author: CHIASSON, Judge.

text:
    Robert A. RILEY, General Contractor, Inc. v. Ronald W. WISEMAN et al.
    No. 13914.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.

      Paul H. Spaht, Baton Rouge, H. Bruce Shreves, New Orleans, counsel for defendant-appellee, American Fidelity Fire Ins. Co.
    Riley F. Boudreaux, Jr., Curator, Ad Hoc, counsel for defendant-appellee, Ronald W. Wiseman.
    Thomas A. Lane, Baton Rouge, counsel for defendants-appellants, Brunson Bonding & Ins. Agency, Inc. and U. S. Fidelity & Guaranty Co.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

The plaintiff-appellee was successful in the trial court in securing a $7,680.00 judgment against the defendants, Ronald W. Wiseman and Brunson Bonding and Insurance Agency, Inc., for the issuance of a bogus performance bond. Plaintiff’s claim against American Fidelity Fire Insurance Company was dismissed. Only Brunson Bonding and Insurance Agency, Inc. has appealed this decision.

In February of 1978, Ronald Wiseman, an employee of the Brunson Agency, presented a spurious document to the plaintiff which purported to be a valid performance bond issued by American Fidelity Fire Insurance Company and covering appellee for the construction of four warehouses for the Salvation Army in Baton Rouge. It was later discovered that the bond was invalid and plaintiff is seeking to recover the amount paid for this bond.

The plaintiff-corporation began operations in the fall of 1977. Robert Riley, owner of the corporation, had been employed in his father-in-law’s construction business prior to this time. As a new company, Riley had applied for bonds under the Small Business Administration program. Riley used Wiseman and the Brunson Agency for this purpose since he was familiar with them through his position with his father-in-law’s business.

Wiseman, for the Brunson Agency, sold Riley his first bond without any incident through Special Market Underwriters, Inc. which was an authorized agent for American Fidelity. American Fidelity issued nothing but bonds for the Small Business Administration. Wiseman handled all the Small Business Administration bonds for Brunson and was securing about $23,000.00 a month worth of premiums for Special Market Underwriters, Inc. Riley next contacted Wiseman concerning a bond he needed for the $190,000.00 project of the Salvation Army. Wiseman agreed to start the paper work on the bond.

Wiseman presented the bond to Riley in February of 1978, and, in turn, Riley gave Wiseman six blank payee checks to use in securing the bond. In April of 1978, the fraudulent scheme was detected and eventually Riley secured a valid bond from American Fidelity.

Plaintiff sued for the amount of money spent in obtaining the first bond in addition to increased cost for materials due to the delay in completing the warehouse project. In the alternative, he sued for the cost of the new bond if the first one was deemed to be valid.

The trial court found the first bond to be invalid and held Wiseman personally liable for his tortious conduct. It further found Brunson Agency liable as the employer of Wiseman, since his actions were in the course and scope of his employment. It denied cost for materials since no evidence was presented on that point.

Wiseman was not present at trial and a curator ad hoc had been appointed to represent him. No appeal was taken by Wise-man so the judgment as it relates to him is final.

In its brief on appeal, the appellant, the Brunson Agency, is contending that it should not be held liable for the criminal acts of its employee. It further contends that the trial court erred in not finding that the actions of Riley contributed to the fraudulent scheme. In the alternative, appellant contends the award given to Riley was excessive in the amount of $3,000.00.

It has been admitted by the Brunson Agency that Wiseman had been an employee of theirs for a number of years. With this employee-employer relationship established, we find Louisiana Civil Code Article 2320 to be applicable in this matter. La. C.C. art. 2320 provides, in part:

“Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.
* * * * * *
“In the above cases, responsibility only attaches, when the masters or employers, * * * might have prevented the act which caused the damage, and have not done it.”

This article has been construed by the Supreme Court in LeBrane v. Lewis, 292 So.2d 216 (La.1974) and the jurisprudence as follows:

“In Louisiana, as elsewhere, an employer (master) is liable for a tort committed by his employee (servant) if, at the time, the servant is acting within the scope of his employment — acting, as our Civil Code Article 2320 phrases it, ‘in the exercise of the functions in which . .. employed.’ Article 2320; Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968); Comment, 33 La.L.Rev. 110 (1972).”

In defining what is meant by “scope of employment,” the Court continued:

“In short, the tortious conduct of the supervisor was so closely connected in time, place, and causation to his employment-duties as to be regarded a risk of harm fairly attributable to the employer’s business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s interests. It can thus be regarded as within the scope of the supervisor’s employment, so that his employer is liable in tort to third persons injured thereby.”
(Footnote omitted). LeBrane, supra, pg. 218.

Wiseman’s action was within the scope of his employment as found by the trial court. He had been empowered to write bonds and had done so for Mr. Riley. His actions, although personally motivated, were so closely interwoven with his employer’s business that it can be said to be “a risk of harm fairly attributable to the employer’s business.” Mays v. Pico Finance Co., Inc., 339 So.2d 382 (La.App. 2nd Cir. 1976). Therefore, we agree with the trial court’s finding that the Brunson Agency is liable as Wiseman’s employer for the tortious conduct of its employee. (See the discussion in Scoggins v. Smith, 342 So.2d 1130 (La.App. 1st Cir. 1977)).

We next need to consider the actions of Robert Riley as president of the corporation in dealing with Wiseman to determine if he, in any way, contributed to this fraudulent scheme. The principle of law that was announced in the Yoars v. New Orleans Linen Supply Co. case, 185 So. 525 (La.App. Orl.1939) is still sound:

“There is an equitable principle which we think should be invoked in cases like the instant one — that is — that where one of two innocent parties must suffer loss through the fraud of another, the burden of the loss should be imposed upon him who most contributed to it. This rule has ofttimes been applied by our Supreme Court. See Young v. Gretna Trust & Savings Bank, 184 La. 872, 168 So. 85, and cases there cited. Under ordinary conditions, in cases where a fraud has been committed by an agent, the rule has been invoked against his principal for the reason that the employer, by clothing the agent with apparent authority to act for him, has made the accomplishment of the fraud possible. But the doctrine applies with equal force against the defrauded third person where it appears he could have easily detected the deceit and neglected to do so for, under such circumstances, his fault must be regarded as the proximate and efficient cause of the loss....”
Yoars, supra, pg. 529.

Appellant contends that Riley should have detected the illegality of the entire transaction when Wiseman called upon him to issue six blank payee checks within three days. Brunson points to the fact that Riley issued four of those checks even after the bond was delivered to him.

Cognizant of these facts, we do not find that Riley’s actions contributed to the fraud or that he was put on notice of the illegal actions of Wiseman. The most that can be said is that there was a misplacement of trust in one man.

The corporation was a brand new business with its first big job — the Salvation Army project. Riley needed a bond, larger than any previously obtained by him, and he called upon the insurance agent that he had done business with for a couple of years. Wiseman told him that he would start the necessary paper work. After a number of conversations, Wiseman informed Riley that since this was such a large bond for such a new corporation that he might have to secure the bond from outside the state. In February, Wiseman delivered a bond, valid looking on its face, to Riley. Riley immediately recorded the contract and the bond in the mortgage records so that he could commence work on the project. Trusting Wiseman to take care of all the services and purchases required, Riley gave Wiseman checks issued in specific amounts but left blank the payee since he did not know who the bond was to come from.

The facts of this case can easily be distinguished from those in the Yoars decision where it was found that the plaintiff could have detected the fraudulent scheme by merely making periodic counts of towels and aprons that were being delivered to him. In this case, we are faced with a little more perplexing situation. Riley knew little of the bonding business and their practices. He had worked with the Brunson Agency while working with his father-in-law as well as when he started his own business. All of his insurance work was with the Brunson Agency, through its employee, Wiseman. He left most of the paper work to Wiseman when it came time to filling out the forms for these Small Business Administration bonds. When presented with the bond, there was nothing that would put him on notice of the invalidity of it.

Mr. Wiseman was appellant’s employee who was authorized to issue performance bonds for American Fidelity after getting approval from the New Orleans base, Special Market Underwriters, Inc. The Brunson Agency was aware that Wise-man had a supply of blank performance bonds of American Fidelity which could easily be used by Mr. Wiseman for any purpose. Appellant had no established system for checking or auditing the issuance of these performance bonds by Wiseman.

If it had not been for Wiseman’s wife, Brunson’s daughter, who handed over a box of materials to the agency, the scheme might not have been detected. We find that this unchecked procedure for issuance of performance bonds by Wiseman to be the cause of the illegal actions. The Brunson Agency was in a better position to detect the fraudulent scheme than was Riley. We agree with the findings of the trial court that Riley was not in a position to detect this fraudulent scheme.

The last contention of the appellant is the issue of $3,000.00 which Riley paid to Wiseman for professional services. The trial court had awarded Riley this amount in its judgment. Appellant argues that it should not be held liable for this amount as the Brunson Agency would never have received this money. We do not find any merit in this argument. We find the plaintiff proved that $7,680.00 had been fraudulently taken from it by the defendant, an employee of the Brunson Agency. Included within that figure is the $3,000.00 sum which is a part of the damages plaintiff is now seeking. The plaintiff has met its burden of proof and therefore is entitled to this amount. Appellant’s business practices, above outlined, made it possible for its employee to perpetrate the fraud.

For these reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Raymond J. GAUTREAUX v. DIVISION OF STATE BUILDING AND GROUNDS.
    No. 13920.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.

      John Hainkel, New Orleans, for appellant.
    Annette R. Seng, Staff Atty., Dept, of Justice, Baton Rouge, for appellee.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

The State Civil Service Commission dismissed the appeal of the appellant, Raymond J. Gautreaux, on the ground that he abandoned his appeal before the Commission. We reverse and remand this matter to the State Civil Service Commission for a full hearing.

Raymond J. Gautreaux was terminated as a Police Officer II working for the Division of State Buildings and Grounds in New Orleans on October 15, 1979. He appealed his termination by sending the required notice of appeal on November 10, 1979. In addition, Gautreaux had another appeal pending which was consolidated for hearing before the Commission on December 5, 1979. In the interim, Mr. Gautreaux secured legal counsel to represent him in the appeals.

The record does not reflect the reason, but appellant argues in brief that the Commission on December 4,1979 requested that the hearing scheduled for December 5 be continued until March 5, 1980.

