paragraphs of this Mortgage are for convenience only and are not to be used to interpret or define the provisions hereof.” We note the subheading to paragraph 17 only to illustrate the suggestive effect it may have upon mortgagors who may not be as thoroughly familiar with the terms of the contract as the defendant is.

      . We express no opinion as to whether such a clause, if it were inserted into the contract, would be enforceable in this state, absent some showing that the transfer would be detrimental to the lender.

      . This case contains an excellent summary of the jurisprudence pertaining to due on sale clauses.

      . We express no opinion as to whether a reasonable transfer fee, designed to recover the actual cost of the transfer, would be allowed under proper circumstances.


source: Caselaw Access Project

author: FORET, Judge.

license: Public Domain

text:
    Austin TRAHAN, Plaintiff-Appellant, v. Isaac FONTENOT et al., Defendants-Appellees.
    No. 7420.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.
    Rehearing Denied March 19, 1980.
    Henri C. Billon, Rayne, for plaintiff-appellant.
    Edwards, Stefanski & Barousse, Homer Ed Barousse, Jr., Crowley, Philip J. Chap-puis, II, Crowley, for defendant-appellee.
    Before FORET, CUTRER and DOUCET, JJ.
   FORET, Judge.

Plaintiff brought this action to enjoin the defendants, Isaac Fontenot and the Acadia Parish Police Jury, from interfering with the plaintiff’s use of a gravel road, and to have the road declared public by virtue of LSA-R.S. 48:491.

The trial court determined that the road was public except for the final fifteen feet west of the eastern boundary of the property line between the plaintiff and the defendant.

The disputed road is located in Acadia Parish approximately one-half mile east of Rayne, Louisiana. It runs in an easterly direction from a black-topped parish road along the southern boundary of defendant’s property for a distance of approximately six hundred fifty feet. It then abuts the western boundary of plaintiff’s property.

Defendants stipulated at trial that approximately five hundred seventy feet of the road was public by virtue of maintenance by the Acadia Parish Police Jury. At issue herein is whether or not the remaining portion of the road, approximately seventy-five feet, running from the area which was stipulated as public, to the plaintiff’s property, has been converted into a public road by police jury maintenance.

Mr. Dolphy Hanks, a former employee of 'the Acadia Parish Police Jury, testified that he operated a grader on the section of road in question periodically for three-and-a-half years. He stated that the disputed portion of the road was completely graveled up to the fence, and that he graded the road three or four times a year. The following testimony was elicited from Mr. Hanks:

“Q. When you graded that road, approximately how far would you stop with your blade because of the machinery?
A. Do you mean from the gate?
Q. Yes, from the east side of — (interrupted)
A. Well, I’ll put it this way. I’d say that about ten feet or twelve feet. When your front wheel hit the fence, now your blade don’t get there, so that you’ve got between ten feet or twelve feet. I put it like that.”

William J. Breaux testified that he also worked as a road grader operator on the road for about six-and-a-half years. He also stated that the disputed portion of the road was completely graveled up to the fence and that he graded the road two or three times a month. He, like Mr. Hanks, testified that he would grade the road all the way up to the end saving and except the last fifteen feet which the grader could not grade due to its design, the blade being set back approximately ten to twelve feet from the front wheels.

Mr. Austin Trahan testified that he did place gravel on the disputed seventy-five foot section; however, the gravel was placed in a hole in order that Mr. Trahan could enter his property. Mr. Isaac Fonten-ot testified that he had in fact dug a hole approximately eight feet deep and ten feet wide in an attempt to prevent Mr. Trahan from using the disputed portion of the road. However, Mr. Trahan did in fact state that he put no gravel on the road except that gravel used to fill the hole dug by Mr. Fontenot.

The trial court held that the disputed portion of the seventy-five feet was public except for the final fifteen feet. In so holding, the trial court stated:

“Several former and present employees of the Acadia Parish Police Jury testified that they did operate a road grader over the property at various times and at such regular intervals as to keep the road passable. There was further testimony that there was gravel and shells placed on the road. The testimony of the operators of the Police Jury equipment was to the effect that in the use of the road maintainer it was impossible to grade all the way to the property of the plaintiff as the balde [sic] of their equipment was about fifteen (15') feet from the rear wheels and that when the rear wheels reached the gate that they stopped and turned around and that they never wént with their equipment beyond the fence or the gate.”

On the merits, the sole question before this Court is whether the trial court erred in holding that the final fifteen feet of the roadway in question had not been tacitly dedicated to public use pursuant to LSA-R.S. 48:491. We hold that the final fifteen feet of the road was in fact dedicated to public use and in so doing, reverse the trial court.

The defendants called several witnesses who were of the opinion that the road in question was a private road. It is undisputed that some of the work done on the road was done by private individuals. Evidently the defendant, Fontenot, considered that the furnishing of parish labor and materials was in the nature of a personal favor rather than being a working or maintenance of the road.

However, Fontenot was aware of the work and maintenance being done on the road by the police jury and never entered a protest. Although the work and maintenance performed by the police jury may not have constituted a large outlay of labor and capital, it was nevertheless evident that the parish contributed substantially to the major portion of the maintenance of the road for a period in excess of three years.

There was some testimony elicited during the trial which would tend to indicate that certain individuals employed by the police jury and other witnesses called on behalf of the defendant were of the opinion that this road was a private or farm road. However, our courts have uniformly applied this statute to roads which the police jury itself refuses to recognize as public. Latour v. Dupuis, 164 So.2d 620 (La.App. 3 Cir. 1964). Likewise, our courts have consistently applied this statute to roads maintained by public authority, even when no real public purpose is served thereby, as when only one person or family utilizes the road as a driveway to his property. Strickland v. Stafford, 322 So.2d 893 (La.App. 1 Cir. 1975); Curtis v. Goebel, 101 So.2d 462 (La.App. 1 Cir. 1958).

It is of no moment that Mr. Trahan was the only person using the disputed portion of the road or that he had another access to his property. The sole issue is whether or not Mr. Fontenot allowed, without objection, the State, Parish, or an agency thereof, to maintain the road for a period in excess of three years, thereby dedicating the road to the public pursuant to LSA-R.S. 48:491. As stated before, we hold that the entire seventy-five foot portion of the road known as “Fontenot Street” is public within the meaning of the statute. Obviously, the only reason that the last fifteen feet of the road was not graded was that it was physically impossible at the time that the road was worked to grade this last portion. Additionally, we note that this road would be of absolutely no use to Mr. Trahan without the last fifteen feet.

Having found that all the requisites were met for a tacit dedication pursuant to LSA-R.S. 48:491, we hold the entire disputed seventy-five foot section of the road to be public.

For the above and foregoing reasons, the judgment of the trial court is reversed.

All costs are taxed against the defendant-appellee, Isaac Fontenot.

REVERSED.

      . § 491. What are public roads
      All roads or streets in this state that are opened, laid out or appointed by virtue of any act of the legislature or by virtue of an order of any parish governing authority in any parish, or any municipal governing authority in any municipality, or which have been or are hereafter kept up, maintained or worked for a period of three years by authority of any parish governing authority in its parish or by authority of any municipal governing authority in its municipality shall be public roads or streets as the case may be. Also all roads or streets made on the front of their respective tracts of lands by individuals when the lands have their front on any of the rivers or bayous within this state shall be public roads when located outside of municipalities and shall be public streets when located inside of municipalities. As amended Acts 1954, No. 639, § 1.


text:
    Sandra Leblanc SIMON, Plaintiff-Appellant, v. SOUTHWEST LOUISIANA ELECTRIC MEMBERSHIP CORPORATION et al., Defendants-Appellees.
    No. 7426.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.
    Rehearing Denied March 19, 1980.

