author: BLANCHE, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Timothy P. SKIPPER.
    No. 66655.
    Supreme Court of Louisiana.
    July 7, 1980.
    Rehearing Denied Sept. 12, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-
    oulides, Dist. Atty., Abbott J. Reeves, Philip J. Boudousque, Asst. Dist. Attys., for plaintiff-appellee.
    Indigent Defender Program, Jack Quarles, Gretna, Dalton, Gillen & Roniger, Sam Dalton, Jefferson, Ralph S. Whalen, Jr., Walter J. Rothschild, Oestriecher & Whalen, New Orleans, for defendant-appellant.
   BLANCHE, Justice.

The defendant, Timothy Skipper, was charged by bill of information with two counts of cruelty to a juvenile in violation of La. R.S. 14:93. Subsequent to defendant’s waiver of trial by jury, the trial judge found defendant guilty as charged and sentenced defendant to five years at hard labor and fined him $1,000 plus court costs. The defense now appeals on the basis of six assignments of error.

On January 20, 1979, Virginia Skipper brought her five year old son, Barry Pontiff, to the emergency room of East Jefferson Hospital. Young Barry had second and third degree burns on both feet and on the lower part of both legs (the left leg had a sock type burn which extended from the middle of the calf downward) and had bruises all over his body. He was also so withdrawn that he showed no signs of pain and would not talk.

At trial, both Barry and Larry Pontiff, Barry’s seven year old brother, testified that Barry’s feet were burned when their stepfather, the defendant, put Barry into a tub of hot water. They also testified that defendant had whipped Barry on various occasions with a belt and with a stick. Officer Charles Lee testified concerning a statement given by defendant to the police. Defendant claimed that Barry’s legs were burned when Barry, while unsupervised, ran the hot water into the bathtub and got into the tub on his own, and that the bruises occurred when Barry fell off a skateboard. He did admit that in the past, he had whipped Barry with a belt.

Dr. Herbert Rothschild, an expert on the battered child syndrome, testified that in his opinion, both the burns and the bruises could only be the result of child abuse. He stated that the injuries were not consistent with defendant’s explanation as to how Barry had received them. As to the burns, he rendered the opinion that it was impossible for a child to get into a tub of hot water on his own and to burn both feet at the same time because no person steps into a bathtub except by putting one foot first. Also, as to the bruises, he believed their haphazard and linear nature indicated they were caused by something striking the child and were not all inflicted on the same occasion. He also opined that a skateboard fall ought not cause bruises over the entire body. Based on this evidence, the trial judge found defendant guilty as charged.

Assignment of Error Number 1

Defense counsel contends the trial judge erred in not granting his motion for a judgment of acquittal on the ground that the state failed to prove Jefferson Parish was proper venue.

All trials must take place in the parish where the offense occurred unless changed. La.Const. art. 1, § 16 (1974); C.Cr.P. art. 611. While the law requires the state to prove venue beyond a reasonable doubt at trial, C.Cr.P. art. 615, State v. Guillot, 353 So.2d 1005 (La.1977), our review, because venue is a factual question, is limited on appeal to whether the state submitted some evidence of proper venue. State v. Guillot, supra; State v. Lejeune, 352 So.2d 619 (La.1977); State v. West, 319 So.2d 901 (La.1975).

After a review of the record, we find the state submitted evidence of proper venue. Consequently, this assignment is without merit.

Assignment of Error Number 2

Defense counsel contends defendant’s conviction should be reversed because he did not knowingly and intelligently waive his right to a jury trial as is required by both the constitution and statutory law. La.Const. art. 1, § 17 (1974); C.Cr.P. art. 780.

The minutes reflect that on 10/15/79, trial by jury was waived and defendant was present and represented by counsel at that time. However, counsel contends the record must affirmatively show the trial judge informed defendant personally of his right to a jury trial and determined that defendant knowingly and intelligently waived that right.

This complaint was first raised in defense counsel’s written assignments of error for appeal. The proper procedural vehicle for claiming defendant did not knowingly waive his right to a jury trial is a motion in arrest of judgment, La. C.Cr.P. Art. 859, although this Court has reviewed that alleged error where it was raised in a motion for a new trial. State v. Sharp, 338 So.2d 654 (La.1976). However, we will not consider an objection raised for the first time on appeal, C.Cr.P. art. 841; State v. Valentine, 364 So.2d 595 (La.1978); State v. Stoltz, 358 So.2d 1249 (La.1978); State v. O’Blanc, 346 So.2d 686 (La.1977), for the reason that any such objection should first be made in the trial court in order that the trial judge be presented with the opportunity to correct any such error. State v. Valentine, supra; State v. Lee, 346 So.2d 682 (La.1977).

Consequently, defense counsel’s contention that defendant did not waive his right to a jury trial, first urged on appeal, is not properly before us for review.

Assignments of Error Numbers 3 and 4

Defense counsel contends the trial judge erred in ruling that both Larry Pontiff, age 7, and Barry Pontiff age 5, were competent to testify. Defense counsel complained, both at the time of the rulings and in a motion for a new trial, that the two children lacked sufficient understanding to be witnesses.

La. R.S. 15:469 provides:

“Understanding, and not age, must determine whether any person tendered as a witness shall be sworn; but no child less than twelve years of age shall, over the objection either of the district attorney or of the defendant, be sworn as a witness, until the court is satisfied, after examination that such child has sufficient understanding to be a witness.”

A trial judge’s ruling as to the competency of a child witness is entitled to great weight upon appeal because he has had the opportunity to see and hear the child. State v. Thompson, 364 So.2d 908 (La.1978); State v. Noble, 342 So.2d 170 (La.1977); State v. Francis, 337 So.2d 487 (La.1976).

The trial judge examined both Larry and Barry to determine their understanding. As to Larry, this 7 year old answered in the affirmative when asked if he understood the difference between telling the truth and not telling the truth, and also when asked if he understood why he was in court. He testified that his brother was burned when Timothy (the defendant) put him in hot water. He also said Timothy had whipped his brother with a stick and a belt. He was able to handle the defenses attorney’s questions concerning who had brought him to court, whether anyone had told him what to say, and whether what he told the judge was what he actually saw. Nothing in his testimony leads us to believe the trial judge abused his discretion in ruling that Larry was competent to testify.

Five year old Barry, the victim, also answered in the affirmative when asked if he understood why he was in court and if he knew he had to be truthful (although he did not know what a “fib” was). He understood the judge wanted him to tell his story about what happened to him. He testified that Timothy had whipped him. When questioned about the burns on his legs, he answered as follows:

“Q. How with [were] your legs burned?
A. In hot water.
Q. How were they put [in] this hot water?
A. He put me in it.
Q. Who is he?
A. Timothy.”

As with Larry, we do not believe the trial judge abused his discretion in deciding that Barry had sufficient understanding to testify. It was the trial judge who had the advantage of observing the manner of both Barry and Larry, a factor of great importance in determining their understanding.

Accordingly, these assignments are without merit.

Assignments of Error Numbers 5 and 6

Defense counsel contends the trial court erred in denying his motion for acquittal and motion for a new trial based on the ground that the state failed to prove defendant intentionally mistreated Barry, thereby causing unjustifiable pain or suffering to the child, essential elements of the crime for which defendant was convicted. La. R.S. 14:93.

After a review of the record, we are convinced that this assignment is without merit.

For the above reasons, the conviction and sentence of defendant are affirmed.

AFFIRMED.

DIXON, C. J., concurs.

CALOGERO, J., concurs and assigns reasons.

CALOGERO, Justice,

concurring.

I concur. However, I disagree with the implication of the majority’s treatment of assignment of error No. 2. A defendant who does not knowingly and intelligently waive his right to trial by jury cannot be expected at the time of waiver to object that he doesn’t understand his right to trial by jury. He may not realize that he has this right until after the time for filing a motion for a new trial or a motion in arrest of judgment has passed and an appeal to this court is pending. C.Cr.P. Arts. 853, 861.

In this circumstance a procedural vehicle available to defendant is to request this court to remand the case to the trial court for a hearing on his complaint. State v. Shannon, 360 So.2d 193 (La.1978), State v. Jackson, 362 So.2d 853 (La.1978). Inasmuch as defendant has not made such a request, I concur in the majority opinion.


source: Caselaw Access Project

license: Public Domain

text:
    Mrs. Nora ARINDER, and Minor Children, Lori Lynn Arinder and Charles Scott Arinder v. PROFESSIONALS’ TRANSPORTATION CO., INC., Joe N. Miles and Sons, Inc. and United States Fidelity and Guaranty Co.
    No. 67183.
    Supreme Court of Louisiana.
    May 2, 1980.
   In re Professionals’ Transportation Co., Inc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Washington. 383 So.2d 1294.

Denied.


text:
    OAKSHIRE REALTY CO., INC. v. BOWMAN BUSINESS COLLEGE, INC.
    No. 67,627.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Charles P. Rozands, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Terre-bonne. 386 So.2d 664.

Denied.


text:
    Junior Victor MELANCON v. UNITED ASSOCIATION OF JOURNEYMEN, etc., et al. Dale BRIGNAC v. UNITED ASSOCIATION OF JOURNEYMEN, etc., et al.
    No. 67,737.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Junior Victor Melancon and Dale Brignac, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of West Baton Rouge, 18th Judicial District Court. 386 So.2d 669.

Denied.


text:
    REPUBLIC NATIONAL LIFE INSURANCE COMPANY v. HOSPITAL INVESTORS, INC.
    No. 67,733.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Hospital Investors, Inc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 386 So.2d 667.

Denied.


text:
    Raymond K. CAILLOUETTE et al. v. CHEROKEE BEACH & CAMPGROUNDS, INC., et al.
    No. 67,722.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Raymond K. Caillouette et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipahoa, 24th Judicial District Court. 386 So.2d 666.

Denied.


text:
    Malcolm Y. BRIAN et al. v. Robert E. BOWLUS et al.
    No. 67,728.
    Supreme Court of Louisiana.
    July 7, 1980.
   In re Robert E. Bowlus et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. No. 13,137. 386 So.2d 662.

Granted.

BLANCHE, J., recused.


text:
    STATE of Louisiana v. Raymond BAKER.
    80-K-1860.
    Supreme Court of Louisiana.
    Aug. 19, 1980.
   In re Raymond Baker applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Lafayette. No. 44057.

