author: CARTER, Judge.

text:
    STATE of Louisiana In the Interest of Donnell PIGOTT.
    No. 15013.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.

      James S. Farmer, Asst. Dist. Atty., Cov-ington, for the State.
    H. Gregory Briese, Bogalusa, Court-Appointed, for Child.
    Before LEAR, CARTER and CHIAS-SON, JJ.
   CARTER, Judge.

On July 8, 1981, Donnell Pigott was adjudicated a delinquent in the Juvenile Court for the Fourth Ward, Washington Parish. The petition charged that the minor committed a delinquent act of being an accessory after the fact to simple robbery in violation of La. Revised Statutes 14:25 and 14:65, and that as a result of the above act, the minor was in violation of his parole. At the disposition hearing on July 14, 1981, the court committed the minor to the Department of Corrections for a period not to exceed two years.

Counsel for the minor filed this appeal challenging the adjudication on two assignments of error: (1) failure of the State to prove each essential element of the crime specified in the petition, and (2) commitment of the minor on charges not set forth and specified in the State’s original petition. The adjudication of delinquency must be reversed.

On May 26, 1981, sometime shortly after 5:00 p. m., Dorothy Powe drove from Ashley’s Outlet to First State Bank, accompanied by Agnes Edwards, manager of the outlet, and Ms. Powe’s son, Kenny. Ms. Powe got out of her truck and was walking up to the bank carrying a bag containing the store’s daily receipts when a youth, Carey Williams, ran up to her, twisted the bag off her arm, and ran away with it. The testimony at trial relating to the charge that Donnell Pigott was an accessory after the fact to this crime is confusing and contradictory and will be discussed below.

ASSIGNMENT OF ERROR NO. 1
La.Code Juv.P. art. 73 reads as follows: “If the petition requests that the child be adjudicated a delinquent, the state shall prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition.
If the petition requests that the child be adjudicated a child in need of supervision or a child in need of care, the state shall prove the allegations of the petition by a preponderance of evidence.”

In an adjudication proceeding, the State must prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition. A delinquent act is an act committed by a person under seventeen years of age which is an offense, either felony or misdemeanor, under the statutes or ordinances of Louisiana, of another state if the act occurred there, or under federal law. La.Code Juv.P. art. 13(7), (3). This burden of proof, beyond a reasonable doubt, is no less severe than the burden of proof required in an adult proceeding. In Interest of Franklin, 399 So.2d 671, (La.App. 1st Cir. 1981), In Interest of Day, 378 So.2d 511 (La.App. 4th Cir. 1979), In Interest of LaRocca, 363 So.2d 1325 (La. App. 4th Cir. 1978).

In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the United States Supreme Court stated that the standard of review of the sufficiency of evidence in federal habeas corpus cases is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. The Louisiana Supreme Court has adopted that standard when reviewing allegations by defendants that the State has presented insufficient evidence to prove beyond a reasonable doubt an essential element of the crime charged. State v. Morgan, 389 So.2d 364 (La.1980); State v. Byrd, 385 So.2d 248 (La.1980); State v. Landry, 381 So.2d 462 (La.1980).

This same standard of review now also applies to juvenile proceedings. In Interest of Franklin, supra. The scope of this court’s review extends to both law and fact. La.Const. art. 5, § 10; In Interest of Franklin, supra; State in Interest of Giangrosso, 385 So.2d 471 (La.App. 1st Cir. 1980), affirmed, 395 So.2d 709 (La.1981). In considering the law and the facts of this case, we find that the State did not prove beyond a reasonable doubt certain elements of the-crime of accessory after the fact.

La.R.S. 14:25 reads:

“An accessory after the fact is any person who, after the commission of a felony, shall harbor, conceal, or aid the offender knowing or having reasonable ground to believe that he has committed the felony, and with the intent that he may avoid or escape from arrest, trial, conviction, or punishment.”

The article requires that there must be some act by which the defendant harbors, conceals, or aids the offender, and that this act must be done with a specific intent to help the offender avoid or escape from arrest, trial, conviction, or punishment. State v. Jackson, 344 So.2d 961 (La.1977). The Reporter’s comment following that article states:

“Generally speaking, virtually any sort of aid given to a fugitive felon, to hinder his being arrested, tried or punished, will make the person assisting an accessory after the fact — as furnishing a car, food, shelter or money to help him escape or elude the lawful authorities, or using force or threats to rescue or protect him.”

The trial judge felt that the juvenile was in some way involved in the crime. Vague ideas of criminal involvement, however, may never suffice to support a guilty verdict to a specific charge. Even excluding all of the testimony favorable to defendant and accepting as true the testimony of Carey Williams, the principal in the crime and the State’s strongest witness, we cannot say that Donnell Pigott harbored, concealed, or aided Williams with the intent that Williams avoid arrest. Williams’s most damaging testimony was that Donnell knew of the plans for the crime and that several hours after perpetration, Donnell drove Williams around in a ear and later accepted some of the stolen money. State v. Jackson, supra, dealt with a similar factual situation. There, the defendant knew of the planned crime and after the crime accepted some of the stolen money and goods in return for not reporting the offenders. The .court found that no aid was given to the fugitive felon personally to prevent his arrest; therefore, an essential element of the crime of accessory after the fact was missing.

In State v. Franks, 377 So.2d 1231 (La.1979), rehearing denied, 1980, the defendant knew of the plans to commit the burglary. After the burglary had taken place, the offenders asked the defendant for the use of his truck to haul the stolen goods away from the site of the burglary. Defendant drove his truck to the site, helped load the stolen goods, drove the goods to an apartment, and helped unload them. Relying upon a case in which the driver of a “getaway” car was held to be an accessory after the fact, the court found the defendant guilty of being an accessory because he had committed an overt act (loading the truck and driving the burglars in the “get-away” vehicle from the scene of the burglary) from which the trier of fact could reasonably infer that he had acted with the specific intent to aid the burglars and prevent their arrest. In the instant case, we cannot say that the car was used as a “get-away” car. Nor can we say it was used to aid or conceal Williams to prevent his arrest. The ride in the car did not occur until several hours after the robbery. There was no testimony that Williams was trying to hide or run away. The boys returned home the same night. They may as well have been walking around together or riding a bus together.

Based on Jackson v. Virginia, supra, and the Louisiana cases that have adopted the standard enunciated therein, we must overturn this adjudication because there was insufficient evidence to prove the elements of the crime charged.

ASSIGNMENT OF ERROR NO. 2

Defendant urges that it was error to have him committed on a crime other than that specified in the petition. As mentioned before, the trial judge was convinced that the minor was involved in some way in criminal ' activity. He said:

R. pp. 67
“The evidence is sufficient to warrant adjudication. The Court of Appeal is going to have to decide whether or not the rules of civil procedure apply and what are lessor offenses. As far as I am concerned I am not going to narrow it down as to the question of whether or not Donnell Pigott was a principal, an accessory or a co-conspirator. I think that the petition is sufficient to put him and his counsel on notice that the facts which were introduced today would be produced by the defense, and I think that the rules of procedure permit the proof on any one of those three crimes or delinquent acts, and I am satisfied that there was a presence at the scene before the actual taking of the bag, and that there was some planning prior to the taking of the bag, and that there was a concealment after the taking of the bag, and that there was a division of the spoils. On that basis you can pick your crimes.”

It is obvious from a further reading of the transcript that the judge was motivated by a desire to promote the welfare of the juvenile and of society by seeing that the juvenile be placed in an institution geared to rehabilitate delinquents.

We have concluded that the evidence could not support a guilty verdict beyond a reasonable doubt of the crime charged in the petition. The trial judge apparently anticipated this decision and felt we could find a lesser and included offense.

The Code of Juvenile Procedure has no provisions relating to responsive verdicts or lesser and included offenses. It does provide for supplementary procedures in art. 24. That article reads:

“The provisions of this Code, except as otherwise specifically provided in the law being applied, shall govern and regulate the proceedings of courts exercising juvenile jurisdiction.
Where procedures are not provided in this Code, or otherwise by law, the court shall proceed in accordance with:
(1) The Code of Criminal Procedure in a criminal trial of an adult; or
(2) The Code of Civil Procedure in all other matters.
Added by Acts 1978, No. 172, S. 1, off. Jan. 1, 1979.”

In State in Interest of Gibson, 382 So.2d 1060 (La.App. 2d Cir. 1980), writ denied 385 So.2d 275 (La. 1980), the court looked to the Code of Criminal Procedure articles on responsive verdicts in a juvenile case. It cited State in Interest of Batiste, 367 So.2d 784 (La.1979) as authority for the proposition that the Code of Criminal Procedure is indirectly applicable to juvenile proceedings. Batiste (decided prior to adoption of The Code of Juvenile Procedure) found that there was no statute under the law expressly declaring criminal procedural laws inapplicable to juvenile court proceedings. We are in agreement with our brethren of the Second Circuit and expressly hold that in the trial of a juvenile, the Louisiana Code of Criminal Procedure controls as concerns responsive verdicts.

In Gibson, the appeal was from the trial judge’s ruling that there was a lesser and included offense. In the instant case, the trial judge did not find a specific offense, but left that determination for the appellate court. Until recently, the Supreme Court in criminal cases remanded cases with instructions to discharge the defendant when the evidence did not support a conviction. In State v. Byrd, 385 So.2d 248 (La.1980), the court found that discharge of the defendant is neither necessary nor proper when the evidence does support a conviction on a lesser and included offense which is a legislatively authorized responsive verdict. We see no reason why the rationale and justification used in Byrd should not apply to juvenile cases on appeal.

The question now is whether or not there is a lesser and included offense to accessory after the fact. We find that there is not. Accessory after the fact is not listed in La.Code Crim.P. art. 814, the article on particular responsive verdicts. When a crime is not listed there, La.Code Crim.P. art. 815 is applicable. State in Interest of Gibson, supra.