      Reggie, Harrington & Boswell, Oscar W. Boswell, II, Crowley, Cline, Miller, Richard & Miller, Rayne, for plaintiff-appellant.
    Larry T. Richard, Rayne, Pugh & Craton by Lawrence G. Pugh, Jr., Crowley, Davidson, Meaux, Sonnier & Roy, J. J. Davidson, Jr., Lafayette, for defendant-appellee.
    Before FORET, CUTRER and DOUCET, JJ.
   FORET, Judge.

This is a suit for wrongful death brought as a result of the deaths of Harold John Simon and Marvin Vincent. Sandra Le-Blanc Simon brought suit on her own behalf and as natural tutrix of the two minor children born of the marriage between her and the deceased, Harold John Simon, against Southwest Louisiana Electric Membership Corp. (hereafter SLEMCO). Likewise, Deliha Roy Vincent brought suit on her own behalf and as natural tutrix of the two minor children bom of the marriage between her and Marvin Vincent, against SLEMCO.

These two cases were consolidated for trial. An Acadia Parish jury rendered a verdict in favor of SLEMCO in both suits and against the respective plaintiffs. Both matters are before us on appeal, and separate judgments will be rendered in each.

The issue presented is:

Was the jury verdict erroneous as a matter of law? We hold that it was not.

On June 8, 1975, Bufford Richard, Jerry Thompson, Heulan Vincent, Michael Vincent and Percy Vincent were engaged in drilling a water well on a lot owned by Michael Vincent in Acadia Parish. Harold John Simon was also present but took no part in the drilling operation, but was instead preparing a bar-b-que for the friends and relatives of the above mentioned individuals as a part of an anniversary celebration given in honor of Mr. and Mrs. Percy Vincent. The drilling site was located approximately fifteen feet from a high voltage electrical line owned and maintained by SLEMCO.

A hand-turned auger was being used to drill the well, a method not uncommon thirty or forty years ago. As the auger was screwed deeper into the ground, a three-foot section of three-quarter-inch pipe was attached to the end protruding out of the ground to enable the men to drill deeper. The auger was periodically pulled out of the hole so that the soil which accumulated around the auger could be removed. Once the soil was removed, the auger was replaced in the hole and drilling continued. The three-foot sections of pipe which were connected to the auger and each other were not disconnected each time the auger was pulled out. The entire drilling apparatus, once all the sections of pipe were connected, was approximately forty-two feet long. Each time the apparatus was pulled out, the length thereof was increased by the connection of additional three-foot sections of pipe. Once the desired depth was reached, the auger and pipe connections were removed in one piece, i. e., without disconnecting each three-foot section as it came out of the hole.

The top end of the forty-two-foot-long drilling apparatus came in contact with the high voltage power lines located near the well hole when the workers were attempting to move the apparatus. The contact caused the pipe to become energized and resulted in Heulan Vincent, Percy Vincent, and Marvin Vincent receiving severe electrical shock. Marvin Vincent died as a result of the charge he received while Percy and Heulan Vincent were rendered unconscious.

Harold John Simon, who was some distance away at the time of the accident, ran to the rescue of the victims once he was apprised of the situation. As stated earlier, Simon was not engaged in the drilling operation. In an attempt to save the lives of friends, Simon attempted to lift the electrified pipe off of the bodies of Percy, Marvin, and Heulan Vincent. His first attempt was unsuccessful, the electric shock having knocked him down. Again he tried to lift the pipe and remove it from the bodies of his friends. This time the charge he received knocked him some ten to twelve feet from the area. He too, like Marvin Vincent, was pronounced 'dead at the scene by the Acadia Parish Coroner.

Three days prior to this accident, a SLEMCO line crew was present on the premises where the accident occurred. The crew was comprised of John L. Lejeune, Patrick H. Prather, and Emery Clarke. Each of the three members of the SLEMCO créw testified that a warning was given to Percy Vincent as to the danger which could result from coming into contact with the SLEMCO power line. It is undisputed that at no time did any SLEMCO employee give any warning to anyone else other than Percy Vincent. The survivors of the accident, including Percy Vincent, deny ever having been warned about the high voltage line.

The line was approximately twenty-six feet above the ground, or about ten to eleven feet higher than that required by the National Electrical Safety Code.

The duty imposed upon operators of high voltage electric lines is to use the utmost care to reduce hazards to life as far as is practicable. Nessmith v. Central Louisiana Electric Co., 257 So.2d 744 (La.App. 3 Cir. 1972), writ denied, 261 La. 480, 259 So.2d 921 (1972), 261 La. 483, 259 So.2d 922 (1972); Williams v. City of Alexandria, 376 So.2d 367 (La.App. 3 Cir. 1979); Bordelon v. Continental Casualty Co., 229 So.2d 761 (La.App. 3 Cir. 1969), writ den., 255 La. 483, 231 So.2d 396 (La.1970); Sonier v. Louisiana Power & Light Co., 293 So.2d 24 (La.App. 1 Cir. 1974). It is also well settled that where it should be reasonably anticipated that persons may come into contact with electric lines, the operator of those lines is required to insulate them, or to give adequate warning of the danger, or to take other proper and reasonable precautions to prevent injury. Williams, supra; Nessmith, supra. In stating the duty of operators of power lines, we note that although they are to guard against reasonably foreseeable hazards, they are not required to anticipate every possible accident which may occur and are not the insurers of the safety of persons moving around power lines in the course of everyday living. See Allien v. Louisiana Power and Light Co., 202 So.2d 704 (La.App. 3 Cir. 1967).

There are several significant factors which we have given great weight in deciding this case. Vincent, by exercising the de minimis amount of caution, could have avoided this accident. All parties engaged in the drilling operation knew the pipe, once removed from the hole, swayed considerably and was . quite flexible. Electric wires strung from pole to pole are tantamount to an announcement of danger to almost anyone possessed of sufficient age and means to come into contact with wires twenty-six feet above the ground. See Cates v. Beauregard Electric Co-Operative, Inc., 328 So.2d 367 (La.1976). SLEMCO could have been called upon to de-energize this line during the drilling operation. Each three-foot section of pipe could have been disconnected as it was pulled from the hole, thus eliminating the possibility of the awkward forty-two-foot section of pipe coming into contact with the high voltage wire. The wire at the point of contact was 26.7 feet above the ground, or about 11.7 feet higher than that required by the National Electric Safety Code for a power line of this type (Trial Rec., pg. 248, 250). To hold SLEMCO liable under the facts of this case would be to make operators of high voltage lines insurers of the safety of virtually anyone coming into contact with their lines, no matter how.

We are aware that those who undertake rescue activities are provided special consideration by the law. The doctrine that a rescuer occupies a special status in law is well recognized in Louisiana. Lynch v. Fisher, 41 So.2d 692 (La.App. 2 Cir. 1949); Dodge v. Pierre, 348 So.2d 167 (La.App. 3 Cir. 1977), writ ref., 351 So.2d 165 (La.1977). The Court is conscious of the status of Harold John Simon as a rescuer. However, we are unable to find any conduct on the part of SLEMCO which could be construed as actionable negligence, thereby entitling any of the plaintiffs to recover. For the foregoing reasons, the judgment of the trial court is affirmed.

