text:
    Joseph JOHNSON, Jr. v. FIREMAN’S FUND INS. CO. et al.
    No. 14566.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Writ Granted April 30,1982.
    Gordon Hackman, Boutte, for plaintiff and appellee.
    Lawrence J. Duplass, New Orleans, for defendant and appellee Fireman’s Fund Ins. Co.
    Sidney L. Patin, Houma, for defendant and appellant-intervenor Continental Ins. Co.
    Robert E. Birtel, Metairie, for defendants and appellees St. Paul Fire & Marine Ins. Co.
    Herbert E. Bowers, III, New Orleans, for defendants and appellees Lumberman’s Mut. Cas. Ins. Co.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit by plaintiff, Joseph Johnson, Jr., against uninsured motorist insurers, Fireman’s Fund Insurance Company (plaintiff’s employer’s uninsured motorist carrier) and Lumberman’s Mutual Casualty Company (plaintiff’s uninsured motorist carrier) for injuries received by plaintiff while operating a vehicle owned by his employer when it collided with an uninsured or underin-sured vehicle. Continental Insurance Companies, the workmen’s compensation insurer of plaintiff’s employer, intervened claiming a preference on any award recovered by plaintiff from defendants for the amount of workmen’s compensation benefits previously paid or to be paid plaintiff. Plaintiff and Fireman’s filed peremptory exceptions of no right and no cause of action. From a ■judgment maintaining these exceptions, Continental has appealed.

Though the question of whether a workmen’s compensation insurer may be allowed to recover from an uninsured motorist carrier the amount it has paid pursuant to the workmen’s compensation law to the employee whose compensable injury was caused by an uninsured or underinsured tortfeasor has not been previously presented to this court, our appellate brethren on the other courts of appeal of this state have decided this issue adversely to the intervenor. Lute v. City of Lake Charles, 394 So.2d 736 (La.App. 3rd Cir. 1981); Bannon v. Edrington, 392 So.2d 186 (La.App. 4th Cir. 1980); Gentry v. Pugh, 362 So.2d 1154 (La.App. 2nd Cir. 1978) writ refused 363 So.2d 922 (1978).

We are not persuaded by appellant’s arguments that these decisions are in error. We agree with the result reached by our brethren and affirm the decision of the trial court at appellant’s costs.

AFFIRMED.


source: Caselaw Access Project

author: ELLIS, Judge:

license: Public Domain

text:
    Guess ORGERON v. LOUISIANA COCA-COLA BOTTLING COMPANY, INC., et al.
    No. 14567.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Carlton J. Cheramie and Edward T. Diaz, Golden Meadow, for plaintiff-appellee Guess Orgeron.
    Joseph A. Reilly, Jr., Houma, for defendant-appellee Sterling Ledet d/b/a Ledet’s Giant Supermarket, Inc.

      Dominic J. Gianna and Franklin Beahm, New Orleans, for defendant-appellant Louisiana Coca-Cola Bottling Co., Ltd.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   ELLIS, Judge:

Plaintiff Guess Orgeron was injured while shopping in Ledet’s Giant Supermarket when a Coca-Cola bottle exploded, cutting his wrist. He filed this suit for damages arising therefrom against Louisiana Coca-Cola Bottling Company, Ltd., Owens-Illinois, Inc., Chattanooga Glass Company and Sterling Ledet, doing business as Le-det’s Giant Supermarket. Plaintiff voluntarily dismissed Owens-Illinois and Chattanooga Glass as defendants, without prejudice, on April 11, 1980. On the morning of the trial herein, December 8, 1980, following a compromise settlement, the suit was dismissed, with prejudice, as to Ledet, with all rights reserved against Coca-Cola. The suit was tried as to Louisiana Coca-Cola Bottling Company, Ltd., only.

No issue was made as to liability by Coca-Cola, and the suit was tried, for the most part, as to quantum only. After trial, judgment was rendered in favor of plaintiff for $117,251.13, consisting of $70,000.00 for pain, suffering, disability and disfigurement; $7,822.70 for past and future medical expenses; and $39,428.43 for economic loss. From this judgment Coca-Cola has appealed, complaining that the award is grossly excessive.

The record shows that on August 4, 1978, plaintiff received a laceration on the back of his left wrist, when a Coca-Cola bottle on a supermarket shelf exploded. He had the wound sutured in the emergency room of a hospital, but did not seek other medical attention until August 9, 1978, when he consulted Dr. Robert M. Boulet, a general practitioner.

Dr. Boulet found plaintiff’s hand to be red and swollen, with plaintiff complaining of pain and numbness of the fingers. The doctor suspected that the numbness might have resulted from some of the sensory nerves having been severed. The stitches were removed because of suspected infection in the wound. Dr. Boulet treated plaintiff with an antibiotic enzyme, B-eom-plex vitamins, vitamins by injection and Butazolidin. During the course of the treatment, plaintiff complained of continued pain and numbness. His hand remained swollen, with little mobility of the fingers.

Dr. Boulet last saw plaintiff on August 23, 1978, at which time his discharge note showed that the wound had healed, but that there was still numbness of the index finger and little finger, some difficulty in moving the index finger, marked swelling, and a mild tremor of the hand. He expected all of these conditions to improve, and recommended an orthopedic or neurological evaluation.

Plaintiff then consulted Dr. Pete H. Rhymes, an orthopedist, on November 2, 1978. Plaintiff complained of pain in the left little finger, and generally over his hand and wrist, and that he was unable to use his hand. Dr. Rhymes’s examination revealed good function of the hand, in that plaintiff could open and close his fingers. There was some weakness of grip, and in dorsiflexion (bending backward) of the wrist, but X-rays proved to be normal. Dr. Rhymes noted no swelling or objective signs of pain, but plaintiff told him that he could not use the hand because of the pain it caused, and that there was intermittent swelling.

An arthrogram was taken which indicated a leak or tear in the capsule containing the structure of the wrist. The wrist was splinted, in the hope that the tear would repair itself. Because of continued complaints of pain, a nerve conduction study and electromyographic (EMG) studies were conducted, the findings of which were reported normal. Eventually, on January 16, 1979, surgical repair of the tear was performed, at which time no nerve damage was observed.

After the surgery, plaintiff’s arm was placed in a cast until the middle of February, 1979, at which time he began supervised therapy, in the form of paraffin baths and hand and finger exercises. About two months after surgery, plaintiff developed some pain and numbness on the radial border of the hand, probably due to scarring of the nerve structures in the area of the surgery. Cortisone was injected throughout the entire arm in an effort to decrease the scarring and relieve pressure on the nerve roots.

By May 17, 1979, there was some tenderness at the site of the injury, good dorsi-flexion and poor palmar flexion (downward bending of the wrist). Plaintiff had some numbness in the region of the thumb and index finger, described as a tingling sensation when he rubbed his fingers together. At that time, Dr. Rhymes felt that plaintiff had a 15 per cent impairment of the hand, and did not believe that plaintiff could drive a truck.

In February, 1980, plaintiff still complained of the same problems, plus a burning sensation in his little finger, which Dr. Rhymes could not relate to the injury. X-rays were normal and plaintiff had a grip strength of 70 pounds in his right hand and 30 in his left. The doctor stated that 60 to 65 pounds would be normal. A nerve conduction study showed some decrease in the function of the radial nerve.

In March, 1980, additional EMG studies were done, and Dr. Rhymes concluded that there was radial nerve damage as a result of the injury. He felt that there was nothing else that could be done about it, and that plaintiff’s condition was permanent. He discharged plaintiff with a 20 per cent disability of the left hand, which, he said, was really larger because the injury prevented plaintiff from doing his job of driving a truck.

The physical therapist who supervised plaintiff’s therapy during the period of his treatment by Dr. Rhymes testified that plaintiff’s hand had improved some, but that it was nowhere near normal.

However, Dr. Rhymes further testified that there was no structural damage to plaintiff’s wrist other than to the radial nerve and the wrist capsule; that the radial nerve, at that level, performed a sensory function only and would not affect the use of the wrist; that the loss of grip strength probably resulted from not using the hand because of the pain; and that he would expect the grip strength to improve with exercise. He further stated that it would not be unusual for someone of plaintiff’s age and size not to recover despite the use of therapy.

Plaintiff then saw Dr. Christopher E. Ce-nac, an orthopedist, on May 19, 1980. Dr. Cenac found diminished grip strength, and diminished sensation in the radial nerve .and in the left hand. His studies revealed den-ervation in the radial muscles on the left side, essentially resulting from a disruption of the superficial branch of the radial nerve.

Dr. Cenac performed a surgical exploration of the wrist capsule, during which he discovered fibrous tissue buildup in the sy-novia, or joint lining, and that the radial nerve was severed and could not be repaired. Some scar tissue was removed, and the ends of the radial nerve were buried.

As a result, plaintiff still has diminished sensation in the back of his hand in the area of the thumb and forefinger, but his range of motion has improved because of the removal of scar tissue. Plaintiff’s grip strength was up to 84 pounds at the time of trial, December 8,1980, and it was expected to continue to improve for another six to twelve months. There was still some intermittent swelling and discomfort, and plaintiff had been instructed to use his left hand to the best of his ability.

Dr. Cenac assigned a disability of 25 to 35 per cent to the wrist and hand as a whole; and he placed restrictions on heavy lifting, repetitive motion and movement with weights greater than 25 to 50 pounds. He was of the opinion that plaintiff should be able to drive trucks weighing up to one ton, and that his chances of returning to work were very good. He was not sure if plaintiff would be able to drive a large tractor-trailer rig, but thought that he might be able to do so within from six to 12 months after the trial, when the healing was expected to be complete.

Mr. Orgeron testified that his hand and wrist have hurt badly ever since the accident. He stated that he tried to do the physical therapy prescribed by Dr. Rhymes, but was unable to do many of the exercises because of the pain. He testified that during the time he was treated by Drs. Boulet and Rhymes, the pain not only did not go away, but got worse. After the operation by Dr. Cenac there was no improvement. He said that his hand is numb and hurts like a toothache all the time. Plaintiff testified that he has had to give up hunting, fishing and trawling; that he can no longer fix things or do chores around the house; that he needs help to cut up meat and to get dressed; that he must sleep alone and that he has difficulty with his sexual relations. He constantly drops glasses and cups that he tries to hold in his left hand.