That article reads as follows:

“In all cases not provided for in Article 814, the following verdicts are responsive:
(1) Guilty;
(2) Guilty of a lesser and included grade of the offense even though the offense charged is a felony, and the lesser offense a misdemeanor; or
(3) Not Guilty.”

In State v. Stewart, 292 So.2d 677 (La.1974), the court said, “A lesser included offense is one composed of some, but not all, of the elements of the greater crime, and which does not have any element not included in the greater offense.”

The trial judge suggested that Donnell may have been a principal or co-conspirator in the crime of simple robbery. Both of these possibilities have elements which are not present in the crime of accessory after the fact. A principal must either directly participate or aid and abet in the commission or directly or indirectly counsel or procure another to commit the crime. These are acts which by definition must be done before the commission of the crime. They are not fact to be considered in the crime of accessory after the fact. Criminal conspiracy requires some agreement or combination for the purpose of committing a crime. Again, the essence of conspiracy is the planning beforehand of the crime, a factor not relevant to the crime of accessory after the fact.

Though there may have been evidence showing Donnell to have been a principal or a co-conspirator or even to show guilt of compounding a felony and receiving stolen property, Donnell cannot be convicted of those crimes because they possess elements not essential to the crime of accessory after the fact.

The constitutional implications of imposing a verdict of a lesser offense, whether by the trial court or the appellate court, when the evidence cannot sustain the offense charged in the petition can be profound. An accused has a right to be informed of the nature and cause of the accusation against him. La.Const.art. 1, § 13. The defendant must have sufficient notice of the crime charged. We note that the petition in Donnell’s case alleged only that he committed the crime of accessory after the fact (and violated his parole). The State alleged no facts showing other crimes, so there was no notice to prepare him to defend against other possible charges having different elements from the charge in the petition.

For the above and foregoing reasons, the adjudication of Donned Pigott as a delinquent based on the commission of a delinquent act alleged in the petition must be reversed and a judgment of acquittal entered.

Donnell Pigott was on probation at the time of the incident in question. There were several conditions of probation, one of which was that he obey all federal, state, and local laws or ordinances. Our opinion does not preclude a proceeding to revoke this juvenile’s probation on grounds other than being an accessory after the fact to simple robbery. Such a proceeding, however, presupposes adequate and proper notice and must be contradictory. See State in Interest of Wright, 387 So.2d 75 (La.App. 4th Cir. 1980), remanded for computation of sentence; otherwise writ denied, 391 So.2d 456 (La.1980); State v. Davis, 375 So.2d 69 (La.1979).

REVERSED.

      . State v. Mitchell, 337 So.2d 1189 (La.1976).

      . See La.Code Juv.P. arts. 91-93.


source: Caselaw Access Project

author: WATKINS, Judge.

license: Public Domain

text:
    Clifford G. DRESSEL, Diane Grizzaffi Dressel, Sam H. Grizzaffi, Sr., and Eugenia Domono Grizzaffi v. Roland R. KIDD.
    No. 15082.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.

      James R. McClelland, Aycock, Horne, Caldwell, Coleman & Duncan, Franklin, for plaintiffs-appellees.
    Edward J. Milligan, Jr., Lafayette, for defendant-appellant.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This case involves a motion to dismiss filed by plaintiffs-appellees after defendant-appellant paid the amount of the judgment rendered against him.

Plaintiffs obtained a money judgment on July 17, 1981. Defendant moved for and was granted a suspensive appeal. However, no appeal bond was filed. The appeal thus was rendered devolutive. Succession of Buvens, 373 So.2d 750 (La.App.3d Cir. 1979); Cox v. Southern Colonial Investment, Inc., 393 So.2d 146 (La.App. 1st Cir. 1980).

The judgment amount was paid by defendant, as is stated in the joint affidavit of plaintiffs which is annexed to their motion to dismiss. The date the payment was made is not given in the affidavit. However, the affidavit recites the judgment was cancelled on January 14, 1982. The date of payment, we gather from the tenor of plaintiffs’ brief on motion to dismiss, was after the date the appeal order was signed.

LSA-C.C.P. art. 2085 reads as follows:

“An appeal cannot be. taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him. Confession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment.”

Thus, a judgment is considered to have been acquiesced in if the acquiescence was voluntary and unconditional.

Appeals are favored in law, as we noted in Charles C. Cloy General Contractors, Inc. v. DiVincenti Brothers, Inc., 308 So.2d 493 (La.App. 1st Cir. 1974). In that case, we held that for a devolutive appeal to be dismissed for acquiescence by payment it must be shown that appellant manifested an intent to abandon the appeal. Further, burden to show intent to abandon rests upon the party alleging abandonment. If the rule were otherwise, the scheme of the devolutive appeal would be destroyed, as voluntary payment of a judgment, made pursuant to the nature of a devolutive appeal, could automatically cause the appeal to fail, even though there were no intention to abandon the appeal.

Here no intent of appellant to abandon the appeal has been shown. Thus, the appeal was not abandoned, there having been no voluntary acquiescence in the judgment of api>ellant.

MOTION TO DISMISS DENIED.


author: ELLIS, Judge.

text:
    RIVER CITIES CONSTRUCTION COMPANY, INC., et al. v. BARNARD & BURK, INC.
    No. 82-CW-0080.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    John S. White, Jr., Baton Rouge, for River Cities Const. Co. and J. King Woolf, Jr.
    Ray C. Dawson, Baton Rouge, for Ohio Cas. Ins. Co.
    Boolus J. Boohaker, Baton Rouge, for Louisiana Nat. Bank.

      Before ELLIS, PONDER and SAVOIE, JJ.
   ELLIS, Judge.

On the day of the trial herein defendant Barnard & Burk, Inc., filed an exception of no right of action as to River Cities Construction Company, Inc., based on a certificate of the Secretary of State that the “Articles of Incorporation and the Corporate Franchise of River Cities Construction Co., Inc., are revoked, and the authority of River Cities Construction Co., Inc. to do business in this State has ceased, effective January 27, 1982.”

After an evidentiary hearing, the exception was overruled, and Barnard & Burk, Inc. applied to this court for a writ of certiorari to review the correctness of that determination. We issued an alternative writ of certiorari, and the trial judge having elected the alternative, the matter is now before us for decision.

R.S. 12:163 provides, in part, as follows: “A. Where a corporation has failed to designate and maintain a registered office, or to designate and maintain a registered agent pursuant to the provisions of R.S. 12:104, for a period of ninety consecutive days, or where a corporation has failed to file an annual report for three consecutive years, according to the records of the secretary of state, the secretary of state is authorized to revoke the articles of incorporation and franchise of such corporation after certifying that no annual report has been filed in his office during three consecutive years.”
“C. In any case where the secretary of state revokes the articles of incorporation and the corporate franchise, as authorized in Subsection A of this Section, the secretary of state shall, without charge, record notice of such revocation in the conveyance records and the corporations registry of the office of the clerk of court in the parish where the corporation maintains its registered office and, in the parish of Orleans, such notice shall be recorded in the office of the recorder of mortgages and register of conveyances for said parish.
“In addition, the secretary of state shall cause notice of such revocation to be published in the official journal of the state of Louisiana.
“D. At least thirty days prior to revoking the articles of incorporation and the corporate franchise, as authorized by Subsection A of this Section, the secretary of state shall give notice to the affected corporation of his intention to revoke the articles of incorporation and the corporate franchise by directing notice of such intention to the last designated registered agent of such corporation, as shown on the records of his office. Such notice shall be in writing and sent to said registered agent by certified United States Mail at said agent’s last known address.”

Joyce Breaux, director of the corporation division of the office of the Secretary of State, testified that the records of that office showed that River Cities had not filed an annual report since 1976, and had not appointed an agent for service of process.

The records placed in evidence indicate that the corporation’s charter was filed in the office of the Secretary of State on May 25, 1973. The articles were amended on March 2, 1977, to increase the authorized stock. On May 4, 1977, there was a report filed changing the corporation’s registered office address and its registered agents. The new office address was 1550 Steele Boulevard, Baton Rouge. The agents for service were R. Boatner Howell, Jr., Martin C. Schroeder, Jr., and J. Michael Cutshaw, 329 St. Ferdinand Street, Baton Rouge. On June 27, 1978, the registered office was changed to 329 St. Ferdinand Street, Baton Rouge, and the registered agent to Howell, Schroeder and Cutshaw, Ltd. (A Professional Corporation). On June 1, 1979, the agents for service, Howell, Schroeder and Cutshaw, Ltd., resigned, and no successor agents have been appointed. The last annual report was filed in December, 1976.

Mrs. Breaux testified that the notice required by. R.S. 12:163(D) had been mailed to River Cities on November 29, 1981, as part of a bulk mailing of 44,000 such notices done by the department’s computer center. The notice was directed to the last address of the registered office, since the agents for service of process had resigned. She did not have a copy of the notice letter. She further testified that many return receipts had been received, but that they were not in any kind of order. She was therefore unable to produce a return receipt.

River Cities’ ' first argument against the exception is that it is, in fact, an objection to procedural capacity rather than to the right of action, and therefore should have been raised by the dilatory exception. Since that exception was not filed before defendant’s answer, it is argued that the exception is waived. We disagree. When a corporation’s charter is revoked, it ceases to exist as a legal entity. It is not the capacity to sue but the legal existence of the corporation which is being challenged by the exception, and the peremptory exception is the proper vehicle for such a challenge. Articles 923, 927, Code of Civil Procedure.