All costs of this appeal are taxed against plaintiffs-appellants.

AFFIRMED.


text:
    Deliha Roy VINCENT, Plaintiff-Appellant, v. SOUTHWEST LOUISIANA ELECTRIC MEMBERSHIP CORPORATION et al., Defendants-Appellees.
    No. 7427.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.
    Rehearing Denied March 19, 1980.
    Reggie, Harrington & Boswell, Oscar W. Boswell, II, Crowley, Cline, Miller, Richard & Miller, Rayne, for plaintiff-appellant.
    Larry T. Richard, Rayne, Pugh & Craton by Lawrence G. Pugh, Jr., Crowley, Davidson, Meaux, Sonnier & Roy, J. J. Davidson, Jr., Lafayette, for defendant-appellee.
    Before FORET, CUTRER and DOUCET, JJ.
   FORET, Judge.

For the reasons stated in the companion case of Sandra LeBlanc Simon v. Southwest Louisiana Electric Membership Corporation, et al., 380 So.2d 1242 (La.App. 3 Cir. 1980) in which a separate decision has been rendered by us on this date, the judgment appealed herein is affirmed. All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.


text:
    GOODWIN WELL SERVICE, INC. et al., Plaintiffs-Appellants, v. GOSS CONSTRUCTION COMPANY, INC. et al., Defendants-Appellees.
    No. 7429.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.
    Rehearing Denied March 19, 1980.
    Camp, Carmouche, Palmer, Barsh & Hunter, G. Michael Bourgeois, Lake Charles, Faris, Ellis, Cutrone, Gilmore & Lautenschlaeger, by Gary A. Lee, New Orleans, for plaintiffs-appellants.
    Raggio, Cappel, Chozen & Berniard, Frederick L. Cappel, Lake Charles, for defendants-appellees.
    Before FORET, CUTRER and DOUCET, JJ.
   FORET, Judge.

Plaintiffs, Goodwin Well Service, Inc. and Continental Insurance Company, brought suit against Goss Construction Company and its insurer, Bituminous Casualty Corporation and Millers Mutual Fire Insurance Company, to recover damages allegedly caused by Goss Construction Company to a drilling rig owned by Goodwin Well Service, Inc. and insured by Continental Insurance Company. Bituminous and Millers filed motions for summary judgment on the grounds that their policies exclude the claims made by the plaintiffs. The trial court granted the summary judgments, and the plaintiffs appeal, but only insofar as Millers is concerned.

On August 10, 1975, the defendant, Goss Construction Company, was engaged by plaintiff, Goodwin Well Service, Inc., to provide crane service for the removal of a mast from the sub-structure of the plaintiff’s drilling rig.

During the course of the lifting operation, the mast fell to the ground and was damaged. Later, on August 18, 1975, Goss Construction Company contracted to remove the mast the second time on the same well. Again, the mast fell, causing damage to the rig equipment. Plaintiffs brought this suit to recover for the resulting damage. Defendant, Millers, argues that its policy with Goss Construction Company clearly excludes coverage for this claim. The plaintiffs argue that the trial court erred in holding that the Millers policy excluded coverage. They argue that the policy- in question is ambiguous and must be construed against Millers. The pertinent language of the policy reads:

“CONTRACTORS LIMITATION ENDORSEMENT
1. It is agreed that the policy does not apply to liability for injury to or destruction of leased or rented equipment or property being installed, erected or worked upon by the insured, his agents, or sub-contractors.
2. It is agreed that this policy does not apply under Insuring Agreement to: a) Injury to or destruction of any property arising out of
******
2) The collapse of or structural injury to any building or structure due to . bb) to moving, shoring, underpinning, raising, or demolition of any building or structure or removal or rebuilding or (sic) any structural support thereof. . . . ”

We find the policy language clear in that coverage does not apply to liability for injury to property while being “installed, erected, or worked upon by the insured”. There does not appear to be any dispute that the mast was being “worked upon” when the damage occurred.

The basic rule for contract interpretation is found in Article 1946 of the Louisiana Civil Code which states:

“The words of a contract are to be understood like those of law, in the common and usual signification, without attending so much to grammatical rules, as to general and popular use.”

Applying the above principle, we conclude that the Millers policy provides no coverage for this claim.

Plaintiffs make a further demand that even if the exclusion mentioned above is applicable to exclude recovery of property damage, that the exclusion is not sufficient to exclude recovery of other items of damages for which plaintiffs sued, i. e., for loss of profit, transportation, rigging expenses, payroll costs, and damage appraisal. Plaintiffs assert that none of these items are tangible property, and that only the mast itself is tangible property. In this connection, we note that the second paragraph of the endorsement hereinabove quoted provides that,

“It is agreed that this policy does not apply under Insuring Agreement tó: a) Injury to or destruction of any property arising out of . . .” (Emphasis provided.)

We find this language to be clear and unambiguous. The policy clearly excludes liability for claims resulting from injury to tangible property. In our opinion, it would be inconsistent to interpret this language to exclude coverage for damage to tangible property, on the one hand, while interpreting it to include coverage for damage to intangible property such as loss of profit, transportation, rigging expenses, etc., which arise as a result of damage to said tangible property. We note that the Millers policy defines the term “damages” to include damage which results from the loss of use of property resulting from property damage. Considering this definition in pari materia with the contractors limitation endorsement, we conclude that the incidental damages which plaintiffs ask for herein are excluded under the said endorsement.

Plaintiffs-appellants rely on the case of Borden, Inc. v. Howard Trucking Co., Inc,, 372 So.2d 242 (La.App. 1 Cir. 1979), writ denied, 373 So.2d 544 (La.1979). In that case, the court held that an exclusionary clause excluded coverage for damage to property, which did not exclude damage resulting from damage to said property. In so doing, the court disallowed recovery for actual damages to a compressor while allowing the plaintiffs to recover damages for loss of production. The Supreme Court denied writs in Borden, Inc. v. Howard Trucking Co., Inc., 373 So.2d 544 (La.1979), the case being not final as a result of being remanded by the court of appeal to the trial court. Justice Summers was absent at the time the writ was denied. Justices Dixon and Marcus voted to grant the writ.

We believe that the language in the policies áre not the same, but even if the policy language were identical, we are not convinced that the Borden case was correct, and are therefore disinclined to follow the reasoning thereof.

In summary, we agree with the trial court that the Millers Mutual Fire Insurance Company has a sufficient policy defense. We find that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. LSA-C.C.P. Article 966.

For the above and foregoing reasons, the judgment of the trial court is affirmed.

All costs of this appeal are taxed to the plaintiffs-appellants, Goodwin Well Service, Inc. and the Continental Insurance Company.

AFFIRMED..

      . The insurance policy in part provides:
      “EXCLUSIONS
      “This insurance does not apply:
      ******
      “(d) To property damage to
      (1) property owned or being transported by the Insured or
      (2) property rented to or in the care, custody or control of the Insured or as to which the Insured is for any purpose exercising physical control, other than property damage to a residence or private garage by a private passenger automobile covered by this insurance; * *


author: CUTRER, Judge.

text:
    John D. HUDSON, Plaintiff-Appellee, v. Don McAVOY, Defendant-Appellant.
    No. 7440.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.
    Rehearing Denied March 19, 1980.
    Raleigh Newman, Lake Charles, for defendant-appellant.
    Cassidy & Millican, F. Jefferson Millican, Jennings, for plaintiff-appellee.
    Before FORET, CUTRER and DOUCET, JJ.
   CUTRER, Judge.