On March 5, 1980, Mr. Gautreaux appeared before the Commission but his attorney was not present and there is some testimony that his attorney did try to call the Commission that morning. After a denial of the request by Mr. Gautreaux that the hearing be continued, the Commission ordered that the hearing proceed. Midway through the State’s first witness, Mr. Gau-treaux objected to the proceeding and left the hearing. At that time, the Commission reasoned that Mr. Gautreaux’s actions constituted an abandonment of his appeal and dismissed the appeals. From this decision, the appellant perfects this appeal.

The following provisions of the Civil Service Commission Rules are applicable in this case:

“13.14 Summary Disposition of Appeal,
(a) At any time after the docketing of an appeal a written request may be filed by any interested party for summary disposition thereof on any of the following grounds:
* * * * * *
5. That an appellant has failed to appear at the time fixed for the hearing of his appeal, without having been granted a continuance.
“13.18 Continuance of Appeal
(a) An appeal fixed for hearing may be continued, without prejudice to the appellant.
1. By the Director, or the appropriate referee in a referred case, upon submission of justifications deemed adequate by the Director or the referee; or
2. By the Commission or its Chairman, for cause deemed sufficient by it; or him; or
3. If it is not reached for hearing.
* * * * *
(c) No continuance shall be granted except for compelling cause or to serve the ends of justice.
“13.19 Procedure for Hearing Appeals.
* * * * * *
(b) Parties shall have the right, but shall not be required, to be represented by counsel....
“13.22 Dismissal for Non-appearance at Hearing of Appeal.
* * * * * *
(b) If the person against whom the appeal has been taken is absent and unrepresented at the time and place fixed for the hearing of the appeal, without having been granted a continuance, the Commission may proceed with the hearing and render its decision upon such evidence as may be adduced at the hearing.”

As stated in the Rules of the Civil Service Commission, an appellant has a right to be represented by counsel at the hearing of his appeal. In this instance, Mr. Gautreaux had retained an attorney to represent him.

When a person secures counsel, they are relying on that attorney’s legal advice and expertise in aiding them with their cause. They should not be placed in the position of having to represent themselves if they have taken the steps to obtain counsel.

From a reading of the rules, the Commission does have the discretion to grant the continuance or not. Recognizing this discretion, we believe that the Commission abused its discretion in failing to grant the continuance. The appellant appeared on the day assigned for his hearing but his counsel failed to appear. The appellant should not be the one penalized in this matter. If any penalty needs to be imposed, it should be on the attorney. (See the recent Supreme Court decision penalizing the attorney and not the party: Allen v. Smith, 390 So.2d 1300 (1980).

Section 13.22 allows the Commission to proceed with the hearing and hear evidence if the person who is appealing is absent and unrepresented. There is no such authority to proceed with the hearing when the appellant is present but his counsel is not present. This case can be distinguished from one where neither appellant nor his retained counsel appears on the day assigned. In that instance, a dismissal may be appropriate.

Rule 13.18(c) provides that a continuance will be granted only for compelling cause or to serve the ends of justice. Justice is not served when an individual who has retained counsel is not allowed to have counsel present at the proceedings. In this quasi judicial hearing, this individual is faced with a possible deprivation of his employment. To deny this man the opportunity of adequate representation at the hearing is not serving the ends of justice.

The analogy to the civil procedure in the trial court reflects that the discretion of the trial court is given much weight unless that discretion is abused. We recognize the discretion of the Commission in this case and only hold that such discretion has been abused.

For these reasons, the ruling of the Civil Service Commission dismissing Raymond Gautreaux’s appeals is reversed. We remand this case to the Commission for a hearing allowing Mr. Gautreaux to have his retained counsel present.

REVERSED AND REMANDED.


text:
    SECRETARY OF the DEPARTMENT OF REVENUE AND TAXATION, State of Louisiana v. C. T. ALMAND DISTRIBUTOR, INC.
    No. 13931.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Rehearing Denied March 16, 1981.
    Writ Refused May 1, 1981.
    James W. Murray, Baton Rouge, for Secretary of the Department of Revenue and Taxation, State of Louisiana.
    Richard S. Dunn, Robert L. Roland, Baton Rouge, for C. T. Almand Distributor, Inc.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

Appellant, Secretary of the Department of Revenue and Taxation (Secretary), appeals the ruling of the District Court modifying the Occupational License Tax assessment the Secretary had made against appellee, C. T. Almand Distributor, Inc. (Almand).

Almand operates a bulk distribution plant for Gulf Oil Corporation products. The plant operates on a retail and wholesale basis selling wholesale to local service stations and stores, while their retail business consists of farm, industrial and commercial customers. Included within its products are tires, batteries and accessories as well as all liquid petroleum products. The tires, batteries and accessories are bought by Al-mand from Gulf and it has paid Occupational License Tax for this portion of its business. It receives its petroleum products under a consignment agreement with Gulf. Almand remits the entire gross sales from the petroleum products directly to Gulf Oil Company and receives a commission from Gulf based upon these gross sales.

The Secretary sent a Notice of Assessment to Almand on October 31, 1978, for the amount of $2,038.50 ($1,620.00 in tax and $418.50 in interest) for the tax period of 1975-1978. Almand appealed this assessment to the Board of Tax Appeals contending that the taxes were paid and alternatively that the Secretary erred in assessing the tax under the wrong section.

The Board of Tax Appeals ruled in favor of Almand without assigning written reasons, vacating and setting aside the assessment. From this adverse ruling, the Secretary appealed to the District Court which modified the ruling.

The Court was of the opinion that Al-mand should be assessed under the provisions of La.R.S. 47:351 instead of La.R.S. 47:349. It relied on paragraph C of section 351 pertaining to distributing plants engaged in the storage and sale of petroleum products as the basis for its ruling. The Court thereafter amended its judgment and its written reasons allowing a credit to Al-mand for the Occupational License Tax already paid by Gulf Oil for the years 1975-1978 for this portion of the business. It further found that Almand could qualify as both a retailer and wholesaler under La. R.S. 47:353.1.

The Secretary perfected this appeal contesting the classification of Almand under section 351 and in crediting the taxes paid by Gulf Oil to Almand.

The sections of Title 47 in dispute are as follows:

“§ 349. For carrying on each business known as sugar factor, grain and produce commission house, manufacturer’s agent, or any other factorage or commission business, merchandise broker, or brokerage in money, produce, sugar or other brokerage business except as herein otherwise provided, whether buying or selling for actual spot or future delivery where the intention of the parties is to make an honest and bona fide delivery, the license shall be based on gross commissions earned for services performed by the broker or agent in Louisiana regardless of whether the principal or party solicited is within or without this State... . ” (Emphasis Added).
“§ 351-A. For every wholesale dealer in merchandise, not otherwise provided for by this Chapter or by special laws, whether the business be conducted at a fixed establishment or otherwise, and whether conducted as principal, agent on commission or otherwise, the license shall be based on the amount of gross sales, ...” (Emphasis Added.)
“C. In calculating the gross sales at bulk or distributing plants engaged in the storage and sale of petroleum products, the taxpayer shall exclude therefrom that part of the purchase price paid by him for gasoline, motor fuels or lubricating oils as shall equal the manufacturer’s or dealer’s license, privilege or excise tax levied by federal or state statutes on the manufacturing, handling, storing, selling or consuming of gasoline, motor fuels, or lubricating oils; * * * but nothing herein contained shall be construed as amending, altering or modifying any other Section of this Chapter.”
“§ 353.1 For every business of selling at retail from a fixed place of business, merchandise to dairymen and cattlemen or farmers, federal, state, parish or municipal governments, or institutions, or to hospitals, educational or charitable institutions, or to manufacturers, public utility companies, processors, refiners, fabricators, contractors, severers of natural resources, carriers of freight and/or passengers, pipe lines, hotels and restaurants, the license shall be based on gross annual sales. * * *
“Wholesale dealers in merchandise and businesses selling building material at retail or wholesale, subject to tax under R.S. 47:351, who also sell at retail to the above named consumers, may obtain a single license covering both operations computed at the rates in this Section provided they include in the tax base the total gross sales of both types of businesses.”

We find the reasons for judgment of the Trial Court to be very explicit in its determination that Section 351 is applicable to Almand:

“The Secretary construes the phrase ‘any other factorage or commission business’ in Section 349 to cover Almand’s business. This construction is based on the fact that Almand receives a commission on sales of Gulf’s petroleum products. However, that approach overlooks the reference to an ‘agent on commission’ in Section 351.
“The fact is, not only does Section 351 deal with agents on commission, paragraph C specifically refers to ‘calculating the gross sales at bulk or distributing plants engaged in the storage and sale of petroleum products’ for licensing and taxing purposes. Although Sections 349 and 351 refer to commission businesses, Section 349 is very broad. Section 351 is somewhat more specific, at least insofar as bulk distributorships are concerned. In trying to reconcile these overlapping sections, it can be said, at least, Almand owes an occupational license tax under Section 351 because of the nature of Al-mand’s distributorship and the specific reference in Section 351 to such businesses; at worst, when read together, the statutes are ambiguous, and ambiguities must be resolved in favor of the taxpayer. Chicago Bridge and Iron Co. v. Cochreham, 317 So.2d 605 (La.1975). Resolution of this ambiguity in favor of Almand subjects Almand to the provisions of Section 351, a less burdensome statute.
“Insofar as Section 353.1 entitles the taxpayer to obtain a combined wholesale and retail occupational license (each respectively due under Sections 351 and 353), Almand is subject to the license and tax provisions of 47:353.1.”

We find that a reading of the two sections in the fashion outlined by the Trial Court is a correct interpretation. The more specific statute should be the one consulted in this matter. While La.R.S. 47:349 deals with commission businesses it specifically excludes all brokerage businesses otherwise provided for by law. Section 351, paragraphs A and C, specifically establishes ap-pellee’s type of business for licensing purposes as a “wholesale dealer.” We also are in agreement that La.R.S. 47:353.1 is applicable to Almand and the rates provided for therein should be applied to its operations.

The next matter to consider is whether Almand is entitled to a tax credit on this tax from the licenses bought by Gulf Oil. Gulf Oil bought wholesale licenses covering the sales of liquid petroleum products. Under La.R.S. 47:396, Gulf Oil is exempted from the Occupational License Tax, if it does not sell at the retail level. Almand conducts its business at 417 Church Street, Haynesville, Louisiana. Almand is the one who sells petroleum products to the retail outlets and to the consumers listed in La. R.S. 47:353.1. Payments for these sales are made to Almand in its name and not to Gulf Oil. The customers are buying from Almand who is the wholesale and retail dealer. Therefore, Gulf Oil is not selling at the retail level even though Almand never receives title to the liquid petroleum products under its consignment agreement with Gulf, which, in effect, is also a security device. While Almand does not have technical title to the petroleum products, it does have all the other responsibilities of an owner for these products.