River Cities next argues that the trial judge correctly overruled the exception of no right of action because the record does not affirmatively show that the Secretary of State properly fulfilled all of the requirements of R.S. 12:163, supra. The effect of Mrs. Breaux’s testimony is that the requirements of the law were met, but she was unable to testify that she had personally verified the procedures followed relative to River Cities. We find that the trial judge improperly placed the burden of proof on the Secretary of State. It is settled law that there is a presumption in favor of the legality and regularity of the acts of public officials. The burden of proof therefore falls on those who attack such acts to show that they were not carried out in accordance with law. There is no such evidence in this case. See Vaughan v. Dowling, 243 La. 390, 144 So.2d 371 (1962); Hampton v. Drew, 145 La. 374, 82 So. 375 (1919).

We hold that the certificate of revocation issued by the Secretary of State is presumptive evidence that the charter of River Cities has been properly revoked and that there is no affirmative evidence showing that the Secretary failed to comply with the provisions of R.S. 12:163, supra. We therefore find that the exception should have been maintained.

R.S. 12:163 makes no provision for disposition of actions by or against a corporation the charter of which has been revoked; nor does it provide for liquidation of such a corporation having assets and liabilities or engaged in the operation of a business. However, R.S. 12:143(A)(8) provides that a court may entertain a proceeding for involuntary dissolution of a corporation when it appears that the corporation’s franchise has been annulled, vacated or forfeited under the provisions of R.S. 12:163. Although it appears that R.S. 12:143(A)(8) is referring to R.S. 12:163 as it was before amended to its present form, we think it reasonable to conclude that the legislature intended the same procedure to apply to revocations under the present law.

It is clear that actions by or against a dissolved corporation do not abate, even after dissolution. R.S. 12:148(C). We can not, therefore, dismiss the suit filed by River Cities, even though the corporation no longer enjoys legal existence. Rather, we must remand the case to the district court for the substitution of a proper legal successor to the corporation in accordance with law.

The writ of certiorari issued herein is therefore made peremptory, and the exception of no right of action is maintained. A delay of 60 days from the date this judgment becomes final is granted for the qualification of a proper legal successor to River Cities Construction Co., Inc. and his substitution as a party plaintiff herein in accordance with law. In default of such proper qualification and substitution, within the time specified, the suit of River Cities Construction Co., Inc. will be dismissed. All costs of the prosecution of this writ shall be borne by plaintiff. All other costs shall await final disposition of this suit on its merits.

Writ peremptory, with order.


author: COVINGTON, Judge.

text:
    William DUNCKELMAN v. T. BAKER SMITH AND SONS, INC., et al.
    No. 82 CA 0116.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Herbert W. Barnes, Houma, for plaintiff and appellant.
    Philip J. McMahon, Houma, for defendants and appellees.
    Before COVINGTON, COLE and WATKINS, JJ.
   ON RULE TO SHOW CAUSE

COVINGTON, Judge.

This court, ex proprio motu, on March 3, 1982, directed the parties to show cause why the appeal, taken by plaintiff, should not be dismissed as having not been filed timely.

The record shows that:

1. On July 10, 1981, the trial having been concluded, the matter was taken under advisement.
2. On November 12, 1981, the judge handed down written “Reasons for Judgment”, which were filed on November 13, 1981. The pertinent portions thereof read “The Court therefore dismisses the Plaintiff’s case with prejudice at Plaintiff’s cost. Counsel are directed to prepare a judgment consistent with these reasons”.
3. On November 23, 1981, notice of reasons for judgment was mailed to all counsel.
4. On December 18, 1981, on petition of Mr. Dunckelman, an order of devolu-tive appeal was signed by the judge, returnable to this court on February 16, 1981. The petition and order was stamped “Filed” by the Clerk of Court on December 22, 1981.
5. On December 23, 1981, notice of appeal was given, stating that on December 16 [sic], 1981, an appeal was granted from the judgment of November 23, 1981.

Article 1911 of our Code of Civil Procedure, as amended in 1979, reads:

“Except as otherwise provided by law, every final judgment shall be signed by the judge. For the purpose of an appeal as provided in Article 2083, no appeal may be taken from a final judgment until the requirement of this Article has been fulfilled.”

There was no signed judgment obtained prior to the signing and filing of the petition and order of appeal.

Reasons for judgment are not appealable. The judge had not signed anything even purporting to be a judgment prior to the time that the order of appeal was signed and filed. Therefore, the premature order of appeal was a nullity. Schiro v. Viola, 398 So.2d 1294 (La.App. 1 Cir. 1981).

Accordingly, the appeal of William Dunckelman is dismissed at his cost.

APPEAL DISMISSED..


author: CARTER, Judge:

text:
    Connie W. BOYD v. Alva R. THOMAS.
    No. 82 CA 0126.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    David C. Kimmel, Baton Rouge, for plaintiff-appellant Connie W. Boyd.
    G. Steven Duplechain, Baton Rouge, for defendant-appellee Alva R. Thomas.
    Before LEAR, CARTER and CHIAS-SON, JJ.
   CARTER, Judge:

This Court issued a rule ex proprio motu to show cause why this appeal should not be dismissed as untimely filed.

The appeal in this case is from a judgment sustaining an exception of no cause of action and dismissing appellant’s suit to make an Arkansas divorce decree executo-ry, to increase child support, and for child support arrearages plus attorney fees. Arguments were heard on this exception on August 6, 1981.

The trial court took the exception under advisement. On September 22, 1981, the trial court rendered judgment sustaining the exception of no cause of action and dismissed the suit. On October 22, 1981, the formal judgment was signed and filed. On December 23, 1981, a motion for devolu-tive appeal was filed and subsequently signed on December 28, 1981. No notice of judgment was served on, or mailed to, appellant or her counsel.

La.Code Civ.P. art. 1913 provides in pertinent part as follows:

“Except as otherwise provided by Article 3307, when a case has been taken under advisement by the court notice of the signing of a final judgment therein shall be mailed by the clerk of court of the parish where the case was tried to counsel of record for each party, and to each party not represented by counsel.”

Article 1974 of the La.Code of Civil Procedure provides as follows:

“The delay for applying for a new trial shall be seven days, exclusive of legal holidays. Except as otherwise provided in the second paragraph hereof, this delay commences to run on the day after the judgment was signed.
“When notice of the judgment is required under Article 1913, the delays for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913.”

Both La.Code Civ.P. arts. 3942 and 2087 provide that the appeal delays commence to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913. Notice of judgment was required in the instant case, but no notice of judgment was ever mailed or served on appellant or her counsel. Since notice was required but was never sent, the appeal delays never began to run, and the appeal was timely filed. See e.g. Laiche v. Laiche, 231 So.2d 647 (La.App. 1st Cir. 1969), writ denied, 256 La. 80, 235 So.2d 101, (1970).

The rule issued herein is therefore recalled as improvidently issued. Costs will be assessed on final disposition of the case.

RULE RECALLED.

      . Article 3942 reads as follows:
      “An appeal from a judgment granting or refusing an annulment of marriage, a separation from bed and board, or a divorce can be taken only within thirty days from the applicable date provided in Article 2087(1) — (3).
      “Such an appeal shall suspend the execution of the judgment in so far as the judgment relates to the annulment, separation, or divorce.”

      . Article 2087 reads as follows:
      “Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an ap-pealable order or judgment may be taken within sixty days of:
      “(1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
      “(2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such- refusal under Article 1914; or
      “(3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.
      “When a devolutive appeal has been taken timely, an appellee who seeks to have the judgment appealed from modified, revised, or reversed as to any party may take a devolutive appeal therefrom within the delays allowed in the first Paragraph of this Article or within ten days of the mailing by the clerk of the notice of the first devolutive appeal in the case, whichever is later.”


author: SAVOIE, Judge.

text:
    Wilbur C. LEWIS v. FIRST STATE BANK & TRUST CO.
    No. 82 CA 0129.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.

      Edwin R. Woodman, Jr., Baton Rouge, for plaintiff.
    Charles M. Cassidy, Franklinton, for defendant.
    Before ELLIS, PONDER and SAVOIE, JJ.
   SAVOIE, Judge.

ON RULE TO SHOW CAUSE

This matter arises out of a Show Cause Order issued by this Court, ex proprio motu, ordering Wilbur C. Lewis to show cause why the appeal should not be dismissed. The reason for the dismissal is that the appeal was not timely filed.

The question here is whether an obvious clerical error in the date on a judgment will have the effect of voiding that judgment so that delays for taking an appeal therefrom do not begin to run until the error has been corrected.

A final judgment was signed in this case on September 14, 1981, but the document was erroneously dated September 14, 1980.. Appellant filed a “Motion to Correct Judgment” to reflect the correct date, and this was signed by the trial judge on October 8, 1981. An appeal was filed on December 10, 1981, which would be timely if the 60-day delay provided for by Code of Civil Procedure Article 2087 is counted from October 8, 1981, but which is fatally late if counted from September 14, 1981, when the original judgment was signed.

Appellant argues that, on the face of it, delays for taking an appeal from the original judgment had already expired months before he received notice of it, so that he could not file his appeal until he had had the judgment amended to show its correct date.

In Goodwin v. Gulledge, 391 So.2d 883 (La.App. 3rd Cir. 1980), it was held that an amendment of a judgment to show the correct docket number corrected a mere clerical error and related back to the time of filing the original judgment so that, in a situation very similar to this one, the delays for appeal had run and the appeal was dismissed.

In Villaume v. Villaume, 363 So.2d 448 (La.1978), a child custody judgment giving visitation rights at the end of every month was altered, by consent of the parties, to reflect the judge’s intent, expressed orally from the bench, to give visitation at the end of every other month. It was held that this was a substantive change and delays, therefore, ran from the date of the amendment.

In Miciotto v. Cox, 335 So.2d 798 (La.App. 2nd Cir. 1976), a judgment was amended substituting the name of an insurance company for the words “its insured” and adding the name of an additional third party defendant inadvertently omitted from the earlier judgment. Delays were held to run from the date of the first judgment and a late appeal was dismissed.

