author: HALL, Judge.

text:
    E.K. OSWALT, Jr., Plaintiff-Appellee, v. IRBY CONSTRUCTION COMPANY and Liberty Mutual Insurance Company, Defendants-Third Party Plaintiffs-Appellants.
    No. 15028.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1982.

      Davenport, Files & Kelly by William G. Kelly, Jr., Monroe, for defendants-third party plaintiffs-appellants, Irby Const. Co. and Liberty Mut. Ins. Co.
    Theus, Grisham, Davis & Leigh by Phil D. Myers, Monroe, for third party defendant-plaintiff-in-reconvention-appellant, Louisiana Power & Light Co., Inc.
    Voelker, Ragland, Brackin & Crigler by Frank Voelker, Jr., Lake Providence, for plaintiff-appellee E.K. Oswalt, Jr.
    Before HALL, JASPER E. JONES and NORRIS, JJ.
   HALL, Judge.

Plaintiff, E.K. Oswalt, Jr., filed suit on June 21, 1973 against Irby Construction Company and its liability insurer, Liberty Mutual Insurance Company, for damages to plaintiff’s rice crop growing in two separate fields which plaintiff was farming under a written unrecorded agricultural lease from the landowner. Plaintiff alleged that the damages resulted from Irby’s construction of power lines across the rice fields pursuant to a construction contract between Irby and Louisiana Power & Light Company which had a right of way across the property previously granted by the landowner. Plaintiff alleged that the defendant negligently crossed the rice fields with track vehicles causing breaks in water retaining levees which resulted eventually in loss of water level control capability and reduced rice production, both on and off the right of way. Plaintiff sought damages in the total amount of $25,485.45 for loss of rice production and expenses related to the alleged damages.

Defendants filed an exception of prescription, alleging that the activities complained of occurred on June 3,1972 and that the suit was brought outside the one-year prescriptive period provided by LSA-C.C. Art. 3536. In opposition to the exception plaintiff asserted the applicability of the two-year prescription of LSA-R.S. 9:5624.

Defendants also filed an exception of no right and no cause of action, maintaining that Irby’s construction activities were performed under a recorded right of way granted to Louisiana Power & Light in 1966 by plaintiff’s lessor, precluding any claim for damages by plaintiff who was the holder of an unrecorded agricultural lease on the premises granted in 1970, specifically subject to any existing servitude agreements.

Defendants answered plaintiff’s petition, denying liability. Defendants asserted alternatively a third-party demand against Louisiana Power & Light alleging their entitlement to recover any sum for which they are liable to plaintiff from the third-party defendant under the provisions of the construction contract between the parties.

Louisiana Power & Light answered the third-party demand, denying liability to the third-party plaintiff. The third-party defendant also filed a reconventional demand against Irby seeking attorney fees under the hold harmless and indemnity provisions of the construction contract.

The case was tried in May 1981. In written reasons for judgment the trial court concluded that (1) as stipulated by the parties the construction of an electrical transmission line was for public purposes and, therefore, the two-year prescriptive period is applicable; (2) Irby was at fault in crossing and damaging plaintiff’s levees without first giving notice of its contemplated activities and in failing to properly repair the damaged levees, and Irby’s actions resulted in damage to plaintiff’s rice crop; (3) plaintiff had a proprietary interest in the growing crop and was not precluded from recovering for damages to the crop by reason of the right of way grant under which the landowner retained the right to farm the property; (4) although the right of way grant did not contain a stipulation pour autrui, obligating the grantee to pay crop damages to plaintiff, plaintiff was entitled to recovery for his damages in tort under LSA-C.C. Art. 2315; and (5) Louisiana Power & Light was jointly liable with Irby to the plaintiff and, therefore, was liable for contribution to Irby to the extent of one-half of the award in favor of plaintiff.

Judgment was rendered in favor of plaintiff against Irby and its insurer for $15,-913.02 representing an award of $9,668.96 for loss of rice production on the 102-acre field, $2,003.06 for damage to the rice crop growing within the right of way on the 300-acre field caused by vehicular traffic across the right of way, and $4,241 expenses incurred by plaintiff. Judgment was also rendered ordering contribution by Louisiana Power & Light to Irby and its insurer to the extent of one-half of the award to plaintiff. The reconventional demand of Louisiana Power & Light Company was denied.

Irby and its insurer and Louisiana Power & Light appealed. The plaintiff did not appeal nor answer the appeal. On appeal Irby and Liberty Mutual urge that having found the damage to the plaintiff’s crop was caused by Irby as necessary and incidental to the erection of the transmission line, the trial court erred in concluding that the law afforded the plaintiff as the holder of an unrecorded agricultural lease a remedy against the defendant who was exercising the rights specifically granted in a previously obtained and recorded right of way-permit. Citing Andrepont v. Acadia Drilling Company, 255 La. 347, 231 So.2d 347 (1969) and Hargroder v. Columbia Gulf Transmission Co., 290 So.2d 874 (La.1974), defendants argue that plaintiff cannot recover in the absence of a stipulation pour autrui, which the trial court correctly found was not contained in the right of way instrument. Defendants reurge their plea of prescription, contending that two-year prescription does not apply where the damage resulted from negligent actions of the defendant. Finally, defendants contend that they are entitled to be fully indemnified by Louisiana Power & Light under provisions of the construction contract requiring Louisiana Power & Light to furnish the right of way and obligating Louisiana Power & Light to pay for crop damages within the right of way.

Louisiana Power & Light makes essentially the same arguments relative to the plaintiff’s right to recover and additionally contends that plaintiff had no right to build the levees on the right of way because of prohibitory clauses in the right of way grant and that damages for crop losses sustained within the right of way were settled with the landowner at the time the right of way was granted. Louisiana Power & Light further argues that under the hold harmless and indemnity provisions of the contract it has no liability to third-party plaintiff and that under these same provisions Irby is liable to it for its attorney fees incurred in defending the third-party demand.

Context Facts

In 1966 the landowner granted to Louisiana Power & Light Company a right of way and servitude across several sections of land in East Carroll Parish for the purpose of constructing, operating, and maintaining electric power lines. The grantee was granted the right to open, clear, and maintain the right of way and to keep the same clear of underbrush, trees, other growths, and any obstruction which might interfere with or constitute a hazard to the operation of the electric lines. It was stipulated that the right of way would not be fenced by the grantee and that the grantor shall have full use of the right of way except for the purposes for which same was conveyed to the grantee and except for uses which interfere with the enjoyment by grantee of the rights and servitude conveyed, and provided that no building or structure of any nature or kind shall be constructed on said right of way. The instrument provided that right of way and timber damage was settled by the execution thereof, and the grantee agreed to pay any other damages not included in the above settlement which may be inflicted by it in the construction and maintenance of the lines, provided an itemized claim thereof shall be presented by the grantor in writing. The right of way grant was duly recorded.

In December 1970 the landowner executed a written agricultural lease to the plaintiff which included the two fields crossed by the right of way previously granted to Louisiana Power & Light. The lease provides that it is subject to any existing gas, electrical, or other utility or public easements or rights of way. The lease was not recorded.

Plaintiff grew a rice crop on the leased property in 1971 and planted rice again in early 1972. Levees for the control of water in the rice fields which must be flooded at critical stages were constructed by plaintiff traversing the fields including the area within the right of way. In May 1972 Irby began work along the right of way pursuant to its contract with Louisiana Power & Light, first building foundations for the necessary poles, then erecting the poles. When this work was done the fields had been planted, the rice was up, but the fields had not been flooded. About a week after the poles were put up, on June 3 or 4, Irby pulled the transmission lines onto the poles, using a modified tank and other heavy equipment. By this time the 102-acre field had been flooded but the 300-acre field had not.

When the Irby crew got to the 102-acre flooded field its foreman telephoned supervisory personnel to obtain instructions as to how to proceed. He was instructed to cross the levees with the equipment and to repair any resulting damage to the levees as he went along. There was no attempt by Irby personnel to contact plaintiff or his lessor.

As the heavy equipment traversed the fields it damaged the rice crop planted on the right of way in both fields. In the 102-acre field the equipment caused numerous breaks in the levees on the right of way which set off a chain reaction causing breaks in the levees throughout the field resulting in some areas having too little water and other areas having too much water. The Irby crew made efforts to repair the levees as they went along but through lack of experience and knowledge of how to do the levee work were unsuccessful in their repair efforts.

Oswalt discovered the damage on June 4 and promptly contacted Irby’s representatives. Irby continued efforts to repair the levees for approximately two weeks but its attempts were unsuccessful and Irby abandoned its efforts by June 15. Thereafter plaintiff with his own men and equipment continued to try to repair the levees and control the water but his efforts were largely unsuccessful.

