text:
    SOUTHERN-GULF MARINE CO. NO. 9, INC., Plaintiff-Appellant, v. CAMCRAFT, INC., Defendant-Appellee.
    No. 8621.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.
    Writ Denied April 15, 1982.
    Andrus & Preis, Vance R. Andrus, Lafayette, for plaintiff-appellant.
    Aycock, Home, Caldwell, Coleman & Duncan, James R. McClelland, Franklin, for defendant-appellee.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   DOUCET, Judge.

Plaintiff, a corporation chartered under the laws of Cayman, British West Indies, filed suit alleging breach of a contract to furnish a ship. Defendant responded with a peremptory exception of no cause of action based upon the plaintiff’s lack of corporate existence at the time of entering into the contract, and the plaintiff’s subsequent incorporation under the laws of a sovereign different than that represented in the contract. The motion was sustained and plaintiff appeals. We reverse.

On December 6,1978 a “Letter of Agreement” was entered into, which by its terms obligated “Southern-Gulf Marine Co. No. 9, Inc., a company to be formed, to purchase one 156 foot supply vessel from Camcraft, Inc. for a price of $1,350,000.00.” The agreement further provided for an anticipated delivery date, authority for Camcraft to begin purchasing components, and stated that a definite set of specifications and a Vessel Construction Contract would be written in the near future. The agreement was signed by Mr. Dudley Bowman, as President of Camcraft, Inc., and by Mr. D. W. Barrett, both individually and as President of Southern-Gulf Marine Co. No. 9, Inc.

Thereafter, on May 30, 1979, the Vessel Construction Contract was executed between Camcraft and Southern-Gulf Marine Co. No. 9, Inc., the latter of which was listed in the preamble as a corporation organized by virtue of the laws of Texas, appearing through D. W. Barrett, its President. The contract, prepared on a form supplied by Camcraft, recited that both parties acknowledge receipt of valuable consideration, then went on to list the mutual promises of Builder (Camcraft) and Owner (Southern-Gulf). Among the conditions which followed on the form contract was one entitled “Shipping Act of 1916”, whereby the owner warranted that it was a citizen of the United States within the meaning of the Shipping Act of 1916, as amended (46 U.S.C. § 835) and that provisions of said act restricting transfer of ownership are applicable. The agreement further listed causes for default and the effect thereof. Another provision afforded Builder the right to assign its interest provided such would not violate any law of the United States.

Subsequently Mr. D. W. Barrett, President of Southern-Gulf Marine Co. No. 9, Inc., wrote to Mr. Bowman in a letter dated February 21, 1980, informing him that his organization was incorporated in the Cayman Islands of British West Indies on February 15, 1980. Mr. Barrett explained that such incorporation was done to make the vessel’s use in foreign commerce more economical. As President and Managing Director, he further informed Camcraft of the Board of Directors’ resolution to ratify, confirm, and adopt the aforesaid agreements. The letter was signed by Mr. Barrett individually and as President. Mr. Bowman signed a written acceptance and agreement to the letter on February 22, 1980.

Defendant subsequently defaulted on its obligation and this suit followed, wherein plaintiff sought to sequester the vessel involved and demanded specific performance and damages occasioned by defendant’s failure to timely deliver the vessel. The defendant then sought to escape liability via a peremptory exception of no cause of action based upon the legal status of plaintiff.

The trial judge, in his Reasons for Judgment, reasoned that a contract requires two parties, and as plaintiff was not incorporated as of the date of the Vessel Construction Contract, there was no contract. He further reasoned that the purported ratification by Southern-Gulf Marine Co. No. 9, Inc., as evidenced by the letter of February 21, 1980, was ineffective because Southern-Gulf Marine Co. No. 9, Inc. never appeared as a Texas corporation and approved of any substitution of parties or assignment. The trial judge also rejected plaintiff’s claim that D. W. Barrett could enforce the contract individually.

On appeal, the plaintiff assigns as error the following trial court actions: 1) Finding that the defendant had not agreed with the plaintiff to be bound to the May 30, 1979 Vessel Construction Contract, by virtue of the letter dated February 21,1980; 2) Finding that the May 30, 1979 Vessel Construction Contract was no contract at all; 3) Failure to hold the defendant estopped to deny the corporate existence of Southern-Gulf Marine Co. No. 9, Inc., a Texas corporation; and 4) Failure to consider the February 21, 1980 letter as evidence of a valid assignment if the trial court was correct in stating that defendant did not consent to the terms set out in the letter. Although we find merit in the argument that D. W. Barrett could enforce the contract individually, this was not urged on appeal, and thus is considered abandoned.

We address ourselves first to whether the defendant should be estopped from asserting the plaintiff’s lack of corporate capacity at the time the Vessel Construction Contract was executed after dealing with the plaintiff as a corporation. We believe the defendant, having given its promise to construct the vessel, should not be permitted to escape performance by raising an issue as to the character of the organization to which it is obligated, unless its substantial rights might thereby be affected. As was stated in Latiolais v. Citizens Bank, 33 La.Ann. 1444 (1881), overruled on other grounds in General Motors Acceptance Corp. v. Anzelmo, 222 La. 1019, 64 So.2d 417, 418-419 (1953).

“It is settled, by an overwhelming array of indisputable precedents, that, as a rule, one who contracts with what he acknowledges to be and treats as a corporation, incurring obligations in its favor, is es-topped from denying its corporate existence, particularly when the obligations are sought to be enforced. It is right that it should be so. If a party have no other objection to oppose to the enforcement of the contract than that the obli-gee is incompetent to sue, for reasons anterior to his contract, or last acknowl-edgement, he should not be permitted to escape liability. The case would be different where the incompetency is the result of something happening subsequent to the contract, or last acknowledgement of existence and capacity. It is a familiar principle that one cannot be permitted to play fast and loose, so as to take advantage of his own unfair vacillations.”

The above rule has been repeatedly applied in this and other jurisdictions. Blanc v. Germania National Bank, 114 La. 739, 38 So. 537 (1905); American Homestead Co. v. Linigan, 46 La.Ann. 1118, 15 So. 369 (1893); New Prytania Market Assoc. v. Beoubay, 185 So. 531 (La.App.Orl.1939); Painting Systems, Inc. v. Popkins, 376 So.2d 584 (La.App. 4th Cir. 1979); Casey v. Galli, 94 U.S. 673, 24 L.Ed. 168 (1877); Ingle System Co. v. Norris & Hall, 132 Tenn. 472, 178 S.W. 1113; Toledo Computing Scale Co. v. Young, 16 Idaho 187, 101 P. 257; Bremen Foundry & Machine Works v. Boswell, 22 Ga.App. 434, 96 S.E. 182; Grande Ronde Lumber Co. v. Cotton, 12 Colo.App. 375, 55 P. 610.

The rule was stated in Casey v. Galli, 94 U.S. 673, 680, 24 L.Ed. 168 (1877) as follows:

“Where a party has contracted with a corporation, and is sued upon the contract, neither is permitted to deny the existence, or the legal validity of such corporation. To hold otherwise would be contrary to the plainest principles of reason and of good faith, and involve a mockery of justice.”

The record discloses nothing indicating that the substantial rights of defendant were affected by the plaintiff’s de facto status. The plaintiff relied upon the contract and secured financing. The defendant likewise relied on the contract and began construction of the vessel. We have no doubts that defendant would assert that plaintiff and D. W. Barrett were liable on the contract had they defaulted and enforcement was advantageous, but defendants refuse to recognize any rights they may have therein. In all likelihood, the true state of affairs is as represented by plaintiff’s counsel: the vessel appreciated in value above the contract price between the time of the contract and the agreed delivery date. We hold the defendant estopped to deny the corporate existence of plaintiff in this regard. Such a result is in accord with construction of contracts so as to give them effect, LSA-C.C. Art. 1951, and the rule of construction which adapts an interpretation in accordance with justice and fair dealing with doubts resolved against the seller. Haymon v. Holliday, 405 So.2d 1304 (La.App. 3rd Cir. 1981).

The question remains whether defendant should be able to inject into the case the fact that plaintiff subsequently did incorporate in the Cayman Islands rather than in Texas, as originally represented. Paragraph 25 of the contract provides that an assignment or transfer shall not violate the Shipping Act of 1916 which prohibits transfer in the event of war or national emergency. Defendant apparently had no objections to the plaintiff’s altered status, as a Cayman rather than de facto corporation, at the time the letter of February 21,1980 was accepted and agreed to. And we all know that no war or national emergency existed. Thus the evidence indicates that the plaintiff’s legal status is not germane to any cause for the contract and as such should not be grounds for avoidance of the contract. However, as the trial judge did not reach this consideration, we reserve unto defendant, upon remand, the right to raise the issue of the relevance of Cayman incorporation rather than Texan. It should be noted that defendant has not questioned plaintiff’s right to do business within Louisiana, as in Outdoor Electric Advertising, Inc. v. Saurage, 207 La. 344, 21 So.2d 375 (1945); and J. R. Watkins Co. v. Floyd, 119 So.2d 164 (La.App. 1st Cir. 1960).

Because of the result reached we need not address appellant’s additional assignments of error.

The judgment appealed from is reversed and remanded to the trial court for further consideration consistent with the views herein. All costs taxed to appellee.

REVERSED AND REMANDED.

      . The last paragraph in the body of the letter of February 21, 1980, requested Mr. Bowman to acknowledge the terms therein by signing the below form and returning a duplicate thereof to plaintiff.
      “ACCEPTED AND AGREED THIS _
      DAY OF FEBRUARY, 1980.
      CAMCRAFT, INC.
      BY: _
      Dudley E. Bowman, President”


source: Caselaw Access Project

author: LABORDE, Judge.

license: Public Domain

text:
    Edward J. ALLOR, Plaintiff-Appellant, v. BELDEN CORPORATION, Defendant-Appellee.
    No. 8622.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.
    Writ Denied April 15, 1982.

      Broussard, Bolton & Halcomb, Roy S. Halcomb, Jr., Alexandria, for plaintiff-appellant.
    Gaharan & Wilson, Joseph Wilson and Paul Boudreaux, Jr., Jena, for defendant-appellee.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   LABORDE, Judge.

