author: COLE, Judge.

text:
    Rubye Lockhart BISCO v. Jack Edmond MIDDLETON.
    No. 13127.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.

      Kenneth Fogg, Denham Springs, for plaintiff.
    Jerry E. Bunch, Denham Springs, for defendant.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

Plaintiff, Rubye Lockhart Bisco, brought suit against Jack Edmond Middleton for rescission of a 1977 sale from her to defendant on the ground of lesion beyond moiety.

The trial court found that the property, which sold for $2,000, had at the time of sale a value of $8,828.25. Accordingly the plaintiff was held entitled to relief for lesion beyond moiety. The improvements to the tract made by defendant were valued at $4,200 based on the cost of materials and workmanship. We construe the intent of the judgment to allow defendant to elect between rescinding the sale or confirming it by paying the full value. July 1,1979, was fixed as the deadline for that purpose. In the event defendant chose to rescind the sale, plaintiff was ordered to pay $6,200, with seven per cent interest on the sum of $2,000 from February 16, 1977 (the date of the sale), and the same rate of interest on the sum of $4,200 from October 4, 1978 (the date suit was filed). If, however, defendant elected to keep the property, he was ordered to pay plaintiff $2,628.25 with seven per cent interest from October 4, 1978.

Both parties appealed. The issues on appeal are: (1) Proof of lesion beyond moiety; (2) Value added by improvements; (3) Interest on the purchase money; (4) Interest on the sum due for added value; and (5) Calculation of sum owed by defendant on electing to retain title.

PROOF OF LESION BEYOND MOIETY

In an action for rescission for lesion beyond moiety, the vendor must prove by clear and convincing evidence that the price given was less than one-half of the valúe of the thing sold. La.Civ.Code arts. 1861(2), 2591; Dunker v. Finance Funds Group, Inc., 333 So.2d 331 (La.App. 4th Cir. 1976); Peterson v. Herndon, 235 So.2d 178 (La.App. 2d Cir. 1970). The standard to be applied to determine the value of the property is fair market value at the time of the sale. La.Civ.Code arts. 1870, 1871, 2590; Valley Land Corporation v. Fielder, 242 So.2d 358 (La.App. 2d Cir. 1970).

The property in dispute is a 1.627 acre tract located within the corporate limits of the town of Walker in Livingston Parish. The tract fronts on its west end on Walker North Road, a major street, and is bounded above by Dumplin Creek Canal. To the east it adjoins land owned by defendant, while on the south it abuts plaintiff’s property. The subject tract, zoned commercial, is in a neighborhood of mixed residential and commercial use. When defendant bought the tract, it had an uneven terrain and was covered with thick undergrowth and trees, so that it was difficult to walk through.

Defendant and his lay and expert witnesses stressed that a large part of the land was low and subject to frequent flooding. According to defendant and John Adams, who surveyed the tract, an old creek bed ran through the property. There was also testimony the condition of the land was such that it could not support a building without the use of pilings. Plaintiff’s witnesses, on the other hand, acknowledged that some of the tract was low but emphasized that the greater part was high land with the same elevation as adjacent property. Plaintiff’s expert • witness estimated that less than ten per cent of the tract would be inundated during a normal flood of Dumplin Creek, while defendant asserted fifty per cent would be under water.

Each party offered the testimony of one expert appraiser. Plaintiff’s expert, James Carpenter, using the market data approach, valued the land at the time of sale at $6,683 per acre, $10,875 for the tract. To reach this figure Carpenter looked to three comparable sales and made adjustments for differences in size, location, condition and use. One of the “comparables” used was a 1976 sale of a tract located only 120 feet from the subject property. Its per acre price was $10,338. .

Defendant’s expert, Larry Bankston, testified he was unable to use comparable sales because according to his estimates, the cost of raising the elevation and improving the condition of the subject tract to make it equivalent to that of a “comparable” was so great as to exceed the selling price of any “comparables” he could find. In Bankston’s opinion, no knowledgeable buyer would have been willing to spend the money needed to develop the property when there was other readily usable land available in the area at a lesser cost. He placed a market value of $2,000 on the tract because there was at least one buyer, the defendant, willing to pay that price.

The trial judge did not adopt the appraisal of either expert. Instead he fixed the value of the tract at $8,828.25. In so doing, he expressly looked to the comparable sales used by plaintiff’s expert but without accepting the adjustments to those sales made by the expert. The trial judge apparently felt these adjustments were not valid.

We find no error in the trial court’s holding on the value of the tract. When there are great variances among appraisals, it is the court’s function to examine each appraisal to determine which is more reasonable. The court is not bound to accept to reject one expert’s testimony in its entirety to the preference or rejection of another’s. Parts of each expert’s testimony may be accepted when the testimony so accepted is based on proper facts and sound reasoning. Dixie Electric Membership Corp. v. Guitreau, 302 So.2d 324 (La.App. 1st Cir. 1974); State Department of Highways v. Salassi, 244 So.2d 871 (La.App. 1st Cir. 1971). We think the trial court properly weighed the witnesses’ testimony. The court’s valuation takes into consideration the serious nature of the problem of low elevation and gives proper weight to comparable sales, whose significance was too readily disregarded by defendant’s expert. Since the $2,000 purchase price is less than one-half of the value placed on the property by the trial court, plaintiff is entitled to relief for lesion beyond moiety.