Denied. Adequate remedy by review in event of conviction.


text:
    STATE of Louisiana v. Bernel FONTENOT.
    No. 80-K-1888.
    Supreme Court of Louisiana.
    Aug. 19, 1980.
   In re Bernel Fontenot, applying for remedial writs and stay order. Parish of Evangeline. No. 23,495.

Granted. Ruling of trial judge set aside. Defendant may withdraw plea of “not guilty” and enter plea of “not guilty and not guilty by reason of insanity.”


text:
    STATE of Louisiana v. Robert Wayne WILLIAMS.
    No. 65,563.
    Supreme Court of Louisiana.
    Aug. 19, 1980.
   In re Robert Wayne Williams, applying for stay of execution. East Baton Rouge Parish. 383 So.2d 369.

Granted. Inasmuch as defendant’s execution is scheduled for August 27, 1980 and the Supreme Court of the United States has granted defendant’s newly retained counsel until October 16,1980 to file a petition for a writ of certiorari, defendant’s execution is stayed until the Supreme Court of the United States takes final action on his petition or until such time, in advance of that date, as this Court deems proper.

WATSON, J., dissents being of the opinion that the stay order should issue from the United States Supreme Court.


text:
    STATE of Louisiana v. Frank A. GOLMAN.
    80-K-1861.
    Supreme Court of Louisiana.
    Aug. 21, 1980.
   In re Frank A. Golman applying for writ of certiorari. Parish of Orleans. No. 275-114, “B”.

On representation by the District Attorney that the state is withdrawing its motion to have defendant’s blood and saliva taken and that the state is proceeding via a search warrant, this application is moot.


text:
    STATE of Louisiana in the Interest of Rhonda JARRELL.
    No. 80-K-1902.
    Supreme Court of Louisiana.
    Aug. 21, 1980.
   In re Rhonda Jarrell, applying for writs of habeas corpus and certiorari. Parish of St. Tammany. No. 146JJ.

Application transferred to the First Circuit Court of Appeal.


text:
    STATE of Louisiana v. Tyronne A. DUNN.
    No. 80-K-1894.
    Supreme Court of Louisiana.
    Aug. 21, 1980.
   In re Tyronne A. Dunn, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Orleans. No. 273-147.

Stay order denied; writ granted.


text:
    STATE of Louisiana v. Debbie COOPER.
    No. 80-K-1920.
    Supreme Court of Louisiana.
    Aug. 21, 1980.
   In re Debbie Cooper, applying for writs of certiorari, prohibition, mandamus and Parish of Tangipahoa. No. stay order. 43075.

Granted.


text:
    CAPITAL BANK & TRUST COMPANY v. Freddie Lee LACEY and Edward J. Lacey.
    No. 67,416.
    Supreme Court of Louisiana.
    Aug. 21, 1980.
   In re Freddie Lee Lacey and Edward J. Lacey, on motion for contempt of court. East Baton Rouge Parish. No. 212,741.

It is ordered that the motion be transferred to the district court for action.


text:
    STATE of Louisiana v. Lloyd TRAMMELL.
    No. 80-K-1930.
    Supreme Court of Louisiana.
    Aug. 22, 1980.
   In re Lloyd Trammell, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of East Baton Rouge. No. 11-79-419.

Denied.


text:
    STATE of Louisiana v. Dianna DANIELS.
    No. 80-K-1862.
    Supreme Court of Louisiana.
    Aug. 25, 1980.
   In re Dianna Daniels applying for writs of certiorari, prohibition, mandamus and stay order. City Court of Shreveport. No. W-1163.

Writ denied.


text:
    STATE of Louisiana v. Norris VESSEL.
    No. 80-K-1957.
    Supreme Court of Louisiana.
    Aug. 29, 1980.
   In re Louisiana Department of Corrections, applying for supervisory writs, or writ of review, and stay order. Orleans Parish. No. 257-212.

Granted. Vessel is ordered to make an appearance through counsel.


text:
    STATE of Louisiana v. Joseph G. MADERE. Joseph G. MADERE v. STATE of Louisiana.
    No. 80-C-1974.
    Supreme Court of Louisiana.
    Aug. 29, 1980.
   In re State of Louisiana through the Department of Public Safety, applying for supervisory writs. Parish of St. John the Baptist. Nos. 6879 C/W 7273.

Application denied.


author: LABORDE, Judge. FORET, Judge.

text:
    David THIBODEAUX et al., Plaintiffs-Appellees, v. WESTERN WORLD INSURANCE CO. et al., Defendants-Appellants.
    No. 7712.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.
    On Rehearing Aug. 12, 1980.
    John P. Navarre, Oakdale, for defendants-appellants.
    Guillory, McGee & Mayeux, Donald L. Mayeux, Eunice, for plaintiffs-appellees.
    Gist, Methvin, Hughes & Munsterman, David A. Hughes, Alexandria, for defendant-appellee.
    Before FORET, STOKER and LA-BORDE, JJ.
   LABORDE, Judge.

MOTION TO DISMISS

The plaintiffs-appellees, David L. Thibo-deaux and Donald M. Perron, and defendant-appellee, Western World Insurance Company, move to dismiss the appeal of defendant-appellant, Security Timber Company, Inc. on the grounds that the appeal was not timely.

We dismiss the appellant’s appeal.

Formal judgment was signed and rendered in this matter on April 26, 1979.

On that date, April 26, 1979, the trial judge signed an order at the request of appellant, Security Timber Company, ordering all parties to show cause on May 29, 1979, why a new trial should not be granted.

On May 29,1979, the motion for new trial was argued and submitted. At the conclusion of the argument, the trial judge denied the appellant’s motion for the new trial. The minutes reflect that counsel for all parties were present in court on that date.

On October 5, 1979, Security Timber Company obtained a “judgment denying its motion for a new trial”. On that same day, Security Timber Company, Inc. obtained an order granting it a suspensive appeal of the judgment of April 26, 1979.

According to C.C.P. Art. 2123, a suspen-sive appeal must be taken within thirty days of:

“. . . (2) the court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or . . .”

C.C.P. Art. 1914 provides that notice of the court’s refusal to grant a timely application for new trial is required only if the application for new trial is taken under advisement by the trial court. In the present case, the motion was not taken under advisement, but was rendered at the conclusion of the argument. Therefore, no notice was required by Article 1914.

The appeal taken October 5, 1979 was taken more than four months after the court’s denial of the application for a new trial on May 29, 1979. The appeal cannot be maintained either as a suspensive or devolutive appeal unless effect is given to the signing of the formal judgment denying the motion for the new trial on October 5, 1979.

The judgment of October 5, 1979 cannot be allowed to extend the time delays. In Doolan v. Doolan, 349 So.2d 980 (La.App. 3rd Cir. 1977), we faced the same situation and stated:

“As to a motion for new trial which is not taken under advisement, the jurisprudence is well settled that no notice of judgment is required, even in cases where a formal judgment denying the motion is later rendered.”

In Kleinpeter v. Kleinpeter, 246 So.2d 240 (La.App. 1st Cir. 1971), the court stated:

“. . .a judgment denying an application for a new trial is interlocutory which need not be signed to be effective where the motion itself was not taken under advisement by the trial judge so as to require notice of the signing of the judgment in compliance with C.C.P. Article 1914.”

As the appellant was not entitled to notice according to Article 1914 of the Code of Civil Procedure, the delay began to run where the application for a new trial was denied on May 29, 1979. Appellant’s appeal, taken some four months after the denial of the new trial is too late. We are without jurisprudence to hear an untimely appeal.

APPEAL DISMISSED.

FORET, Judge.

ON REHEARING

This matter is before us at this time on a motion for rehearing. We previously dismissed the appeal taken by defendant-appellant, Security Timber Co., Inc., on the grounds that the appeal was not perfected timely. Since the original hearing on the motion to dismiss, additional facts have been presented to this court. We now recall our previous order dismissing the appeal and reinstate defendant’s appeal.

Plaintiffs, David Thibodeaux and Donald Perron, originally instituted suit against Western World Insurance Company and Security Timber Company, Inc. Following a trial, judgment was rendered April 26,1979, in favor of plaintiffs, and against Security Timber Company, Inc. Plaintiffs’ demands against defendant, Western World Insurance Company were rejected. Security Timber Company’s motion for new trial was orally denied on May 29, 1979. On October 5, 1979, the trial judge signed a formal judgment denying appellant’s motion for new trial. On the same day, appellant perfected a suspensive appeal from the April 26, 1979 judgment. The appellees filed a motion to dismiss the appeal on the basis that it was perfected untimely. We granted this motion to dismiss. Thereafter, appellant filed this motion for rehearing.

Appellant contends that the trial judge refused to sign its order for suspensive appeal until a formal judgment denying appellant’s motion for a new trial was presented and signed.

Following argument on appellant’s motion for new trial, the court stated,

“Okay. Gentlemen, I am going to rule on this now and I’ll deny the motion for a new trial. Prepare a judgment and send it to me.”

After the denial of its motion for new trial, appellant filed a motion for suspensive appeal. In September, 1979, appellant’s counsel received a call from Judge Cored, the presiding judge, informing counsel that he could not sign the order for suspensive appeal until a formal judgment denying appellant’s motion for new trial was presented and signed. On October 5, 1979, a formal judgment denying appellant’s motion for new trial was signed. Thereafter, appellant immediately obtained an order for sus-pensive appeal.

We held, at the original hearing on the motion to dismiss, that appellant’s motion for suspensive appeal was perfected untimely. That finding was correct. However, the untimeliness of the appeal was not the fault of appellant. Appellant filed a motion for appeal after its motion for new trial was orally denied. The trial judge refused to sign the order for appeal until a formal judgment denying appellant’s motion for new trial was signed on October 5, 1979. Since appellant’s motion for new trial was not take under advisement, the judgment denying the motion did not have to be signed. Kleinpeter v. Kleinpeter, 246 So.2d 240 (La.App. 1st Cir. 1971).

C.C.P. art. 2161 provides, in pertinent part,

“An appeal shall not be dismissed because the trial record is missing, incomplete or in error no matter who is responsible, and the court may remand the case either for retrial or for correction of the record. An appeal shall not be dismissed because of any irregularity, error or defect unless it is imputable to the appellant.” (Emphasis supplied)

In the instant action, the appeal was perfected untimely because the trial judge erroneously refused to sign the appeal order until a formal judgment denying appellant’s motion for new trial had been signed. The failure of the trial court to promptly consider and sign the appellant’s motion for a suspensive appeal is not an irregularity, error or defect imputable to the appellant. Hall v. Board of Supervisors, Southern University, etc., et al., 387 So.2d 643 (La.App. 1st Cir. 1980).