The principal issues on appeal are whether Belden Corporation, defendant-appellee, failed to timely pay the workmen’s compensation benefits awarded Edward J. Allor, plaintiff-appellant, by judgment of the Louisiana Supreme Court, thus entitling Allor to have the payments accelerated under LSA-R.S. 23:1333 and whether Belden Corporation is liable for penalties and attorney’s fees under LSA-R.S. 23:1201.2.

The lower court denied plaintiff’s demands. Plaintiff appeals. We affirm.

On March 5, 1980, this court awarded payment of certain workmen’s compensation benefits to Allor. Allor v. Belden Corp., 382 So.2d 206 (La.App. 3rd Cir. 1980). Belden did not seek relief from this judgment, however Allor filed an application for writ of certiorari or review with the Louisiana Supreme Court which was granted. Allor v. Belden Corp., 383 So.2d 798 (La.1980). On January 26, 1981, the Supreme Court awarded Allor the following workmen’s compensation benefits:

“In summary, we conclude that the plaintiff is entitled to total, temporary disability compensation from the date of his accident, March 16, 1978, until June 27, 1979 at the rate of $130.00 per week. After June 27, 1979, the plaintiff is entitled to permanent, partial disability compensation in the amount of $130.00 per week minus any wages earned by him during the week. We find no error in the court of appeal’s award of penalties, attorney’s fees, medical, and travel expenses and thus affirm this award. We order that an additional $500.00 in attorney’s fees be assessed against the defendant to cover the expenses incurred in prosecuting this appeal.”

Allor v. Belden Corporation, 393 So.2d 1233 (La.1981).

No payments having been received nor any contacts made by Belden, Allor’s attorney made written demand on Belden for immediate payment of all amounts due under the judgment by letter dated February 11, 1981. Shortly after February 24, 1981, Belden paid $1,277.04 which represented payment of benefits due for the time period March 16, 1978, through June 27, 1979, together with the sum of $500 in attorney’s fees. Belden failed to reinstate payment of weekly benefits and failed to pay additional sums due under the judgment which sums totaled approximately $10,106.63.

On March 13,1981, Allor received a check for $650 from Belden for compensation benefits. Belden advised Allor that his weekly disability benefits were being reinstated. Belden refused to pay any other benefits due beyond that date until furnished with records of wages earned by Allor prior to that time. The earnings of Allor were furnished Belden by letter dated March 13, 1981.

On April 2, 1981, Allor filed a rule to accelerate payments and to collect pay-merits in arrears under LSA-R.S. 23:1333. In his rule, plaintiff also sought to recover penalties and attorney’s fees under LSA-R.S. 23:1201.2. On April 8, 1981, Belden paid Allor $10,106.63, the balance due and owing under the Supreme Court judgment dated January 26, 1981.

At the hearing of the rule on April 14, 1981, the litigants stipulated that all payments then due Allor had been paid up to date.

In denying Allor’s requests the trial judge held: “It is my view that defendant paid all that was due to plaintiff within a legally permissible delay after being provided with information needed to calculate the amount due. Therefore, all demands of plaintiff are rejected at plaintiff’s costs.”

IS PLAINTIFF ENTITLED TO A JUDGMENT UNDER THE PROVISIONS OF LSA-R.S. 23:1333?

LSA-R.S. 23:1333, in pertinent part provides, “If the employer against whom a judgment awarding compensation lias been rendered ... fails to pay six successive installments as they become due, the installments not yet payable under the judgment shall become due and exigible and the judgment shall become executory for the whole amount; ...”

Allor contends that the Louisiana Supreme Court rendered judgment in his favor on January 26, 1981, and that Belden did not reinstate his weekly disability benefits until March 13, 1981, which was more than six weeks after rendition of judgment thus entitling him to have the judgment declared executory for the whole amount.

Defendant counters by arguing that the judgment, although rendered on January 26, 1981, did not become final until February 10, 1981, when the delays for filing an application for rehearing expired. Having reinstated weekly compensation benefits on March 13, 1981, it is Belden’s position that there was no period of six consecutive weeks when an installment was due and was not paid.

We agree with Belden. “Judgment” as used in LSA-R.S. 23:1333 refers to a final judgment. See Powe v. City of New Orleans, 346 So.2d 886 (La.App. 4th Cir. 1977). A judgment of the Supreme Court becomes final and definitive when the delay for application for rehearing has expired and no timely application for a rehearing has been made. The delay for applying for a rehearing is within fourteen days of the mailing of notice of judgment in the supreme court. LSA-C.C.P. art. 2167.

Applying the law to the facts presented in the instant case, we reach the following conclusions. Notice of the Supreme Court judgment was mailed on the day it was rendered which was January 26, 1981. Belden did not file an application for rehearing and the judgment became final on February 10, 1981. As stated earlier, Allor’s weekly compensation benefits were reinstated on March 13, 1981. This being so, Belden never failed to pay six successive installments as they became due and thus LSA-R.S. 23:1333, under its clear wording, was not triggered. Allor’s first argument lacks merit.

Allor’s next argument is that he is entitled to penalties and attorney’s fees pursuant to LSA-R.S. 23:1201.2. This article provides that a self-insured employer, “shall pay the amount of any claim due under the provisions of this chapter, within sixty days after receipt of written notice.” The article, in pertinent part, continues: “Failure to make such payment within sixty days after receipt of notice, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the employer to a penalty, in addition to the amount of claim due, of 12% of the total amount of such claim, payable to the claimant, together with all reasonable attorney’s fees for the prosecution and collection of such claim, ...”

The record shows that Belden received written notice from Allor by letter dated February 11, 1981. Within sixty days following receipt of this written demand, Bel-den paid all that was due Allor. Under the clear terms of LSA-R.S. 23:1201.2, Allor is not entitled to penalties and attorney’s fees.

For the above and foregoing reasons, the judgment of the district court is affirmed at plaintiff-appellant’s cost.

AFFIRMED.


author: DOUCET, Judge.

text:
    Freddie Wayne CLARK, Plaintiff-Appellant, v. AETNA LIFE INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 8623.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.
    Ford & Nugent, Howard N. Nugent, Jr., Alexandria, for plaintiff-appellant.
    William Henry Sanders, Jena, for inter-venor-appellee.
    Gold, Little, Simon, Weems & Bruser, Eugene Sues and John Simon, Gist, Meth-vin, Hughes & Munsterman, David A. Hughes, Alexandria, for defendants-appel-lees.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   DOUCET, Judge.

Plaintiff-Appellant, Freddie Wayne Clark, was injured in an accident while in the course and scope of his employment and subsequently retained appellee, William H. Sanders, as his attorney. Suit followed, with multiple parties made defendants, seeking recovery on numerous claims, including workmen’s compensation, products liability and insurance claims. At the time of the suit appellant was already receiving weekly workmen’s compensation benefits, however, the computation and duration of such benefits were disputed, and medical debts incurred due to the injury remained outstanding. Thereafter the workmen’s compensation claim was voluntarily dismissed without prejudice. Two years later, plaintiff became disgruntled with the slow developments of the remaining litigation and his lawyer’s insistence upon him paying for a medical report despite contract provisions to the contrary in the attorney-client agreement. Accordingly, he discharged Mr. Sanders and requested his file be made available for the succeeding attorney. Sanders responded with a Petition of Intervention wherein he sought to be “dismissed as counsel of record for Mr. Clark in such wise that Ford and Nugent, Mr. Clark’s present attorneys may appear as counsel of record”, and further sought attorney’s fees and costs according to his contract of employment and quantum meruit and a lien in preference and priority securing same. Additionally, Sanders, as intervenor, claimed a lien and commitment on behalf of the medical creditors as to all such costs incurred, being of the belief that under Texas law he would be personally responsible if he failed to see that said bills were paid. Appellee-intervenor thereafter secured a default judgment which was duly confirmed. Said judgment ordered plaintiff to pay intervenor $19.00 per week for a period of 496 weeks and thereafter an amount of $9.50 per week out of each workmen’s compensation check received by plaintiff. It was further ordered that plaintiff pay intervenor $3,424.50 as costs incurred by intervenor incidental to his representation, and a privilege was recognized upon any sums received by plaintiff in the amount of all medical expenses incurred as a result of the injury.

From that judgment plaintiff has timely perfected this devolutive appeal and filed a peremptory exception, wherein he alleges that the succeeding attorney is an indispensable party to any action by a terminated attorney to collect a contingent fee, and the failure to join the succeeding attorney renders the proceedings fatally defective, requiring remand. We find merit in appellant’s peremptory exception and accordingly vacate the judgment rendered and remand.

In Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La.1979) on rehearing, our Louisiana Supreme Court held that a terminated attorney is obligated to name the succeeding attorney as an indispensable party in an action to recover attorney’s fees inasmuch as the issue of attorney fees was to be resolved by allocation between attorneys of the highest ethical contingent fee to which client had agreed. We find the present case indistinguishable from Saucier. In both cases the client’s case had not been pursued to a proper conclusion when the original attorney was discharged. Appellee was fully aware of plaintiff’s retainment of counsel, Ford and Nugent, following his discharge, nonetheless he failed to name them as parties to his intervention action. It makes little difference that the award received in the present case was statutory, indeed the maximum allowable, rather than the percentage agreed upon as in Saucier, since the statute sets the highest ethical fee. Appellee has cited no law and makes no argument suggesting a contrary result.

Accordingly, we grant the appellant’s peremptory exception. The failure to join an indispensable party to an action may be noticed at the appellate level. LSA-C.C.P. Art. 645.

For the reasons assigned, the judgment appealed is reversed and set aside without prejudice, and the case remanded with all costs of this appeal taxed to intervenor-ap-pellee.

REVERSED AND REMANDED.

