author: JASPER E. JONES, Judge.

text:
    Donald R. MILLER, Agent, Plaintiff-Appellee, v. HARTFORD FIRE INSURANCE COMPANY, Defendant-Appellant.
    No. 14784.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 1982.
    En Banc. Rehearing Denied April 12, 1982.
    Writ Denied June 4, 1982.

      Donald R. Miller, Shreveport, for plaintiff-appellee.
    Cook, Yancey, King & Galloway by Charles Tutt, Shreveport, for defendant-appellant.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

Hartford Fire Insurance Company appeals a judgment against it for $14,000 in favor of Don R. Miller, in his capacity as agent for John W. Miller, Jr. (hereinafter referred to as John Miller) and John McGrew. The policy was issued by appellant to John Miller for a policy period commencing May 2, 1975 and expired May 2, 1978, by the terms of which appellant insured a one-story frame dwelling for $14,-000. On July 26, 1977, while this policy was in effect, the dwelling insured by appellant was totally destroyed by fire.

At the time the fire loss occurred the owner of the property was John McGrew. John Miller, the named insured in the policy, owned a mortgage note signed by McGrew in the principal amount of $4,000 dated December 13, 1972, bearing 8% per annum interest from due date, due on or before April 10,1973, on which no payment had been made.

John Miller, along with two other individuals, had acquired the property on which the insured dwelling was located from Mrs. Avis Hays Neal on May 5,1969, and as part of the consideration for the purchase price had executed an installment note payable to Mrs. Neal, secured by a mortgage and vendor’s lien in the amount of $12,000 upon .the property upon which the dwelling insured by Hartford was located. John Miller subsequently acquired from his co-owners the interest they had acquired from Mrs. Neal and became the full owner of the property subject to the outstanding mortgage indebtedness in favor of Mrs. Neal.

Subsequent to John Miller’s acquisition of full ownership in the property, he on December 13, 1972, conveyed the property to McGrew for $32,000, $4,000 of which was paid in cash. The balance of $28,000 was represented by one installment mortgage note in the amount of $24,000 and one $4,000 mortgage note which was owed by John Miller at the time of the fire. John Miller had prior to the fire sold the $24,000 mortgage note to J. C. Watson. Though the initial Neal mortgage was outstanding and partially unpaid at the time John Miller sold the property to McGrew, no reference to the Neal mortgage was contained in the sale from Miller to McGrew, and Miller continued to pay on the Neal mortgage subsequent to his disposal of the property to McGrew.

In order to protect Mrs. Neal’s security, and to assure that she would receive the unpaid balance on her mortgage note in the event the improvements on the property should be destroyed by fire, John Miller had at all times maintained fire insurance on the property with the policies containing a mortgage payable clause in favor of Mrs. Neal. He testified he believed that the policies had always been issued by Hartford Fire Insurance Co., but the only policy introduced into evidence was the one issued by Hartford on March 2, 1975. At the time this policy was issued Miller was no longer the owner of the property, and he testified that his sole reason for acquiring the policy was to protect the interest of Mrs. Neal. There is no evidence that he intended in any way to provide protection for the benefit of McGrew who was the record owner of the property at the time the fire loss occurred.

In the year 1977, before the fire loss of July 26, 1977, John Miller paid in full the Neal note and received it from Mrs. Neal.

The mortgage deed from John Miller to McGrew provides as follows, to-wit:

“In the event of failure to pay any of said note * * * or failure to keep said buildings insured, then, and in that event, each and all notes shall immediately become due and collectible at the option of the holder.”

It contained no other obligation on the part of McGrew with regard to insurance. He was not required to insure it for any specific amount, nor was he required to protect the mortgagee’s interest by including a mortgage payable clause in the insurance policy.

At the time the fire loss occurred McGrew owned a $25,000 Commercial Union Insurance policy and a $15,000 Lafayette Fire Insurance policy, each providing coverage on the improvements on the property, but John Miller was not designated in the mortgage payable clause on either of these policies and John Miller was totally unaware of the existence of these policies at the time the fire loss occurred. Neither of the fire policies owned by McGrew were placed into evidence, but in answer to interrogatories the plaintiff indicated that J. C. Watson, to whom John Miller had assigned the $24,000 McGrew note which he had received as part of the consideration of the property, was designated as the loss payee in the Commercial Union Insurance policy.

On November 8, 1977 Commercial issued its draft in the amount of $25,000 payable to McGrew, John Miller, Watson, and Donald Miller, attorney, in payment of its obligation under McGrew’s fire policy for the fire loss of July 26, 1977. Though the record isn’t totally clear, it is apparent that none of the proceeds of the Lafayette insurance policy were ever tendered to John Miller, and this policy plays no part in the operative facts in connection with the resolution of this litigation.

Subsequent to the fire loss John Miller learned from his acquaintance Watson of the existence of the Commercial policy and was further advised by Watson, who was knowledgable in insurance matters, that his $4,000 note would be paid by Commercial, and for that reason John. Miller planned to make no claim against Hartford for the collection of his note under the policy which he had purchased from Hartford primarily for the protection of Mrs. Neal. McGrew, however, was interested in requiring John Miller to pursue his claim against Hartford, and for this reason refused to participate in the endorsement of the Commercial draft and the collection of the proceeds thereon for the purpose of applying them to the outstanding mortgage notes affecting the property in favor of Watson and John Miller.

In order to resolve this dispute, an agreement was worked out by the terms of which the Commercial draft would be endorsed by the payees thereof and deposited in an escrow savings account from which the balance of Watson’s note ($18,898.82 as of December 1, 1977) and the balance of John Miller’s $4,000 note ($5,119.71 as of October 1,1977), would be paid at the time when the liability of Hartford had been fully determined. As part of this agreement John Miller agreed to cooperate in any manner necessary in the pursuit of the fire loss claim against Hartford, including filing a suit in his name.

It was further agreed that any sums obtained from the Hartford policy would be the property of McGrew or his assignees regardless of in whose name the Hartford funds might be recovered. The agreement further provided that Watson and John Miller could be paid from the escrow account at any time and would receive only the interest due on their respective notes up to the date of payment.

In furtherance of this agreement the Commercial draft was collected and Watson was paid $18,955.66 in payment of his mortgage note and the balance of said Commercial draft in the amount of $6,044.34 was deposited in a savings account in the Peoples Bank of Shreveport in the name of John Miller and Donald R. Miller.

In furtherance of the agreement, John Miller executed an assignment to Donald R. Miller, agent for McGrew, of all his interest in the $4,000 mortgage note and of his claim against Hartford in the amount of $14,000.

There was evidence introduced at trial of the case indicating that the house which was destroyed in the fire was worth about $60,000 and under these circumstances the value of the house exceeded the total amount of fire insurance protection reflected in the $25,000 Commercial policy, the $15,000 Lafayette policy, and the $14,-000 Hartford policy.

The reasons for judgment rendered by the trial judge are not entirely clear, but we here conclude that he finds plaintiff Don Miller, as agent for John Miller, is entitled to judgment against the insurer for the amount McGrew owed him on the note and that Don Miller, as agent for McGrew, is entitled to judgment for the difference between the $14,000 insurance coverage and the amount that he owed John Miller on the note. The trial judge bases this conclusion on a finding that McGrew was an insured under the policy along with John Miller. The trial judge apparently disregards the assignment.

The judgment appealed from is as follows:

“Judgment herein in favor of plaintiff Don R. Miller, agent and attorney in fact for John W. Miller, Jr. and John McGrew, in the amount of Fourteen Thousand ($14,000) Dollars.”

The amount to which each is entitled is not therein specified. As we construe the plaintiff’s brief his theory is that the judgment is correct and that by the terms of the stipulation entered into in connection with the escrow agreement and the assignment, the judgment will belong to John McGrew.

We construe the theory of plaintiff to be that McGrew is an insured under the Hartford policy and as such is entitled to recover from Hartford in his own right the difference between the amount he owed John Miller and the $14,000, and that he is entitled to recover from Hartford the amount he owed John Miller because he paid this amount to John Miller from the proceeds of the Commercial policy and received from John Miller an assignment of all John Miller’s right under the Hartford policy which would have been John Miller’s right to recover from Hartford the balance of the note at the time of the fire.

Plaintiff alternatively contends that even if McGrew was not an insured under the Hartford policy, John Miller was insured under the Hartford policy for $14,000 by virtue of the valued policy law, and that McGrew received from John Miller the right to recover the full $14,000 by virtue of the assignment that he received from John Miller. Plaintiff contends the valued policy law, LSA-R.S. 22:695 requires the insurer to pay the full amount of the policy even though John Miller’s insurable interest was only the unpaid balance of his note, which was approximately $5,000 at the time of the fire loss.

WAS JOHN McGREW AN INSURED UNDER THE HARTFORD POLICY?

John Miller purchased the Hartford policy wherein he was the named insured and paid the premiums for it. He testified that he purchased it primarily for the protection of Mrs. Neal who was designated as a mortgage payee under the policy. He did not purchase it for the protection of John McGrew, whose name does not appear on the policy. Though Mrs. Neal’s note had been paid at the time of the fire loss, John Miller maintained an insurable interest in the insured building within the contemplation of LSA-R.S. 22:614 by virtue of the $4,000 mortgage note which he held on the property at the time he purchased the policy in 1972 and which remained unpaid at the time of the fire loss in 1977. John Miller had no knowledge of what, if any, action McGrew had taken about providing insurance coverage on the property. Hartford was not even aware that McGrew owned the property. There was no intention by John Miller, nor by Hartford, to provide coverage for McGrew’s insurable interest in this property. A mortgagee has a totally separate insurable interest and a contract of insurance purchased by him to protect this insurable interest belongs solely to him and does not accrue to the benefit of the mortgagor. The contract of insurance is enforceable solely by the mortgagee payee and the proceeds of the policy does not inure to the benefit of the mortgagor. See Appleman 5 A, Sec. 3381.

We recognize that a mortgagee could purchase a fire insurance policy to protect his interest and the interest of the mortgagor-owner of the property, and under these circumstances both would be insured under the policy. In the case of Nielsen v. Lafayette Insurance Company, 300 So.2d 217 (La.App.2d Cir. 1974), the policy was purchased by the mortgagee. The court there found from the facts and the reference in the policy to the mortgagor that it was the intention of the mortgagee and the insurer at the time the contract of insurance was confected that the mortgagor would be an insured under the policy.