Here, the amendment, changing only the year of judgment, was not substantive and, therefore, the original judgment is good. See, especially, the very old case of Lewis v. Worrell, 1 Gunby’s Dec. 99 (2nd Cir. 1885), which held:

“Where there is an obvious clerical error in writing a judgment, such as putting “1813” for “1873”, such error would not avoid such judgment but may be corrected by reference to the pleadings or any part of the record.”

The correction of an obvious clerical error, the year of judgment, is not a substantive change. The date of judgment is September 14, 1981. The appeal was not timely filed and is, therefore, dismissed.

Appellant is to pay all costs.

DISMISSED.


author: ELLIS, Judge:

text:
    Herman Neil YOUNG v. Tommie Holleman YOUNG.
    No. 82CA0132.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    C. Alan Lasseigne, Houma, for plaintiff and appellee.
    D. G. Brunson, Jonesboro, and Cleveland J. Marcel Jr., Houma, for defendant and appellant.
    Before ELLIS, PONDER and SAVOIE, JJ.
   ELLIS, Judge:

ON MOTION TO DISMISS

Judgment of divorce was signed in favor of plaintiff Herman Neil Young and against defendant Tommie Holleman Young on June 18, 1981, and notice of judgment mailed to defendant’s attorney on June 22, 1981. On July 15, 1981, after the seven-day delay provided in Article 1974 of the Code of Civil Procedure had elapsed, defendant filed an application for a new trial and moved for a suspensive appeal. The order for appeal was not signed at that time. The trial judge signed an order fixing a rule for a new trial for hearing on September 11, 1981, despite the fact that the application was not timely filed. This rule was continued without date on motion of defendant’s attorney, subsequently submitted on the record, and on October 1, 1981, apparently ex parte, a new trial was ordered. On October 7th, the court set a rule for a new trial of the original rule for a new trial. On October 22nd the October 1 judgment ordering a new trial was set aside, and the original rule for a new trial was set for a contradictory hearing. Finally, on November 25, 1981, judgment was rendered denying a new trial on the ground that the application was not timely filed.

On January 18, 1982, the trial judge signed the order appended to the motion for suspensive appeal which had been filed on July 15, 1981, fixing a bond of $5,000.00 for the appeal. The bond was filed on February 16, 1982.

Article 3942 of the Code of Civil Procedure provides:

“An appeal from a judgment granting or refusing an annulment of. marriage, a separation from bed and board, or a divorce can be taken only within thirty days from the applicable date provided in Article 2087(1) — (3).
“Such an appeal shall suspend "the execution of the judgment in so far as the judgment relates to the annulment, separation, or divorce.”

Any appeal from a judgment of separation, divorce or annulment suspends the execution of the judgment. When an appeal is taken under Article 3942, a sus-pensive appeal bond is not required, despite the suspensive nature of the appeal. Rather, the .procedures for a devolutive appeal are followed, under which no bond is required. Post v. Post, 376 So.2d 1275 (La. App. 2nd Cir. 1979); Article 2124, Code of Civil Procedure.

In this case, the motion for appeal was timely filed, under Article 3942, supra, although the order for appeal was not signed within the prescribed delay. In Traigle v. Gulf Coast Aluminum Corp., 399 So.2d 183 (La.1981), the Supreme Court held:

“When an appellant timely files an order of appeal with the clerk of court, he has delivered it to a public official who has a duty to obtain the judge’s signature thereon or sign it himself. When a timely filed order of appeal is not signed during the delay period, this is not a fault or defect imputable to the appellant. LSA-C.C.P. art. 2161 mandates that no appeal shall be dismissed unless the error or fault is imputable to the appellant. Therefore, no appeal shall be dismissed when the motion for appeal is filed timely but the order is not signed until after the delay has run.”

Applying the above rule to this case, we see that the proceedings surrounding the motion for a new trial are immaterial to the validity of the motion and order of appeal. The delay in signing is not imputable to the appellant, and the appeal must therefore be upheld.

The rule issued herein is therefore recalled, and the motion to dismiss is denied. All costs in connection with the motion shall be paid by plaintiff.

Rule recalled and motion denied.


author: CUTRER, Judge.

text:
    Susie Mae BRADLEY, Individually and as Administrator of the Estate of her Minor Children; Theresa Diane Bradley, Lashanna Deniese Bradley, Linda Gail Bradley, and John W. Bradley, III, Plaintiff-Appellant, v. Aurila F. HUNTER, et al., Defendants-Appellees.
    No. 8701.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.
    Writ Denied June 11, 1982.

      Brittain & Williams, R. Stuart Wright, Natchitoches, for plaintiff-appellant.
    Andrew S. Vallien, Natchitoches, for defendants-appellees.
    Before GUIDRY, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This is a wrongful death and survival suit arising out of the fatal shooting of J. W. Bradley.

The shooting death of J. W. Bradley (J. W.) took place at approximately 9:00 P.M., on May 14, 1980, in Campti, Louisiana. J. W. was shot by defendant, Aurila F. Hunter (Aurila), in front of the “Honeydripper Cafe” which is operated by Aurila and her mother, Ora Edwards (Ora), also named as a defendant in this suit.

Plaintiff, Susie Mae Bradley, “wife” of decedent, filed this suit on her own behalf and that of her four children seeking damages for the death of her “husband,” and the loss of the children’s father. J. W. is survived by four children, the last of which was born posthumously, named: Theresa Diane Bradley, Lashanna Deniese Bradley, Linda Gail Bradley, and John W. Bradley, III.

Counsel for defendants filed a dilatory exception of lack of procedural capacity which challenged the right of the children to sue as their mother had not been qualified as their natural tutrix and also a peremptory exception of no cause of action which challenged Susie Mae Darby’s (Bradley) right as a concubine to sue individually for the wrongful death of J. W. The trial judge overruled the dilatory exception as it had been filed subsequent to defendant’s answer; he sustained the peremptory exception as plaintiff admitted that she was not legally married to J. W. thus stating no cause of action for the wrongful death of J. W. Plaintiff’s suit, on behalf of J. W.’s four minor children, remains.

This is a non-jury trial and after plaintiff had presented her evidence, the trial court granted defendants’ motion for a directed verdict, dismissing plaintiff’s suit. Plaintiff appeals. We affirm.

The substantial issue on appeal is whether defendant, Aurila, was justified in shooting J. W. in self-defense.

Before evaluating the facts and law, to make a determination of the issue before us, we pause to observe that the motion to dismiss in this non-jury case was filed and granted at the close of plaintiff’s presentation of evidence. This proceeding is authorized by LSA-C.C.P. art. 1810(B), which reads as follows:

“B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.”

When a motion for a dismissal is filed under this provision, the proper standard to be applied by the trial court, in ruling upon the motion, differs from the standard to be used when a motion for a directed verdict is filed in a jury trial. In a non-jury trial, the trial judge, upon a motion under art. 1810(B) for a judgment of dismissal (upon completion of the plaintiff’s case), must weigh and evaluate all of the evidence presented up to that point in the trial and must grant dismissal if the plaintiff has not established proof by a preponderance of the evidence. Semien v. PPG Industries, Inc., 413 So.2d 956 (La.App. 3rd Cir. 1982); Murray v. Haspel-Kansas Investments, 395 So.2d 453 (La.App. 4th Cir. 1981).

FACTS

Aurila testified that J. W., a twenty-eight-year-old man, came into the “Honey-dripper” around 9:00 to 9:30 P.M., May 14, 1980, wanting to purchase a soft drink (“coke”). Aurila is sixty-five years old, not in particularly good health (she is under a doctor’s care), unmarried and lives with her eighty-two-year-old mother, Ora, who owns the cafe. Ora, a widow, also in poor health and under a doctor’s care, works in the cafe with Aurila. No one else is employed in the restaurant. The cafe sells food, a little beer and no hard liquor.

Aurila testified at trial that she has had trouble with J. W. on at least two prior occasions and told him not to come into the cafe. That night J. W. entered wanting his “coke” but Aurila refused to serve him. Ora offered J. W. the “coke” but he refused. J. W. began to threaten and curse Aurila who restrained herself despite his cursing the two old women. She told him to go home. He did not leave until he had finished cursing and threatening Aurila.

A Smith & Wesson Model 10 .38 caliber revolver was kept under the counter near the cash register. While J. W. remained in the store Aurila did not pick up the gun but she did so after he had left. J. W. walked out of the cafe cursing and threatening the women. After he had left, Ora went outside to see if J. W. had gone. Aurila went out onto the porch to see about her mother. As she stood on the porch, Aurila saw J. W. coming toward her, walking rapidly, as she said he had a tendency to do, with his arms flailing away, fists clenched, and cursing and threatening her. She then pulled the gun from her blouse pocket and told J. W. not to come to the cafe. She fired one warning shot (probably two, as three shots were fired but only one hit J. W.), and fired again whenever J. W. kept coming, walking fast, cursing and threatening Aurila. She fired from about thirty feet away; the bullet struck J. W. in the head, killing him.

Aurila testified that J. W. had threatened her two weeks before the incident in question, after she had refused to sell him some beer. She stated that he threatened to “get her” should she go outside to the mailbox. From that time until the incident in question, Aurila stated that she did not go to the mailbox for fear of J. W. She stated that she had known J. W. since he was a small child and knew of his reputation in the community. Aurila stated that she knew J. W. had previously shot a man in the back with a shotgun. Also, she saw him strike another person across the back with a crutch for refusing him a drink of wine. J. W.’s “wife” and aunt both stated that he had spent considerable periods of time in jail. Plaintiff stated that since they began living together in 1972 or 1973, he had spent over one-half of the time in prison. Deputy Dowden, an investigating officer, stated that he had known the decedent due to having received calls about him and his prior arrests. He further testified that J. W. was very belligerent toward the law enforcement officers; he had made threats to them and felt he was capable of carrying them out. His testimony in this regard is as follows:

“Q. Where did these occur?
“A. These were, as I said, in the past throughout my career and at times, I’ve picked up the subject.
“Q. Have you ever picked him up in the Campti area?
“A. Yes, sir.
“Q. Where in Campti?
“A. It’s been quite a few occasions. It would be hard to say. Mostly in the area around the Campti Short Stop.
“Q. And was he cooperative with you? Do you recall his attitude?
‘A. Very few occasions was he cooperative.
“Q. Okay. Now, how was he uncooperative?
“A. He was usually very belligerent towards officers.
“Q. Did he ever threaten you?
‘A. Yes, sir.
“Q. Okay. How did he threaten you?
“A. He made numerous threats throughout his conversation as to what he would do.
“Q. Do you feel that he was capable of carrying out these threats if he had the chance to do so?
“A. I would say so, in my opinion, yes, sir.”

