text:
    Cathy Ann HEBERT and F. Sprague Pugh as Provisional Tutor of the Minors Jo Ann Hebert, Donna Ann Hebert, Pamela Ann Hebert and Donald Joseph Hebert v. Keith G. ORDOYNE, Champs Truck Service, Inc., John V. Beauvais, Southern Farm Bureau Casualty Insurance Company, Royal Globe Insurance Company, Cavalier Insurance Corporation, and Interstate Fire & Casualty Company.
    No. 13233.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Rehearing Denied Sept. 4, 1980.

      John B. Noland, and Charles W. Lamar, III, Baton Rouge, of counsel for plaintiffs-appellees, Cathy Ann Hebert et al.
    Robert J. Vandaworker, Baton Rouge, of counsel for defendants appellant, Keith G. Ordoyne and Southern Farm Bureau Southern Farm Bureau Casualty Ins. Co.
    Donald T. W. Phelps, John S. Thibaut, Jr., Baton Rouge, of counsel for defendant appellant, Royal — Globe Insurance Company.
    John Dale Powers, Baton Rouge, of counsel for defendants appellee, John V. Beau-vais, Champs Truck Service Inc. and Cavalier Ins. Corp.
    Joseph F. Keogh, Baton Rouge, of counsel for defendant appellee, Interstate Fire & Cas. Co.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

On the evening of December 23, 1976, at approximately 6:30 P.M., Donald J. Hebert and his wife, Bobbie C. Hebert, were fatally injured in an accident which occurred at the intersection of U. S. Highway 61 and Louisiana Highway 54 in St. John the Baptist Parish. The accident occurred when an automobile driven by Keith G. Ordoyne entered the intersection of Highway 61 and Highway 54 in the path of a tractor-trailer rig owned by Champ’s Truck Service, Inc. (Champ's), and driven by its employee, John V. Beauvais. The vehicle driven by Ordoyne collided with the tractor-trailer rig, and the momentum carried it down Highway 61 in an easterly direction. The tractor-trailer rig came to rest straddling the east-bound lane of Highway 61 where it remained, blocking the path of east— bound traffic. Shortly thereafter, the vehicle driven by Donald J. Hebert and occupied by his wife, Bobbie C. Hebert, struck the tractor-trailer rig. Donald and Bobbie Hebert were killed instantly.

At the time of the accident, the Ordoyne vehicle was insured by Southern Farm Bureau Casualty Insurance Company (Farm Bureau). The vehicle owned by Champ’s was insured by Cavalier Insurance Company (Cavalier). Interstate Fire & Casualty Company (Interstate) was a surplus line carrier for the Champ’s vehicle and the Heberts were insured by Royal Globe Insurance Company (Royal Globe).

Five children survived the Heberts. Cathy Ann Hebert was of legal age. Jo Ann, Donna Ann, Pamela Ann and Donald J., Ill, were minors.

The Hebert children filed suit on March 2, 1977, against Keith G. Ordoyne and his insurer, Farm Bureau; John V. Beauvais; Champ’s and its insurers, Cavalier and Interstate; and Royal Globe as the uninsured motorist carrier on the Hebert vehicle.

Royal Globe filed a third party demand against John V. Beauvais, Champ’s, Cavalier, Keith G. Ordoyne and Farm Bureau. The third party demand claimed that if Royal Globe were held liable to plaintiffs because of its uninsured/underinsured coverage on the Hebert vehicle, then Royal Globe was entitled to recover those sums from third party defendants.

Prior to trial, plaintiffs settled their claims against Beauvais, Champ's, Cavalier and Interstate for $400,000.00. In addition, Champ’s gave plaintiffs a note for $100,-000.00.

Following a jury trial, verdict was rendered on March 28,1979. The acts or omissions of both Ordoyne and Beauvais were found to have contributed to or caused the Heberts’ deaths. Donald J. Hebert was found not to have been contributorily negligent. Awards were made in the following amounts:

For the For the

death of death of

Donald Hebert Bobbie Hebert

Cathy Ann $ 45,000 $ 35,000

Jo Ann 50,000 35,000

Donna Ann 75,000 50,000

Pamela Ann 85,000 50,000

Donald J., Ill 100,000 50,000

$355,000 $220,000

On the ground that plaintiffs had previously settled their claims against Beauvais, who, together with Ordoyne, was a joint tortfeasor, the trial court reduced by half the award made to each child for the death of each parent. Judgment was signed in favor of plaintiffs and against Ordoyne, Farm Bureau and Royal Globe in the following amounts:

For the For the

death of death of

Donald Hebert Bobbie Hebert

Cathy Ann 22,500 17,500

Jo Ann 25,000 17,500

Donna Ann 37,500 25,000

Pamela Ann 42,500 25,000

Donald J., Ill 50,000 25,000

$177,500 $110,000

The liability of Farm Bureau was limited to $10,000 for each decedent, or a total of $20,000, its policy limits. Royal Globe’s liability was limited to $150,000 for the death of Donald Hebert and $100,000 for that of Bobbie Hebert.

Royal Globe, as the uninsured motorist carrier of Donald Hebert, was awarded $6,000 from Ordoyne, based on Royal’s third party demand.

In each case, legal interest of seven percent was awarded from March 2, 1977, the date of judicial demand.

Farm Bureau and Royal Globe were cast for one-third and two-thirds of all costs, respectively.

From the trial court’s final judgment, Ordoyne, Farm Bureau and Royal Globe have appealed. Plaintiffs have answered the appeal.

Royal Globe specifies six errors by the trial court:

1.Failure to give Royal full credit for the settlement plaintiffs made with

the insurers and employer of Beau-vais.

2. Failure to permit evidence regarding the amount of the settlement to be heard by the jury.

3. Making excessive awards to each of the plaintiffs.

4. Failing to award more than $6,000 to Royal based on its third party demand against Ordoyne.

5. Assessing Royal with two-thirds of the court costs.

6. Assessing legal interest from date of judicial demand.

Ordoyne and Farm Bureau specify four additional errors:

7. The jury was improperly instructed in several matters.

8. The trial court erroneously found Ordoyne negligent.

9. The trial court failed to find Donald J. Hebert contributorily negligent.

10.Plaintiffs’ recovery exceeded their actual damages.

Plaintiffs’ answer to the appeal urges that Beauvais and Ordoyne were not joint tortfeasors and that any reduction of the jury award was improper. Alternatively, plaintiffs seek an increase in the jury awards.

Proper jury instructions are those which fairly and reasonably point up the issues presented by the pleadings and evidence and which provide correct principles of law. Hanks v. Drs. Ranson, Swan & Burch, Ltd., 359 So.2d 1089 (La.App. 3rd Cir. 1978), writ denied 360 So.2d 1178 (La. 1978). We find the jury instructions as given were fair, reasonable and thorough as to both the issues and law.

Even were we to find the jury instructions to have been improper, a finding which would necessitate this court’s acting as a trial court for all practical purposes, Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975), we would arrive at the same conclusions as did the jury.

A detailed examination of the entire record convinces us that the Heberts’ deaths were caused by the combined negligent acts of both Keith G. Ordoyne and John V. Beauvais. It is also certain that Donald J. Hebert was not contributorily negligent.

Since Beauvis and Ordoyne were joint tortfeasors, the trial court properly reduced the liability of Ordoyne and his insurers by one-half. Harvey v. Travelers Insurance Company, 163 So.2d 915 (La.App. 3rd Cir. 1964).

Plaintiffs’ alternative request that the jury award be increased to $575,000 is confusing since the amount originally awarded by the jury was $575,000. We presume that plaintiffs seek an increase to $1,150,000, so that after the reduction mandated by Harvey, supra, plaintiffs would still be left with $575,000. At any rate, the award as originally made was within the jury’s “much discretion” and will not be increased. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). For the same reason, Royal Globe’s request for a reduction must be denied.

Farm Bureau maintains that the $575,000 award represents the maximum amount plaintiffs may recover for their damages. On that basis, appellant urges that plaintiffs have already recovered $500,-000 (from their settlement with Beauvais, Champ’s and their insurers) and therefore may only collect $75,000 from Ordoyne and his insurers. This argument is without merit. Farm Bureau and Ordoyne are responsible for half the damage award. The other half is due from, and has been paid by, the other joint tortfeasor, Beauvais and his insurers. Any sums in excess of $287,-500 paid by Beauvais amount to a mere gratuity for which Ordoyne receives no credit.

Royal Globe claims that it should receive credit for both the $500,000 settlement and the $20,000 paid by Farm Bureau. However, Niemann v. Travelers Insurance Company, 368 So.2d 1003 (La.1979), does not allow Royal Globe subrogation rights in the present case where plaintiffs have previously settled with a tortfeasor. Nor do LSA-R.S. 22:1406 D(4) or the reduction clause in the Royal Globe policy permit Royal to effectively lower the amount of uninsured motorist coverage to which it has contractually agreed.

Deane v. McGee, 261 La. 684, 260 So.2d 669 (1972) and Graham v. American Casualty Company of Reading, Pennsylvania, 261 La. 85, 259 So.2d 22 (1972), stand for the proposition that while an uninsured motorist policy must be written in the minimum legal amount, an insured may contractually arrange for greater coverage. Furthermore, when either multiple uninsured policies or a single uninsured policy with greater than minimum coverage has been secured, clauses such as “reduction,” “other insurance” or “pro rata” which, if effective, would lessen the uninsured coverage, will be held unenforceable. Smith v. Trinity Universal Insurance Company, 270 So.2d 637 (La.App. 2nd Cir. 1972); Deane v. McGee, supra, and Graham v. American Casualty, supra.