In the case here presented, there was no intention for the mortgagor to be an insured under the contract. We find the policy purchased by John Miller was to protect only the mortgagee’s interest. McGrew was not an insured under the policy and it does not inure in any way to his benefit, and in this respect it is similar to the policies construed by the court in the case of City of New York Ins. Co. v. Abraham, 20 So.2d 183 (La.App.2d Cir. 1944) and Kilson v. American Road Ins. Co., 345 So.2d 967 (La.App.2d Cir. 1977). In these cases the mortgagor-property owners were held not entitled to receive a benefit from insurance policies purchased by the mortgagee for its protection and wherein only the mortgagee was insured.

WHEN THE FIRE LOSS OCCURRED WAS JOHN MILLER ENTITLED TO CLAIM FROM HARTFORD THE TOTAL AMOUNT OF $14,000 FOR WHICH THE PROPERTY WAS INSURED OR WAS HE LIMITED TO THE BALANCE DUE ON THE MORTGAGE OF APPROXIMATELY $5,000?

Plaintiff contends that under the provisions of the valued policy law, R.S. 22:695, that John Miller was entitled to recover the $14,000 for which the property was insured and that the insurer cannot contest the amount by contending that John Miller’s insurable interest was limited to the unpaid balance of the mortgage note.

The purpose of the valued policy law was to require the fire insurer to pay the face amount of the policy to the insured owner of the property for which it had collected premiums so long as the insured committed no fraud in- the acquisition of the policy. The rationale is that the insurer should not be entitled after the loss to contend the value of the property was less than the face amount of the insurance in the policy for which it had collected the premiums.

The supreme court in the case of Lighting Fixture Supply Co. v. Pacific Fire Ins. Co. of New York, 176 La. 499, 146 So. 35 (1932), interpreted the valued policy law as it existed at that time and held it did not preclude the insurer from going into the extent of the insured’s insurable interest. The court there said:

“There is nothing in the valued policy law which prohibits the insurer from contesting the extent of the insurable interest of the insured in the immovable described in the policy. The statute presumes that the insured is the owner of the property insured, and merely prescribes a rule of public policy for establishing the pecuniary loss suffered by its partial or total destruction by fire.” Id. 146 So. at 38.

The statute was amended in 1952 to provide among other things:

“The insurer shall pay to the insured in case of total destruction the total amount for which the property is insured.”

This language replaced the earlier language in the valued policy law which provided the liability of the insurer to be “the full amount of the insurance on the property so destroyed shall be paid by the insurer” which had been the critical language of the statute at the time of the Lighting Fixture case.

This court in the decision of The Forge, Inc. v. Peerless Casualty Company, 131 So.2d 838 (La.App.2d Cir. 1961) interpreted the valued policy law subsequent to the 1952 amendment:

“The statute as originally written provided that ‘the full amount of the insurance on the property so destroyed (totally) shall be paid by the insurer.’ The new statute says ‘the insurer shall pay to the insured, in case of total destruction, * * * the total amount for which the property is insured.’
It seems clear that the purpose of this amendment was to remove any ambiguities created by the Lighting Fixture case, not only with regard to the problem of what objects, when insured, are governed by the valued policy law, but also the uncertainties surrounding insurable interest. The Legislature simply expressed its desire that in the event of a loss, an insured party shall receive the indemnity for which he paid.
This position seems to be in line with other jurisdictions having valued policy laws for we find in 29A. Am.Jur., Insurance § 1556, page 656:
‘It is recognized by all the cases decided upon the question that under a valued policy or the provisions of a valued policy statute, the insured insuring the property at a given valuation accepted by the insurer at the time of the issuance of the policy as the value of the insured’s interest may recover the full value insured, even though he in fact has a limited or qualified interest worth less than the amount of the insurance. The insurer may not go behind the policy and show that the insured’s interest is worth less than the amount of the policy.’ ” Id. at 842.

Subsequent to the Forge decision in which the supreme court denied writs, there were numerous decisions which followed Forge, including Roberts V. Houston Fire & Casualty Company, 168 So.2d 457 (La.App.3d Cir. 1964), which was decided after Act 464 of the 1964 Legislature which added Provision E to R.S. 22:695, which provides as follows:

“E. Liability of the insurer, in the event of total or partial loss, shall not exceed the insurable interest of the insured in the property and nothing herein shall be construed as precluding the insurer from questioning or contesting the insurable interest of the insured.” Id. at 460.

The court in Roberts applied the Forge rationale to the claim of an insured lessee because the operative facts occurred in 1960 before Section E was added to the valued policy law and denied the insurer the right to question the extent of the plaintiff lessee’s insurable interest in the property insured. However, the court there recognized that the 1964 amendment had changed the law. Although the court did not elaborate it was pointing out that the addition of Section E to the valued policy law now permitted a fire insurer to question the value of the insurable interest of the insured.

Former Justice Tate, while serving on the Third Circuit, in the case of Harvey v. General Guaranty Insurance Company, 201 So.2d 689 (La.App.3d Cir. 1967), stated that the purpose of the 1964 amendment was as follows:

“4. Actually, the probable purpose of the amendment is to overrule decisions applying the valued policy law in situations such as in Forge v. Peerless Casualty Co., La.App. 2 Cir., 131 So.2d 838 and Roberts v. Houston Fire & Casualty Ins. Co., La.App. 3 Cir., 168 So.2d 457, where the policyholder did not possess full or undivided ownership of the property destroyed, so that his actual insurable interest was only for a proportion of the total property destroyed. See Lighting Fixture Supply Co. v. Pacific Fire Ins. Co., 176 La. 499, 146 So. 35.” Id. FN. p. 693.

We agree with the Harvey footnote to the extent that we find that under the provisions of Section E of R.S. 22:695 that Hartford’s liability under the fire policy issued by it which covered the interest of mortgagee John Miller is limited to the insurable interest of John Miller in the property and his insurable interest is the amount of the unpaid balance on the mortgage note owned by him as of the date of the loss.

WHAT CLAIM AGAINST HARTFORD DID JOHN MILLER HAVE TO ASSIGN TO DON MILLER, AGENT, SUBSEQUENT TO THE ESCROW AGREEMENT?

In the case of Wreidt v. Beckenbauer, 183 Neb. 311, 159 N.W.2d 822 (1968), the defendant purchased a fire insurance policy on the improvements on property owned by him and then sold the property to the plaintiff on a mortgage deed. The insured property was thereafter partially destroyed by fire and the insurer paid the loss to the defendant. The plaintiff sued the defendant to recover the money received by him from the insurer. The insurer intervened claiming that it was subrogated to defendant’s right in the mortgage debt of the plaintiff to the extent of the payment it had made to the defendant on the fire loss.

The court held that because there was no assignment of the policy by the defendant to the plaintiff and no indication in the facts which otherwise indicated any intention that the policy was to have insured the plaintiff, that the insurance policy at the time of the loss was for the protection of the defendant mortgagee only. The court concluded the proceeds from the policy did not accrue to the benefit of the plaintiff and that plaintiff’s mortgage indebtedness was not reduced by the payment by the insurer to the mortgagee under the policy. The court further held that the insurer was subrogated to defendant’s mortgage claim against plaintiff to the extent of its payment on the fire loss. The rationale of the court is as follows:

“We must necessarily conclude that the insurance carried by defendant Becken-hauer was in the nature of separate insurance carried for his protection only, and that plaintiff mortgagor had no interest therein, and no right to have the insurance paid credited on the mortgage. ‘As the mortgagor and mortgagee each has an insured interest in the mortgaged property, insurance taken by one on his own interest and in his own favor alone does not inure to the benefit of the other. * * * where the mortgagee procures insurance on his separate interest, for his own benefit and at his own cost, and without any agreement with the mortgagor with respect thereto, the mortgagee is entitled to the proceeds, the mortgagor having no interest therein.’ 46 C.J.S. Insurance § 1146, p. 26. See, also, Ponder v. Gibson-Homans Co., 166 Ark. 591, 266 S.W. 682; LeDoux v. Dettmering, 316 Ill.App. 98, 43 N.E.2d 862.
In view of the foregoing, it is clear that plaintiff has no interest in or right to the insurance proceeds. They are the property of the mortgagee Beckenbauer, but since the only interest of Beckenhauer was, in essence, the insuring of his mortgage security, he has an insurable interest only to the extent of the amount owing under the mortgage. If this indebtedness is reduced, the mortgagee’s interest is reduced in like measure. As to him, the insurance contract is a contract of indemnity. In the event of a loss by fire of the insured property, or a part thereof, the mortgagee is entitled to be compensated by his insurance, but if the mortgage indebtedness is subsequently paid in full, he has not sustained a security loss and insurer is entitled to recover the insurance paid. ‘If the mortgagee, or one in like position, is the party insured and the policy is written so as to cover his interest only, insurer, on payment to the mortgagee, becomes subrogated pro tanto to the rights of the mortgagee against the mortgagor, even though the policy contains no subrogation clause purporting to give such right to insurer; * * *.’ 46 C.J.S. Insurance § 1213, p. 183. See also Aetna Life Ins. Co. v. National Union Fire Ins. Co., 98 Neb. 446, 153 N.W. 553, L.R.A. 1916A, 784; LeDoux v. Dettmering, supra.” Id. 159 N.W.2d at 825.