It was established that plaintiff suffered a loss of 42 bushels per acre on 69.2 acres of the 102-acre field because of inability to control the flooding and that the average price for rice harvested from that field was $3.30 per bushel. It was also established that plaintiff suffered a 50 percent loss of his crop growing within the right of way in the 300-acre field.

Prescription

Appellants contend that the trial judge erred in applying the two-year prescription of LSA-R.S. 9:5624, which applies when private property is damaged for public purposes. It was stipulated by the parties that the construction of the power line was for public purposes. Appellants maintain however that the two-year period is applicable only for damages resulting from intentional and necessary work and is not applicable to a claim for damages resulting from negligent acts. Appellants rely on Perkins v. Simon, 265 So.2d 804 (La.App. 3d Cir.1972) which held that the two-year prescriptive period is applicable only when the damage to private property is the intentional or necessary result or consequence of the construction work incidental to a public purpose and is not applicable to a claim for damages resulting exclusively from the negligent acts or omissions of the person causing the damage.

More closely in point is Miller v. Colonial Pipeline Company, 173 So.2d 840 (La.App. 3d Cir.1965). In that case irrigation levees on a rice farm were damaged in the course of construction of a pipeline by the defendant. The court held that the two-year prescriptive period was applicable since the irrigation levees were destroyed as an intentional and necessary consequence of the construction of the pipeline. The same is true in the instant case. The public purpose work which caused the damage was intentional and necessary and it matters not for purposes of determining the applicable prescriptive period that the work was done in a negligent manner or that the full extent of the damages might have been unintentional. See also Angelle v. State, 212 La. 1069, 34 So.2d 321 (1948); Florsheim v. Department of Highways, 201 So.2d 155 (La.App. 2d Cir.1967).

The trial court correctly held that the two-year prescriptive period is applicable and that, accordingly, plaintiff’s suit was timely filed.

Irby’s Liability

It is well established that standing or growing crops are susceptible of ownership separate from the ownership of the land on which they are grown and that such crops are owned by a predial lessee as movables by anticipation. Jardell v. Sabine Irrigation Co., Inc., 346 So.2d 1365 (La.App. 3d Cir.1977). See Yiannopoulos, Louisiana Civil Law Treatise, Property, 2d Edition, §§ 88 and 91. The courts have often recognized the right of a predial lessee to recover under LSA-C.C. Art. 2315 from those who damage his growing crops. Moity v. Petty-Ray Geophysical, Inc., 369 So.2d 225 (La.App. 3d Cir.1979); Watkins v. Gulf Refin ing Co., 206 La. 942, 20 So.2d 273 (1944); Hebert v. United Gas Pipeline Company, 210 So.2d 71 (La.App. 1st Cir.1968); LeJeune v. J.W. Cappel Trust, 405 So.2d 647 (La.App. 3d Cir.1981); Jardell v. Sabine Irrigation Co., Inc., supra.

Under LSA-C.C. Art. 2703 the lessee has a right of action against any person not claiming a right to the premises for damages caused by disturbance of the lessee’s use or enjoyment of the leased premises, regardless of whether the lease is recorded. Bergeron v. Con-Plex, Inc., 255 So.2d 397 (La.App. 1st Cir.1971); Cane River Needle Art v. Reon, Inc., 335 So.2d 751 (La.App. 3d Cir.1976), writ refused 339 So.2d 15 (La.1976).

It is clear, therefore, that the plaintiff lessee had a proprietary interest in his growing crop and a right and cause of action against the defendant Irby to recover for damages to his crop growing outside of the right of way caused by the defendant’s fault. Defendant had no rights and claimed no rights to the leased premises outside of the limits of the 100-foot right of way. As to the damage to the crop growing outside of the right of way, appellant’s argument that plaintiff’s lease agreement must be recorded pursuant to LSA-R.S. 9:2721 as a prerequisite to recovery is plainly without merit. The requirement of rec-ordation “is established in favor of persons who acquire interest in the land in reliance on public records. It should have nothing to do with persons who cause damage to the crops of a lessee.” Yiannopoulos, Louisiana Civil Law Treatise, Property, 2d Edition, § 91.

No award was made for damages to the crop growing outside of the right of way in the 300-acre field. As to the 102-acre field, the award was principally for off right of way crop damages caused by defendant’s actions in breaking the levees on the right of way and failing to properly repair them, as distinguished from damage to that part of the crop growing on the right of way caused directly by the passage of the vehicles over the growing plants. Defendant’s fault under LSA-C.C. Art. 2315 could be predicated by analogy to LSA-C.C. Art. 667 simply on the use of the property over which it held a servitude in such a manner as to cause injury to adjacent property. Charia v. Stanley, 359 So.2d 291 (La.App. 4th Cir.1978). Additionally, however, defendant was negligent in failing to notify the owner of the crop of its intention to cross the levees, in which case the damages could have been substantially minimized if not entirely prevented, and in failing to properly repair the levees after they were damaged.

Although defendant had the right to construct the line on the right of way without undue interference, it did not have the right to engage in construction activities in utter disregard of prospective damage to the crop growing on and off the right of way. The right of way grant does not negate defendant’s duty to act with reasonable care while on the landowner’s property or give the defendant the right to negligently or unreasonably damage the crop being grown on the landowner’s property. Conversely, as contractor for the holder of a servitude, Irby was obligated to minimize the burden of his charge on the land. Bd. of Com’rs of Port of N.O. v. Ill. Cent., Etc., 379 So.2d 838 (La.App. 4th Cir.1980); LSA-C.C. Art. 748, formerly Art. 777 and LSA-C.C. Art. 745, formerly Art. 774. Irby’s actions were negligent and unreasonable and it is thus answerable to plaintiff for his damages.

Appellants argue that plaintiff had no right to build the levees on the right of way because of the prohibition in the right of way instrument against the construction of any building or structure thereon. The agreement contemplated that the grantor could continue to use the right of way for normal agricultural activities and certainly this right could be exercised by the grantor through agricultural lessees. Small rice levees are nothing more than rows or terraces normally used in agricultural practices, and essential to rice farming. Such levees are not “buildings or structures” as those terms are used in the agreement, and they would not normally interfere with the construction and maintenance of an electrical line.

There is nothing in the record which suggests that the levees constituted a barrier to Irby’s efficiently completing the construction of the transmission line across the right of way, and with the exercise of reasonable care the off right of way damage could have been prevented.

The award for off right of way crop damage is correct and will not be disturbed.

As to the property within the limits of the right of way, plaintiff’s lease was taken subject to the prior recorded right of way grant under the public records doctrine and under the specific provision in the lease making it subject to existing utility easements and rights of way. In the absence of negligence on the part of the grantee of the servitude or an unreasonable exercise of the grantee’s rights, the plaintiff lessee is not entitled to recover from the grantee or its contractor for damages to his crop growing within the right of way caused by the operations of the grantee conducted pursuant to the rights granted in the right of way instrument, unless the grantee obligated himself by a stipulation pour autrui contained in the right of way instrument to pay for damages to the crops of the grantor’s lessee growing on the right of way. Andrepont v. Acadia Drilling Company, 255 La. 347, 231 So.2d 347 (1969) and Hargroder v. Columbia Gulf Transmission Co., 290 So.2d 874 (La.1974); cf. Sick v. Bendix-United Geophysical Corporation, 341 So.2d 1308 (La.App. 1st Cir.1977).

Here the landowner granted to Louisiana Power & Light a right of way for the construction of an electric power line which gave the grantee the right to carry out the operations necessary to construct the line. Construction of the line necessarily required the traversing of the right of way by heavy equipment which would necessarily cause damage to any crops growing within the limits of the right of way. By virtue of the clause allowing the landowner to continue to use the right of way and the clause by which the grantee agreed to pay future damages upon claim presented by the grantor, the grantee contractually agreed to pay the landowner for damages to future crops grown on the right of way, and such damages were not settled upon the original execution of the right of way instrument. Unlike the grants involved in the Andre-pont (oil and gas lease) and Hargroder (right of way) cases, the right of way grant here did not contain a stipulation pour au-trui by which the grantee agreed to pay damages to third parties, since the agreement to pay future damages was expressly limited to claims submitted by the landowner. Accordingly, the plaintiff lessee who took the lease subject to previously granted rights of way has no right to recover damages to his crop growing on the right of way arising out of the reasonable, necessary activities of the grantee or its contractor in the exercise of the grantee’s rights under the right of way instrument.

The trial court awarded plaintiff $2,003.06 for a 50 percent loss of his crop growing on the right of way across the 300-acre tract caused by vehicular traffic across the right of way. Plaintiff is not entitled to recover for this item of alleged damage caused by the reasonable and necessary exercise of the grantee’s rights under the right of way instrument and the award will be reduced by this amount.