Royal Globe’s only consolation is that Harvey operates to lessen Ordoyne’s liability by one-half and Royal’s from $300,000 to $250,000.

Royal Globe specifies as error the trial court’s failure to inform the jury of the amount of plaintiffs’ pre-trial settlement. We find no error here. A compromise and discharge of one of two joint tortfeasors will restrict the claimant’s recovery against the other tortfeasor to one-half under Harvey, but the compromise itself is not admissible for the purpose of showing that the alleged co-tortfeasor was jointly negligent, while the amount of the compromise is relevant for no purpose. Broussard v. State Farm Mutual Automobile Insurance Company, 188 So.2d 111 (La. App. 3rd Cir. 1966), writ refused 249 La. 713, 190 So.2d 233 (1966).

Royal Globe appeals that part of the judgment which limited recovery on its third party demand against Ordoyne to $6,000. Daniels v. Conn, 382 So.2d 945 (La. 1980), held that where there are solvent and insolvent joint tortfeasors liable in solido, evidence of the insolvent defendant’s inability to pay may not be considered by the trial judge in either determining damages to be awarded to the plaintiff, or in apportioning damages between those joint tort-feasor defendants at the trial on the merits of plaintiff’s claim.

In the present case, however, the judgment which limited Ordoyne’s liability to Royal Globe had no effect on the damages awarded to plaintiffs, nor was there an apportioning of the damages between defendants (both Royal Globe and Ordoyne being cast in solido up to Royal’s policy limits). Ordoyne’s liability to Royal Globe arose directly from Royal’s third party demand. Therefore, Daniels v. Conn, supra, is inapplicable and the inability of Ordoyne to respond to Royal Globe was properly considered.

Royal Globe appeals the award of interest from date of judicial demand. LSA — R.S. 13:4203 provides that

“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.”

Regardless of any policy provisions purporting to limit its liability for interest, Royal Globe was properly assessed with legal interest (based on the amount Royal owed) from March 2, 1977, the date of judicial demand. O’Donnell v. Fidelity General Insurance Company, 344 So.2d 91 (La.App. 2nd Cir. 1977).

Royal Globe’s final ground for appeal is that the judgment assessing it with two-thirds of the total costs of trial was improper. LSA-C.C.P. Art. 1920 provides

“Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause. Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.”

The trial court has much discretion in assessing costs. Swiftships, Inc. v. Burdin, 338 So.2d 1193 (La.App. 3rd Cir. 1976). We find no abuse of the trial court’s discretion in assessing costs.

For the foregoing reasons, the trial court judgment is affirmed. All costs of this appeal are to be paid by Royal Globe Insurance Company.

AFFIRMED.

      . Champ’s Truck Service was erroneously sued as Champs.

      . Whether evidence as to a defendant’s inability to pay is admissible but not to be considered where there are found to be joint tortfeasors or whether such evidence is simply inadmissible, was a question raised in Lawes v. State Farm Mutual Automobile Insurance Company, 387 So.2d 1200 (La.App. 1st Cir. 1980). Judge Lot-tinger pointed out that should only one defendant be cast, his impecunious state would be most relevant. Absent previously admitted evidence regarding his inability to respond in damages, there seems to be no vehicle by which the defendant could limit his liability. This problem was also noted by Justice ad hoc de la Houssaye in his concurrence in Daniels, where he stated his belief that the Court’s language in Daniels forbids (in his view, incorrectly) the introduction of such evidence.


source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. V. Price LeBLANC et al.
    13426.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.

      Johnie E. Branch, Jr., Bryan Miller, Baton Rouge, for plaintiff, appellant & appel-lee.
    Edwin R. Woodman, Jr., Maurice J. Wilson, Jr., Baton Rouge, for defendant, appellant & appellee.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

In 1971, the State of Louisiana, through the Department of Highways, under the authority of Article VI, Section 19.1 of the Louisiana Constitution of 1921 and LSA-R.S. 48:441-460, filed suit against V. Price LeBlanc and John D. Cantey seeking to expropriate 1.012 acres of land in Ascension Parish. As just compensation, the State deposited $1,518.00 in the registry of the court.

Following the substitution of Joseph W. Kinamore for V. Price LeBlanc as a party defendant, answer was filed. Defendants sought $25,000 for the taking and $110,000 in severance damages.

Trial was had in 1976. Briefs were filed approximately one year later. On June 6, 1978, the trial court ordered the Court Reporter to transcribe the testimony. Judgment in favor of the defendants was signed on September 28, 1979, in the amount of $45,350, less a credit of $1,518 for the funds previously deposited by the State. From this judgment, both the State and defendants have appealed. We affirm.

At the outset, we adopt as our own the excellent reasons for judgment filed by Judge St. Amant.

“REASONS FOR JUDGMENT
In connection with the construction of State Route LA 1-10 in Ascension Parish, a controlled access facility, the Department expropriated 1.012 acres of land owned by defendants and deposited in the registry of the Court the sum of One Thousand Five Hundred Eighteen Dollars ($1,518.00) as its estimate of just compensation for the land so taken, no allowance being made for severance damages. This figure was calculated on the basis of Fifteen Hundred Dollars ($1,500.00) per acre for the part taken. Defendants answered seeking additional compensation for the land taken and substantial severance damages.
Prior to the taking defendants owned a rectangular tract of land containing approximately 48 acres fronting on Louisiana Highway 73 and immediately adjoining the Dutchtown School. The taking involves a triangular shaped portion of land constituting the northeast corner of the tract at the rear.
Prior to the taking a map designated as the “Final Plat” of Dutchtown Acres Subdivision had been recorded; servi-tudes and rights of way had been dedicated to the public; approximately Sixteen Hundred (1,600) feet of street had been constructed; and one (1) lot had been sold. However, no street had been extended to the part taken and no utilities were available. Because of these latter facts the appraisers for the Department contended that the part taken should be valued as raw acreage and only alternatively did they assign a value as subdivision lots.
No serious attempt was made by the Department to question the motives of the developers, nor did the Department’s experts dispute the fact that the highest and best use of the tract was for subdivision purposes. Under the oft cited case of State, Department of Highways versus Terrace Land Company, Inc., 298 So.2d 859 (Supreme Court, 1974) and even under the earlier case of State, Department of Highways versus Patout, 249 So.2d 179 (Supreme Court, 1971), the defendants are clearly entitled to have the part taken considered as subdivision lots.
Defendants’ expert, Mr. John LeJune (sic), assigned a residual value of Eleven Cents (11<P) per square foot to the part taken after subtracting the proportionate development costs. Using this method he arrived at a value of Four Thousand Eight Hundred and Fifty Dollars ($4,850.00) for the part taken. (Appraisal report, page 7). The Court finds this approach to be valid and substantiated by the evidence and accordingly fixes the value of the part taken at Four Thousand Eight Hundred and Fifty Dollars ($4,850.00).
The principal controversy is over the question of severance damages. Much of testimony offered by the defendants relates to the noise factor resulting from traffic on the interstate and its effect upon the value of the remaining property.
The appraisers for the State, Mr. Seago and Mr. Farrier, in their alternative approach, considered the severance damages to amount to Eight Hundred and Fifty Dollars ($850.00) and Five Hundred and Seven Dollars ($507.00) respectively. Mr. LeJune for the defendants found the severance damages to be One Hundred Twenty-One Thousand One Hundred and Eighty Dollars ($121,180.00). To characterize the difference between these figures as vast would still be an understatement.
Mr. LeJune used a novel approach to severance damages which has never been reflected in the jurisprudence; which is a totally unwarranted extension of Terrace, since that case only dealt with the value of the part taken; and which in the opinion of the Court grossly overstates the actual amount of damages sustained by the remainder. On the other hand the estimates by Mr. Seago and Mr. Farrier totally ignore significant factors of damage and are so nominal as to justify the characterization of ludicrous.
The Court recognizes the fact that it cannot substitute its opinion for that of the experts under review, but the jurisprudence has established the right of the trial court to determine severance damages in an amount to which no expert-testified by rejecting the precise amounts to which each expert testified, such being a necessary correlative of the fact-trier’s right to evaluate the weight to be given each witness’s testimony. State, Department of Highways versus Salassi, 244 So.2d 871, 877 (La.App. 1st Cir. 1971).
Mr. LeJune in his discussion of damages noted that prior to the taking there were 9,000 front feet of lots that had a retail value of Forty-Five Dollars ($45.00) per front foot for a total gross value of Four Hundred and Five Thousand Dollars ($405,000.00). (Appraisal report page 9). He also stated ‘It is interesting to note that the front one third (%) of the subdivision is 67% built up, the middle one third (V3) is 33% built up, and the rear one third (Vs) is 19% built up. This would seem to indicate some resistance on the part of the buyers to living adjacent to the interstate highway prici-pally (sic) because of the noise factor.’ (Appraisal report, page 4). This observation is adequately substantiated by the testimony of the other experts and by those testifying with regard to the noise factor.
Dividing the total gross value of Four Hundred and Five Thousand Dollars ($405,000.00) in three (3) segments corresponding to the front one third (V3), middle one third (Vs) and rear one third (V3) of the subdivision gives an indicated gross value of One Hundred and Thirty-Five Thousand Dollars ($135,000.00) to each one third (V3) of the subdivision. After reviewing all of the expert testimony in the record the Court finds that the evidence substantiates the conclusion that the rear one third (Vs) has been damaged to the extent of 20% of its gross value of One Hundred and Thirty-Five Thousand Dollars ($135,000.00) or Twenty-Seven Thousand Dollars ($27,000.00); that the middle one third (Vs) has been damaged to the extent of 10% of its gross value of One Hundred and Thirty-Five Thousand Dollars ($135,000.00) or Thirteen Thousand Five Hundred Dollars ($13,500.00); and that the front one third (Vs) has suffered no appreciable or measurable damages. Likewise, that the commercial portion in the front has suffered no damage. Of course these are gross value figures but it is obvious that the net will be reduced by a corresponding amount and accordingly the Court considers it reasonable to use this basis for its calculation. That is to say, the Court finds from all the evidence that the before value has been reduced by the taking to 80% thereof for the rear one third (Vs) and to 90% thereof for the middle one third (%).
In summary the Court concludes that the defendants are entitled to be compensated as follows:
Value of the part taken $ 4,850.00 Damages to the remainder $40,500.00 Total $45,350.00

Judgment accordingly.”