In the decision of City of New York Ins. Co. v. Abraham, 20 So.2d 183 (La.App.2d Cir. 1944), this court recognized that a policy which insured only the mortgagee does not accrue to the benefit of the mortgagor and that the insurer was entitled to receive a subrogation from the mortgagee to the mortgagee’s claim against the mortgagor upon paying the fire loss to the mortgagee and that the insurer had a right to assert the cause of action against the mortgagor The court stated the law to be as follows:

“It is well settled that under the fact and circumstances as exist in this case •- subrogation, such as we are dealing with, is perfectly l«gas a .id vm-s l& r.uLro gee the same right to foreclose the mortgage as was vested in the original mortgagee, to the extent of the subrogee’s interest. The whole matter is gauged and determined as between the mortgagee and the subrogee, the insurer, without any reference whatever to the owner or ownership of the property. This rule is clearly stated in Cooley’s briefs on Insurance, Volume 7, page 6718, as follows:
‘It is a general rule that where the interest of a mortgagee is separately insured for his own benefit, and a loss occurs before payment of the mortgage, the underwriters are bound to pay the amount of such debt to the mortgagee, providing it does not exceed the insurance, and are thereupon entitled to an assignment of the debt from the mortgagee, and may recover the same from the mortgagor. The payment of the insurance by the underwriter does not, in such a case, discharge the mortgagor from the debt, but only changes the creditor.’
Many cases from various jurisdictions are cited in support of the rule, including the early case of Carpenter v. Providence Washington Insurance Company, 16 Pet. 495, 10 L.Ed. 1044. There are a few cases holding to the contrary, but they constitute a very frail minority rule. The rule is much more tersely stated in 29 American Jurisprudence, 1010, § 1351, as follows:
‘It is generally held that where a mortgagee insures the mortgaged property at his own expense and for his own benefit and a loss occurs, the insurer on paying the loss to the mortgagee is subrogated, to the extent of the amount thus paid, to the means of enforcing payment of the original obligation by the debtor, the claim not being extinguished until payment by him. ****’” Id. at 185.

See also Capital Building and Loan Association v. Northern Ins. Co., 166 La. 179, 116 So. 843 (1928); Federal Union Ins. Co. v. Griffin, 151 So. 107 (La.App.2d Cir. 1933).

In the case of Mann v. Glens Falls Ins. Co., 541 F.2d 819 (9th Cir. 1976), the plaintiff purchased a fire insurance policy on her property and thereafter sold it retaining a mortgage. The house was then destroyed by fire. She did not assign the policy to purchaser of the property and the purchaser was not included in the policy as a named insured. The court found the policy to be a “mortgagee-only type policy” in which the purchaser had no interest. The insurance company tendered the plaintiff the $15,000 provided for by the policy but required that she subrogate to it her claim against the mortgagor to the extent of the payment, and she refused to execute the subrogation and sued the insurer for the benefits under the policy. During the litigation the purchaser reconveyed the property to the plaintiff which had the effect of terminating the mortgage debt to the plaintiff. The court held that because the plaintiff had destroyed the subrogation rights of the insurer that “her insurable interest and rights under the policy expired.”

John Miller, had as mortgagee, an insurable interest to the extent of the unpaid balance on the note owed him by McGrew and was entitled to protect his security by securing the Hartford policy. His insurable interest being separate from that of McGrew he was not deprived of it by virtue of the fact that McGrew purchased insurance against which he might assert a claim in the event of a fire for the amount owed on the note.

We note that in the case of Hartford Fire Ins. Co. v. Landreneau, 140 So. 52, 53 (La.App. 1st Cir. 1932), the court held that a first mortgagee was denied the right to the proceeds of a fire insurance policy purchased by the mortgagor where the mortgagor named the second mortgagee as the designated loss payee. The court stated:

“The most that the mortgagee is entitled to under such an agreement, as we read the authorities we can find on the subject, is an equitable lien upon the proceeds of the policy to the extent of his interest in the property. This lien he most probably could successfully assert against the proceeds of a policy payable directly to the mortgagor. But where, in a case like this, the policy contains a rider under which the loss, if any, is made payable to another party specifically designated by name, the rights of that party to the proceeds, even though he be the holder of a second mortgage, cannot, in our opinion, be defeated if those provisions of law making an insurance contract strictly a personal contract which in no sense runs with the property mean anything.” Id. at 55.

In the case of Kleinpeter v. Ferrara, 179 La. 193, 153 So. 689 (1934), the first mortgagee was denied the proceeds of a fire insurance policy purchased by the mortgagor without a loss payee clause in favor of the mortgagee where a judgment creditor of the mortgagor had by garnishment upon the insurer seized the proceeds of the policy.

In the case of Davis v. Aetna Casualty & Surety Company, 329 So.2d 868 (La.App.2d Cir. 1975), a flood insurer who had placed the mortgagee’s name, along with the name of the insured, upon a flood loss draft where the mortgagee was not named as a loss payee in the policy was held for penalties and attorney’s fees based upon a holding that the draft issued in this manner did not constitute payment under the policy.

Though in most cases a mortgagee, not named as insured upon the mortgagor’s policy, will be found to be an insured under the mortgagor’s policy, see Diaz v. Cherokee Insurance Company, 275 So.2d 922 (La.App. 4th Cir. 1973), he cannot be certain of protection under such policy as is reflected by the results in Landreneau, Klienpeter, and Davis, supra. For these reasons the possibility of being able to collect from a policy owned by a mortgagor does not deprive the mortgagee of his separate insurable interest and the right to protect it by buying an insurance policy of his own.

John Miller had a valid claim against Hartford following the fire loss for the amount owed him by McGrew on the note. Payment of this loss by Hartford would not have accrued to the benefit of McGrew, nor paid the note which he owed John Miller upon the property. Hartford would have been entitled to subrogation of Miller’s claim on the note against McGrew under the following provisions of its policy:

“Whenever this company shall pay the mortgagee (or trustee) any sum for loss or damage under this policy and shall claim that, as to the mortgagor or owner, no liability therefor existed, this Company shall, to the extent of such payment, be thereupon legally subrogated to all the rights of the party to whom such payment shall be made under all securities held as collateral to the mortgage debt, or may at its option pay to the mortgagee (or trustee) the whole principal due, or to grow due, the mortgage, with interest and shall thereupon receive a full assignment and transfer of the mortgage and of all such other securities; but no subro-gation shall impair the right of the mortgagee (or trustee) to recover the full amount of his, her or their claim.”

When John Miller endorsed the Commercial draft and placed the funds in his name in a savings bank escrow account and agreed that he had received payment of his note from the sums collected from this draft to be paid unconditionally to him when Hartford’s liability had been determined, he had effectively terminated McGrew’s liability on the note. John Miller no longer had an insurable interest under the Hartford policy nor could he have complied with Hartford’s subrogation right which it would have been entitled to under the policy.

Because John Miller had no claim against Hartford, he could not assign a claim against Hartford to Don Miller as agent for John McGrew. Don Miller had no cause of action against Hartford either as agent for John Miller or as agent for John McGrew.

Appellee’s contention in brief that this appeal is untimely is totally without merit and requires no discussion.

The judgment appealed from is REVERSED and plaintiff’s demands are rejected. All costs are to be paid by appellee.

      . R.S. 22:695 — A. Under any fire insurance policy, which may be written hereafter, and which is intended to take effect, at or after 12 o’clock noon, Central Standard Time, on the first day of August, 1952, on any inanimate property, immovable by nature or destination, situated within the state of Louisiana, the insurer shall pay to the insured, in case of total destruction, without criminal fault on the part of the insured or the insured’s assigns the total amount for which the property is insured, at the time of such total destruction, in the policy of such insurer.
      B.Under any fire insurance policy, which may be written hereafter, and which is intended to take effect, at or after 12 o’clock noon, Central Standard Time, on the first day of August, 1964, on any inanimate property, immovable by nature or destruction, situated within the State of Louisiana, the insurer shall pay to the insured, in case of partial damage, without criminal fault on the part of the insured or the insured’s assigns, such amount, not exceeding the amount for which the property is insured, at the time of such partial damage, in the policy of such insurer, as will permit the insured to restore the damaged property to its original condition; provided, however, that for any loss of an insured object which would constitute total loss under Sub-section A of this provision but which loss is covered by a blanket-form policy of insurance, Subsection B of this provision shall apply, and the insurer shall pay to the insured an amount equal to the actual cash value at the time of the loss of each insured object so destroyed, not exceeding the total amount of the insurance.
      C. Nothing herein shall be so construed to prevent the insurer, under any such fire insurance policy, at such insurer’s own expense and without contribution on the part of the insured, from replacing property, immovable by nature or destination, partially damaged or totally destroyed.
      D. Any clause, condition or provisions, which may be included in any policy of fire insurance, written to take effect at or after 12 o’clock noon, Central Standard Time, on the first day of August, 1952, contrary to the provisions of this Section, shall be null and void; but nothing herein shall be construed to prevent any insurer from cancelling or reducing the insurance on any property, immovable by nature or destruction, previous to damage to or destruction thereof.
      E. Liability of the insurer, in the event of total or partial loss, shall not exceed the insurable interest of the insured in the property and nothing herein shall be construed as precluding the insurer from questioning or contesting the insurable interest of the insured.

      . R.S. 22:614 — A. No contract of insurance on property or of any interest therein or arising therefrom shall be enforceable except for the benefit of persons having an insurable interest in the things insured.
      B. “Insurable interest” as used in this Section means any lawful and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage.


source: Caselaw Access Project

license: Public Domain

text:
    Roy L. COLVIN, Plaintiff-Appellant, v. CITY OF BOSSIER CITY, et al., Defendants-Appellees.
    No. 14787.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 1982.
    Writ Denied April 16, 1982.
    Peters, Ward, Bright & Hennessy by Hugh T. Ward, Shreveport, for plaintiff-appellant.
    Harvey P. DeLaune, Bossier City, for defendants-appellees.
    Before HALL, JASPER E. JONES and SEXTON, JJ.
   JASPER E. JONES, Judge.

This is an action to nullify a seniority determination by a Civil Service Board and to have plaintiff’s seniority recognized. The plaintiff appeals from a judgment sustaining an exception of prematurity and dismissing his action.

The plaintiff is Roy Colvin, a Fire Inspector in the Fire Prevention Bureau of the Bossier City Fire Department. The defendants are the City of Bossier City; the Bossier City Municipal Fire and Police Civil Service Board; the members of the Board, Jimmy Taft, Cortez Bridges, Pete Burt, Walter Cook and Jack Thomas; and David Richerson, another Fire Inspector.

Fire Inspector is the next to highest rank in the Fire Prevention Bureau. Director is the highest rank. When the Director is absent from work due to illness, vacation or other causes, his duties are performed by the senior Fire Inspector. While acting as Director the senior Fire Inspector is paid the higher wages of the Director’s position. Previously, plaintiff had been regarded as the senior Fire Inspector by virtue of having the longest service as Fire Inspector within the Fire Prevention Bureau.