Plaintiff, John D. Hudson, filed a rule asking that Don McAvoy show cause why a preliminary injunction should not be granted enjoining defendant from interfering with a servitude of passage benefiting plaintiff’s estate.

The undisputed facts are that on February 27,1958, plaintiff purchased from Leroy Pharr a portion of Lot 8 of the Hathaway Subdivision in the City of Jennings, Louisiana. In addition to the purchase of the land, Pharr granted plaintiff a 30 foot right of way along the adjacent remainder of Lot 8. The purpose of the servitude was set forth in the deed wherein it stated that the servitude was granted for

“ . . .a right of passage or of way and for the erection of all utility lines such as water, sewer, gas, telephone and electricity to service the property.”

Soon after his purchase of the property, plaintiff constructed a building on his property to house his plumbing business. The building faced Elton Road (Highway 26). The plaintiff’s building was constructed in two sections with an opening between the sections wherein a vehicle could drive through the building. After constructing the building, the plaintiff improved the 30 foot right of way for vehicular use. The right of way extended from the rear of plaintiff’s building through the block to Johnson Street. By improving the right of way, plaintiff’s business was accessible by vehicular traffic from Johnson Street as well as Elton Road. The utilities serving the plaintiff’s building were also installed within the 30 foot right of way extending from Johnson Street to the building.

The right of way was used for ingress or egress to the business by plaintiff, his employees, material suppliers and some customers. Plaintiff constructed two gates, one in front of his business and one to the rear thereof, which he kept closed during the night hours, weekends and holidays. These gates kept the public from traveling on the right of way when the business was closed. Plaintiff testified that the closing of the two gates, however, created problems of ingress and egress for customers and supply vehicles. As a result of these problems, plaintiff discontinued the use of the two gates in approximately 1975 by leaving the gates open at all times.

On October 25, 1971, the defendant purchased the remainder of Lot 8 from Pharr, subject to the servitude that existed in favor of plaintiff. Defendant built a home on his property facing Johnson Street, with the right of way running alongside and within four feet of his house. Defendant testified that after plaintiff started leaving his gates open, traffic on the right of way increased, causing a dangerous condition for his children. Defendant, in 1979, constructed a 23 foot gate across the right of way near his home and tendered to the plaintiff a key to the lock thereon.

The plaintiff contended that, even though defendant gave him a key to the gate lock, the installation of the gate interferred with the full use of the right of way. This rule was filed and after trial on the merits, the trial court granted the injunctive relief, ordering defendant to remove the gate across the servitude. Defendant perfected this appeal. We affirm.

The issue presented on appeal is whether the trial court erred in granting the injunc-tive relief.

This situation is controlled by Article 748 of the Louisiana Civil Code which states, in part, as follows:

“The owner of the servient estate may do nothing tending to diminish or make more inconvenient the use of the servitude.”

The law is clear and unambiguous. The plaintiff is entitled to free and unencumbered use of his servitude. The defendant has no legal basis for either narrowing the servitude from 30 feet to 23 feet by constructing a gate across the road or restricting or diminishing the use of the servitude by the plaintiff, his suppliers or customers. This reduction of the servitude and inconvenience to the plaintiff is precisely what LSA-C.C. art. 748 prohibits. The judgment of the trial court is correct.

The plaintiff argues that LSA-C.C. art. 781 should apply. This position is without merit. This article was repealed, or deleted, by the enactment of Act 514, 1977, effective January 1, 1978.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to the defendant-appellant.

AFFIRMED.

      . LSA-CC. art. 781 provided:

        “If the passage be agreed upon, without the time or the hour be fixed, it is necessary to make a distinction; if the passage be through a place not closed, it may be used at any hour, and even in the night, for at any hour a person may want to pass; but if it be through a place which is closed for the security of the owner, the right of passage can be exercised only at convenient hours, for it would be unreasonable that a yard or house should be left open at all hours of the night."


text:
    Dayton GUILLOT, Plaintiff-Appellee, v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY, Defendant-Appellant.
    No. 7443.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.
    Rehearing Denied March 19, 1980.

      Foye L. Lowe, Jr., Baton Rouge, for defendant-appellant.
    Garrett, Ryland & Nunnally, B. Dexter Ryland, Alexandria, for plaintiff-appellee.
    Before FORET, CUTRER and DOUCET, JJ.
   CUTRER, Judge.

This is a suit brought by Dayton Guillot for the review of a suspension of his driver’s license as a result of an alleged second offense of driving while intoxicated. From a judgment reversing the decision of the hearing officers of the Department of Public Safety (Department) and ordering the Department to return Guillot’s driver’s license, the Department has appealed. Plaintiff has neither appealed, answered, nor filed a brief herein.

The issues on appeal are: (1) Whether certain evidence offered by the Department was admissible; and (2) whether the trial court correctly ordered the return of plaintiff’s license.

On February 23, 1979, plaintiff, in his petition, alleged that the Department mailed to him the results of an administrative hearing held by the Department of Public Safety on January 30, 1979. The hearing officers affirmed the Department’s suspension of the plaintiff’s driver’s license based upon its finding that the plaintiff had twice been convicted of driving while intoxicated in violation of LSA-R.S. 14:98. Plaintiff’s driver’s license was suspended by the Department under the provisions of LSA-R.S. 32:414. This statute provides that the Department shall take the following action:

“. . . revoke the license of any person, for a period of twelve months. upon receiving satisfactory evidence of the conviction or of the entry of a plea of guilty and sentence thereupon or of the forfeiture of bail of any such person charged with any of the following crimes:
******
“(2) Conviction or the entry of a plea of guilty and sentence thereupon, or of the forfeiture of bail of any such person on the second subsequent offense for operating or being in actual physical control of a motor vehicle while under the influence of intoxicating beverages, . . .” (Emphasis ours)

The Department bears the burden of proving that the plaintiff has incurred two DWI convictions. Fontenot v. State Department of Public Safety, 341 So.2d 80 (La.App. 3rd Cir. 1976); Smith v. Department of Public Safety, 254 So.2d 515 (La. App. 4th Cir. 1971). The evidence required in proving the case must be legal, admissible evidence. Fontenot v. State Department of Public Safety, supra.

To prove its case, the Department offered several documents. The exhibit labeled “D-2” was a certified copy of a uniform traffic ticket and complaint issued October 20, 1977, in Alexandria, Louisiana, to Dayton Guillot, whose address was listed as “P.O. 253 Mansura, LA.” The operator’s license number was listed as “1403559.” The automobile involved was a 1967 Green Pour Door Ford, license number 43L618. The offense listed was “DWI 2nd” [R.S. 14:98(C)]. On the ticket, however, was also written the words “amend to 1st offense D.W.I.” The reverse of the ticket indicates that the offender pleaded guilty and was fined $250 plus $16 in costs. The order was signed by City Court Judge George M. Foote. Attached to the ticket, and part of the same certified exhibit, was a copy of the court minutes of the City Court of Alexandria for November 10,1977. These minutes reflect that such a guilty plea was entered.