The State specifies that the trial court erred in:

1. adopting the opinion of defendants’ appraiser, John Lejeune, as to the value of the land expropriated and thereby awarding $4,850 for same.
2. rejecting the opinions of the State’s experts, Alvin K. Seago and Charles H. Farrier, as to severance damages, and then devising a method for calculation based on the court’s own opinion.

Defendants specify that the trial court erred in creating its own method for calculating severance damages.

Based on State, through Department of Highways v. Terrace Land Company, Inc., 298 So.2d 859 (La.1974), State, through Department of Highways v. Patout, 258 La. 1193, 249 So.2d 179 (1971), and the facts of the present case, the defendants are entitled to have their expropriated land evaluated as subdivision lots. We find no error in the award of $4,850 for land taken.

Both parties object to the method used by the trial court to fix severance damages. Clearly, no one particular mode of evaluation is etched in stone. All have the same end — just compensation. As stated by the Louisiana Supreme Court in State, through Department of Highways v. Crow, 286 So.2d 353 (1973):

“All of the tools of evaluation, including the determination of highest and best use, the study of comparables, cost of structure and depreciation studies, and income analysis, are only means to fixing just and adequate compensation. No one of these tools is an end in itself.
If there is a priority attached to the study of comparables, it exists only because, in most cases, that approach is most likely to produce accurate results, insuring just and adequate compensation. When, however, the study of comparables does not, as a matter of fact, serve to best insure an accurate evaluation, the prime consideration of just and adequate compensation requires that courts be free to use any other method better suited to a correct assessment of value.”

A trial court may, in determining just compensation, place the value at an amount between those suggested by experts. State, through Department of Highways v. Port Properties, Inc., 316 So.2d 749 (La.App. 1st Cir. 1975). If impressed by the appraisers for each party, the court may simply average their valuations. State, through Department of Highways v. Smith, 272 So.2d 746 (La.App. 3rd Cir. 1972), writ denied 272 So.2d 696 (La.1973).

State, through Department of Highways v. Salassi, 244 So.2d 871 (La.App. 1st Cir. 1971), permits a trier of fact to

“determine severance damages in an amount to which no expert testified by rejecting the precise amounts to which each expert testified, such being a necessary correlative of the fact-trier’s right to evaluate the weight to be given to each witness’ testimony(.)”

See also, State, through the Department of Highways v. William T. Burton Industries, Inc., 219 So.2d 837 (La.App. 3rd Cir. 1969), writ refused 254 La. 14, 222 So.2d 67 (1969).

The State urges that while Salassi permits a trial court to reject the amounts suggested by experts, it does not authorize a trial court to reject all the experts’ methods and to substitute its own. State, through Department of Highways v. Eubanks, 345 So.2d 533 (La.App. 3rd Cir. 1977); State, through Department of Highways v. Thurman, 231 So.2d 692 (La.App. 1st Cir. 1970); and State, through Department of Highways v. Moresi, 189 So.2d 292 (La.App. 3rd Cir. 1966), are cited as cases where a trial court improperly considered its own opinion. We find this line of argument unconvincing. Initially, Eubanks, Thurman and Moresi are inapplicable because they deal with opinion rather than method. In Eubanks, the trial court erroneously awarded more damages than any expert had testified to. In Thurman, the trial court improperly based its award on personal experience. In Moresi, the trial judge incorrectly took into consideration the fact that he drove by the property in question twice daily and used that fact as a basis for fixing compensation.

Nothing in Salassi implies that a trial court may not reject both methods and amounts suggested by experts. The opinions of qualified experts should be given weight and effect where they are well grounded in sincerity and logic. State, through Department of Highways v. Ragusa, 234 La. 51, 99 So.2d 20 (1958). When, however, expert opinions are biased or illogical and to follow them would cause absurd results, they may be ignored.

In the present case, the maximum severance damages according to the State’s experts was $850, an amount the trial court characterized as “ludicrous.” Defendants’ expert set severance damages at $121,180 by using an unwarranted approach which was far too speculative.

The trial judge properly rejected the amounts and methods of both sets of experts. Then, using facts adduced at trial, he developed a formula which, when applied to the facts, resulted in a fair and just compensation.

The value of expropriated property is solely a question of fact. Hence, a trial court’s determination of value for property taken carries the same weight as any other finding of fact and the manifest error rule applies. State, through Department of Highways v. Osbon, 292 So.2d 898 (La.App. 1st Cir. 1974), writ denied 294 So.2d 836 (1974). We find that the amounts awarded, both for property taken and for severance damages, are fully supported by the record. Arceneaux v. Domingue, 365 So.2d 1330 (1978).

For the foregoing reasons, the trial court judgment is affirmed. All costs of this appeal are to be divided equally.

AFFIRMED.


author: PONDER, Judge. CHIASSON, Judge,

text:
    Jessie SINCLAIR et al. v. LUMBERMEN’S MUTUAL CASUALTY COMPANY et al.
    Nos. 13115, 13114 and 13116.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 1980.
    Rehearing Denied Sept. 4, 1980.
    Writ Refused Nov. 10, 1980.

      Larry P. Boudreaux, Thibodaux, for plaintiffs and appellees.
    Herbert Bowers, III, New Orleans, for defendant and appellant Lumbermens Mutual Casualty Co.
    Robert L. Morris, Houma, for defendant and appellant Alton A. Verdin.
    Before ELLIS, LOTTINGER, CHIAS-SON, PONDER and LEAR, JJ.
   PONDER, Judge.

Lumbermen’s Mutual Casualty Company appealed from the judgment assessing them with damages resulting from an intersec-tional collision.

The issues are the amount of judgment against Lumbermen’s Mutual Casualty Company and quantum in general.

We amend and affirm.

Jessie Sinclair, his wife, Cathy, and their two children were guest passengers in an automobile that collided with one driven by defendant Alton A. Verdin, when the latter failed to stop at a red traffic signal. Mr. Verdin’s liability insurance was exhausted in a concursus proceeding extraneous to this suit. Recovery is sought against Lumbermen’s Mutual Casualty Company, the uninsured motorist insurer of the car in which plaintiffs were guests.

After trial, the court gave judgment against Lumbermen’s and Verdin, in solido, as follows:

Jessie Sinclair $16,500.00
Cathy Sinclair 25,000.00
Donna Sinclair 300.00
Robin Sinclair 500.00
Medical Expenses 4,250.21

Appellant first contends that we should remand the case for a determination of the amount of policy not yet expended and that judgment against it should not exceed that amount. Appellant makes the uncorroborated suggestion that the judgment exceeds the coverage remaining. It was stipulated that the policy limits were $25,000.00 for each person and $50,000.00 for each accident, but there is no evidence of amounts already expended. It may be that the action we are taking remedies appellant’s complaints, but in any event we refuse to remand under these circumstances.

Appellant then contends that the trial judge abused his discretion in making the awards. After a thorough examination of the evidence, we agree that the amounts awarded for Jessie and Cathy Sinclair are excessive.

Jessie Sinclair was first seen by Dr. Annie Plauche on the day of the accident, April 18, 1976, with complaints of pain and stiffness in the neck and right scapula area. He had abrasions and contusion of both legs, of the “seat belt” type. He had pains in the right groin and along the left sterno-cleidomastoid. X-rays of the cervical spine, the right shoulder, the pelvis and the right hip were all normal. Dr. Plauche never saw him again. However, on April 27, Dr. Bruce Guidry in the same office saw him and diagnosed a mild cervical strain. Limited motion was the only gross finding. X— rays were within normal limits. Although told to come back in one week, he never returned.

Dr. Raeburn C. Llewellyn, a neurological surgeon, saw plaintiff on May 2 and at plaintiff’s request admitted him that day to the same hospital in which Cathy Sinclair was being treated. His complaints were of head, neck, shoulder and low back pains. The objective symptoms were spasm of cervical muscle, tenderness to palpation, slight restriction of neck muscles and soreness of paraspinous muscles. The diagnosis was multiple ligament and joint sprains. He prescribed semi-bedrest, physical therapy, muscle relaxants, analgesics, heat massage and traction. He discharged plaintiff on May 12 without restriction or suggestion of further treatment. The mild mid-back and low back muscle strain would require a maximum of two or three months for complete recovery and early return to work would facilitate full recovery. Plaintiff returned on June 23. He told the doctor that he had returned to work but still had some head and neck soreness and low back pain after sustained exertion. There were no objective symptoms. Full recovery by the end of summer was predicted.