On March 13, 1981, Richerson filed a request with the Board to have seniority within the Bureau determined on the basis of length of service in the Fire Department, rather than on length of service within the Bureau. On the basis of length of service in the Department, Richerson would be the senior Fire Inspector.

On April 21, 1981, the hearing requested by Richerson was held. Plaintiff was not notified of the hearing but learned of it and appeared with his attorney. Plaintiff’s petition alleges that he was denied the opportunity to make a meaningful presentation of his side of the issue at the hearing. At the conclusion of its consideration of the matter the Board voted unanimously to grant Richerson’s request that seniority be determined on the basis of length of service in the Fire Department. The plaintiff then brought this action.

The defendants interposed exceptions of prematurity and lack of jurisdiction over the subject matter. After a hearing the trial judge sustained the exception of prematurity on the theory that plaintiff’s proper course of action was to request a hearing from the Board. Plaintiff then took this appeal.

Plaintiff asserts two specifications of error: (1) that the trial judge erred by holding that appellant could not maintain a direct action for relief in the district court, and (2) that the trial court erred by holding the action premature for failure to exhaust administrative remedies.

Plaintiff supports his specifications of error with two arguments. First, that he had no administrative remedy to exhaust because the Board was without jurisdiction in the case. Second, that even if the Board had jurisdiction he is not required to request a hearing before it because to do so would be useless because of the prejudice of the Board members.

We conclude that it was within the Board’s authority to rule on the question of calculation of seniority. LSA-Const.1921, Art. 14, § 15.1(7)(c) and LSA-R.S. 33:2477(3), with identical language, impose the duty on the Board to:

“Advise and assist the employees in the classified service with reference to the maintenance, improvement, and administration of personnel matters related to any individual or group of employees.”

The determination of seniority of employees is part of the administration of personnel matters which the Board has the duty to conduct. If the Board has the duty to perform this function it must also have the power to do so.

In the decision of State v. Municipal Fire and Police Civil Service Bd., 211 La. 963, 31 So.2d 178 (1947), the court recognized that the defendant Board had jurisdiction to determine the seniority of two sergeants in the Monroe Police Department and that the appeal from that Board’s determination was covered by the provisions of Section 30 of Act No. 102 of 1944 which is the source provision of LSA-R.S. 33:2501. The provision of 33:2501 is applicable to the Board here and provides for the hearing procedure and appeal process to which appellant here is entitled.

Appellant’s normal remedy, if he were aggrieved by a decision of the Board, would be to appeal to the district court. This course is provided by LSA-Const. 1921, Art. 14, § 15,1(31) and LSA-R.S. 33:2501.

However, the plaintiff’s allegations that he was prevented from making a meaningful presentation of his side of the question takes this out of the realm of the normal case. Plaintiff contends that the Board’s denial of an opportunity to fully present his case was a denial of due process.

Due process requires notice and the opportunity to be heard and defend in a proceeding adapted to the nature of the case. Mongogna v. O’Dwyer, 204 La. 1030, 16 So.2d 829 (1943); Merritt v. Bossier Parish Police Jury, 160 So.2d 232 (La.App.2d Cir. 1964), writ refused 162 So.2d 14 (La.1964); Saizan v. Saizan, 311 So.2d 281 (La.App. 1st Cir. 1974). The cited provision of the 1921 Constitution and LSA-R.S. 33:2501 each contain provisions requiring the Board to give the employee a hearing and an opportunity to be represented by counsel and to present evidence. These requirements exist for the purpose of meeting due process requirements. The allegations of the petition, if proven, would constitute a violation of due process as plaintiff would have been denied rights of his position as a classified employee without being afforded the opportunity to be heard.

The allegations of the petition state that the issue before the Board was the seniority of Colvin and Richerson and that the Board decided that Richerson was the senior Fire Inspector, which had the effect of depriving appellant of rights and privileges which he had earlier enjoyed as senior Fire Inspector.

Further, plaintiff’s right to appeal would be limited by the Board’s refusal to allow him to make a meaningful presentation of his case since he would be forced to appeal on a record which did not contain the evidence favorable to him. This would, of course, greatly damage his chances of having the Board’s decision reversed on appeal.

Although the cited statutes provide for the aggrieved employee to demand the hearing by written request to the Board, and admittedly appellant here made no such request, the effect of the hearing which was held pursuant to Richerson’s request for a determination that he was the senior Fire Inspector, could necessarily be prejudicial to appellant. Under these circumstances when appellant appeared at the hearing prepared to present evidence to show that he was the senior Fire Inspector he was entitled to do so. If he was denied this right as he alleged in his petition the ruling made by the defendant was not made following a hearing held as required by the cited statutory provisions.

If the Board conducted the hearing contrary to the statute and due process requirements, the adjudication of Richerson’s seniority is a nullity.

The provisions of the Civil Service law applicable to this case contained in LSA-Const. 1921, Art. 14, § 15.1(36) and in LSA-R.S. 33:2506, each provide:

“Nothing contained herein shall prevent any * * * employee * * * from taking legal action in the courts to enforce provisions of this part [statute] section [Constitution 1921] or of any rule, order or other lawful actions of the Board.”

In the decision of Oliver v. Shreveport Mun. Fire and Police, Etc., 88 So.2d 405 (La.App.2d Cir. 1956), a petition alleging that an employee had been deprived of his rights by a Civil Service Board action taken contrary to due process and statutory provisions was held to have stated a cause of action.

We hold here that plaintiff was not required to make an individual request to the Board for a determination of his seniority; such a request would result in a hearing in which Richerson did not participate if the Board maintained the policy alleged by plaintiff in his petition of permitting participation in the hearing by only the party requesting it. A hearing requested by plaintiff could result in a ruling-that he was the senior Fire Inspector and, therefore, be in conflict with the ruling made by the Board which plaintiff here seeks to annul. The conflicting seniority adjudications made under these circumstances would be of questionable legality because each of the adjudications would be prejudicial to parties not permitted by the Board to participate in the hearings and present evidence.

We hold that plaintiff had a right to participate in the hearing requested by Richerson so that the issue of who was the senior Fire Inspector could be resolved between the two of them by the Board in a ruling following that hearing. For these reasons the trial court erred when it sustained the plea of prematurity based upon the belief that plaintiff was required to seek his own hearing before the Board and then appeal the Board’s ruling following that hearing.

Plaintiff’s petition alleges a violation of due process for which there is no administrative remedy. We conclude that if plaintiff can establish that he was denied due process before the Board, the ruling of the Board of which he complains should be annulled. In the event the Board’s ruling is annulled the court should not make a determination as to who is the senior Fire Inspector because, as earlier pointed out, this is the function of the Board to be performed by it in accordance with law, subject to appeal to the court after a proper hearing and determination as provided by law.

The judgment sustaining the plea of prematurity and dismissing plaintiff’s suit is REVERSED and SET ASIDE and the case is REMANDED for further proceedings in accordance with this opinion and as provided by law.

      . LSA-Const. Art. 10, § 18 provides — Except as inconsistent with this Part, the provisions of Article XIV, Section 15.1 of the Constitution of 1921 are retained and continued in force and effect as statutes.... ”

      . LSA-Const.1921, Art. 14, § 15.1(31) provides in part — Any employee under classified service and any appointing authority may appeal from any decision of the board, or from any action taken by the board under the provisions of the Section which is prejudicial to the employee or appointing authority.

      .R.S. 33:2501 provides in part — Any employee under classified service and any appointing authority may appeal from any decision of the board, or from any action taken by the board under the provisions of the Part which is prejudicial to the employee or appointing authority.

      . Plaintiff alleged that the Board had denied his request for an appeal as one of his reasons that the Board’s adjudication of Richerson’s seniority should be annulled, but he does not urge this contention in brief before us as a basis for reversal of the trial court’s judgment of dismissal.


author: SEXTON, Judge.

text:
    Johnnie Lee GRAHAM, Plaintiff-Appellant, v. JONES BROTHERS COMPANY, INC., et al., Defendants-Appellees.
    No. 14788.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 1982.
    En Banc. Rehearing Denied April 12, 1982.
    Writ Granted June 4, 1982.
    Joe L. Smith, Alexandria, Barry E. Edwards, Shreveport, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Frank. Walker, Shreveport, for defendants-appellees.
    Before HALL, JASPER E. JONES and SEXTON, JJ.
   SEXTON, Judge.

This workman’s compensation case was originally before this court in January 1981. The judgment of the trial court was reversed and the cause remanded “... to allow the trial court to determine and render judgment for the amounts to which the employee is entitled under the worker’s compensation law, at the cost of the employer.” Graham v. Jones Brothers, Inc. & Comm. Union Ins. Co., 393 So.2d 861 (La.App. 2nd Cir. 1981).

On remand the parties stipulated to the amount of appropriate compensation. Ex-pért fees were assessed and the court discussed at length the question of a lien for attorney fees filed by the plaintiff’s former attorney.

Additionally, plaintiff made an oral motion for the statutory penalties and attorney fees of LSA-R.S. 23:1201.2. In so doing the plaintiff espoused two theories for such recovery. First he contended that the defendant was arbitrary and capricious from the outset in failing to pay benefits. Secondly, he contended that the defendant was arbitrary and capricious for failure to pay at least minimum benefits from the point of remand by this court. The motion was denied by the trial court and the plaintiff now appeals seeking these penalties and attorney fees on the same basis as sought by the oral motion made at the hearing on remand. We affirm the judgment of the trial court but do not consider the issue of penalties and attorney fees for the reasons set out herein.

In considering plaintiff’s oral motion the trial court erroneously opined that the record reflected that the claim for penalties and attorney fees was made at the time the suit was originally filed. It is unclear from the response of the attorney for the defendant, when discussing the oral motion, whether he took note of the failure of plaintiff to have pled this issue. We should note that neither of the attorneys who appeared in this cause from remand forward were the trial attorneys. The motion was denied on the basis that since the trial court was originally of the view that the plaintiff was not entitled to workman’s compensation, that it would be inconsistent for that court to then award attorney fees on remand. In point of fact we find no allegation or prayer for statutory penalties and attorney fees (other than the prayer “for such other sums and amounts that the court may direct, or for any other awards justified under the provisions of the Louisiana Workman’s Compensation Law.”) We also find no amendment to the petition in the record seeking penalties and attorney fees. Neither side made an issue of penalties and attorney fees in their presentation on the original appeal. The opinion on that appeal makes no mention of this issue. Both the original trial court judgment and the judgment on remand are silent on the issue of penalties and attorney fees. There is no specific testimony or evidence in the record directed to this issue.