Plaintiff is a house mover by trade, and is in partnership with his son. Before the accident, plaintiff testified he had driven the large trucks used in house moving, and had been able to handle the heavy jacks and timbers used in connection therewith. He can no longer do these things, even though his trucks are equipped with power steering.

We find that the foregoing testimony leads to a reasonable conclusion that plaintiff is disabled to perform the physical part of his job. He is still able to act as an estimator, business-getter and supervisor. We are further of the opinion that plaintiff does indeed suffer pain and will probably continue to do so. His testimony as to the pain is unrebutted in the record. Under the circumstances, considering the past and future pain, the operations, the extensive treatment and therapy, and the disability, which is most likely permanent, we find no abuse on the part of the trial judge in making an award of $70,000.00 as general damages.

Plaintiff’s claim for economic loss is based on the assertion that it was necessary to hire two men to replace him in doing the house moving work after he was injured, one to drive the truck and another to act as foreman. The record, however, shows that in both 1978, when the accident occurred, and 1979, when plaintiff was disabled, there were never more than two men employed at the same time, and that, from the time plaintiff was hurt until the end of 1978, there was only one employee. There was also only one employee from February 22, 1980 through July 3, 1980. For eight months prior to plaintiff’s injury in 1978, there had been two employees.

The expert economic testimony presented by plaintiff is based on the assumption that plaintiff had, in fact, been replaced by two men. This assumption is not supported by the record. The record does reveal, however, that during 1978 and 1979, the gross profit in plaintiff’s business increased 38 per cent, and the net profit increased 93 per cent while the payroll increased only 26 per cent.

The record further shows that plaintiff not only lost no income after his injury, but that his income increased. Under the foregoing circumstances, we find that plaintiff has failed to prove economic loss. The alleged necessity to hire two extra men might just as well have resulted from increased business as from plaintiff’s injury, and we find that the record does not reflect that extra workers were hired in the first place. No award for economic loss is justified.

We further note that it is likely that Mr. Orgeron would not have a cause of action for business losses suffered by his partnership, which is, of course, a separate legal entity.

No complaint is made as to the award for medical expenses.

Finally, Coca-Cola claims that the award should be reduced by 75% because plaintiff originally alleged that there were three other tortfeasors. As we said in Raley v. Carter, 401 So.2d 1006, 1008 (La.App. 1st Cir. 1981):

“It is settled law that, when there are four joint tortfeasors, and three of them are released by the plaintiff, plaintiff can only claim one fourth of the total award made in a suit against the remaining tortfeasor. Article 2100, Civil Code; Harvey v. Travelers Insurance Company, 163 So.2d 915 (La.App. 3rd Cir. 1964). The negligence of those parties released from the suit may remain an issue in the trial, since the remaining tortfeasor is entitled to a reduction of the award only if the parties released are proved to be joint tortfeasors. If they are found not to be liable, the remaining tortfeasor is not entitled to a reduction. Harvey v. Travelers Insurance Company, supra. Wall v. American Emp. Ins. Co., 386 So.2d 79 (La.1980).

Neither party offered any evidence as to the negligence of the parties released. Coca-Cola claims that the burden of proof was on plaintiff to show the non-negligence of the other defendants if he is to avoid the reduction in the award. In this case, Coca-Cola’s position is not well taken. The circumstances of the case are such that plaintiff was entitled to the benefit of the doctrine of res ipsa loquitur, and Coca-Cola therefore bore the burden of exculpating itself from responsibility. This would include proving joint liability of the other defendants. Since Coca-Cola failed to make such proof, it is not entitled to a reduction of the award.

The judgment appealed from is therefore amended so as to reduce the amount thereof to $77,822.70, and as amended, it is affirmed. Costs of the appeal shall be equally shared by the parties hereto.

AMENDED AND AFFIRMED.


author: COLE, Judge.

text:
    Heirs of Marie Cordelia ONCALE v. Inez Avet CLEMENT and Claire Clement Shinn.
    No. 14568.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.

      Robert G. Creely, of Amato & Creely, Gretna, Richard P. Mire, Houma, for plaintiffs-appellees Heirs of Marie Cordelia On-cale.
    John F. Pugh, of Pugh, Lanier & Pugh, Thibodaux, for defendants-appellants Inez Avet Clement and Claire Clement Shinn.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

The issue presented here is whether or not a donation inter vivos should be set aside on account of the incapacity of the donor. We find no manifest error in the trial court’s conclusion that plaintiffs have proven the donor was of unsound mind, therefore we affirm the judgment setting aside the donation.

The litigation arose from these facts. Marie Cordelia Oncale was an elderly unmarried woman who lived in rural La-fourche parish with her older sister Sidonia. Sidonia died in April of 1978 and approximately two weeks later on April 25, 1978, Marie executed an act of donation in which she donated three pieces of real estate to defendants Inez Avet Clement and her daughter, Claire Clement Shinn. The act was not recorded at that time. Marie On-cale died on April 7, 1979, and the act was recorded on April 9, 1979.

The heirs of Marie Oncale then filed this suit, seeking to have the act of donation annulled for several reasons, one of which was that the donor was of unsound mind and lacked the capacity to understand the consequences of the act. After hearing lengthy testimony from witnesses for each side, the trial court rendered judgment in favor of plaintiffs annulling and setting aside the act of donation. Defendants filed this devolutive appeal.

After reading the entire record we agree with the trial court that the evidence established Marie Oncale was not capable of understanding the nature of the act of donation. All witnesses agreed as to several objective traits of Marie Oncale. One, she spoke very little English. Two, she was totally unable to read or write. Three, she was dominated by her sister Sidonia. Four, she was unable to dial a telephone. However, there was no agreement between the two sides on the subjective issue of Marie’s mental ability.

Testifying for the plaintiffs, Judge Remy Chiasson, the son of one of the plaintiffs, stated he had known Marie for years and although she was a good-hearted person, she was not a person who was capable of understanding things. Her reputation in the community was that she was “like a child” or “retarded.”

Mrs. Lillian Constant, a relative of Marie’s, testified she lived with the two sisters for six weeks when Sidonia underwent surgery. She too described Marie as being somewhat “retarded.” Mrs. Constant stated she attempted to show Marie how to dial the telephone almost every day during her stay, but Marie was unable to learn this task. Marie generally had to be instructed as to when to go to sleep, when to get up, when to take a bath, when to eat, and when to do almost every chore. She was able to turn on the television set but would not change the channel. She could not count eggs or make change. She slept fully dressed and would frequently urinate in the bed during the night. The trial court noted in written reasons it was very impressed with this witness’ demeanor and her factual recitation concerning Marie’s daily life.

Another witness was Mrs. Carmen Wag-uespack, Mrs. Constant’s daughter, who also helped care for the sisters during Sidonia’s convalescence. Her testimony corroborated Mrs. Constant’s concerning Marie’s inability to dial a phone or to care for herself. Mrs. Waguespack stated she had never known Marie to initiate a conversation, i.e., she only spoke when someone spoke to her.

An incident rather illustrative of Marie’s mental state was related by Francis Na-quin, a plumber, and his helper, Joseph Adams. They both testified they had stopped by to visit Marie one day and inquired about Sidonia. Marie told them she didn’t know what was wrong with Sidonia but Sidonia’s body was cold and she could not awaken Sidonia. The men entered the house and found Sidonia dead in her bed, her body “ice cold.” This incident illustrates the limited nature of Marie’s mental capacity in that she apparently did not recognize the obvious signs of death or even if she did realize what had happened she seemed unsure as to what she should do about the situation.

Mrs. Goldie Clement, Marie’s cousin, testified Marie never really entered a conversation or made inquiries of her own. When she saw Marie at Sidonia’s funeral Marie seemed unaware of or unaffected by the death of her sister.

The picture painted by the defendants’ witnesses was entirely different. Belinda Shinn, a registered nurse who worked at the nursing home where Marie spent several months, testified Marie seemed alert and oriented as to time, place and person. Dr. Paul Gaudet, an otolaryngologist (an ear, nose and throat surgeon), testified he treated Marie for a nasal skin cancer. He admitted he dealt with her for a total time of only an hour and a half, but he found her to be mentally capable of understanding what he was saying, with the help of an interpreter.

Mrs. Eves Landry, a neighbor of Marie’s, testified there was nothing wrong with Marie’s mind. She would instruct Marie to watch certain television programs and Marie would do so. She stated Marie took care of the house both before and after her sister’s death. Sidonia would not allow Marie to talk when visitors came, but would require Marie to simply sit in her chair and be quiet. She believed the reason Marie could not dial the phone was because her sister never taught her to do so and because she was uneducated.

Mr. Wildon J. Shinn, Jr., husband of defendant Claire Shinn, stated he recalled seeing Marie at Sidonia’s funeral and she appeared to be upset about her sister’s death. Mrs. Amelia Heck, daughter of defendant Inez Clement and sister of defendant Claire Shinn, said although she barely spoke French, she could communicate quite easily with Marie. According to Mrs. Heck, she and Marie had normal conversations about everyday matters and Marie often initiated these conversations on her own. She said Marie could care for herself and did not need help with everyday chores. Another sister of Claire Shinn, Janet Clement, corroborated this testimony by saying she too had always been able to communicate with Marie, even though there was a language barrier.

Dr. Billy Hillman, accepted by the court as an expert in the general practice of medicine, stated he had treated Marie since 1961. He described her as being “slow mentally,” although part of her problem may have been caused by her lack of education and her language barrier. He opined she also suffered from some “congenital or birth slowness” and noted the older sister was clearly the dominant figure in the family. He felt Marie was able to carry out his instructions regarding medicine although he noted Sidonia always accompanied her to his office and always spoke for Marie. He remarked Marie gave the impression of not being “all here.”