For the foregoing reasons, we find that the error or defect is not and should not be imputable to the appellant and that this appeal was timely perfected. Therefore, we recall and vacate our previous judgment dismissing the appellant’s appeal, and we further hold that this court has jurisdiction to consider this appeal.

APPEAL REINSTATED.


author: LEMMON, Judge. REDMANN, Judge,

text:
    Mary Elizabeth SAUNDERS v. NEW ORLEANS PUBLIC SERVICE, INCORPORATED and Powell Blair, Jr.
    No. 10687.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    Rehearing Denied Sept. 15, 1980.

      Harry T. Widmann and William R. Alford, Jr., New Orleans, for plaintiff-appel-lee.
    James Maher, III, New Orleans, for defendants-appellants.
    Before REDMANN, LEMMON and BOU-TALL, JJ.
   LEMMON, Judge.

Defendants, a public carrier and its driver, have appealed from a judgment which awarded plaintiff $2,900.00 in damages for personal injuries sustained as a passenger on a city bus. On appeal defendants’ only assignment of error relates to the interlocutory judgment which overruled their exception of res judicata and invalidated the earlier contract of compromise as one in which consent was produced by mutual error.

I

At the trial of the exception defendants’ claims representative testified: He called plaintiff on the day after the accident, but she indicated she would like to wait a few days before discussing the claim. After several calls plaintiff came to his office a week after the accident and agreed to be examined by a doctor in the company’s medical department. When she returned after the examination, he called the doctor, who recited a diagnosis of a minor contusion of the shoulder which should resolve in one week. Relating the diagnosis to plaintiff and inquiring if she was ready to negotiate settlement of the claim, he offered her $100.00 in compromise, which she accepted without hesitation.

Plaintiff, the only other witness, testified: The doctor’s examination was strange in that he stood across the room without touching or examining her, or asking her to remove the long-sleeved blouse which covered the egg-shaped lump on her right arm. The doctor simply instructed her to raise her arms above her head and asked if the movement produced pain, to which she responded affirmatively. He then told her she had a minor muscle bruise and “should be out of difficulty in a week or so”. Relieved by the assurance of a professional medical officer, she was happy to accept $100.00 offered by the adjuster “for her troubles”.

The doctor did not testify, and his report (introduced without objection) gave no details of the examination, except that “tenderness over right shoulder” was listed under “Objective Evidences of Injury”.

Finding as a fact that the doctor did not truly conduct a physical examination, the trial court concluded the parties would not have settled the case for $100.00 if they had known what plaintiff’s “true condition” was or that the doctor had not examined plaintiff in reporting his diagnosis and prognosis. The Court therefore overruled the exception.

At the subsequent trial on the merits it was established that when plaintiffs complaints after the November 10, 1975 accident continued, she consulted two other physicians before finally being examined on February 16,1976 by an orthopedic surgeon who diagnosed pre-existing bursitis aggravated by trauma and prescribed medication which accomplished relief and eventual recovery. The trial court awarded $2,900.00, and defendants appealed, limiting the issues to the validity of the contract of compromise.

II

Compromises are favored in law, and the burden of proving the invalidity of a compromise is on the party attacking the contract. The mere fact that a bad bargain was made is not in itself a sufficient ground for invalidating the compromise. However, since an essential element of every contract is consent by the parties with regard to a matter mutually understood, reciprocally communicated, and resulting from a free and deliberate exercise of the will, a contract may be invalidated if the consent was produced by error. C.C. art. 1819. Nonetheless, the only error that invalidates a contract is an error in some point which was a principal cause for making the contract. C.C. art. 1823.

In the present case defendants contend that an incorrect prognosis (as opposed to diagnosis) is simply an erroneous opinion and is not an error of fact which invalidates a compromise. Sec. 71 A.L.R.2d 82 (1960). However, the compromise in this case was not invalidated by the trial court because it was based on an error involving an incorrect prognosis of the future consequences of a correctly diagnosed present injury, but because it was based on mutual error that a proper medical examination had been performed and that plaintiff had sustained only a minor contusion which would be resolved swiftly.

The principal cause for making the contract of compromise was the fact, relied on by both parties on the basis of the medical diagnosis, that plaintiff’s injury was simply a minor contusion. The record established •that, in addition to the minor contusion, plaintiff sustained a severe aggravation of pre-existing (but previously dormant) bursitis. From this evidence one could reasonably suppose that the parties would not have consented to the compromise for $100.00 if the complete and accurate diagnosis had been stated. Thus, the trial court correctly invalidated the contract based on a mutual mistake of fact as to the principal cause for the parties’ consent.

AFFIRMED.

REDMANN, J., dissents and assigns reasons.

REDMANN, Judge,

dissenting.

If plaintiff had rushed to trial and got a $100 judgment for her bruise on her arm it would be res judicata. So is her $100 compromise.

The contract of compromise is subject to rescission for mutual mistake, but no more so than any other contract. The only error that invalidates is one on a “principal cause,” C.C. 1823, and it is the “reality of the cause,” C.C. 1824-not the size of the cause-as to which alone error invalidates.

Perhaps compromise believing the only injury is an arm bruise is rescindable if concealed internal organ injury is later discovered. But compromise believing the only injury is a minor arm injury should not be rescindable when the only injury is a minor arm injury; and the only complaint is that the injury took longer to heal than the parties expected. There was no error as to the injury, as to the reality of the cause.

Although it contradicts the theory of compromise and is therefore repugnant to have to discuss the conflicting evidence as to whether plaintiff had any injury other than a minor arm injury, two things should be noted. First, the trial judge disbelieved that plaintiff “suffered the acute discomfort that she described. We believe she was uncomfortable as a result of the accident, but . . . $650 a month for . four months appears to be reasonable.” Second, Dr. LaRocca, who three months after the accident found bursitis, testified that bursitis develops in “a matter of a day or two” and he would attribute plaintiff’s bursitis to the accident only if “there was a continuity of the symptomatology from the time of the accident until the time I began treating her.” Because the compromise was made seven days after the accident, plaintiff would by then have had the bursitis . if the accident caused it, and at that time she should have been unable to elevate her arm beyond 90 degrees (as testified by Dr. LaRocca): but in fact she raised them above her head, she testified, in the compromise-time medical examination that she deemed strange but that established that she did not then suffer bursitis.

And finally, if we assume that the late-appearing and short-lived bursitis was the result of the accident, that does not justify annulling the compromise: aggravation of a pre-existing bursitic condition is merely the explanation of why the minor injury took longer to clear up. The injury was still minor and not different in kind from the injury for which the parties compromised.

The exception of res judicata should be maintained.

      . Thus, this was an error as to a present fact, rather than as to opinion concerning future development (the unanticipated consequence of a presently known injury).

      . It is therefore not necessary to reach the argument that since defendants, whose employee examined plaintiff, knew or should have known the nature and extent of the injury, plaintiffs consent to the compromise was not knowingly and fairly given, but rather was obtained by misrepresentation of defendants’ employee.


author: BOUTALL, Judge.

text:
    CIRCLE, INC. v. BOARD OF SUPERVISORS, SEWERAGE DISTRICT NO. 2, ST. BERNARD PARISH, Louisiana.
    No. 10818.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    Rehearing Denied Sept. 15, 1980.

      Sam 0. Buckley, Keiler & Buckley, River Ridge, for Circle, Inc., plaintiff-appellant.
    John F. Rowley, Dist. Atty., 34th Judicial District Court, Parish of St. Bernard, Marcel J. Gueniot, Asst. Dist. Atty., for Board of Supervisors, Sewerage District No. 2, St. Bernard Parish, defendant-appellee.
    Before BOUTALL, SCHOTT and CHE-HARDY, JJ.
   BOUTALL, Judge.

Circle, Inc. brought suit on a public sewerage contract against the Board of Supervisors, Sewerage District No. 2, St. Bernard’ Parish, La. in the amount of $258,384.84, contending that amount is owed because of extra work, forced delays in performance, changes in the contract and the location of performance of the contract, and several other breaches of contract, and in the alternative, for an amount due and based upon unjust enrichment and quantum meruit. The defendant denied that it owed any sum beyond the contract amount, with the exception of work done under a late change order and certain extra work not covered by a change order but agreed upon by letter. The trial court rendered judgment in the amount of $6,896 for these two extra items and denied plaintiff’s claim for any other payments. Plaintiff has appealed.

The key issue about which this suit revolves is the effect of change order No. 2 to the original contract. The original contract, dated September 12, 1967, provided that the contractor would construct certain sanitary sewerage system extensions and collection lines enumerated “in consideration of the unit prices for the work herein specified totalling Two Hundred Eighty One Thousand Seven Hundred Seventy Eight Dollars and Twenty Six Cents ($281,-778.26) in the proposal to be paid by the Owner to the Contractor at the time and in the manner hereinafter provided * * * ”

After .entering the contract, it became apparent to the parties that because of unexpected soil conditions in some areas, and a change in location in other areas caused by difficulty of obtaining right of way and existence of other obstructions to installation of the line, that some changes were necessary in the proposed construction plan. There were considerable negotiations between the parties as shown both in the testimony and in the letters to each other introduced in evidence. This culminated in the execution of change order No. 2 which provided for the relocation of certain collection lines and raising and redesign of others, granting an extra 56 calendar days for completion and adding an additional fee of $3,020.01. The change order concluded with the following provisions:

“The contractor further agrees to perform all of the foregoing work in accordance with the established unit prices, however, total construction cost for this work is not to exceed the original contract amount, plus the five percent contingency allowance, or $295,867.17. Additional work authorized by the district subsequent to this change order, and the previously authorized 255 lineal feet of additional sewer line installed at Cane Road and Farmsite is not to be included in this total approved construction cost.”

Appellant contends that the change order is not supported by any consideration, that it does not preclude the contractor from being paid his reasonable added cost resulting from delays, changes and other breaches of contract enumerated. It contends that it would not have entered into such sweeping changes for the additional sum of $3,020.01, and that that amount is so small that it constitutes no consideration. To this proposition we answer that the change order was obviously not entered into simply upon the consideration of the $3,000 plus supplement. It is obvious that the entire contractual obligation is involved in the making of the change order and that it was the subject of much consideration and negotiation between the parties. The change order itself is plain and understandable, and it means exactly what it said. It is obviously a compromise between the parties after negotiation in which all of the rights and obligations of each were explored and finally settled by the signing of the change order. Contracts made between such parties have the force of law between them, and this contract clearly provides that the contract price shall not exceed $295,867.17. Although plaintiff may have perhaps made a bad bargain, he did make a legally binding contract and he is entitled to recover only that amount.