VALUE ADDED BY IMPROVEMENTS

If defendant elects to rescind the sale, he is entitled to reimbursement for the $2,000 purchase money and for the improvements added to the tract.

Civil Code art. 1878.

If the purchaser elect to rescind the sale, he must restore the property with all the profits received, or which he might have received from the property from the time of bringing suit; and the seller shall repay the purchase money which he has received, with interest from the same time, give up and cancel the securities given for such part, if any,.as remains unpaid; and moreover pay for such improvements made by the purchaser as add a permanent value to the property, according to their value at the time of the rescission of the sale.

The trial court over the objection of. plaintiff admitted testimony on the amount of money defendant had spent clearing and draining the tract and adding fill. In its oral reasons for judgment, the trial court, citing. Civil Code article 508, appraised the improvements at $4,200 based on the cost of materials and labor.

We think the lower court was in error to use the cost of improvements as the basis for its award. Article 508, which previously came within the chapter entitled “Of the Right of Accession in Relation to Immova-bles” is inapplicable. The Civil Code in Article 1878 specifically treats the problem of reimbursement for improvements when a sale is rescinded for lesion beyond moiety. We are directed by that article to look at the time of rescission to the value which the improvements add to the property. The cost of materials and labor is not pertinent. As there is no evidence in the record on the enhanced value of the property due to improvements, we will remand for the taking of evidence on this point. At the beginning of the hearing the trial court, for appraisal purposes, must declare the date by which defendant elects between rescinding the sale or confirming it by paying the full value. After the additional evidence has been adduced, the trial court is directed to render an interlocutory decree establishing the value the improvements add to the property at the time set for possible rescission and ordering defendant to exercise his option within the period allowed. After defendant declares his choice, the court shall render a final decree. La.Civ.Code arts. 1877, 1880.

INTEREST ON PURCHASE MONEY

The judgment below erroneously ordered plaintiff, in the event defendant chose to rescind the sale, to pay seven per cent interest on the $2,000 purchase price from February 16, 1977, the date of sale. Civil Code articles 1878 and 2592 clearly state that interest on the purchase price is to run from the day suit was filed. Accordingly, we reverse that portion of the judgment below and order that interest on the $2,000 shall run from October 4,1978, in the event defendant chooses to rescind the sale.

INTEREST ON SUM DUE FOR ADDED VALUE

Plaintiff also complains about the award of interest on the sum set for the value of improvements. The judgment below imposed seven per cent interest running from October 4, 1978, the date suit was filed.

The Civil Code does not specifically address the question of interest on the value added by improvements in a case of rescission for lesion beyond moiety. Instead we must look to the general article on judicial interest. Civil Code article 2924 reads in pertinent part:

Art. 2924.

Interest is either legal or conventional. Legal interest is fixed at the following rates, to wit:
At seven percent on all sums which are the object of a judicial demand. Whence this is called judicial interest;

The problem in this case is determining when judicial demand was made for reimbursement of added value. In an action for lesion beyond moiety, the vendee is given the option to elect between rescinding the sale and retaining title by paying the just price. La.Civ.Code arts. 1877, 2592. The choice must be made within a period set by the court. La.Civ.Code art. 1877. Until the vendee elects to rescind, there can be no sum due for the value the improvements add to the property. However the filing of the suit triggers an inchoate demand for the value should the election be made to rescind the sale. This demand, although not completed until the election to rescind is made, nonetheless is begun at the instance of litigation and interest on the value should commence running at that time. This results in equity as between the parties, considering the seller is entitled to interest from judicial demand on the additional sum due him should the purchaser elect to keep the property. We find no manifest error in allowing judicial interest to run on this value from the date suit was filed by plaintiff.

SUM OWED BY DEFENDANT

If defendant elects to keep the property, he must of course make up the just price by paying the difference between the purchase price ($2,000) and the true value of the property ($8,828.25), plus interest thereon from the date of suit. La.Civ.Code art. 2592. This amount is $6,828.25. The trial court went one step further and erroneously deducted an additional $4,200 from the above sum, thus giving defendant credit for the improvements he had placed on the property. This is clearly incorrect since upon paying, defendant would be entitled to keep the property and the improvements. The effect of the judgment below is to make plaintiff pay for improvements on property to which defendant retains title.