The final defense testimony was provided by Claire Shinn, one of the defendants. She testified Marie indicated she wanted to speak with her attorney about the disposition of her property. Mrs. Shinn and her mother took Marie to the law office of Mr. Walter Lanier where the matter was discussed. They later returned to the office and the act of donation was executed. Mr. Lanier read the act in English (in the presence of two witnesses), explained it to Mrs. Clement in laymen’s terms, and Mrs. Clement translated to Marie. When asked why the act was not recorded until after Marie’s death she said they were worried family members might harass Marie about the matter and they were concerned her S.S.I. benefits might be terminated.

We realize several of the witnesses in this case are related to either the plaintiffs or the defendants and therefore have at least an indirect or a potential interest in the outcome of this lawsuit. Although this makes for a less than ideal situation it is almost unavoidable in a small rural community. Naturally, when the issue is a personal one such as a person’s mental capacity, it is the relatives of that person who can provide the necessary information. As always, the trial court enjoys the superior vantage point in determining the credibility of witnesses. While this court is limited to a reading of the “cold” record, the trial court has the benefit of observing the demeanor and attitude of each witness. Where evidence is conflicting, as it is in this case, the appellate court should not disturb the trial court’s reasonable evaluation of one set of witnesses as credible, and its consequent rejection of testimony of the opposing set of witnesses. Billiot v. Bourg, 338 So.2d 1148 (La.1976). The trial court’s reasons (thirteen pages in length) reflected detailed notes from the trial and very accurately summarized the testimony of each witness. We respect the court’s conclusion that plaintiffs proved by ,a preponderance of the evidence Marie Oncale was of unsound mind and therefore incapable of understanding the nature of the act she executed.

The appellants (the donees) contend the appellees (the heirs) have no legal right to challenge the validity of the act because of La. Civil Code art. 403. The article reads as follows:

“After the death of a person, the validity of acts done by him can not be contested for cause of insanity, unless his interdiction was pronounced or petitioned for previous to the death of such person, except in cases in which the mental alienation manifested itself within ten days previous to the decease, or in which the proof of the want of reason results from the act itself which is contested.”

Since none of the three conditions specified above were met in this case, appellants contend there can be no valid attack. We disagree for two reasons.

First, we do not believe this article applies to donations. This was stated by our Supreme Court in Succession of Lanata, 205 La. 915, 18 So.2d 500 (1944), and in Marie v. Avart’s Heirs, 10 Mart. (O.S.) 25 (La.1821). We note both cases deal with donations mortis causa but we find the reasoning applicable to cases involving donations inter vivos.

Secondly, we find it inequitable to apply this article to the present situation where it would have been impossible for the heirs to attack the act prior to the death of the donor, because the donees kept the act a secret and failed to record it. Mrs. Shinn admitted under oath one of the reasons for not recording the act until after Marie’s death was to avoid challenges from family members. Under these circumstances we would not prevent the plaintiffs from attacking the act on the basis of this article.

The more applicable code article is art. 1475 which reads, “To make a donation either inter vivos or mortis causa, one must be of sound mind.” We conclude the evidence showed Marie Oncale was not of sound mind and therefore the act should be annulled.

For these reasons, the judgment of the trial court is affirmed. Defendants-appellants are to pay all costs.

AFFIRMED.

“APPENDIX TO NUMBER 14,568”
A certain tract of land situated in the Parish of Lafourche on the left bank of the Bayou Lafourche, at about eighty arpents from said Bayou and at about 5 or 6 miles from the Town of Thibodaux, measuring One and three-quarters ar-pents in width by about Fifteen arpents in length, bounded above or west by lands of Leonie Naquin, below or east by lands of Estate of Leon Traigle, North by lands of Bowie Lumber Co. Ltd. and South by the Laurel Grove Plantation, being the lower half of the lower half of Lot number Three, in section No. One Hunderd and seven, in Township Fourteen, Range Sixteen, East; together with all the buildings and improvements thereon and all the rights and privileges thereto belonging.
Being the same property acquired by Ze-phirin Oncale by inheritance from his father and mother, Oscar Oncale and Sera-phine Gros, deceased, and by purchase from Oliver Oncale et al by deed dated June 21, 1918, recorded June 21, 1918, in Conveyance Book 49, Folio 363, under Entry No. 2568 of the records of La-fourche Parish, Louisiana.
A certain tract of land or lot of ground, situated in the Parish of Lafourche, on the left bank of the Bayou Lafourche, at about five or six miles from the Town of Thibodaux, and at eighty arpents from the Bayou Lafourche, in the Choupic Settlement, measuring ONE arpent front towards Bayou Lafourche, by ONE arpent in depth; being a portion of Lot No. 3 of Section No. 107, in Township 14 S.R. 16 E.; bounded in front or towards Bayou Lafourche and above by lands of the Laurel Grove Plantation, below by lands of the vendee herein, and in the rear by lands of Leonie Naquin and others; together with all the buildings and improvements thereon.
Being the same property acquired by Ze-phirin Oncale from Frank Gros et al by deed dated February 27, 1933, recorded February 27, 1933, in Conveyance Book 69, Folio 211, under Entry No. 24270 of the records of Lafourche Parish, Louisiana.
A certain tract of land situated in the Parish of Lafourche, on the left bank of Bayou Lafourche at about five or six miles above the Town of Thibodaux, and at eighty arpents from said Bayou La-fourche, measuring one arpent front towards said Bayou Lafourche, between parallel lines, by fourteen arpents, more or less, in depth, bounded above by Laurel Grove Plantation and below by property of Zephirin Oncale; together with all the buildings and improvements thereon.
Less and except, however, a certain lot of ground measuring one arpent front by one arpent in depth, sold by Mrs. Adolph Boudreaux and Mrs. Leonie Naquin to Frank Gros on January 6, 1917, (See C.B. 47, page 386), and less and except also, a certain lot of ground measuring two hundred sixty (260) feet front on the public road leading to Bayou Lafourche and forty-five (45) feet front on the Choupic Road, sold by Mr. and Mrs. Leonie Na-quin to Henry Clement on January 10, 1921, (See C.B. No. 22, page 153, and C.B. No. 47, page 387).
Being the same property acquired by Donor by inheritance from her father and mother, Zephirin Oncale and Mrs. Sidonia Boudreaux Oncale, and from her brother and sister, Walter Oncale and Sidonia Oncale.

      . The properties are fully described in the appendix to this opinion.

      . We observe that in our civil code donations inter vivos and mortis causa are treated together in Book III, Title II.


author: CHIASSON, Judge.

text:
    Jackie Wells CLARK v. John CLARK.
    No. 14571.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    J. Lynn Ponder, Amite, for plaintiff-ap-pellee.
    Ernest G. Drake, Jr., Ponchatoula, for defendant-appellant.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   CHIASSON, Judge.

John Clark, defendant-appellant, appeals the trial court’s judgment rendered against him and in favor of his former wife, Jackie Wells Clark, plaintiff-appellee, in the full sum of $9,360.00, subject to a credit of $1,907.50 or a total of $7,452.50, with legal interest from date of judicial demand until paid.

The judgment was rendered after a hearing on a rule to make past due child support executory filed by Jackie Clark on December 11,1980, more than five years after the rendition of their divorce judgment which ordered the support payment. Mr. Clark filed an exception of prescription as to any installments which became due more than three years prior to the date of the hearing which exception was sustained by the trial court.

The minute entry of January 30, 1981 reflects that testimony was adduced at the hearing on the rule. However, the record before us contains no transcript of the testimony, nor is there any indication that the hearing was not recorded.

On appeal, defendant-appellant contends that the trial court erred in not giving .him credit for the amount of each past due installment attributable to alimony that became due subsequent to appellee’s remarriage and asks this court to accordingly reduce the trial court’s award by giving him credit for half of each $60 installment which became due after his former wife’s alleged remarriage.

In brief, Mrs. Clark raises several issues. However, she neither appealed nor timely answered the appeal and, therefore, this court may not consider these issues. Bond v. Commercial Union Assurance Company, 407 So.2d 401, 407 (La.Sup.Ct., 1981).

Two documents were introduced into evidence. First is the judgment of divorce which orders child support payment and which has typed interlined therein the words “alimony and”, so as to make the judgment read $60 per week for alimony and child support. The second document is a certificate of marriage between Ouria Taylor, Jr. and Jacqueline Maria Wells (Clark). Absent a transcript, a narrative of facts, stipulation of facts, or written reasons for judgment, we are unable to conclude that the support award was in fact for alimony and child support or that the person named in the marriage certificate is the same as the person before us in this proceeding.

Indicating the contrary are the minute entry of the court dated January 30, 1981, stating that the “matter came up on rule for back due child support and to make judgment executory”, and the judgment of the trial court rendered on the rule identifying plaintiff-in-rule as “Jackie Clark” and not mentioning alimony.

Further, we have no way of ascertaining how the amount of credit was determined by the trial judge.

Articles 2130 and 2131 of Louisiana Code of Civil Procedure have been consistently interpreted to impute the lack of a transcript or a narrative of facts to the appellant. Succession of Walker, 288 So.2d 328 (La.1974); DeLaneuville v. Duplessis, 385 So.2d 385 (La.App. 1st Cir. 1980). In that regard, the Supreme Court in Succession of Walker, supra, penned the following language at 288 So.2d 331:

“When testimony has been taken in the trial court, it should be recorded and introduced in the record on appeal. If it has not been taken down in writing, the burden is upon appellant to furnish, as part of the record on appeal, either an agreed statement of facts entered into between the parties or a narrative of facts by the judge....
“The jurisprudence is uniform that, where there are factual issues involved and the record on appeal contains neither the transcript of the testimony nor an agreed statement of facts entered into between the parties or given by the trial judge, there is nothing for appellate review .... ” (Citations omitted).