As can be gleaned from the testimony presented by plaintiff, J. W. was considered to be less than a model citizen. He was known to have a quick temper and violent propensities. He was a young man of twenty-eight who had threatened, cursed and intimidated two old women aged sixty-five and eighty-two. At the time of the shooting J. W. was walking rapidly toward the two women, who were standing on their porch. He was cursing and throwing his arms about in a threatening manner. A warning both verbally and by a discharge of the gun failed to dissuade J. W. from his continued harassment of Aurila and Ora. Aurila fired again in fear of her and her mother’s safety, killing J. W. Aurila stated that she was really fearful for her and her mother’s safety at the time of the incident.

John Kirkendoll testified that he was about fifty yards away from the scene at the time of the shooting. He stated that at the time of the shooting, J. W. was standing in the middle of the highway. This testimony was not accepted by the trial court. Kirkendoll stated that he did not “run with” J. W. but was an “associate” of his. Deputy Dowden stated that Kirkendoll had been drinking at the time of the incident. The trial court committed no error in rejecting this testimony.

The law applicable to a case of this kind is clear and well settled. In the case of Roberts v. American Employers Ins. Co., Boston, Mass., 221 So.2d 550 (La.App. 3rd Cir. 1969), this court stated as follows:

“The privilege of self-defense in tort actions is now well recognized by our jurisprudence. Where a person reasonably believes he is threatened with bodily harm, he may use whatever force appears to be reasonably necessary to protect against the threatened injury. ... Of course, each case depends on its own facts, such as, for instance, the relative size, age and strength of the parties, their reputations for violence, who was the aggressor, the degree of physical harm reasonably feared and the presence or absence of weapons.” (Citations omitted.)

In summary, the trial judge found decedent, J. W. Bradley, to be a man “of a pugnacious and aggressive nature, with a long record, ever since he had been an adult, and perhaps even before, a long rec ord of violence, which brought him into contact with the law.” The trial judge pointed out that J. W. had spent about four of the last nine years in prison. J. W. had been warned on prior occasions to stay out of the “Honeydripper Cafe,” yet he refused; he entered the cafe that fateful night cursing and threatening the two elderly women who operated it. He refused to leave, despite their request, until he had sufficiently cursed them. Aurila took the gun with her when she went onto the porch to see about her mother who had gone out to see if J. W. had left.

“Then, with the passage of some period of time, here he comes back again, rushing at her with his fists bailed up and walking at her and threatening her, while she stood on her own porch. She warned him. Her testimony was that she told him, ‘Go away.' She fired a warning shot. Even Mr. Kirkendoll, who was cold sober, according to his testimony, testified that the first shot did not hit Bradley. And his testimony was that Bradley was not hit and said something to her, or something of that nature. But, this didn’t slow him down. He kept on coming at her. The evidence, as a whole, indicates to me that the decedent made Mrs. Hunter shoot him. And the finding of the Court is that this was a case of justifiable self-defense and the motion for the directed verdict is granted in favor of the defendant. The case is dismissed.”

From our perusal of the record, we conclude that the trial court was correct in finding that Aurila acted in self-defense.

Plaintiff cites the case of Brasseaux v. Girouard, 269 So.2d 590 (La.App. 3rd Cir. 1972), writ den., 271 So.2d 262 (La.1973), as a basis for the contention that Aurila did not shoot in self-defense. We disagree. In Brasseaux, self-defense was disallowed. It is, however, clearly distinguishable from the case at hand.

In Brasseaux, the plaintiff and defendant were involved in a boundary dispute. On the day in question, during daylight hours, plaintiff and defendant each drove their vehicles to an open pasture. A fence separated the parties. Accompanying defendant in his pickup truck were four men; defendant’s brother-in-law, a son-in-law and two nephews. Brasseaux was accompanied by one person who remained in the vehicle during the incident. Defendant got out of his truck with a shotgun and stood behind his truck as Brasseaux walked from his vehicle toward the fence. When Brasseaux was near the fence, defendant shot him while he was thirty-five feet away and had made no effort to cross the fence. The court observed as follows:

“.. . Girouard’s position behind the truck near four relatives and armed with an automatic shotgun was ample protection from Brasseaux who was at least 35 feet away, alone and not making an attempt to cross the fence. To the argument that Girouard feared that Bras-seaux’s hidden hand concealed a weapon, we state that Girouard had the drop on Brasseaux and could have readily ascertained that Brasseaux was unarmed. ...”

The court concluded that:

“... We do not feel that under the circumstances presented here a reasonable person would or could have believed in good faith that it was necessary for him to shoot plaintiff in self defense.”

In the case at hand, Aurila and her mother did not have the protection of four men, the fence or truck. Under the circumstances of this case, Aurila, as a reasonable person, could have believed in good faith that it was necessary for her to shoot J. W. to prevent bodily harm to her and/or her mother.

The trial judge, after hearing plaintiff’s testimony and proof, ruled that she had not proved her case by a preponderance of the evidence. As a factual determination we cannot reverse the trial court’s ruling absent manifest error or the decision being clearly wrong. No such error appears in this record.

For the reasons set forth, the judgment of the trial court is affirmed. The plaintiff-appellant is to pay costs of this appeal.

AFFIRMED.

      . Susie Mae Bradley was not legally married to J. W. Bradley during their relationship which was one of concubinage. However, all children born of that relationship are the natural children of J. W. Bradley and Susie Mae Darby (Bradley).

      . This motion should be referred to as a motion to dismiss.

      . In deciding a motion for a directed verdict and dismissal in a jury trial, the trial court must make a determination by applying the rule of whether the plaintiff’s evidence is so insubstantial that reasonable men could not have arrived at a verdict contrary to that entered by the trial court. Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir. 1979); LSA-C. C.P. art. 1810(A).

      . Ora did not testify at trial due to bad health.


author: STOKER, Judge.

text:
    Bobbye T. FOX, et al., Plaintiffs-Appellants, v. COMMERCIAL UNION INSURANCE CO., et al., Defendants-Appellees.
    No. 8643.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.
    See also 396 So.2d 543.
    Bernard Kramer of Kramer & Hammill, Alexandria, for plaintiffs-appellants.
    Trimble & Associates, Lon P. Wilson, Alexandria, for defendants-appellees.
    Before GUIDRY, CUTRER and STOKER> JJ
   STOKER, Judge.

The sole issue in this case is whether a party whose decedent was killed while riding in a vehicle in the course and scope of his employment, and is thus barred under LSA-R.S. 23:1032 from recovering damages from the vehicle’s insurer under the liability provisions of the policy, may nevertheless recover damages under the uninsured motorist provisions of the same policy. This issue was raised in a motion for summary judgment at the trial of the case before us, and the trial court granted the motion, dismissing the action against the insurer. We affirm.

FACTS

James R. Fox (Fox) was killed while riding in a pickup truck driven by a co-employee, George M. Burns (Burns), when the truck was struck by a train. The truck was owned by the employer of Fox and Burns, road contractor J. W. McDonald, and both employees were returning to Glenmora, Louisiana, from a job in Cameron Parish. Suit was filed for recovery in tort on behalf of Fox’s wife and children, Bobbye T. Fox, Michael Fox, and Kim Fox Crooks, against Burns and the insurer of the pickup truck, Commercial Union Insurance Company (Commercial Union).

Commercial Union and Burns filed a motion for summary judgment on the grounds that plaintiffs’ sole remedy was in workmen’s compensation. Burns and Commercial Union also filed supporting affidavits with the motion stating facts to support the conclusion that Fox was acting in the course and scope of his employment when he was killed and that Burns was a co-employee of Fox also acting in the course and scope of his employment at the time of the accident. On this basis, the trial court granted the motion for summary judgment, and this court affirmed the trial court’s decision. 396 So.2d 543 (La.App. 3rd Cir. 1981).

Plaintiffs subsequently filed an amending and supplemental petition reasserting their claim for damages from Commercial Union and again alleging Burns’s negligence. Plaintiffs also filed a second amending and supplemental petition asserting that Commercial Union had issued uninsured motorist insurance covering the vehicle involved in the wreck and that Burns was an uninsured motorist at the time of the accident. The theory of recovery upon which plaintiffs relied in this second supplemental petition may be summarized as follows: Fox was insured by Commercial Union Insurance Company while riding in the insured vehicle. Fox’s wife and children were precluded from recovery in tort from the negligent driver, George Burns, because of the co-employee immunity under workmen’s compensation law. However, recovery is possible from Commercial Union Insurance Company because of their contractual obligations under the uninsured motorist provisions of their policy covering the owner or driver of the insured vehicle.

In response to this new argument made on plaintiff’s behalf Commercial Union filed a new motion for summary judgment which is the subject of this appeal. The trial court rejected plaintiffs’ arguments and granted the motion for summary judgment. The correctness of the trial court’s ruling sustaining this particular motion for summary judgment is now before us on appeal.

TRIAL COURT’S JUDGMENT

Plaintiffs assert the same basic arguments before this court that they asserted before the trial court. The trial court based its reasons for judgment granting the motion for summary judgment on holdings of this court enunciated in Nall v. State Farm Automobile Insurance Company, 398 So.2d 201 (La.App. 3rd Cir. 1981), writ granted, 400 So.2d 1390 (La.1981), affirmed, 406 So.2d 216 (La.1981).