      . The contract provided in pertinent part:
      “As a consideration for legal services rendered and to be rendered, client agrees to this assignment of interest under the provisions of R.S. 37:218 and R.S. 9:5001, as a contingent interest in said claims in the following percentages:
      A) 50% of recovery realized through compromise and without the necessity of filing suit.
      B) 50% in the event that suit is filed

        C) 50% in the event of appeal
      If a claim for Workmen’s Compensation is made, I agree to pay the statutory fee and all legal expenses incurred.
      It is further agreed that the Attorney will advance all costs of litigation, investigation, depositions, pictures, models and other trial preparations. The Attorney shall be reimbursed all such reasonable and necessary expenses incurred, including all expenses of preparation for trial and for litigation out of any recovery made whether by compromise or litigation.
      The Attorney is hereby given consent of the client to authorize him to dismiss, with prejudice, any suit he may have filed on his behalf at his discretion.
      This assignment of interest and contract of employment may only be terminated by written mutual consent. Neither client nor attorney shall have right to release, settle, transact or compromise any demand, claim, suit or action, pursuant to this agreement without the written consent of all parties of this agreement.”

      . Appellant also assigns as error the trial court’s award of attorney’s fees beyond the date of his termination, and the award in favor of the medical creditors inasmuch as the attorney-client contract drawn by intervenor was silent as to recovery by the attorney for medical expenses incurred by the client but not paid by the attorney. However, due to the result reached herein we need not address these issues.

      . The pertinent part of Article 645 reads:
      “The failure to join an indispensable party to an action may be pleaded in the peremptory exception, or may be noticed by the trial or appellate court on its own motion.”


text:
    CITY FINANCE COMPANY OF ALEXANDRIA, INC., Plaintiff-Appellee, v. Joseph JOHNSON, Defendant, Sallie H. Johnson, Intervenor-Appellant.
    No. 8624.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.
    P. Spencer Torry, Alexandria, for interve-nor-appellant.
    John R. Hunter, Jr., Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, DOUCET and LABORDE, JJ.
   LABORDE, Judge.

Sallie H. Johnson, intervenor-appellant has appealed devolutively from a judgment in favor of City Finance Company of Alexandria, Inc. For the reasons which follow, we affirm the decision of the trial court.

On April 30, 1981, plaintiff obtained a judgment against Joseph Johnson, appellant’s husband, and on May 15, 1981, plaintiff caused a writ of fieri facias to issue and described intervenor’s 1974 Grand Prix automobile to be seized and sold at Marshal Sale. The Marshal’s Sale of the seized property was scheduled for June 10, 1981, at 10:00 a.m.

On June 8,1981, appellant filed a “Motion to Intervene And Rule To Show Cause” alleging that the automobile seized was her separate property which she acquired as a gift and donation from her son.

Attached to the Motion to Intervene And Rule to Show Cause was an order prepared by appellant’s attorney which was signed by the City Judge. The order provided:

ORDER
“Let Sallie H. Johnson be granted leave to intervene in this matter and let the plaintiff, City Finance of Alexandria, Inc. and C. Otis Penny, Marshal of City of Alexandria show cause on the 9th day of June, 1981 at 11:00 A.M. why the above described property should be ordered seized and sold on June 10, 1981 at 10:00 A.M. Alexandria, Louisiana, this 8 day of June, 1981.
s/ George M. Foote Judge”

On June 9, 1981, a hearing was held pursuant to appellant’s rule to show cause. A minute entry dated June 9, 1981, reads as follows: “Hearing was held this day at 11:00 A.M. In conclusion of hearing, judgment denying injunction and permitting the sale of property.” The Marshal’s Sale was held on June 10, 1981.

The formal judgment was rendered in open court on June 9, 1981. The judgment ordered in part:

“... that there be judgment in favor of plaintiff, CITY FINANCE OF ALEXANDRIA, INC. and against the Intervenor, SALLIE H. JOHNSON. All costs of the proceeding are accessed [sic] to the Inter-venor.
... that the writ of fieri facias issued herein be maintained and that the said property be sold according to law and that this judgment be paid from the proceeds of the sale.
Judgment rendered in Open Court on June 9,1981 and signed in Open Court at Alexandria, Rapides Parish, Louisiana, on this 27 day of August, 1981.”

Although the judgment was rendered June 9,1981, it was not signed until August 27, 1981. The motion for devolutive appeal was filed by appellant on August 27, 1981.

Since the trial judge did not favor us with written reasons for judgment, we assume he based his decision on the provisions of LSA-C.C.P. art. 1092 which provides, in part:

“A third person claiming ownership of, or a mortgage or privilege on, property seized may assert his claim by intervention. If the third person asserts ownership of the seized property, the intervention may be filed at any time prior to the judicial sale of the seized property, and the court may grant him injunctive relief to prevent such sale before an adjudication of his claim of ownership.”

Under the above quoted article, the trial court permitted the intervention and after hearing appellant’s assertions of ownership, denied injunctive relief. The sale took place as scheduled the following day. Clearly the trial judge acted within his discretion under LSA-C.C.P. art. 1092. We find no error in the trial court’s decision.

The only further action taken by appellant was a motion to appeal devolu-tively filed on August 27, 1981.

In any event, we additionally note that since the trial judge denied appellant’s request for injunctive relief on June 9, 1981, and since the Marshal’s Sale was held on June 10, 1981, we know of no order or judgment this court could render which would grant appellant the relief she seeks or undo that which has already been done. All issues presented on appeal are now moot.

For the reasons assigned, the appeal herein taken is dismissed. All costs of this appeal are assessed against the intervenor-appellant, Sallie H. Johnson.

APPEAL DISMISSED.

      . The trial court erroneously referred to appellant’s motion as an injunction when in fact no language pertaining to an injunction or arrest of sale appears in the Motion to Intervene and Rule to Show Cause.


author: FORET, Judge.

text:
    Stephen C. JONES, Plaintiff-Appellee, v. MFA MUTUAL INSURANCE COMPANY, et al., Defendants-Appellants.
    No. 8629.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.

      Lunn, Irion, Switzer, Johnson & Salley, Harry Johnson, Jr., Shreveport, for defendants-appellants.
    Davis & Simmons, Kenneth N. Simmons, Many, for plaintiffs-appellees.
    Watson, Murchison, Crews, Arthur & Cor kern, Ronald E. Corkern, Natchitoches, Mayer, Smith & Roberts, George T. Allen, Shreveport, John Williams, Brittain & Williams, Joe P. Williams, Natchitoches, for defendant-appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   FORET, Judge.

Stephen C. Jones (Plaintiff) brought this tort action to recover damages for personal injuries suffered by him in a one-vehicle accident. Named defendants are: Bonnie T. Williams, Jr. (Williams), the driver of the vehicle, and his automobile public liability insurer, State Farm Mutual Automobile Insurance Company (State Farm); MFA Mutual Insurance Company (MFA), the automobile public liability insurer of Bobby Goss, the owner of the vehicle; and, United States Fidelity & Guaranty Company (USF&G), plaintiff’s own automobile public liability insurer.

Edna Lee Jones Oswalt (intervenor) intervened in these proceedings bringing a wrongful death action, on her own behalf, and a survival action on behalf of her son, Luther Thomas Jones (decedent), who died as a result of injuries received in the accident. Williams, State Farm, MFA and Standard Fire Insurance Company of Alabama (Standard), decedent’s automobile public liability insurer, were named defendants in intervention.

Trial of plaintiff’s action and the intervention resulted in a judgment: in favor of plaintiff and against MFA in the sum of $10,000.00; in favor of plaintiff and against State Farm and Williams, in solido, in the amount of $20,000.00; and, in favor of plaintiff and against USF&G in the amount of $229.54. The trial court further rendered judgment: in favor of intervenor and against MFA in the amount of $10,000; in favor of intervenor and against State Farm and Williams, in solido, in the amount of $20,000.00; and, in favor of intervenor and against Williams in the amount of $33,-041.53.

State Farm, the only defendant to appeal, brings this suspensive appeal from that portion of the trial court’s judgment rendered against it. The judgment is final as to the other defendants. State Farm raises the following issues:

(1) Whether the trial court committed an error of law in allowing the two State Farm automobile public liability policies issued to defendant, Williams, to be stacked in order to apply the total amount of the policy limits to the damage awards to plaintiff and inter-venor;
(2) Whether the trial court abused its “much discretion” in making its general damage award to plaintiff.

Plaintiff and intervenor answered the appeal alleging, in the alternative, that, if we should decide to reverse or amend the trial court judgment in any respect, then we should find that State Farm entered into a compromise and settlement with them. Further answering, in the alternative, plaintiff and intervenor alleged that if we should find that State Farm did not enter into a compromise and settlement with them, then we should find that State Farm entered into a compromise and settlement with its insured, Williams.

FACTS

Plaintiff and decedent were passengers in a 1974 GMC van, owned by Bobby Goss, and being driven by Williams, on February 20, 1980. At approximately 10:34 a.m. on that date, the van was headed north on La. 35 and was approximately 8 miles south of Kaplan, in Vermilion Parish, when Williams lost control and it left the highway. It traveled some 366 feet after leaving the highway, then struck an embankment and became airborne for another 71 feet before coming to rest upside down.

After the accident, plaintiff remained partially in the vehicle with his right leg trapped underneath it and suffered severe injuries to his right ankle. Decedent had been ejected from the vehicle and was lying unconscious on the ground with severe, and subsequently fatal, head injuries. Emergency aid arrived on the scene within about 15 minutes of the accident, and plaintiff and decedent were taken by ambulance to Abrom Kaplan Memorial Hospital. Because of the extent of their injuries, they were immediately transferred to Lafayette General Hospital for treatment. Decedent expired two days later in that facility.

The trial court found that the sole, proximate cause of the accident was the negligence of Williams, and no issue concerning that finding has been raised on appeal.

“STACKING” OF AUTOMOBILE PUBLIC LIABILITY COVERAGES

The evidence indicates that State Farm had issued two automobile liability insurance policies to Williams, prior to the accident, providing coverage for two vehicles owned by him. Limits of liability set by each policy for bodily injury sustained by other persons were $10,000.00 per person or $20,000.00 per accident. Policy condition number 9 provides:

“POLICY CONDITIONS
9. Other Insurance. Under Coverages A, B, D, F, G and R with respect to any liability or. loss to which this and any other automobile insurance policy issued to the named insured by the company also applies, the total limit of the company’s liability under all such policies shall not exceed the highest applicable limit of liability under any one such policy.
Subject to the above paragraph, if the insured has other insurance against liability or loss covered by this policy, the company under coverages A, B, D, F and G, shall not be liable for a greater proportion of such liability or loss than the applicable limit of liability bears to the total applicable limit of liability of all collectible insurance against such liability or loss.” (Exhibit P-1, page 13).”