Since Gulf Oil is exempt from purchasing a license, the ones that it did purchase listing 417 Church Street, Haynes-ville, Louisiana, as its address must have been for Almand’s business. This being the case, these licenses must be credited toward any assessment the Secretary might levy against Almand under Section 353.1.

For these reasons, the judgment of the Trial Court, as amended, is affirmed at the Department of Revenue and Taxation’s costs in the amount of $247.95.

AFFIRMED.


author: LEAR, Judge.

text:
    Succession of Eugene J. MARCEL, Sr.
    Nos. 13643-644-645.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Rehearing Denied March 16, 1981.
    Writ Refused May 6, 1981.
    Gordon Hackman, Boutte, for Lorene Marcel.
    John R. Walker, Houma, for Joseph Tra-han.
    Huntington Downer, Jr., Houma, for Rose Marie Marcel, Nel Joseph Marcel, Eugene Joseph Marcel, Jr., Mike Joseph Marcel & Sheila Ann Marcel.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

This action arises out of a dispute over attorneys’ fees wherein a wrongful death action was settled and judicially sanctioned. Appellants are Lorine (Lorene) Marcel Scott and her attorney, Gordon Hackman. After a review of the record and consideration of arguments herein, we affirm.

We find the facts as follows:

On June 22, 1977, Eugene Jospeh Marcel, Sr., died intestate aboard the M/V JIM AND JUDY in the territorial waters of Louisiana. At the time of his death, he owned property in the Parish of Terre-bonne, where he was domiciled. He was survived by a wife, Lorine Marcel, from whom he was judicially separated, and five minor children, all of whom were born of the marriage between the decedent and Lo-rine Marcel. Prior to his death, the care, custody and control of the minors was judicially vested in Eugene Joseph Marcel, Sr. During the pendency of these proceedings, Lorine Marcel remarried and is hereinafter referred to as Lorine Marcel Scott.

Subsequent to the death of Marcel, Lo-rine Marcel Scott petitioned the court on July 1, 1977, for appointment as provisional administrator, but no action was taken thereon. Joseph Trahan, the brother of Lo-rine Marcel Scott and uncle of the minor children herein, was appointed tutor of three of the minor children in October, 1977. He was appointed provisional administrator of the succession of decedent in June, 1978, and authorized by court order to retain counsel to prosecute the claims of the minors and the decedent’s estate. The court granted express authority to Trahan to hire, on a contingency basis, the firms of Pullaro & Walker and Waitz & Downer to prosecute all claims which the succession and minors might have against any parties responsible for the death of Eugene Joseph Marcel, Sr.

Acting on the basis of the court’s order, these named law firms instituted suits in both state and federal court in behalf of the minor children and the estate. These suits were filed during June, 1978, just prior to the one-year prescription period. In the meantime, appellants had also instituted suits, ostensibly in behalf of the minors and Lorine Marcel Scott. No court authority had been given to Mrs. Scott or Hackman at the time to file such suits.

Joseph Trahan and Lorine Marcel Scott continued to litigate the issue of custody of the minors and probate of the estate. In the meantime, however, the court-sanctioned attorneys continued to litigate the claims of the minors and the estate and to engage in settlement negotiations.

In December, 1979, Joseph Trahan’s opposition to Lorine Marcel Scott was withdrawn and she was confirmed as tutrix of all of the minor children and as administra-trix of the estate of her deceased husband. Simultaneously therewith, the lower court signed an order terminating the representations of Hunt Downer and Eddie Pullaro and authorized Lorine Marcel Scott to compromise the claim of the minors and the estate of Eugene Joseph Marcel, Sr., against all defendants in the civil actions. The suit was compromised for the sum of $130,000.00. Lorine Marcel Scott was to receive $40,000.00 individually, and a total of $90,000.00 in behalf of the minors.

On December 20, 1979, Lorine Marcel Scott, appellant, filed a rule to show cause, inter alia, why settlement fund should not be disbursed. A petition for intervention was then filed by Waitz, Downer & Best, a law partnership, claiming its right to a contingency fee on the minors’ portion of the settlement. After hearing was held thereon, judgment was entered recognizing the contracts of Gordon Hackman as applicable only to the representation of the rights and interests of Lorine Marcel Scott. The court further held that the contracts of Huntington Downer, Jr. and Eddie Pullaro were applicable insofar as the minors’ rights and interests were concerned and awarded to them a contingency fee out of the proceeds of the minors’ portion of the settlement.

Appellants argue that the claim of Downer and Pullaro should be dismissed, except for a nominal fee award for filing suit. This argument is apparently based upon appellants’ contention that once the widow and mother hired appellant, Hackman, he was vested with the sole authority to represent the estate and the interests of the minor heirs. This argument, however, overlooks the fact clearly established of record that a provisional tutor was appointed and empowered to enter into the contingency contract here attacked. Such a contract has the full sanction of law and it was, therefore, incumbent upon appellants to challenge the court’s order by application to this court at the time the order was signed. The decision of Southern Shipbuilding Corporation v. Richardson, 372 So.2d 1188 (La.1979), which is cited by appellants, is distinguishable. In that case, unlike here, no application was made to the court for qualification as tutrix until settlement was about to be confected. Here, application was made and confirmation obtained some two and one-half years prior to settlement with the court giving its express approval of a contingency contract. We believe the facts established herein clearly foreclose any attack upon this contingency contract. We believe that the lower court has correctly followed our Supreme Court decision recently rendered in Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La.1979) (on rehearing). The evidence, testimonial and documentary, coupled with the record herein, supports the trial court’s ruling. Here the records reflect that as of May 3, 1979, the defendants’ counsel had offered as much as $70,794.00 for the minor children and that these negotiations were continuing. The trial court’s conclusion, therefore, that appellees were primarily responsible for the minors’ recovery in the amount of $90,000.00 is not clearly erroneous.

For the reasons aforesaid, the decision of the lower court is affirmed at appellants’ costs.

AFFIRMED.


text:
    Charles B. W. PALMER v. FIREMAN'S FUND INSURANCE COMPANY.
    No. 13886.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Rehearing Denied March 16, 1981.
    Writ Refused May 6, 1981.
    Charles B. W. Palmer, Amite, for plaintiff.
    Kenneth E. Barnette, Baton Rouge, for defendant.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

Plaintiff-appellant, Charles B. W. Palmer, perfects this appeal assigning error to the trial court’s ruling dismissing his tort action against Fireman’s Fund Insurance Company after trial by judge alone. After a review of the evidence, we are of a like opinion and, therefore, affirm.

Appellant, Charles B. W. Palmer, is a practicing attorney who resides in Amite, Louisiana. At all times material, he was the attorney for Felix Lucito, who was a plaintiff in the proceedings below, but who has not perfected an appeal herein. Lucito was represented by Palmer in a workmen’s compensation action against his employer, Ponchatoula Feed & Seed of Ponchatoula, Louisiana. Lucito had received several workmen’s compensation checks, payable on the account of defendant-appellee, Fireman’s Fund, the workmen’s compensation insurer. Palmer, on December 6, 1976, deposited some five drafts totaling $5,193.90 with the Citizens National Bank in Amite, Louisiana. The largest draft amount ($4,486.70) had been issued on June 23,1976. Since he was an attorney who did business with the bank, his account was immediately credited with the full sum, after his endorsement and that of Mr. Lucito were obtained by a Mrs. Mabel Walker, a bank employee. The drafts were made payable through the Wells Fargo Bank of San Francisco, California. They bear the endorsement on the back of “Felix Lucite” (sic) and “Charles, Palmer, Atty.”

When the drafts reached San Francisco, the bank refused to honor them, stamping on the face of each instead, “PERSONAL ENDORSEMENT OF EACH PAYEE REQUIRED.” This transpired on or about December 20, 1976. The defendant company, Fireman’s, admitted that it refused to honor the drafts because its employee believed the endorsements were made by the same person.

When the drafts were returned unpaid, Citizens National Bank, through Elmer Crouse, communicated the following notice to Mr. Palmer on December 23, 1976:

“Dear Mr. Palmer:
“Fireman’s Fund returned five drafts which you deposited with us in the amount of $5,193.90. The bank is holding these return drafts as cash items. Please make immediate arrangements to have these drafts honored. These drafts were returned to Citizens National Bank marked (Personal endorsement of each payee required).
“Thank you for your prompt attention in this matter.”

Palmer testified that upon receipt of the above communication, he felt defamed; that the statement, “Personal endorsement of each payee required”, constituted, in his opinion, an allegation of forgery and was most libelous. The theme of Palmer’s case was bottomed on defamation of character, and his assertion that the transaction described above exposed him to embarrassment, ridicule and even criminal indictment.

We have reviewed the record and we are unable to find any merit in appellant’s contentions. Appellant’s own witness, Elmer Crouse, testified that it is a common practice for banks to advance credit on a draft to those attorneys regularly doing business with it. He stated, however, that a draft is merely a collection item and that the endorsers must return the cash if the draft is not paid. On cross examination, the witness further pointed out that a confirmation of the signatures to the satisfaction of the paying agency (here Fireman’s Fund and Wells Fargo) is usually sufficient and that no cash repayment would be required under those circumstances. In fact, this is exactly what was later done and the endorsers were not required to return any money to Citizens National Bank. Nor, indeed, were any criminal charges whatsoever instituted against appellant.

The elements necessary to recover for defamation, set out in Trahan v. Ritterman, 368 So.2d 181, (La.App. 1st Cir. 1979) are: (1) defamatory words, (2) communicated to some person other than the one defamed, (3) falsity, (4) malice, actual or implied, and (5) resulting injury. If criminal conduct is imputed, the false words are defamatory per se.

However, contrary to appellant’s contention, we are unconvinced that the words stamped on the face of the drafts accused him of criminal conduct.