For the foregoing reasons, the judgment of the trial court is affirmed in part, reversed in part, remanded for further proceedings consistent with the opinion expressed herein, and is recast as an interlocutory judgment to read as follows:

“IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff, Rubye Lockhart Bisco, and against the defendant, Jack Edmond Middleton, decreeing the true value of the property sold by plaintiff to defendant by virtue of Act of Cash Sale recorded in COB 227, Page 739, Entry No. 123534, of the Records of Livingston Parish, Louisiana, to be the sum of $8,828.25, and, accordingly,

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the aforesaid sale is subject to being invalidated and rescinded for lesion.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that upon the future ascertainment of the value the improvements made by the defendant added to the property, the defendant shall be granted a period of time within which to elect either to rescind the sale, or to have it confirmed by paying the full value.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that in the event the defendant elects to confirm the sale by paying its full value, he shall pay to the plaintiff the sum of $6,828.25, plus interest thereon at the rate of seven per cent per annum from October 4,1978, until paid; and, in the event the defendant elects to rescind the sale, the plaintiff shall pay to the defendant the sum of $2,000, plus a sum hereafter to be determined for the value the improvements made by the defendant added to the property, plus interest on both sums at the rate of seven per cent per annum from October 4, 1978, until paid.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that expert witness fees are set for James Carpenter, John D. Adams and Larry Bankston in the respective amounts of $200, $120 and $100, the plaintiff to pay James Carpenter and the defendant to pay John D. Adams and Larry Bankston, all other costs to be divided equally between plaintiff and defendant.”

We now order the Clerk of Court and Ex-Officio Recorder for the Parish of Livingston to maintain the Notice of Lis Pen-dens recorded in COB 266, Page 204, and in MOB 156, Page 277, pending a final decree herein. And, if recorded, we order said Clerk to cancel and erase the trial court judgment rendered March 19, 1979, and read and signed on March 21, 1979. We further order the said Clerk to inscribe in its entirety this opinion and decree in both the conveyance and mortgage records of his office.

Costs of this appeal are assessed equally against appellant and appellee. Additional costs on remand are to await final disposition.

AFFIRMED IN PART, REVERSED IN PART, RECAST AND REMANDED.

      . We find the judgment to be ambiguous. On the one hand it unequivocally orders a rescission of the sale and the return of the sale price, plus payment by plaintiff to defendant of the value of the improvements defendant made to the property. On the other hand the judgment allows the defendant to retain title to the property by paying to plaintiff a sum purporting to be the difference between the sale price and the full value of the property. We will recast the judgment conforming it with law and this opinion.

      . This article was amended in 1979, effective January 1, 1980. Civil Code arts. 496, 497 now cover the subject and are included within the chapter entitled “Of the Right of Accession to What Unites or Incorporates Itself to the Thing.”


source: Caselaw Access Project

license: Public Domain

text:
    James Bernard JENKS v. Bobbie GULLA.
    No. 13135.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.
    Ralph Brewer, Baton Rouge, of counsel for plaintiff-appellant ■ James Bernard Jenks.
    Donn Moss, Baton Rouge, of counsel, for defendant-appellee Bobbie Gulla.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

This is an appeal from the sustaining of the peremptory exception raising the objection of res judicata. At issue is whether the trial court had evidence before it on which to base its holding. Appellant asserts the exception was decided upon oral argument without the introduction of any documentary or other evidence.

James Bernard Jenks, plaintiff-appellant, brought suit in The Family Court of East Baton Rouge Parish seeking a judgment declaring null a 1972 Arkansas divorce between Rufus W. Ashley, Jr. and the defendant, Bobbie Gulla. Jenks also prayed that his 1973 marriage to the defendant as well as his subsequent separation and divorce decrees be declared absolute nullities.

Defendant responded with the objection of res judicata. She alleged her Arkansas divorce and subsequent marriage to Jenks had been held valid in a previous suit between the parties in the Nineteenth Judicial District Court.

The record on appeal does not contain any evidence on which the trial court could have based its ruling. Through clerical inadvertence or otherwise, the suit record of the previous litigation between the parties is not before us. We cannot take judicial cognizance of suit records of other courts. Mattox v. American Indemnity Co., 259 So.2d 79 (La.App.4th Cir. 1972); New Orleans Industrial Canal Land & Harbor Development Co. v. Kohler, 150 So. 874 (La.App.Orl.Cir.1933); Fruge v. Langley, 146 So. 486 (La.App.1st Cir. 1933). Nor is there a transcript of the hearing on the exception. We have no way of knowing if any admissions or stipulations were made which were the basis for the court’s opinion. We do not necessarily equate the absence of evidence in the record with the proposition that the trial court did not, in fact, have sufficient evidence before it upon which to properly adjudicate the issue. In the interest of justice and judicial efficiency, we remand to the lower court in order that any evidence previously offered may be made a part of the record and, if necessary, to allow evidence to be offered on the exception.

For the foregoing reasons, the judgment of the lower court is vacated and set aside and the case is remanded for further proceedings consistent with the above opinion. Costs are to await final disposition of the case.