In cases where factual issues are involved, as in the ease at bar, and the record on appeal contains no transcript, nor a narrative of the facts, the appeal is subject to dismissal, if appellee timely moves therefor. DeLaneuville v. Duplessis, supra; Omaha Steaks International v. Progressive Motor Hotel, 212 So.2d 558 (La.App. 1st Cir. 1968). In cases where appellee does not timely move for dismissal, as in our case, the courts apply the presumption that the trial court’s judgment is supported by competent evidence and affirm the judgment. Deliberto v. Deliberto, 400 So.2d 1096 (La. App. 1st Cir. 1981); DeLaneuville v. Duplessis, supra.

Applying this presumption, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

      . La.C.C.P. Art. 2130:
      “A party may require the clerk to cause the testimony to be taken down in writing and this transcript shall serve as the statement of facts of the case. The parties may agree to a narrative of the facts in accordance with the provisions of Article 2131.”
      La.C.C.P. Art. 2131:
      “If the testimony of the witnesses has not been taken down in writing the appellant must request the other parties to join with him in a written and signed narrative of the facts, and in cases of disagreement as to this narrative or of refusal to join in it, at any time prior to the lodging of the record in the appellate court, the judge shall make a written narrative of the facts, which shall be conclusive.”


text:
    Norman Vincent SMITH v. LOUISIANA PAVING COMPANY, et al.
    No. 14572.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Christopher M. Moody, Hammond, for plaintiff.
    Gerard M. Dillon, New Orleans, for Louisiana Paving Co. and T. L. James, Inc.
    Charles A. Schutte, Jr., Baton Rouge, for Sentry Insurance.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   ELLIS, Judge:

This is a suit by Norman Vincent Smith for damages for personal injuries suffered when a hot oil tank exploded. Defendants are Louisiana Paving Company, Inc. and T. L. James & Company, Inc. Sentry Insurance A Mutual Company, the compensation insurer of plaintiff’s employer, Thompson Electric Service, Inc., has intervened, seeking reimbursement, from any judgment recovered by plaintiff, for compensation paid to him. After trial on the merits judgment was rendered dismissing plaintiff’s suit, and both he and Sentry have appealed.

The record shows that Louisiana Paving is engaged in highway construction. It was the owner of portable asphalt plants which it moved from site to site as needed for its work. At the time of the accident herein, it was engaged in making a permanent installation of one of its portable plants in Velma, Louisiana. The construction of the plant was being carried out entirely by its own personnel except for the electrical work and some mechanical work, which was being done by Thompson Electric as an independent contractor. Plaintiff, who was employed by Thompson as a laborer, was injured when a hot oil tank, which was being pressure tested by Thompson, exploded.

This suit, which is in tort, is being defended, inter alia, on the ground that Louisiana Paving was the statutory employer of plaintiff, and that his sole remedy against it was in workmen’s compensation. The trial judge agreed, and dismissed plaintiff's case.

R.S. 23:1061 provides, in part, as follows:

“Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; .... ”

In order for the above statute to be applicable, four elements must be present, which are set forth in Vincent v. Ryder Enterprises, Inc., 352 So.2d 1061, 1068 (La.App. 3rd Cir. 1977), as follows:

“(1) The relationship of principal-contractor (as distinguished from another type of relationship, i.e., vendor-vendee) must exist.
“(2) There must be a contract between the principal and contractor for the execution by the contractor of the whole or any part of the work being undertaken by the principal.
“(3) The ‘work’ which is the subject of the contract must be part of the principal’s trade, business or occupation.
“(4) The injured employee must be engaged in the execution of the ‘work’ as described above.”

In this court, plaintiff’s contention is that Louisiana Paving was engaged in the business of highway construction, so that setting up an asphalt plant was not part of its trade, business or occupation. We find that the trial judge correctly resolved the issue. It is clear from the record that Louisiana Paving routinely moved its asphalt plants from place to place as the exigencies of its work required, and that this was done with its own personnel. This fact distinguishes this case from those in which construction of a new facility for the conduct of a business is found not to be part of the trade, business or occupation of the builder. In this case, asphalt plant construction is a routine part of the business of Louisiana Paving. See Lushute v. Diesi, 354 So.2d 179 (La.1977); Thompson v. South Central Bell Tel. Co., 402 So.2d 799 (La.App. 4th Cir. 1981) for discussions of the law in this area.

Even if Louisiana Paving were not involved in its regular business in constructing the asphalt plant, it would be considered as being a second business as a contractor, and plaintiff would be a statutory employee of Louisiana Paving, acting as a contractor. Doss v. American Ventures, Inc., 261 La. 920, 261 So.2d 615 (1972); Slocum v. Lamartiniere, 369 So.2d 201 (La. App. 3rd Cir. 1979), writ den. 372 So.2d 569 (La.1979).

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

AFFIRMED.


author: PONDER, Judge.

text:
    TIGER ISLAND FUEL SERVICE, INC. v. GENERAL OILFIELD TRUCKING, INC., et al.
    No. 14573.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.

      Gregory P. Aucoin, Morgan City, for plaintiff.
    William O. Bonin, Landry, Watkins & Bonin, New Iberia, for defendants.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

Plaintiff, Tiger Island Fuel Service, Inc., appealed from the dismissal of its suit for damages resulting from the collapse of its scales while weighing the loaded trailer and tractor belonging to defendant, General Oilfield Trucking, Inc. The other defendant is the insurer.

Appellant lists its specifications of errors as failure to give proper weight to circumstantial evidence and failure to shift burden of proof once plaintiff had presented a pri-ma facie case, leading to the judgment being contrary to the law and evidence.

We affirm.

The customer who engaged General Oilfield Trucking to haul an offshore mud tank to a salvage yard for sale asked that the load be weighed. The driver went to the public scales operated by plaintiff where he had weighed loads before, sometimes even operating the scales himself. Because of the size and weight of the load, two cranes were used to load. Also, the entire tractor, trailer and load could not be weighed at one time. Instead, the tractor would be first placed on the scales platform and a reading taken. Then without the rig being uncoupled, the trailer would be placed on the platform and a second reading taken. The two readings would be combined. However, when the trailer was placed on the platform, the scales collapsed.

Plaintiff complained that defendant’s employees should not have placed on the scales the load, greatly in excess of the 100,000 pound limit of the scales, known by the employee and also known generally. Plaintiff asserted that defendant’s owner had admitted responsibility.

Defendant, however, adduced proof that the one time sign had been painted over about sixty days before the accident, when the weigh house had been remodeled. The driver denied both that he had even seen the limit sign and that he knew of the limitation. He correctly pointed out, too, it is quite possible to weigh loads well over 100,000 pounds by weighing tractor and trailer portions separately and combining the figures. He also denied knowledge that his load was grossly in excess of the limit.

The trial court dismissed the suit, pointing out that plaintiff had not proved that the collapse of the scales was caused by defendant’s fault since there was no proof that the weight on the scales at any time exceeded 100,000 pounds.

Appellant complains of the court’s failure to conclude that the load was over the limit because the rig alone weighed 50,000 pounds, because the defendant had secured an overweight permit for the load and because of the other circumstances.

However, none of these lead logically and inevitably to the conclusion desired by plaintiff. For example, even if the total load were over 100,000 pounds, the method of weighing divided the loads into parts that quite likely were well within the limit. Because plaintiff did not prove the elements of its case, we do not reach the argument as to the necessity of rebuttal of a prima facie case.

We find no error. The court’s conclusions are supported by the record and we agree with them.

The judgment is affirmed at appellant’s costs.

AFFIRMED.


author: COVINGTON, Judge.

text:
    Walter W. BAKER, et al. v. J. B. PURSELLEY, et al. J. B. PURSELLEY, et al. v. Walter W. BAKER, et al.
    Nos. 14575, 14576.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.

      Rodney Cashe, Hammond, for Walter W. Baker et al.
    Gary L. Boland, Baton Rouge, for J. B. Purselley et al.
    Allen B. Pierson, Jr., Ponchatoula, pro se.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

This is an action for executory process brought by Walter W. Baker, Alden Lee Baker and Anna Mercer Baker Naquin to foreclose on property which had been conveyed by the plaintiffs, the Bakers, to J. B. and Frances Faith Hogle Purselley, the vendees, by credit deed dated April 7, 1978, and duly recorded in the official records of Tangipahoa Parish, Louisiana, which action has been consolidated with an action for specific performance and injunctive relief to arrest the seizure and sale under the executory process brought by the Purselleys against the Bakers. In connection with the action for injunctive relief, the trial court granted a temporary restraining order and fixed a rule to show cause why a preliminary injunction should not be granted. Allen B. Pierson, Jr., who was named as man-datary in the credit deed to execute appropriate releases as the circumstances dictated, was also sued as a defendant in the action brought by the Purselleys. The Bakers moved to dissolve the restraining order. Thereafter, the Purselleys filed an amending petition. Pending the action, one of the parties, Alden Lee Baker, died, and his estate was substituted as a party. The defendants in the latter action answered, denying the pertinent allegations and asserting a compromise agreement between the parties.

The facts as established by the evidence in the record giving rise to these consolidated actions are:

On April 7, 1978, Anna Mercer Baker Naquin, Alden Lee Baker and Walter W. Baker sold to J. B. Purselley and Frances Faith Hogle Purselley, vendees, a tract of land situated in Section 47, Township 7 South, Range 7 East, Tangipahoa Parish, Louisiana, under an act of credit sale, which act was duly recorded in the Conveyance and Mortgage Records of Tangipahoa Parish. The sale was for a total price of $249,-020.00, and was to be payable $115,000.01 cash, with the balance of the purchase price ($134,019.99) represented by three promissory notes in the amount of $44,673.33 each, payable in four consecutive annual installments of one-fourth of the principal, plus accrued interest at the rate of nine percent per annum.

At the passage of the act, the vendees were unable to pay the agreed cash portion of the sale price, so they paid $80,000.00 in cash and executed three additional promissory notes, payable on or before one year from date, as follows: (1) $7,500.00 payable to Walter W. Baker; (2) $7,500.00 payable to Anna Mercer Baker Naquin; and (3) $20,000.00 payable to Alden Lee Baker. These notes were paraphed for identification with an act of special mortgage, dated April 7, 1978, in the amount of $35,000.00 secured by other real estate of the vendees.