Obviously, as the trial judge noted, the question of penalties and attorney fees subsequent to the first appellate opinion was not before the trial court on remand. It was never set forth as a cause of action or tried as such.

Likewise the first contention by plaintiff that defendant was arbitrary and capricious for failure to pay benefits from the outset was not before the trial court, although it is understandable under these circumstances that the trial court erroneously so assumed. The issue was not pled or prayed for, nor was any evidence addressed to this issue presented by either side. We emphasize that the trial court judgment on remand was silent in this regard. It is the final signed judgment that the appeal is from. LSA-C.C.P. Art. 2083, see Cardean, Inc. v. Cannon, 307 So.2d 818 (La.App. 3rd Cir. 1975). That final judgment in this case omitting any reference of this issue is correct since the issue was not before the trial court.

Therefore, the judgment appealed from is affirmed at appellant’s cost without consideration by this court of the issue of penalties and attorney fees. See Sewell v. Argonaut Southwest Ins. Co., 362 So.2d 758 (La.1978).

AFFIRMED.


text:
    Eskridge E. SMITH, Jr., and Thomas Lee Smith, Plaintiffs-Appellees, v. Harold MYRICK, et al., Defendants-Appellants.
    No. 14790.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 1982.
    Campbell, Campbell & Johnson by John T. Campbell, Minden, for defendants-appellants.
    Kitchens, Benton & Kitchens by Paul Kitchens, Minden, for plaintiffs-appellees.
    Before HALL, JASPER E. JONES and SEXTON, JJ.
   SEXTON, Judge.

Defendant, Harold Myrick appeals a trial court judgment awarding treble damages under LSA-R.S. 56:1478.1 to plaintiffs, Eskridge E. Smith, Sr., and Thomas L. Smith for the cutting, without permission, of timber located on plaintiffs’ property.

Plaintiffs and defendant are adjacent landowners in Bienville Parish. Plaintiffs own 40 acres and defendant, Myrick’s family, owns 180 acres. In 1977 C. W. Nash, a pulpwood cutter, approached defendant’s mother, Mrs. Dare, who lived on the Myrick family property and inquired of her regarding the possibility of his cutting timber from her children’s property.

Mrs. Dare agreed subject to her son, Harold’s approval. Nash returned early the next morning to obtain that approval for the cutting. Myrick instructed Nash to cut timber only from within the fences enclosing die Myrick property. Mr. Myrick did not actually show Nash .where each fence was located but rather generally instructed Nash not to cross any fences and to cut where he had cut before, referring to Nash’s prior operations on the property five years before.' Neither Myrick nor any of his family checked on Nash’s progress.

Nash completed his operation sometime prior to November 1977. During that month it was discovered that Nash had cut timber from plaintiffs’ adjoining property, which plaintiffs had not authorized. Nash stated that he cut timber only from property he believed to belong to the Myrick family-

The Myrick-Smith boundary line is demarcated by a 35 year old fence which exists in various stages of deterioration and disrepair. Nash claimed that although told not to cross any fences, he assumed that the fence was only a ruin of an abandoned fence and not the actual boundary line.

Myrick claims that upon discovery of the mistake, he offered to pay plaintiffs the amount of stumpage he received for the timber cut from their property. The plaintiffs admitted that Myrick made such an offer through his attorney but that they declined.

The trial court found that Nash did cut the timber from the Smiths’ property and that his timber cutting operation had been authorized by Myrick, but that Nash’s conduct was reasonable. In written reasons for judgment the trial court stated:

The Court is of the opinion that Nash certainly thought he was cutting on Myr-ick property when he was in fact on the Smith’s forty acres. The Court believes it reasonable that Nash, when looking for a boundary would expect to find a fence which would hold stock (see testimony of Myrick that there had, at least shortly before, stock in the pasture) and the old dilapidated fence he crossed certainly would not have held stock, nor was there any evidence at a gap in the fence that it could be closed to prevent stock from moving from the Myrick property to the Smiths’.
The fact that the fences giving entrance to the Myrick property were in good condition, and that there were even cross fences within the Myrick property (see testimony of Nash) convinced the Court that anyone with the instructions given by Myrick would not have considered the old deteriorated fence to be a property line. The Court, therefore, finds that Nash is only liable for the fair market value of the timber.

The trial court found Myrick “lax in not showing Nash his property lines”, but also held that neither Nash or Myrick acted in bad faith.

The trial court also found that there was no real dispute as to the amount of timber taken but dispute did exist as to the value of the timber taken. The court found the defendant’s expert to be more familiar with the value of timber in that area, and therefore assessed the total value of the timber cut at $866.35, both for pulpwood and saw timber sold as pulpwood.

Myrick and Nash were found liable in solido for this $866.35. A judgment of an additional $1,632.70, ($866.35 X 3 less $866.35) was rendered against Myrick. Thus the plaintiffs were awarded treble damages, both defendants being liable in solido for one-third and Myrick alone being liable for two-thirds. Court costs were assessed one-third to Nash and two-thirds to Myrick.

Myrick alone now appeals, which appeal was not answered by the plaintiffs. In so doing, Myrick contends Nash was an independent contractor or purchaser of the timber and that the responsibility for exceeding the boundary lines is solely his. Thus Myrick’s position is that he only owes the plaintiffs $340.14, representing the sum he contends he received for timber cut on plaintiffs’ land.

Finding no reasons to disturb the trial court’s determination that Nash and Myrick were both in good faith we are only concerned with the applicability of subsection C of LSA-R.S. 56:1478.1 to the landowner Myrick. Though Nash is not involved in this appeal we should note that a woodcutter who crosses a dilapidated boundary, as existed in this case, is not liable for treble damages. Shaffett v. Vicks, 385 So.2d 419 (La.App. 1st Cir. 1980). The sole issue is whether the landowner Myrick is responsible under the statute for Nash’s crossing of this dilapidated boundary. The statute is punitive in nature and treble damages are to be assessed only where a party is clearly in violation thereof. Garrett v. Martin Timber Co., 391 So.2d 928 (La.App. 2nd Cir. 1980).

For the reasons set out herein we reverse the trial court’s award of treble damages against Myrick finding Myrick only liable for $350.35, representing the amount of stumpage he received for timber cut on plaintiffs’ land.

The trial court in assessing the damages plaintiffs suffered accepted the defendant’s expert’s estimate of the value of the pulpwood at the time in question, which was $6.50 per cord. The court found that the plaintiffs had lost 42.2 cords for a total of $275.60. Additionally, the court found that plaintiffs lost $590.75 of saw timber, saw timber being more valuable than pulpwood. Of course, none of the saw timber Nash took from plaintiffs’ property was sold as such. It was all converted to pulpwood. The defendant’s expert testified that 1,000 feet of saw timber equaled approximately three and one-third cords of pulpwood. Plaintiffs’ expert testified that 3,475 board feet of saw timber from 55 trees was lost. This converts to approximately 11.5 cords at $6.50 per cord equaling $74.75, which when added to the $275.60 equals $350.35.

In our view, the statute in question is basically directed to the woodcutter. Where there is doubt, we believe that it is basically his responsibility to be certain that he is cutting on the proper premises. Of course, this responsibility is mitigated by the provisions of subsection C of the statute indicating that treble damages do not apply where the boundaries are not clearly delineated, as here, and also where the area cut is included in a contract with the purported owner. For liability to attach to the landowner under the statute in question, he must “... authorize or direct his agent or employee to cut.... ” Nash was obviously not the employee of Myrick, nor was he Myrick’s agent.

Nash approached Myrick’s mother for authority, when he was in the area on other woodcutting business. Having cut on the Myrick property some five years previously, he noticed that there was additional timber now appropriate for harvesting. He received tentative permission from the defendant’s mother who indicated he would have to check with the defendant. Permission was given early the next morning when Nash arrived on the premises. After receiving the instructions noted earlier, Nash proceeded with his cutting business unsupervised and unaided by Myrick. Under these circumstances, we view Nash as an independent contractor or purchaser of the timber, and not the agent of the landowner. See Ainsworth v. International Paper Company, 311 So.2d 629 (La.App. 3rd Cir. 1975).

We are mindful of Terral v. Riley, 293 So.2d 912 (La.App. 2nd Cir. 1974), cited by plaintiffs for the proposition that one who gives lax instructions stands in the shoes of the woodcutter to whom he gave those instructions. It should be noted that the instructions given in that case were by the wood producer, (rather than the landowner) with whom the woodcutter obviously had a strong and regular working relationship and whose agent the woodcutter may well have been. In any event Terra1 is prior to the effective date of the act establishing the statute in question.

Accordingly, the judgment of the District Court is amended to reduce the judgment in favor of plaintiffs against the defendant Myrick to the sum of $350.35, which judgment is in solido with the judgment against C. W. Nash to that extent. All costs of this appeal are assessed against the plaintiffs. The costs of the trial court assessed to Myrick (two-thirds of the total) are assessed one-half to the defendant Harold Myrick and one-half to the plaintiffs.

      . LSA-R.S. 56:1478.1 Trees, cutting without consent; penalty:
      A. It shall be unlawful for any person to cut, fell, destroy or remove any trees, or to authorize or direct his agent or employee to cut, fell, destroy or remove any trees, growing or lying on the land of another, without the consent of the owner or legal possessor.
      B. Whoever willfully and intentionally violates the provisions of Subsection A shall be liable to the owner or legal possessor of the trees for civil damages in the amount of three times the fair market value of the trees cut, felled, destroyed or removed.
      C.Whoever violates the provisions of Subsection A in good faith shall be liable to the owner or legal possessor of the trees for three times the fair market value of the trees cut, felled, destroyed or removed, except however, that the provisions of this section shall apply only to trees cut or removed across ownership lines, marked boundary lines, or outside of designated cutting area lines, and that no provision herein shall apply to cutting operations within an area covered by a contract or agreement with the owner.
      D. The provisions of this section shall not apply to the clearing and maintenance of rights of way or to utility service situations where a utility is acting in good faith to minimize the damage or harm occasioned by an act of God; the provisions of this Act shall not apply to land surveying by or under the direction of a registered professional land surveyor, duly registered under the laws of the state of Louisiana.
      E. Whoever violates the provisions of Subsection A as they relate to the cutting of standing cypress trees on water bottoms owned by the state of Louisiana shall, in addition to the penalties otherwise provided in this Section, be subject to a fine not to exceed $5,000, imprisonment not to exceed six months, or both.