Dr. Roy Crochet, a chiropractor, saw plaintiff on February 5 and 6, 1977 with lower back and upper cervical problems. Dr. Edgar P. Landry treated plaintiff for muscle strain on the right side of the neck once on February 7, 1977. He obtained no history.

Plaintiff admitted he called Dr. Llewellyn and asked to be admitted to the hospital. He stated that he returned to work on June 1, 1976. He lied to Dr. Llewellyn so as to get a release; the doctor asked him to stay longer. He passed a pre — employment physical after the accident. Even though he still has low back pains he has been too busy at work to go to a doctor.

We believe that a maximum of $5,000.00 is justified under these circumstances.

Mrs. Cathy Sinclair was seen at the emergency room on April 18 and once more in the office of Dr. Plauche on April 20. A laceration of the scalp was sutured. X— rays of the cervical spine and skull were normal.

Dr. Bruce E. Guidry in the same office with Dr. Plauche saw Mrs. Sinclair on April 23 when he rechecked the laceration. She was told to return in one week. She came back on April 27 for sinusitis, but never came back for the cervical strain.

Dr. Llewellyn saw Mrs. Sinclair on April 28, with complaints of head, neck and spine area pains. He observed spasm of neck muscles, limitation spine movements in the mid and low back areas, and the sutured scalp laceration. There were no neurological findings of spinal cord, major nerve plexus or peripheral nerve injuries. He diagnosed moderate sprain of neck and mild mid and low back. Mrs. Sinclair had a marked anxiety reaction. She was admitted to the hospital on April 28 and treated with bed rest and physical therapy to neck and low back. When she was discharged on May 15, he prescribed some bed rest with gradual increase of exertion. She was to come back in 8 weeks. He expected full recovery in 3 to 4 months. She returned on June 28. He found marked recovery but she was still having headaches after sustained exertion. He discharged her with advice to continue home efforts. He never saw her again. Vaginal or rectal bleeding would be unrelated to the accident. She gave no sign of radiculopathy.

Dr. Roy Crochet, chiropractor, saw Mrs. Sinclair on January 30, 1977. She complained of migraine headaches. He found a cervical syndrome.

Dr. Richard A. Coulon, Jr., a neurosurgeon, saw Mrs. Sinclair once on November 28, 1977. She gave a history of left pectoral and left upper extremity pain for 12 to 13 months. There was generally tenderness but no evidence of neurological deficit. He found a chronically irritated nerve root and early degeneration of disc space. Her radi-culopathy, if related to the accident, should have manifested itself during the treatment by Dr. Llewellyn. He was therefore doubtful of any connection.

Mrs. Sinclair testified that part of her head was shaved and that she wore a kerchief until November. She first had pain in her chest in October, 1977. Dr. Llewellyn told her that two to three years of complete bed rest would be required for recovery.

In view of her failure to show any relationship between the accident and her radi-culopathy and her obvious exaggerations, we believe that a maximum award to her of $10,000.00 is justified.

The children received multiple bruises and abrasions. Robin also received a contusion to her head when she was thrown forward. We do not believe the awards for their injuries were excessive.

For these reasons, the judgment is amended so as to decrease the award to Jessie Sinclair to $5,000.00 and the award to Cathy Sinclair to $10,000.00. As thus amended, the judgment is affirmed. Costs are assessed one half to the appellant and one half to the appellees.

AMENDED AND AFFIRMED.

CHIASSON, J., concurs in part and dissents in part for reasons assigned.

LOTTINGER, J., concurs in part and dissents in part for the reasons assigned by CHIASSON, J.

CHIASSON, Judge,

concurring in part, dissenting in part:

I concur with the majority herein that the remand of this case to determine the policy limits is inappropriate. The record before us does not justify such an action.

I respectfully dissent from that portion of the judgment which reduces the amounts awarded to Jessie and Cathy Sinclair. Mr. Sinclair sustained a moderate cervical spine sprain and mild mid back and low back muscle sprain. He spent ten days in the hospital where he was treated with intermittent cervical traction and physical therapy including whirlpools and heat massage. He missed approximately six weeks of work. Several months were estimated as the time required for full recovery. Further, there is evidence of record which indicates that Mr. Sinclair suffered effects from the accident for over a year. I am of the opinion that the trial court did not abuse its great discretion in awarding $16,-500.00 for these injuries. The sum of $5,000.00 fixed by the majority herein is clearly inadequate.

Mrs. Sinclair also received a moderate cervical sprain and mild mid and low back muscle ligament sprain. She was hospitalized for a period of sixteen days and treated with intermittent traction and physical therapy. Mrs. Sinclair also suffered a large laceration to her scalp which required that part of her hair be shaved so that it could be stitched. She was further diagnosed as having an anxiety reaction secondary to the injuries. On returning home, she experienced severe headaches and pain and found it necessary to quit her job. She was also unable to do most household activities for several months. At the time of trial, she was still experiencing difficulty from her injuries. The trial court did not abuse its great discretion in awarding $25,000.00 for these injuries. The sum of $10,000.00 awarded by the majority herein is clearly inadequate.

For these reasons I would affirm the judgment of the trial court.


text:
    Phillip DUCOTE v. CHARITY HOSPITAL OF LOUISIANA AT NEW ORLEANS, DHHR.
    No. 13510.
    Court of Appeal of Louisiana, First Circuit.
    July 25, 1980.
    Rehearing Denied Sept. 4, 1980.

      James A. McPherson, McPherson, Weber & Zainey, New Orleans, for appellant.
    H. M. Westholz, Jr. DHHR, New Orleans, for appellee.
    Before EDWARDS, LEAR and WATKINS, JJ.
   EDWARDS, Judge.

Phillip Ducote appeals a final decision by the Louisiana State Civil Service Commission upholding his termination as a floor maintenance supervisor at Charity Hospital in New Orleans. We reverse.

On November 30,1976, Ducote was sent a notice of suspension, effective December 2, 1976. On January 10, 1977, appellant was notified of his termination, effective January 17, 1977. The termination grounds alleged were improper performance of duties and falsification of records/payroll fraud.

Ducote, an employee at Charity for over fourteen years, appealed to the State Civil Service Commission. For two and a half years, Charity Hospital fought bitterly to dispose of the appeal on procedural grounds. After Charity’s attempts to prove the appeal untimely had failed, the merits were considered. On November 16, 1979, the Civil Service Commission denied Du-cote’s appeal. This appeal followed.

Charity concedes in brief that there is no longer any procedural opposition to the appeal and that the sole issue before this court is whether the record supports appellant’s dismissal.

Appellant specifies that the Civil Service Commission erred in

finding appellant's discharge reasonable based on the evidence presented; and 1.

2. failing to remand the case for further evidence relating to the motivations of Donald Frazier, Hospital Assistant Administrator for General Services. (Ducote claimed discriminatory bias and animosity on the part of Frazier.)

Ducote’s termination was based on specific charges that 1) employees were permitted to sign their payroll records before concluding the period in which they were working, and 2) Sedonia English, a subordinate of Ducote’s, was listed by Ducote as working and was paid for three days work when, in fact, she was absent.

The practice of signing payrolls prior to the conclusion of work periods was fully explained by Merlin Brisset, Ducote’s immediate supervisor and Charity’s Housekeeping Director.

By Mr. McPherson (Attorney for Ducote): “Do you recall the policy at Charity Hospital and the Department in which Mr. Ducote was concerning pre-signing of time sheets?

A Yes, sir.

Q What was that policy.?

A It was the general policy throughout the Department that they sign ahead of time. For the simple reason-ah, the reason for this that the payroll-the size of our payroll is so large and we have to get it in ahead of time. And in order to get it in ahead of time the people had to sign the payroll ahead of time. In fact, they’re doing it right now. In fact, this particular point that you brought out, Mr. Frazier sent me a memorandum stating for me to cease from doing this. But now we’re back to doing the same thing. We have to submit our payroll ahead of time so — in order for payroll to get the checks out. So it’s being pre-signed now and time is estimated. In other words, our checks for this coming Friday, for the payroll to go in, has to be submitted-has to be submitted today or the week before that the payroll’s due in order for the Accounting Department of the payroll Department to have enough time to be able to do that.

Q So that when an employee signs the time sheet it covers the period in advance of the date on which the employee actually signs?

A Right.

Q That’s the present policy?

A That’s the present policy right now. We have to.

Q And was that the policy in existence in August and September of 1976? Did Mr. Ducote cause that policy to be instituted?

A I found it there when I was there, when I started working there.

Q When you started working there?

A Yes, sir. That was the procedure then.”

The payroll practice in question, while certainly not ideal from an auditing point of view, was practical, widespread and of long-standing use in the Housekeeping Department where some 400 workers were employed. Mr. Brisset testified that the payroll department requested such a procedure. We find no ground on which to seriously criticize appellant, let alone fire him.

The Civil Service Commission found that Ducote had reported Sedonia English present for work on August 3, 4 and 31 of 1976 when, in fact, she was absent. This finding was based primarily on the testimony of Lillie Worthy, a fellow custodial worker of English, and Georgia Baker, a sister and also a fellow custodial worker of English.