On the 102-acre tract the trial court awarded damages for reduced production on a 69.2-acre parcel of the tract, which included 1.6 acres in the right of way. Plaintiff testified his crop within the right of way was damaged by vehicular traffic in the same manner as the crop growing on the right of way across the 300-acre tract. Plaintiff is not entitled to recover for that part of the crop damaged within the right of way across the 102-acre tract. The proportion of the award for damages to the 69.2 acres out of the 102-acre tract attributable to the crop growing in the right of way is $223.55 (1.6 acres X 42.34 bushels X $3.30 per bushel) and the award will be reduced by that amount.

Third Party Demand and Reconventional Demand

Since no damages are being awarded for damage to crops within the limits of the right of way, the clause in the construction contract which obligates Louisiana Power & Light to pay such damages, provided the contractor uses reasonable care to avoid excessive damages, is not applicable.

The construction contract provides that the contractor (Irby) agrees to fully indemnify and save harmless the owner (Louisiana Power & Light) from and against any and all claims and actions, and all expenses and attorney fees incidental to the defense of any such claims or actions, and to pay any judgment or damages to any property resulting from or arising out of the work performed under the contract. The contract also provides that any damages, other than damage to crops within the right of way, resulting from the performance of the work either off or on the right of way shall be the contractor’s responsibility.

Irby contractually agreed to assume responsibility for and to pay for off right of way damages such as were incurred here. Regardless of whether Louisiana Power & Light might have also been liable to the plaintiff, Irby has contractually barred itself from recovering over against Louisiana Power & Light either for indemnity or contribution.

Irby argues that Louisiana Power & Light failed to furnish the right of way necessary for construction of the line in accordance with its express obligation under the contract, and that the hold harmless provisions are applicable only to damages resulting from any activity conducted by Irby off the right of way, which it did not do.

Louisiana Power & Light had a right of way across the subject property with fairly standard provisions and complied with its obligation to furnish the right of way. The hold harmless provisions cannot be construed in the manner suggested by Irby; to the contrary those provisions clearly establish that as between Irby and Louisiana Power & Light, Irby is to be responsible for off right of way damages occasioned by its work, whether the work was done on or off the right of way.

Accordingly, the judgment in favor of Irby against Louisiana Power & Light on the third-party demand must be reversed and set aside.

Considering Louisiana Power & Light’s reconventional demand, the provisions for expenses and attorney fees literally apply only to the defense of claims made against Louisiana Power & Light. Plaintiff made no claim against Louisiana Power & Light and Louisiana Power & Light was not required to incur expenses or attorney fees in defense of any such claim. Although Irby is not granted recovery on its third-party demand against Louisiana Power & Light on appeal because the award to plaintiff for crop damages within the right of way is set aside, Irby’s third-party demand against Louisiana Power & Light to the extent of any such damages was justified and well grounded. Therefore, Louisiana Power & Light should not be entitled to recover attorney fees for defense of the third-party demand and its reconventional demand was correctly rejected.

Decree

For the reasons assigned, the amount of the judgment in favor of plaintiff against Irby Construction Company and Liberty Mutual Insurance Company is reduced from $15,913.02 to $13,686.41, and as amended is affirmed.

The judgment on the third-party demand in favor of Irby Construction Company and Liberty Mutual Insurance Company against Louisiana Power & Light Company is reversed and set aside and the third-party demand is rejected.

The judgment denying Louisiana Power & Light Company’s reconventional demand against Irby Construction Company and Liberty Mutual Insurance Company is affirmed.

Costs of these proceedings, including the costs of appeal, are assessed to defendants Irby Construction Company and Liberty Mutual Insurance Company.

      . LSA-R.S. 9:5624:
      “When private property is damaged for public purposes any and all actions for such damages are prescribed by the prescription of two years, which shall begin to run when the damages are sustained.”


source: Caselaw Access Project

author: FRED W. JONES, Jr., Judge.

license: Public Domain

text:
    Odell Reed McDONALD, Plaintiff-Appellant, v. Thomas M. LOCKWOOD, Department of Employment Security et al., Defendants-Appellees.
    No. 15057-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1982.
    Minard & Evans by Cameron C. Minard, Columbia, for plaintiff-appellant.
    Paul B. Wilkins, Columbia, for defendants-appellees.
    Before PRICE, FRED W. JONES, Jr. and NORRIS, JJ.
   FRED W. JONES, Jr., Judge.

An unemployment compensation claimant appeals a district court judgment affirming a denial of benefits by the Board of Review of the Louisiana Division of Employment Security.

Finding that the claimant-employee left her employment for good cause, we reverse and remand.

According to the record, the claimant, a 62 year old female, had been employed as a nurse’s aid by the Columbia Heights Nursing Home in Columbia for some 16 years, the last seven of which she worked a day shift from 7 o’clock A.M. to 3 o’clock P.M. On or about October 9, 1980 the claimant was advised by her employer that she was being immediately changed from the day shift to either the evening shift (3 P.M. to 11 P.M.) or to the night shift (11 P.M. — 7 A.M.). The claimant objected to this change, asserting that shé lived alone in an isolated area and, as with another nurse’s aid in a similar situation (Mrs. Meredith), would fear for her safety if required to travel alone at night.

The appeals referee found:

“The evidence indicates that the claimant resigned from her job when she was advised by her employer that she was being taken off of the day shift and would have to work either the evening or the night shift. In view of the fact that the claimant had previously worked the other shifts, that she had not at any time been guaranteed she would be allowed to remain indefinitely on the day shift and since she was aware of the employer’s policy that she could be changed from one shift or another as the need arose, it must be held that her leaving was not for good cause connected with the employment. Her separation from employment was therefore, under disqualifying circumstances.”

This ruling was affirmed by the Board of Review and by the district court.

A claimant is disqualified from receiving unemployment compensation benefits if he leaves his employment without good cause connected therewith. La.R.S. 23:1601.

As pointed out in McGraw v. Director of Postal Data Center, 319 So.2d 797 (La.App. 1st Cir.1975), the term “good cause connected with one’s employment” means:

“[cjause connected with working conditions, ability of the employee to continue the employment, availability of transportation to and from work, and other factors which affect the employee’s ability or right to continue work .... ”

In this case no attempt was made by the employer to refute the testimony of the claimant concerning the possible danger to her safety if she was required by her employment to travel alone at night. There was no challenge to any of the asserted facts upon which her fears were based. Granted that, at the time of her original employment many years before, claimant worked different shifts and was not assured of permanent day shift work, during the past seven years she worked only the day shift. Of course, during her long employment tenure significant changes occurred— she grew older and rising crime rates nurtured widespread fears, particularly among those in her category, of the threat of possible violent assaults. Nothing in the record indicates that the claimant’s apprehensions were baseless.

Under these circumstances, though accepting the administrative agency’s finding of fact, we disagree with its interpretation of those facts. Conversely, it is our determination that the claimant left her employment for good cause connected with that employment — namely, a significant change in her working conditions which she could not reasonably accept.

For these reasons, we reverse the judgment of the district court and remand this matter to the Board of Review for entry of an order declaring the claimant to be eligible for such benefits as the law provides, all in accordance with this opinion.


author: PRICE, Judge.

text:
    CAPITAL RECOVERY ASSISTANCE, INC., Plaintiff-Appellant, v. Mark NELSON, Defendant-Appellee.
    No. 15060-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1982.

      Cady, Thompson & Duncan by Tom N. Thompson, Shreveport, for plaintiff-appellant.
    Mark Nelson, in pro. per.
    Before PRICE, FRED W. JONES, Jr. and NORRIS, JJ.
   PRICE, Judge.

This is an action to collect monies owed on an open account pursuant to LSA-R.S. 9:2781. Plaintiff, Capital Recovery Assistance, Inc., was assigned the balance due on the account which represented charges for medical services rendered by Lawrence Clinic of the Chiropractic to defendant, Mark Nelson. Plaintiff appeals the lower court judgment rendered in favor of plaintiff for the balance due on the account but denying plaintiff an award of attorney fees. We affirm for the following reasons.

The evidence at the hearing in Shreveport City Court established that the balance due on the account by defendant on the date it was assigned to plaintiff was $154.00 and that no subsequent payments had been made. Plaintiff presented evidence that a demand letter and an itemized statement had properly been mailed to defendant. The judge found in favor of plaintiff for the balance due on the account but refused to award plaintiff attorney fees as defendant had an honest belief that no money was owed. Plaintiff appeals alleging that the trial court erred in failing to award attorney fees as required by LSA-R.S. 9:2781 and that plaintiff is entitled to all costs of this appeal including an award of additional attorney fees.