Further, in making a determination of whether the words are defamatory, the court must look not only to the words themselves but also to the context and circumstances in which they were used. For example, in Becnel v. Boudreaux, 340 So.2d 687 (La.App. 4th Cir. 1976), writ denied 342 So.2d 671 (La.1977), the defendant, a school board member, at a public meeting of the board, stated: “I refuse to be blackmailed! Mr. Becnel is blackmailing us!” This was also reported in the local newspaper. Mr. Becnel, an attorney, brought suit and won an award in the trial court which was reversed on appeal.

In our opinion, Mr. Palmer’s case is much weaker than that of Mr. Becnel.

The record reveals that appellant, Palmer, was engaged in some form of public controversy involving the office of the district attorney for the Twenty-First Judicial District. Nevertheless, that dispute was totally irrelevant to the issues of this lawsuit and appeal. There is no evidentiary basis of record which supports appellant’s claims. Therefore, the decision of the lower court is affirmed at appellant’s cost.

AFFIRMED.


author: WATKINS, Judge.

text:
    Allen PRICE, Sr., and Rena LeBoeuf Price v. Lawrence BOQUET.
    No. 13888.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Douglas H. Greenburg, Houma, for plaintiffs and appellees.
    Cleveland J. Marcel, Jr., Houma, for defendant and appellant.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is a devolutive appeal taken by defendant, Lawrence Boquet, from a judgment of the trial court awarding plaintiffs, Allen Price and Rena LeBoeuf Price, damages for defendant’s interference with plaintiffs’ exercise of their trapping lease.

We have thoroughly reviewed the record including the exhibits and transcript of testimony, and find the trial court’s written reasons for judgment contain an excellent exposition of the facts and (with the minor addition set forth below) a correct application of the law, and accordingly quote from them in their entirety:

“This suit for damages, including the loss of four (4) dozen animal traps and loss of income was brought by Mr. and Mrs. Allen Price, Sr. against Mr. Lawrence Boquet. The plaintiffs contend that while trapping on a valid trapping lease held by them, on December 10,1978, the defendant, Lawrence Boquet, threatened them, picked up their traps and burned the marshland that was the subject of their lease. This action by the defendant caused them to lose their traps and prevented them from enjoying the profits from the remainder of the 1978-1979 trapping season. The defendant answered the petition denying all of plaintiff’s (sic) allegations. The Court rendered judgment in favor of plaintiffs for the following reasons:
“The evidence is clear that Mr. and Mrs. Allen Price, Sr. were granted the right to trap fur bearing animals on certain property in Terrebonne Parish, Louisiana, owned by Mr. Elie A. Klingman. The particular tract in question had a front of three (3) arpents on the left descending bank of Bayou Terrebonne by depth of two (2) arpents and was designated as being contained in Lot 1 of Section 48, T20S, R18E.
“This lease was located near the southwestern most corner of Section 48.
“Though uncorroborated, Mr. Lawrence Boquet claims he had for some time leased portions of Section 48 and 49 from the A. M. Dupont Corporation. He also claims he had the trapping rights on the rear or eastern portion of Section 48 by verbal agreement with one of the multiple owners of Section 48. However, Mr. Boquet freely admitted he had no idea where the boundary lines of any of the property owners in the area were.
“In any event, at some point in time, prior to December 7, 1978, Mrs. Price set out six (6) dozen traps on her lease. Mrs. Price testified that she set out her trap line extending eastward from the closed end of a slip located on her lease with the last trap being about three hundred (300') feet from the bank of Bayou Terrebonne. This obviously put her traps well within the boundaries of her 3 arpents by 2 arpents lease. Mrs. Price collected the animals from her traps on December 7th, 8th and 9th and secured pelts which she later sold for $115.00.
“On December 10, 1978, Mrs. Price and her husband were in their boat crossing a marsh pond headed west toward their lease when they encountered Mr. Lawrence Boquet, on foot, standing on the eastern end of the pond on or near their lease. Mr. Boquet was, at the time, armed with a .22 cal. rifle. When the Prices reached a point about 125' away, Mr. Boquet stopped them. The testimony is unclear exactly what was said except that both parties confirmed that Mr. Bo-quet did in fact tell the Prices to ‘get the hell off his lease.’
“Following this, the Prices withdrew and noted that Boquet was, in fact, picking up some of their traps. Mr. Boquet admitted to removing at least two (2) dozen traps and putting them in a pile somewhere near the pond. Mrs. Price testified that although she attempted to retrieve her traps some days later she could only find two (2) dozen of the six (6) dozen she had put out. At some point later Mrs. Price claims Mr. Boquet telephoned her and told her he was going to burn the marsh. Mr. Boquet also admitted that he did, in fact, set fire to the area he intended to trap, which was con-tigious (sic) to that leased by Mr. and Mrs. Price. Mrs. Price discontinued her trapping on the lease for the remainder of the season.
“This Court is satisfied that Mrs. Price had, in fact, placed her traps within the boundaries of her lease. By the defendant’s own admission, he had no idea where any of the boundaries were. The defendant further admitted that he had taken the traps belonging to Mrs. Price and moved them to another position. Although he only admitted to taking two (2) dozen traps this court is convinced that the number of traps amounted to four (4) dozen. The contention that the defendant believed the traps to be within the boundaries of his lease does not persuade this Court. The defendant, certainly knew the traps he confiscated belonged to Mr. and Mrs. Price. This, in itself, was an unlawful conversion. The fact remains that the traps were lawfully placed within the boundaries of the Price lease. The fact remains also that four (4) dozen traps were never recovered by Mr. and Mrs. Price, nor were the traps ever returned to them. The Court therefore finds that the value of the lost traps to be the sum of ONE HUNDRED FORTY FOUR AND NO/100 ($144.00) DOLLARS.
“The plaintiffs seek compensation for the loss of income as a result of the unlawful conversion of their traps, the burning of their lease and the intimidation by the defendant. With regard to the burning of the lease, this Court is not satisfied that such was detrimental. Although the defendant admitted that he burned his own lease which, in turn burned the plaintiffs’ lease, there was adequate testimony to the effect that marsh burning is an accepted and universal practice. Such practice is generally considered to be beneficial rather than detrimental. This Court is convinced, however, that the loss of the four (4) dozen traps would and did have an effect on the plaintiffs’ income from their lease. The most difficult problem is the amount of the loss. Trapping of wild animals is, in itself, very speculative in nature. The Price lease was extremely small in size compared to most trapping leases. There was evidence to the effect that the Prices recovered so much over a three day period, and asked this Court to compute the daily earnings per day over a number of days trapped to find the loss. However, this Court finds this too speculative, considering the small acreage. Should this be broken down to earnings per acre, an average trapping lease, which is much larger would yield several hundred thousand dollars per season. In light of the speculative nature of the problem this Court finds an award of SEVEN HUNDRED AND FIFTY ($750.00) DOLLARS to be reasonable under the circumstances.
“Further since this was an unlawful conversion and the plaintiffs’ are entitled to general damages for their inconvenience, the Court finds the sum of TWO HUNDRED FIFTY AND NO/100 ($250.00) DOLLARS reasonable.
“The Court further awards interest at the rate of seven (7%) per cent per annum on the sum of the above awards from judicial demand, until paid and condemns the defendant to pay all court costs incurred.
“These reasons for judgment are rendered, read and signed in Chambers in Houma, Louisiana, on this 10th day of April, 1980.”

We find that the facts as presented in the written reasons for judgment require the awarding of damages for loss of income for a reason in addition to the unlawful conversion of the traps. Boquet appeared with a rifle while the plaintiffs were exercising their lawful rights under their trapping lease and told them to “get the hell off my lease.” (The lease was plaintiffs’, not Bo-quet’s, as Boquet somewhat equivocally later admitted.) He removed the traps owned by the Prices and burned the marsh. Although burning the marsh was somewhat customary, intimidation was clearly one of Boquet’s purposes. Certainly, Boquet’s conduct was intended to scare the Prices off their lease, and his threatening conduct as well as unlawful conversion of the traps, prevented the Prices from trapping on their lease. We find that the Prices had a legitimate fear of violent consequences should they make further attempts to trap their lease. That being the case, the Prices are clearly entitled to lost income.

With that minor addition, we are in full accord with the written reasons for judgment. In any event, we do not find the trial court’s determination manifestly erroneous or clearly wrong. See Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1979).

The judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.


text:
    In re TOWN OF PONCHATOULA v. NATIONAL INDEMNITY COMPANY et al.
    No. 13896.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Allen B. Pierson, Jr. and Mr. Ernest G. Drake, Jr., Ponchatoula, for Town of Ponchatoula.
    Paul E. Farmer, Covington, for Dependable Glass Works, Inc.
    Ben W. Lightfoot, Baton Rouge, for National Indemnity Co.
    Reginald J. McIntyre, Hammond, for Tycer Ready Mix, Inc.
    Robert W. Tillery, Ponchatoula, for James Perrin.
    J. Taylor Rooks, Rhett R. Ryland, Baton Rouge, for Cribbs, Inc.
    Cornelius J. Hyde, Baton Rouge, for G. L. Seale, Seale Insurance & Bonding Agency, Inc. and Virgil Seale.
    Charles M. Hughes and Ms. Ruth Gentry Talley, Bogalusa, for Ero, Inc.
    Charles M. Hughes and Ms. Ruth Gentry Talley, Bogalusa, for Challenge Cabinets.
    Stephen C. Sledge, Hammond, for J. L. Sykes.
    Robert E. Palmer, Ponchatoula, for Gabriel Building and Supply Co., Inc.
    Sumpter B. Davis, III, Baton Rouge, for Virgil L. Seale, Jr.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is a concursus proceeding initiated by the Town of Ponchatoula under LSA-R.S. 38:2243. Judgment was rendered in favor of the City of Ponchatoula (sic) and against National Indemnity Company, Virgil Seale, Harvey Construction, Inc., and Russell K. Harvey in the sum of $14,196.00, in favor of National Indemnity against the other parties named above which were cast in judgment, and in favor of Challenge Cabinets in the sum of $2,520.00 and Ero, Inc., in the sum of $1,197.80 against the Town of Ponchatoula, National Indemnity Company, Virgil Seale, Harvey Construction, Inc., and Russell K. Harvey. National Indemnity appealed, and the Town of Pon-chatoula''appealed that part of the judgment rendered against it and in favor of Ero, Inc. and Challenge Cabinets.

As the Town of Ponchatoula neither appeared nor filed a brief prior to the time the case was submitted without oral argument, we consider its appeal abandoned and dismiss its appeal under Rule 7, Sec. 5(b) of our Rules. We reverse the judgment of the trial court to the extent judgment was rendered against National Indemnity for the reasons set forth below.