Charity attempted to buttress the testimony of Worthy and Baker with that of Cynthia Bruce. However, the record shows that Bruce did not go to work on August 3 or 4 and therefore her testimony regarding the attendance of English is hearsay and of little value. Furthermore, when Bruce went to work on August 5, 1976, Ducote gave her a “telegram” of reprimand for missing work. Bruce then hit Ducote with a flowerpot and was subsequently discharged.

As further evidence against Ducote, Charity introduced both the transcript of an October 14, 1976, interview between State Police Trooper Ed Holtzendorff and Sedo-nia English and a statement signed by English on October 29, 1976.

During the interview, English stated that she was not at work on the days in question. The October 29 statement was to the same effect.

We cannot grant much credence to testimony elicited as a result of this interview. The interview was conducted in an, at best, forbidding atmosphere. The only persons present were English and police personnel, Trooper Holtzendorff and Sergeant Anthony Genusa. In addition, a short passage from the interview easily demonstrates its coercive and therefore worthless nature.

Holtzendorff: “What about the 31st of August where you indicated working eight hours?”

Sedonia: “Thirty-first of August, let me see now.”

Holtzendorff: “That would have been a Tuesday.”

Sedonia: “I ought to be straight about them dates, I don’t even know about the first date. But I do not (sic) that I be sick every month and I take off some days. I do be sick.

Holtzendorff: “You were off sick on the third of September, which was three days later and you were marked as taking sick time indicated by a B in that column on the attendance sheet. Now on the 31st you are carried as eight hours and I have some statements from several people on the Housekeeping crew that work with you, that can swear or testify in a court of law that you were not in fact at work on that day as well as on the third of” (emphasis added)

Sedonia: “Well, I wasn’t at work on those dates, that’s a fact, I know that.”

At the Civil Service Commission hearing, with counsel present, English explained that she had been confused during the police interview and that the days of work she had missed were in September and not August. Her explanation is verified both by Charity’s payroll records and the absence records kept by Ducote himself.

Merlin Brisset testified that Ducote’s subordinates worked in at least five buildings, to walk the floors of which would take several hours. He further testified that he clearly remembered seeing English on August 3 and 4.

Phillip Ducote, testifying in his own behalf, stated that English was working on the days in question. His records are in accord.

The only valid evidence favoring Charity’s version is the testimony of Worthy and Baker. Their testimony must be considered in light of the huge area in which they worked. It is highly possible that an employee could work for several days without seeing a particular fellow worker. Consideration also must be given to the hostility engendered by the placement of Sedonia English in authority whenever Ducote was not present.

The record clearly demonstrates Phillip Ducote’s excellent work record. His superi- or, Brisset, called him “one of the best employees” and stated that his punctuality and attendance were “Excellent.” Brisset emphasized that “Mr. Ducote was tough on all of his employees.” This was illustrated by his issuing a disciplinary warning to Sedonia English on April 29, 1976. The warning stated:

“You are here to work 8 hrs. and if we are directed by Mr. Brisset to clean in patient areas that is what has to be done. Patients has (sic) tops (sic) priority. This is a verbal warning that if you refuse to accept an assignment again much stronger action will be recommended.”

Far from demonstrating the favoritism toward Sedonia English alluded to by Worthy, Baker and Bruce, this warning shows a demanding superior.

During the Civil Service Commission hearings, certain testimony admitted without objection, tended to show that Donald Frazier, Charity’s Assistant Administrator for General Services, was intent on firing Ducote.

Direct examination of Merlin Brisset resulted in the following:

Mr. McPherson: “Have you had any discussions with Mr. Frazier concerning this matter?
A Ah, after this thing was well underway Mr. Frazier discussed it with me and made a few statements, naturally, that it was unbecoming of a man of his appointment, as an Assistant Administrator, telling me that he would-in order to obtain the means one had to do what has to be done-and, ‘I’ll lie, I’ll cheat, I’ll do anything to accomplish my end.’
Q And what end was that, Mr. Frazier was referring to?
A Get rid of Mr. Ducote and he was trying to include me in that and he’s still trying to do that.”

Earlier, Sedonia English had testified as follows:

Mr. McPherson: “All right. And did you talk to Mr. Frazier?
A I talked to him several times.
Q Did Mr. Thibodeaux tell you that he didn’t think there was anything-what did he tell you?
A The only interview I had with Mr. Thibodeaux he told me he didn’t see no sense in pursuing this because it was just a bunch of ladies was jealous-they didn’t want to take orders from me. And he said that if it was up to him he would just let the matter drop, but Mr. Frazier had give him orders to pursue it. Other than that he say he would have no interest in it because he didn’t see nothing to continue because it was nothing but a bunch of ladies jealous and (sic) was making complaints against me because they didn’t want to take orders.”

Such testimony indicates that the calling of Mr. Frazier would certainly have been in order. In view of our decision today, such calling is unneeded.

We find that there is very little evidence to support a finding of payroll fraud and there is a great deal of evidence, both testimonial and documentary, opposed to such a finding. By no stretch of the imagination has Charity Hospital proven its charges by a preponderance of the evidence. For the Civil Service Commission to have found as it did was manifest error.

For the foregoing reasons, the Civil Service Commission decision appealed from is annulled and reversed. It is hereby ordered that Phillip Ducote be reinstated in his former position with all back pay, seniority and privileges. All costs of these proceedings, both before the Civil Service Commission and this court, are to be paid by Charity Hospital of Louisiana at New Orleans, DHHR.

REVERSED AND RENDERED.


author: REDMANN, Judge.

text:
    Jerry E. SMITH v. Boggie R. BEARDEN et al.
    No. 11063.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 12, 1980.
    P. Michael Cullen, David C. Loeb, Edwards, Cullen & Loeb, Gretna, for plaintiff.
    William H. Syll, Jr., Bernard, Cassisa, Babst & Saporito, Metairie, for defendants.
    Before SAMUEL, REDMANN and SAR-TAIN, JJ.
   REDMANN, Judge.

Appellants’ taxicab waited for a green light and for traffic from its left to stop before turning right into the eastbound lanes of the Westbank expressway in Gret-na at about 3 a. m. After proceeding 40 feet east, it was struck head-on in its left lane by an automobile going the wrong way. Plaintiff was a fare-paying passenger who was injured. We affirm the judgment in his favor.

We add to the facts that the investigating police officer testified that the taxi driver did not contend at the time of the accident that the other automobile did not have its headlights on.

Had the accident occurred 400 feet down the expressway, the taxi driver’s negligence would be clear in his failure to see the other car in time to return to the right-hand lane and thus avoid collision. Had it occurred as he entered the expressway, perhaps one could say that he was not negligent because the reasonable taxi driver would not expect traffic from the right. But it occurred after 40 feet, which is between those extremes. We agree with the trial judge that appellants did not exculpate themselves towards their passenger-especially because the trial judge presumably inferred that the other ear’s headlights were on (otherwise the taxi driver would surely have told the investigating officer they were not.) In the time it takes to start up from a stop and to move even a few feet into the expressway, the driver owed the duty to his passenger both to see the wrong-way car coming and to stop. Had he stopped as he angled across his right-hand lane, before crossing it completely, there would have been no accident.

We note appellants’ argument that their driver could not have seen the other car had it come out Franklin avenue (another median-divided boulevard, intersecting obliquely) on its wrong side. The record does not establish, however, the distance from Franklin to the intersection where the taxi entered, nor even that that car did enter from Franklin. We repeat that this is a case of a fare-paying passenger, and in such a case the plaintiff’s only burden is to show that he was injured while being transported for hire; it is then defendants’ burden to exculpate themselves, and they did not do so.

Affirmed.


text:
    Lester A. POWELL v. AVONDALE SHIPYARDS, INC.
    No. 11172.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 12, 1980.

      James R. Sutterfield, Sutterfield & Vick-ery, New Orleans, for plaintiff.
    John G. Gomila, Jr., Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, New Orleans, for defendant.
    Before SAMUEL, REDMANN and SAR-TAIN, JJ.
   REDMANN, Judge.

An employer appeals from an award of added workers’ compensation. The employer’s principal argument is that plaintiff was not temporarily totally disabled because, despite a still-separated break in the bone of the tip of his left ring finger, he was able to do some work such as being a security guard. We agree that plaintiff was not totally disabled, but we affirm because he was partially disabled.

There is ample support in Dr. Kitziger’s testimony to conclude that plaintiff had a “partial disability ... to perform the duties in which he was customarily engaged when injured” within R.S. 23:1221(3), because the nonunited fracture of his finger’s distal phalanx prevented his lifting heavy objects without pain, and lifting was part of his duties when injured.

Save for one day’s work at Avondale plaintiff’s actual wages were zero during the period of his disability, which continued until at least a month after April 25, 1978 when Dr. Kitziger last saw the fracture still nonunited. The total of 21 weeks of benefits after the October 26, 1977 accident extended only until March 22, 1978. On March 27 plaintiff began working for his father, but promptly quit allegedly because of finger pain and pain is corroborated by Dr. Kitziger’s testimony.

The record would thus support not only the 16 weeks of benefits awarded but another nine weeks as well (although credit for two or three days of work would be due).

The further award of $780 “as compensation for petitioner’s permanent partial disability” cannot stand as such. The only possible authority is § 1221(4)(n) or (o) but § 1223 would require credit for § 1221(1), (2), or in our case (3) benefits against sub-paragraph (4). Nevertheless we do not disturb the $780 award because plaintiff remained partially disabled for at least nine more weeks during which the fracture did not unite and pain would continue to occur on pressure such as in lifting. Nine weeks at $110.59 would total more than $780. (Plaintiff did not appeal or answer the appeal and we therefore cannot modify the judgment in plaintiff’s favor by giving him the other nine weeks in full.)