As to appellant’s other issues, that the Board of Supervisors caused unnecessary delays and other breaches of contract which caused the contractor extra expenses and damages, the evidence presented does not support that proposition. Although the trial judge in his reasons for judgment made no remarks as to the credibility of the witnesses, the record shows that there is sufficient evidence on behalf of the defendants to show that most of the delay that took place on its behalf took place before the entry of change order No. 2, and as a consequence is governed by the execution of that change order. The evidence of certain items of expense and delay incurred thereafter is counter-balanced by equally as credible evidence that these conditions were not brought about by the defendant, and we conclude that a fair consideration of all of the evidence simply does not show violations of the contract by the Board of Supervisors which would permit recovery beyond the terms of the contract, or under any theory of unjust enrichment or quantum meruit.

Accordingly, for the reasons above expressed, the judgment appealed is affirmed.

AFFIRMED.


author: BARRY, Judge.

text:
    Dorothy SIMMONS v. WESTERN AND SOUTHERN LIFE INSURANCE CO.
    No. 11037.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    Rehearing Denied Sept. 15, 1980.

      Gordon Hackman, Boutee, for plaintiff-appellee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Samuel 0. Buckley, III, New Orleans, for defendant-appellant.
    Before BOUTALL, GARRISON and BARRY, JJ.
   BARRY, Judge.

Leslie Simmons signed an application to purchase life insurance from the defendant on March 15, 1977. The application was approved by the home office and the policy was dated April 9, 1977. The home office then returned the policy to defendant’s agent, Earl Owens, for delivery to the insured and collection of the initial premium. The first monthly payment was made May 16, 1977, followed by three successive monthly premium payments on June 20, 1977, July 15, 1977, and August 22, 1977. The insured, Leslie Simmons, died by accidental death on September 26, 1977.

The beneficiary and plaintiff Dorothy Simmons, decedent’s mother, made demand (through her attorney) on defendant for the face amount of the policy, $10,000.00, plus accidental death benefits of $20,000.00. Defendant refused payment on the premise that the policy had lapsed since the last monthly payment. The District Court rendered judgment in favor of plaintiff ordering payment of $30,000.00, plus a 6% penalty for nonpayment, legal interest, and costs.

The primary issue on appeal is whether the insured’s death occurred before the policy lapsed for nonpayment. If benefits are payable, appellant questions imposition of the penalty because it contends denial was for good cause.

In order to determine whether the policy had lapsed prior to Mr. Simmons’s death, it is essential that we first ascertain the effective date of the policy. Appellant argues that the “policy date” of April 9, 1977, is controlling because of the policy provision which states:

“A premium is due and payable on the policy date and on the day following the expiration of each premium payment. Thereafter during the lifetime of the insured . . . ”

Accepting April 9, 1977, as the effective date of the policy, four monthly payments from that date would keep the policy in force through August 9, 1977. The policy provides for a 31 day grace period following the last payment. Appellant contends that, including the grace period, the insurance policy lapsed on September 9, 1977 and no benefits are payable because insured’s death occurred on September 26, 1977.

Appellee urges that the policy became effective with the first payment made on May 16, 1977, and with three subsequent payments made the policy paid through September 16,1977. Addition of the 31 day grace period then clearly brings insured’s death on September 26, 1977 within the provisions of the policy.

It is undisputed that decedent paid the first premium on May 16, 1977. Earl Ownes, sales agent on the policy, testified that he attempted to “place the policy” with the insured on or before the policy date of April 9, 1977, and to collect the initial premium. The agent stated that he made numerous efforts to deliver the policy and secure payment but was unable to do so before May 16, 1977. In considering when the policy became effective it is important to note the language on the insurance application which provides:

“It is agreed that:
C. Except as provided in the receipt attached hereto, which is the only receipt authorized to be given, no insurance shall take effect unless and until the policy has been delivered and the first premium paid during the lifetime and good health of each person proposed for insurance.” (emphasis added).

This language is clear and unambiguous and forms a part of the policy issued to the insured. If there is language conflict between the application and the policy, our jurisprudence holds that uncertainties and ambiguities in insurance contracts are to be resolved in favor of the insured and against the insurer. LSA-C.C Art. 1957, Francis v. Universal Life Insurance Company, 223 So.2d 188 (La.App.3rd Cir., 1969), certiorari denied, 254 La. 781, 226 So.2d 771; Rodriguez v. Northwestern Nat. Ins. Co., 358 So.2d 1237, (La.1978).

Appellant cites Oil Well Supply Co. v. New York Life Ins. Co., 214 La. 772, 38 So.2d 777 (1949). There, as here, the policy provided that the insurance was to have effect upon delivery and payment of the first premium. In that case, however, the insured requested on the application that the policy become effective from the date of the application. An examination of decedent’s application in this case is silent on the effective date of the policy except as quoted above “. . .no insurance shall take effect unless and until the policy has been delivered and the first premium paid . ”. It is interesting to note Section 28 of the application which says: “Indicate any special request here.”, which is blank. If the insured orally requested to have the policy dated April 9, 1977, as appellant’s sales agent testified, or any other date, then agent Owens should have so noted.

A written conflict as to the effective date of a policy should be resolved in favor of the insured. If there is any uncertainty or ambiguity it must be construed in favor of the policy holder and against him who contracted the obligation. LSA-C.C. Art. 1957. We therefore conclude that a policy application, which has a specific provision for the policy to become effective when the policy is delivered and the first premium paid, clearly shows the intent of both parties notwithstanding standard policy provisions.

Since we hold that the policy became effective May 16, 1977, and the four monthly payments carried the policy through September 16, 1977, adding the 31 day grace period made the policy viable and in full force and effect at the time of insured’s accidental death on September 26,1977. It is therefore unnecessary to consider written notice requirements before a life policy lapses under LSA-R.S. 22:177.

Appellant questions imposition of the 6% penalty provided by LSA-R.S. 22:657(B). Appellee provided an affidavit to the insurer which showed decedent’s death as September 6, 1977, when in fact death occurred September 26, 1977. Thereafter, counsel for the beneficiary (appellee) tendered a monthly premium with the intent to reinstate the policy if that was necessary. On October 28, 1977, senior counsel for appellant wrote a letter to appellee’s attorney which stated “Our understanding is that the date of death was September 26.” Certainly the insurance company was aware that their insured died, whether it be September 6 or September 26, 1977.

After notification of death, appellant should have taken some positive steps to investigate the validity of the claim. However, it is difficult to say that the insurer acted in bad faith or without just cause when it withheld payment of the life insurance proceeds. LSA-R.S. 22:657 provides for payment of accidental death claims within 60 days after receipt of due proof of death unless the insurer has just cause. After the date of death was ascertained, a serious question remained concerning the effective date of the policy. We feel this was sufficient justification to withhold benefits until a judicial determination of the facts.

For the above reasons, the judgment appealed from is amended to eliminate the 6% penalty, and in all other respects affirmed with costs of this appeal assessed to defendant-appellant.

AMENDED and AFFIRMED.


text:
    Rev. Albert BOURGEOIS, Victoria Taylor, Cora Marzette and Clarence Walker v. Rev. Lawrence LANDRUM and Ebenezer Baptist Church of New Orleans.
    No. 11057.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 13, 1980.
    Rehearing Denied Sept. 15, 1980.
    Carolyn N. Hazard, and Michael B. McColloster, New Orleans, for plaintiffs-appellants.
    Harris, Stampley, McKee, Lombard & Cates, Sidney H. Cates, IV, New Orleans, for defendants-appellees.
    Before BOUTALL, GARRISON and BARRY, JJ.
   BARRY, Judge.

This dispute arose out of a demand by plaintiffs to examine the books and records of the defendant church which is a nonprofit corporation. Plaintiffs claim to be members of the church, which is not denied, and their demand to examine the books and records falls under LSA-R.S. 12:223(A) and (C) of the Louisiana Nonprofit Corporation Law.

Plaintiffs secured a court order to examine the church records, did so and were unsatisfied that all records had been produced. Subsequently, defendants filed an exception of no right of action and lack of jurisdiction over the subject matter. The trial court overruled the exception of no right of action, but maintained the exception of lack of subject matter jurisdiction and accordingly dismissed plaintiffs’ lawsuit.

Defendants-appellees do not contest appellants’ position as church members. Plaintiffs assert their right to examine the records “. . . in order to see for themselves how much money the church takes in and how the money is spent.” There is no allegation of misappropriation or mismanagement, only the desire to inspect the church records.

The trial judge relied on Henry v. Newman, 351 So.2d 1277 (La.App. 1st Cir., 1977) in sustaining the exception of lack of subject matter jurisdiction.

In Henry, supra, the dispute involved changing locations of the church building. The First Circuit defined the limited role which secular courts should assume in religious disputes in order not to interfere with constitutional guarantees of religious freedom. It determined that location of the church building was a purely ecclesiastical matter within the protection of the First and Fourteenth Amendments to the Constitution. The court, in dicta, agreed with plaintiffs that “it is ‘well settled that courts will not deal with spiritual or ecclesiastical matters pertaining to incorporated religious societies . . ., but . . . that ‘. . . it is equally well recognized that courts may and should deal with property rights involving such societies.’ ” 351 So.2d at 1279.

Where property disputes arise civil courts are not precluded from settling the issue. Presbyterian Ch. v. Mary E. B. Hull Mem. Pres. Ch., 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969); R. W. Jones, Sr., et al. v. Charles T. Wolf, et al., 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979).

When the matter at issue is not a dispute over property rights but possible dissension regarding church management in a religious society, then courts are not to interfere. The Supreme Court clearly stated their objective in Jones, supra, “to free civil courts completely from entanglement in questions of religious doctrine, polity and practice.” 99 S.Ct. at 3025.

A church organized under the provisions of our corporation statutes does not automatically subject itself to civil review in matters which are ecclesiastical in nature or absent a property dispute. Appellants provide no specifications to conclude that a property dispute exists. Accordingly, we agree with the trial judge in declining jurisdiction over the subject matter of this lawsuit.