The trial court did not assign reasons for judgment. However, the judgment insofar as it is rendered against National Indemnity is clearly in error. The mayor of Ponchatoula, Collins Bonicard, conceded in testimony at trial on the merits that National Indemnity’s purported construction bond in the present case was issued with the forged signature of a purported attorney in fact of National Indemnity, Norman Gerwitz, under a forged power of attorney. We have reviewed the bond and various genuine and forged powers of attorney filed as exhibits in this case, and have concluded, as was testified by Irene Mahoney, assistant secretary of National Indemnity, that Gerwitz’s genuine power of attorney from National Indemnity had indeed expired before the construction bond was issued, that the new power of attorney was a forgery, and that the construction bond in question contained a forgery of Gerwitz’s signature. We find nothing to suggest Gerwitz was in any way at fault.

It appears that National Indemnity took reasonable steps to afford notice of the forgery of the power of attorney and possible future forgeries of bonding contracts by publishing pertinent information in The Wall Street Journal, and various local newspapers.

It is obvious that the trial court committed error in casting National Indemnity in judgment.

Accordingly, the judgment of the trial court in casting National Indemnity in judgment, and in rendering judgment in favor of National Indemnity Company against the other parties cast in judgment is reversed, and in other respects the judgment is permitted to stand, all costs to be paid by the remaining parties cast in judgment.

REVERSED IN PART, AFFIRMED IN PART.


text:
    Richard L. BARRIOS, Jr. v. Phillis Bean BARRIOS.
    No. 13899.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Richard E. Redd, Baton Rouge, for Richard L. Barrios, Jr.
    James F. Abadie, Baton Rouge, for Phillis Barrios.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This appeal was fixed for argument and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), this Court, EX PROPRIO MOTU, considers this appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


author: CULPEPPER, Judge.

text:
    Jennings Jack DOFFLEMYER, Plaintiff and Appellant, v. Gary D. GILLEY et al., Defendants and Appellees.
    No. 7087.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.
    Rehearing Denied March 23, 1981.

      Scofield, Bergstedt, Gerard, Hackett & Mount, Robert L. Hackett, Lake Charles, for plaintiff-appellant.
    Raggio, Cappel, Chozen & Berniard, Frederick L. Cappel, Jones, Patín, Tete, No-len & Hanchey, Gregory P. Massey, Brame, Bergstedt & Brame, David A. Fraser, Lake Charles, for defendants-appellees.
    Before CULPEPPER, GUIDRY and CUTRER, JJ.
   CULPEPPER, Judge.

This case comes before us on remand from the Louisiana Supreme Court following reversal of our earlier decision in which we affirmed a jury verdict in favor of the defendants. See Dofflemyer v. Gilley, 378 So.2d 440 (La.App. 3rd Cir. 1979). The Supreme Court found, as had the jury, that the accident was caused by the joint negligence of the defendants, Gary D. Gilley and Frederick Moore, Jr. However, the high court concluded the jury was clearly wrong in finding that plaintiff had assumed the risk of injury by placing himself in a known position of danger. Dofflemyer v. Gilley, 384 So.2d 435 (La.1980).

In remanding the case, the Supreme Court has instructed us as follows:

“In sum, we find that the accident was caused by the joint negligence of Gilley and Moore, Jr. Moore, Sr. is liable as the father of Moore, Jr., who was a minor at the time of the accident. Furthermore, plaintiff’s action is not barred by either the defense of assumption of risk or that of contributory negligence. Hence, the court of appeal erred in dismissing plaintiff’s action.
“As previously noted, if plaintiff is entitled to recover, we must determine (1) the amount of damages, if any, (2) whether American and/or GEICO are liable for these damages under their respective policies; and (3) if Gilley and Moore, Sr. are cast in the main demand, whether they properly preserved their rights of indemnity, if any, under their third party demands against American and GEICO. As the court of appeal affirmed the judgment of the trial court dismissing plaintiff’s action, it did not address these issues. We therefore consider it more appropriate to remand the case to that court for it to determine and decide these issues.”

THE AMOUNT OF DAMAGES

Immediately after the accident, plaintiff was taken to a hospital where the doctors diagnosed an injury to the left ilium with a large hematoma above the crest of the ilium, lacerations to the left elbow, left knee and left ankle, and a laceration to the left flank. He was hospitalized a total of 15 days. Plaintiff additionally suffered several broken teeth, which were eventually extracted. Prior to the accident, plaintiff had been suffering from a peridontal condition. The teeth injuries probably caused him to lose the only 10 teeth he had before the accident, although these teeth were in poor condition.

In response to special interrogatories, the jury set plaintiff’s damages at $4,200. Plaintiff’s medical expenses following the accident totaled $2,809.56. This leaves an award of approximately $1,400 for general damages.

Considering the extent and nature of plaintiff’s injuries, we find the award so inadequate as to constitute an abuse of the jury’s discretion. Under the jurisprudence, we will increase the award to the lowest sum which was reasonably within the discretion of the jury. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). Accordingly, we will increase the award from $4,200 to the sum of $10,000.

LIABILITY OF GEICO AND AMERICAN

At the time of the accident, Fred Moore, Jr. was an unemancipated minor. Thus, his father, Frederick Moore, Sr., is responsible for the damages occasioned by his son. LSA-C.C. Article 2318. Liability against the defendant GEICO is sought on the basis of a homeowner’s insurance policy issued to Frederick Moore, Sr. Under the policy, GEICO agreed to pay “all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an occurence.” However, the policy contains the following exclusionary provision:

“ ‘This policy does not apply:
“1. Under Coverage E — Personal Liability and Coverage F — Medical Payments to Others:
“a. to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:
* * * * * *
“(2) any motor vehicle owned or operated by, or rented or loaned to any Insured; ...”

The term “insured” is defined in Section 8 of the policy as follows:

“a. “Insured” means
“(1) the Named Insured stated in the Declarations of this policy;
“(2) if residents of the Named Insured’s household, his spouse, the relatives of either, and any other person under the age of twenty-one in the care of any Insured; ...”

Under these provisions, the issue is whether Fred was a resident of his father’s household at the time of the accident. The exclusion applies if Fred was a resident of his father’s household. Thus, GEICO is liable if Fred was not a resident of his father’s household at the time of the accident.

The evidence shows that Fred had lived with his parents until April 29, 1976, at which time he moved from his parents’ home to another address in Lake Charles. Neither Mr. Moore nor his wife knew exactly where their son was living after this time. The accident occurred on June 26, 1976.

According to their testimony, the only way his parents could communicate with Fred after he moved was at his place of employment. Fred did return home from time to time for a meal or to wash his clothes. But, Mr. Moore testified that his son removed all of his belongings with the exception of two dress suits, which he never wore. Moreover, certain documents introduced at trial, namely a 1975 traffic ticket, a 1975 accident report, a 1975 W-4 Form (Employee’s Withholdings Allowance Certificate), a 1976 W-2 Form (Wages and Tax Statement), a 1976 motel receipt, and an envelope with a 1976 postmark showed that Fred was using an address at 613 West Claude Street in Lake Charles, which was not his father’s address.

A person’s residence is determined from the particular facts of each case. Ladner v. Andrews, 216 So.2d 365 (La.App. 3rd Cir. 1968). Our Supreme Court in Taylor v. State Farm Mutual Auto. Ins. Co., 248 La. 246, 178 So.2d 238 (La.1965) was confronted with a similar problem. There, an unemancipated minor left his home in Arkansas to reside with his uncle in Louisiana, where he worked. He moved those clothes necessary for his work and visited his parents when he had time off. The court concluded that the minor had only temporarily left his parents’ home, and that he had not established a separate residence in Louisiana.

More recently in Branam v. Traders & General Ins. Co., 344 So.2d 1073 (La.App. 3rd Cir. 1977), a minor whose parents resided in Many, Louisiana, entered college at Northwestern University in Natchitoches. The minor shared an apartment with a friend, where he kept all of his clothes and was self-supporting. He would visit his parents about once a month for the week end and would sometimes wash his clothes there. The court affirmed the trial court’s finding that the minor’s residence was in Natchitoches and not with his parents. See also Flannigan v. Valliant, 371 So.2d 349 (La.App. 4th Cir. 1979), where a minor who had removed all his personal belongings from his father’s apartment, was self-supporting and chose voluntarily to leave home, was held not to be residing with his father.

In this case, we conclude the jury was clearly wrong in finding that Fred’s residence was with his parents at the time of the accident. Unlike Taylor, Fred’s voluntary decision to leave his parents’ house was permanent, and he showed no intention of returning to or being dependént on his parents. Fred clearly was no longer a member of his father’s household. Thus, the exclusionary provision in the GEICO policy is inapplicable.

The question of American’s liability under its policy which covered the automobile of Fred Moore, Jr. is less difficult. After the trial, the jury found that the accident was an intentional act on the part of Gary G. Gilley. The Supreme Court, in reversing, concluded that the accident was not intentional. Thus, American cannot rely on the intentional act exclusion. Under American’s policy, “persons insured” include:

“(2) Any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, ...”

The testimony shows clearly that Gary Gilley was driving Fred’s car at the time of the accident with Fred’s consent. Accordingly, American is liable under the policy issued to Fred Moore, Jr.

THIRD PARTY DEMANDS

The defendants, Gary Gilley and Frederick Moore, Sr., filed third party demands seeking indemnity from American and GEI-CO under their respective policies. The judgment of the trial court in favor of these defendants included an order dismissing the third party demands. However, defendants Gilley and Moore answered the appeal to protect their third party demands in the event of reversal of the main demand on appeal. The judgment of the trial court was affirmed by this Court. On plaintiff’s application, the Louisiana Supreme Court granted certiorari and subsequently reversed the main demand. Neither Moore nor Gilley applied for writs to the Supreme Court.

On remand, American and GEICO contend that the judgment dismissing the third party demands is now final, and that Moore and Gilley have lost their rights under their third party demands. We disagree. As successful parties to the litigation, Moore, Sr. and Gilley could by answer to the appeal demand modification, revision or reversal of the judgment rejecting their third party demands. LSA-C.C.P. Article 2133. Both answered the appeal, Gilley contesting those portions of the jury’s verdict which found that the accident was an intentional act on his part, and Moore, Sr. contesting the jury’s finding that Fred Moore, Jr. was a resident of the household of Frederick Moore, Sr. As this Court affirmed the judgment of the lower court, neither of these issues was reached in our original decision. However, plaintiff’s timely application for a writ of certiorari prevented the Court of Appeal judgment from becoming final. LSA-C.C.P. Article 2166 states in pertinent part:

“The judgment of the court of appeal becomes final and definitive if neither an application to the court of appeal for rehearing nor an application to the Supreme Court for a writ of certiorari is timely filed.”