Also contained in the act of credit sale was a provision whereby the vendors released ten acres of the tract transferred, leaving approximately 28 acres encumbered by the credit deed.

Following the description of the property transferred, the act provided: “Should the vendees harvest any timber on the property remaining encumbered by this credit deed all of the proceeds of the sale of that timber shall be paid immediately to vendors. The amount so paid shall be credited against the interest accrued to that date and the remainder against the principal due on the next payment due date. Thereafter on the next payment due date the amount due shall be the interest accrued from the date of the last timber sale payment plus the balance of the principal due on that date.

“During the first year following the execution of this credit deed Vendors bind and obligate' themselves to grant to Vendees partial releases covering portions of the property encumbered. As a consideration for the releases, Vendees shall prepay $5,265.46 per acre released which amount shall be credited against the interest accrued to that date and the remainder against the principal due on the next payment due date. Thereafter on the next payment due date the amount due shall be the interest accrued from the date of the last release payment plus the balance of the principal payment due on that payment date. During the second, third and fourth years following the execution of this credit deed the Vendors shall be similarly obligated to grant releases except that the amount per acre to be prepaid by the Vendees shall be $3,948.80, $2,632.54 and $1,316.27 respectively.”

Also, the instrument reserved to the vendors, for a period of ten years, a one-half interest in the oil, gas and other minerals. There was no provision reserving any rights to the timber, except that proceeds from timber sales had to be disbursed to the vendors as set out above.

Further, the instrument recited that: “Vendors do hereby appoint Allen B. Pier-son, Jr. as their agent and attorney in fact for the purpose of granting and executing on their behalf the releases contemplated by this paragraph and they do hereby authorize him to receive and to receipt for the prepayment necessitated by the releases and instruct him to immediately forward one-third (Vá) of the same to each of them.”

Subsequent to the credit sale, the vendees sold certain pine timber to Phillips-Lamb Lumber Company by a timber deed dated June 19, 1978. The proceeds derived from the sale of the timber on the 28 acre tract were at that time paid to the mandatary. On June 1, 1979, the vendees paid the vendors the sum of $7,162.74, which represented the outstanding interest on the three notes secured by the credit deed on the 28 acre tract sold to the Purselleys. No further payment was made by the vendees.

Following the trial, the trial judge, with written reasons, rendered judgment on July 6, 1981, ordering Allen Pierson, as agent of the vendors, to convey title to the vendees of a 6.35 acre tract of land described in the judgment; enjoining the seizure and sale of the 28 acre tract in the executory proceedings; and denying the motion to dissolve the restraining order. It is from this judgment that the Bakers have appealed. We amend, and as amended, we affirm.

On this appeal, the appellants assert the following specifications of errors:

Specification of Error No. 1. “The District Court erred in ordering Allen B. Pier-son, agent and attorney for appellants to convey title to appellee to the tract of land described in the judgment containing 6.35 acres.”

Specification of Error No. 2. “The District Court erred in failing to find a compromise agreement had been entered into between appellants and appellees prohibiting the release of any portion of the property on the credit sale and further prohibiting the enjoinment of the sheriff’s sale on the 28 acres.”

Specification of Error No. 3. “The District Court erred in failing to cancel the temporary restraining order issued on August 26th, 1980 . . . and ordering appellees to pay damages to appellants for the unlawful issuance of the temporary restraining order.”

First, the appellants argue that the trial court erred in ordering the release from the mortgage effects of the credit sale the tract of land described in the judgment as containing 6.35 acres, and ordering the mandatary to convey title to the described tract of land to the Purselleys.

The first issue is concerned with whether specific performance should have been granted by the trial court, ordering the Bakers, through the agent, to convey the described acreage to the Purselleys.

The language of the credit sale pertaining to the sale of timber is set out above and indicates the price to be paid per acre of the acreage which is to be released; and Allen B. Pierson, Jr. is appointed the “agent and attorney in fact” of the Bakers (vendors) to collect money and grant release of land which has been paid for. In the instrument, there is a provision on the sale of the timber and credit for said sale, amounts to be paid per acre for releases, appointment of an agent (Attorney Pierson) to collect money and grant releases, and a clause which indicates that “amounts paid for releases and/or for the timber sold shall be considered part of the next installment due.” From the language and order of the provisions of the credit sale, we find that the sale of timber was contemplated by the parties.

As set out above, the instrument gave the option of harvesting the timber to the Pur-selleys, stating: “Should the vendees harvest any timber on the property remaining encumbered by this credit deed all of the proceeds of the sale of that timber shall be paid immediately to vendors.” In the case at bar, all of the proceeds of the timber sale on the 28 acre tract were paid on June 19, 1978 (but credited June 22, 1978), by payment of the sum of $35,522.62 to Attorney Pierson on behalf of the Bakers. The timber-harvesting provision also states: “The amount so paid shall be credited against the interest accrued to that date and the remainder against the principal due on the next payment due date.” The interest to date on June 22, 1978 was $2,511.50 and that amount was properly credited. The remaining amount, or $33,011.12, was then credited to principal due on the next payment date (which was April 7, 1979). Since the first installment amount was $33,403.99, an additional check of $493.88 dated June 22,1978, was given to the mandatary by the vendees, and credited so as to make a total of $33,505.00 paid June 22, 1978 on the amount owed April 7, 1979. Hence, the amount owed on principal on April 7, 1979 was zero, but the interest on the principal balance from June 22, 1978 to April 7, 1979 was $7,162.73, which the Purselleys paid and which was credited in April of 1979.

Further, the credit sale summarizes: “Thereafter on the next payment due date the amount due shall be the interest accrued from the date of the last timber sale payment plus the balance of the principal due on that date.” The next payment due date from June 22, 1978 (the date of the timber sale) was April 7, 1979. Since the vendees had paid the principal balance of $33,505.00 on June 22, 1978; the interest to June 22,1978 of $2,511.50 on June 22, 1978; and the interest from June 22,1978 to April 7, 1979 of $7,162.73 on April 26, 1979, the first installment payment for the release of acreage calculated at $5,265.46 per acre was made in accordance with the contract.

The words “and/or” clearly indicate that “amounts paid for releases” is the same as “timber sold for releases.” When this language is considered with Attorney Pierson’s testimony that there were about 6.5 acres which should be released and Mr. Pursel-ley’s testimony that he was going to clear the land, sell the timber, and build houses on the land released, we conclude that the Purselleys were entitled to specific performance of the contract and to a release of 6.35 acres.

Specific performance is available as a remedy where the remedy of damages is inadequate; it has usually been held that damages are an inadequate remedy for breach of a contract to sell real estate. See Rutherford v. Impson, 366 So.2d 944 (La.App. 1 Cir. 1978), writ denied, 369 So.2d 140 (La.1979). Similarly, damages are an inadequate remedy for breach of the contract to release certain portions of the property from the mortgage effects of the credit sale upon the partial payment of the purchase price in accordance with the contract.

LSA-C.C. art. 1757 declares that a civil obligation (a contract) gives “the right of enforcing its performance by law.” LSA-C.C. art. 1799 states that there is the “presumption of law that in every contract each party has agreed to confer on the other the right of judicially enforcing the performance of the agreement. . . . ” LSA-C.C. 1927 provides for damages in “ordinary cases, .. . but where this would be an inadequate compensation, and the party has the power of performing the contract, he may be constrained to a specific performance . ... ” See Abraxas Film Corporation v. Weinberg, 384 So.2d 463 (La.App. 4 Cir. 1980).

The arrangement with Pierson was in the nature of an intermediary agreement whereby he would act as mandatary for both vendors and vendees. LSA-C.C. art. 3016. Pursuant to LSA-C.C. art. 3017, Pierson was a fiduciary who was obligated to perform his duties faithfully for both parties, which fiduciary obligation the evidence reflects he was most careful to honor. See United Companies Mortgage and Investment of Hammond, Inc. v. Estate of McGee, 372 So.2d 622 (La.App. 1 Cir. 1979). At no time did he try to favor one party over another to the other’s disadvantage. But, whatever may be the denomination of Pierson’s relationship to the parties in this contract, the vendors had no right or power to unilaterally terminate, restrict or change his authority to carry out his agreed fiduciary obligations to both parties. Moreover, the vendors covenanted to execute partial releases in favor of the vendees under certain terms and conditions.

The trial court stated in its “Reasons for Judgment”:

“The court must further look at the entire transaction. It finds the credit sale names Allen Pierson as the agent for the Bakers. Further it finds he served as attorney for Purselley. Mr. Pierson, in actuality, attempted to serve as a mediator. In the highest degree of ethics, upon realizing the matter must be resolved by litigation, Mr. Pierson removed himself as attorney and correctly recommend[ed] to Mr. Purselley he engage counsel other than himself.
“The letter was written in behalf of Pur-selley as a mediator between the parties. Mr. Pierson remained of record an agent for the Bakers. Therefore the letter of July 1, 1980 had no legal or binding effect.
“Therefore, the question of injunctive proceeding and Specific Performance is resolved in favor of the Purselleys’ [sic] and against the defendants in suit no. 60,146.
“However, the acreage to be released, which in fact was released on June 22, 1978, was not specified. P-14 demonstrates a plot of survey by Earle F. Wilson, III dated February 22, 1978 which is redlined by Allen Pierson who was the Agent of Baker at that time. This demonstrates the intent to release this specific portion; therefore, there shall be a decree by this court ordering a release unto the plaintiffs (Purselleys) a certain tract of land described as follows:
“A certain parcel of land, with all buildings and improvements thereon, located in Section 47, Township 7 South, Range 7 East, Greensburg Land District, Tangipa-hoa Parish, Louisiana, containing 6.35 acres and being more fully described as follows:
“Commence at a point 691.52 feet North of the Southwest Comer of Section 47, Township 7 South, Range 7 East and from that point of beginning run North 89° 39' East 1159.20 feet, then run North 31° 26' West to the Southeast corner of a ten acre tract owned by Purselley, described in credit deed as recorded in MOB 305 page (112-117), then measure South 89° 39' West 1002.81 feet along the Southern property line of Purselley; then measure South 255.88 feet back to the point of beginning.”