The District Court judgment is affirmed with plaintiffs-appellants to pay all costs of this appeal.

AFFIRMED.

      .A. Every corporation shall keep at its registered office (1) records of the meetings of its members and directors, and of committees of the board, share and membership records giving the names and addresses of the members in alphabetical order by classes and series and the number of shares held by each, and records of its assets, liabilities, receipts, disbursements, gains, losses, capital and surplus; and (2) separate records of all trust funds held by it. Whenever membership is terminated, this fact shall be recorded in the share or membership record together with the date on which the membership ceased, and transfers of shares shall similarly be recorded.

      C. Every shareholder and voting member may examine in person, or by agent or attorney, at any reasonable time, the records of the corporation listed in subsection A of this section.

      . LSA-C.C.P. art. 927

      . LSA-C.C.P. art. 925


author: LABORDE, Judge.

text:
    Chester G. BOND, III et ux., Plaintiffs-Appellants, v. Cindy G. JACK et al., Defendants-Appellees.
    No. 7489.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 1980.
    Rehearing Denied July 31, 1980.

      Bolen & Erwin, Gregory S. Erwin, Alexandria, for plaintiffs-appellants.
    McBride & Brewster, Norman P. Foret, Lafayette, Gist, Methvin, Hughes & Mun-sterman, Dorwan G. Yizzier, Alexandria, Cooks & Chreitian, Sylvia R. Cooks, Lafayette, McLure & McLure, John G. McLure, Alexandria, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and LABORDE, JJ.
   LABORDE, Judge.

This is one of two appeals which come to this court following the trial of the consolidated suits.

Plaintiffs filed two lawsuits seeking damages for the death of their major son, Chester G. Bond, IV, and for his pain and suffering, medical expenses and property damage. The defendants herein are the driver of the vehicle, Cindy G. Jack, and her liability insurer, State Farm Mutual Automobile Insurance Company. The defendants in the companion suit are the uninsured motorist carriers for the deceased, Commercial Union Assurance Companies, and for his parents, Lumbermen’s Mutual Casualty Company. A separate decision is being rendered therein, Chester G. Bond, III, et ux. v. Commercial Union Assurance Companies et al., 387 So.2d 617 (La.App. 3rd Cir. 1980).

The deceased, Chester G. Bond, IV, was riding his motorcycle in a southerly direction on a four lane avenue in the City of Lafayette. Defendant, driving her vehicle in a northerly direction, executed a left turn in front of the deceased. In his attempt to avoid the collision, the deceased lost control of his motorcycle, flipped into the air and landed on the pavement. He sustained severe head injuries which resulted in his death the following day.

From a jury verdict for defendants, plaintiffs have appealed. Appellants have made nine assignments of error. The suggested errors fall into four areas: 1) failure to give certain charges to the jury; 2) improper closing arguments; 3) improperly allowing defendants a 4V2 hour recess to obtain a witness; and 4) manifest error by the jury in failing to find for plaintiffs.

Our decision today on the first and fourth specifications pretermits consideration of the other two areas. The principle that “a proper charge of all facets of the law involved is essential in order that a jury may fairly adjudicate the rights, liabilities and obligations of the parties concerned” is well established in Louisiana jurisprudence. Higgins v. Johnson, 349 So.2d 918 (La.App. 1st Cir. 1977), writ denied 351 So.2d 161, 162; Reeves v. Gulf States Utilities Co., 312 So.2d 118 (La.App. 1st Cir. 1975), writ granted on other grounds 320 So.2d 902, on remand 327 So.2d 671, writ denied 330 So.2d 309, 311; Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975); Bush v. St. Paul Fire and Marine Insurance, 264 So.2d 717 (La.App. 1st Cir. 1972), writ refused 262 La. 1180, 266 So.2d 452.

It is clear that where there is a question that factual findings are not made pursuant to a clear understanding of the applicable law, the charges will be deemed insufficient or inadequate. Bienvenu v. Angelle, 254 La. 182, 223 So.2d 140 (La. 1969); Reeves v. Gulf States Utilities Co., supra.

The Supreme Court in Gonzales v. Xerox Corporation, supra, clearly laid down the rule that where erroneous charges preclude the jury from reaching a verdict in accordance with the law and facts, the Court of Appeal should render a judgment on the record before it.

Therefore, if our examination reveals that the jury charges were either so incorrect or inadequate as to preclude the jury reaching a verdict in accordance with the law and facts, we must render a judgment on the record as if we had the case before us for a trial de novo. Higgins v. Johnson, supra. We are authorized to render any judgment which is just, legal and proper upon the record on appeal. LSA-C. C.P. Art. 2164.

Additionally, we, in our review of the record, feel that even if the jury had the proper charge, it would be manifest error to reach a verdict for defendants. Our analysis utilized the standard of review articulated in Canter v. Koehring Company, 283 So.2d 716 (La.1973) as follows:

When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error.

Manifest error was explained in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

“Manifestly erroneous,” in its simplest terms, means “clearly wrong.” We said, then, that the appellate court should not disturb such a finding of fact unless it is clearly wrong.

The jury verdict was clearly wrong as can be seen from our review of evidence hereinafter.

The trial judge charged the jury that the standard by which defendant’s actions should be judged was ordinary care. (Record, p. 379). Ordinary care was defined by him as “that care which reasonably prudent persons exercise in the management of their own affairs in order to avoid injury to themselves or their property, or the persons or property of others.” (Record, p. 379). We believe that, despite his admonition that the amount of care varies in proportion to the danger, the jury was not given the correct standard of care for left turning motorists. It is clear from the jurisprudence that a left turning motorist bears a higher standard of care than ordinary. The standard has been described as a high degree of care, Motors Insurance Corp. v. Howell, 266 So.2d 240 (La.App. 2nd Cir. 1972); Casimere v. Ryder Truck Rental, Inc., 324 So.2d 855 (La.App. 4th Cir. 1975); higher duty of care, Morgan v. Lumbermen’s Mutual Casualty Company, 317 So.2d 7 (La.App. 1st Cir. 1975); exceptional duty of care, Natchitoches Motor Company v. Travelers Insurance Company, 372 So.2d 811 (La.App. 3rd Cir. 1979); duty is considerable in degree, Tallo v. Johnson, 255 So.2d 446 (La.App. 1st Cir. 1971). The high degree of care has been increased where the turn is into a private drive instead of an intersection, Motors Insurance Corp. v. Howell, supra, apparently since such a maneuver is least expected there.

The turn in the instant case is from a four-lane heavily traveled avenue onto a two-lane side street. We believe that under those circumstances, the defendant driver is required to meet a high standard of care in executing the maneuver. Since the standard of care given to the jury is appreciably less than the standard we believe applies, we are holding that the jury did not return a verdict consonant with the law. As noted above, this requires us to examine the record and render a judgment.

One witness had been following the deceased for some distance. He testified that the deceased was going about the same speed as he was and that he didn’t recall his exact speed but he usually drove the speed limit which he testified was 35 miles per hour. He also testified that both he and the motorcyclist were in the right-hand lane, that he estimated his distance from the intersection to be 100 feet and the motorcycle was approximately half-way between him and the intersection.

The next witness called by plaintiff testified she was in an adjacent parking lot when she heard brakes or tires squeaking. She testified that the turning vehicle was approximately half-way into the side street when she looked up and saw Mr. Bond in the air near the vehicle.

The next witness was driving to the side and slightly behind the defendant’s vehicle. He testified the motorcycle was in the opposite outside lane and was proceeding in a normal fashion. He did not know whether the defendant stopped before turning, but did see the motorcycle rider trying to avoid the collision.

The officer investigating the accident testified there was a skid mark in the outside lane beginning 76 feet and 9 inches north of the intersection and running 40 feet and 9 inches in length. The skid mark was entirely in one lane. He also testified he found both Mr. Bond and the motorcycle in the right-hand lane of travel with Mr. Bond lying on the road on the south edge of the intersection.

The defendant testified that she came to a stop and turned while the deceased was a block and a half away. She also was under the impression that he was in the inside lane contrary to the skid marks and plaintiff’s witnesses.

One of defendant’s passengers testified that the defendant came to a stop to wait for oncoming traffic to pass. She also said the motorcycle was “real far away” when she first saw it.

The other passenger also said that defendant, her sister, was stopped to wait on traffic. She first saw the motorcycle during the turn. She said the front of the car was at Azalea Street when she saw the motorcycle which was moving from side to side according to her. In her opinion, he was a good distance away from the intersection.

The final eyewitness was in an adjacent parking lot when she noticed the motorcycle. She said she noticed it due to either brakes screeching or his rate of speed. She also said that he was swerving from side to side before he went down. She also testified at trial that she saw the top of a car that was turning, but in an earlier statement had said she did not see a turning vehicle. She also testified that the motorcycle swerved across both lanes before going down.

We make the following findings of fact: 1) Defendant, Cindy G. Jack, breached her duty to Chester G. Bond, IV, in that she attempted to turn left without determining that such movement could be made with reasonable safety; 2) defendant failed to exercise the standard of care required of a left turning motorist; and 3) deceased, Chester G. Bond, IV, was not contributorily negligent in his operation of the motorcycle or his failure to wear a safety helmet.

We conclude that the decedent’s oncoming motorcycle was reasonably close to the intersection to such an extent that the defendant Jack was patently negligent in turning left in front of its path. The evidence substantiates this conclusion, and we are bolstered in this regard by the observation of the trial judge, who, even though denying plaintiff’s motion for a new trial, said:

“In this case I was impressed with certain evidence which indicated to me that the deceased, who was driving a motorcycle, was about 120 feet from the intersection and driving 35 miles per hour at the time the defendant driver commenced her left turn. 35 miles per hour is approximately 51 feet per second, therefore, the deceased would have been about 2lh seconds away from the intersection at the time the defendant driver started turning left. For this reason I was somewhat surprised at the jury verdict. . . . ” (Emphasis added).

Plaintiffs sued for both their loss of love, affection, and support and for the deceased’s pain and suffering, medical expenses, and property damage. Plaintiffs-appellants in their brief have argued only for damages for pain and suffering, loss of love and affection, and medical expenses. Since we find no evidence in the record to support the other damages prayed for, plaintiffs are limited to those items.