LSA-R.S. 9:2781 provides as follows:

“A. When any person fails to pay an open account within thirty days after receipt of written demand therefore correctly setting forth the amount owed and a copy of the invoices in support thereof, that person shall be liable for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. Evidence of receipt of written demand by the spouse of the debtor, when they are living together as husband and wife, on behalf of the debtor may be introduced as evidence of written demand on the debtor.
B. If delivery of written demand on the debtor is attempted, but not accomplished because circumstances made delivery of written demand impossible, a notation, on the envelope containing the written demand, made by the person attempting delivery stating the date of the attempted delivery, the reasons why delivery could not be accomplished, along with the initials of the person attempting delivery and making said notation may be introduced as evidence of written demand on the debtor. If the judge in his discretion finds that sufficient evidence of due diligence in delivery of written demand has been made, he may make a conclusion of written demand for purposes of justice and find that there has been written demand on the debtor.
C. For the purposes of this Section, an open account shall include debts incurred for professional services, including, but not limited to, legal and medical services, which are rendered on a continuing basis.
D. As used in this Section, ‘person’ means an individual, association, corporation, partnership, trust, or any other public or private legal entity.”

It is well established that in order to collect attorney fees, the plaintiff-claimant must have strictly complied with the provisions of the statute. Scarborough v. Nelson, 371 So.2d 1261 (La.App. 3d Cir.1979); Roberts v. Paciera, 411 So.2d 650 (La.App. 4th Cir.1982); Seaboard Allied Mining Corporation v. Benitez, 408 So.2d 325 (La.App. 3d Cir.1981).

Upon a review of the evidence, it is clear that plaintiff failed to strictly comply with the statute so as to be entitled to an award of attorney fees. The statute specifically provides that written demand must be made upon the defendant-debtor which correctly sets forth the amount owed and a copy of the invoices in support thereof.

In the instant case, defendant received written demand and an itemized statement of the account. The itemized statement contains a list of services rendered and the charges for each. However, the statement lists these services by means of a code and does not contain a key so as to enable the reader to identify the services rendered. This itemized statement does not conform to the requirement that the defendant-debt- or receive a copy of the invoices supporting the amount owed. An invoice should identify the service rendered and the appropriate charge. This is essential to enable the defendant-debtor to closely examine the amount allegedly due on the account. The invoices would allow the defendant-debtor to ascertain the exact nature of the services and whether those services have actually been rendered, whereas the itemized statement attached to the demand letter by plaintiff was unintelligible and did not properly support the amount claimed due as envisioned by the statute.

For these reasons, the judgment of the trial court is AFFIRMED at plaintiffs costs.


author: SEXTON, Judge.

text:
    Rose Elizabeth OWENS, Plaintiff-Appellant, v. AETNA CASUALTY AND SURETY COMPANY, Defendant-Appellee.
    No. 15061-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1982.
    McIntosh, Fox & Lancaster by John M. Lancaster, Oak Grove, for plaintiff-appellant.
    Davenport, Files & Kelly by Mike C. Sanders, Monroe, for defendant-appellee.
    Before MARVIN, JASPER E. JONES and SEXTON, JJ.
   SEXTON, Judge.

Plaintiff appeals an adverse trial court judgment refusing to allow her to stack medical payments coverage on two automobiles covered under the same policy. We affirm.

During March of 1979 plaintiff, Rose Elizabeth Owens, was injured while a guest passenger in an automobile being driven by Patricia Plumley. At that time she was residing in the home of her parents in Oak Grove, Louisiana. She suffered severe injuries and had medical expenses exceeding the sum of $4,000. At the time of the accident her father had in full force and effect a policy of insurance issued by the defendant, Aetna Casualty and Surety Company, which covered two separate vehi-cíes, a 1977 Pinto station wagon and a 1965 Chevrolet pickup, with each vehicle having $2,000 medical payments coverage. Defendant paid the sum of $2,000 to the plaintiff and she sued for an additional $2,000, and also sought penalties and attorneys fees.

The sole question on appeal is whether an insured may stack medical payments coverage on two automobiles covered under the same policy when the insured is injured in a “non-owned” vehicle.

In Bost v. Hartford Accident and Indemnity Co., 242 So.2d 355 (La.App. 2d Cir.1970), this court refused to allow stacking under a similarly worded policy where the insured was injured in an “owned” vehicle. In so doing, this court relied on Guillory v. Grain Dealers Mutual Insurance Co., 203 So.2d 762 (La.App. 3d Cir.1967), writs den. 205 So.2d 605 (1968) and Odom v. American Insurance Co., 213 So.2d 359 (La.App. 3d Cir.1968), writs den. 215 So.2d 127 (1968), both of which involved “owned” vehicles. In Bourgeois v. Government Employees Insurance Co., 316 So.2d 804 (La.App. 1st Cir. 1975), the First Circuit followed Bost, Odom and Guillory in refusing to allow stacking where the insured was killed while riding in a third or “non-owned” vehicle. Also citing Guillory and Bost the Fourth Circuit reached the same result and declined to allow stacking where the plaintiff was injured in a third or “non-owned” vehicle in Lane v. Fireman’s Fund Ins. Co., 344 So.2d 702 (La.App. 4th Cir.1977).

Plaintiff, however, relies on Easley v. Fireman’s Ins. Co. of Newark, N.J., 372 So.2d 1067 (La.App. 3d Cir.1979), where the Third Circuit allowed stacking to an insured who was found to be an injured pedestrian (as opposed to an insured occupying an “owned” or “non-owned” vehicle). That panel of the Third Circuit refused to follow the circuit’s previous decisions in Guillory and Odom and permitted stacking. The court noted some distinctions of a minor nature between the cases we have just noted and the situation in Easley. However, the court specifically refused to base its result on any such distinctions and rendered the aforementioned result, contrary to its previous jurisprudence and that of the other circuits.

We are unable to perceive any significant distinction between the policy at issue in this case and those policies at issue in the cases noted above. Likewise we do not believe that any significant distinction inheres in the fact that in some cases the plaintiff was occupying a non-owned vehicle, in some an owned vehicle and in at least one case was a pedestrian. The overwhelming weight of the jurisprudence of all of the circuits, and the latest pronouncement of this circuit, Bost, supra, precludes stacking of medical coverage under these circumstances.

The judgment of the trial court is therefore affirmed at appellant’s costs.

AFFIRMED.


text:
    Dickie WRIGHT, Plaintiff-Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 15062-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1982.

      Baggett, McCall, Singleton & Ranier by William B. Baggett, Lake Charles, and Troy E. Bain, Shreveport, for plaintiff-appellant.
    Mayer, Smith & Roberts by Caldwell Roberts, Shreveport, for defendants-appel-lees, Liberty Mut. Ins. Co., Bill Adams, Bill Bradshaw, Hillman Deaton, E.C. Green, Eugene Kent and Bobby Bryant.
    Before HALL, MARVIN and SEXTON, JJ.
   HALL, Judge.

This is a suit for damages as the result of injuries sustained by plaintiff during the course and scope of his employment with Riley-Beaird, Inc. Defendants, co-employees of the plaintiff and their liability insurer, filed a peremptory exception of no cause of action or no right of action, alleging that plaintiff’s exclusive remedy is a claim for workers’ compensation benefits under LSA-R.S. 23:1032, which provides in pertinent part:

“The rights and remedies herein granted to an employee ... on account of an injury, or compensable 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. ..
“Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.”

Plaintiff opposed the exception, maintaining that his petition sets forth sufficient facts to establish that the injuries resulted from an intentional tort, thereby making the exclusivity provisions of LSA-R.S. 23:1032 inapplicable here. In a thorough, well-written opinion, the trial court sustained defendants’ exception and dismissed plaintiff’s suit. We affirm.

The sole issue for consideration on appeal is whether the allegations of plaintiff’s petition sufficiently allege an intentional tort so as to state a cause of action under LSA-R.S. 23:1032.

Plaintiff’s allegations of intentional tort are set forth in paragraphs 6 through 10 of his amended petition, as follows:

“6.
“That defendants, Bill Adams, Bill Bradshaw, Hillman Deaton, E.C. Green, Eugene Kent, Bobby Bryant, and the said Charlie Woodruff, Bobby Foster and Tommy Rascoe, knew and were all well acquainted with the work assigned to DICKIE WRIGHT and the area where he was assigned to work, and were very familiar with the duties to be performed by DICKIE WRIGHT on January 30, 1980, on the platform in Bay-10.
“7.
“That the duty of deciding what work would be done by DICKIE WRIGHT at the aforementioned plant belonged to the defendants, Bill Adams, Bill Bradshaw, Hillman Deaton, E.C. Green, Eugene Kent, Bobby Bryant and the said Charlie Woodruff, Bobby Foster and Tommy Rascoe, and/or they had actually undertaken to perform said duties.
“8.
“That the above named defendants, as executive officers and/or employees of Riley-Beaird, Inc. knew, on or before January 30, 1980, that DICKIE WRIGHT was an epileptic and was subject to epileptic seizures.
“9.
“That notwithstanding the knowledge that plaintiff, DICKIE WRIGHT, was subject to epileptic seizures, defendants had assigned the plaintiff to work above ground alone at heights known to be unsafe and hazardous and such assignments of work were made on January 30, 1980.
“10.
“Defendants, Bill Adams, Bill Bradshaw, Hillman Deaton, E.C. Green, Eugene Kent, Bobby Bryant, and the said Charlie Woodruff, Bobby Foster and Tommy Rascoe, for whose acts Liberty Mutual Insurance Company is liable, are all liable to plaintiff, DICKIE WRIGHT in his fall of January 30, 1980 as alleged in paragraph 5 above for the following reasons:
“A. The defendants knew that DICK-IE WRIGHT was subject to having epileptic seizures at any time.
“B. Notwithstanding such knowledge, defendants assigned DICKIE WRIGHT to work above ground with absolute certainty that when he had an epileptic seizure while working above ground, he would fall and that death or great bodily harm would immediately result from the fall.
“G. On January 30, 1980 while working above ground for Riley-Beaird, Inc., DICKIE WRIGHT did have an epileptic seizure and did fall, which caused great bodily harm to DICKIE WRIGHT as will be set forth below. “D. The action of the defendants was intentional in that they knew when they assigned DICKIE WRIGHT to work above ground that when he had an epileptic seizure it was absolutely certain that he would fall and receive great bodily harm.”