It is clear that this ticket reflected a DWI conviction and sentence of the plaintiff. Plaintiff had no objection to this document being admitted into evidence.

To prove another DWI conviction, the Department also offered into evidence a certified copy of a uniform traffic ticket and complaint dated May 22, 1976 issued in Baton Rouge, Louisiana, to Dayton Guillot, whose address was listed as 2640 Rampart Drive, New Orleans, LA. The date of birth was given as “3-7 — 41.” The operator’s license number was 1403559 and the automobile was a 1967 Green Four Door Ford, license number 43L618. The offense listed was “R.S. 14:98 DWI.” The reverse side indicates Guillot was arraigned on “6-1-76,” advised of his rights, and fined $125 or 30 days in jail with court costs of $5. This disposition was signed neither by the clerk nor the judge of the Municipal Court of Baton Rouge. The certification by the deputy clerk of court read as follows:

“I hereby certify that the reverse side is a true and correct photostatic copy of the original on file.”

Defendant’s objection to the admissibility of this document was sustained. The trial judge ruled that the copy did not comply with the requirements of R.S. 32:393 which, in part, reads as follows:

“C. Every court in this state shall keep a full report of every case in which a person is charged with violation of any provision of this Chapter or any regulation of the department or the commissioner adopted pursuant thereto, or any law of this state or of any municipal or parish governing authority lawfully established for regulating the operation of motor vehicles on highways. If such person is convicted, or his bail is forfeited, or other final disposition be made, an abstract of the report, all parking convictions only excepted, shall be sent by the court or the district attorney, as the case may be, to the commissioner not later than thirty days after the date of such person’s conviction or forfeiture of his bail or the final disposition of his case. This report shall not be a court record.
“D. Abstracts required by this Section shall be made on forms prepared by the commissioner and may include all necessary information as to the parties to the case, the nature of the offense, the date of hearing, the plea, the judgment, the amount of the fine or forfeiture, as the case may be, or the final disposition. Every such abstract shall be certified by the iudere or clerk of such court, as a true abstract of the records of the court. If the abstract is sent by the district attorney, it shall be certified by him as a true abstract of the final disposition of the case as contained or found in the files of his office.” (Emphasis ours)

The order on the reverse side of the ticket was not signed by the clerk or the city court judge. The trial judge ruled that the copy was inadmissible since it did not show the final disposition of the charge and there was no indication that the certified copy was an abstract of the court record under R.S. 32:393.

We have found no authority that would allow the classification of such letters as “business records.” We need not decide this issue, however, for the reason that the Department did not lay the necessary foundation for the admissibility of the letter. The Department did not introduce any testimony to identify the letter, to authenticate the letter as having been written by Judge Daniels, or to show that the letter had come from the proper public office where such official records are kept. Therefore, since no foundation was laid for the introduction of the letter, it was properly excluded.

We agree with the trial court that the certification does not comply with the requirements of R.S. 32:393 D. The certification shows nothing more than the fact that the copy of the ticket is a true copy of the original ticket on file. It does not certify that the ticket is a true copy of the abstract of the court records showing the disposition of the case. Since the ticket did not bear the proper certification it was properly held to be inadmissible for the purpose of proving the DWI conviction. See Evans v. State, Dept. of Pub. Safety, Fin. Respon. Div., 311 So.2d 24 (La.App. 1st Cir. 1975).

The Department also attempted to produce an original letter from City Judge William Hawk Daniels to the Administrator of the License Control & Driver Improvement Division of the Department. This letter dated June 22, 1976 stated that Dayton J. Guillot of 2460 N. Rampart Street, New Orleans, Louisiana, Operator License Number 1403559 pleaded guilty to a charge of DWI in the City Court of Baton Rouge. The court, according to the letter, levied a fine of $125 or 30 days in jail and $5 in court costs. The letter further recommended that the offender be allowed to retain his driver’s license.

The trial court refused to allow the admission of this document into evidence. The Department contends that the letter should be admissible as a “business record” of the court, and thus, an exception to the hearsay rule.

The Department further contends that the plaintiff in his “Exceptions of Prescription and/or Laches” admits two DWI convictions. The pertinent paragraph of the exception reads as follows:

“I.
“Exception shows that the second conviction in the name of Dayton Guillot for driving while under the influence of intoxicating beverages occurred on November 10,1977 in the Ninth Judicial District Court in and for the Parish of Rapides, State of Louisiana.” (Emphasis added.)

The Department contends that the petitioner, in this pleading, admitted to two DWI convictions. The paragraph which is alleged to support this position does not allege when the first conviction occurred. The second conviction must have occurred not more than five years after the first conviction. The plaintiff’s exception does not state the date of the first conviction. He therefore does not admit circumstances which would cause R.S. 32:414 B to come into effect.

The Department also contends that a hearsay document introduced by plaintiff labeled “P-1” supports its position and proves its case. This document is the report of the Department’s hearing officers which affirmed the suspension of the plaintiff’s license. The hearing officers state that the plaintiff was convicted twice of driving while intoxicated; once on June 17, 1976 and again on November 10, 1977.

The position of the Department is without merit. The document shows the result of the Department’s administrative hearing. The plaintiff has a right to apply to the district court for a hearing and to have the Department prove its case de novo. The contention of the Department that its case is proved by the admission of the hearing results would have the effect of depriving the plaintiff of his right to a de novo hearing in the district court. The district court is in no way bound by the results of the administrative hearing of the Department. Therefore, the introduction of the document does not prove that plaintiff was twice convicted of driving while intoxicated in violation of LSA-R.S. 14:98.

A document alleged to be a computer printout showing the driving record of Dayton J. Guillot was received into evidence as “D-4” over the objection to plaintiff’s counsel. The court admitted the evidence based on LSA-R.S. 32:1473, which provides that:

"The Department of Public Safety shall certify the conviction record as maintained in its office of any person whose record brings him within the definition of a habitual offender, as defined above, to the district attorney of the judicial district in which such person resides according to the records of the Department of Public Safety or to the district attorney for the parish of East Baton Rouge if such person is not a resident of this state. Such abstract may be admitted as evidence. Such abstract shall be competent evidence that the person named therein was duly convicted by the court wherein such conviction or holding was made by each offense shown by such abstract.”

This statute is found in the Habitual Offender Law.

The trial judge reasoned that since this type of document was admissible in cases involving habitual offenders, it should likewise be admissible in cases of license suspensions, or revocations under LSA-R.S. 32:414.

As noted earlier, the plaintiff has filed no answer, appeal or brief on this appeal, and thus does not contest the admissibility of this document on appeal.

The trial judge ordered the return of plaintiff’s license based upon his finding that the Department’s evidence did not show that the plaintiff was the same person the Department alleges was twice convicted of DWI because the Alexandria ticket (“D— 2”) and the alleged computer printout (“D— 4”) showed different addresses.

Even though the persons appear to be one and the same, and even though the document was admitted into evidence, we find that the document does not prove that the plaintiff was twice convicted of DWI. We note that the certification bears only a facsimile signature of Allen M. Posey, Administrator of the Driver Management Bureau. We seriously question a certification that bears a facsimile signature instead of the actual signature of the proper official. It is not necessary to decide this issue, however. If the documents with such “certification” were admissible under LSA-R.S. 32:1473, as applied by analogy, the printout does not comply with the other requirements of that statute. The certification does not establish that the “Administrator of the Driver Management Bureau” is the legal custodian of the conviction records maintained in the office of the Department of Public Safety. A valid certification must clearly indicate that the person certifying the copy has been entrusted with legal custody of the original document by the original official custodian. State v. Martin, 356 So.2d 1370 (La.1978). The certification does not specify that the document is the abstract of the conviction record of Dayton J. Guillot maintained by the Department. No testimony was offered by the Department that “D-4” was an abstract of the conviction records of Dayton J. Guillot. Even though the document was admitted into evidence, such document does not establish a second conviction because it does not meet the requirements of R.S. 32:1473.