REMANDED.


author: COVINGTON, Judge.

text:
    Louise C. SANDERS v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, East Louisiana State Hospital.
    No. 13143.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.
    Mary E. Howell, Howell, Kellogg & Bayer, New Orleans, for appellant.
    Otha Curtis Nelson, Sr., Dept, of Health & Human Resources, Baton Rouge, for ap-pellee.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

This is an appeal of a ruling by the Louisiana State Civil Service Commission upholding the discharge of appellant, Louise C. Sanders, by the Department of Health and Human Resources, East Louisiana State Hospital. We reverse.

Appellant was employed by DHHR, East Louisiana State Hospital as a Cook I, serving with permanent status. On November 15, 1978, at about 6:30 P.M., she was observed by Harry Bezar, a correctional security officer, carrying two large bags, and upon investigation, it was revealed that they contained hospital food stuff. It is stipulated that appellant attempted to steal 30 eggs from the state hospital. At the time of the investigation, appellant at first lied about the food, but later admitted the attempted theft.

On November 16, 1978, T. N. Armistead, superintendent of the hospital, sent Mrs. Sanders a letter notifying her of her immediate suspension and her dismissal as of the close of business on Friday, November 17, 1978. In the letter of dismissal the reasons stated were -as follows:

“On Wednesday, November 15, 1978, at approximately 6:30 P.M., you were observed by Mr. Harry Bezar, Correctional Security Officer IV, carrying this food stuff through the gate at Forensic. As you were leaving the grounds, Mr. Bezar noticed you were carrying two large bags and upon investigation discovered that they contained two loaves of bread and approximately eight dozen eggs. At that time, you stated the bread had been purchased at the Canteen and the eggs had been given to you by a relative. On Thursday, November 16, 1978, in the presence of witnesses you admitted that you had actually taken this food stuff from the hospital.”

On December 18, 1978, the appellant filed, through counsel, a notice of appeal. As the basis of her appeal, the appellant denied the allegations and asserted that there was no just cause for her dismissal. She also averred that the letter of dismissal was insufficient in that it failed to apprise her of the names of the witnesses against her so as to enable her to prepare her appeal. The appellant also alleged that the penalty was excessive, arbitrary and discriminatory, contending that black employees similarly situated were subject to more severe penalties than white employees and that the penalty of termination has been illegally tainted by racial discrimination. She requested that she be reinstated in full to her position as Cook I, with full back pay and benefits.

After the hearing, the Commission upheld the dismissal of appellant, and appellant appealed.

Appellant has filed in this Court a peremptory exception. Such an exception may be considered by us “if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.” LSA-C.C.P. art. 2163.

The ground for this peremptory exception is Rule 12.3 of the Civil Service Commission Rules, which requires the appointing authority to furnish the Director a copy of the written letter of termination within 15 days of notification of the employee. The record shows that the letter of termination was dated November 16, 1978. The copy in the record is stamped “Received December 5, 1978, Department of State Civil Service.”

Rules for the State Civil Service Commission have the force and effect of law; LSA-Const. art. 10, § 10(A)(4).

Our Supreme Court, in Boucher v. Division of Employment Security of the Department of Labor, 226 La. 227, 75 So.2d 343 (1954), emphasized the importance of following every such Rule unreservedly. Under the existing pertinent Rule at that time, “[i]n every case of removal, reduction in pay, layoff, demotion, or suspension for a period exceeding 30 days, of a regular employee, the appointing authority or his authorized agent shall furnish the employee and the Director in advance of such action a statement in writing giving explicit and detailed reasons therefor . . . .” (Emphasis added.) That procedure was not followed in that the Director was not furnished with the advance notice. The court found the removal to be improper and illegal.

Although it would appear that this is a hypertechnical application of the Rule, we are obligated to follow it. It is very difficult to see how the employee is prejudiced in any way when notice to the Director is a few days late, as is the case before us. It would seem that only the Director could have cause to complain.

However, to quote from the Boucher opinion, page 345:

“We do not pass on the expediency or wisdom of the law; our responsibility is that when a law is clear and free of ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. LSA Civil Code Article 13.”

In view of the fact that the appointing authority did not comply with the provisions of Rule 12.3, the removal was improper.

Therefore, the judgment is reversed at appellee’s cost and the suit is dismissed.

REVERSED.


author: LOTTINGER, Judge.

text:
    Louis ENGOLIA et al. v. CUMIS INSURANCE SOCIETY, INC.
    No. 13144.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.
    Robert J. Mack, Hammond, for plaintiffs.

      Henry Leon Sarpy, New Orleans, for defendant,'Cumis. Ins. Soc.
    Johnny S. McGary, Ponchtoula, for third party defendant, James K. Walker.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

This is an automobile accident case. The trial court awarded the plaintiff, Joan En-golia, $12,500.00 in general damages for pain and suffering and awarded the other plaintiff, Louis Engolia, special damages of $3,961.00. Liability is not at issue on appeal, but the defendant insurance company questions the quantum of general damages and that portion of the special damage award which was given for future medical.