Plaintiffs suggest an award of $20,-000 for decedent’s pain and suffering, citing Lalonde v. Missouri Pacific Railroad Company, 366 So.2d 619 (La.App. 3rd Cir. 1978) and Temple v. Liberty Mutual Insurance Co., 336 So.2d 299 (La.App. 1st Cir. 1976). We note in Lalonde that the decedent was conscious and complained of pain. We believe that reasonable guides are Brandon v. State Dept. of Highways, 367 So.2d 137 (La.App. 2nd Cir. 1979) where decedent was unconscious or in shock, gurgled, had no motor reaction or reflexes and died the next day ($10,000) and Marceleno v. State Dept. of Highways, 367 So.2d 882 (La.App. 2nd Cir. 1978) where decedent moaned and gurgled prior to removal to hospital, moved her arms and legs, responded to light, and died 36 hours after the accident ($10,000). We therefore award $10,000 for decedent’s pain and suffering.

Regarding the wrongful death claim of the deceased’s parents, we realize no monetary award would be sufficient compensation. Inadequate as it is, a monetary award is the sole method of compensating plaintiffs. Based on the evidence before us, we feel an award of $20,000 per parent is appropriate.

The medical expenses were stipulated by both parties to be $8,007.58. We render judgment accordingly.

For the reasons hereinabove given, the judgment of the trial court in this suit will be reversed insofar as plaintiffs’ demands were rejected and judgment will be rendered for plaintiffs and against defendants herein. Accordingly, it is ordered, adjudged, and decreed that there be judgment herein favor of plaintiffs and against defendant, Cindy G. Jack, in the full sum of Fifty-eight Thousand, Seven and 58/100 ($58,007.58) Dollars, and against State Farm Mutual Automobile Insurance Company, for the sum of Five Thousand and no/100 ($5,000.00) Dollars, the latter sum being in solido with Cindy G. Jack up to that amount on the judgment rendered herein against her. The judgments carry legal interest from date of judicial demand until paid.

It is further ordered that the judgment herein is to be consolidated with, and not added to, the judgment rendered this date in the companion suit, # 7488.

Defendants are cast for all costs at trial and on appeal.

REVERSED AND RENDERED.

      . The original plaintiffs were the deceased’s parents Chester G. Bond, III, and Dorothy Bond. Chester G. Bond, III, died subsequent to the filing of suit and his heirs, Dorothy Bond and Virginia Phie Bond Maddox, their daughter, were substituted as plaintiffs for Mr. Bond.

      . Reeves v. Gulf States Utilities Co., 312 So.2d 118 at p. 121.


text:
    Chester G. BOND, III et ux, Plaintiffs-Appellants, v. COMMERCIAL UNION ASSURANCE COMPANIES et al., Defendants-Appellees.
    No. 7488.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 1980.
    Rehearing Denied July 31, 1980.

      Bolen & Erwin, Gregory S. Erwin, Alexandria, for plaintiffs-appellants.
    McBride & Brewster, Norman P. Foret, Lafayette, Gist, Methvin, Hughes & Mun-sterman, Dorwan G. Vizzier, Alexandria, Cooks & Chreitian, Sylvia R. Cooks, Lafayette, McLure & McLure, John G. McLure, Alexandria, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and LABORDE, JJ.
   LABORDE, Judge.

For the reasons stated in the companion case of Chester G. Bond, III, et ux, v. Cindy G. Jack, et al. (Docket Number 7489) 387 So.2d 613 (La.App.3rd Cir.1980), in which a separate decision has been rendered by us on this date, the judgment appealed herein is reversed and judgment rendered.

The liability of the uninsured motorist insurers is the excess of the judgment rendered in the companion case over the liability of the insurer of that case. Commercial Union Insurance Company’s limit is $5,000. Lumbermen’s Mutual Casualty Company’s limit is $100,000. Therefore, their respective liability will be adjusted proportionally to their coverage. Blanchard v. Rodrique, 340 So.2d 1001 (La.App.1st Cir.1976); Veillon v. Southern Farm Bureau, 254 So.2d 130 (La.App.3rd Cir.1971).

In the District Court proceedings, the two uninsured motorist insurers filed third party demands against Cindy Jack for any amounts which they might have been held liable to pay to plaintiffs as a result of the uninsured motorist coverage. At the conclusion of the trial, however, the jury rendered a verdict in favor of all defendants. Consequently, the trial court dismissed the third party demands of Commercial Union and Lumbermen’s Mutual against Cindy Jack since none of the defendants was held liable to plaintiffs. The plaintiffs appealed the judgment in both suits. None of the defendants appealed or answered the appeal of plaintiffs.

We note that an “[ajppeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court.” (La.C. C.P. Art. 2082).

An appellee is required to answer an appeal only if he “desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. . . . Additionally, however, an appellee may by answer to the appeal, demand modification, revision, or reversal of the judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court.” (La.C. C.P. Art. 2138).

The party successful at the trial level cannot appeal the judgment to the Court of Appeal. Petition of Sewerage and Water Board of New Orleans, 248 La. 169, 177 So.2d 276 (1965). Defendants, Commercial Union and Lumbermen’s Mutual, were successful at the trial level. Even though their third party demands were dismissed by the trial court, these defendants were not required to appeal from that dismissal under Articles 2083 and 2133 since they would be requesting relief incompatible with the judgment dismissing the plaintiffs’ claims. Such relief could not be granted by this Court without first reversing the judgment on the main demand. To hold that Articles 2082 and 2133 require Commercial Union and Lumbermen’s Mutual to appeal or answer the appeal in order that this Court could hear their third party demands in the event the trial court judgment was reversed would extend these Articles to a situation which the Legislature never intended to be covered by the statute. Such an absurd result will not be imputed to those Articles. Emmons v. Agricultural Insurance Company, 245 La. 411, 158 So.2d 594 (La.1963).

Because we earlier reversed the jury verdict on the main demand (see companion case) we now consider the judgment dismissing the third party demands of Commercial Union and Lumbermen’s Mutual. Rather than remand the third party demands for consideration by the trial court, we will .dispose of the demands in this opinion. La.C.C.P. Article 2164 grants this Court the authority to “render any judgment which is just, legal, and proper upon the record on appeal. . . . ” It is just, legal, and proper to decide these third party party demands since they were properly before the trial court. To remand this case for consideration of the third party demands would be contrary to the well-established rule that Courts of Appeal should decide the entire case when the record is complete. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975). A ruling on those demands at this appellate level prevents unnecessary litigation and other useless actions which the law abhors (see Emmons, supra), and furthers the ends of judicial economy and efficiency.

The question of whether Commercial Union and Lumbermen’s Mutual are entitled to reimbursement from defendant Cindy Jack is a question of law. The answer is found in Niemann v. Travelers Company, 368 So.2d 1003 (La.1979). There the Supreme Court discussed rights which uninsured motorist insurers had when they paid claims pursuant to that coverage. With respect to the insurer’s right to reimbursement La.R.S. 22:1406 D(4) provides:

In the event of payment to any person under the coverage required by this Section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement of judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer.

The court interpreted the above statute in the following manner:

“On the basis alone of statutory interpretation, we find that the UM insurer has no right under R.S. 22:1406 D(4) other than the right to reimbursement from such proceeds, if any, that the insured in fact recovers from the underinsured tort-feasor.
* * * # * *
. If the UM carrier is to be afforded a right to subrogation or any other right more meaningful than that granted by R.S. 22:1406 D(4), the statute will have to be amended by the Legislature.”

Although the court in Niemann was concerned with protecting an insured’s right to settle with the tort-feasor and the tort-feasor’s liability insured without interference from the uninsured motorist insurer, the language used by the court forecloses a more liberal interpretation of the statute which might allow the uninsured motorist insurer subrogation rights against the tort-feasor. The Supreme Court pointedly and emphatically pronounced that 22:1406 D(4) imparts to the uninsured motorist insurer no subrogation rights. The only rights which the uninsured motorist insurer does have is the right to reimbursement from the insured and not from the tort-fea-sor. Although we recognize (and the Supreme Court probably recognized also) that such a restrictive interpretation of 1406 D(4) may often inure to the benefit of the tort-feasor, a result arguably unintended by the Legislature, we feel compelled to follow the Supreme Court decision.

We note on our own motion, by authority of La.C.C.P. Article 927, that Commercial Union and Lumbermen’s Mutual do not have a cause of action to pursue a claim against defendant tort-feasor Cindy Jack. Therefore, the judgment of the District Court dismissing the third party demands of Commercial Union and Lumbermen’s Mutual against Cindy Jack is affirmed.

For the reasons set forth herein and in the companion case the judgment of the trial court dismissing plaintiffs’ demands is reversed and accordingly, it is Ordered, Adjudged, and Decreed that there be judgment herein in favor of plaintiffs and against defendant Commercial Union Assurance Company for the sum of TWO THOUSAND FIVE HUNDRED TWENTY-FOUR DOLLARS AND SEVENTEEN CENTS ($2,524.17), together with legal interest from date of judicial demand until paid.

It is further Ordered, Adjudged, and Decreed that there be judgment herein in favor of plaintiffs and against defendant Lumbermen’s Mutual Casualty Company for the sum of FIFTY THOUSAND FOUR HUNDRED EIGHTY-THREE DOLLARS AND FORTY-ONE CENTS ($50,483.41), together with legal interest thereon from date of judicial demand until paid.

It is further Ordered, Adjudged, and Decreed that the judgment of the District Court dismissing the third party demands of Commercial Union and Lumbermen’s Mutual against Cindy Jack is affirmed.

It is further Ordered, Adjudged, and Decreed that the judgment herein is to be consolidated with, and not added to, the judgment rendered this date in the companion suit, # 7489.

Defendants herein are cast for all costs in this suit. Costs are to be paid by defendants in proportion to their liability for the entire amount of the judgment.

REVERSED AND RENDERED.

      . 368 So.2d 1003 at pages 1007, 1008.


author: GARRISON, Judge.

text:
    Kenneth LEE v. LIBERTY MUTUAL INSURANCE CO. et al.
    No. 10391.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1980.
    Rehearing Denied Sept. 15, 1980.
    Roger J. Larue, Jr., Metairie, for plaintiff-appellant.
    Christovich & Kearney, C. Edgar Cloutier, New Orleans, for defendants-appellees.
    Before BOUTALL, GARRISON and CHEHARDY, JJ.
   GARRISON, Judge.