We find that the record supports this ruling.

However, we find that the trial court erred in ordering title to the above property be conveyed to the vendees by the vendors’ agent. Title to the land in question has already been conveyed to the Purselleys by the credit sale of April 7, 1978. When this litigation commenced, they were the owners of the land in controversy, subject to the encumbrance in favor of the vendors and the reservation of a one-half interest in the oil, gas and other minerals. The judgment will, accordingly, be amended to delete the order that Pierson convey title to the described property; and to recognize J. B. and Frances Purselley as owners of the described 6.35 acre tract, with the described property ordered released from the mortgage effects of the credit deed.

As their second specification of error, the appellants contend that the trial court erred in failing to find a compromise agreement had been entered into between the Bakers and the Purselleys to the effect that the Purselleys agreed not to enjoin the foreclosure sale and not to demand release of any portion of the tract of land covered by the credit sale if the Bakers met certain conditions and waived certain claims.

The record reflects that the Pursel-leys did not authorize their attorney to settle the claim on their behalf. A party’s counsel does not have authority to compromise his client’s claim without his client’s “clear and express consent.” See Singleton v. Bunge Corporation, 364 So.2d 1321 (La.App. 4 Cir. 1978). Further, the evidence does not establish that the Purselleys consented to compromise. The actions of the parties and the facts surrounding the asserted compromise in the instant case do not show that the Purselleys and the Bakers mutually consented to the compromise. See Jones v. Tharpe Brothers Builders, Inc., 335 So.2d 709 (La.App. 2 Cir. 1976).

The trial court found that the Purselleys did not agree to the conditions of the letter which Attorney Pierson sent to Attorney Rodney Cashe dated July 1, 1980. The evidence shows that there was no acknowl-edgement of the compromise by the Pursel-leys.

The evidence shows that the Purselleys would not sign the agreement (signed by the defendants on August 5, 1980); instead, they retained counsel to enjoin the executo-ry proceedings. The record does not reveal that the Purselleys considered that they were giving up their rights to the release of the acreage in question. We find that there was no compromise.

The third issue is whether the vendors were entitled to damages because the vendees failed to put up a bond for the temporary restraining order.

Security is not required when the enforcement of the debt secured by the mortgage or privilege is premature. LSA— C.C.P. art. 2753(2). Under the circumstances of this case, the institution of executory process to enforce the indebtedness was premature. See General Motors Acceptance Corporation v. Meyers, 385 So.2d 245 (La.1980).

Moreover, the parties converted the exec-utory proceeding into an ordinary proceeding pursuant to LSA-C.C.P. art. 2644, and actually held a trial on the merits in the consolidated suits.

Furthermore, we agree with the trial court that the vendees were entitled to enjoin the seizure and sale in the executory proceedings instituted by the vendors.

Therefore, we amend the judgment and recast it to read as follows:

“The Court now concluding that the law and the evidence are in favor of the plaintiffs, J. B. Purselley and Frances Faith Hogle Purselley, for the reasons assigned in the written opinion of this Court filed in the record February 17, 1981.

“It is Ordered, Adjudged, and Decreed that:

“1. J. B. Purselley and Frances Faith Hogle Purselley are hereby recognized as owners of the following tract of land, described as follows:

“A certain parcel of land, with all buildings and improvements thereon, located in Section 47, Township 7 South, Range 7 East, Greensburg Land District, Tangipa-hoa Parish, Louisiana, containing 6.35 acres and being more fully described as follows:
“Commence at a point 691.52 feet North of the Southwest corner of Section 47, Township 7 South, Range 7 East and from that point of beginning run North 89° 39' East 1159.20 feet, then run North 31 ° 26' West to the Southeast corner of a ten acre tract owned by Purselley, described in credit deed as recorded in MOB 305 page (112-117); then measure South 89° 39' West 1002.81 feet along the Southern property line of Purselley; then measure South 255.88 feet back to the point of beginning. The above described land is subject to a reservation by the vendor for a period of ten years commencing from the 7th day of April, 1978 through the 6th day of April, 1988 of one-half (V2) of all oil, gas and other minerals.”

“2. The above described tract of land is ordered released from the effects of the mortgage contained in the credit deed dated April 7, 1978, of record in MOB 305, page 112 of the records of Tangipahoa Parish, Louisiana and the Clerk of Court and Ex-Officio Recorder of Mortgages for Tangipa-hoa Parish is hereby authorized and directed to cancel and erase from the records of his office the inscription of said mortgage insofar only as it bears on and affects the property herein described, and no further.

“3. The execution of the foreclosure sale in the proceedings entitled ‘Walter W. Baker, et al. versus J. B. Purselley, et ah, No. 59,202 on the docket of the 21st Judicial District Court, Parish of Tangipahoa’ is enjoined.

“4. The motion to dissolve the restraining order filed on behalf of Walter W. Baker, Alden Lee Baker, and Anna Mercer Baker Naquin is denied.

“5. All costs of this proceeding are assessed against the Defendants, Anna Mercer Baker Naquin, Estate of Alden Lee Baker, and Walter W. Baker.”

For the assigned reasons, we amend the judgment appealed; and as amended, we affirm. The appellants are cast for costs of this appeal.

AMENDED AND AFFIRMED.

      . A mandatary or agent may be defined as one who acts for or in place of another person by authority from him. LSA-C.C. arts. 2985, 2986, 2992; Craft v. Trahan, 351 So.2d 277 (La.App. 3 Cir. 1977), writ refused, 353 So.2d 1336 (La.1978).

      . Article 3016 states:
      “The broker or intermediary is he who is employed to negotiate a matter between two parties, and who, for that reason, is considered as the mandatary of both.”

      .Article 3017 states:
      “The obligations of a broker are similar to those of an ordinary mandatary, with this difference, that his engagement is double, and requires that he should observe the same fidelity towards all parties, and not favor one more than another.”

      . The purported compromise, filed in evidence, was signed by the Bakers but not by the Pursel-leys, either personally or through their agent.


text:
    S. H. FREEMAN and Kevin U. Stephens v. ROYAL SHIELD ENTERTAINMENT, INC., Samuel E. Stewart and Rick Donell.
    No. 14578.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.

      Warren L. Mengis, Baton Rouge, for plaintiff-appellant S. H. Freeman and Kevin U. Stephens.
    A. G. Seale, Ronald A. Seale, Baton Rouge, for defendants-appellees Royal Shield Entertainment, Inc. and Rick Donell.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

Plaintiffs appealed from the dismissal of their suit requesting damages for the breach of a contract.

The issues are the presence of actual and apparent authority and the personal liability of a corporate employee.

We affirm.

Plaintiffs, Reverend Freeman and Kevin Stephens, taped a sermon and musical prelude which they wished to have made into a record album. Reverend Freeman went to Royal Shield Entertainment, Inc., defendant, and spoke with Sam Stewart, a salesman, and Rick Donell, the production manager of Royal Shield.

Plaintiffs and Stewart signed a recording contract by the terms of which 500 albums were to be produced for $1,925.00, $800.00 down, one-half of the balance upon completion of the master tape and the remainder when the albums were completed. The initial payment was made by check signed by Mr. Stephens and made out to Stewart after Stewart said he could make the check out to him or to Royal Shield. Stephens signed as producer and the name Royal Shield Entertainment, Inc., was not on the contract.

After Stewart did some work at the Royal Shield studio with other technicians, editing and preparing the master tape, he informed Reverend Freeman that the rest of the money was needed “up front”. The latter delivered a check payable to Royal Shield in the amount of $225.00 and $900.00 cash. Donell cashed the check and gave the proceeds to Stewart.

After the expiration of the time limit, Mr. Stewart stalled for more time. Later, Royal Shield informed Reverend Freeman that Stewart no longer worked there and that they had no record of the contract. Reverend Freeman explained the situation to the Board of Directors of Royal Shield and asked for a refund. Royal Shield replied they would try to work something out to produce the record if Reverend Freeman would produce the cancelled checks. Reverend Freeman refused and filed suit.

The default judgment rendered against Sam Stewart was not appealed. The court rejected plaintiffs’ claim against Royal Shield and Rick Donell.

Reverend Freeman and Mr. Stephens argue that they thought they were dealing with Royal Shield at all times. However, Mr. Sheeler, the president of Royal Shield, testified that he informed Mr. Stewart that Royal Shield would charge $2,500.00 to produce Reverend Freeman’s album and Mr. Stewart replied that he had informed Reverend Freeman that he could get it done cheaper. Mr. Sheeler told Stewart to make it clear to Reverend Freeman that the production would not be a Royal Shield production.

The first issue is whether Stewart or Donell had actual authority to bind Royal Shield to a contract in the amount of $1,925.78.

The testimony established that Mr. Stewart had no authority to enter into a production contract for Royal Shield for less than $2,500.00. He was specifically informed that the production undertaken by him for a lower price would be his own, and not Royal Shield’s. Mr. Donell also understood that there was no express or implied authority to contract the lower price for Royal Shield. The trial judge was correct in finding no actual authority.

Plaintiffs next argue that Stewart and Donell had apparent authority to bind Royal Shield. The principal is bound if he acts in such a manner as to give innocent third persons the reasonable belief that the agent has authority to act for the principal and the third person reasonably relies thereon. One must look from the viewpoint of a third person to determine if apparent agency has been created. AAA Tire & Export, Inc. v. Big Chief Truck, 385 So.2d 426 (La.App. 1st Cir. 1980).

However, a third party can rely on the apparent authority of an agent only until an event occurs that would cause a reasonable man to inquire further into the circumstances. Radiofone v. Oxford Building Services, Etc., 347 So.2d 327 (La.App. 4th Cir. 1977).

He may not blindly rely on the assertions of an agent, but has a duty to determine, at his peril, whether the agency purportedly granted by the principal permits the proposed act by the agent. Bamber Contractors v. Morrison Engineering, 385 So.2d 327 (La.App. 1st Cir. 1980).

Sam Stewart was introduced to the plaintiffs as an advertising agent or salesman for Royal Shield. Although he had no specific office at Royal Shield, he was allowed to use any office that was vacant. He was paid by Royal Shield on a commission basis only.