The trial court concluded, “.. . that Louisiana law would not give effect to those provisions and, therefore, allows stacking of the policy limits of the two (2) policies herein”. The trial court then cited a number of cases from the Louisiana jurisprudence concerning the stacking of uninsured motorists coverages and found, “... no valid reason has been shown why they should not be extended by analogy to this case, dealing with automobile liability insurance coverage”.

State Farm contends that the trial court committed an error of law in allowing the stacking of the automobile liability coverages of its two policies. We agree.

Absent conflict with statute or public policy, insurers may, by unambiguous and clearly noticeable provisions, limit liability and impose such reasonable conditions as they wish upon the obligations they assume by contract. Livingston Parish School Board v. Fireman's Fund American Insurance Company, 282 So.2d 478 (La.1973); Breaux v. St. Paul Fire & Marine Insurance Co., 326 So.2d 891 (La.App. 3 Cir. 1976). In these circumstances, unambiguous provisions limiting liability must be given effect. Breaux v. St. Paul Fire & Marine Insurance Co., supra; Snell v. Stein, 261 La. 358, 259 So.2d 876 (1972), and authorities cited therein.

We find no conflict between policy condition number 9 and any statute or public policy of this State. In fact, the legislature has specifically overruled most of the cases referred to by the trial court by means of LSA-R.S. 22:1406(D)(1)(a), which prohibits the stacking of uninsured motorists coverages in most instances.

It has been held that where a single policy provides liability coverage for two vehicles, for which two premiums are charged, the liability coverages may not be stacked. See Hurston v. Dufour, 292 So.2d 733 (La.App. 1 Cir. 1974), writ denied, 295 So.2d 178 (La.1974); Arado v. Central National Insurance Company of Omaha, 337 So.2d 253 (La.App. 4 Cir. 1976), application not considered, 339 So.2d 19 (La.1976).

The trial court also found that the second paragraph of policy condition number 9 providing for a proration of insurance coverage had the effect of allowing coverage under only one of the policies. Thus, it found the provisions of this paragraph to be unenforceable. We fail to see how the trial court derives this meaning from that paragraph.

The second paragraph clearly deals with the following two situations. First, where the insured has overlaping coverage provided by a State Farm automobile insurance policy and some other type of policy issued by State Farm. Second, where an insured has overlaping coverage provided by a State Farm automobile insurance policy and any other policy issued by another insurance company. In any event, we have already found that it is permissible for State Farm to provide in its policies that an insured, having two or more policies of automobile liability insurance issued by it, may be restricted to recovering under the policy having the highest limits of liability.

Plaintiff and intervenor cite a provision from the State Farm policies, which provides, in pertinent part, that:

“When certified as proof of future financial responsibility under any motor vehicle financial responsibility law and while such proof is required during the policy period, this policy shall comply with such law if applicable, to the extent of the coverage and limits required thereby; but not in excess of the limits of liability stated in this policy...”

They contend that this reference to the “financial responsibility laws”, and the former jurisprudence holding that “other insurance” provisions relating to the proration of uninsured motorists coverages were unenforceable, somehow compels a finding that stacking of automobile liability insurance coverages should be allowed. However, we note that LSA-R.S. 32:900 defining a “motor vehicle liability policy” for purposes of the safety responsibility law specifically provides in part (I) thereof that:

“Any motor vehicle liability policy may provide for the prorating of the insurance thereunder with other valid and collectible insurance”.

There is no merit to the contention raised by the plaintiff and intervenor.

We find that the maximum amount which may be recovered from State Farm is $20,000.00 in the proportion of $10,000.00 for plaintiff and $10,000.00 for intervenor.

QUANTUM

State Farm contends that the trial court abused its “much discretion” in awarding plaintiff $30,229.54 in damages. State Farm does not raise any dispute concerning the amount claimed by plaintiff in special damages, which totalled $10,229.54, but only the amount awarded for general damages. The trial court’s judgment lumped together its award for general damages with the award for special damages. Thus, plaintiff was awarded $20,000.00 for general damages.

LSA-C.C. Article 1934(3) provides that in the assessment of general damages “much discretion” must be left to the trial judge or jury. Reck v. Stevens, 373 So.2d 498 (La.1979).

The Louisiana Supreme Court, in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), stated on page 335:

“We do reemphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. Anderson v. Welding Testing Laboratory, Inc. [304 So.2d 278 (La.)], supra; Bitoun v. Landry [302 So.2d 278 (La.)], supra; Fox v. State Farm Mutual Automobile Ins. Co. [288 So.2d 42 (La.)], supra; Walker v. Champion [288 So.2d 44 (La.)], supra. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. Bitoun v. Landry, supra; Spillers v. Montgomery Ward & Company, Inc. [294 So.2d 803 (La.)], supra. It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.”

State Farm cites a number of cases in its brief which it contends indicate a clear abuse of discretion by the trial court. These cases concern actions brought by plaintiffs with injuries somewhat similar to those suffered by plaintiff in this case.

However, the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is a clear abuse of the trier of fact’s “much discretion”, LSA-C.C. Article 1934(3), in the award of damages. Reck v. Stevens, supra.

The evidence shows that after the accident, plaintiff remained conscious during the entire time that his right leg was pinned beneath the vehicle. Plaintiff testified that he experienced severe pain during this period of time, and until he reached the hospital in Kaplan where medication was administered. His medical records show the frequent administration of potent narcotics (Morphine Sulfate, Percodan and Mepergan Fortis) in an attempt to alleviate his suffering during the eight days he remained hospitalized in Lafayette. Plaintiff was then required to wear a cast stretching from his toes to his knee on his right leg for two-and-a-half months and to use crutches while walking.

Dr. James Lafleur, the orthopedic surgeon who repaired the fracture to plaintiff’s right ankle, testified that plaintiff could expect to experience occasional discomfort in the future. He expected plaintiff to develop post traumatic arthritis in his ankle. Dr. Lafleur was reluctant to assign a percentage disability to plaintiff, but when pressed, he estimated it to be in the vicinity of a 15% impairment to the foot. He explained that the foot accounts for 80% of the function of the leg.

We find no clear abuse of the trial court’s “much discretion” in awarding plaintiff $20,000.00 in general damages. The cases cited by State Farm contain general damage awards ranging between $15,000.00 and $17,500.00 to persons suffering injuries similar to plaintiff’s.

ANSWER TO APPEAL

Plaintiff and intervenor (appellees) contend that a valid compromise and settlement had been reached between State Farm and themselves, by which State Farm agreed to pay plaintiff $20,000.00 and inter-venor $20,000.00. They point to the following minute entry and argue that it constitutes a judicial admission in open court of the settlement. That minute entry dated October 27, 1980, reads:

“Matter having been fixed for today. All parties being represented. Mr. Kenneth N. Simmons moved, that subject to tentative agreement the matter be upset without refixing and the court so ordered. Mr. Johnson stated to the court that they had reached an agreement on all phases of the case.”

Harry A. Johnson, Jr. was counsel of record for State Farm. By letter dated November 7, 1980, he notified all other counsel of record that State Farm refused to issue drafts pursuant to the agreement because the amounts were in excess of its contractual liability under the policies issued by it.

Appellees alleged that the settlements were reduced to writing, but there is no evidence in the record of any such written agreements. LSA-C.C. Article 3071 requires such contracts to be reduced into writing.

Bourgeois v. Franklin, 389 So.2d 358 (La.1980) had occasion to decide the following issue:

“In a tort suit, where the attorneys for plaintiff and defendant, ostensibly with the assent of their respective clients, recite in open court the fact and amount of a compromise settlement without having reduced it to writing, may one of the parties thereafter enforce the settlement?
We hold that what took place in this case was an attempt at compromise and that it was not effective because not in writing as required by Civil Code Article 3071.”

Certainly, in the action before us, the same result is indicated. This result is further indicated by the fact that here the terms of the settlement were not dictated into the record and, as can be seen from the minute entry, counsel for appellees, himself, characterized the agreement as being “tentative”.

We find that no valid settlement or compromise was entered into between appellees and State Farm.

Finally, appellees contend that State Farm entered into an agreement with its insured and that this agreement gave rise to a “stipulation pour autrui” in their favor within the meaning of LSA-C.C. Article 1890. There is no evidence of any such agreement in the record. We find no merit to this contention.

For the above and foregoing reasons, the judgment of the trial court is amended to read as follows, and affirmed as amended.

Judgment is rendered herein:

I. In favor of plaintiff, Stephen C. Jones, and against the defendant insurer, MFA Mutual Insurance Company, for the full and true sum of Ten Thousand and No/100 ($10,000.00) Dollars; in favor of Stephen C. Jones and against the defendant insurer, State Farm Automobile Insurance Company, and the defendant Bonnie T. Williams, Jr., in solido, for the full and true sum of Ten Thousand and No/100 ($10,-000.00) Dollars; in favor of Stephen C. Jones and against the defendant, Bonnie T. Williams, Jr., for the full and true sum of Ten Thousand and No/100 ($10,000.00) Dollars; and, in favor of Stephen C. Jones and against the defendant insurer, United States Fidelity & Guaranty Company, for the full and true sum of Two Hundred Twenty-Nine and 54/im ($229.54) Dollars, with legal interest on all the said amounts from date of judicial demand until paid; and for all costs, the costs to be prorated among the said defendant insurers;

II. In favor of intervenor, Edna Lee Jones Oswalt, and against the defendant insurer, MFA Mutual Insurance Company, for the full and true sum of Ten Thousand and No/100 ($10,000.00) Dollars; in favor of Edna Lee Jones Oswalt and against the defendant insurer, State Farm Mutual Automobile Insurance Company, and the defendant, Bonnie T. Williams, Jr., in soli-do, for the full and true sum of Ten Thousand and No/100 ($10,000.00) Dollars; and, in favor of Edna Lee Jones Oswalt and against the defendant, Bonnie T. Williams, Jr., for the full and true sum of Forty-Three Thousand Forty-One and r>3/ioo ($43,-041.53) Dollars, with legal interest on all the said amounts from date of judicial demand until paid.