Plaintiff, Kenneth Lee, appeals from a summary judgment in favor of defendant, Liberty Mutual Insurance Company. Lee was a dump truck driver for Pratt-Farns-worth, Inc. when he was injured. On the day of the accident (June 29, 1976) , the tailgate had fallen off his truck and he was engaged in replacing it. Frank Savarino, a dragline oiler also employed by Pratt-Farnsworth, had been ordered to assist Lee to replace the tailgate, using a front-end loader. The loader’s bucket was suspended about three and one-half feet off the ground. Lee looped a chain around the tailgate and propped the tailgate against the loader bucket, at about a 20° angle from the vertical. Lee turned to get a cable and, as he did so, the tailgate fell on his leg and injured him.

Lee sued Halmar, Inc., Pratt-Farnsworth, Liberty Mutual (their insurer), Dennis Gibson (the job superintendent), J. W. Davis (the job foreman), and Savarino. Halmar, Pratt-Farnsworth and Liberty Mutual moved for summary judgment, Halmar and Pratt-Farnsworth on the ground they were Lee’s employer(s) and so were immune from tort liability, and Liberty Mutual on the basis that neither its automobile policy nor its comprehensive general liability policy provided coverage to the named individual defendants for this particular accident. The trial judge granted the motion without giving written or oral reasons. Lee has appealed the judgment only as to Liberty Mutual.

Liberty Mutual’s argument is that none of the individual defendants is an insured under its comprehensive automobile policy, and, conceding arguendo the individuals are insured under the comprehensive general liability policy, that coverage is excluded. (The automobile policy provided coverage for the dump truck. The comprehensive general liability policy provided coverage for the front-end loader.) Finally, Liberty Mutual argues that even if its comprehensive general liability policy provides coverage, Savarino would be excluded under a co-employee exclusion. (Gibson and Davis are excepted from the co-employee exclusion by an endorsement to the policy.)

Plaintiff concedes the automobile policy excludes coverage, but contends the comprehensive general liability policy covers the individual defendants for their alleged liability to plaintiff. The pertinent provisions of the comprehensive liability policy are as follows:

“This policy does not apply:
* * $ * * *
(b) to bodily injury or property damage arising out of the ownership, maintenance, operation, use loading or unloading or
(1) any automobile or aircraft owned or operated by or rented or loaned to any insured, * * * ”

The front-end loader clearly fits within the policy’s definition of “mobile equipment” (“a land vehicle . . . designed for use principally off public roads . . . ”) and is not excluded from coverage. Conversely, it is clear the comprehensive general liability policy does not apply to the dump truck (“ ‘automobile’ means a land motor vehicle . . . designed for travel on public roads . . . but does not include mobile equipment.”)

These clauses produce a conflict: Plaintiff’s accident is covered under one clause of the policy but excluded under another, because it is obvious that plaintiff’s injury arose both out of the maintenance of the dump truck and out of the use of the front-end loader.

There remain unanswered questions of fact, material to Liberty Mutual’s liability once the coverage issue is resolved. The question of whether mover was entitled to judgment as a matter of law is the subject matter of this opinion.

C.C.P. Art. 966 provides as follows:

“The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff’s motion may be made at any time after the answer has been filed. 'The defendant’s motion may be made at any time.
“The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the day of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” (emphasis added.)

As there exists genuine issues of material fact to be resolved,. summary judgment should not have been granted. Employer’s Surplus Insurance v. City of Baton Rouge, 362 So.2d 561 (1978) and authorities cited therein.

Liberty Mutual contends that the automobile exclusion applies because the accident “arose out of an excluded relationship with an automobile despite the fact that mobile equipment was involved in the accident.” We find, however, that the cases cited by Liberty Mutual are all distinguishable on their facts.

When an ambiguity in an insurance policy relates to an exclusionary clause or to a provision which limits liability, the law requires that the contract be interpreted liberally in favor of providing coverage. Hanagriff’s Machine Shop v. Slaw Construction Company, 380 So.2d 146 (La.App. 1st Cir. 1979). Here, the circumstances produce an ambiguity in the policy because the coverages are conflicting. The accident arose not only out of the maintenance, use, loading or unloading of the dump truck, but also out of the maintenance, use, loading or unloading of the front-end loader; it was thus both covered and excluded by the policy. In such a circumstance, the exclusionary clause cannot prevail, for the conflict creates an ambiguity. See Insurance Company of North America v. Solari Parking, 370 So.2d 503 (La.1979).

We do agree with Liberty Mutual’s contention that, even if the accident here is covered, Frank Savarino’s alleged liability is excluded from coverage by a co-employee exclusion. The various endorsements to the policy, which plaintiff claims are conflicting, are clear and must be read in chronological order. In doing so, it becomes plain that Endorsement No. 23 applies here:

“It is agreed that the ‘Persons Insured’ provision is amended to include any employee of the named insured while acting within the scope of his duties as such, but the insurance afforded to such employee does not apply:
1. to bodily injury to (a) another employee of the named insured arising out of or in the course of his employment. * * * »

It is patent that at the time of the accident, Savarino’s liability for injuries to fellow employees was excluded from coverage by the comprehensive general liability policy.

In conclusion, we hold that where an accident is covered by one clause of an insurance policy, but is excluded by another clause of the same policy, the clause providing coverage must prevail. Therefore, as a matter of law, mover was not entitled to summary judgment under C.C.P. Art. 966.

For the foregoing reasons, the judgment of the district court is reversed and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . This is an executive officer suit arising prior to the effective date of Act 147 of 1976, which provided for immunity for nonintentional acts.

      . In particular, we note Mauterer v. Associated Indemnity Corp., 332 So.2d 570 (La.App. 4th Cir. 1976), the case most like this in its facts. Plaintiffs injury there arose from the failure of a stanchion on a truck being loaded by a “cherry-picker,” and the comprehensive general liability policy included in a similar automobile exclusion. The Mauterer court held the accident was clearly excluded. Here, however, the truck tailgate was not on the truck when it fell on plaintiff; instead, it had at the moment as close a relationship to the front-end loader as it had to the truck. In the Mauterer case, the failure of the stanchion apparently had no relationship at all to the use of the cherry-picker.

      . By Endorsement No. 24, “all Supervisory Employees (including Executive Officers)” are excluded from the co-employee exclusion. Liberty Mutual admits that the policy, if applicable here, provides coverage to Gibson and Davis.


author: STOKER, Judge.

text:
    Jake CRATER et ux., Plaintiffs-Appellants, v. The CITY OF LAKE CHARLES, Defendant-Appellee.
    No. 7600.
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 1980.
    Rehearing Denied July 31, 1980.

      Raleigh Newman, Lake Charles, for plaintiffs-appellants.
    Woodley, Barnett, Cox, Williams & Fenet by James E. Williams, Lake Charles, for defendant-appellee.
    Before FORET, SWIFT and STOKER, JJ.
   STOKER, Judge.

The plaintiffs, Jake Crater and his wife Delores, are suing for damages which arose from an injury which they allege Delores received at the hands of policemen of the Lake Charles City Police as the officers forced entry into the Crater apartment.

On the evening of May 10, 1977, Jake Crater was observed by Officer Bertrand, of the Lake Charles Police Department, running a stop light, speeding, and generally driving in a reckless manner. Crater drove to the Fleur de Leis Apartments with Officer Bertrand in pursuit. He parked his car in a parking lot adjoining the apartments, got out and began walking towards the apartment in which he and his family lived. The testimony paints basically the following picture of what ensued after Officer Bertrand arrived at the Fleur de Leis Apartments. As Crater was walking to his apartment, Bertrand attempted to discuss with him the traffic violations just committed. A fight ensued between Bertrand and Crater, who was obviously intoxicated, and, after further scuffling, Crater eventually entered his apartment. Officer Bertrand then radioed for assistance, and two other officers soon arrived at the scene. These reinforcements, Officers Boudreaux and Herpin, along with Bertrand, positioned themselves around the entrance to Mr. Crater’s apartment and knocked on the door. Delores Crater, wife of Jake Crater, came to the door. The officers informed Mrs. Crater that they wished to talk to the man who just entered the apartment. She requested that they wait at the door while she went to wake him. There is dispute in the testimony as to how many times Mrs. Crater came to the door and exactly what conversations and actions resulted, but it is clear that she continued to give the policemen excuses to delay their entrance and apprehension of Mr. Crater. Finally, after Mrs. Crater had returned to the door and was again refusing admission to the policemen, Officer Boudreaux stopped the door as she was closing it and entered the apartment. These occurrences surrounding the police entry into the apartment are the facts upon which the suit is based, and, as is so often the case in suits of this nature, there is direct conflict in the testimony. Officer Boudreaux led the way into the apartment, and Officers Herpin and Bertrand followed. Mrs. Crater claims that she was knocked sprawling across the living room, hitting her back on a back corner of a couch and sustaining very serious injuries, for which she had several major operations. According to the policemen involved, Officer Boudreaux had simply moved Mrs. Crater aside and entered the apartment with no significant use of force and no resulting collision with the couch.

There are numerous inconsistencies in the testimony. Although it seems at times that the parties are describing different incidents, instead of the same one, the major issues in this case are clear. There is no question that Mrs. Crater had a serious back problem which has required several surgical procedures. The issues in question are whether the injury occurred through the actions of the Lake Charles City Police officers involved here, and if their actions did cause Mrs. Crater’s injury, whether they were using unreasonable force, thus subjecting the City of Lake Charles to liability for the resulting damages. The trial court rendered judgment rejecting plaintiffs’ demands at their cost, and this appeal resulted.

The opinion of the trial court centered around the question of whether the police officers used reasonable force against Delores Crater in making their arrest of her husband. Appellant in his specifications of error argues that: “The trial court erred in holding that the standard of care relative to Police Officers in making an arrest is the same for third persons as it would be for the arrestee himself”. We agree with the trial judge in his rejection of this argument of plaintiff-appellant.

The arrest in this case, although made without a warrant is perfectly valid under Louisiana Code of Criminal Procedure article 213. It is well recognized that if police are in “hot pursuit” of someone who they believe has just committed a crime, they may enter a residence without a warrant. State v. Phillips, 347 So.2d 206, (La. 1977); State v. Franklin, 353 So.2d 1315 (La. 1977). Our major concern here is, of course, the force used against Delores Crater by the policemen entering her apartment. Although this is a civil case, the trial court used Articles 220 and 224 of the Louisiana Code of Criminal Procedure (we think properly so) to define the standard of care for the officers in this case. These articles provide:

Art. 220. Submission to arrest; use of force
A person shall submit peaceably to a lawful arrest. The person making a lawful arrest may use reasonable force to effect the arrest and detention, and also, to overcome any resistance or threatened resistance of the person being arrested or detained.
Art. 224. Forcible entry in making arrest
In order to make an arrest, a peace officer, who has announced his authority and purpose, may break open an outer or inner door or window of any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable, where the person to be arrested is or is reasonably believed to be, if he is refused or otherwise obstructed from admittance. The peace officer need not announce his authority and purpose when to do so would imperil the arrest.