While the trial court assigned cogent reasons for its holding based on Nall, we find later jurisprudence more pertinent to the issue before us. Therefore, we pre-termit any discussion of the applicability of Nall. We base our holding instead on a recent opinion by this court which was rendered after the trial court’s judgment. This court in Carlisle v. State Department of Transportation and Development, 400 So.2d 284 (La.App. 3rd Cir. 1981), writ denied, 404 So.2d 1256 (La.1981) stated:

“In 1976, the Louisiana Worker’s Compensation Law, LSA-R.S. 23:1032, was amended, extending tort immunity to the fellow employee of the injured worker. That, in pertinent part, reads as follows:
‘The rights and remedies herein granted to an employee or his dependent on account of an injury, or compen-sable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease
“In the case of Kelley v. M and M Dodge, Inc., 370 So.2d 1267 (La.App. 3rd Cir. 1979), writ denied, 374 So.2d 660 (1979), we held that an employer’s insurer was immune from suit in tort for work related injury just as is the employer. In doing so we relied in part on LSA-R.S. 23:1166 which provides expressly that where an injury falls within the ambit of the compensation scheme, compensation is the exclusive remedy against either the employer or the compensation insurer. We also stated therein that the existence of liability coverage for the employer does not create a cause of action in tort against either the employer or its insurer. The same is true of the existence of liability coverage for a fellow employee. Where applicable the exclusive remedy provisions of LSA-R.S. 23:1032 abolished the worker’s cause of action in tort. Green v. Liberty Mut. Ins. Co., 352 So.2d 366 (La.App. 4th Cir. 1977), writ ref’d, 354 So.2d 210 (1978).
“Consequently, the defense of tort immunity under the compensation statute is not personal to the immune party but can be invoked by his insurer sued under the direct action statute. Dandridge v. Fidelity & Casualty Co., 192 So. 887 (La.App. 2nd Cir. 1939). Under this reasoning, Carlisle would have no cause of action against Maryland, the liability insurer of Mrs. Beeson.
“This same reasoning applies to Car-lisle’s claim against his uninsured motorist carriers, U. S. F. & G. and Hartford. Uninsured motorist coverage is contingent upon there being liability by an uninsured or underinsured motorist. Since Carlisle has no cause of action in tort against Mrs. Beeson, no liability by Mrs. Beeson could arise. Thus, no cause of action exists against Carlisle’s uninsured or underinsured motorist carriers, U. S. F. & G. and Hartford.”

We base our holding on the fact that LSA-R.S. 23:1032 provides that the rights and remedies of an injured employee covered by workmen’s compensation are “. .. exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer ... or employee of such employer . .. ”. The language, “all other rights and remedies” is not limited to rights or remedies under liability insurance but applies with equal force in this case to delictual and contractual rights or remedies under uninsured motorist insurance. Thus, the fact that uninsured motorist coverage is considered to be a contractual remedy for some purposes is of no avail to the plaintiffs in this case.

Plaintiffs’ further arguments based on Gremillion v. State Farm Automobile Insurance Company, 302 So.2d 712 (La.App. 3rd Cir. 1974), writ denied, 305 So.2d 134 (La.1974) are also inapplicable to the present case. In Gremillion, interspousal immunity which was a procedural bar to the recovery of the wife from her husband for her damages caused by his negligence did not prevent the wife from recovering from her husband’s uninsured motorist carrier. This is so because a spouse’s defense of no right of action against the other spouse is personal to the spouse being sued and is not available to his insurer. Deshotel v. Traveler’s Indemnity Company, 257 La. 567, 243 So.2d 259 (La.1971). However, the bar against recovery from the insurer of a negligent worker who is immune from suit under workmen’s compensation law is a defense of no cause of action based on statutory law which is available to the insured. Carlisle v. State, Department of Transportation and Development, supra.

Therefore, since the plaintiffs’ sole cause of action for the death of James Fox is one for workmen’s compensation, the trial court’s granting of the motion for summary judgment in favor of Commercial Union Insurance Company and George Burns for failure of the plaintiffs’ petition to state a cause of action against them is correct. For the foregoing reasons, the judgment of the trial court is affirmed. The costs of this appeal are assessed to plaintiffs-appellants.

AFFIRMED.

      . This provision contains the exclusive remedy provisions of the Louisiana Workmen’s Compensation Law which is quoted in pertinent part later in this opinion.

      . Missouri Pacific Railroad Co., Texas & Pacific Railway Co., and The State of Louisiana, Through the Department of Transportation and Development, were also made defendants in this suit, as well as Charles R. Bailey and Terry Basco (the alleged engineer and conductor, respectively, of the train which hit the truck.) None of these defendants are involved in this appeal, but we note that the trial court rendered a judgment of partial dismissal as to the State of Louisiana, Through the Department of Transportation and Development.

      . The facts of the instant case are set out in greater detail in this earlier opinion.

      . The two supplemental petitions also reasserted plaintiffs’ claims against the original defendants, and added United States Fidelity and Guaranty Company, the Parish of Calcasieu, and Audubon Insurance Company as defendants. A third supplemental and amending petition made The Travelers Indemnity Company a defendant. None of these defendants are involved in this appeal.

      . See, for example, Booth v. Fireman’s Fund Insurance Company, 253 La. 521, 218 So.2d 580 (La.1968) wherein the uninsured motorist coverage was considered to be a right in contract so as to avoid the prescriptive period for tort actions.


author: GUIDRY, Judge.

text:
    Brenda Berard GUIDROZ, et al., Plaintiffs-Apellants, v. Donna TAUZIN, et al., Allstate Insurance Company, Defendants-Appellees.
    No. 8652.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.
    Dupuis & Mayers, Kenneth P. Mayers, Lafayette, for plaintiffs-appellants.
    Davidson, Meaux, Sonnier & Roy, John E. McElligott, Jr., Lafayette, for defendants-appellees.
    Before GUIDRY, CUTRER and STOKER, JJ.
   GUIDRY, Judge.

The sole issue to be resolved on this appeal is whether the plaintiff-insured is entitled to judgment against her own uninsured motorist carrier for legal interest from date of the judgment or from date of judicial demand.

Plaintiff filed suit against several defendants, including her own uninsured motorist carrier, Allstate Insurance Company, on April 10, 1979, seeking to recover damages resulting from injuries received in an automobile accident which occurred on April 15, 1978. The matter was tried to a jury which concluded that plaintiff, Brenda Guidroz, was entitled to judgment in the amount of $10,000.00. The tortfeasor being uninsured, judgment was rendered in plaintiff’s favor against her uninsured motorist carrier, Allstate Insurance Company. The trial judge signed a judgment casting Allstate Insurance Company, in the sum of $10,000.00, however, interest was ordered from date of judgment.

Plaintiff-appellant contends on appeal that the trial court erred in ordering the payment of judicial interest from date of judgment rather than from date of judicial demand.

The issue presented is resolved by determining what type of action plaintiff has vis-a-vis her uninsured motorist carrier, i.e., whether the action which she has instituted sounds in contract or in tort. On debts arising ex contractu interest is recoverable from the time such debts become due. LSA-C.C. Art. 1938; Calhoun v. Louisiana Materials Company, 206 So.2d 147 (La.App. 4th Cir. 1968), writ refused, 251 La. 1050, 208 So.2d 324 (1968); Teledyne Movible Offshore v. C & K Offshore, 376 So.2d 357 (La.App. 3rd Cir. 1979). On judgments ex delicto legal interest attaches from date of judicial demand. LSA-R.S. 13:4203.

In Booth v. Fireman’s Fund Insurance Company, 253 La. 521, 218 So.2d 580 (La. 1968) our Supreme Court, for purpose of deciding an issue of prescription, considered whether an action brought by an insured against his own uninsured motorist carrier was one in contract or tort. In concluding that the plaintiff’s cause of action arose ex contractu the court stated as follows:

“... We conclude that the intent of our uninsured motorist statute and the policy endorsement issued thereunder is to afford protection to the insured when they become the innocent victims of the negligence of uninsured motorists. The uninsured motorist provision closely resembles the policies of insurance which reimburse an insured for medical expenses or property damage resulting from an automobile accident. This action cannot be compared to that arising under our direct action statute by which suit may be brought directly against the insurer (in-demnifier) of the tort feasor without making the tort feasor a defendant. The uninsured motorist provision is not insurance or indemnification for the uninsured motorist, and the insurer does not stand in the shoes of the uninsured motorist who is the tort feasor.
.. . The obligation of the uninsured motorist is not the obligation of the insurer under its insurance contract, and the tort feasor’s right to claim extinguishment of the tort obligation through a plea of prescription does not inure to the benefit of the insurer. The ex delicto prescriptive period is personal to the tort feasor and those who derive their status from him. As previously noted, neither the law nor the policy intends to provide insurance for the uninsured tort feasor. Both the statute and the policy require the insured to act in a number of ways to preserve the tort feasor’s obligation for the benefit of the insurer and therefore reflect the inimical interests of the insurer and the tort feasor. Sharing no interest in common and having no contractual or other relationship with the tort feasor, the insurer cannot urge the defense of one year’s prescription.
Plaintiffs’ action against their own insurer under this policy provision is ex con-tractu and subject only to a plea of prescription of 10 years. ” (Footnotes omitted)

In Powell v. Allstate Insurance Company, 233 So.2d 38 (La.App. 2nd Cir. 1970), our brethren of the Second Circuit, relying upon Booth, supra, concluded that the uninsured motorist carrier was liable to the plaintiff only in contract and was thus not liable in solido with the tortfeasor defendants. The same conclusion was reached by that court in the more recent case of Hoefly v. Government Employees Insurance Company, et al., 403 So.2d 853 (La.App. 2d Cir. 1981). We find the cited cases to be disposi-tive of the issue presented. Although the pivotal issue in Booth was whether the suit was in tort or contract for purposes of determining prescription, we can perceive of no cogent reason why a different result should flow where the issue presented concerns the applicable date from which interest is recoverable from the judgment debt- or. Therefore, we conclude that plaintiff’s action against defendant, being one in contract, the trial court properly allowed interest only from date of judgment. The insurance contract issued by Allstate to plaintiff provides that the company will pay:

“all sums which the insured ... shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle... ”.