In conclusion, we find that the Department proved a DWI conviction on November 10, 1977. For the reasons set forth above, however, the Department has failed to present satisfactory evidence of a second DWI conviction as required by LSA-R.S. 32:414.

For the reasons assigned, the judgment of the trial court is affirmed. Costs of this appeal are assessed against defendant-appellant.

AFFIRMED.

      . The plaintiff did not appear at the trial of the case. He was not subpoenaed to testify on cross examination by the Department. The Department, through counsel, commented on the absence of the defendant, pleaded surprise and asked that the case be held open for defendant’s testimony. This was objected to by plaintiffs counsel on the ground that the Department had been given the defendant’s address 10 days before trial and no subpoena had been issued. The court sustained the objection and proceeded with trial. The Department presented its case by documentary evidence only.

      . LSA-R.S. 32:414 A authorizes such letters of recommendation:

        “A. The department shall, unless otherwise directed bv the.court havina jurisdiction of the case, suspend the license of any person for a period of sixty days .... Where such district, city, municipal or federal judge or magistrate has affirmatively recommended that the driving privileges of a person convicted as above not be suspended, the judge or magistrate may, in his discretion, also render an order circumscribing, limiting, or restricting the driving privileges of such licensee for a period not to exceed ninety days from the date of such conviction. . (Emphasis added)

      . The exception was referred to the merits.


author: GARRISON, Judge. SAMUEL, Judge,

text:
    Judith TRICHE v. Susan SHORE.
    No. 10213.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 4, 1980.

      W. Donald Cashio, New Orleans, for plaintiff-appellant.
    Raul R. Bencomo, Wiedemann & Fransen, New Orleans, for defendant-appellee.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   GARRISON, Judge.

Judith Triche sued Susan Shore for redhi-bition of Triche’s September 1976 purchase of a 1972 Chevrolet Vega from Shore. The district court denied Triche’s demand, and she appealed.

Shore’s original asking price on the car was $850. She advised Triche at the time of sale that the four-year-old car “used oil.” Triche requested, and Shore agreed, to have the car inspected at a service station of Triche’s choice. According to Triche, the service station owner told her the car was burning oil and would need a ring job in about a year. Triche then made a counteroffer to Shore to purchase the car for $750. Shore accepted and the sale took place.

Shortly after Triche started driving the car, it began malfunctioning. She had it tuned up, but nonetheless it subsequently stalled in the middle of traffic and had to be towed to a repair shop. The mechanic advised her that the car had corroded cylinders, a defective head gasket, and a corroded cylinder head, and would be inoperable unless repaired.

The Civil Code prescribes the following requirements for a redhibition action: There must be a latent defect in the object, existing prior to the sale, not declared by the seller, not discoverable by simple inspection, and rendering the object so useless and imperfect the buyer would not have purchased had he known of the defect. Civil Code Article 2520 et seq.

Triche made her $750 counter-offer to Shore on September 11th, and Shore accepted it on the same day. Delivery of the car and payment of the price, however, were not made until September 16th. (Triche actually paid only $700 for the car. She subsequently issued a stop-payment order on her $50 deposit check because Shore had failed to cash it.) The car began to malfunction on September 17th. Under C.C. Art. 2530, the appearance of the vice within three days following the sale establishes a presumption that the vice existed before the sale. Shore contends that, under C.C. Art. 2456, the sale was perfected on September 11th; therefore, the vice did not appear within three days of the sale and so is not presumed to have existed prior to it. We hold that, regardless of the presumption, the vice appeared closely following the sale and it is obvious from the evidence it existed at the time of the sale.

The trial judge ruled Triche waived her right to sue in redhibition when she had the car inspected by a mechanic. This is an incorrect application of the law. The law requires only that the defect be not discoverable by simple inspection. The expertise of the inspector makes no difference. Triche did not establish exactly what was included in the service station owner’s inspection of the car prior to the purchase. The record, however, establishes that the engine block corrosion and the major engine defects could be discovered only by removal of the cylinder head. The repair shop mechanic, who inspected the car after it broke down, testified this was not the kind of inspection customarily made for a customer contemplating a car purchase. Nor, we conclude, is such an inspection intended by C.C. Art. 2521.

Once Triche established that the vice existed, that it was not discoverable by simple inspection, and that it existed at the time of the sale, the burden shifted to Shore to prove Triche was not entitled to redhibition.

Plaintiff paid $700 for an automobile which proved to be so useless or imperfect she never would have purchased it, and she is entitled to redhibition. We reverse the judgment of the district court, and render judgment as follows.

We award the following amounts:
$700.00_purchase price
51.51_license and taxes
90.00_cost of useless repairs
$841.51.TOTAL

DECREE

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff, Judith Triche, and against the defendant, Susan Shore, in the amount of EIGHT HUNDRED FORTY-ONE AND FIFTY-. ONE HUNDREDTHS ($841.51) DOLLARS, with legal interest from date of demand until paid, and for all costs of these proceedings.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that plaintiff tender, and defendant accept, return of the car.

REVERSED AND RENDERED.

SAMUEL, J., concurs and assigns reasons.

SAMUEL, Judge,

concurring.

While I have considerable doubt as to the correctness of the majority opinion and decree, especially because the “mechanic” upon whose testimony the majority relies was not accepted by the trial court as an expert (the trial judge allowed the witness to testify because of his experience, stating he would give that testimony the weight he deemed appropriate), and because' the person who made the first inspection was not called as a witness, I respectfully concur.


author: STOKER, Judge. DOMENGEAUX, Judge,

text:
    Robert M. BREITHAUPT, Jr., Plaintiff-Appellant, v. Luke SELLERS, Defendant-Appellee.
    No. 7214.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 14, 1980.
    Rehearing Denied March 19, 1980.

      William Henry Sanders, Jena, Martzell & Montero by Wilson M. Montero, Jr., New Orleans, for plaintiff-appellant.
    Gold, Little, Simon, Weems & Bruser, Herbert J. Mang, Jr., Alexandria, Gist, Methvin, Hughes & Munsterman, H. B. Gist, Jr., Alexandria, for defendant-appel-lee.
    Before CULPEPPER, DOMENGEAUX and STOKER, JJ.
   STOKER, Judge.

Plaintiff, Robert Breithaupt, Jr., brought this tort action against Luke Sellers to recover damages for personal injuries sustained by plaintiff when he was shot. Plaintiff also filed suit against Houston General Insurance Company seeking damages for the same injury. At the trial of these consolidated cases, following the presentation of plaintiff’s case, defendant Sellers moved for a directed verdict. The trial judge directed a verdict in favor of defendants holding that plaintiff had been contrib-utorily negligent. From this adverse judgment, plaintiff has perfected this appeal.

The issue in this appeal is whether the trial court erred in a jury trial in directing a verdict in favor of defendant Luke Sellers.