While meetings were held at Royal Shield offices and Stewart and plaintiffs worked with other Royal Shield employees, nevertheless, all appearances and representations were consistent with the conclusion that Stewart, after being unable to sell a production contract for Royal Shield, was an independent producer employing, and paying for, the facilities at Royal Shield.

Even if circumstances created initially an appearance of apparent authority, the plaintiffs could no longer rely on this appearance after the production contract was signed by the plaintiffs and Stewart as producer without the name Royal Shield appearing anywhere in the contract.

Stewart’s statement that the rest of the contract price would be needed before the records were completed, contrary to the contractual terms, certainly should have alerted the plaintiffs.

Plaintiffs argue that the present factual situation is similar to that in Thompson v. Great Midwest Fur Co., 395 So.2d 840 (La. App. 1st Cir. 1981). Although some of the factual circumstances are similar (the agent was introduced as a buyer for the principal and was allowed to use the principal’s phone as his business phone), other facts distinguish the cases. The president of the principal in Thompson was closely involved in the sale and implied on several occasions that the agent was acting on behalf of the principal.

Appellants argue that Rick Donell is liable individually for exceeding his authority. However, there was sufficient evidence that Mr. Donell only carried out his duties as production manager. After no contract between plaintiffs and Royal Shield was possible, he thought Stewart was producing the record for plaintiffs and that Royal Shield’s facilities were only being rented. His cashing of the check and giving the proceeds to Stewart, while questionable, was not relied upon by plaintiffs to their detriment.

We find no error in the trial court’s determination that Donell was not individually liable.

For these reasons, the judgment is affirmed at appellant’s cost.

AFFIRMED.


author: WATKINS, Judge.

text:
    CAPITAL BANK AND TRUST COMPANY v. Freddie Lee LACEY and Edward J. Lacey.
    No. 14580.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Russell L. Dornier, Baton Rouge, for plaintiffs-appellants Capital Bank and Trust Co. and Baywood Truck & Machinery, Inc.
    James R. Coxe, III, Baton Rouge, for defendants-appellees Freddie Lee Lacey and Edward J. Lacey.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This appeal arises as the outgrowth of a decision of this court on January 21, 1980, in Nos. 13,032 and 13,033, Lacey v. Baywood Truck and Machinery consolidated with Capital Bank and Trust Company v. Lacey, which decision is reported in 381 So.2d 863. In that decision, we held that Capital Bank and Trust Company was entitled to a deficiency judgment on a note signed by Lacey to purchase a truck tractor and dump trailer, and assigned by the vendor, Baywood Truck and Machinery to Capital. We further held that Lacey was entitled to recover in quantum minoris from the vendor Bay-wood for redhibitory vices in the vehicle purchased, the claim not having been one strictly in redhibition because the truck had been sold and it was impossible to restore the parties to their original status. Lacey applied for writs, which were granted on May 9, 1980, as to Capital’s action against Lacey but denied as to Lacey’s action against Baywood (see 384 So.2d 794). Thereafter, the Louisiana Supreme Court on November 10, 1980, affirmed our decision in Capital’s suit against Lacey, noting by footnote that it had previously denied writs on Lacey’s consolidated suit against Baywood. On February 13, 1981, the Louisiana Supreme Court denied rehearing. The Louisiana Supreme Court decision is reported at 393 So.2d 668.

On June 17, 1980, Lacey applied for a writ of fieri facias in East Baton Rouge (where the suit was originally brought) in his claim against Baywood, designating certain property to be seized and sold. On June 18, 1980, Baywood filed a petition seeking an injunction preventing execution of the writ of fi.fa. On July 9, 1980, the trial court denied a temporary restraining order. On July 7, 1980, Capital applied for issuance of a writ of fi.fa. directing the seizure of Lacey’s interest in his judgment against Baywood. Lacey then applied (1) for a dissolution of Capital’s writ of fi.fa. in proceedings brought against Capital, Bay-wood and A1 Amiss, Sheriff of East Baton Rouge Parish, (2) for damages from defendants in rule in the sum of $5,000.00 for wrongful issuance of the writ of fi.fa., (3) to have defendants in rule held in contempt of court, and (4) to compel Capital and Bay-wood to disclose the real price and date of an alleged transfer of rights in Capital’s claim against Lacey from Capital to Bay-wood. In a judgment signed October 8, 1980, after hearing on rule held on October 3, 1980, the trial court dissolved Capital’s writ of fi.fa. against Lacey, and took under advisement the “remaining rules” before it. From this judgment, Capital and Baywood took a suspensive appeal.

The sole question before this court is the correctness of the trial court’s dissolution of Capital’s writ of fi.fa., the writ having had the effect of subjecting to seizure and sale Lacey’s rights in his judgment against Baywood. On July 7, 1980, when Capital applied for seizure of Lacey’s rights in his judgment against Baywood, Capital’s judgment against Lacey was not final, Capital’s appeal having been suspensive to this Court and (after we reversed the trial court’s judgment in the decision cited above and rendered judgment in favor of Capital) the Louisiana Supreme Court having granted writs as to Capital’s action against Lacey on May 9, 1980. The Louisiana Supreme Court did not deny rehearing in this consolidated suit until February 13, 1981. A judgment of the Supreme Court does not become final or definitive until an application for rehearing is denied, when such application is filed. LSA-C.C.P. art. 2167. Thus, Capital’s writ of fi.fa. was not supported by a final judgment, but rather the matter was still on suspensive appeal for which a sus-pensive appeal bond had been duly furnished. The fact that thereafter judgment became final cannot lend life to an improper and ineffective writ of fi.fa. not based upon a final judgment. At the time of the trial on the rule, October 3, 1980, Capital’s judgment was not final or executory. The trial court, therefore, acted properly in dissolving Capital’s writ of fi.fa. upon Lacey’s application for dissolution of the writ. As the writ was based upon a judgment that was not final when the writ was issued, the fact that Capital’s judgment became final after the trial court’s hearing had taken place cannot lend life to an invalid writ of fi.fa. Nassau Realty Co., Inc. v. Brown, 332 So.2d 206 (La.1976).

We note that Lacey’s rule for damages and related relief is still pending. We reserve all of Lacey’s rights in these matters, as did the trial court.

Lacey has also filed an answer to Capital and Baywood’s appeal seeking damages and attorney’s fees for a frivolous appeal. Although we find the appeal devoid of merit, in view of the complexity of the matter we cannot say the appeal is frivolous. We, therefore, deny damages and attorney’s fees resulting from this appeal.

We affirm the judgment of the trial court in all respects, specifically reserving to Lacey the right to pursue all matters in rule reserved by the trial court, all costs to be borne by appellants.

AFFIRMED.

      . See also Order of Louisiana Supreme Court signed by Chief Justice John A. Dixon amending the Court’s previous order at 384 So.2d 794 to reflect that “. . writs have been denied in the case of Freddie Lee Lacey v. Baywood Truck & Machinery, Inc." Transcript p. 75.


text:
    Reubin K. HODGES v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, et al.
    No. 14587.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Jennifer Luse, Baton Rouge, for plaintiff-appellant Reubin K. Hodges.

      Robert S. Cooper, Jr., Baton Rouge, for intervenor-appellee Leona J. Nichols.
    John J. Hainkel, Jr., New Orleans, for defendants-appellees Southern Farm Bureau Cas. Ins. Co. and Louisiana Farm Bureau Mut. Ins. Co.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

This is a devolutive appeal by plaintiff, Reubin K. Hodges, from a final judgment sustaining the motion for summary judgment in favor of Southern Farm Bureau Casualty Insurance Company, signed on January 30, 1981. We affirm.

Appellant, Reubin K. Hodges, was involved in an automobile accident with Lynda Leona Nichols on April 9, 1976, in which Miss Nichols was severely injured. In a subsequent lawsuit on behalf of Miss Nichols against Hodges and his insurer, Louisiana Farm Bureau Mutual Insurance Company, among others, a judgment was rendered against Hodges and Louisiana Farm Bureau Mutual Insurance Company, and other defendants. The judgment against Hodges was in excess of his insurance coverage with Louisiana Farm Bureau.

On or about September 17, 1980, this action was commenced against Louisiana Farm Bureau Mutual Insurance Company and Southern Farm Bureau Casualty Insurance Company. The petition alleged in pertinent part as follows:

“19.
“Petitioner further shows that as a result of the unreasonable, and/or arbitrary and/or capricious and/or unfair and/or bad faith conduct and/or breach of the defendants’ contractual duties to petitioner herein, petitioner has suffered serious economic loss as mentioned above, as well as mental suffering, humiliation and embarrassment resulting from defendants’, their agents’, employees’ or representatives’ acts or omissions by:
“a. failing to adequately investigate the aforesaid claim;
b. failing to keep petitioner informed of the progress of the action;
c. failing to communicate the offer or offers to settle within the policy limits to petitioner;
d. failing to timely settle for the policy limits;
e. failing to timely advise petitioner of the possibility of an excess judgment being rendered and the consequences thereof;
f. failing to give equal consideration to the interests of petitioner in this matter;
g. disregarding petitioner’s desire to protect himself from financial loss; and
h. other acts and/or omissions to be determined at the trial of the case.
“20.
“In addition to the above, and/or alternatively, petitioner further shows that as a result of the defendants’ tortious conduct and/or negligence and/or lack of due care, and/or want of skill and/or wrongful conduct, petitioner has suffered economic loss as referred to above as well as physical and mental suffering, humiliation and embarrassment resulting from defendants’, their agents’, employees’ or representatives’ acts and/or omissions by:
“a. failing to adequately investigate the aforesaid claim;
b. failing to keep petitioner informed of the progress of the action;
c. failing to communicate the offer or offers to settle withili the policy limits to petitioner;
d. failing to timely settle for the policy limits;
e. failing to timely advise petitioner of the possibility of an excess judgment being rendered and the consequences thereof;
f. failing to give equal consideration to the interests of petitioner in this matter;
g. disregarding petitioner’s desire to protect himself from financial loss;
h. lack of proper attention in protecting the rights of the petitioner;
i. not discharging duties owed to petitioner;
j. other acts and/or omissions to be determined at the trial of the case.”