The sum of plaintiff’s contention is that the actions of the various defendants, assigning plaintiff to work in a high place despite their knowledge that plaintiff suffered from epilepsy, constitutes an intentional tort.

In the landmark case of Bazley v. Tortorich, 397 So.2d 475 (La.1981), our Supreme Court concluded that “intentional act” under LSA-R.S. 23:1032 means intentional tort. The court held that:

“... The meaning of ‘intent’ is that the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Thus, intent has reference to the consequences of an act rather than to the act itself.” 397 So.2d at 481

The function of an exception of no cause of action is to test the sufficiency of the petition, construing its language in favor of plaintiff. The allegations of plaintiff's petition are taken as true, and the exception is tried on the facts of the pleadings. Reagan v. Olinkraft, Inc., 408 So.2d 937 (La.App. 2d Cir.1981).

In light of the foregoing, our inquiry is whether the allegations of the petition can be reasonably construed to mean that when defendants assigned plaintiff to work high above ground, it was desired or substantially certain that plaintiff would suffer an epileptic seizure, fall, and receive bodily harm.

The petition cannot be so construed. There is no allegation therein that defendants desired plaintiff’s injuries. Furthermore, the allegations do not meet the “substantially certain” standard enunciated in Bazley v. Tortorich, supra. Although plaintiff alleges in paragraph 10 of his petition that “when he [plaintiff] had an epileptic seizure it was absolutely certain that he would fall and receive great bodily harm.” (Emphasis added), this allegation does not by itself, give rise to the inference that defendants were virtually certain that plaintiff would have a seizure, fall, and injure himself.

At best, plaintiff’s petition alleges gross negligence in defendants’ failure to provide a safe work environment. However, this action did not constitute “an intentional act” as contemplated by LSA-R.S. 23:1032. McDonald v. Boh Bros. Construction Co., Inc., 397 So.2d 846 (La.App. 4th Cir.1981); Reagan v. Olinkraft, Inc., supra.

Plaintiff’s contention that the proper meaning of “intent” as it applies to LSA-R.S. 23:1032 requires that a defendant “should have known that a particular result would follow” is without merit. The Bazley standard, which constitutes a rejection of the “should have known ...” test has been consistently applied by our courts since its enunciation. See Bazley v. Silverman, 402 So.2d 228 (La.App. 4th Cir.1981); Cortez v. Hooker Chemical and Plastics Corp., 402 So.2d 249 (La.App. 4th Cir.1981); Mayer v. Blue Cross Ins. Co., Inc., 402 So.2d 273 (La.App. 4th Cir.1981); McDonald v. Boh Bros. Construction Co., Inc., supra; Reed v. Yor-Wil, Inc., 406 So.2d 236 (La.App. 1st Cir.1981); Reagan v. Olinkraft, Inc., supra.

In conclusion, the petition herein alleges that defendants knew of an increased risk of potential injury to plaintiff. This does not meet the Bazley standard, which requires a knowledge of “... no chance of anything other than .... ” harm resulting.

The judgment is, therefore, affirmed at appellant’s costs.

Affirmed.


text:
    SUCCESSION OF Helen Douglas HODGE. Alonzo HODGE, Administrator, Plaintiff-Appellant, v. Georgia NANCE, Defendant-Appellee.
    No. 15063-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1982.
    Rehearing Denied Jan. 14, 1983.

      Harold D. Vaught, Shreveport, for plaintiff-appellant.
    Arthur G. Thompson, Shreveport, for defendant-appellee.
    Before PRICE, FRED W. JONES, Jr., and NORRIS, JJ.
   FRED W. JONES, Jr., Judge.

A succession administrator sued to recover funds withdrawn by defendant (decedent’s daughter) from a savings account allegedly belonging to the decedent. From a judgment in favor of defendant, plaintiff appeals.

For the reasons hereinafter set forth, we reverse and remand.

According to the record, Helen Hodge died on September 18,1980. Alonzo Hodge was duly qualified as the administrator of his deceased wife’s succession. At the time of Mrs. Hodge’s death, there was a savings account in the First National Bank of Shreveport in the name of “Helen Hodge or Georgia Nance.” On the day after decedent’s demise, the defendant, Georgia Nance (the administrator’s stepdaughter) withdrew from that savings account the sum of $9,000.

The administrator sued to recover that sum and demanded an accounting from defendant for an additional $2,000 withdrawn from the same account during a three month period immediately prior to the death of Mrs. Hodge. Defendant answered, denying that the funds in the savings account belonged to Mrs. Hodge.

At the trial on the merits in April 1982, plaintiff introduced into evidence the following pertinent documents:

(1) P — 1, Savings Certificate # 04-02327, issued by The First National Bank of Shreveport, dated Sept. 30, 1976, in the names of Jesse Williams or Helen Hodge, for $11,000.
(2) P-2, bank money order on The First National Bank of Shreveport, dated May 9, 1980, payable to the order of Helen Hodge, for $13,334.86, and typed thereon “sav. cert. # 04-02327.”
(3) P-3, savings deposit slip issued by The First National Bank of Shreveport on June 24,1980, in the names of “Helen Hodge or Georgia Nance”, for $13,334.86.
(4) P-3A and P-4, signature cards executed by Helen Hodge and Georgia Nance in connection with the opening of the account described in (3) above.
(5) P-5, copy of “savings withdrawal” slip signed by Georgia Nance on September 19, 1980, acknowledging withdrawal of $9,000 from the described savings account.

Defendant testified it was her understanding that P — 1, the savings certificate, was owned solely by Jesse Williams (decedent’s uncle) and that it was converted into P-2, the bank money order (for the sake of convenience) when Williams was placed in a nursing home — in order that Mrs. Hodge could pay Williams’ expenses and those of his aged mother, Martha Williams. She stated that Williams died in June 1980.

Although insisting that the funds in the contested savings account actually belonged to Jesse Williams, defendant explained that she withdrew the $9,000 at her mother’s instructions, after her death, to pay funeral expenses and “to take care of Sister Bea [Martha Williams] for as long as she lived.” Defendant never claimed that she owned any of the funds in that savings account.

In written reasons for judgment the trial judge concluded that the funds in question were placed in the savings account for the convenience of Jesse Williams; that plaintiff did not prove a donation of those funds to Helen Hodge from Jesse Williams; that the funds in the savings account belonged to Jesse Williams at the time of his death; and that any action for the recovery of those monies from defendant would have to be brought by the heirs of Jesse Williams.

There is a legal presumption that a joint bank account in the names of two parties is owned one-half by each. Cooper v. Hibernia National Bank, 405 So.2d 540 (La.App. 4th Cir.1981). Consequently, in this case there was a presumption that the funds in the savings account in the names of “Helen Hodge or Georgia Nance” belonged one-half to the decedent and one-half to the defendant. However, defendant effectively rebutted this presumption with the uncontradicted evidence that the account in question originated with funds belonging solely to Jesse Williams.

Plaintiff concedes that Williams purchased the $11,000 savings certificate in 1976 and placed it in his name and that of Helen Hodge, but argues that Williams made a valid remunerative or onerous donation of that certificate or the funds represented thereby to Helen Hodge, thereby obviating the necessity of an authentic Act of Donation.

Under our law every donation inter vivos of immovable property or incorporeal things must be made by authentic act, under penalty of nullity. La.Civil Code Article 1536. La.Civil Code Article 1538 applies this rule to all movables, but La.Civil Code Article 1539 excepts from this requirement the manual gift of corporeal movables.