Allstate’s obligation to perform, under the terms of its contract, did not arise until there was a legal determination of the liability of the uninsured motorist and the extent of plaintiff’s damages.

We recognize that our brethren of the First Circuit, relying on O’Donnell v. Fidelity General Insurance Company, 344 So.2d 91 (La.App. 2nd Cir. 1977), decided otherwise in Hebert v. Ordoyne, 388 So.2d 407 (La.App. 1st Cir. 1980). O’Donnell furnishes no support for the conclusion reached in Hebert because a reading of the O’Donnell case reflects that the plaintiff in that suit was seeking damages from the primary liability carrier and the excess liability carrier of the tortfeasor. In any event, we respectfully disagree with the decision in Hebert, to the extent that it conflicts with the conclusion which we reach in this case.

For the above and foregoing reasons the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

      . Appellee indicates in brief that the judgment has been satisfied by Allstate Insurance Company and a release executed by plaintiff, Brenda B. Guidroz, reserving unto the latter her right to appeal the issue presented herein.

      . LSA-C.C. Art. 1938 as last amended in 1981 provides:
      “All debts shall bear interest at the rate of 12% per annum from the time they become due, unless otherwise stipulated.”

      . LSA-R.S. 13:4203 provides as follows:
      “Legal interest shall attach from date of judicial demand, on all judgments, sounding in damages, ‘ex delicto’, which may be rendered by any of the courts.”

      .By Act 444 of 1977 (LSA-R.S. 9:5629) the time allowed for institution of suit against one’s uninsured motorist carrier was legislatively shortened to two years reckoning from the date of the accident in which the damage was sustained.


author: LABORDE, Judge.

text:
    Delbert TOTTY, Plaintiff-Appellant, v. DRAVO CORPORATION, et al., Defendants-Appeilees.
    No. 8722.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1982.
    Edwins & Royer, Inc., Layne Royer, Baton Rouge, and Young & Burson, H. Kent Aguillard, Eunice, for plaintiff-appellant.
    Landry, Watkins & Bonin, Anne G. Stevens, New Iberia, for defendants-appellees.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   LABORDE, Judge.

In this suit for workmen’s compensation benefits, the trial court sustained defendants’ exception of prescription and dismissed plaintiff’s suit. Plaintiff appeals. We reverse.

The determinative issue on appeal is whether the filing of a compensation claim with the Illinois Industrial Commission, as required by Illinois law, interrupts the running of prescription in Louisiana. We hold that it does.

Delbert Totty filed suit seeking benefits as a result of a work-related back injury. The defendants are Totty’s employer, Dravo Corporation and Dravo’s compensation carrier, Liberty Mutual Insurance Company.

On January 20, 1979, plaintiff injured his back in an accident while working for Dra-vo at the Weeks Island Salt Dome in Weeks Island, Louisiana. Subsequent to the accident, plaintiff returned to his home state of Illinois where on March 19, 1979, he filed a claim with the Industrial Commission for the State of Illinois. Under that state’s law, claims for workmen’s compensation must first be filed with the Commission. Both Dravo and Liberty Mutual were notified of the filing of the claim with the Commission and appeared before it.

On March 11, 1981, approximately two years and two months post-accident, the present suit for compensation benefits was filed in Louisiana in Iberia Parish District Court. The trial court sustained defendants’ exception of prescription based on LSA-R.S. 23:1209 and LSA-R.S. 9:5801.

Plaintiff’s injury manifested itself on the date of the accident, January 20, 1979, therefore, suit for compensation benefits and medical expenses had to be filed within one year from January 20, 1979. Allen v. Milk Haulers, Inc., 278 So.2d 871 (La.App. 1st Cir. 1973); LSA-R.S. 23:1209, supra. Plaintiff filed the present suit on March 11, 1981. Thus, unless prescription has been suspended or interrupted the claim is prescribed.

Plaintiff argues that the filing of his compensation claim with the Illinois Industrial Commission on March 19, 1979, along with notice of the filing mailed or served shortly thereafter, both within one year from the date of the injury, interrupted the running of prescription. LSA-R.S. 23:1209; LSA-R.S. 9:5801.

Defendants argue that the filing of the claim with the Industrial Commission and notice of that filing are insufficient to interrupt prescription under LSA-R.S. 9:5801 because the claim was not a civil action and the Industrial Commission was not a court. In support of its argument, defendants quote from Ferguson v. Industrial Commission, 74 N.E.2d 539, 397 Ill. 348 (1947), wherein the Supreme Court of Illinois, in discussing the Industrial Commission, stated:

“... A claim for compensation, filed before the commission, is not an action at law, in chancery, or in a judicial proceeding. The commission, a creature of the statute, is not a court. It is an administrative body charged with the duty of administering the act under which it was created... . ”

Even though Illinois chooses to regard its Industrial Commission as an administrative body and not as a court, under the facts presented in the instant case and the purposes behind our prescription laws, we feel compelled to treat the claim as an action and the Commission as a court for purposes of determining whether prescription has been interrupted.

We begin by noting that the Illinois Workmen’s Compensation Act clothes the Industrial Commission with duties and functions similar to our District Courts here in Louisiana. For example the Commission has the power to administer oaths, subpoena and examine witnesses, issue subpoenas duces tecum, etc. It can also compel obedience of its orders by its power to hold the parties in contempt. The Commission also has the power to fix fees, including attorney’s fees, and to assess costs, much like our courts are empowered to do. The duties of the Commission include its responsibility, when hearing the claims before it, to determine disputed facts, judge credibility of witnesses,' and resolve conflicting testimony. These determinations may not be disturbed on review unless found to be against the manifest weight of the evidence, much like our system here in Louisiana. These are just a few of the functions of the Commission which we feel warrant our treating it as a court for purposes of LSA-R.S. 9:5801.

Further, our review of the entire record in the present case convinces us that the reasons for our Workmen’s Compensation statute requiring a claimant to file suit on his claim within one year are met here. Those reasons were explained in Harris v. Traders & General Ins. Co., 200 La. 445, 8 So.2d 289 (1942), as follows:

“* * * The purpose of the requirement that a suit be brought by the claimant within one year after the accident under the penalty of barring his recovery is of a three fold nature; (1) to enable the employer to determine when his potential liability for an accident would cease; (2) as a matter of public policy to prevent suits based on stale claims where the evidence might be destroyed or difficult to produce; (3) to fix a statute of repose giving rise to a conclusive presumption of waiver of his claim on the part of an employee where he fails to bring his suit within the fixed period.”

In the present case, these purposes were served by plaintiff’s filing within one year his compensation claim with the Commission accompanied by notice of its filing received by defendants also within the one year period. Thus, defendants were apprised within the one year period that plaintiff was pursuing his claim and could plan and act accordingly.

Other facts revealed by the record convince us that the trial court erred in sustaining defendants’ plea of prescription. For one, defendants, upon receiving notice of the claim, appeared before the Illinois Industrial Commission and argued its side of the claim. Also, counsel for defendants admitted at oral arguments that plaintiff’s claim before the Industrial Commission is subject to dismissal due to lack of jurisdiction and improper venue in Illinois. Should we find plaintiff’s claim prescribed in Louisiana, plaintiff, who did everything he reasonably could do to keep his claim alive, would be deprived of his day in court. Finally, our Workmen’s Compensation Act is to be liberally construed in favor of the claimant.

For all of these reasons, we hold that the filing of the workmen’s compensation claim with the Illinois Industrial Commission, along with notice thereof received by defendants, all within Louisiana’s one year prescriptive period, interrupted the running of prescription such that the present suit filed on March 11, 1981, was timely.

Accordingly, the judgment of the district court is reversed and set aside. It is now ordered that the plea of prescription herein filed by defendants is overruled and the case is remanded to the district court for further proceedings consistent with the views herein expressed. Defendants are to pay the costs to date, all other costs to await the final disposition of the case.

REVERSED AND REMANDED.

APPENDIX A

      .LSA-R.S. 23:1209, in full, provides:
      “In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of partial disability this limitation shall not take effect until three years from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.”

      . LSA-R.S. 9:5801, in full provides:
      “All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, including minors or interdicts, by the commencement of a civil action in a court of competent jurisdiction and in the proper venue. When the pleading presenting the judicial demand is filed in an incompetent court, or in an improper venue, prescription is interrupted as to the defendant served by the service of process.”

      . A copy of the Notice of Filing of Claim received by defendants is attached as Appendix A.


author: Before SCHOTT, GARRISION and BARRY, JJ.

text:
    Thorre G. TERJERSEN v. Mary Louise Yancey, Wife of Thorre G. TERJERSEN. In re Mary Louise Yancey, Wife of Thorre G. TERJERSEN.
    No. 13204.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 14, 1982.
    Terrence J. Lestelle, New Orleans, for relator.
    Richard J. Meunier, New Orleans, for respondent.
   Before SCHOTT, GARRISION and BARRY, JJ.

This is before us on application for supervisory writs by Mrs. Mary Louise Yancey Terjersen, defendant and plaintiff in recon-vention in a suit brought by her husband for a separation from bed and board. Mrs. Terjersen brought a rule against her husband for alimony pendente lite and for occupancy of the family residence pending the partition of the community property pursuant to LSA-R.S. 9:308. The trial court made this rule absolute awarding Mrs. Ter-jersen alimony pendente lite and occupancy of the family residence. Mr. Terjersen who is occupying the family residence obtained an order for a suspensive appeal from that part of the judgment awarding Mrs. Terjer-sen occupancy of the residence along with a devolutive appeal from the alimony aspect of the judgment. The issue is whether C.C.P. Art. 3943 prevents a suspensive appeal from that part of the judgment awarding occupancy of the residence to Mrs. Ter-jersen.