      . Act No. 692 of 1974.


author: MARVIN, Judge.

text:
    Evelyn E. STEWART, Plaintiff-Appellant, v. HIGHLAND HOSPITAL, L. S. Robinson, M. D., Bryson Jones, M. D., B. Vickers, M. D. and Wilda Smith, Defendants-Appellees.
    No. 14795.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 1982.
    Camp, Carmouche, Palmer, Barsh & Hunter by David B. Spencer, New Orleans, for plaintiff-appellant.
    Mayer, Smith & Roberts by Paul R. Mayer, Shreveport, for defendants-appellees, Highland Hospital & Wilda Smith and by Charles L. Mayer, Shreveport, for defendants-appellees, Drs. L. S. Robinson, Bryson Jones and B. Vicker.
    Before MARVIN, FRED W. JONES, Jr. and NORRIS, JJ.
   MARVIN, Judge.

In this medical malpractice action, plaintiff appeals a judgment dismissing her demands on an exception of prescription. La. R.S. 9:5628.

Plaintiff underwent treatment for cancer of the cervix, which included cobalt radiation therapy, in October 1978 in Shreveport. This therapy produced a cobalt burn that later caused plaintiff to have to undergo a colostomy and other operations in California. Alleging that the radiation therapy was negligently administered, plaintiff brought this action on August 11, 1980.

The crucial issue is when plaintiff “learned” that the cobalt burn was the cause of the damage allegedly sustained by plaintiff after the radiation therapy. Hebert v. Confederate Memorial Medical Center, 381 So.2d 545 (La.App.2d Cir. 1980); Zeno v. Lincoln General Hospital, 376 So.2d 1284 (La.App.2d Cir. 1979). Prescription does not run against one who is ignorant of facts which would entitle her to bring a malpractice action as long as such ignorance is not willful and does not result from that one’s neglect. Young v. Clement, 367 So.2d 828 (La.1979).

The trial court found that plaintiff knew on or before July 27, 1979, that she had a stricture of the rectum that was caused by the cobalt burn and that the cobalt burn was produced by the radiation treatments administered by defendants in 1978. There is substantial evidence to support these findings.

In California, plaintiff saw, in this order, Dr. Rue, Dr. Chien Su, and Dr. Smiley. Plaintiff testified:

“[Dr. Rue] said, ‘You may have a cobalt burn.’ . .. And he was explaining to me what it was and he said, ‘I’m sending you over to the hospital for X-rays,’ and that’s what it was [that was wrong with me] ... [They] found the constriction and Dr. Rue sent me to Dr. Su ... and I called [defendant] Dr. Jones [in Shreveport] and told him what kind of shape I was in * * * and I told him what Dr. Rue had found, that I had a cobalt burn.”

Dr. Smiley saw plaintiff on July 27, 1979, after plaintiff had seen Drs. Rue and Su. Dr. Smiley testified that plaintiff brought with her a July 18, 1979, X-ray report, that he discussed and explained what her problem was. He said, “She was very knowledgeable,” and he agreed that “she was aware of ... [her] rectal problem, and [that] it was associated with this radiation treatment that she had previously had [in Shreveport].”

Defendant Dr. Jones testified that plaintiff telephoned him on July 27, 1979, and told him that the doctors in California had told her that she had a cobalt burn that had caused a rectal stricture and that they wanted her to undergo a colostomy, or have part of her colon removed. Plaintiff’s action was not instituted until August 11 of the next year.

Under these circumstances, the trial court did not err in sustaining the plea of prescription. For excellent reasons detailed by the trial court, which are here summarized, the judgment appealed is AFFIRMED at appellant’s cost.

      . “No action for damages for injury . .. against any physician ... or hospital . .. shall be brought unless filed within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission or neglect; ...”

      . The X-ray report of July 18, 1979, given to Dr. Smiley by plaintiff on July 27, 1979, states in part:
      “There is a moderate constricting lesion involving the recto-sigmoid junction. This . . . is probably related to previous radiation of the pelvis ...”


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

text:
    Danny R. SMITH et ux., Plaintiffs-Appellants, v. CUPPLES REAL ESTATE, INC., et al., Defendants-Appellees.
    No. 14797.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 1982.
    Love, Rigby, Dehan, Love & McDaniel by J. Philip Goode, Jr., Shreveport, for plaintiffs-appellants.
    Richie & Richie by C. Vernon Richie, Shreveport, for defendants-appellees, Henry W. Cushing et al.
    Rogers M. Prestridge, Bossier City, for defendant-appellee, Cupples Real Estate.
    Before MARVIN, FRED W. JONES, Jr. and NORRIS, JJ.
   FRED W. JONES, Jr., Judge.

Plaintiffs appeal a judgment which sustained defendants’ exceptions of prescription and dismissed plaintiffs’ suit for damages allegedly resulting from defendants’ misrepresentation relating to the square footage in a house purchased by plaintiffs.

Plaintiffs’ suit, filed on June 3,1981, contained the following pertinent allegations:

(1) By deed dated August 14, 1979, plaintiffs purchased from the Cushings for $58,000 a house and lot in Bossier City.
(2) Prior to the sale, the Cushings and their real estate agent, Cupples Real Estate, Inc., represented to plaintiffs that the house contained 1596 square feet of heated area.
(3) In connection with their subsequent attempt to sell the house and lot, plaintiffs learned the house actually contained only 1431 square feet of heated area.
(4) Plaintiffs asked for $5996.10 as the value of the missing 165 square feet of heated area (apparently a proportional reduction of the purchase price) and for attorney fees under La.C.C. Art. 2545.

Defendants filed pleas of prescription, with each asserting that plaintiffs’ cause of action had prescribed under the provisions of La.C.C. Art. 2498.

Since there is nothing in the record indicating an evidentiary hearing was held pri- or to the trial judge’s ruling on these exceptions, we assume that his decision was based solely upon his construction of the allegations of the petition. Further, the record contains neither oral nor written reasons for the judgment sustaining the exceptions and dismissing plaintiffs’ suit.

Plaintiffs argue on appeal that (1) the one year prescriptive period stipulated in La.C.C. Art. 2498 is inapplicable since they do not claim to have purchased their residence “at the rate of so much per measure” —contemplated by La.C.C. Art. 2492 as a predicate for application of Article 2498; (2) the one year prescriptive period for filing redhibitory actions does not bar their claim since the seller did not prove plaintiffs discovery of the “vice” more than a year before filing of the suit — as required by La.C.C. Art. 2546; and (3) the five year prescriptive period provided for by La.C.C. Art. 3542 applies to this action since plaintiffs have alleged fraud under La.C.C. Art. 2547.

Where it appears that a claim has prescribed under the allegations of the petition itself, the burden is upon the plaintiff to show why the claim has not prescribed. Gustin v. Shows, 377 So.2d 1325 (La.App. 1st Cir. 1979); Wooden v. Hartford Insurance Co., 335 So.2d 742 (La.App. 2d Cir. 1976); Tassin v. Allstate Insurance Co., 310 So.2d 680 (La.App. 4th Cir. 1975).

Since no evidence was presented in connection with the hearing in the trial court on these exceptions of prescription, the primary question on appeal is whether plaintiffs’ petition shows on its face that their claim has prescribed. This requires an analysis of the nature of their action as revealed by the factual allegations contained in the petition.

Although plaintiffs’ articulation of their cause of action is not as semantically precise as might be desirable, our examination of the petition leads us to the conclusion that plaintiffs are suing the Cushings for a reduction in the purchase price of their property because the sellers declared the “thing sold” had a quality (1596 square feet of heated area) which it did not actually have.

It is well established in our jurisprudence that where a good faith seller breaches an express warranty of quality, the buyer’s exclusive remedy is an action in redhibition. Overby v. Beach, 220 La. 77, 55 So.2d 873 (1951); Bernofsky v. Schwartz, 370 So.2d 590 (La.App. 4th Cir. 1979); Peoples Furniture & Gift v. Carson Hicks, 326 So.2d 919 (La.App. 3rd Cir. 1976); Fusilier v. Ardoin, 266 So.2d 531 (La.App. 3rd Cir. 1972); Atlantic-Gulf Supply Corp. v. McDonald, 175 So.2d 6 (La.App. 4th Cir. 1965). Also, for an excellent discussion of the subject. see comment entitled “Seller’s Express Warranty Giving Rise to a Redhibitory Action—Article 2529 of the Louisiana Civil Code”, 42 Tulane Law Review 374 (1968).

Having concluded that plaintiffs’ action is one in redhibition under the cited codal articles, we find untenable defendants’ argument that La.C.C. Articles 2491 et seq., are applicable — particularly since the deed in question does not purport to describe the measurement of the house involved in this litigation.

In general, a redhibitory action prescribes one year from the date of the sale, unless the seller had knowledge of the vice and neglected to declare it to the purchaser. La.C.C. Art. 2534. If the seller has knowledge of the defect and fails to declare it, the one year period for filing the redhibi-tory action then runs from the date of discovery of the vice by the purchaser. La. C.C. Art. 2546; Walton v. Katz & Besthoff, Inc., 77 So.2d 563 (La.App.Orl.Cir.1955).

In this case more than one year elapsed between the date of the purchase of the house and lot and the date suit was filed. Therefore, on the face of the petition the claim for redhibition had prescribed. Plaintiffs had the burden of proving why it had not prescribed. No allegations of the petition purported to posit an exception to the general rule nor, as we have noted, did plaintiffs present any evidence to discharge their burden of proof. Consequently, the trial judge correctly sustained the plea of prescription as to the Cushings.