Since, neither the trial court judgment nor our original decision has ever become final, defendants Moore, Sr. and Gilley still have their rights under their answers to the appeal to seek judgment on their third party demands.

DECREE

For the reasons assigned by the Supreme Court in its decision, 384 So.2d 435, and for the further reasons assigned by this Court on remand as set out above, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment herein in favor of the plaintiff, Jennings Jack Dofflemyer, and against the defendants, Gary D. Gilley, Frederick R. Moore, Sr., individually and as administrator of the estate of the minor, Frederick R. Moore, Jr., Government Employees Insurance Company and American Indemnity Company, jointly and in solido, for the sum of $10,000, together with legal interest thereon from date of judicial demand until paid, and for all costs in the trial and appellate courts, the liability of American Indemnity Company being limited to its coverage of $5,000 under its policy.

It is further ordered, adjudged and decreed that there be judgment herein in favor of third party plaintiff, Frederick R. Moore, Sr. and against third party defendant, Government Employees Insurance Company, for any amount for which Frederick R. Moore, Sr. is cast on the main demand.

It is further ordered, adjudged and decreed that there be judgment herein in favor of third party plaintiff, Gary D. Gilley, and against third party defendant, American Indemnity Company, for any amount for which Gary D. Gilley is cast on the main demand, the liability of American Indemnity Company on the third party demand against it being limited to its coverage of $5,000 under its policy.

REVERSED AND RENDERED.

      . GEICO had previously moved for a summary judgment based on this issue. The trial court granted summary judgment in favor of GEICO, and defendant’s father, Frederick Moore, Sr., appealed. This court, without ruling on Fred’s actual residence, held summary judgment was improper and reversed. Dofflemyer v. Gilley, 360 So.2d 909 (La.App. 3rd Cir. 1978).


author: FORET, Judge.

text:
    Charles NEATHERY, Plaintiff-Appellant, v. STATE of Louisiana, THROUGH its DEPARTMENT OF CORRECTIONS et al., Defendants-Appellees.
    No. 7813.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.
    Rehearing Denied March 23, 1981.

      Allan L. Placke, West Monroe, for plaintiff-appellant.
    Carmack Blackmon, Baton Rouge, for defendants-appellees.
    Before FORET, SWIFT and DOUCET, JJ.
   FORET, Judge.

This is a tort action. Charles Neathery (Plaintiff) is seeking to recover damages for personal injury. The defendants are Albert Pratoff; the State of Louisiana, through the Department of Corrections (the Department); and the Louisiana National Guard (the Guard). The trial court entered a default judgment against Albert Pratoff and dismissed, with prejudice, plaintiff’s action against the Department and the Guard. Plaintiff appeals from the judgment of dismissal.

The sole issue is whether the conduct of the Department and the Guard constitutes actionable negligence for which they should be held liable to the plaintiff.

FACTS

Plaintiff and Albert Pratoff were inmates at Camp Beauregard, a minimum security prison in Rapides Parish, Louisiana. These two inmates performed jobs for the Guard as part of a work release program. They were under the supervision of the Guard from 7:30 A.M. to 4:00 P.M., and the remainder of their time was spent under the supervision of the Department.

The work release program was conducted with certain carefully screened prisoners in the custody of the Department. The Department selected only those prisoners who qualified under the rigid criteria set forth by its regulation # 30-14. The criteria excluded from the program inmates whose records revealed compulsive or habitual use of violence against the person, habitual felony offenders, and those with bad work habits or a history of lack of cooperation with penal authorities.

These criteria were designed to select inmates who could reliably function in a minimum security facility. The goals of the program were the rehabilitation and return of inmates into the mainstream of society, and they were allowed a greater degree of freedom than prisoners in the more restrictive medium or maximum security institutions. It is important to note that the facility where plaintiff was incarcerated at the time of this incident was a minimum security facility. Prisoner participants were not closely supervised during their work day and those who had successfully completed a probationary period were allowed to leave the facility on weekend passes. The primary purpose of this minimum supervision was to allow prisoners to function in an environment similar to the outside world.

Plaintiff and Pratoff were assigned to a grass-cutting crew under the supervision of Sergeant James H. Odom of the Guard on June 16,1977. They became involved in an argument, and plaintiff knocked Pratoff to the ground. Plaintiff turned and began walking away when Pratoff picked up a “swing” blade and attacked. Plaintiff turned to defend himself, and Pratoff cut him across the right arm, breaking it. Plaintiff was taken by other members of the crew to the work release center and then to the Charity Hospital in Alexandria, Louisiana.

Plaintiff instituted this action against Pratoff and the Department on March 17, 1978. He then filed a supplemental and amended petition on June 13,1978, in which he named the State of Louisiana, through its military department, the Louisiana National Guard, as an additional defendant. The action was tried on September 14,1979, at which time a default was entered as to Pratoff. The trial court rendered judgment on November 2, 1979, in favor of plaintiff and against Pratoff in the amount of $8,030.00, and dismissed, with prejudice, plaintiff’s action against the Louisiana Department of Corrections and the Louisiana National Guard. Plaintiff was granted an appeal from that portion of the judgment dismissing his action against these two defendants.

ALLEGED NEGLIGENCE OF THE DEPARTMENT AND THE GUARD

Plaintiff alleges that these defendants (the Department and the Guard) were negligent in that they failed to provide constant supervision over the inmates in the work release program. He argues that the inmates were issued tools, i. e., grass-cutting devices, which could be used as deadly weapons. Further, plaintiff argues that the Guard had notice of the trouble he was having with Pratoff and, yet, failed to take any steps to prevent the incident which finally occurred between the two.

The question is whether this conduct of these defendants constitutes actionable negligence.

Before a determination of liability can be made, we must first inquire as to whether any causal relationship exists between the harm to the plaintiff and the defendants’ alleged negligent conduct. Thus, if the plaintiff can show that he probably would not have suffered the injury complained of but for the conduct of the defendants, he has carried his burden of proof relative to cause-in-fact. Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406 (La.1976); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Vidrine v. Missouri Farm Association, 339 So.2d 877 (La.App. 3 Cir. 1976), writ denied, 342 So.2d 216 (La.1977); Stewart v. Gibson Products Company of Natchitoches Parish, Louisiana, Inc., 300 So.2d 870 (La.App. 3 Cir. 1974).

There can be no question that the accident would not have occurred but for the defendants’ allowing the inmates access to tools which could be used as dangerous weapons in situations where there was no constant supervision.

However, this finding of a causal relationship between the conduct of the defendants and the injuries suffered by plaintiff does not necessarily establish the former’s responsibility in damages for such injury. Rather, in addition, for the plaintiff to recover damages for such conduct, it must be established that the conduct complained of constituted a breach of a legal duty imposed on defendants to protect against the particular risk involved. Smolinski v. Taulli, 276 So.2d 286 (La.1973); Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1970); Shelton v. Aetna Casualty & Surety Company, supra; Hill v. Lundin & Associates, Inc., supra; Vidrine v. Missouri Farm Association, supra.

Parker v. State, 282 So.2d 483 (La.1973), set forth the legal duty imposed upon penal authorities for the protection of inmates against attacks by other inmates, stating at page 486:

“A penal institution is not an insurer of an inmate against attacks by other inmates. The standard is that of reasonable or ordinary care. The majority rule is that in order to hold the penal authorities liable for an injury inflicted upon an inmate by another inmate, the authorities must know or have reason to anticipate that harm will ensue and fail to use reasonable care in preventing the harm. St. Julian v. State, La.App., 98 So.2d 284 (1957); 60 Am.Jur.2d, Penal and Correctional Institutions, § 17, p. 821 (1972); 72 C.J.S. Prisons § 13, p. 866; Annot., Prison-Assault by Prisoner, 41 A.L.R.3rd 1021, 1028-1029 (1972).”
See also Breaux v. State, 326 So.2d 481 (La.1976) and Lewis v. Listi, 377 So.2d 551 (La.App. 3 Cir. 1979).

This Court, in Lewis v. Listi, supra, has developed a two-part test to determine whether penal authorities have breached this legal duty. First, the plaintiff must show that the authorities knew or had reason to anticipate that the inmate who attacked was going to harm the plaintiff, and secondly, that the authorities failed to use reasonable care in preventing such harm.

The trial court, in its written reasons for judgment, summarized the evidence on this question of whether the defendants knew or had reason to anticipate that Pratoff was going to harm plaintiff. We find this sum-marization to be accurate and adopt it as our own. The trial court stated:

“Plaintiff contends that he informed a Sgt. James Odom that he was having trouble with persons on the grass cutting crew and wished to be transferred to a different crew.
“Sgt. Odom is a member of the Louisiana National Guard stationed at Camp Beauregard. At the time of plaintiff’s injury Sgt. Odom was responsible for supervision of several work crews composed of inmates from the Louisiana Department of Corrections. Sgt. Odom’s duties consisted of assigning tasks to the various crews and seeing that these tasks were properly performed. Sgt. Odom testified that plaintiff was somewhat a troublemaker and a malcontent. Sgt. Odom further testified that plaintiff had complained of problems with members of two previous work crews, and had been transferred to different crews twice within the last two months preceeding [sic] the injury on the basis of these complaints. Sgt. Odom said that plaintiff had complained to him in a general fashion of problems with members of the grass crew, but had named no individual nor any reason to anticipate trouble. Plaintiff never expressed any fear for his own safety to Sgt. Odom, but just complained of inability to get along.
“The plaintiff himself testified that he was not afraid of Pratoff or any other member of the grass crew. I find this attitude understandable, since plaintiff is six feet seven inches (6'7") tall and weighed two hundered [sic] and eighty (280) pounds at the time of the incident.”

The trial court then stated its conclusion as follows:

“Plaintiff failed to prove that these defendants knew or had reason to anticipate the fight between defendant and Pratoff. Given the minimum security nature of the work release program and the careful screening of inmates for this program, I find that the Louisiana Department of Corrections and the Louisiana National Guard exercised reasonable care in conducting this program, and in the supervision of the inmates.”