Affirmed.


author: MARVIN, Judge.

text:
    Sherman G. KNOWLES, Plaintiff-Appellant, v. WHOLESALE ELECTRONIC SUPPLY OF SHREVEPORT, INC., Defendant-Appellee.
    No. 14196.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 1980.
    En Banc. Rehearing Denied Sept. 29, 1980.

      Blanchard, Walker, O’Quin & Roberts by William Paul Lawrence, II, Shreveport, for plaintiff-appellant.
    Cook, Yancey, King & Galloway by Stephen R. Yancey, Shreveport, for defendant-appellee.
    Bodenheimer, Jones, Klotz & Simmons, by David Klotz, Shreveport, amicus curiae on Behalf of defendant-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   MARVIN, Judge.

The purchaser of property appeals a judgment rejecting his demands to evict the defendant tenant who was occupying the property under an unrecorded lease from the sellers.

The deed to the property made no reference to the lease, but the trial court found that the purchaser’s agent knew of the lease and of defendant’s occupancy and concluded that the agent had agreed that the purchase would be “subject to” the lease:

This result was reached in Stanley v. Orkin Exterminating Co., Inc., 360 So.2d 225 (La.App. 1st Cir. 1978), where it was expressly shown that the purchaser intended to purchase subject to an unrecorded lease. Mere knowledge of a purchaser that an unrecorded lease burdens the immovable, however, is not sufficient to support the conclusion that the purchaser intended the purchase to be “subject to” the lease. LSA-C.C. arts. 2015, 2266. See State v. Sinclair Refining Company, 25 So.2d 543 (La.App. 2d Cir. 1946). See also LSA-C.C. arts. 1764(2), 1959, 2474-76, 2503.

We reverse.

The sellers here intended to sell the property subject to the unrecorded lease, but the controlling issue is whether the purchaser intended to purchase subject to the lease.

The trial court considered the testimony of the sellers and a written memorandum that was made by one of the sellers during negotiations to preponderate that the purchase of the property would be subject to the lease. The memorandum was prepared to show the status of the building and of several mortgages affecting the property. The memorandum included this language:

“. . . second mortgage secured through rent assignment of $900 per month . . . lease terminates July 30, 1985.”

The sellers generally testified that the property was never offered to the purchaser on any terms other than that the purchase would be subject to the lease. The sellers emphasized that the purchaser’s agent asked no questions and made no comments to indicate that the purchase would not be subject to the lease.

“For the lack of any negative response on [the purchaser’s] part, then as far as we [the sellers] were concerned, the sale was only conditional along with the lease.” “It was a conclusion by everyone that the deal had to include the leases . . . ”
“Because there was no other expression made, that there was any other way [that the sale] could be handled, by anybody in the room.”

The sellers contended that the written memorandum made it clear that the sale would be subject to the lease. Yet the memorandum is not truly express on this point. The purchaser does not deny his agent’s knowledge or the fact that a copy of a partially executed sub-lease agreement of the property which was marked “not accepted” was delivered to the agent. The agent testified:

“Did they [the sellers] tell you that the property was being offered only subject to the lease?”
“No, sir ...”
“They said that there was a lease.”

The memorandum expressly requires that several mortgages be paid. It states that the interest of one seller can be acquired “by paying [the] bank’s second mortgage of $30,032”, that the interest of another seller can be acquired “by paying [the] bank’s second mortgage of $10,968”, and that the [three] sellers will convey the property “on payment of mortgage interest of [the] bank.”

Once the documents by which the transaction was to be consummated were prepared, one seller obtained copies and discussed the documents with the sellers’ attorney prior to the execution of these documents. This seller acknowledged that he was not concerned with and did not discuss with his attorney, the unrecorded lease.

Under the circumstances shown, the unrecorded lease did not affect the purchaser, nor follow the immovable property into the purchaser’s hands because the defendant tenant failed to record its lease and because it is not shown that the purchaser intended that the purchase would be subject to the lease. See authorities supra, and LRS-9:2721, Brown v. Matthews, 3 La.Ann. 198 (1848).

Judgment on the principal demand is reversed. Because eviction proceedings are specially provided for by LSA-C.C.P. arts. 4701-4705 and 4731-4735 and because third party demands are yet to be adjudicated, this cause is remanded for judgment and for further proceedings consistent with this opinion.

REVERSED and REMANDED.


text:
    Obie Glen SIMS, Plaintiff-Appellee, v. Nora Roberts SIMS, Defendant-Appellant.
    No. 14197.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 1980.
    En Banc. Rehearing Denied Sept. 29,1980.

      J. P. Mauffray, Jr., Jena, for defendant-appellant.
    Charles W. Robinson, West Monroe, for plaintiff-appellee.
    Before PRICE, MARVIN and FRED W. JONES, JJ.
   MARVIN, Judge.

This appeal presents what has been called a most troublesome, confusing, and conflicting issue of the venue of a change-of-custody action between divorced parents.

Venue in this action might lie in any of three parishes, (1), the parish where custody was awarded the mother as an incident of the divorce, (2), the parish where the mother is domiciled when the change-of-custody action is brought, and, (3), the parish where the child is present.

Here the father’s action was brought in parish (3) where the child resided with him. The trial court overruled the mother’s exception of improper venue, citing Lucas v. Lucas, 195 So.2d 771 (La.App.3d Cir. 1966), writ refused, 250 La. 539, 197 So.2d 81 (1967), and changed the custody to the father. We do not interpret Lucas as did the trial court and we do not reach the merits. We reverse the trial court and sustain the exception of improper venue.

Venue has been called troublesome because the issue has sometimes been resolved in terms of jurisdiction. In Lucas, the divorced father brought a change-of-custody action in parish (3). The mother contended, and on original hearing the court of appeal agreed, that the exclusive jurisdiction was in parish (1). On rehearing, the court of appeal determined that venue in parish (1) was not “exclusive” and that venue in parish (3) was also proper because the mother was domiciled in Mexico and the children were present in parish (3), citing CCP 10(5), a jurisdictional article. The Supreme Court denied writs, but on the express grounds that the mother had waived her exception of improper venue by filing it with other exceptions. In Hopkins, cited in footnote 1, Lucas was distinguished on its facts. In Dupre, cited in footnote 2, Lucas was not mentioned. Dupre stated:

. [W]e find that [the cases of] Wright, Colby, Hopkins, and White, [cited] above, establish the rule that a court which renders judgment for alimony, custody or child support incident to an action for divorce, retains exclusive jurisdiction for the purpose of modifying such a decree.” 336 So.2d 329. Our emphasis and bracketed material.

An earlier pronouncement by the Supreme Court stated:

“A judgment granting to either parent the care and custody of his or her minor child . . . in a decree of divorce is not irrevocable. It is subject to modification at any time when a change of conditions demands it. * * * The court that has jurisdiction to determine the extent to which a judgment shall be executed, or to modify it, in so far as it is only executory and not irrevocable, when the judgment has become otherwise final, is the court that rendered the judgment.” Pullen v. Pullen, 161 La. 721, 109 So. 400, 401-402 (1926) Citations omitted, emphasis supplied.

Jurisdiction is a separate and distinct legal concept from venue. Compare Chaps. 1 and 2, Title 1, Book 1, La. CCP. Jurisdiction is concerned with the power and authority of a court, either over the subject matter of a particular action, or over the person of a particular defendant. Subject matter jurisdiction is not waivea-ble. CCP 1, 2, and 3. Jurisdiction over the person may be waived, but this jurisdiction is oriented to constitutional due process and not to venue. CCP 6. Odom v. Odom, 345 So.2d 1154 (La.1977). See also Ahlers v. Ahlers, 384 So.2d 474 (La.App.2d Cir. 1980) where we considered the Louisiana long arm statute and collaterally discussed venue in jurisdictional terms a la Dupre.

Venue is not concerned with the power and authority of a court, but with the parish where an action may be brought. CCP 41. Generally the venue rules emphasize that any action against an individual defendant shall (should) be brought in the parish of that defendant’s domicile. CCP 42. See also CCP 123. Some actions, including the habeas corpus custody action, may be brought in either of two or more parishes at the option of the plaintiff. See CCP 3822. See also CCP 44, 45, and those actions governed by CCP 71-77. While all of the venue rules following CCP 42, are labeled as exceptions, the venue rules in CCP 71-77 perhaps more correctly provide “additional” or optional venue, allowing a plaintiff the option of bringing suit in one of several parishes. See Richardson v. Moore, 304 So.2d 425 (La.App.lst Cir. 1973), Green v. Engolio, 257 So.2d 831 (La.App.lst Cir. 1972).

The venue rules in CCP 78-83 are considered differently from the venue rules in CCP 71-77. CCP Arts. 78-83 exclusively govern venue if that venue conflicts with general venue (CCP 42) or with the additional venue provided in CCP 71-77. CCP 45 provides:

“The following rules determine the proper venue in cases where two or more articles in this Chapter may conflict:
“(1) Article 78, 79, 80, 81, 82, or 83 governs the venue exclusively, if this article conflicts with any of Articles 42 and 71 through 77;
“(2) If there is a conflict between two or more Articles 78 through 83, the plaintiff may bring the action in any venue provided by any applicable article; and
“(3) If Article 78, 79, 80, 81, 82, or 83 is not applicable, and there is a conflict between two or more of Articles 42 and 71 through 77, the plaintiff may bring the action in any venue provided by any applicable article.”