All costs of this appeal are assessed one-half against State Farm Mutual Automobile Insurance Company and one-half against plaintiff, Stephen C. Jones, and in-tervenor, Edna Lee Jones Oswalt.

AFFIRMED AS AMENDED.

      . Standard filed declinatory and dilatory exceptions on the following grounds: that the trial court lacked in personam jurisdiction over it; insufficiency of service of process; it was not licensed to do, nor doing business in the State of Louisiana, nor had it appointed an agent for service of process in this State; that the Secretary of State of the State of Louisiana was not its agent for service of process; that Sabine Parish was not a proper venue; and, that intervention was not the proper manner for interve-nor to enforce her claim. The trial court overruled the exceptions. Standard filed an application for writs to this Court which was granted. It is no longer a party to this lawsuit.

      . “Art. 3071. Transaction or compromise, definition
      Art. 3071. A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
      This contract must be reduced into writing.”
      NOTE: (By Act # 782 of the regular session, 1981, the Louisiana Legislature amended Article 3071. However, the effective date of the act was July 28, 1981, and judgment in this case being signed on June 4, 1981, the amendment does not have any effect in this case.)


author: GUIDRY, Judge.

text:
    Wayburn Dwayne SLATER, Plaintiff-Appellant, v. Bobbie Sue Mack SLATER, Defendant-Appellee.
    No. 8633.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.
    Knoll & Knoll, Kerry L. Spruill, Marks-ville, for plaintiff-appellant.
    Offices of Nelson M. Lee & Associates, Dan B. McKay, Jr., Bunkie, for defendant-appellee.
    Before GUIDRY, SWIFT and STOKER, JJ.
   GUIDRY, Judge.

Plaintiff, Wayburn Dwayne Slater, filed a divorce action against defendant, Bobbie Sue Mack Slater, alleging that the parties have lived separate and apart for one year in accordance with the provisions of LSA-R.S. 9:301. In the alternative, plaintiff sought a judgment of separation from bed and board contending that the defendant was guilty of mental cruelty towards him. Defendant filed exceptions of lack of subject matter jurisdiction, no cause/right of action, and res judicata. The trial court overruled all of the defendant’s exceptions. After a hearing on the merits, the trial court concluded that the parties had not lived separate and apart for the requisite period within the intendment of LSA-R.S. 9:301 and denied plaintiff’s demand for a divorce. Moreover, the district court concluded that plaintiff failed to establish by a preponderance of the evidence that the defendant was guilty of mental cruelty towards him and dismissed his demand for a judgment of separation from bed and board.

Plaintiff appeals only from the judgment of the trial court denying his demand for a separation from bed and board. Defendant answered the appeal praying for affirmation of the trial court’s judgment denying plaintiff’s demands, and additionally, seeking reversal of the trial court’s decision overruling defendant’s exceptions of no cause/right of action and res judicata. Additionally, defendant prays for attorney’s fees and assessment by this court of all costs of the proceedings at trial and on appeal to plaintiff. Alternatively, defendant contends in event of reversal that this matter be remanded to the trial court for a new trial due to the failure of the trial court to grant defendant’s motion for a continuance of the instant matter.

The following issues are presented on appeal:

(1) Did the trial court err in denying plaintiff’s demand for a judgment of separation from bed and board?
(2) Is a judgment of “separate maintenance” decreed by a Mississippi Chancery Court, the same or substantially similar to a Louisiana judgment of separation from bed and board, such as to render all issues therein litigated res judicata, and meriting full faith and credit by the Louisiana courts?
(3) Is the defendant entitled to attorney's fees?
(4) Did the trial court err in denying defendant’s motion for a continuance of the district court proceedings?

At the outset, we observe that defense counsel moved for a continuance prior to trial of the instant matter on the ground that the defendant was ill and unable to be present in court. The trial court denied defendant’s motion and proceeded to a trial on the merits. Defense counsel failed to call any witnesses in defendant’s behalf during the course of the hearing, thus, the record consists only of the testimony of plaintiff and his witnesses.

The record reflects that plaintiff and defendant were married on May 1, 1973 in Biloxi, Mississippi. No children were born of this union. Plaintiff is a member of the United States Air Force and is stationed in Biloxi, Mississippi, where he resided with defendant on the military base located there. On or about May 22, 1979, plaintiff departed the matrimonial domicile in Biloxi to begin a tour of duty in Korea. Following his return from Korea on May 3, 1980, plaintiff resided with defendant at the parties’ matrimonial domicile until May 7,1980. On May 7, 1980, plaintiff decided to leave the matrimonial domicile and return to Bunkie, Louisiana, his legal domicile. Mr. Slater stated that he did not inform defendant of his desire to live separate and apart from her prior to leaving. Plaintiff testified that when he left the matrimonial domicile, his wife began yelling at him, using vile language and calling him names, and threatened to have her son (by a previous marriage) kill him- if he attempted to return to the matrimonial domicile. The record reflects that the parties have lived separate and apart since May 7, 1980. Plaintiff filed the instant suit on May 20, 1980.

On August 8, 1980, a bill for separate maintenance filed by complainant, Bobbie Sue Mack Slater, against defendant, Way-burn Dwayne Slater, was tried by the Chancery Court of Harrison County, Mississippi. That court decreed that Bobbie Sue Mack Slater was entitled to separate maintenance and awarded her the sum of $275.00 per month to be paid by the defendant, Wayburn D. Slater.

Because we conclude, as did the trial court, that on its merits, plaintiff’s suit should be dismissed, we do not consider correctness of the trial court’s rulings pertaining to defendant’s several exceptions or her motion for a continuance.

Plaintiff testified that he and his wife had not “gotten along” for a long time. In this regard, Mr. Slater stated that their marital relationship was characterized by a substantial amount of underlying tension. Moreover, plaintiff indicated that there existed a severe lack of communication between he and his wife. Mr. Slater testified that defendant was not a “dutiful wife”. In this regard, he stated that Mrs. Slater did not wash his clothes, cook his meals, or maintain the house. Further, Mrs. Slater allegedly refused to associate with plaintiff’s family and friends. In addition, plaintiff complained that the defendant refused to support him in his educational pursuits. Mr. Slater testified that the defendant attempted to live beyond their means. Finally, plaintiff alluded in his testimony to an alleged drug problem on the part of his spouse. However, in this connection, the record indicates that Mrs. Slater suffers from a painful degenerative bone disease and that she regularly takes medication prescribed by her attending physician to relieve pain.

In addition to plaintiff’s testimony, two other witnesses were called, specifically, plaintiff’s mother, Mrs. Dorothy Blanchard, and plaintiff’s half-sister, Mrs. Charlotte Cox. Both witnesses admitted at trial that they seldom visited the parties during the eight years of their marriage, however, both substantially supported the plaintiff’s testimony. In this regard, both of the aforesaid witnesses indicated that plaintiff was completely without fault and had made every effort to make the marriage a success.

Plaintiff contends that the trial court erred in denying his demand for a judgment of separation from bed and board. In this regard, plaintiff avers that the record is replete with uncontroverted evidence of mental cruelty inflicted upon him by the defendant.

The basis for plaintiff’s demand for a separation from bed and board is contained in LSA-C.C. Article 138 which provides in pertinent part:

“Separation from bed and board may be claimed reciprocally for the following causes:
* * * * * *
3. On account of habitual intemperance of one of the married persons, or excesses, cruel treatment, or outrages of one of them toward the other, if such habitual intemperance, or such ill-treatment is of such a nature as to render their living together insupportable.”

The trial judge in his written reasons for judgment observes that the key factor in obtaining a separation judgment for cruel treatment by one’s spouse is that such treatment be of such a nature as to render the spouses living together insupportable. After evaluating the evidence and testimony adduced at trial, the district court concluded that those acts allegedly perpetrated by the defendant and which plaintiff contends constitute mental cruelty within the intendment of LSA-C.C. Art. 138, are not of such a nature, when taken as a whole, as to render the parties living together insupportable.

Plaintiff’s most serious allegation of mental cruelty purportedly perpetrated by defendant concerns Mrs. Slater’s death threat made to plaintiff as he departed the matrimonial domicile on May 7, 1980. We opine that such threat must be evaluated within the context of the moment in which such threat was made. The record reveals that the plaintiff was leaving the defendant without explanation and that such action by plaintiff resulted in Mrs. Slater hurling verbal abuse at plaintiff including the aforesaid threat. Plaintiff indicated at trial that he considered the defendant’s statement to be merely an idle threat.

Our review of the record reveals that the parties were not able to communicate with one another in an open and honest manner. Thus, their marital relationship was generally incompatible. As stated in Loyd v. Loyd, 336 So.2d 912 (La.App. 2d Cir. 1976):

“Under existing Louisiana law and jurisprudence, a continued pattern of mental harassment, nagging, and griping by one spouse directed to the other can constitute cruel treatment, but mutual incompatibility, fussing, and bickering cannot.”

We are unable to discern clear error on the part of the trial court in its conclusion that such marital discord as is reflected by this record is insufficient to constitute grounds for a separation from bed and board based upon mental cruelty.

Defendant, in her answer, prays for an award of attorney’s fees. It appears to be well settled that attorney’s fees incurred by the wife in prosecuting a suit during the existence of the community of acquets and gains for separation from bed and board or divorce are an obligation of the community, whether she is successful in the proceeding or not, the obligation being a community debt. See Glorioso v. Glorioso, 223 La. 357, 65 So.2d 794 (1953), rehearing denied; Robichaux v. Dibartolo, 224 So.2d 528 (La.App. 3rd Cir. 1969); Donica v. Donica, 347 So.2d 1259 (La.App. 1st Cir. 1977). Similarly, attorney’s fees incurred in defending a suit for separation from bed and board or divorce also constitute a community debt. We conclude that defendant is entitled to an award of. attorney’s fees payable from the assets of the community, and we consider the sum of $750.00 to be reasonable.