The facts reveal that on November 30, 1977, at approximately 2:00 p. m. plaintiff and a companion, Grayson Walpole, went deer hunting in an area off the Placid Oil Road in LaSalle Parish. Upon arriving at the hunting area, plaintiff and his companion separated. At approximately 5:30 p. m., plaintiff began walking back to the truck, terminating his hunting. While walking toward his truck he saw a man in the distance. Moments after viewing the figure through his rifle scope, appellant was shot by the man. Plaintiff later identified defendant Sellers as the person who shot him.

Plaintiff assigns as error the trial court’s granting of a directed verdict in favor of the defendants.

Directed verdicts are provided for by the Louisiana Code of Civil Procedure, article 1810. Directed verdicts are a relatively new procedure in Louisiana, the device having been added in 1977. Article 1810 of the Code of Civil Procedure, which incorporates the directed verdict into Louisiana Law, reads in pertinent part as follows:

A. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.

This Court of Appeal recently had occasion to consider this statutory provision and adopted a standard for directed verdicts in Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir. 1979). As the source of our directed verdict statute, LSA-C.C.P. art. 1810A, was the Federal Rules of Civil Procedure, we adopted the standard established in the federal courts which is as follows:

On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.

The ground upon which the trial judge directed a verdict in favor of defendant Sellers was that plaintiff was guilty of contributory negligence in not wearing “hunter’s orange,” and this negligence was a cause of his being shot. Thus, his claim was barred by his contributory negligence.

The narrow question presented in this case is could reasonable persons, viewing all the evidence in a light most favorable to plaintiff, have reached different conclusions as to whether plaintiff was contributorily negligent.

Defendant contends that plaintiff was contributorily negligent because he failed to wear “hunter’s orange,” as required by LSA-R.S. 56:143 which provides,

Any person hunting deer shall display on his head or chest, and/or back a total of not less than four hundred square inches of material of daylight fluorescent orange color known as “Hunter orange”. These provisions shall not apply to persons hunting deer on property which is privately owned and legally posted, or to archery deer hunters except when bow and arrow are used to hunt deer on wildlife management areas where a gun season for deer is in progress.
Whoever violates the provision of this section shall be fined not more than $100 or imprisoned for not more than ninety days, or both.

The statute requires persons to wear “hunter’s orange” while deer hunting. A person deer hunting without wearing hunter’s orange would be subjecting himself to an unreasonable risk of harm. Plaintiff testified that he had terminated his deer hunting prior to being shot.

The most difficult question to be faced here is the question of causation. What role did the failure of plaintiff to wear “hunter’s orange” have in causing him to be shot. There is no allegation or contention that plaintiff was intentionally shot. In defendant’s invocation of the defense of contributory negligence plaintiff is charged with the violation of the criminal statute, LSA-R.S. 56:143, quoted above. We approach this case and analyze it in the manner prescribed in Weber v. Phoenix Assurance Co. of N.Y., 273 So.2d 30 (La.1973).

Plaintiff violated the statute. The statute was unquestionably designed to afford him, as a hunter, protection from the risk of being shot by other hunters who might mistaken him for game. Under the circumstances, plaintiff’s failure to wear the prescribed fluorescent orange clothing, not only on his head, but on his “chest and/or back,” was a cause-in-fact of his being shot. Considering the duty-risk relationship, plaintiff’s failure was a legal cause of the accident. The statute violated by him was designed to protect him from the very risk incurred.

We do not believe we are assuming too much in believing plaintiff would not have been shot had he been properly attired. The evidence clearly established conditions of visibility such that, had plaintiff been attired with “hunter’s orange”, any hunter would have noted this fact. We feel that we can assume that reasonable persons would have responded properly by concluding that plaintiff was a human being and not a game animal—a deer. Such a reasonable person would not have fired at plaintiff. The assumption that whoever shot plaintiff was a reasonable person is warranted because we are dealing with the question of plaintiff’s negligence. If plaintiff had been clothed in “hunter’s orange” but had nevertheless been shot, the inquiry then would be whether the shooter acted unreasonably, and contributory negligence on plaintiff’s part would not have been a factor.

We are of the opinion that the reasonable inferences most favorable to plaintiff are (1) that the conditions of visibility were such that, (2) with the use of “hunter’s orange”, (3) a reasonable person would not have fired upon plaintiff. We feel these inferences point so strongly and overwhelmingly in favor of plaintiff’s contributory negligence, which would bar recovery by him, that reasonable persons could not arrive at a contrary verdict. Therefore, we affirm the action of the trial court in directing a verdict for defendant.

Plaintiff strongly urges that a jury issue existed because the shooting incident occurred at a time which very probably was after legal hunting hours. If this was so, plaintiff urges, he was not required by law to wear “hunter’s orange” at the time of the shooting. We do not consider the argument valid. The “hunter’s orange” statute applies to “any person hunting deer”. It does not apply to persons only while they are legally hunting deer and not apply to persons who are hunting illegally after the prescribed hours. We interpret the word hunting broadly. As stated above, plaintiff had started walking back to the truck which meant that he was in the act of concluding his active hunting. However, the “hunter’s orange” statute is not like the proverbial “king’s x” in children games or a time out in athletic contests which suspends the games. Hunting obviously requires going into and coming out of the hunting area. Consequently, during periods when one may be approaching or leaving a deer stand, for example, he needs the protection of “hunter’s orange” just as much as when he and other hunters are actively ready and seeking an opportunity to shoot at deer. Perhaps the hunter is in greater need of protection at such times, as he may be walking and moving as plaintiff was.

For the foregoing reasons we do not regard as relevant, the fact that the shooting incident may have taken place a few minutes after the close of legal hunting hours. Therefore, we affirm the judgment of the trial court. All costs of this appeal shall be borne by plaintiff-appellant.

AFFIRMED.

DOMENGEAUX, J., dissents and assigns written reasons.

DOMENGEAUX, Judge,

dissenting.

I respectfully suggest that the able trial judge erred in granting a directed verdict in this jury case. Weber, cited in the majority opinion, stated in essence that a violation of a penal statute does not automatically constitute negligence; the violation complained of must also be a legal cause in fact of the harm or damage which ensues from its violation.

I cannot concede that the members of the jury might not have reached different conclusions on the question of plaintiff’s contributory negligence, i. e., that the failure of plaintiff to be wearing“hunter’s orange” was a legal cause in fact of the accident.

It seems to me that the granting of the directed verdict in this case runs contra to the standard for directed verdicts which we set out in Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir. 1979).

We should reverse this decision and remand to the District Court for a new trial.

      . The case against Houston General Insurance Company, Number 7215 on the docket of this court, has been severed from this action against defendant Luke Sellers. The appeal in the case of Houston General Insurance Company has been separately docketed and will be heard and considered as a separate case.

      . Under federal decisions directed verdicts may be granted where the plaintiffs case discloses a valid defense of contributory negligence. Thompson v. Illinois Central R. Co., 423 F.2d 1257 (6th Cir. 1970) and Hanover Insurance Company v. Berry, 416 F.2d 279 (5th Cir. 1969).