However, since the trial judge disposed of the exception solely upon the basis of the allegations contained in plaintiffs’ petition, we believe that in the interest of justice he should have exercised his discretion under La.C.C.P. Art. 934 by giving plaintiffs a reasonable opportunity to amend their petition, if possible, to cure the defect in question. Of course, if plaintiffs cannot or do not amend within the time stipulated in the trial judge’s order for the amendment, their suit should be dismissed. We remand, in part, for that purpose.

Since the pleadings do not indicate that defendant Cupples Real Estate Inc. sold the property in question to plaintiffs, there can be no redhibitory action against it and the prescriptive period relating to red-hibitory actions does not apply to the suit as it pertains to that defendant. Davis v. Davis, 353 So.2d 1060 (La.App. 2d Cir. 1977).

Although the nature of plaintiffs’ cause of action against Cupples is not clear from our examination of the petition, it appears to be based upon fraudulent misrepresentations. See DeSoto v. Ellis, 393 So.2d 847, 848 (La.App. 2d Cir. 1981) for a discussion of duties owed by brokers to purchasers. Be that as it may, we cannot conclude that plaintiffs’ claim against defendant Cupples has prescribed under the allegations of the petition itself. Therefore, the trial judge erred in sustaining this defendant’s exception of prescription.

For the reasons set forth, we affirm the judgment of the trial court insofar as it sustained the exception of prescription filed by the defendants, Cushings, but reverse the judgment insofar as it dismissed the suit against those defendants. We also reverse the district court judgment insofar as it sustained the exception of prescription filed by the defendant, Cupples Real Estate, Inc. and dismissed the suit against it. We remand for further proceedings consistent with the views expressed herein. Costs of this appeal are assessed to the defendants. Assessment of all other costs is to await a final judgment.

      . Art. 2545. The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.

      . This article, in a section of the Civil Code dealing with disputes over the extent of immovable property delivered to the vendee, provides:
      Art. 2498. The action for supplement of the price on the part of the seller, and that for diminution of the price or for the canceling of the contract on the part of the buyer, must be brought within one year from the day of the contract, otherwise it is barred.

      . Art. 2547. A declaration made by the seller, that the thing sold possesses some quality which he knows it does not possess, comes within the definition of fraud, and ought to be judged according to the rules laid down on the subject, under the title: Of Conventional Obligations.

      It may, according to the circumstances, give rise to the redhibition, or to a reduction of price, and to damages, including reasonable attorneys’ fees, in favor of the buyer.

      .C.C. Art. 2529. A declaration made in good faith by the seller, that the thing sold has some quality which it is found not to have, gives rise to a redhibition, if this quality was the principal motive for making the purchase.
      C.C. Art. 2541. Whether the defect in the thing sold be such as to render it useless and altogether unsuited to its purpose, or whether it be such as merely to diminish the value, the buyer may limit his demand to the reduction of the price.
      C.C. Art. 2542. The buyer may also content himself with resorting to this action, when the quality, which the thing sold has been declared to possess and which it is found to want, is not of such importance as to induce him to demand a redhibition.

      . When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.


text:
    Randy W. SMITH, Individually and as Natural Tutor of the Minor Children, Angela Smith and Randall D. Smith, Janice G. Smith and Eddie L. Smith, Individually and as Natural Tutor of the Minor Children, Kevin L. Smith and Lorie Ann Smith, Plaintiffs-Appellees, v. STATE of Louisiana, Through DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT and Irris F. D. Austin, Defendants-Appellants.
    No. 14800.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 1982.
    Writ Denied April 30, 1982.

      Theus, Grisham, Davis & Leigh by J. Michael Hart, Monroe, Bobby Culpepper, Jonesboro, for plaintiffs-appellees.
    R. Randall Roche, Baton Rouge, for defendants-appellants.
    Before HALL, JASPER E. JONES and NORRIS, JJ.
   JASPER E. JONES, Judge.

This tort action arose out of a" serious automobile accident that occurred April 28, 1979 in Jackson Parish. The plaintiffs are Randy W. Smith, individually and as tutor of his minor children, Angela and Randall D.; Janice Smith, Randy’s wife; and Eddie Smith, individually and as tutor of his minor children, Lorie Ann and Kevin. The defendants are the State of Louisiana through the Department of Transportation and Development (Department) and Irris F. D. Austin (Austin). The Department made a third party demand against Austin. The Department appeals a judgment holding it liable, in solido, with Austin for the extensive damages suffered by the plaintiffs. Austin has not appealed.

Late on a Saturday afternoon, Randy W., Angela, Janice, Randall D., Kevin and Lorie Ann Smith were returning home from visiting relatives. They were traveling north on Louisiana Highway 34 in a Ford automobile driven by Randy W.

Austin was driving a Plymouth automobile south on Highway 34. He had departed from Eros, Louisiana where he had spent a good deal of the afternoon at the Eight Ball Cafe drinking beer. Austin drove his 1967 Plymouth from Eros to Chatham without incident.

From Chatham to the Winn Parish line, a distance of about twelve miles, Highway 34 traverses hilly terrain and has many curves. The section of the highway from Chatham to Winn Parish is heavily used by large trucks coming to and from a mill located at Chatham.

Austin continued on Highway 34 through Chatham, still traveling in a southerly direction. Slightly more than one mile south of Chatham, Austin drove his car partially onto the right shoulder of the highway. Apparently Austin pulled over when he met a northbound car at the crest of a hill.

Austin continued down the hill for a short distance with his right wheels on the shoulder before attempting to pull his car back completely onto the surface of the roadway. When Austin attempted this maneuver his vehicle went out of control in a counter clockwise spin and into the northbound lane of the highway where it struck the Smith vehicle.

Austin testified that at the time of the accident he had been going between 50 and 60 mph. Trooper Michael Taylor of the Louisiana State Police, who investigated the accident, estimated Austin’s speed at 80 mph. An expert witness for the Department estimated Austin’s speed at in excess of 80 mph. Blood tests taken after the accident showed that Austin had a blood alcohol content of .278 gm%.

The plaintiffs contend that Austin lost control of his vehicle because of the poor condition of the highway shoulder. The Department contends that Austin lost control because of his excessive speed and intoxication.

After a trial on the merits, the trial judge rendered a judgment against both defendants, in solido. The trial judge found the Department liable on grounds of both negligence and strict liability. The Department then took this appeal. We affirm.

The Department urges four specifications of error on appeal: (1) That the trial court erred in finding the condition of the highway was a proximate cause of the accident and in failing to find that the negligence of Austin was the sole, proximate cause of the accident, (2) That the trial court erred in improperly applying the law with regard to the negligence and liability of the Department, (3) That the trial court erred by holding the Department liable in the absence of proof that the condition of the highway caused the accident, and (4) That the trial court erred by awarding excessive damages.

SPECIFICATIONS NOS. 1 and 3

As both of these specifications of error relate to the trial court’s finding that the condition of the highway was a cause of the accident, we consider them together.

The plaintiffs must prove causation by a preponderance of the evidence, but, they may carry that burden by either direct or circumstantial evidence. Townsend v. State, Department of Highways, 322 So.2d 139 (La.1975). Causation is a question of fact as to which the trial court’s determinations are entitled to great weight and cannot be disturbed absent manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The shoulders of Hwy. 34 in the area where the accident occurred vary in width. At the crest of the hill where Austin’s wheels left the road the shoulder was fairly wide, but it grew narrower as the road went down the hill where it dropped away into a ditch that was from four to five feet deep.

The highway in this area had a drop off from the surface of the roadway to the surface of the shoulder. To put it simply, the shoulder was lower than the surface of the road. We will refer to this condition as an edge drop off. The edge drop off was several inches throughout the area, except in short areas where the shoulder had been patched.

With reference to the particular point where the Austin vehicle regained the road, Trooper Taylor testified:

“Okay, the drop off the roadway onto the shoulder, I observed it to be worn down pretty good. The shoulder was worn down in that area and it was several imhes off. It dropped off pretty good from the paved portion on to the shoulder itself.” [emphasis supplied]. Rec. p. 101.

Photographs of the scene taken by Taylor at the time of his investigation depict the general edge drop off that existed in the area of the accident.

Taylor again visited the scene in April, 1980, approximately one year after the accident, and found it to be in substantially the same condition that it had been at the time of the accident. Measurements taken on the second visit showed the edge drop off to vary between 2V2" and 4" at the scene with the depth of the drop off generally increasing as it moved down from the crest of the hill.

Taylor testified that on the day of the accident he observed “buff marks” made by the Austin vehicle’s tires when Austin had tried to steer it over the edge drop off and back onto the roadway surface.

Both the plaintiffs and the Department used expert testimony to show the effect of an edge drop off on a driver reentering the paved surface of the road from the shoulder.

Mr. Sylvanus Walker, Consulting Engineer, testified for plaintiff and stated that an edge drop off presents a hazard to motorists. Walker explained that the edge drop off presents an obstacle to a motorist trying to come back on to the road from the shoulder because the tires cannot move smoothly onto the road surface from the shoulder. Before the tires regain the roadway they must overcome and climb the edge drop off. In order to cause the tires to do this the driver must steer hard back onto the roadway. The application of the steering force necessary to overcome the edge drop off often results in the car being oversteered as it re-enters the road. The oversteer, if serious enough, can cause the vehicle to go out of control into a counter clockwise spin.

Walker also opined that the typical problem with an edge drop off was compounded at this location by the fact that the shoulder was narrow and dropped away into a deep ditch. Walker felt that the narrow shoulder created an additional stimulus to cause the driver to try to regain the roadway surface.

Walker was of the opinion that an edge drop off of 2V2" to 4" was enough to create the problem detailed above. Walker was also of the opinion that the problem would be encountered by vehicles traveling as slow as 45 mph.

Mr. Dewayne T. Evans, an engineer with extensive experience in traffic engineering, testified for plaintiff. Evans felt that any edge drop off of over 2" would constitute a hazard to motorists. Evans agreed with Walker that the hazard resulted from the danger of oversteering. Evans also agreed that the problem was aggravated by the narrow width of the shoulder at the accident scene. Evans was of the opinion that the edge drop off present in this case would be a hazard at speeds as low as 40 mph.