Defendant-appellee finally suggests that the trial court erred in assessing to her a portion of the costs of the trial court proceeding. We agree. Although under LSA-C.C.P. Art. 1920, the trial court has wide discretion in the assessment of costs, this discretion is not unbridled. As we stated in Gonzales v. Southwest Mobile Homes, Inc., 309 So.2d 780 (La.App. 3rd Cir. 1975), writ denied, 313 So.2d 239 (La.1975):

“... The broad authority granted to the trial judge under Code of Civil Procedure Article 1920 does not mean that there are no guidelines to govern the taxing of costs. Greenburg v. Fourroux, 300 So.2d 641 (La.App. 3rd Cir. 1974); Johnson v. Marshall, 202 So.2d 465 (La.App. 1st Cir. 1967). In Greenburg the trial judge rendered judgment in favor of the plaintiff, but divided court costs between the plaintiff and defendant. This court reversed and found error on the part of the trial judge in assessing the winning party with part of the court costs....’’

In the instant case there appears to be no valid reason for the assessment to defendant-appellee of any of the costs of this proceeding. In any event, all costs incurred as a result of these proceedings are community debts payable out of community assets.

For the above and foregoing reasons, the judgment of the trial court is amended so as to award to defendant-appellee, Bobbie Sue Mack Slater, the sum of $750.00 as attorney’s fees to be paid out of the community of acquets and gains existing between the parties and to assess all costs of these proceedings at the trial level to plaintiff-appellant. In all other respects, the judgment of the trial court is affirmed. Appellant is cast with all costs of this appeal.

AFFIRMED AND AMENDED.

SWIFT, J., concurs in the result.

      . Defendant argued at trial via her exceptions of no cause/right of action and res judicata that she obtained a judgment against plaintiff awarding her separate maintenance from a Mississippi Court and that such decree is the legal equivalent of a Louisiana judgment of separation from bed and board. Thus, Mrs. Slater contends that the doctrines of res judica-ta and full faith and credit preclude the plaintiff from maintaining a separation from bed and board suit in Louisiana.


author: STOKER, Judge.

text:
    Darr DeJEAN, Plaintiff-Appellant, v. LUMBERMENS MUTUAL CASUALTY COMPANY, Defendant-Appellee.
    No. 8635.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.

      Felix A. DeJean, III, Opelousas, for plaintiff-appellant.
    Brinkhaus, Dauzat & Falgoust, Jimmy L. Dauzat, Opelousas, for defendant-appellee.
    Before GUIDRY, SWIFT and STOKER, JJ.
   STOKER, Judge.

The plaintiff-appellant in this case was injured in a boating accident. He was riding on an inner tube being pulled by a boat insured by the defendant-appellee. The question in this case is whether or not plaintiff-appellant’s hospital and medical bills are covered under the medical payments provisions of the defendant’s policy.

Plaintiff DeJean was riding on an inner tube being pulled by the insured boat by means of a rope approximately 75 feet in length. When the operator of the boat made a turning maneuver, plaintiff was thrown off of the inner tube and sustained his injuries.

The owner of the boat was not sued, and the sole defendant is the insurer. Plaintiff-appellant sued under both the medical payments provisions and the liability provisions of the policy. Liberty Mutual Casualty Company filed a motion for summary judgment as to both claims. The trial court denied the motion as to the liability portion of the policy but granted the motion as to the medical payments provision.

In response to a request for written findings of facts and reasons for judgment, the trial court set forth the following brief ruling:

“There are no findings of fact to be written. The matter dealt with policy interpretation involving undisputed facts, that is, facts stipulated to or conceded.
“The judgment was based on policy language which provided that the medical expense coverage be limited to persons ‘In, on, or upon the boat.’ Plaintiff cited cases dealing with similar language pertaining to vehicles. None of those cases went as far as this case would require. In all of those cases, there was actual physical contact between the party claiming and the vehicle. In this case the claimant was being towed for water skiing. It is obvious that the cited jurisprudence is not applicable. The quoted language must have some reasonable limits. “Accordingly, it is concluded that there is no coverage.”

Counsel for both parties have indicated that they have been unable to find any cases directly on point. Both cite cases dealing with automobile policies and with construction of language in those policies similar to that in the policy covering the boat in this suit.

The insuring agreement in Part C of the boat owner’s policy before us, with reference to the medical payment, provides:

“We will pay the necessary medical expenses incurred or medically ascertained within three years from the date of a watercraft accident causing bodily injury to a covered person.”

In the definitions portion of the policy a “covered person” is defined as “[a] you and any family member while occupying any watercraft; [b] any person while occupying your covered watercraft.”

The term “occupying” is defined as “in, upon, or getting in, on, out or off.”

Plaintiff does not contend that he was “in” or “getting in, on, out, or off” the boat when injured, but he argues that he was “upon” the boat at that time under a liberal construction of the term “upon”. He cites the cases of Macalusa v. Hartford Accident and Indemnity Corporation, 343 So.2d 1217 (La.App. 4th Cir. 1977) and Hendricks v. American Employers Insurance Company, 176 So.2d 827 (La.App. 2nd Cir. 1965) as examples of broad interpretations of the term “upon” as used in the medical coverage sections of standard automobile insurance policies.

In Macalusa, the plaintiff was injured while leaning with one arm against the insured car. In Hendricks the plaintiff was leaning over the tailgate of the insured truck when injured. In both cases, the courts found that the plaintiffs were “upon” the insured vehicles when injured and were therefore covered for medical damages under their policies. The plaintiffs in both cases were in close physical proximity with the insured vehicles when injured. In the case before us, however, the plaintiff was far removed from the insured vehicle when he was injured, being approximately 75 feet behind the boat when the accident occurred. It cannot be said, even given the liberal standards of the cited cases, that plaintiff was physically upon the boat when he was injured.

Furthermore, our review of the interpretation of the word “upon” in the context of medical coverage in automobile policies in other jurisdictions leads us to the same conclusion. Most jurisdictions allow recovery only if there was some physical contact between the injured party and the insured vehicle immediately prior to or during the accident causing the injury. Some jurisdictions allow recovery of medical benefits if the insured vehicle suddenly rolls into the injured party or is propelled by some other force so that it strikes the party injured. The physical contact between the plaintiff and the car is sufficient in those jurisdictions to find that the plaintiff was “upon” the insured vehicle when injured. In the instant case, however, there was no physical contact between the boat and the plaintiff nor was the injury caused by the boat striking the plaintiff.

We are of the opinion that plaintiff-appellant, while being towed on an inner tube at the end of a rope some 75 feet in length, did not have sufficient physical contact with the insured boat to find that he was upon the boat for medical coverage under the boat-owner’s insurance policy.

For the foregoing reasons the judgment of the trial court sustaining the motion for summary judgment as to the medical payments covered is sustained. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.

      . See Wolf v. American Casualty Co. of Reading, Pa., 2 Ill.App.2d 124, 118 N.E.2d 777 (1954); Sherman v. New York Casualty Co., 78 R.I. 393, 82 A.2d 839 (1951); and Christoffer v. Hartford Accident & Indemnity Co., 123 Cal.App.2d Supp. 979, 267 P.2d 887 (1954).

      . See Nickerson v. Citizens Mutual Insurance Co., 393 Mich. 324, 224 N.W.2d 896 (1975); and Motor Vehicle Accident Indemnification Corp. v. Oppedisano, 41 Misc.2d 1029, 246 N.Y. S.2d 879 (1964).


text:
    MORRISON GRAIN COMPANY, INC., et al., Plaintiffs-Appellants, v. Artellis CHARRIER, Defendant-Appellee.
    No. 8636.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.

      V. Russell Purvis, of Smith, Taliaferro, Siebert, Boothe & Purvis, Jonesville, for plaintiffs-appellants.
    George Griffing, Jonesville, for defendant-appellee.
    Before GUIDRY, SWIFT and STOKER, JJ.
   GUIDRY, Judge.

This is a petitory action instituted by Morrison Grain Company, Inc., Morrison Quirk Grain Corporation, L. W. Wickes Agent Company, a California partnership composed of Seymour Bond and Edward G. Bernstein, L. W. Wickes Agent Corporation, Benedict Corporation and Missiana, Ltd., a California limited partnership composed of the partners Guy P. Allison and Pauline J. Hakelberg, all hereinafter collectively referred to as Morrison, against Artellis Char-rier.

In its petition, Morrison alleges that it is the true and lawful owner of 80 acres of land in Catahoula Parish, Louisiana, described as North Half (N/2) of Southwest Quarter (SW/4) Section 17, Township 4 North, Range 6 East. Morrison further alleged that Artellis Charrier was in possession of a portion of such property without any title whatsoever. Defendants answered plaintiff’s petition admitting their possession of property located in the North Half (N/2) of Southwest Quarter (SW/4) Section 17, T. 4 N., R. 6 E. and their refusal to deliver possession of such property to plaintiff alleging that such property constitutes a portion of their residence lot acquired by an act of sale dated May 5, 1967. Defendants further alleged that the property acquired by Artellis Charrier in the year 1967 was at the time of acquisition bounded on the south by a fence which had been constructed on the south boundary of such property and maintained as a boundary line for a period of time in excess of 30 years. Defendants alleged acquisition of that portion of their residence lot located in North Half (N/2) of Southwest Quarter (SW/4) Section 17, T. 4 N., R. 6 E. by the acquisitive prescription of 10 and 30 years and by the prescription of 30 years provided by C.C. Article 794, formerly C.C. Article 852.

The record reflects that Morrison is record title owner of North Half (N/2) of Southwest Quarter (SW/4) Section 17, T. 4 N., R. 6 E. Defendants’ ancestor, Artellis Charrier, acquired by an act of sale dated May 5, 1967 a one-half acre tract lying and being situated in the Southwest Quarter (SW/4) of Northwest Quarter (NW/4) of Section 17, T. 4 N., R. 6 E. particularly described as follows:

“Begin at the point where the south boundary line of the Southwest Quarter (SW/4) of Northwest Quarter (NW/4) of Section 17 intersects the western right of way line of the parish gravel road, thence from said point run northerly along the western right of way line of said parish gravel road a distance of 1.65 chains to a point; thence run westerly a distance of 3.0 chains to a point; thence run southerly a distance of 2.6 chains to the south line of Southwest Quarter (SW/4) of Northwest Quarter (NW/4) of Section 17; thence run east along the south line of said Southwest Quarter (SW/4) of Northwest Quarter (NW/4) a distance of 2.0 chains to the point of beginning.”