      . The evidence, including testimony of plaintiff himself, established that the land on which plaintiff was hunting, although privately owned, was not posted. (Tr. 367 and 673)


author: LEE, Justice,

text:
    Olyn Lee WRAY v. Hilda E. Nelson Wray LANGSTON.
    No. 51705.
    Supreme Court of Mississippi.
    March 5, 1980.
    James C. Waide, West Point, for appellant.
    James C. Helveston, West Point, for ap-pellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   LEE, Justice,

for the Court:

The Chancery Court of Clay County rendered a decree April 4,1979, which modified a divorce decree dated February 20, 1975, and increased child support payments to two hundred dollars ($200.00) per month, ordered Olyn Lee Wray to pay unto Hilda E. Nelson Wray Langston seven hundred fifty dollars ($750.00) attorney’s fees, and denied the petition of- Wray to vacate that part of the divorce decree which required him to transfer his interest in homestead property to Langston. Wray has appealed from the judgment and assigns three (3) errors in the trial below.

I.

Did the lower court err in refusing to vacate that part of the divorce decree requiring Wray to transfer his interest in homestead property to Langston?

Appellee instituted a divorce action against appellant, charging habitual cruel and inhuman treatment, and, after a trial on the merits, the chancellor entered a decree February 20, 1975, divorcing them, granting custody of two (2) minor children of the parties to appellee, and requiring appellant to pay three hundred dollars ($300.00) per month child support. The decree also provided the following:

“Came the parties through their attorneys and announced to the Court that all matters of child support, child custody, and property rights have been settled, and the Court having considered said agreement finds that the agreement should be approved and ratified by the Court and made a part of this decree.
The Defendant, Olyn Lee Wray, is ordered to execute a quit claim deed to any right, title, and interest he may have in either the home or the furnishings therein, as agreed by the parties, with the Complainant assuming all outstanding liabilities against said home.”

The decree was approved as to form by attorneys for the parties. No appeal was taken from that final decree.

Appellant now contends that he was required to divest himself of real property by the court, which had no authority to do so, and cites Bond v. Bond, 355 So.2d 672 (Miss.1978); Bridges v. Bridges, 330 So.2d 260 (Miss.1976); Hudson v. Hudson, 284 So.2d 299 (Miss.1973); and McCraney v. McCraney, 208 Miss. 105, 43 So.2d 872 (1950).

The above cases correctly state the rule that a court is without authority to divest a spouse of his or her property. However, in the present case, the parties agreed in a property settlement that appellant deed his interest in the homestead unto appellee, and the decree followed that agreement in directing the appellant to convey such interest to appellee. The record reflects that, acting pursuant to the agreement and decree, appellant, without objection, executed a deed of conveyance to ap-pellee.

Griffith, Mississippi Chancery Practice, Section 618, at 664 (2d ed. 1950), states:

“[A] consent possesses the attributes of a contract and, when duly authenticated and especially after being filed, it is binding on the consenting parties, if competent to contract, and cannot be set aside or reviewed, except on a clear showing that it was obtained by fraud or the substantial equivalent thereof, or was based on mutual mistake.”

The above rule has been followed in Dibrell v. Carlisle and Humphries, 51 Miss. 785 (1875) and Hiatt v. Barker, 194 So.2d 495 (Miss.1967).

In Guthrie v. Guthrie, 226 Miss. 190, 84 So.2d 158 (1955), this Court held that a consent decree can be set aside only when the following circumstances exist:

(1) [T]he facts constituting the fraud, accident, [or] mistake or surprise must have been the controlling factors in effectuation of the original decree, without which the decree would not have been made as it was made.
(2) The facts justifying the relief must be clearly and positively alleged as facts and must be clearly and convincingly proved.
(3) The facts must not have been known to the injured party at the time of the original decree.
(4) The ignorance thereof at the time must not have been the result of the want of reasonable care and diligence.

We hold that the divorce decree of February 20, 1975, did not, of itself, divest title from appellant, but simply set out and followed the agreement of the parties, which was incorporated into the decree, and subsequently was performed by appellant. Also, there is no merit in the argument that the oral agreement violated the Statute of Frauds.

II.

Did the lower court err in increasing support for a child of the parties to two hundred dollars ($200.00) per month, in order to defray college expenses?

Appellant admits that Tammy Wray, 19-year-old daughter of the parties, meets the qualifications expressed in Pass v. Pass, 238 Miss: 449, 118 So.2d 769 (1960), and that he is financially able to contribute to the support of the child and for college expenses. However, he contends that appellee has substantial income and assets, and that she is equally responsible for paying support and for the education of Tammy. He also argues that the court considered expenses in computing costs of attending college which were not allowable.

The chancellor found that appellant’s income for the year 1978 was seventeen thousand five hundred thirty-five dollars ($17,-535.00), that appellee’s income was eleven thousand eight hundred sixty dollars fifty-three cents ($11,860.53), and that Tammy earned five hundred dollars ($500.00) during the summer. The chancellor further found that the total support required for the child, including college expenses, was five thousand eight hundred twenty dollars ($5,820.00) annually, and that one-half (½) of said total amount was twenty-nine hundred ten dollars ($2,910.00) and, allowing $500.00 credit for sums earned by her, the figure for one-half child support is reduced to twenty-four hundred ten dollars ($2,410.00). Appellant was ordered to pay into the registry of the court $200.00 per month for the support and education of Tammy beginning in April, 1979.

We are unable to say that the chancellor was manifestly wrong in her finding of fact and in increasing the support by fifty dollars ($50.00) to an aggregate sum of $200.00 per month. Appellee will pay an amount toward support and education of the child equal to, or in excess of, that sum. The duty of a parent to provide a college education for his or her child contemplates support in addition to tuition and college costs, without which, provision for the college education would be in vain.

III.

Did the lower court err in allowing seven hundred fifty dollars ($750.00) attorney’s fees for appellee?

Appellant contends that appellee had an estate sufficient to pay her attorney and cites Bernard v. Bernard, 43 So.2d 727 (Miss.1949) and Robinson v. Robinson, 112 Miss. 224, 72 So. 923 (1916), as authority that attorney’s fees should not have been allowed.

In Gresham v. Gresham, 199 Miss. 778, 25 So.2d 760 (1946), this Court said:

“The appellant brought her [appellee] into court on [the] matter seeking, without justification, an alteration of his liability to her from a court decree fixing it, and we think [he] should pay her an attorney’s fee. Otherwise, he could sue her as often as to impose an oppressive burden on her allowance in resisting his repeated applications.” 199 Miss. at 785, 25 So.2d at 762.

In the case sub judice, suit was brought by appellee for the purpose of enforcing payment of support money (appellant terminated $150.00 per month payments for support of Tammy when she finished high school) for the child and for the purpose of increasing that support. Appellant was found to be in contempt of the court for failure to pay same. In Spradling v. Spradling, 362 So.2d 620 (Miss.1978), we held that a divorced wife was entitled to $750.00 attorney’s fees on a modification petition filed by her ex-husband and in Branton v. Branton, 302 So.2d 506 (Miss.1974), the Court stated:

“We affirm the chancellor in all matters except his failure to allow appellant a fee for her attorney. Both appellant and appellee are able to pay their respective attorney’s fees, but in this case it would be inequitable for appellant’s recovery under the original decree to be diminished by the amount of the fee of her attorney.” 302 So.2d at 507.

See also Rogers v. Rogers, 373 So.2d 816 (Miss.1979).

We are of the opinion that the chancellor correctly allowed attorney’s fees. The motion here for attorney’s fees is sustained and allowed in the amount of three hundred seventy-five dollars ($375.00).

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, BOWLING and COFER, JJ., concur.'