We agree with these findings of the trial court. We hold that plaintiff has failed to prove that the defendants breached the legal duty imposed upon them to prevent the type of harm he suffered and, therefore, has failed to prove actionable negligence on the part of these defendants.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are assessed against plaintiff-appellant.

AFFIRMED.


author: SWIFT, Judge.

text:
    Ronnie McADAMS, Plaintiff-Appellant, v. The BLACK & DECKER MANUFACTURING COMPANY, INC. et al., Defendants-Appellees.
    No. 7840.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.
    Rehearing Denied March 23, 1981.
    Christopher J. Roy, Alexandria, for plaintiff-appellant.
    Gist, Methvin, Hughes & Munsterman, H. B. Gist, Jr., Bolen & Erwin, James A. Bolen, Jr., Kennedy & Yeager, Charles J. Yeager, Alexandria, for defendants-appellees.
    Before FORET, SWIFT and DOUCET, JJ.
   SWIFT, Judge.

Ronnie McAdams brought this suit to recover damages for personal injuries received while working for Baker Manufacturing Company, Inc. The defendants are The Black & Decker Manufacturing Co., Baker Manufacturing Company, Inc., the latter’s liability insurer and certain of Baker’s executive officers and employees. All of the defendants except Black and Decker filed exceptions of no right or no cause of action based on LSA-R.S. 23:1032 which provides that the rights and remedies granted by our workmen’s compensation act are exclusive and grants immunity under most circumstances to the employer or principal or any of their officers, directors, stockholders, partners and employees from being sued in tort by an injured employee. The trial court sustained the exceptions and upon failure of the plaintiff to amend timely alleging requisite facts the suit was dismissed as to such defendants. The plaintiff has appealed.

The petition sets forth that McAdams’ injuries occurred when his hand came into contact with the blades of a router machine. It further alleges that the machine either had no guard or the protective devices to prevent injury had been removed or changed and that such conduct “was so gross and negligent as to be willful and wanton” and precludes immunity under the compensation act. The parties stipulated plaintiff’s injuries arose during the course and scope of his employment and were com-pensable under Louisiana workmen’s compensation laws.

The 1976 amendment to LSA-R.S. 23:1032, of course, has done away with tort suits against officers, directors, stockholders, partners or employees of the employer (or principal) of an injured worker except where the injury has resulted from their intentional act or such person causing the injury was not then engaged in the normal course and scope of his employment.

McAdams first argues that the conduct of the defendants in the removal or failure to place guards on the router machine and ordering him to work with a defective machine was so grossly negligent that it must be considered intentional. In support of his position plaintiff relies upon the holding of Bazley v. Tortorich, 380 So.2d 727 (La.App. 4 Cir. 1980), writ granted, 383 So.2d 1263 (La.1980).

This court disagreed with Bazley in McGuire v. Honeycutt, 387 So.2d 674 (La. App. 3 Cir. 1980) and Citizen v. Theodore Daigle and Brother, Inc., 392 So.2d 74 (La. App. 3 Cir. 1980). In these cases we cited with approval Guidry v. Aetna Cas. & Sur. Co., 359 So.2d 637 (La.App. 1 Cir. 1978), writ denied, 362 So.2d 978 (La.1978), which held that for an act to be intentional under LSA-R.S. 23:1032: 1) the defendant must have entertained a desire to bring about the result which followed; and 2) he should have believed the result was substantially certain to follow.

The Court of Appeal, First Circuit, recently has expressed the same view in Courtney v. BASF Wyandotte Corp., 385 So.2d 391 (La.App. 1 Cir. 1980), wherein an employee was electrocuted allegedly because of the failure to place a guard on a chlorine cell containing high voltage electricity. Also, see Tobin v. Jacobson, 369 So.2d 1161 (La.App. 1 Cir. 1979); Johnson v. Chicago Mill and Lumber Company, 385 So.2d 878 (La.App. 2 Cir. 1980); Frazier v. Carl E. Woodward, Inc., 378 So.2d 209 (La. App. 4 Cir. 1979); Johnson v. Narcisse, 373 So.2d 207 (La.App. 4 Cir. 1979).

The facts alleged in the petition in the instant suit do not show that the defendants’ acts or omissions were accompanied by the requisite intent to permit recovery in tort, i. e., in removing from or failing to provide the protective devices on the machine causing plaintiff’s injuries the defendants desired and believed that the result was substantially certain to follow.

The plaintiff further contends that by using the adjective “normal” to modify the term “course and scope of employment” the legislature limited the ambit of immunity from tort liability provided in LSA-R.S. 23:1032. As stated in McGuire, we cannot agree with plaintiff’s argument. We find it inconsistent with the legislative intent to restrict tort liability of co-employees and provide for recovery of workmen’s compensation.

McAdams’ petition shows that the duties allegedly breached by the defendants were incident to their employment and we conclude they were then engaged in the “normal course and scope of their employment” within the meaning of LSA-R.S. 23:1032.

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

AFFIRMED.


author: DOMENGEAUX, Judge. PER CURIAM.

text:
    Succession of Arlon Robert LASYONE. Dwain WALLIS, Testamentary Executor, Appellant, v. J. D. LASYONE, Provisional Administrator, Appellee.
    No. 7994.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.
    Rehearing Denied March 23, 1981.
    Jimmy C. Peters, Jena, for appellant.
    Gregory N. Wampler, Colfax, for appel-lee.
    Before DOMENGEAUX, STOKER and LABORDE, JJ.
   DOMENGEAUX, Judge.

This is an action in opposition to the proposed tableau of distribution filed by J. D. Lasyone, the provisional administrator of the Succession of Arlon R. Lasyone. Dwain Wallis, the testamentary executor of the Succession, contests the amount of compensation to be paid the provisional administrator. From a judgment awarding Lasyone $2,250.00 for his services as provisional administrator, the testamentary executor has perfected this appeal. We affirm.

The sole issue on appeal is whether or not the trial court erred in setting the compensation of Lasyone at $2,250.00.

Arlon R. Lasyone died on November 16, 1978. J. D. Lasyone, the brother of the deceased, qualified as provisional administrator on February 22, 1979. The deceased left a will naming Dwain Wallis as testamentary executor. The will was probated on March 26, 1979. Although Wallis qualified as testamentary executor August 15, 1979, Lasyone served as provisional administrator until March 11, 1980, when he filed the tableau of distribution. In the tableau of distribution, Lasyone originally requested $1,200.00 as compensation for his services as provisional administrator. On April 3, 1980, Lasyone amended the tableau of distribution to increase his request for compensation to $2,250.00, alleging that the original amount requested was erroneously stated. After a hearing, the trial court awarded Lasyone $2,250.00 as reasonable fees for his services.

The amount of compensation of a succession representative is provided in La.C.C.P. Art. 3351 which, in part, reads:

“... A provisional administrator or an administrator of a vacant succession shall be allowed fair and reasonable compensation by the court for his services.”

The trial court is vested with much discretion in fixing provisional administrator’s compensation. In re Succession of Prejean, 234 So.2d 757 (La.App. 3rd Cir. 1970). Our review of the entire record reveals that the trial court did not abuse its discretion.

The record indicates Lasyone made numerous trips to England Air Force Base, Alexandria, and Montgomery, Louisiana, on succession business. He also went to and looked after the succession’s real property and the appurtenances thereon once or twice a week while he acted as provisional administrator. Additionally, he collected and preserved the sum of $44,926.52 on behalf of the succession, and also paid some debts of the succession.

Before an appellate court can disturb an award made by a trial court, the record must clearly reveal that the trier of fact abused its discretion in making the award. Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). Although the amount awarded may be on the high side, we cannot say that it constitutes an abuse of discretion. Therefore, we affirm the trial court’s award to Lasyone of $2,250.00 as compensation for his services as provisional administrator of the Succession.

For the above and foregoing reasons the judgment of the trial court is affirmed. All costs are assessed against the appellant.

AFFIRMED.

ON APPLICATION FOR REHEARING

PER CURIAM.

Counsel for the testamentary executor-appellant has suggested in brief amplifying his application for rehearing, that the provisional administrator served dehors his assignment after August 15, 1979, the time that the testamentary executor qualified as such. Even assuming arguendo that he did, his services set out in the opinion were such, that we are not inclined to disturb the discretionary award made by the trial judge.

REHEARING DENIED.

      . Although the compensation involved in Preje-an pertained to an administrator (administra-trix), the “much discretion” rule set out therein obviously applies equally to a provisional administrator.


text:
    Diane Lee ARCENEAUX, Plaintiff-Appellant, v. Mrs. Jerrie BELLOW et al., Defendant-Appellee.
    No. 7998.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.
    Rehearing Denied March 23, 1981.
    Writ Refused May 6, 1981.

      Poteet & Landry, John G. Poteet, Jr., Lafayette, and Walter J. Rippas, St. Mar-tinville, for plaintiff-appellant.
    Davidson, Meaux, Sonnier & Roy, J. J. Davidson, Jr., Voorhies & Labbe, John W. Hutchison, Domengeaux & Wright, James P. Roy, Lafayette, J. B. Willis, St. Martin-ville, for defendant-appellee.
    Before FORET, SWIFT and DOUCET, JJ.
   SWIFT, Judge.

The plaintiff, Diane Lee Arceneaux, instituted this suit for damages allegedly resulting from the failure of the defendants to provide an automobile insurance policy which she requested. From a judgment awarding only part of her claims, the plaintiff has perfected this devolutive appeal.

The plaintiff had a policy of insurance covering her 1967 Pontiac which had been obtained through National from Integon General Insurance Corporation (Integon) in 1976. The coverage was $5,000/$10,000/$5,-000 for public liability for personal injuries and property damages and $500 for medical payments. This policy was to expire on January 13, 1977. However, prior to the expiration date, in December, 1976, Ms. Ar-ceneaux contacted Mrs. Bellow to obtain insurance coverage on a 1971 Oldsmobile she was going to purchase. Plaintiff informed Mrs. Bellow that she needed comprehensive and collision coverage on the new car and says she told her she also wanted the maximum amount of insurance she could get.

On December 21, 1976, Ms. Arceneaux gave National her check in the amount of $125.00 as part payment of the premium and it was deposited in the agency’s account. The balance of the premium was financed by another concern and paid to National shortly thereafter. The plaintiff made the monthly payments directly to the finance company. Ms. Arceneaux was not asked to complete an application and no policy was ever issued to her. Exactly what was said by these parties during this time is in dispute.