The properties belonging respectively to Morrison and the defendants adjoin, the south line of defendants’ residential lot, according to the record title, coinciding with the north line of Morrison’s property. According to the record, a fence allegedly marking the south boundary of the defendants’ residential lot, encroached over into the North Half (N/2) of Southwest Quarter (SW/4) Section 17, T. 4 N., R. 6 E. so as to include, within the enclosure of defendants’ residential property, a strip out of North Half (N/2) of Southwest Quarter (SW/4) Section 17, T. 4 N., R. 6 E. containing approximately .28 acres. This is the property in dispute. Defendants do not dispute that plaintiffs have record title to this .28 acre strip but allege that they have acquired title thereto by virtue of the acquisitive prescriptions of 10 and 30 years and/or by the boundary prescription provided for by C.C. Article 794, formerly Article 852.

The record reflects that when Artellis Charrier acquired the residential lot above referred to from Lee Crooks a fence existed along the north, south and west lines of the property. The Charrier lot fronts along a parish gravel road which runs along its eastern boundary.

The several witnesses who testified, stated that the fence along the south boundary of Charrier’s residential lot was in existence as early as the year 1932 and was continuously maintained in the same place by the several owners of the Charrier lot until such fence was removed by Artellis Charrier sometime during the year 1978. Mrs. Char-rier testified that her deceased husband removed the south fence sometime during the year 1978 because the fence line had become overgrown with brush and weeds and served as a nesting place for snakes. Mrs. Charrier testified further that following the removal of the fence, remnants thereof remained and the property was mowed and maintained up to the point of the old fence line.

There is absolutely nothing in the record to contradict the testimony of the several witnesses who testified as to the existence of the fence, its location and the period of time during which it was maintained in the same location.

The trial court rendered judgment in favor of the defendants, concluding that a fence along the south line of defendants’ property was in existence as a recognized boundary for a period in excess of 30 years and that they and their ancestors in title had possessed such portion of North Half (N/2) of Southwest Quarter (SW/4) Section 17, T. 4 N., R. 6 E. lying north of such fence line during such period continuously and without interruption. Pursuant to this conclusion, the trial court, without benefit of survey, rendered judgment in favor of defendants recognizing defendants as the owners of a strip of land particularly described in the trial court’s judgment as follows:

“A .28 acre tract located in the NW/4 of the SW/4 of Section 17, T4NR6E, Cata-houla Parish, Louisiana, said tract being a strip of land immediately adjacent to and on the south side of a tract of land conveyed to Artellis Charrier by Lee Crooks, by deed dated May 5, 1967, recorded at Conveyance Book 79, Page 664, of the records of the Clerk of Court of Catahou-la Parish, Louisiana and more particularly described as follows, to-wit:
Beginning at the point where the south boundary line of the SW/4 of the NW/4 of Section 17, T4NR6E, Catahoula Parish, Louisiana, intersects with the west right-of-way line of the Parish Gravel Road, said Parish Gravel Road forming the east boundary of the tract conveyed to Artel-lis Charrier by Lee Crooks; thence from said point run southerly along the western right-of-way line of said Parish Gravel Road to a point where a previously existing fence line intersects therewith (as more fully shown by Defendants’ photograph exhibit No. 5 in the record of these proceedings); thence run in a westerly direction along said fence line to a point where said fence line intersects with an extension of a fence forming the west boundary of said tract conveyed to Artellis Charrier by Lee Crooks; thence run northerly along an extension of said west fence line, to a point where the south boundary line of the SW/4 of the NW/4 of Section 17, T4NR6E, intersects therewith; thence run in a easterly direction along said south boundary line to the Parish Gravel Road or the POINT OF BEGINNING.”

Plaintiff appeals. We affirm.

On appeal plaintiff does not question the trial court’s conclusion that a fence did exist delineating the southern limits of the residential lot acquired by Artellis Charrier from Lee Crooks; that such fence was maintained in existence in the same place for a period in excess of 30 years; and, that defendants and their ancestors in title possessed up to such fence line continuously and without interruption. Appellants urge that, conceding correctness of these findings, the trial court erred in awarding judgment in favor of defendants because (1) defendants failed, at the time of trial, to specifically identify by survey the immovable property which they claimed by prescription, and (2) defendants failed to establish that their property and that of plaintiff were contiguous. In the alternative, appellant specifies as error the failure of the trial court to appoint a surveyor to delineate by an accurate survey the location of the line established as the boundary between plaintiff’s property and defendants’ residential lot.

LSA-C.C. Article 794 provides as follows:

“When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles. If a party and his ancestors in title possessed for thirty years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds.”

It is well settled that title prescriptions may be pled in boundary actions and boundary prescriptions may be pled in title suits. Ledoux v. Waterberry, 292 So.2d 485 (La.1974); Fruge v. Lyons, 373 So.2d 220 (La.App. 3rd Cir. 1979). Also well settled is the legal principle that under LSA-C.C. Article 794, formerly Article 852, a possessor without good faith may tack on to his own possession that of his ancestors in title in order to make up the required 30 year adverse possession. Fruge v. Lyons, supra, and cases therein cited.

Our examination of the record reveals the trial court’s factual conclusions to be eminently correct. Evidence as to the existence of a fence along the south side of defendants’ residential lot for the period extending from at least the year 1932 to the year 1978 is unrefuted. Equally clear is the fact that when the fence was removed by Artellis Charrier in the year 1978 that remnants of the old fence remained, visibly delineating the location of the former fence line. Further, the record leaves no doubt but that defendants and their ancestors in title possessed continuously and without interruption during such entire period that portion of North Half (N/2) of Southwest Quarter (SW/4) Section 17, T. 4 N., R. 6 E. located north of such fence line. Considering these established facts, in light of the aforementioned legal principles, the trial court was correct in recognizing such fence line as the boundary between the contiguous properties owned or claimed by the parties and as recognizing defendants as owners of that portion of North Half (N/2) of Southwest Quarter (SW/4) Section 17, T. 4 N., R. 6 E. located north of such line.

We find no merit whatever in plaintiff’s specifications of error as to defendants’ failure to identify by survey the immovable property which they claim by the running of prescription or as to defendants alleged failure to prove that the lands are contiguous. The pleadings and the evidence clearly show that the properties owned by Morrison and defendants are contiguous, and the evidence in the record is clearly sufficient to identify the immovable property which ap-pellees claimed by the running of acquisitive prescription. The fact that such property can be identified is clearly shown by the fact that the learned trial judge in framing his judgment did so by reference to the road which bounds the property on the east and the remnants of the old fence.

Although we find that the property possessed by defendants adverse to plaintiff can be located and adequately identified from the evidence presented, we do believe that there is merit to appellant’s alternative contention. As stated in William T. Burton Industries, Inc. v. Wellman, 343 So.2d 996 (La.1977):

“A survey should be made despite the fact that the issue of possession of the property within the fence line for thirty years has been satisfactorily established in Wellman’s favor. Such a result is dictated by the Code when it declares that an action of boundary cannot be prescribed against. La.Civil Code arts. 824-25; La.Code Civil Pro. art. 3691. And a survey is made a necessary part of an action in boundary. La.Civil Code arts. 833-39; La.Code Civil Pro. art. 3692. It is a method the law prescribed to bring certainty to the resolution of the question and set the boundary at rest among neighbors. The survey serves moreover to preserve record evidence of the boundary by confirming the location of the fence line.”

Although statutory changes have occurred with regard to the action in boundary since rendition of the decision in Burton, particularly the change in LSA-C.C.P. Article 3692, which now leaves the appointment of a surveyor to the discretion of the court, and the elimination of formalities of survey formerly required by C.C. Articles 834 through 837, where, as in this case, a survey has not been made the trial court should order a survey in order to preserve the record evidence of the boundary by confirming the location of the fence line. William T. Burton Industries, Inc. v. Wellman, supra; Copellar v. Yount, 344 So.2d 1114, 1116 (La.App. 3rd Cir. 1977); Young v. Morvant, 358 So.2d 1292, 1301 (La.App. 3rd Cir. 1978); LeBlanc v. Laborde, 368 So.2d 1126, 1129 (La.App. 3rd Cir. 1979).

Accordingly, although we affirm the judgment of the trial court, this matter will be remanded for the purpose of having a court appointed surveyor, in accordance with recognized and proper surveying techniques, ascertain and locate the common boundary between the properties of plaintiff and defendants as said boundary is established by the judgment herein rendered. We further hold that, considering the totality of circumstances present in this case, plaintiff should be taxed with all costs at the trial level and on appeal, including the survey to be made pursuant to this judgment.

For the reasons assigned, the judgment of the trial court is affirmed, however, this matter is remanded to the trial court for further proceedings as outlined above. All costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED AND REMANDED.

      . Artellis Charrier was originally made a party defendant in this proceeding, however, two days following institution of suit Artellis Char-rier died and his widow and heirs were substituted as parties defendant,

      . Defendants, at the time of trial, abandoned any claim of ownership to the disputed area based upon the acquisitive prescriptions of 10 and 30 years, as provided for by C.C. Articles 3478 and 3499.

      . Defendants introduced as their exhibit 5 a photograph of the Charrier lot which shows an old post. According to the several witnesses who testified, this post marks the location of the fence which formerly existed along the south boundary of the Charrier lot. As reflected above the trial judge makes reference to this exhibit 5 in his description of the property recognized to belong to the defendant.


text:
    Norris TOUPS, Plaintiff-Appellee, v. L. H. BOSSIER, INC., et al., The Louisiana Department of Transportation & Development, Defendants-Appellants.
    No. 8640.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 1982.

      James B. Frederick, Jr., Asst. Gen. Counsel, Baton Rouge, for defendants-appellants.
    Shelton & Legendre, Thomas Porter, IV, Lafayette, for plaintiff-appellee.
    Before GUIDRY, SWIFT and STOKER, JJ.
   GUIDRY, Judge.