Bordelon v. Brown, 84 So.2d 867, 868 (La.App.2d Cir.1956) involved a dispute over a joint savings account in the name of plaintiff and defendant, with the latter claiming a gift of the account to her. We held:

“The evidence indicates that Bordelon actually delivered to Mrs. Brown the bank book and she retained it in her possession until the trial of this case. While it can be said to be true that the bank book was a corporeal thing and therefore, a transfer of the book constituted a manual donation in accordance with the provisions of Article 1539, the mere possession of the book by Mrs. Brown did not transfer the obligation which it represented. The obligation constituted an incorporeal thing which could only be validly transferred in accordance with the provisions of Article 1536.”

However, the rules peculiar to donations inter vivos do not apply to onerous and remunerative donations, except when the value of the object given exceeds by one-half the value of the charges or the services. La.C.C. Art. 1526. The party alleging the invalidity of the transaction has the burden of proving that the value of the object given exceeds by one-half that of the charges imposed in the case of an onerous donation. Placid Oil Co. v. Frazier, 126 So.2d 800 (La.App. 2d Cir.1961).

Here we are dealing with a claimed donation inter vivos of an incorporeal thing (savings account) where there was no formal Act of Donation. Since there was no evidence that, by transferring the account, Williams was purporting to remunerate Mrs. Hodge for past services, plaintiff can recover only if the record establishes that there was an onerous donation or transfer of the funds.

According to the record, Martha Williams was the mother of Jesse Williams and the grandmother of Helen Hodge. In 1956 Mrs. Williams moved into the Hodge residence in Shreveport, where she resided with and was taken care of by the Hodges until the death of Helen Hodge in 1980. Jesse Willimas retired from his employment in California in 1976 and also moved in with the Hodges and his mother. Williams lived there until entering a Shreveport nursing home in 1980, shortly before his death.

Reputed to be 106 years of age, Martha Williams was still living at the time of the trial and being cared for by Georgia Nance, her great-granddaughter.

Queried with reference to the ownership of the savings account from which she withdrew $9,000, defendant Georgia Nance replied in answer to written interrogatories (received in evidence):

“These funds were owed (sic) by Jesse Williams. He left them with my mother to pay for his funeral and debts. The rest was to be used by my mother to care for Jesse Williams’ mother who was my mother’s grandmother. My mother left it in my care to care for Martha Williams, who was Jesse Williams’ mother and my great grandmother.”

Defendant repeated this explanation of the nature of the bank account at the trial. She added that when the account was opened Helen Hodge instructed her, in the event of Mrs. Hodge’s death, to use the funds for the latter’s burial expenses and to take care of Martha Williams for as long as she lived.

Regardless of defendant’s analysis of the legal effect of the transactions between Jesse Williams and Helen Hodge, the facts are undisputed — Jesse Williams transferred the funds to Helen Hodge with the charge imposed that Mrs. Hodge use them primarily to take care of Williams’ aged mother. By her own testimony defendant acknowledged that Helen Hodge considered the account to belong to her — otherwise, how could she direct that her funeral expenses be paid therefrom?

For these reasons, we conclude that Jesse Williams made a valid onerous donation to Helen Hodge of the savings account listed in their names. Since this was an onerous transfer, no formal or authentic Act of Donation was required. Consequently, the joint savings account in the names of “Helen Hodge or Georgia Nance”, ownership of which was disclaimed by defendant and from which she withdrew $9,000, was owned by the decedent at the time of her death.

As to the $2,000 withdrawn from the savings account prior to the death of Helen Hodge, the record reveals that the defendant has adequately accounted for the expenditure of those funds on behalf of the decedent, and no further accounting is required.

Defendant testified that she had spent a substantial portion of the $9,000 withdrawn from her mother’s savings account for the benefit of the decedent’s estate and, specifically, to carry out Mrs. Hodge’s obligation under the onerous donation to care for Martha Williams. Under the circumstances, we deem that the interests of justice would be served by remanding this matter to the trial court for a hearing at which the parties would, be afforded an opportunity to present evidence on this question of credits to which defendant might be entitled for funds so expended. After making any appropriate deductions, the trial judge should then render judgment in favor of plaintiff and against defendant for the difference between those deductions and the $9,000 withdrawn by defendant from decedent’s bank account on the day after her death.

For the reasons set forth, and with these instructions, we reverse the judgment of the district court and remand the case for further proceedings consistent with this opinion, with cost of this appeal assessed to appellee.

      . It appears that under La.C.C. Arts. 1997 and 1999, decedent’s obligation imposed by the onerous donation is heritable. See Castleman v. Smith, 148 La. 233, 86 So. 778 (1920); Franklin & Son, Inc. v. Richland Parish School Board, 240 So.2d 750 (La.App. 2d Cir.1970); Succession of Forestier, 11 So.2d 253 (Orl.La.App.1943). Therefore, any performance of that obligation by defendant would have benefited the decedent’s succession and heirs.


author: MARVIN, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, In the Interest of James Junior BELL, Defendant-Appellant.
    No. 15064-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1982.
    Steven Randal Thomas, Public Defender, Mansfield, for defendant-appellant.
    James L. Davis, Dist. Atty., Many, for plaintiff-appellee.
    Before MARVIN, JASPER E. JONES and SEXTON, JJ.
   MARVIN, Judge.

In accord with State in the interest of Bearden, 381 So.2d 582 (La.App. 2d Cir.1980), and CJP Art. 22. This ease is remanded for further proceedings. There is no legal authority for substituting a stipulation for the verbatim transcript required by law in juvenile cases. We cannot review the adjudication of delinquency without a transcript. The adjudication is reversed and set aside. See also State in the Interest of Collins, 288 So.2d 918 (La.App. 1st Cir.1973).

REVERSED and REMANDED, with costs being assessed to the appellee.


author:
MARVIN, Judge.
      SEXTON, Judge,

text:
      Calvin J. CORNET, Jr., Plaintiff-Appellee, v. CAHN ELECTRIC COMPANY, INC., Defendant-Appellant.
    No. 15067-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1982.

      Wiener, Weiss, Madison & Howell by James R. Madison, Shreveport, for defendant-appellant.
    Smitherman, Lunn, Hussey & Chastain by Richard S. Schmidt, Shreveport, for plaintiff-appellee.
    Before HALL, MARVIN and SEXTON, JJ.
   MARVIN, Judge.

This appeal presents the same legal issue raised in Langford v. Cahn Elec. Co., Inc., 403 So.2d 833 (La.App. 2d Cir.1981).

Cornet, like Langford, an employee of the appellant corporation, was paid an annual bonus and was required to contribute 70 percent of each bonus to the investment fund. Cornet quit his job and sued for the amounts he contributed to the plan.

The employer urges that we should reconsider and overrule Langford, because we did not have the opportunity to do so on a rehearing of that case, and because we “seriously misconstrued the rationale and holding of Morse v. J. Ray McDermott & Co., Inc., 344 So.2d 1353 (La.1976)

The employer does not argue here, as it did in Langford that the bonuses paid were not earned, but apparently now concedes that the bonuses, from which Cornet and Langford made the required 70 percent contribution to the plan, were earned by, and were paid to, the employee for past services rendered the employer. This is the pivotal question in our opinion.

We noted in Langford that Morse emphasized the fact that Morse was fired by his employer, but observe that Morse also emphasized that the bonus or award credited to Morse had been irrevocably set aside and that the employer was obligated to pay him the remaining portion of the amounts “awarded” Morse. The Cahn plan is different and we need not speculate what the Morse result would have been if Morse had voluntarily terminated his employment. The Morse plan can be read to say that Morse would not fully earn the award until he remained with his employer for four years after the award was made.

Professor LeVan notes the obvious distinction between this plan and the Morse plan in his most recent comment:

“We have had some problem with Morse particularly as it relates to highly compensated employees. One can read the plan in Morse to say that the bonus was not earned until completion of future employment. In Langford, however, the bonus was earned, taxed and then recon-tributed. Like it or not the Supreme Court has spoken forcefully on this issue and the Second Circuit seems to have listened. Perhaps current bonus plans should be reviewed and perhaps revised by the insertion of some vesting schedule which answers the pivotal question: when was the compensation ‘earned?’ ” Vol. 8, NO. 4, La. Estate Planner, at p. 251 (August 1982).

In Langford, we said:

“Nothing we have said here prevents an employer from designing and contributing directly to an employee retirement plan which contains the scheme of deferring compensation and vesting of credits based on longevity and continuity of service. We hold only that an employer may not pay an employee a bonus, which is taxable to the employee, and is for past services rendered, and contractually require that employee to contribute a portion of that bonus to a common fund and to forfeit that contribution if the employee terminates his employment for any reason other than death, disability, or retirement before a stated age.” 403 So.2d at p. 838.

At appellant’s cost, the judgment is AFFIRMED.

SEXTON, J., dissents with written reasons.

SEXTON, Judge,

dissenting.