The accident occurred in Ponchatoula, Louisiana, on May 30, 1977, when the vehicle in which plaintiff, Joan Engolia, was a guest passenger was struck broadside by a motorcycle. Mrs. Engolia, a dance instructor, testified that although she did not feel hurt at the time of the accident, she began feeling pain a few months after the accident and visited Dr. Charles H. Gideon, a chiropractor, for the first time on August 1, 1977.

Between August 1, 1977 and October 16, 1978, Mrs. Engolia saw Dr. Gideon at least 68 times, sometimes intermittently, sometimes frequently. Dr. Gideon diagnosed Mrs. Engolia’s injuries as chronic traumatic cervical myofascitis with lumbosacral sprain secondary to right sciatic radiculitis. In laymen’s terms, Mrs. Engolia had a painful neck inflammation and a lower back sprain with nerve inflammation. Various treatments were conducted, including motorized traction, electrical muscle stimulation, ultra sound treatment, hot wet pack treatment and spinal manipulation.

Dr. Gideon testified that Mrs. Engolia progressed slowly at first, but the slow recovery was possibly due to the fact that the patient began teaching her dance classes again in September, 1977. He also said he knew Mrs. Engolia was “in constant pain” and that he has not yet discharged her from treatment. The total bill for the visits to Dr. Gideon was $1,276.00 plus $135.00 in x-rays.

Mrs. Engolia testified that she quit seeing Dr. Gideon in October 1978 because she could not afford to pay for the doctor’s bills, even though Dr. Gideon told her not to worry about the bills. She also testified that, up to the time of the trial, she could not sit up straight, hold her head up straight for long periods of time, and sit for too long without shoulder, back and neck pain. She also experiences numbness in her hands and feet and she still suffers headaches.

In written reasons for judgment, the trial judge determined that Mrs. Engolia’s injuries were caused by the automobile accident and were of a serious nature. He also held that Mrs. Engolia has suffered and continues to suffer from her injury, although the injury was not disabling. On this basis, he awarded her general damages of $12,500.00.

The trial court’s award of $3,961.00 to Louis Engolia, Mrs. Engolia’s husband, included $100.00 deductible for vehicle damage, $755.00 for the chiropractor’s bill, $1,106.00 for wages paid by Mrs. Engolia to workers at her dance studio and $2,000.00 for future medical.

GENERAL DAMAGES

Under the most recent pronouncement by our Supreme Court on the issue of appellate court review of trial court damage awards, we are hesitant to alter a trial court’s damage assessment except in the most extreme of circumstances. Reck v. Stevens, 373 So.2d 498 (La.1979). The Reck case establishes a bifurcated process for appellate review of damage awards. An appellate court must first determine whether the trial court abused its “very great discretion” in awarding damages to a particular plaintiff under the particular circumstances of the particular case. See La.C.C. art. 1934(3). “It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive, or insufficient.” (Citations omitted.) 373 So.2d at 501. If the appellate court determines initially that the trial court has abused its discretion, then and only then may the court look to prior awards to determine what an appropriate award should be in the case before it. And “prior awards may serve as an aid in this determination only where, on an articulated basis, the present award is shown to be greatly disproportionate to past awards (not selected past awards, but the mass of them) for (truly) ‘similar’ injuries.” 373 So.2d at 501.

We are hard-pressed to say exactly what all this means from a legal standpoint. We think it means that appellate courts should maintain a hands-off policy on a trial court’s damage award unless the award is so excessive or inadequate that even the Supreme Court would think it so. We think it also means that past awards should play a very minor, if any, role in determining what a present plaintiff should receive in damages. But before an appellate court can even look to past damage awards, the court must first make an articulated finding that the trial court has abused its discretion.

In the case at bar, we do not think the trial judge abused his “very great discretion” in awarding Mrs. Engolia $12,-500.00 in general damages, so there is no need for us to look to prior ease law to determine whether the award is in line with other truly similar cases.

SPECIAL DAMAGES

The trial court’s award of special damages to Louis Engolia must be amended. First, the $2,000.00 awarded for future medical must be deleted because no future medical expenses were proven. See Billedeaux v. Adams, 355 So.2d 1345 (La.App. 3rd Cir. 1978). Second, the trial court’s award of $755.00 for Dr. Gideon’s bill was $656.00 short of the total bill of $1,411.00, which includes $135.00 for x-rays. We will therefore amend the special damage award for doctor’s fees, increasing it to $1,411.00. The total of special damages is therefore $2,617.00.

Therefore, for the above and foregoing reasons, the decision of the trial judge is amended to reduce the award to Louis En-golia to $2,617.00, and in all other respects the judgment of the trial court is affirmed. All costs of this appeal will be paid by the defendant-appellant.

AMENDED AND AFFIRMED.


author: ELLIS, Judge:

text:
    Johnny R. DAVIS v. CITY OF BATON ROUGE et al.
    No. 13120.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.