Plaintiff received serious injury in a one vehicle accident which occurred during the evening of April 15, 1977, on Louisiana highway 13 in Acadia Parish, Louisiana. According to plaintiff, while driving an 18 wheel tractor-trailer north on highway 13, he was forced off the highway and onto the shoulder of the road as a result of the blinding headlights of an oncoming vehicle. When the right wheels of his vehicle meandered onto the shoulder he immediately lost control of his vehicle and ultimately overturned in a water-filled ditch alongside the highway. Plaintiff alleges that he lost control of his vehicle because of a severe “drop-off” between the road surface and the shoulder. The surface of highway 13 was overlaid several months prior to the accident by L. H. Bossier, Inc., under a contract with the Louisiana Department of Transportation and Development, but the shoulders had not been brought up to the level of the roadway.

Plaintiff named as defendants, L. H. Bossier, Inc. and its insurers, Travelers Insurance Company and Reliance Insurance Company; Acadia Parish Police Jury and its insurer, American Employers Insurance Company; and the Louisiana Department of Transportation and Development. Bossier and Reliance filed a third party demand against the Department seeking full indemnity and in the alternative contribution. The Department filed a like third party demand against Bossier and Reliance. Continental Insurance Company intervened in the suit to assert its claim as the worker’s compensation insurer of plaintiff’s employer.

Prior to the trial, plaintiff’s demands against the Acadia Parish Police Jury and its insurer, American Employers Insurance Company were dismissed by summary judgment. Plaintiff did not appeal from such judgment. On the day of trial, Continental assigned to plaintiff its claim for the amount of worker’s compensation benefits and medical expenses paid, which claim aggregated the sum of $9969.60. Continental’s intervention was thereafter dismissed. In addition, plaintiff settled with Bossier and Reliance for the sum of $23,500.00, in consideration of which plaintiff agreed to dismiss his suit against these defendants and further agreed to assume responsibility, if any, for any judgment rendered against Bossier and Reliance pursuant to the Department’s third party demand. Accordingly, Bossier and Reliance were dismissed as parties defendant and the matter proceeded to trial with the Department as the sole remaining defendant.

The trial court rendered judgment in favor of the plaintiff awarding him damages in the sum of $64,500.00. The Department’s third party demand against Bossier and Reliance was dismissed. The Department appeals.

The record reveals the following pertinent facts to be without serious dispute.

Pursuant to state contract number 57-02-04, L. H. Bossier, Inc., overlaid the surface of approximately 8 miles of Louisiana highway 13. The total overlay amounted to AW of asphalt mix. After final inspection the Department formally and unqualifiedly accepted the work done under the aforesaid contract on December 2, 1976. At the time of acceptance the shoulders had not been brought up to the level of the roadway such that there existed a “drop-off” from the surface of the roadway to the shoulder of three or four inches. The Department was aware that this condition existed when it accepted the Bossier contract. In explanation of the Department’s action, Mr. Dempsey White, then Chief Engineer of the Department, testified that because of the narrowness of the shoulders and the lack of lateral support on La. 13, it was necessary to use compacted limestone rather than compacted shell to bring the shoulders to grade. The Bossier contract specified compacted shell. Therefore, the Department concluded that the Bossier contract should be accepted and the shoulders brought to grade by the Department. The shoulders were ultimately brought to grade with compacted limestone in June of 1977, some six months following acceptance of the Bossier contract and some two months following plaintiff’s accident.

On April 15, 1977, at approximately 7:30 p. m. plaintiff was driving an 18 wheel tractor-trailer in a northerly direction on Louisiana highway 13. At a point some three miles south of Crowley, plaintiff was blinded by the bright lights of an oncoming vehicle and forced onto the shoulder. At the time plaintiff was traveling approximately 45 miles per hour. According to plaintiff’s testimony, immediately upon his truck hitting the shoulder he lost control. He testified that because of the “drop-off” and the roughness of the shoulder, he was bouncing so much that he could not brake his vehicle or regain the highway. There is no question but that plaintiff’s vehicle never regained the highway but angled to the right some 370' at which point the tractor-trailer overturned in a water filled ditch alongside highway 13. As a result of the accident plaintiff sustained multiple cuts and bruises and closed fractures of the left tibia and fibula. He was trapped in his vehicle for approximately one and half hours before being extricated.

NEGLIGENCE OF THE DEPARTMENT

The Department has a duty to see that state highways are reasonably safe for persons exercising ordinary care and reasonable prudence. Included in this duty is the maintenance of the shoulders of the highways in a reasonably safe condition. LaBorde v. Louisiana Department of Highways, 300 So.2d 579, (La.App. 3rd Cir. 1974), writ denied, 303 So.2d 182 (La.1974); Brown v. Louisiana Department of Highways et al., 373 So.2d 605 (La.App. 3rd Cir. 1979), writ denied, 376 So.2d 1269; Sinitiere v. Lavergne, 391 So.2d 821 (La.1980). In Sinitiere, supra, our Supreme Court stated:

“Liability based upon negligence is imposed when the Department is actually or constructively aware of a hazardous condition and fails to take corrective action within a reasonable time.”

The record confirms that the Department failed in its duty to maintain the shoulders along Louisiana highway 13 in a reasonably safe condition. It is clear that a drop-off of four inches between the traveled roadway and the shoulder creates an extremely hazardous condition. Similar conditions were held to be extremely hazardous in Brown, supra, Sinitiere, supra, and in McDaniel v. State of Louisiana, Department of Transportation and Development, 398 So.2d 88 (La.App. 3rd Cir. 1981), writ refused, 404 So.2d 279 (La.1981). In the instant case the Department allowed such a condition to exist along highway 13 for a period in excess of six months although fully aware of the existence of such condition. Under the circumstances the Department was clearly negligent. It is equally clear that the Department’s negligence was a cause in fact of the accident. As stated by the learned trial judge in his written reasons:

“This court concludes that six months after knowledge of the defective condition (based on October 1976 correspondence) is not a reasonable time and the failure to correct this defect was negligence. This negligence was a cause in fact of the accident. Had the Department not been negligent in its failure to maintain the shoulder, the accident would not have occurred.”

WAS PLAINTIFF GUILTY OF CONTRIBUTORY NEGLIGENCE?

Appellant urges that on the occasion in question plaintiff was guilty of negligence which contributed to the accident. In this connection appellant argues that once on the shoulder of the road plaintiff failed to comply with the standard of care required of skilled truck drivers. Specifically, appellant suggests that plaintiff immediately attempted to regain the roadway without allowing his vehicle to decrease its forward motion down to a reasonably safe speed before attempting to guide it back on the roadway. We find no merit in this contention.

The Department’s duty to maintain the shoulders of highways in reasonably safe condition extends in favor of motorists who reasonably believe that conditions require them to drive onto the shoulder although no actual hazard exists. Watson v. Morrison, 340 So.2d 588 (La.App. 1st Cir. 1976), writ denied, 342 So.2d 218 (La.1977); Sinitiere v. Lavergne, supra. In Rue v. State Department of Highways, 372 So.2d 1197 (La.1979), the Department’s duty was extended to include persons who drive onto the shoulder inadvertently where there was neither knowledge nor reason to know of either a defective condition of the shoulder or any other defective condition that would make such action hazardous. In the instant case there is no evidence indicating that plaintiff was aware of the hazardous condition which existed. However, in any event he did not inadvertently stray onto the shoulder but moved onto the shoulder after being blinded by the headlights of an oncoming vehicle. Thus, under the circumstances, plaintiff’s movement onto the shoulder of the road did not constitute negligent conduct. Plaintiff’s actions after he moved onto the shoulder of the road cannot be considered negligent conduct, even for a skilled truck driver, in that the record shows that because of the severe “drop-off” he immediately lost control of his vehicle and was never again able to gain such control so as to avoid the overturn of his vehicle. Although plaintiff, in his testimony, does allude to the fact that he was attempting to regain the roadway, a fair reading of his testimony clearly shows that he immediately lost control of his vehicle and was bouncing so much that he could not even brake so as to reduce his speed. We agree with the trial court that the evidence does not indicate any negligence on the part of plaintiff.

THE DEPARTMENT’S OTHER SPECIFICATIONS OF ERROR

In addition to the issues already discussed appellant sets forth the following specifications of error:

(a) The trial court erred in awarding the plaintiff the excessive sum of $64,500.00.
(b) The court erred in dismissing the Department’s third party demands against Bossier and Reliance.

In brief defendant makes no argument in support of either of the aforestated specifications of error and, although we consider them to be abandoned, we conclude that such specifications are without merit for the reasons assigned by the trial court which we are pleased to adopt as our own:

“... The Court does not find Bossier, Inc. was the cause of the damage since its work was accepted by the defendant over four months before the accident. Responsibility for the shoulder’s condition falls on the defendant.
The plaintiff has proven he suffered moderately severe injuries as a direct result of the accident. He incurred numerous lacerations, abrasions, contusions, sprains, and a fracture of his left tibia. Due to difficulty in the healing of the fracture an operation was performed removing approximately one (1) inch of plaintiff’s fibula bone leaving a permanent one (1) inch gap in that bone. The doctors have assessed a 10 to 15% disability to his leg. Mr. Toups experienced pain and mental anguish for the l'A hours he was trapped inside his truck after the accident. He experienced some pain while recovering from the accident and the surgery. He still suffers pain in his ankle occasionally. Mr. Toups is now performing substantially the same job for the same employer as before the accident, but he did suffer a loss of wages while he was unable to work. The Court concludes an amount of $64,500 should be awarded to plaintiff as compensation for his medical expenses, loss of wages, disability, mental anguish, pain, and suffering-”

For the reasons assigned, the judgment appealed from is affirmed at appellant’s cost.

AFFIRMED.

STOKER, J., concurs.

      . Travelers Insurance Company was mistakenly joined as the insurer of Bossier and was dismissed from the suit on motion of plaintiff.

      . Commercial Union Assurance Company was originally joined as the insurer of the Acadia Parish Police Jury, however, the pleadings re-fleet that American Employers Insurance Company was the insurer of the Acadia Parish Police Jury at the time of accident and that such company was incorrectly referred to as Commercial Union Assurance Company.

      . The trial judge in his written reasons for judgment states: “The court concludes there was a three to four inch drop from the highway to the shoulder on the east side of the highway at the site of the accident”. The record furnishes ample support for this conclusion.