On April 5, 1977, Ms. Arceneaux was involved in an automobile accident with Mike Landry. Mr. Landry claimed to have suffered some damages therein and Ms. Ar-ceneaux’s automobile was a total loss. On April 6,1977, Ms. Arceneaux contacted Mrs. Bellow at National to inform them of the accident. Up to this time she had not been told that the policy had not been issued. Mrs. Bellow then learned that National did not have the newly purchased automobile’s serial number and no policy application had been sent to an insurance company. Thereupon, she completed an application and forwarded it to Integon in the hope of getting insurance, but this attempt proved unsuccessful.

Mr. Landry and his collision insurer filed separate suits against Ms. Arceneaux for damages they claimed resulted from the accident. Diane Arceneaux filed this action against National, Integon and Mrs. Bellow. It was consolidated with the other cases, but later severed by the trial judge.

Ms. Arceneaux’s petition, styled “PETITION FOR BREACH OF INSURANCE CONTRACT, DAMAGES, STATUTORY PENALTIES AND ATTORNEY FEES”, set forth the accident of April 5,1977; that she purchased a policy from Mrs. Bellow, agent for National; that it was understood the policy was to provide full coverage, with limits of $100,000/$300,000/$50,000 for personal injuries and property damage, $5000 for medical payments and $100 deductible on collision and comprehensive losses; that Mrs. Bellow “failed to report the existence of such a policy to the underwriters. This gross negligence was the beginning of plaintiffs’ nightmare and all damages flow from this breach of contract”. The damages were listed as follows:

“(a) Loss of income, due to psychological disorders and traumatic neurosis stemming from the breach of contract and recurring harassment, etc.
.$10,000.00
(b) Rental car. 255.00
(c) Payment of premium . 224.36
(d) Property damage to car minus $100.00 deductible . 1,650.00
(e) Past, present and future medical expenses . 5,000.00
(f) Rate increases on new policy . 260.00
(g) Mental anguish, based on traumatic neurosis, etc. suffered by petitioner as a result of defendants gross negligence, breach, and the entire ten month runaround . 40,000.00
TOTAL DAMAGES .$57,389.36
12% Statutory Penalies (sic) . 6,886.72
$3,000.00 Statutory Attorney Fees. 3,000.00
GRAND TOTAL DUE PETITIONER . . $67,276.08”

The defendant Bellow answered denying most of the allegations and further alleging that in December, 1976, plaintiff requested a renewal of her existing car insurance policy. However, due to a “clerical error” the policy was not issued. Alternatively, it set forth that if defendant was held liable then the plaintiff should recover only the amount due under the policy of insurance that would have been in effect at the time of the accident. Later Mrs. Bellow filed an amended answer alleging that the policy was not issued because plaintiff did not furnish the serial number to the automobile as requested.

Defendant National’s answer was substantially the same as Mrs. Bellow’s.

Defendant Integon answered pleading that plaintiff had no insurance policy with it and that neither Mrs. Bellow nor National were its agents. Integon filed a third party demand against Mrs. Bellow and National praying that if the agency questions were decided adversely to it then the third party defendants should be held liable to Integon. Plaintiff’s claims against Integon were ultimately settled and it was dismissed from the suit. Plaintiff has not appealed this decision. Therefore, we are not concerned with any question of liability on the part of Integon.

On the morning of the trial Mrs. Bellow filed a motion to strike Items (a), (e) and (g) of plaintiff’s petition, quoted above, on the basis that they sought recovery of non-pecuniary losses not allowable in an action for breach of contract. She also filed a peremptory exception of no right or cause of action on the ground that she was a salaried employee of National. The exception was directed also at the non-pecuniary losses claimed.

The trial judge granted the motion to strike, evidently considering the action to be in contract rather than tort and that such damages were not recoverable under LSA-C.C. Art. 1934(3) because the object of the contract was not the gratification of some intellectual enjoyment. His ruling also disposed of that part of the exception grounded on the same contention, but its other ground was referred to the merits.

After trial judgment was rendered in favor of the plaintiff against National in the sum of $1803.00, which represented $378.00 it had received as premiums for the never-obtained policy and $1425.00 for the total loss of the automobile it was to insure. Mrs. Bellows’ exception of no cause of action was sustained and the suit was dismissed as to her.

During the trial the court sustained an objection to evidence tendered to establish the items of damages stricken. It also refused to admit evidence of the fact that plaintiff had been sued by Mr. Landry and his collision insurer as damages “flowing from the lack of care of the defendant.” The objection was sustained on the ground that this was not covered by the pleadings. This being the case, the plaintiff then asked for a continuance to amend under LSA-C. C.P. Art. 1154. The motion was denied as being untimely.

The principal issues on appeal are whether the trial court erred in (1) concluding that Mrs. Jerrie Bellow was not personally liable to plaintiff for her fault or neglect in failing to procure the policy; (2) sustaining the defendants’ objection to evidence of the non-pecuniary losses claimed by the plaintiff; and (3) refusing to permit plaintiff to amend her petition and admit evidence of additional damages resulting from the law suits against the plaintiff which had not theretofore been pleaded.

As stated, it appears that the trial judge treated this case as being one for breach of contract rather than for damages resulting from negligence. The caption of the petition so indicates. However, in Louisiana we have fact pleading. Under LSA-C.C.P. Arts. 862 and 1154 the “theory of the case” doctrine has been done away with and the court should render the relief to which a party is entitled even if it has not been demanded in the pleadings.

In Karam v. St. Paul Fire & Marine Insurance Company, 281 So.2d 728 (La.1973), in finding that an insurance agent “negligently failed to procure property liability coverage in the amount requested”, our supreme court expressed the following well-settled rule of law:

“An insurance agent who undertakes to procure insurance for another owes an obligation to his client to use reasonable diligence in attempting to place the insurance requested and to notify the client promptly if he has failed to obtain the requested insurance. The client may recover from the agent the loss he sustains as a result of the agent’s failure to procure the desired coverage if the actions of the agent warranted an assumption by the client that he was properly insured in the amount of the desired coverage. C.C. 3002 and 3003;” [Additional authorities omitted]

Although Riley v. Carver General Insurance Agency, Inc., 279 So.2d 698 (La.App. 4 Cir. 1973) holds that the action is in contract rather than tort insofar as prescription is concerned, Karam and most of the cases we have read allowing recovery for failure to procure the desired coverage when the agent’s actions warranted the customer’s belief that he was covered seem to base the liability on tort, that is, the failure to use reasonable diligence in attempting to place the insurance and to notify the client promptly if the agent is unable to do so. Bourgeois v. Beeson-Warner Insurance Agency, Inc., 144 So.2d 563 (La.App. 4 Cir. 1962); Brunt v. Standard Life Insurance Co., 259 So.2d 575 (La.App. 1 Cir. 1972); Boothe v. American Assurance Co., 327 So.2d 477 (La.App. 1 Cir. 1976); Walker v. Fontenot, 329 So.2d 762 (La.App. 1 Cir. 1976).

We think that such an action can be brought against the agent or broker either for breach of contract or for negligent breach of a duty imposed by contract. 64 A.L.R.3d, 398, 408.

This plaintiff has sought damages for mental anguish and neurosis, for which she could recover in tort if established. Pack v. Wise, 155 So.2d 909 (La.App. 3 Cir. 1963). Consequently, we conclude that under Article 862 of our Code of Civil Procedure the instant case must be considered as a tort action and the plaintiff awarded the relief to which she is entitled.

Under the circumstances we must reverse the district court’s rulings granting the motion to strike and sustaining the defendants’ objection to evidence relating to plaintiff’s mental condition.

Although it was not stated in his oral reasons, the trial judge obviously concluded from the testimony of Ms. Arcen-eaux and Mrs. Bellows that the former was not told the policy would not be issued until she furnished the serial number of the 1971 Oldsmobile and also that the plaintiff was warranted in her assumption that a policy of insurance had been issued until she was notified to the contrary after the accident of April 5, 1977. Otherwise, he would not have rendered judgment against National for the collision damages to her car. We certainly cannot disturb these factual findings as being clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). Thus, Mrs. Bellows was clearly negligent in this matter.

Since this is a tort action, however, we must disagree with the district court’s ruling that Mrs. Bellows, the corporate officer who individually committed the tort, is not liable therefor. In Pack v. Wise, supra, this court said:

“The defendant’s able counsel contends that Wise is not individually liable for a tort committed by him in the course of his duties as a corporate officer. However, it is settled that the aggrieved party has a cause of action in such instances both against the corporate officer individually who committed the tort, as well as against the corporation which is responsible for his acts. Wisemore v. First National Life Ins. Co., 190 La. 1011, 183 So. 247; Adams v. Fidelity & Cas. Co., La. App. 1 Cir., 107 So.2d 496; 19 C.J.S. Corporations § 845 p. 271. Wise is therefore personally liable for the tort herein committed.”

Consequently, both Mrs. Bellows and National are responsible for the damages which resulted to the plaintiff from their failure to exercise reasonable diligence in an attempt to obtain the policy and their failure to give timely notification to her that it had not been obtained. Therefore, her dismissal from the suit was erroneous and the judgment will be reversed in this regard.

We also believe that the trial court erred in denying the plaintiff the right to amend her petition under Article 1154 of our Code of Civil Procedure and admit evidence of damages to which she may be entitled with respect to her liability to Mr. Landry and his insurer if caused by the failure of Mrs. Bellows and National to procure automobile liability insurance. Article 1154 specifically provides that the court should allow such amendments “freely when the presentation of the merits of the action will be subserved thereby, and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him.. .. ” The defendants were well aware of the pending cases against Ms. Arceneaux and we fail to see how they would be prejudiced in this regard. Being a bench-tried case a suitable continuance could have been granted without great inconvenience to provide defendants time for further preparation, if necessary. Adema v. Elliot, 223 So.2d 464 (La.App. 4 Cir. 1969). The trial court’s ruling denying such amendment is therefore reversed.

For the foregoing reasons the judgment of the district court is affirmed insofar as the award to plaintiff of $1803.00 against National Insurance Mart, Inc. is concerned (subject to increase upon plaintiff establishing that she is entitled to additional damages), but otherwise it is reversed and set aside and the case is remanded to the trial court for further proceedings in accordance with law and the views expressed herein.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.