      Ernest L. Johnson, Baton Rouge, of counsel, for plaintiff-appellant Johnny R. Davis.
    James J. Zito, Baton Rouge, of counsel, for defendants-appellee The City of Baton Rouge, et al.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

Plaintiff Johnny R. Davis is the owner of Lot 1, Square 3, Subdivision Day in Baton Rouge. The improvements formerly situated thereon carried the municipal number 601 South 10th Street. On October 22, 1969, plaintiff was notified, through his rental agent, that the house situated on his lot did not meet minimum standards imposed by Baton Rouge City Ordinance No. 1224. He was ordered to remove the violations of the standards, which were enumerated in the notice, by November 22, 1969.

On January 8,1973, plaintiff was notified that the violations had not been corrected as of that date. He was ordered to complete repairs by February 8, 1973, or the matter would be referred to the Parish Attorney’s office for appropriate action.

On December 23, 1976, a notice was served on plaintiff directing him to appear at the Baton Rouge City Council meeting of January 12, 1977, to show cause why the house should not be demolished. • At the January 12th meeting the City Council found the house to be in a dilapidated condition and ordered plaintiff to “repair, remove or demolish said building, said work to begin within 30 days from date of this Decision and Order and to be completed within 90 days therefrom, in default of which the Department of Public Works is instructed to proceed with removal and demolition.” Plaintiff attended that meeting of the City Council, and interposed no objection to the action taken.

On May 20, 1977, a notice was served on plaintiff, by domiciliary service on his son, advising him that he had not complied with the order of the City Council and that the Department of Public Works was going to proceed with the demolition and removal of the house. He was further notified that “should you desire to salvage any materials from the above described structure you must do so prior to commencement of work by the Department of Public Works since all material and debris will be removed from the site and the premises will be left in a clean condition.”

Thereafter the City advertised for bids for the demolition of plaintiff’s house. The low bidder was Michael Keaveny, who bid $740.00. On February 16, 1978, the City entered into a contract for the demolition of the house with Mr. Keaveny, which provided, inter alia:

“It is understood and agreed that, as a part of the consideration to Contractor, all lumber, concrete, brick foundations, chimneys, pillars, and all other debris of any kind shall be removed by the Contractor at his cost.”

Mr. Keaveny then entered into an agreement with Jimmy Majors, who agreed to demolish the house for the materials contained therein. While Mr. Majors was in the process of taking the house down, plaintiff instituted this suit, asking for an injunction to prevent the demolition of the house. After a hearing, a preliminary injunction was denied on April 5, 1978, and the house was demolished by Mr. Majors, who took the salvageable materials.

Plaintiff amended his petition on October 10, 1978, to allege that he should be given credit for the value of the salvageable materials in the house. Trial was later held on the merits and plaintiff’s suit was dismissed. From the judgment of dismissal plaintiff has appealed.

In this court, plaintiff contends that the condemnation and demolition procedures followed by the City deprived him of his property without just compensation, and that the failure of the trial judge to allow oral argument when the case was submitted constitutes reversible error.

The law provides several methods by which a municipality may condemn structures which have become so dilapidated as to constitute a public hazard. See R.S 33:4751 and 4752; R.S. 33:4761-4767; R.S. 40:561-572. Pursuant to the authority contained in the above statutes, the City of Baton Rouge has adopted minimum housing standards and procedures for condemnation and demolition of structures which remain in violation thereof. Section 4.7, Title 8A, Baton Rouge City Code.

It is not disputed that plaintiff received all notices to which he was entitled, and, during the course of the trial, plaintiff stipulated that he had received due process of law. However, after the preliminary injunction had been denied, and the building had in fact been demolished and the materials taken away, plaintiff amended his petition to seek the value of the salvageable materials in the building, and put on expert testimony as to the value thereof.

The contract for the demolition of the building which was entered into with Mr. Keaveny provides for the materials to be removed from the lot by the contractor, at his cost, as an additional consideration to him. The contract does not specifically state that the salvageable materials become the property of the contractor, but no restrictions are placed on the manner in which the materials are to be disposed of by him. Plaintiff claims that he should receive a credit for the value of the salvageable materials, and that, in not giving credit for same, the City has taken his property without just compensation being paid.

We cannot agree. Plaintiff literally had years within which to bring the house into compliance with minimum housing standards. Failing in this, he was given almost eight months to remove salvageable materials from the building, and, once again, failed to do so. He made no claim for the value of the materials until after 'the building had been demolished and the lot cleared. Having failed completely to protect his own interests, he cannot now claim that the City should have done so. The purpose of the law is to permit the City to remove a condition hazardous to public safety. The removal and disposition of the materials composing the structure is necessary to the accomplishment of that purpose. Ample opportunity is afforded the property owner to take the salvageable materials prior to demolition. His failure to repair the structure, or to salvage the materials therein, can only be construed as an abandonment thereof.

Plaintiff’s argument that the trial judge committed reversible error in not allowing oral argument is without merit. The granting or refusal of oral argument lies within the sound discretion of the trial court, and we find no abuse of that discretion in this case. See Belanger v. Employers Mut. Liability Ins. Co. of Wis., 159 So.2d 500 (La.App. 1st Cir. 1963).