The Department’s expert witness, Mr. Don Ivey, an Engineer, testified by deposition. Ivey opined that Austin lost control due to steering over correction caused by his intoxication and excessive speed. Ivey also was of the opinion that an edge drop off of less than 4" was not a hazard unless the vehicle was being driven at an excessive rate of speed.

The evidence supports the trial judge’s conclusion that there was an edge drop off of at least 2" at the accident scene. The evidence, and particularly three facts, support the trial judge’s conclusion that the edge drop off caused Austin to lose control. First, Austin did not lose control until he attempted to get his car’s right wheels back on the highway. Second, Trooper Taylor found “buff marks” made by the tires on the edge drop off as Austin tried to steer back onto the highway. Third, when the Austin vehicle went out of control it went into a counter clockwise spin. These facts all are strongly consistent with an edge drop off oversteer accident and corroborates Austin’s testimony that the edge drop off caused him to lose control.

In its brief the Department makes much of the fact that Trooper Taylor did not indicate on his accident report that the shou.der condition was a cause of the accident. This is explained by Taylor’s testimony, however. Taylor testified that he would not consider a shoulder defective unless it was in a serious state of disrepair or had a glaring or obvious defect.

The evidence shows that the edge drop off was an important and substantial cause of Austin’s loss of control and the subsequent collision with the Smith vehicle. These specifications of error are without merit.

SPECIFICATION NO. 2

Appellant’s second specification of error is that the trial judge erroneously applied the law with regard to the negligence and liability of the Department. The trial judge found the Department liable on grounds of both negligence and strict liability. We will first consider the application of strict liability to these facts.

The plaintiffs may recover on the basis of strict liability under LSA-C.C. art. 2317 by showing (1) that the thing was in the care or custody of the defendant, (2) that it had a vice or defect, that is some condition which occasioned an unreasonable risk of injury, and (3) that the injury was caused by the defect. Jones v. City of Baton Rouge, Etc., 388 So.2d 737 (La.1980).

As we have already concluded that one cause of the accident was the shoulder condition, we now need only consider whether Hwy. 34 was in the care or custody of the Department and whether the condition of the shoulder amounted to a defect.

The shoulder is a part of the highway. LSA-R.S. 48:1(11 & 21). Hwy. 34 is a state highway, LSA-R.S. 48:191, and as such it is in the care and custody of the Department. Foggan v. La. Dept. of Transp. and Dev., 402 So.2d 154 (La.App. 1st Cir. 1981). Thus, Hwy. 34, including the shoulder, was in the care or custody of the Department.

We must now decide whether the shoulder of Hwy. 34 was a vice or defect. There are numerous cases in which our courts have allowed recovery because of shoulder irregularities. See e.g. Watson v. Morrison, 340 So.2d 588 (La.App. 1st Cir. 1976), writ denied 342 So.2d 218 (La.1977); Brandon v. State Through Dept. of Highways, 367 So.2d 137 (La.App. 2d Cir. 1979); writ denied 369 So.2d 141 (La.1979); Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979); Brown v. Louisiana Dept. of Highways, 373 So.2d 605 (La.App. 3d Cir. 1979), writ denied 376 So.2d 1269 (La.1979); Sinitiere v. Lavergne, 391 So.2d 821 (La.1980); Sibley v. Menard, 398 So.2d 590 (La.App. 1st Cir. 1980), writ denied 400 So.2d 211 (La.1981). A Zlh" to 4" drop off was held to be a defect in Sinitiere, supra. A 3" edge drop off due to overlay work has been held to be a defect under Art. 2317; Edwards v. State, Dept. of Transp. & Devel., 403 So.2d 109 (La.App. 3d Cir. 1981), though recovery was not allowed because of victim fault.

The record shows that edge drop offs cause a grave danger of loss of control even to drivers proceeding at moderate speeds. Further, the problem was compounded here by additional difficulties caused by the narrowness of the shoulder and the 4' to 5' deep ditch in the area of Austin’s re-entry. We conclude that the condition of the shoulder of Hwy. 34 was a vice or defect in the highway.

We find that the trial judge correctly found the Department to be liable under Art. 2317 since the highway was in the care and custody of the Department. The shoulder of the highway posed such a danger to mot. rists that it was a vice or defect in the highway and the defective shoulder was a substantial cause of the plaintiffs’ injuries.

We now consider whether the Department may also be held liable on grounds of negligence.

The Department may be held liable based on negligence when it has actual or constructive notice of a hazard condition and fails to take corrective action within a reasonable time. Sinitiere, supra. The Department has a duty to see that the highways are reasonably safe for persons exercising ordinary care and reasonable prudence. LaBorde v. Louisiana Department of Highways, 300 So.2d 579 (La.App. 3d Cir. 1974). The Department has a duty to inspect and maintain the shoulders of the highways. Willis v. State ex rel. Louisiana Dept. of Highways, 321 So.2d 819 (La.App. 1st Cir. 1975); Watson; Brandon; Rue; supra. The duty to maintain safe highways, including shoulders, extends to persons in other vehicles who are likely to be injured when another vehicle goes out of control because of a negligently maintained shoulder. Sinitiere, supra.

For the reasons previously mentioned in connection with our finding that the shoulder constituted a vice or defect in the highway, we conclude that it also constituted a hazardous condition. The question now becomes did the Department have actual or constructive notice of the condition and fail to take corrective action within a reasonable time.

Our review of the photographs taken by Trooper Taylor on the date of the accident of the shoulder of the road at the accident scene, reveal that they contain no indication that the edge drop off, which was a contributing cause of the accident, came into being only a short time before the accident occurred. On the contrary the pictures would indicate that the condition was of long-standing. Trooper Taylor testified that he inspected the accident scene in April, 1980, about one year after the accident, and the condition of the edge drop off reflected in the pictures remained unchanged during this period of time.

Rogers, the Department’s Jackson Parish Maintenance Superintendent, testified that he performed a weekly inspection on La. Hwy. 34, including the area of the accident site. He testified he made the inspection by driving his automobile over the road. He acknowledged that he did not do any edge drop off maintenance until the drop off reached a depth of 4", although Department regulations required drop off maintenance when the drop off exceeded 1". He did not know the depth of the drop off at the accident scene on the date it occurred. The edge drop off reflected in the pictures are so apparent there is no reason why Rogers should not have observed them during his weekly maintenance inspection tour. Rogers knew that Hwy. 34 was plagued with edge drop off problems and knew that traffic like that on Hwy. 34 increased shoulder problems. There had been other shoulder related accidents in the months preceding the present accident. However, despite these facts no shoulder maintenance was performed on Hwy. 34 from October, 1978 until the accident.

While there is no direct testimony that the edge drop off at the accident scene existed for a substantial period of time before the accident, we conclude the pictures taken on the date of the accident, along with Trooper Taylor’s testimony, together with the other circumstances mentioned, provide substantial support for the trial judge’s conclusion that the Department had actual or constructive knowledge of the defect and was liable under the negligence theory.

This specification of error is without merit.

SPECIFICATION NO. 4

We now turn to appellant’s final specification of error: that the trial judge erred by awarding excessive damages. The Department did not address this assignment in oral argument and in its brief it contests only the award of general damages to Randy W. Smith for his own injuries and the award of damages to Eddie Smith for his son, Kevin.

The trial judge awarded $125,000 to Randy W. Smith for his personal injuries and disability. The Department contends that an award of $84,000 would be more appropriate and cites Parker v. South La. Contractors, Inc., 370 So.2d 1310 (La.App. 1st Cir. 1979).

The trial judge awarded $600,000 for Kevin Smith’s pain, suffering and permanent physical disability, and $600,000 for his loss of earning capacity. The Department suggests that an award of $500,000 would be more appropriate and cites Carollo v. Wilson, 353 So.2d 249 (La.1977).

The excessiveness of a damage award is determined by the peculiar facts and circumstances of the particular case; only if the award is clearly excessive on the record may we look to other cases to determine the highest award which would not be an abuse of discretion. Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Carollo, supra. The record fully justifies the awards which the Department characterizes as excessive.

Randy W. Smith suffered the following injuries: fractured ribs, a fractured eye socket, a fractured jaw, a fractured femur, and lacerations to his left elbow. Smith’s jaw had to be wired shut and he was in traction for eight weeks for treatment of his injuries. Due to the leg injuries Smith’s left leg is now %" shorter than his right, there is a 50% chance he will develop arthritis in his knee and a lesser possibility that the knee will require surgical replacement. These injuries and their treatment, including surgery, caused Smith much pain and at the time of the trial he still experienced pain and discomfort from walking. His treating orthopedic estimated he had 50% disability to perform work which required climbing and his offshore job that he had at the time of the accident required climbing. This doctor also testified he had 15 to 20% permanent disability as related to his leg injury.

Kevin Smith suffered contusions and damage to the brain and brain stem, a basal skull fracture, a fractured femur, clonus, spasticity, aspiration pneumonia and rigidity of his body as a result of the accident. Kevin’s injuries were so severe that Kevin almost certainly would have perished at the accident scene but for the quick and skillful administration of life saving techniques by Trooper Taylor.

Kevin’s left leg is now lh" shorter than his right and his use of his right arm and hand is so impaired that he now uses his left hand as his dominant hand. Kevin, who was five at the time of the accident, was hospitalized for 62 days, the first 10 in intensive care. Kevin’s leg injury required surgery. The period of treatment and recovery of the child was marked by extensive pain.

By far the most unfortunate aspect of this tragic case is the effect the brain injuries have had on young Kevin. He has been left with an I.Q. of 69 which is insufficient to allow him to complete even a high school education. Further, the injuries have produced a severe personality change. The formerly quiet and reserved child is now outgoing, talkative and hyperactive.

The physical injuries resulted in the child being permanently totally disabled to- perform manual labor. The mental impairment is so severe that he is incapable of acquiring even a high school education. These combined circumstances establish that Kevin will be able to earn little, if any, income during his lifetime. The award for loss of earning capacity compensates only for what he would have earned if employed at slightly more than minimum wage.

There was no abuse of discretion in the awards to Randy W. Smith or to Eddie Smith for Kevin.

This specification of error is without merit.

The judgment appealed from is AFFIRMED and all costs are taxed against appellant.

      . C.C. art. 2317: We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.