Our Supreme Court in Kyle v. City of New Orleans, 353 So.2d 969 (La. 1977) elaborated on this “reasonableness test” as applied to police using force in making an arrest.

Whether the force used is reasonable depends upon the totality of the facts and circumstances in each case. A court must evaluate the officers’ actions against those of ordinary, prudent, and reasonable men placed in the same position as the officers and with the same knowledge as the officers.

We have now determined the proper standard of care for police officers for ar-restees as outlined in both statutes and jurisprudence. What should the standard of care be for police officers for third persons involved in the arrest? As pointed out above, appellant in his specifications of error, argues that “The trial court erred in holding that the standard of care relative to Police Officers in making an arrest is the same for third persons as it would be for the arrestee himself”.

We have found no statutory guidance or substantial jurisprudence to help us find the proper test of reasonableness toward third persons. The First Circuit has held in Picou v. Terrebonne Parish Sheriff’s Office, 343 So.2d 306 (La.App. 1st Cir. 1977) that “The use of force when necessary to effect an arrest is a legitimate police function, whether such force is directed against the person arrested or one interfering with the arrest”. For this proposition, the court cited Castriotta v. Cronvich, 277 So.2d 744 (La.App. 4th Cir. 1973); Taylor v. City of Baton Rouge, 233 So.2d 325, at 330 (La.App. 1st Cir. 1970). Neither of these cases cited for the above proposition even discuss the standard of force policemen should exercise against third persons. In the present case, however, this court chooses to follow the rules stated by the First Circuit in Picou and apply the same standard for arrestees as for third persons’ behavior.

As discussed above, under Code of Criminal Procedure articles 220 and 224 and the jurisprudence, the police actions toward Jake Crater were proper. If the same standard is to be applied in dealing with Delores Crater, as we think it should be, then the actions of the police toward her would be considered reasonable, also.

In Kyle, supra, our Supreme Court said, in speaking of the force used by police in making an arrest, “The degree of force employed is a factual issue.” The court continued, “As such, the trial court’s finding is entitled to great weight.” The trial court in the present case concluded “that the actions of the police officers at the time was not excessive or unreasonable as to the arrestee, Mr. Crater or to Mrs. Crater as well.”. We give this factual finding of the trial court the great weight it should be accorded. The record establishes that the finding is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978).

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against plaintiffs-appellants.

AFFIRMED.


author: COLE, Judge.

text:
    Larry EVANS and Josie Mae Edward v. Sam IVY and Jessie E. Edward.
    No. 13387.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.

      Otha Curtís Nelson, Sr., Simmons & Nelson, Baton Rouge, for plaintiff.
    Haydn S. Berey, Livingston, Allen B. Pierson, Jr., Pierson, Drake & Scott, Pon-chatoula, for defendant.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

This matter involves a default judgment entered by the Twenty-First Judicial District Court for the Parish of Livingston which was later annulled.

On or about October 7, 1974, one of the plaintiffs, Larry Evans, sold to Sam Ivy, Lot 3 of Block 2 of the J. W. Noblet Subdivision which is located in Section Forty-Five (45), Township Six (6) South, Range Three (3) East, Livingston Parish, Louisiana.

On January 16,1978, Evans and his mother, Josie Mae Edward, filed suit against Ivy and Jessie E. Edward for rescission of that sale on the ground of lesion beyond moity and fraud. Jessie E. Edward is the former husband of Josie Mae Edward.

Haydn S. Berey, an attorney practicing within the Parish of Livingston, was appointed curator ad hoc to represent Ivy, who was a resident of the state of Mississippi. Edward, who was domiciled in this state, was not served.

There having been no opposition made by Ivy, on June 20,1978 the plaintiffs took the matter up as a confirmation of a preliminary default as to that defendant only and judgment was granted rescinding the sale.

On August 2,1978, the defendants filed a motion to set aside that judgment which they alleged was rendered due to error. A hearing was later had and judgment was subsequently rendered in favor of the defendants ordering that the first judgment, which had rescinded the sale, be annulled. The plaintiffs have appealed the latest judgment. We affirm.

The record clearly indicates the original judgment entered was granted due to a clerical omission on the part of the curator ad hoc. At the original hearing, the curator related the work he had done in connection with his appointment and testified he wrote a letter notifying Ivy of the litigation and Ivy thereafter contacted him in connection with that letter and they discussed the case. Berey had no further contact with Ivy and was not retained by him.

It later became evident, however, that the defendants had retained as their attorney, Allen B. Pierson. Pierson had a telephone conversation with the curator relative to his representation and the two attorneys agreed that Berey would notify Pier-son if there was any effort on the part of the plaintiffs to obtain judgment.

The curator failed to make a notation of the call in his file and had forgotten it when his testimony was originally taken. He later specifically remembered it when it was called to his attention by Pierson. The defendant, Edward, was present in Pier-son’s office when calls were made to Berey.

Actions for nullity of judgments are provided for by Code of Civil Procedure Articles 2001, et seq. Article 2004 provides:

“A final judgment obtained by fraud or ill practices may be annulled.
“An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.”

The term “ill practices” was expanded upon in Succession of Trouard, 281 So.2d 863 (La.App.3d Cir. 1973), as follows:

“. . . A judgment may be annulled on the ground of ‘ill practices,’ even though no actual fraud or intentional wrong has been committed in the procurement of the judgment, if it is shown that the enforcement of the judgment would be unconscionable and inequitable and would deprive the litigant who seeks the annulment of legal rights to which he is entitled. Leidig v. Leidig, 187 So.2d 201 (La.App.3d Cir. 1966).”

See also White v. Exxon Corp., 354 So.2d 1085 (La.App.2d Cir. 1978).

We are reluctant to characterize the events which occurred here as “ill practices,” as they amount to nothing more than an oversight on the part of the curator ad hoc. However, in a limited sense, we find the provisions of Article 2004 must be applied here, as it is obvious that had the district judge been apprised of the representation by Pierson and the understanding between the curator and Pierson he would not have rendered a judgment by default against Ivy.

The recent decision of this court in Verdin v. Unico, Inc., 366 So.2d 1007 (La.App. 1st Cir. 1978), which is relied upon by appellant, is inapplicable here as appellee has established a valid and sufficient explanation for its failure to plead and defend this suit prior to the original judgment.

The judgment of the district court is affirmed. All appellate costs are to be paid by appellants.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    John WIEDMAN v. PLANK ROAD AUTO SALVAGE, INC.
    No. 13416.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    John B. Cornish, Baton Rouge, for plaintiff-appellee John Wiedman.
    William C. Bradley, Baker, for defendant-appellant Plank Road Auto Salvage, Inc.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

This is a suit to rescind the sale of a used pickup truck motor which the plaintiff claims is burdened with redhibitory defects. From a trial court judgment awarding the plaintiff $242.18, the defendant has appealed.

The plaintiff purchased a used pickup truck motor from the defendant, Plank Road Auto Salvage, Inc., for $318.00 and spent $166.37 having the motor installed.

The engine caused problems from the time it was installed until it finally quit running a few days later.

The defendant claimed that the problems with the engine were caused by the plaintiff’s intentional revving of the motor in an attempt to blow it up.

The evidence as to whether the plaintiff or the defendant was responsible for the problems with the engine was hopelessly conflicting, but the trial court resolved the issue on the side of the plaintiff. The court, citing La.C.C. art. 2543, declared a reduction in the price in the amount of one half of the total expenses for the engine and installation.

Our thorough review of the record convinces us that the trial court correctly decided the issues in this case and did not abuse its discretion in ordering a reduction in price.

Therefore, for the above and foregoing reasons, the decision of the trial court is affirmed at appellant’s costs.

AFFIRMED.


author: ELLIS, Judge:

text:
    James D. KEMP, d/b/a Capital Leasing Company v. Julian E. FERNANDEZ.
    No. 12527.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Rehearing Denied Sept. 4, 1980.
    Edward W. Gray, Baton Rouge, for plaintiff-appellee.
    Triche, Sternfels & Nail, Risley C. Triche, Napoleonville, for defendant-appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

Judgment was rendered in favor of plaintiff, James E. Kemp, doing business as Capital Leasing Company, and against defendant, Julian E. Fernandez, on December 4, 1975, for $36,666.46, plus eight per cent interest from date of judicial demand, and 15 per cent attorney’s fees. This judgment became final without appeal.

When plaintiff subsequently attempted to execute on the judgment, defendant obtained a temporary restraining order, and, subsequently, a preliminary injunction. Thereafter, the matter was reconsidered by the trial court, and the preliminary injunction recalled. Defendant appealed that judgment to this court.

On appeal, we found that defendant’s attack on the judgment was without merit, but we reinstated the injunction and remanded the case to the trial court to permit defendant to prove payments allegedly made by him on the judgment after its rendition. See Kemp v. Fernandez, 369 So.2d 725 (La.App. 1st Cir. 1979) writ den. 371 So.2d 1341 (La.1979).

After remand, plaintiff filed various requests for admissions and interrogatories, and a motion for summary judgment. Affidavits were filed by both parties, supporting and opposing the motion. A review of these affidavits shows that the only matter in dispute was an allegation by defendant that he had paid $2,000.00 to plaintiff’s former attorney which was not credited on the judgment. Payments of $11,700.00 on August 3, 1977, and of $5,215.54 on March 15, 1978, are admitted by both parties.

After a hearing on the motion for summary judgment, the trial judge rendered judgment in favor of plaintiff, and defendant has appealed. The only specifications of error assigned relate to the failure of the trial judge to give credit against the judgment for alleged unearned discount.

The assignments are without merit. They relate to matters which could and should have been raised at the trial on the merits of the case. The judgment herein was rendered in 1975 and was permitted to become final without appeal. It is now too late to contest the judgment on its merits.

The judgment appealed from is therefore affirmed, at defendant’s cost.

AFFIRMED.