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

AFFIRMED.


author: CHIASSON, Judge.

text:
    Ernest JEFFERY v. BASS ENTERPRISES/SID RICHARDSON CARBON COMPANY, and the Hartford Insurance Company.
    No. 13107.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.
    Joseph B. Dupont, Plaquemine, for plaintiff-appellant.
    Gerald L. Walter, Jr., Baton Rouge, for defendants-appellees.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Ernest Jeffery appeals the trial court’s judgment denying him compensation for an alleged total and permanent disability.

Around January 12, 1977 while employed by Bass Enterprises/Sid Richardson Carbon Company, Mr. Jeffery suffered frostbite to his feet after having worked outside in cold temperatures for two work days. Mr. Jeffery, at one point, complained about foot pain to his supervisor, but was instructed that the work had to be done, so he continued working.

Appellant visited a Dr. Freeman for the pain and swollen condition of his feet. Dr. Freeman diagnosed him as having a vascular disease known as Raynaud’s phenomenon. It was Dr. Freeman’s opinion that the disease process had been ongoing for a number of years. However, he opined that the disease might have remained dormant had Mr. Jeffery not incurred frostbite (a condition to which he was more susceptible due to Raynaud’s phenomenon). Due to recognition of the underlying disease, Dr. Freeman felt that Mr. Jeffery would need to continue medication for the remainder of his life and could not work outside in temperatures below 40°.

No permanent tissue damage from frostbite occurred and after about a month off, Mr. Jeffery returned to work. Thereupon, he was let go because of his inability to work outside in cold temperatures.

Mr. Jeffery brought suit against Bass Enterprises/Sid Richardson Carbon Company and its insurer, Hartford Insurance Company, seeking workmen’s compensation for permanent and total disability.

After trial, judgment was rendered in favor of appellant ordering defendants to pay $85.00 per week disability for the month that Mr. Jeffery was off from work receiving treatment for frostbite. Permanent and total disability was disallowed.

Thus, the only issue presented on appeal is whether the manifestation of a dormant disease caused by working in cold weather is recoverable under the Louisiana Workmen’s Compensation Act as a total and permanent disability when the only work restriction placed on appellant is that he not work outside in temperatures below 40°.

As amended in 1975, LSA-R.S. 23:1221(2) defines total and permanent disability and the benefits therefor as follows:

“(2) For injury producing permanent total disability of an employee to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.”

Under the amendment, this Court has interpreted permanent total disability to mean . . that an employee is not totally disabled, either temporarily or permanently, unless he is disabled from performing any gainful work whatsoever.” LeBlanc v. Commercial Union Assur. Co., 349 So.2d 1283 (La.App. 1st Cir. 1977).

It is apparent that the 1975 amendment was “. . . intended to relieve the effect of prior jurisprudence which held that an injured employee was entitled to benefits when he could not perform the same or similar work in which he was engaged when injured but could, nevertheless, earn wages at some other occupation.” LeBlanc, supra.

We conclude that under the applicable law, appellant has not suffered an injury compensable as a permanent total disability. Mr. Jeffery is able to do any type of work whatsoever as long as he refrains from working in cold temperatures. Furthermore, he suffered no permanent tissue damage and is in the same physical condition as he was in prior to incurring frostbite.

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

AFFIRMED.


text:
    Wilbert J. DHUET v. Thelma TAYLOR.
    No. 13185.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.

      James A. Lightfoot, III, Houma, for plaintiff and appellee.
    Deutsche O’Neal, Jr., Houma, for defendant and appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal from a confirmation of default judgment taken by Wilbert J. Dhuet.

Appellant, Thelma Taylor, and her husband, Wilbert Dhuet, were divorced on June 18,1975. On April 27,1979, Mr. Dhuet filed a petition for settlement of the community. Judgment on confirmation of default was signed on June 29, 1979 ordering the community of acquets and gains dissolved, authorizing Mr. Dhuet to dispose of the community property at private sale and fixing appellant’s interest in the community at the sum of $2,832.06.

Ms. Taylor contends that the trial judge erred (1) in ordering the community dissolved, (2) in ofdering the private sale of property belonging to the community, and (3) in ordering the payment of a particular sum of money to appellant as her portion of the community.

Appellant is correct in her contention that the trial judge erred in ordering the community dissolved. It is “. established that it is the judgment of separation itself, not a formal partition of the community property, which dissolves the community of acquets and gains, effective from the date of the filing of the separation suit.” Harang v. Harang, 317 So.2d 289 (La.App. 1st Cir. 1975); L.S.A.-C.C. arts. 123, 155. Ms. Taylor and Mr. Dhuet were judicially separated in 1974. It was this judgment of separation and not the decree of the trial judge herein that dissolved the community existing between the parties. Therefore, the trial court’s judgment in this respect is without effect.