R.S. 9:308 was added to the Revised Statutes by Act 592 of 1981, and is as follows:

“After the filing of a petition for separation or divorce or in conjunction therewith, either spouse may petition for, and a court may award to one of the spouses, use and occupancy of the family residence pending the partition of the community property. In such cases, the court shall inquire into the relative economic status of the spouses and the needs of children, if any, and shall award the use and occupancy of the family residence to the spouse in accordance with the best interest of the family. The court shall consider the granting of the occupancy of the family home in awarding alimony or child support.”

C.C.P. Art. 3943 provides as follows:

“An appeal from a judgment awarding custody of a person or alimony can be taken only within the delay provided in Article 3942. Such an appeal shall not suspend the execution of the judgment in so far as the judgment relates to custody or alimony.”

R.S. 9:308 requires the judge to consider the granting of occupancy of the residence in awarding alimony. Thus, it follows that had the trial judge not awarded occupancy of the family residence to Mrs. Terjersen he would have awarded her a higher amount of alimony pendente lite in order for her to rent a suitable residence pending the suit.

The clear intent of C.C.P. Art. 3943 is to insure that the needy spouse shall be provided for during pendency of the appeal and may not be reduced to poverty by the simple expedient of the spouse having the means to support the other spouse taking a suspensive appeal. The intention of this article would be frustrated if the trial judge’s award of occupancy of the residence to the needy spouse along with an amount of alimony which does not contemplate her having to rent a residence could be suspended to the extent of depriving her of the family residence pending the appeal.

We conclude that the order for the sus-pensive appeal from that portion of the judgment awarding Mrs. Terjersen occupancy of the family residence pursuant to R.S. 9:308 was improvidently issued. We issue a peremptory writ and set aside the trial court’s order of February 11, 1982, granting a suspensive appeal insofar as the judgment directs Mr. Terjersen to relinquish occupancy of the family residence. The devolutive appeal from the judgment is maintained.


text:
    Joann Doucet FREEMAN, Plaintiff-Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, et al., Defendants-Appellees.
    No. 8770.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1982.
    Preston Aucoin and Gilbert Aucoin, Fusilier & Chapman, J. Wendel Fusilier, Ville Platte, for plaintiff-appellant.
    Davidson, Meaux, Sonnier & Roy, M. Candice Hattan, Edward Taulbee, IV, Lafayette, Guglielmo & Lopez, Peter Caviness, Opelousas, for defendants-appellees.
    Before GUIDRY, CUTRER and STOKER, JJ.
   STOKER, Judge.

For the reasons stated in the companion cases of Emma Williams Freeman, Inc., et al v. Insurance Company of North America, et al, 413 So.2d 692 (La.App. 3rd Cir. 1982), in which a separate decision is being rendered by us this date, the judgment of the district court in the present case dismissing plaintiff’s suit as against Martin E. Guillory is affirmed.

The accident out of which this suit grows is the same accident described in the companion case just cited. For the record we will state here the particular facts of this case, the alignment of parties, pertinent pleadings and procedural steps in the case. This action was brought by Joann Doucet Freeman against Martin E. Guillory, (Guil-lory), South Louisiana Contractors, Inc., (SOLOCO), and Insurance Company of North America. In her original petition Joann Doucet Freeman alleges that she “was the common-law wife of Jeff Freeman” and that he was killed on May 28, 1979, as a result of the negligence of Guillory which caused the accident described in the opinion in Emma Williams Freeman, Inc. et al v. Insurance Company of North America, supra. In a supplemental and amending petition filed on March 12, 1981, (Tr. 35) Joann Doucet Freeman made the following allegations which purport to set forth intentional torts which caused the accident of May 28, 1979:

1.
“That Paragraph (6) of her original petition be amended to read as follows:
6.
“The above described accident and assuming [sic] injury of petitioner and the resulting damages to him, were occasioned by the intentional acts of the defendant, MARTIN E. GUILLORY, and in that regard, petitioner itemizes the intentional acts of said defendant, specifically but not exclusively as follows:
a) By his intentional failure to maintain a proper look-out and desiring the accident to result because of his failure to maintain a proper look-out and his desiring or his substantial certainty that the occupants of the vehicle would be killed or injured;
,b) His intentional failure to maintain proper control of the vehicle in which plaintiff was riding and desiring the accident to result because of his failure to maintain proper control of the vehicle and either desiring or being substantially certain that the occupants would be injured or killed;
c) His intentional being inattentive and distracted and his desiring the accident to result because of his intentional inattentiveness or distraction and his desiring or the substantial certainty that the occupants of the vehicle would be injured or killed;
d) His intentional crossing the center line into the opposing lane and his desiring the accident to result because of the crossing of the center line into the opposing lane and his desiring the accident to result because of the crossing of the center line into the opposing lane and his desiring or his substantial certainty that the occupants of the vehicle would be either injured or killed;
e) His intentional failure to negotiate a curve and his desiring the accident to result because of his intentional failure to negotiate a curve and either desiring or being substantially certain that the occupants of the vehicle would be either injured or killed;
f) His driving at an excessive rate of speed at the time of the accident, which he either desired or was substantially certain that the occupants of the vehicle would be either killed or injured;
g) His intentional failure to do what he should have done and see what he should have seen in order to avoid this accident and such intentional failure to do or see what he should have, was actively desired or was substantially certain that the occupants of the vehicle would be either killed or injured.”

Joann Doucet Freeman joined with Jimmy Roy Bushnell in filing with this court after the appeal was lodged a joint motion to dismiss SOLOCO from her suit, and an order to that effect was signed on March 30, 1982. Considering the foregoing, this case of Joann Doucet Freeman is in the same procedural posture as that of Emma Williams Freeman, Ind., et al v. Insurance Company of North America, et al, supra.

Appellant Joann Doucet is assessed with the costs of this appeal.

AFFIRMED.


text:
    Jimmy Roy BUSHNELL, Plaintiff-Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, et al., Defendants-Appellees.
    No. 8771.
    Court of Appeal of Louisiana, Third Circuit.
    April 15, 1982.
    Preston Aucoin and Gilbert Aucoin, Fusilier & Chapman, J. Wendel Fusilier, Ville Platte, for plaintiff-appellant.
    Davidson, Meaux, Sonnier & Roy, M. Candice Hattan, Edward Taulbee, IV, Lafayette, Guglielmo & Lopez, Peter Caviness, Opelousas, for defendants-appellees.
    Before GUIDRY, CUTRER and STOKER, JJ.
   STOKER, Judge.

For the reasons stated in the companion cases of Emma Williams Freeman, Ind., et al v. Insurance Company of North America, et al, 413 So.2d 692 (La.App. 3rd Cir. 1982), in which a separate decision is being rendered by us this day, the judgment of the district court in the present case dismissing plaintiff’s suit as against Martin E. Guillory is affirmed.

As noted in the opinion relative to the case of Emma Williams Freeman, plaintiff-appellant Jimmy Roy Bushnell was a passenger in the truck driven by Martin E. Guillory owned by SOLOCO when it was involved in the accident on May 28, 1978. Bushnell filed a petition in tort against Guillory and Insurance Company of North America. Although we have not found in the record any pleading by which SOLOCO was made a party defendant to this suit of Bushnell, he joined with Joann Doucet Freeman in filing with this court after the appeal was lodged a joint motion to dismiss SOLOCO from his suit, and an order to that effect was signed on March 30, 1982.

Bushnell filed a supplemental and amending petition on March 12, 1981 (Tr. 37) which contains the following allegations purporting to allege intentional torts on the part of Guillory which caused the accident of May 28, 1979:

1.
“That Paragraph (5) of his original petition be amended to read as follows:
(5)
“The above described accident and assuming [sic] injury of petitioner and the resulting damages to him, were occasioned by the intentional acts of the defendant, MARTIN E. GUILLORY, and in that regard, petitioner itemizes the intentional acts of said defendant, specifically but not exclusively as follows:
a) By his intentional failure to maintain a proper look-out and desiring the accident to result because of his failure to maintain a proper look-out and his desiring or his substantial certainty that the occupants of the vehicle would be killed or injured;
b) His intentional failure to maintain proper control of the vehicle in which plaintiff was riding and desiring the accident to result because of his failure to maintain proper control of the vehicle and either desiring or being substantially certain that the occupants of the vehicle would be injured or killed;
c) His intentional being inattentive and distracted and his desiring the accident to result because of his intentional inattentiveness or distraction and his desiring or the substantial certainty that the occupants of the vehicle would be injured or killed;
d) His intentional crossing the center line into the opposing lane and his desiring the accident to result because of the crossing of the center line into the opposing lane and his desiring or his substantial certainty that the occupants of the vehicle would be either injured or killed;
e) His intentional failure to negotiate a curve and his desiring the accident to result because of his intentional failure to negotiate a curve and either desiring or being substantially certain that the occupants of the vehicle would be either injured or killed;
f) His driving at an excessive rate of speed at the time of the accident, which he either desired or was substantially certain that the occupants of the vehicle would be either killed or injured;
g) His intentional failure to do what he should have done and see what he should have seen in order to avoid this accident and such intentional failure to do or see what he should have, was actively desired or was substantially certain that the occupants of the vehicle would be either killed or injured.”

Considering the foregoing this case of Jimmy Roy Bushnell is in the same procedural posture, as that of Emma Williams Freeman, Ind., et al v. Insurance Company of North America, et al, supra.

Appellant Jimmy Roy Bushnell is assessed with the costs of this appeal.

AFFIRMED.