The venue of the actions provided in CCP 78-83 smacks of preference. For instance, CCP 82 provides that an action to partition community property, either as an incident of the action which would result in dissolution of the community, or as a separate action, “ . . . shall be brought . . . in the parish where the judgment dissolving the community was rendered [and] may be brought in the parish where any immovable property [of the community] is situated.” See also CCP 83. This venue, in the parish where the principal action was brought is preferred [shall be brought], although venue in another parish where immovable property is situated is permissible [may be brought]. The CCP 45 issue of whether CCP 82 conflicts with CCP 42 is not considered in our discussion of these articles to illustrate the approach of the Code to venue problems. If such a conflict exists, CCP 82 “. . . governs the venue exclusively.” CCP 45(2). CCP 123 adopts the forum non conveniens doctrine in Louisiana.

While a special rule of non-waiveable venue is provided for separation and divorce actions by CCP 3941, the Code does not provide a special rule for the venue of the incidents of separation or divorce. Change-of-custody venue is waiveable. CCP 44, Lucas, supra. Legislative intent relating to venue, however, is discernable from the rules which are provided generally, and in other cases, specially, as we have attempted to illustrate.

A custody dispute between the mother and father of a child is an incident of separation or divorce. Dupre, supra. The subject matter of the action to change custody is the child. In an action by a father against a mother to change legal custody, the proper party defendant is, of course, the mother. Any rule in derogation of the general policy that an action against an individual should be brought in the parish of that individual’s domicile is strictly construed. Dupre, supra. Optional venue is permissible in some actions. CCP 71-77. See also CCP 3822. Preferred venue is provided for other actions. CCP 78-83. The objection to a venue, otherwise proper, by means of the declinatory exception of improper venue, may be waived in some, but not all, actions. CCP 44,121, and Comments following. Lucas, supra.

Giving effect to these approaches, and attempting to avoid derogation of the general venue of CCP 42, we discern this policy:

The change-of-custody action as an incident of a divorce action, pending the divorce judgment, should be brought in the parish where the divorce is pending. This is incident-preferred venue, preferred over venue which otherwise would be proper.
After a divorce is rendered, additional or optional venue is provided. The change-of-custody action after divorce should be brought at the option of the plaintiff, either as an incident action in the parish where the divorce was rendered, or as a separate action in the parish of the defendant’s domicile. This venue, even though optional, is preferred over venue which otherwise would be proper. Compare CCP 3822.
After divorce, the change-of-custody action may be brought as a separate action in any parish where the child is situated (to adopt CCP 82-83 language), but this venue, if not waived by the defendant, is vulnerable to the declinatory exception of improper venue, and is the least preferred venue.

We hold that the mother’s exception of improper venue is well founded. We reverse the trial court and sustain the exception. Because the father has the option to bring a new action, either in parish (1) or in parish (2), we dismiss the father’s change-of-custody action in parish (3) as of non-suit, but at his cost. CCP 932.

REVERSED AND RENDERED.

      . Hopkins v. Hopkins, 300 So.2d 661, 662 (La. App.3d Cir. 1974): “Once again we are confronted with a question of venue relating to incidental demands in family litigation. This is a most troublesome area for our trial courts.”

      . Dupre v. Pelotto, 336 So.2d 329, 331 (La. App.lst Cir. 1976): “Our review of the authorities reveal some confusion in this area as well as some seeming conflict.”

      . We do not address the issue of whether incident-preferred venue is non-waiveable as the CCP provides in separation and divorce actions. CCP 3941. Such a provision elevates “non-waiveable venue” to jurisdictional status. In some instances a separation is obtained without either party intending a divorce. A change-of-custody action in the parish of the separated mother’s domicile brought years after the separation judgment perhaps would be the most convenient forum. See Lucas v. Lucas, 195 So.2d 779, 780 (La.App.3d Cir. 1966). See CCP 123.

      . The mother’s exception to subject matter jurisdiction is without merit because this venue is not jurisdictional. We also consider that the mother’s voluntary surrender of the “custody” of the child to the maternal grandmother is of no legal consequence when it is shown that this “custody” was conferred as a convenience to the mother when she entered military service, and because the maternal grandmother asserts no custodial claims to the child, even though she was made a party to the action. See and compare Languirand v. Languirand, 350 So.2d 973 (La.App.2d Cir. 1977), CCP 157, and Burt v. McKee, 384 So.2d 489 (La.App.2d Cir. 1980).


author: FRED W. JONES, Judge.

text:
    Douglas Ray JOHNSTON, Plaintiff-Appellant, v. George CUMMINS and Lafayette Insurance Company, Defendants-Appellees.
    No. 14203.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 1980.

      Wright & Wright by Ned D. Wright, Monroe, for plaintiff-appellant.
    Hayes, Harkey, Smith & Cascio by Charles S. Smith, Monroe, for intervenor— appellant, Houston General Insurance.
    Wegmann & Longenecker by Geoffrey H. Longenecker, New Orleans, for defendants-appellees.
    Before PRICE, MARVIN and FRED W. JONES, JJ.
   FRED W. JONES, Judge.

Johnston filed suit in tort against Cum-mins and his homeowner’s insurance carrier for injuries sustained when plaintiff was painting the roof of Cummins’ home. It was alleged that Cummins had employed Cagle, a general contractor, to renovate his home and that Cagle had subcontracted the painting of the roof to Johnston. Cagle’s workmen’s compensation insurance carrier intervened, seeking to recover workmen’s compensation benefits paid to plaintiff.

Defendants filed an exception of “no right or cause of action” asserting that since Cummins was Johnston’s statutory employer, plaintiff’s action in tort was barred because his sole remedy was in workmen’s compensation. The exception was simply presented for decision on the record to the trial judge, who then sustained the exception and ordered plaintiff’s suit dismissed. Plaintiff and intervenor appealed devolutively from this judgment.

As pointed out in Bamber Contractors, Inc. v. Henderson Bros., Inc., 345 So.2d 1212 (La.App. 1st Cir. 1977), Louisiana does not have an exception of “no right or cause of action.” We do have an exception of “no cause of action,” La.C.C.P. Article 927(4), and an exception of “no right of action,” La.C.C.P. Article 927(5). Although the ex-ceptors in this case do not employ the correct terminology, for purposes of this discussion we treat their pleading as an attempt to urge both of the described exceptions.

No Cause of Action

The purpose of the peremptory exception of “no cause of action” is to test whether plaintiff’s allegations entitle him to any remedy whatsoever at law. For purposes of deciding this exception all well-pleaded allegations of the petition must be taken as true. Any doubt as to the sufficiency of the petition must be resolved in favor of plaintiff. Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La. 1975); American Bank & Trust Co. v. French, 226 So.2d 580 (La.App. 1st Cir. 1969).

As pointed out in Steagall v. Houston Fire & Casualty Co., 138 So.2d 433 (La.App. 3rd Cir. 1962):

“. . .in passing on an exception of no cause of action, a plaintiff is not required to negate all statements of fact which might bar his own recovery but, rather, the exception must be overruled unless its allegations affirmatively establish that under no facts admissible under the allegations of the petition does he have a cause of action and unless its allegations exclude every reasonable hypothesis of facts other than those showing that the plaintiff cannot recover as a matter of law.”

In this case plaintiff alleged that, while carrying out his work as a painting subcontractor on the roof of Cummins’ home, “without warning, a portion of the roof collapsed” and plaintiff fell some 10 to 12 feet to the floor of the concrete carport. He then proceeded to enumerate the ways in which Cummins was negligent and asserted that the homeowner was strictly liable to plaintiff under La. Civil Code Article 2322.

Obviously plaintiff alleges facts which, if true, constitute “a particular grievance for which the law affords a remedy.” Therefore, assuming that defendants’ pleading includes an exception of “no cause of action,” that exception must be overruled.

No Right of Action

Since it is concluded that plaintiff’s petition states a cause of action, the next question is whether the remedy afforded by law can be invoked by this particular plaintiff. An exception of “no right of action” is the appropriate vehicle for raising that issue. Holzhauser v. Fagan, 363 So.2d 1232 (La.App. 4th Cir. 1978); Bamber Contractors, Inc. v. Henderson Bros., Inc., supra.

It was noted in Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App. 3rd Cir. 1967), that:

“The want of interest raised by the exception relates primarily to whether the particular plaintiff falls as a matter of law within the general class in whose favor the law grants the cause of action sought to be asserted by the suit . . .”

The exceptors in this case are apparently contending that, even though plaintiff stated a cause of action in tort for which someone may have a remedy, the law does not afford a tort remedy to this particular plaintiff because Cummins was his statutory employer. Consequently, it is argued that plaintiff is restricted to a claim for workmen’s compensation benefits.

It is a well-established rule of law in this state that the plea of “statutory employer” under the provisions of La. R.S. 23:1061, whether as the basis of a suit or as a defense, is an affirmative plea and the burden of proof is upon the party asserting it. Duplechin v. Pittsburgh Plate Glass Co., 265 So.2d 787 (La.App. 3rd Cir. 1972); James v. Lykes Bros. S.S. Co., 175 So.2d 444 (La.App. 4th Cir. 1965). Also see Malone-Johnson, “Worker’s Compensation,” 2d Ed., La. Civil Law Treatise, Vol. 14, § 126, p. 259.