The majority here again finds for a plaintiff who has voluntarily left the employment of this defendant and who then sued to obtain funds paid by him into a deferred compensation plan. In so doing, the majority relies on Morse v. J. Ray McDermott & Co., Inc., 344 So.2d 1353 (La.1976), LSA-R.S. 23:634, as well as Langford v. Cahn Elec. Co., Inc., 403 So.2d 833 (La.App. 2d Cir.1981), the first case involving this defendant.

I do not believe that Morse is sufficient authority for the finding by the majority in Langford, and thus here. A significant difference between Morse and these Cahn Electric cases is that in Morse the employee was terminated because of economic conditions. Also, though of less significance, is the apparent fact that in Morse the action of the company in paying the supplemental compensation was unilateral, requiring no action by the employee. In these Cahn cases the employees were invited to join and did so voluntarily. The purpose of the plan here is to reward continued service and to induce the employees involved to remain with the company. The employee benefits, of course, by virtue of the additional compensation. In so doing, he agrees that if he terminates his employment that he will forfeit the bonuses which have previously been paid to him and which he has, under the contract he entered, paid into the compensation fund. These bonuses, in short, are conditional from the outset upon the employee’s continued service.

The majority in Morse relied heavily on LSA-C.C. Art. 2040, noting that:

“Plaintiff in this latter respect has performed and was ready and willing to continue his employment with the company. The plan’s forfeiture clause therefore is manifestly unjust, contrary to public order and public policy, and unenforceable where sought to be applied in a circumstance where, as here, by unilateral act of the employer, the employee is prevented from performing his part of the bargain, ...” Morse, supra, at 1368. (emphasis added).

That court then noted that the public policy being enforced was LSA-R.S. 23:634 and held that when applying LSA-C.C. Art. 2040 under these circumstances:

“... that this obligor, McDermott, is not allowed under our law to defeat its obligation to pay the remaining portions of Morse’s compensation awards by preventing Morse from continuing his employment by terminating that employment without cause.” Morse, supra, at 1368. (emphasis added).

In my view, Langford, supra, is an erroneous extension of Morse as the employment there (and here) was terminated by the employee. Therefore, LSA-C.C. Art. 2040 is not applicable. The sole question, as I view it, is whether LSA-R.S. 23:634 standing alone can void the forfeiture provisions of this contract when the employee resigns of his own volition. I believe that it does not. That statute is almost 70 years old (Act 62 of 1914) and says that an employer may not require an employee to sign a contract by which the employee must forfeit wages if discharged or if the employee resigns. The key phrase is require. In this case, as in Langford, the plaintiff was not required to join the plan. They both did so voluntarily. This statute was enacted for another era and was obviously designed to protect low ranking employees from oppressive employer action.

There was nothing unjust, contrary to public order, unfair or unilateral on the part of the company. On the contrary, it seems that the unfair — and certainly the unilateral action — was taken by the plaintiff.

I respectfully dissent.

      . In Morse, the employer made no contributions to the employee, but contributed directly to the plan.

      . LSA-C.C. Art. 2040. Fulfillment prevented by party bound to perform
      The condition is considered as fulfilled, when the fulfillment of it has been prevented by the party bound to perform it.

      . LSA-R.S. 23:634. Contract forfeiting wages on discharge unlawful
      No person, acting either for himself or as agent or otherwise, shall require any of his employees to sign contracts by which the employees shall forfeit their wages if discharged before the contract is completed or if the employees resign their employment before the contract is completed; but in all such cases the employees shall be entitled to the wages actually earned up to the time of their discharge or resignation, (emphasis added).


author: JASPER E. JONES, Judge.

text:
    Taufiq A. KHALED, Plaintiff-Appellant, v. Virginia Morphis Evans KHALED, Defendant-Appellee.
    No. 15073-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1982.

      Law Offices — Pat Wright by Patrick H. Wright, Jr., Monroe, for plaintiff-appellant.
    Jones, Jones & Jones Law Offices by Benjamin Jones, Monroe, for defendant-ap-pellee.
    Before HALL, JASPER E. JONES and NORRIS, JJ.
   JASPER E. JONES, Judge.

Taufiq A. Khaled appeals adverse judgments in the ancillary proceedings to his action for a separation from bed and board. We affirm.

Appellant sets out seven assignments of error. He contends that the trial judge erred in:

1) failing to dissolve a temporary restraining order which did not cumply with C.C.P. arts. 3605 and 3610;
2) failing to dissolve a temporary restraining order which went beyond the scope of R.S. 9:306;
3) failing to dissolve a temporary restraining order which infringed on his constitutional freedoms of speech and travel;
4) failing to award damages for the wrongful issuance of a temporary restraining order;
5) failing to award him alimony pendente lite;
6) failing to award him the exclusive use and occupancy of the family home; and
7) failing to sustain his exception of no cause of action to his wife’s rule for exclusive use and occupancy of the family home.

Appellant brought this action seeking a separation from his wife, Virginia, and recognition of his interest in the house that had served as the family residence. Virginia answered and reconvened for a separation, alimony and exclusive use of the family home. She also obtained a temporary restraining order which prohibited appellant from coming near her or communicating with her except through her attorney and further prohibited him from alienating or adversely affecting any property in which she had an interest.

Taufiq responded with a motion to dissolve the temporary restraining order and request for damages. Subsequently he commenced a rule for alimony pendente lite and exclusive use and occupancy of the family home.

Appellant’s motion to dissolve and request for damages was tried along with appellee’s rule for a preliminary injunction on March 29, 1982. The district judge granted a preliminary injunction against appellant prohibiting him from abusing, calling or contacting appellee and continuing in effect the provisions of the temporary restraining order relating to property until April 6, 1932. Appellant’s request for damages was denied.

On April 15, 1982, a hearing was held on the appellant’s rule for alimony and exclusive use of the family home and appellee’s rule for exclusive use of the family home. Judgments were rendered denying appellant’s demands and awarding exclusive use and occupancy of the family home to appel-lee. Mr. Khaled then appealed.

Appellant’s first three assignments of error all relate to the district judge’s failure to dissolve the temporary restraining order. Assuming arguendo that we may consider such assignments, see LSA-C.C.P. art. 3612, we decline to rule on them as they are moot.

An issue is moot when the judgment or decree sought can have no practical effect and courts do not rule on such questions. Robin v. Concerned Citizens, St. Bernard, Inc., 384 So.2d 405 (La.1980); Jones v. Natchitoches Parish Police Jury, 371 So.2d 1243 (La.App.3d Cir.1979).

Here the requested relief is the dissolution of the temporary restraining order. However, the temporary restraining order expired months ago and was replaced by a preliminary injunction. Thus, even were we to conclude that our brother below erred in refusing to dissolve the temporary restraining order our judgment could grant appellant no remedy as we cannot dissolve a temporary restraining order that has already expired.

Through his fourth assignment of error appellant attacks the trial judge’s failure to award damages and attorney’s fees for the wrongful issuance of the temporary restraining order. The district judge’s written reasons for judgment show that though he found the temporary restraining order to have been wrongfully issued because of appellee’s failure to provide security, he denied damages because of appellant’s failure to, prove damages.

The plaintiff bears the burden of proving each and every element of damages claimed. Cheramie v. Jones, 327 So.2d 601 (La.App. 4th Cir.1976).

The award of damages and attorney’s fees for the wrongful issuance of a temporary restraining order is within the discretion of the trial judge. Amacker v. Amacker, 146 So.2d 672 (La.App. 1st Cir.1962); Muller v. Buckley, 143 So.2d 231 (La.App. 4th Cir.1962). Attorney’s fees for the dissolution of a temporary restraining order need not be allowed where there is no proof of damages. Robinson v. Jackson, 255 So.2d 846 (La.App. 2d Cir.1971), writ denied, 260 La. 700, 257 So.2d 155 (1972).

Appellate courts may not disturb the trial judge’s reasonable evaluations of credibility. Pierre v. Landry, 341 So.2d 891 (La.1977).

Appellant is an itinerant jewelry salesman. He testified that the temporary restraining order upset him and made him unable to work because he was afraid to leave home. The trial judge’s reasons show he was unimpressed by appellant’s testimony-

We also are unmoved by appellant’s incredible testimony. As there is no other evidence which supports the alleged damages we discern no error by the trial judge in rejecting appellant’s demands for damages.

As to appellant’s demand for attorney’s fees we again note that no damages were proved. We also note appellee obtained a preliminary injunction prohibiting essentially the same acts prohibited by the temporary restraining order.

Finally, we note that the work of appellant’s counsel on the motion to dissolve was also necessary to his opposition to the rule for the preliminary injunction. Under these circumstances the district judge was within his discretion in denying attorney’s fees.

We now turn to appellant’s fifth assignment of error through which he challenges the trial judge’s refusal to award alimony pendente lite.