It is undisputed that Southern Farm Bureau Casualty Insurance Company issued no policy of insurance to Hodges which would have provided coverage for his automobile accident on April 9, 1976. It is undisputed that Louisiana Farm Bureau Mutual Insurance Company did issue a policy of insurance to Hodges (the coverage of which is not at issue on this appeal, since the trial court refused to dismiss the action against Louisiana Farm).

Unquestionably, an insured has a claim against his insurer for an amount awarded an injured third party in excess of the insured’s coverage if the insurer fails to settle within its policy limits, when it had an opportunity to do so, but did not do so through arbitrariness, capriciousness, or bad faith. Shelton v. Commercial Union Assurance Company, 396 So.2d 1379 (La.App. 2 Cir. 1981); Trahan v. Central Mutual Insurance Company, 219 So.2d 187 (La.App. 3 Cir. 1969), writ denied, 254 La. 12, 222 So.2d 66 (1969). The insurer has a duty to act in good faith and to deal fairly when handling and settling claims in order to protect the insured from exposure to excess liability. Domangue v. Henry, 394 So.2d 638 (La.App. 1 Cir. 1980), writ denied, 399 So.2d 602 (La.1981); Moskau v. Insurance Company of North America, 366 So.2d 1004 (La.App. 1 Cir. 1978). 'However, the right of action to bring this suit for excess judgment rests with the insured, and against the insurer. The action is based upon an alleged breach of contractual duty or contractual obligation to the insured by the insurer. See Roberie v. Southern Farm Bureau Casualty Insurance Company, 250 La. 105, 194 So.2d 713 (1967); Cousins v. State Farm Mutual Automobile Insurance Co., 294 So.2d 272 (La.App. 1 Cir. 1974), writ refused, 296 So.2d 837 (La.1974); see also Comment, Duty of Insurer to Settle, 30 La.L.Rev. 622 (1970).

While Louisiana Farm Bureau contested the action against it on the merits, there is no question but that plaintiff, as its insured, has alleged an action for excess judgment against it, as the trial court held. However, by bringing this action for excess judgment also against Southern Farm Bureau, which did not insure Hodges, plaintiff ignores the very nature of this type of suit. We have been directed to no statute or jurisprudence, and we know of none, which gives a party a cause or right of action for excess judgment against any one other than his insurer.

Thus, the “questions of fact” which plaintiff alludes to in his brief are not relevant to a decision in this matter. The only relevant issue is whether or not Southern Farm Bureau Casualty Insurance Company issued a policy of insurance to the plaintiff under which it had a duty to competently represent and defend the insured at the time of the accident which resulted in judgment against the appellant. We find that it did not. By uncontroverted affidavit, Southern Farm Bureau showed it was a separate and distinct entity from Louisiana Farm Bureau and that it issued no policy of insurance to Reubin K. Hodges, plaintiff. We hold that summary judgment was properly granted by the trial court in its favor.

Nevertheless, the appellant further argues that even if he was not an insured of Southern Farm Bureau, the said insurance company is obligated to him under the doctrine of negotiorum gestio, as set forth under Article 2295 of the Louisiana Civil Code:

“When a man undertakes, of his own accord, to manage the affairs of another, whether the owner be acquainted with the undertaking or ignorant of it, the person assuming the agency contracts the tacit engagement to continue it and to complete it, until the owner shall be in a condition to attend to it himself; he assumes also the payment of the expenses attending the business.
“He incurs all the obligations which would result from an express agency with which he might have been invested by the proprietors.”

Plaintiff’s reliance on this doctrine to create a right and cause of action herein against Southern Farm Bureau is misplaced. Before the liability imposed by this Article can attach to the “undertaker”, it must be established that one claiming the damages had some relationship with the “undertaker” and that the undertaker’s failure to perform breached an obligation to properly complete the work as a “prudent administrator.” See LSA-C.C. art. 2298.

The record shows no such relationship between Hodges and Southern Farm Bureau. Southern Farm Bureau was not engaged, as “gestor” under the theory of negotiorum gestio, in managing the affairs of another as comtemplated by LSA-C.C. art. 2295. See LeBlanc v. Audubon Insurance Company, 357 So.2d 29 (La.App. 3 Cir. 1978). There is not the semblance of the principles of negotiorum gestio set out in this case. Southern Farm Bureau never undertook to take care of any obligation of Hodges in the Nichols-Hodges matter, or to manage any affairs of Reubin Hodges. See Pizzolotto v. Sims, 23 So.2d 710 (La.App. 1 Cir. 1945), writ of error refused, January 7, 1946. The case of Beavers v. Stephens, 341 So.2d 1278 (La.App. 3 Cir. 1977), relied upon by appellant, is factually distinguishable from the instant case and thus inapplicable. Southern Farm Bureau had no fiduciary duty to manage Hodges’ affairs in the subject matter, as the “gestor” did in Beavers.

For the foregoing reasons, the judgment appealed is affirmed at appellant’s costs.

AFFIRMED.

COLE, J., dissents.


author: LEAR, Judge.

text:
    In the Case of John C. HAMNER.
    No. 14593.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Writ Granted April 16,1982.
    Gordon J. Hamner, Houma, for plaintiff and appellee-claimant.
    Joseph A. Donchess, Baton Rouge, for defendant and appellant-respondent.
    Before EDWARDS, LEAR and CHIAS-SON, JJ.
   LEAR, Judge.

Plaintiff, John C. Hamner, was admitted to the Inez Sako Nursing Home in Houma, Louisiana, on July 9,1980. His spouse was not admitted and continued to live at home. On July 10,1980 plaintiff’s son, on behalf of his father, applied for Nursing Home Vendor Payments from the Medicaid Program which is operated by the Louisiana Department of Health and Human Resources (DHHR). Plaintiff’s application was rejected, because his income exceeded the eligibility ceiling allowed by DHHR. Plaintiff then requested and received a hearing from the appeals section of DHHR, which upheld the agency’s decision. Plaintiff then sought judicial review of the agency decision.

DHHR’s regulations provide that an applicant is eligible of Nursing Home Vendor Payments if his gross monthly income is less than $714.00 per month. Along with other monthly income, plaintiff receives from his former employer retirement income in the amount of $234.75. DHHR has attributed this entire amount to plaintiff, and in doing so calculates his total gross monthly income as $781.12. On this basis DHHR found plaintiff to be ineligible for Nursing Home Vendor Payments. Plaintiff, however, contends that, because his retirement income is community property, DHHR should include only one-half of it in calculating his monthly gross income for eligibility purposes. In that event, plaintiff’s gross monthly income is then only $663.74, which would make him eligible for the claimed benefits.

The district court agreed with plaintiff, finding that these retirement payments are community income and that only half of the retirement payment should be attributed to plaintiff in. determining his gross monthly income. The district court, reversing the agency’s decision, found plaintiff to be eligible for Nursing Home Vendor Payments. DHHR has appealed that decision.

The issue before us is whether these retirement payments are solely the plaintiff’s income, or rather equally the income of each spouse.

The retirement income at issue here was generated through a retirement program connected with plaintiff’s employment during his marriage. The proceeds [income] from this retirement plan constitute community property, which is owned by plaintiff and his spouse in indivisión. This retirement income is clearly community income. T. L. James & Co., Inc. v. Montgomery, 332 So.2d 834 (La.1975).

In Bender v. Pfaff, 282 U.S. 127, 51 S.Ct. 64, 75 L.Ed. 252 (1930), the United States Supreme Court recognized that under the law of Louisiana the wife is not only vested with the ownership of half of the community property from the moment it is acquired, but is likewise the owner of half of the community income. See also Succession of Wiener, 203 La. 649, 14 So.2d 475 (1943). The court, in Bender, thus held that the spouses are entitled to file separate tax returns, each treating one-half of the community income as income of each of them as an individual.

The principle enunciated in Bender v. Pfaff, supra, was expanded upon by the U. S. Supreme Court in the case of United States v. Mitchell, 403 U.S. 190, 91 S.Ct. 1763, 29 L.Ed.2d 406 (1971). Within a broader issué, the court in Mitchell was called upon to determine whether a married woman, domiciled in the community property state of Louisiana, is personally liable for federal income tax on half the community income realized during the existence of the community. Quoting from its earlier decision in Poe v. Seaborn, 282 U.S. 101, 109, 51 S.Ct. 58, 75 L.Ed. 239 (1930), the court in Mitchell stated that:

“These sections [210 and 211 of the revenue act of 1926] lay a tax upon the net income of every individual. The act goes no further, and furnishes no other standard or definition of what constitutes an individual’s income. The use of the word ‘of’ denotes ownership. It would be a strained construction which, in the absence of further definition by congress, should impute a broader significance to the phrase.”

In determining and defining the term “income”, the court in Bender, Poe and Mitchell all emphasized ownership. In this regard the court looked to the law of the state as to ownership of community property and community income. We are unable to find any instance, whether in Louisiana or in the federal jurisprudence, wherein a distinction is made between “income” and “ownership”. In non-community property states the use of the term income to denote ownership presents no problems, because under these property systems the income of each spouse is their separate property and the term “income” has no meaning other than ownership. However, in Louisiana, a community property state, where community income is presently and from the moment of its acquisition owned by both spouses equally, such phrases as “income of the applicant” lose significance. Since in all cases income is equated with ownership, in community property states eligibility determinations must be based on what funds [income], or portion thereof, being received are actually owned by the applicant.

In this instant case, the retirement funds being received are in the amount of $234.75, one-half of which is owned by plaintiff. Therefore, one-half of that amount is the [retirement] income of plaintiff. Thus, the trial court was correct in attributing only one-half of the retirement income ($117.37) to plaintiff and finding him eligible for Nursing Home Vendor Payments.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs are to be paid by the State of - Louisiana, through the Department of Health and Human Resources in the amount of $161.00.

AFFIRMED.