Defendants are apparently asserting their affirmative defense of “statutory employer” by means of an exception of “no right of action.” It is axiomatic that evidence is admissible, in connection with the trial of this particular exception, to show a lack of plaintiff’s interest in the subject matter of the litigation or that plaintiff does not possess the right to assert the claim sued upon. Bielkiewicz v. Rudisell, supra; Gibbons v. Kansas City Southern Ry. Co., 100 So.2d 319 (La.App. 2nd Cir. 1957). However, in this case no evidence at all was offered by the exceptors in support of their plea at the trial of the exception. Since they had the burden of proving their affirmative defense and failed to discharge that burden, the exception of “no right of action” must be overruled.

Conclusion

For the reasons set forth, the judgment of the trial court sustaining defendants’ exceptions is reversed and set aside and the exceptions are overruled. The case is remanded to the trial court for further proceedings consistent with the views herein expressed. Costs of the appeal are cast against defendants-appellees.


author: HALL, Judge.

text:
    Dudley C. BEENE, Plaintiff-Appellant, v. Clara Columbia Geottell WILBUR, Defendant-Appellee.
    No. 14206.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 1980.
    Glen H. Smith, Shreveport, for plaintiff-appellant.
    James L. Fortson, Shreveport, for defendant-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   HALL, Judge.

Plaintiff, Dudley C. Beene, filed suit seeking to set aside a sheriff’s sale made in an executory proceeding brought by defendant, Clara Columbia Geottell Wilbur, to foreclose a mortgage affecting an undivided one-half interest in property owned by the plaintiff, at which sale the undivided interest in the property was purchased by defendant. Essentially, the grounds alleged by plaintiff for setting the sale aside are that defendant’s mortgage, granted by Edward W. Wilbur at a time when Wilbur owned an undivided one-half interest in the property, was extinguished under LSA-C.C. Art. 1338 when the property was sold at a previous sheriff’s sale held to effect a partition by licitation between plaintiff and Wilbur, at which sale the property was purchased by plaintiff.

Defendant filed exceptions of no cause and no right of action and a motion for summary judgment. After a hearing on the exceptions and the motion, the trial court held that since defendant, the mortgage holder, was not made a party to the partition suit, her rights were not transferred to the proceeds of the licitation sale and her mortgage remained effective against the undivided one-half interest. The trial court further held that since plaintiff did not seek to enjoin the sheriff’s sale held in the foreclosure action, he cannot assert the invalidity of the sale in this proceeding. Finding the exceptions should be sustained, the trial court held the motion for summary judgment was moot. From a judgment sustaining the exceptions of no cause and no right of action and dismissing the plaintiff’s suit, plaintiff appealed.

The allegations of the petition, together with the judicial proceedings referred to in the petition, disclose the following facts. In June 1977, Edward W. Wilbur filed suit against Dudley C. Beene to partition the property by licitation. At that time the plaintiff and defendant each owned an undivided one-half interest in the property. Wilbur’s undivided one-half interest was encumbered by a special mortgage in the amount of $10,000 granted by him in favor of his mother, Clara Columbia Geottell Wilbur, in April 1977. On May 10, 1978, the property was sold at public sale to effect the partition to Dudley Beene for a price of $15,100. The mortgage certificate obtained by the sheriff reflected the $10,000 mortgage. Mrs. Wilbur, the mortgagee, was not made a party to the partition suit. The proceeds of the sale, less costs, were paid by the purchaser to the sheriff.

On June 14, 1978, the notary public appointed to effect the partition filed a tableau of proposed distribution proposing to distribute the purchase price, after deduction of costs, one-half to Dudley C. Beene and one-half to Clara Wilbur as holder of the mortgage affecting the undivided one-half interest formerly owned by Edward Wilbur, and seeking an order cancelling or releasing the mortgage insofar as it affected the property sold at the partition sale. On July 12, 1978, Clara Wilbur intervened in the partition suit opposing the tableau of proposed distribution and particularly the cancellation of her mortgage since the amount proposed to be paid to her ($7,152.33) was insufficient to satisfy the mortgage indebtedness.

On June 27, 1978, Clara Wilbur, represented by Edward W. Wilbur as her agent and attorney-in-fact, filed suit against Edward Wilbur to foreclose the mortgage by executory process, alleging the full amount of $10,000 plus interest was past due and unpaid. Dudley Beene intervened in the foreclosure suit alleging entitlement to any proceeds of the sheriff’s sale and also filed an exception of no cause or right of action. He did not seek to enjoin the sale and in due course on September 20,1978, the undivided one-half interest in the property was sold at sheriff’s sale without benefit of appraisement to Clara Wilbur for $500.

On May 16, 1979, Edward Wilbur, Dudley Beene, and Clara Wilbur filed a joint motion in the partition suit authorizing the distribution of the funds held by the notary one-half to Beene and one-half to Wilbur, reserving the right to Beene to challenge the executory proceeding and to seek cancellation of the mortgage. On May 29, 1979, Beene filed the instant suit seeking to set aside the sale held in the executory foreclosure proceeding on September 20, 1978, and to be declared the true and lawful owner of the property.

The essential issue raised on appeal is whether defendant’s mortgage affecting an undivided one-half interest in the property was extinguished by the sheriff’s sale held to effect a partition by licitation of the property between plaintiff and Edward Wilbur. We hold that under LSA-C.C. Art. 1338 and Sutton v. Sutton, 320 So.2d 597 (La.App.4th Cir.1975), since the mortgage holder was not made a party to the partition suit, the mortgagee’s rights were not transferred to the proceeds of the sale which were insufficient to satisfy the mortgage indebtedness, and the property passed to the purchaser at the sale subject to defendant’s mortgage, which was unaffected by the partition sale and remained in full force and effect as to the undivided one-half interest covered thereby. It follows that the mortgage was enforceable by foreclosure under executory process and the sheriff’s sale held thereunder was valid.

The last sentence of LSA-C.C. Art. 1338, added by amendment in 1896, provides:

“That in all judicial partitions, where a partition is made by licitation, the mortgages, liens and privileges existing against any one or more of the coproprie-tors, shall be by order of Court transferred to the proceeds of sale in the hands of the Notary, and the rights of all creditors shall be reserved on the said proceeds of sale to be urged by them, either before the notary or before the court, as may be necessary, provided the holders of such mortgages, liens and privileges be made parties to such judicial partition.”

In Sutton, the court held that a mortgage is extinguished by a partition sale only if the mortgagee was made a party to the partition. The court refused to order cancellation of a judicial mortgage affecting one co-owner’s undivided one-half interest in the property where the mortgage holder was not made a party to the judicial partition. The court noted that a mortgage follows the immovable subject to it into whatever hands the immovable passes, LSA-C.C. Art. 3282, and that the special rule provided by LSA-C.C. Art. 1338 which would deprive a mortgage holder of its security must be strictly construed. The court noted that the reason for the provision that the mortgagee be made a party to the judicial partition is to make certain that the mortgage holder knows of the judicial sale and is able to bid to protect his interest.

The Sutton case is in point, correctly interprets LSA-C.C. Art. 1338, and is determinative of the issue presented by the instant case. Earlier cases decided prior to the 1896 amendment and later cases not directly involving the issue presented by this case, cited by plaintiff, are inapposite.

Plaintiff argues that notice to the mortgage holder of the pendency of a partition suit is the essence of the code article and since it is alleged that defendant had notice of the partition suit, the provisions of the article apply and she is relegated to the proceeds of the sale. This argument ignores the plain and unambiguous language of the article which relegates a mortgage holder to the proceeds of a sale only when the mortgagee is “made a party to the suit.” Notice alone, when the mortgagee is not made a party to the partition suit, is insufficient to trigger the provisions of the code article. Relying on the express language of the article, a mortgage holder is not required to intervene in such a suit or to bid to protect his interest, because the suit and sale pursuant thereto does not affect the mortgage, unless the mortgagee is actually made a party to the suit.

Plaintiff also argues that in this case the defendant-mortgage holder intervened in the partition suit and claimed the proceeds of the licitation sale. The pleadings in the partition suit, referred to in plaintiff’s petition, belie this argument. Defendant intervened after the sale only to oppose the notary’s tableau of distribution which proposed payment to her of her mortgagor’s share of the sales price (less than the amount due on the mortgage) and cancellation of the mortgage. LSA-C.C. Art. 1338 contemplates that the mortgagee be made a party to the suit prior to the sale in order that the mortgagee may protect, himself by bidding at the sale. Where the mortgagee is made a party to the suit or intervenes after the sale, the mortgage is extinguished by payment only if the mortgagee claims the proceeds and those proceeds are sufficient to discharge the mortgage.

Here, the plaintiff could have protected himself from the outset by making the mortgagee a party to the partition suit.

Plaintiff further points out the peculiar circumstances of this case that the co-owner and mortgagor of the property, Edward Wilbur, was the defendant’s son, and acted for defendant as her agent in bringing the foreclosure suit. However, there are no allegations that the mortgage was not bona fide or was not in arrears at the time the foreclosure suit was brought. There are no allegations of fraud or collusion on the part of the defendant.

Summary judgment may have been the more appropriate procedural vehicle for disposition of this case. In any event, the judgment of the district court dismissing plaintiff’s suit is correct and is affirmed at appellant’s costs.

Affirmed.