The amount of alimony pendente lite is left largely within the sound discretion of the trial judge and will not be disturbed on appeal unless that discretion has been abused. Frederick v. Frederick, 379 So.2d 808 (La.App. 4th Cir.1980); Gray v. Champagne, 367 So.2d 1309 (La.App. 4th Cir.1979); Liles v. Liles, 369 So.2d 479 (La.App. 4th Cir.1979). The need for alimony must be proved and the award should be for an amount which is fair to each party. Levine v. Levine, 373 So.2d 1380 (La.App. 4th Cir.1979); Gaspard v. Gaspard, 401 So.2d 624 (La.App. 3d Cir.1981); Liles v. Liles, supra.

Mrs. Khaled is a state employee with a net income of approximately $1,100.00 per month. She filed a statement of expenses which exceeds her monthly income.

During 1981 Mr. Khaled earned approximately $833.00 per month on sales of approximately $2,500.00 per month. He testified that his income during 1982 was only about $300.00 per month. This was disputed by Mrs. Khaled who testified that appellant frequently claimed to earn $2,000.00 in a weekend of selling jewelry.

Appellant’s testimony as to his 1981 income was supported by tax records. However, his testimony of his greatly reduced 1982 income was totally unsupported by documentation. Further, it was disputed by appellee’s testimony.

The trial judge is not required to accept a party’s unsupported estimate of income. Gray v. Champagne. Here appellant’s estimate of his 1982 income is vague and unsupported.

Appellant attempts to obtain alimony by proving his wife’s income and then relying on his own unsupported assertions of a lesser income. This is not adequate proof of appellant’s need for alimony and his demands were properly rejected by the trial judge.

Further, the evidence shows that both parties have reasonable living expenses in excess of their incomes. Thus, we question whether either party has the ability to pay alimony.

We consider appellant’s final two assignments of error together. Through his sixth assignment of error appellant contends that the trial judge erred in awarding the exclusive use and occupancy of the family home to appellee. Through the seventh assignment of error appellant contends that the trial judge erred in failing to sustain his exception of no cause of action to appellee’s rule for exclusive use and occupancy of the family home.

The basis of appellant’s exception of no cause of action is his contention that the family home is owned one-half by each party as separate property and that R.S. 9:308 applies only to family homes which are community property. He argues that to allow such an action to property in which the spouses own interests as separate property amounts to allowing one co-owner to evict another.

LSA-R.S. 9:308 provides 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.”

Neither party has cited a decision construing this statute and we have found none.

Statutes should be construed so as to give effect to the true legislative intent. Bonnette v. Karst, 261 La. 850, 261 So.2d 589 (1972); Parish of Jefferson v. Stansbury, 228 So.2d 743 (La.App. 4th Cir. 1969). Statutes should not be construed so as to have odd or preposterous meanings. State v. Seals, 255 La. 1005, 233 So.2d 914 (1970). Nor should statutes be construed so as to defeat their purpose or produce absurd results. Kaufman v. State, Dept. of Pub. Safety, Driv. Lic. Div., 286 So.2d 723 (La.App. 1st Cir.1973).

We think the purpose of R.S. 9:308 is to make the use and occupancy of the family residence by a particular spouse during a separation the product of a reasoned, judicial determination rather than the whims of circumstance. That the statute is intended to be given broad coverage to effectuate that purpose is shown by the legislature’s use of the term “family residence” (emphasis added) rather than some more restrictive term in the first sentence of the statute.

A construction of the statute harmonious with its purpose and intent requires that it apply to family residences which are not community property, such as rented houses and apartments or houses in which the spouses own interests as separate property. The exception of no cause of action was properly overruled.

The use and occupancy of the family home is to be awarded in accord with the best interest of the family. LSA-R.S. 9:308. Just as the trial judge’s determination of the best interests of the child in a custody case is entitled to great weight, Beck v. Beck, 341 So.2d 580 (La.App. 2d Cir.1977), his determination of the best interest of the family in awarding the exclusive use and occupancy of the family home should be accorded great weight.

The house in question was acquired by Mrs. Khaled and her deceased husband. At the time of her marriage to appellant there was no debt owed on the house thanks to the hard work and frugal lifestyle of Mrs. Khaled and her prior husband during their marriage. Mrs. Khaled has a strong emotional attachment to the house due to the memories it holds for her.

There are no children involved here and as previously discussed with respect to assignment five, both parties are in approximately equal states of financial distress. Considering the relative equality of the parties’ economic positions and Mrs. Khaled’s strong emotional attachment to the house we are in accord with the trial judge’s conclusion that it is in the best interest of the family to award the exclusive use and occupancy of the family residence to appel-lee.

Appellant’s assignments of error are without merit. The judgments are AFFIRMED at appellant’s costs.

      . The denial or award of damages for the wrongful issuance of a temporary restraining order is appealable. Davis v. Raymond Petroleum, Inc., 396 So.2d 600 (La.App. 3d Cir.1981).

      . For example, a spouse who drives the other from the family residence by his outrageous behavior should not profit from that behavior by being able to remain in the family home without challenge because the other spouse cannot bear to return and suffer more outrages.


text:
    John SMITH, Plaintiff-Appellant, v. WESTERN PREFERRED CASUALTY COMPANY, Defendant-Appellee.
    No. 15078-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 29, 1982.
    Writ Denied Jan. 28, 1983.
    Travis M. Holley, Bastrop, for plaintiff-appellant.
    Hayes, Harkey, Smith & Cascio by Charles S. Smith, Monroe, for defendant-appellee.
    Before HALL, JASPER E. JONES and NORRIS, JJ.
   HALL, Judge.

The plaintiff brought suit for recovery under the collision coverage of an automobile insurance policy issued by the defendant insurance company to plaintiff for damages to his automobile sustained while the automobile was being driven by his son, Felix Ray Smith. Finding that an endorsement to the policy excluded coverage for any claims arising from accidents occurring while the automobile is being operated by the son, the trial court denied recovery. Plaintiff appealed and we affirm.

Attached to the comprehensive automobile insurance policy which provides collision, liability, and uninsured motorist coverage is an endorsement, signed by plaintiff, entitled “Exclusion of Named Driver” which provides:

“It is agreed that the insurance afforded by this policy shall not apply with respect to any claims arising from accidents which occur while any automobile is being operated by Felix Ray & Cynthia Smith.”

On appeal plaintiff contends that the endorsement is vague and ambiguous and should be construed against the insurer, that the exclusion is against public policy and void, and that the exclusion does not preclude collision coverage where the excluded driver drove the car without the named insured’s permission, as was the case here.

The evidence establishes that at the time plaintiff applied for the insurance he was advised by the insurance agent that the premium would be $1,593.88 without the exclusion and $720.58 with the exclusion. Plaintiff selected the lower premium for a policy with the exclusion and signed the exclusionary endorsement form on which the names of the insured’s children had been filled in. The policy issued contains the exclusionary endorsement. The automobile was damaged in an accident which occurred while it was being driven by Felix Ray Smith, who took the car without his father’s permission.

An insurance policy is a contract between the insured and insurer and as such has the effect of law between the parties. Stacy v. Petty, 362 So.2d 810 (La.App. 3d Cir.1978). An insurer may limit its liability just as individuals may. Lopez v. Blue Cross of Louisiana, 386 So.2d 697 (La.App. 3d Cir.1980). A clear and unambiguous provision in an insurance contract which limits liability must be given effect. Superior Steel, Inc. v. Bituminous Casualty Corporation, 415 So.2d 354 (La.App. 1st Cir. 1982).

An endorsement becomes part of the contract of insurance if attached to the insurance policy and the endorsement and the policy are parts of the same contract and must be construed together. LeDoux v. Old Republic Life Insurance Company, 233 So.2d 731 (La.App. 3d Cir.1970), writ refused 256 La. 372, 236 So.2d 501. Riders or endorsements affixed to an insurance policy are to be read with and harmonized with the provisions of the policy and in the event of any conflict between the endorsement and the policy the endorsement prevails. Maggio v. Manchester Insurance Co., 292 So.2d 255 (La.App. 4th Cir.1974). Exclusions of named drivers by rider or endorsement are permitted and are not against public policy. Hurst v. Hardware Mutual Casualty Company, 234 So.2d 802 (La.App. 1st Cir.1970), writ refused 256 La. 618, 237 So.2d 398. See Appleman, Insurance Law and Practice (Buckley Edition) § 4408.35.

The named driver exclusion is not vague and ambiguous but is clear, specific, and unambiguous. It specifically provides that the insurance afforded by the policy, which would include the collision coverage, shall not apply with respect to any claim arising from accidents which occur while any automobile is being operated by Felix Ray Smith. The exclusion is not limited in applicability to liability coverage as contended by plaintiff. The exclusion is not conditioned on whether or not the excluded named drivers were operating the automobile with the permission or consent of the named insured. There is no public policy reason why the exclusionary provision contracted between the parties should not be given full effect in accordance with its express terms.

The judgment of the district court is affirmed at appellant’s costs.

Affirmed.