Next, Ms. Taylor contends, that it was erroneous for the trial judge to order the private sale of property belonging to the community. A review of the record reveals that the trial judge authorized Mr. Dhuet to dispose of the property at private sale, but never actually ordered that the property be sold. Therefore, Ms. Taylor’s second assignment of error is based on a misinterpretation of what the trial judge did. However, for subsequent reasons, we note that it was improper for the trial judge to authorize Mr. Dhuet to sell the community property.

Appellant lastly argues that the trial judge erred in ordering Mr. Dhuet to pay her $2,832.06 as her total and complete portion of the community. We agree. On dissolution of the community the parties become co-owners, each with an individual one-half interest therein. McAdams v. McAdams, 267 So.2d 908 (La.App. 1st Cir. 1972). Partition, either in kind or by licitation, depending on the nature of the property, is the proper procedure for terminating co-ownership interests in property. We know of no authority that would allow the trial judge to adjudicate the community property to one spouse upon the payment of a certain sum of money to the other spouse.

For these reasons the judgment of the trial court is reversed and appellee’s suit is dismissed at his cost.

REVERSED AND RENDERED.


author: PONDER, Judge.

text:
    Calvin L. CROW v. Sylvia Jenkins CROW.
    No. 136094.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 25, 1980.
    Jeff Bratton, Covington, for plaintiff-ap-pellee.
    Thomas B. Waterman, Ponchatoula, for defendant-appellant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

In this child custody case, the mother appealed from the judgment awarding custody to the father.

The sole issue is that of the correctness of the award.-

We affirm.

The custody of the minor child was given to the mother when the parents were divorced in 1976 on grounds of adultery. The mother remarried and admittedly she and her second husband afforded a good environment for the child. However, in 1978 when marital difficulties arose, the mother had an illicit relationship with another man. About six months before the hearing on custody, she left the child with plaintiff’s mother with knowledge that plaintiff would get the child. Thereafter, plaintiff secured an order giving him provisional custody.

At the time of the hearing the defendant had ceased her illicit relationship and reconciled with her husband.

Admittedly the child had been well taken care of by the mother during the time of her custody, except, perhaps, for the existence of the relationship, and also by the father and his second wife from November to the time of hearing in April. The court was reluctant to give custody back to the mother because of the disruption such a change would necessitate and because of the short period of time the defendant and her second husband had been reconciled.

The best interests of the child is the purpose of the custody- determination. Monsour v. Monsour, 347 So.2d 203 (La.1977).

We cannot say that the trial court erred in continuing the custody of the child in the father in the middle of a school year and pending determination of the lasting reconciliation of the defendant and her second husband.

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

Affirmed.


author: HOOD, Judge. BOUTALL, Judge,

text:
    Ernest D. PAULIN v. DEPARTMENT OF SANITATION.
    No. 11123.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1980.
    J. Courtney Wilson, New Orleans, for plaintiff-appellant.
    Michael A. Starks and Marc G. Shachat, New Orleans, for defendant-appellee.
    Before GULOTTA, BOUTALL and HOOD, JJ.
   HOOD, Judge.

Plaintiff, Ernest D. Paulin, appeals from an adverse ruling of the Civil Service Commission of the City of New Orleans. The defendant, Department of Sanitation, City of New Orleans, filed a motion to dismiss the appeal, alleging that the appeal was not taken timely. The case is before us on that motion to dismiss.

The decision of the Civil Service Commission was rendered on June 4, 1979. Plaintiff appealed to this court 39 days later, on July 13,1979. Defendant contends that the appeal was untimely because it was not taken within 30 days after the Commission’s decision became final.

Article 10, Section 12, of the Louisiana Constitution of 1974 provides that a decision of a Civil Service Commission shall be subject to review upon appeal to the Court of Appeal “within thirty calendar days after the decision becomes final.”

We held in Quinn v. Department of Health, 347 So.2d 954 (La.App. 4th Cir., 1977), that a rehearing may be applied for within ten days after the filing of a decision of the Commission, and that when no one applies for a rehearing the decision becomes final at the expiration of that ten day period. Since the above cited article of the constitution allows a party 30 days after the decision “becomes final” within which to appeal, we decided that the appeal in that case was timely since it was taken within 30 days after the expiration of the 10 day delay for applying for a rehearing. Under that decision, in a case where there is no application for a rehearing, a party has a total of 40 days from and after the decision of the Commission is filed within which to appeal.

The mover in this case argues that our decision in Quinn, supra, is incorrect in holding that the Administrative Procedure Act (LSA-R.S. 49:951, et seq.) is applicable to the Civil Service Commission of the City of New Orleans, in concluding that a party has the right to apply for a rehearing from a decision of that Commission, and in decreeing that where there is no application for a rehearing a decision of the New Orleans Civil Service Commission “becomes final” ten days after it is filed. The mover contends that the delay allowed for appealing expired 30 days after the decision of the Commission was filed, and that the appeal in this case should be dismissed as being untimely.

We concede that our laws are not clear as to whether a party has a right to apply for a rehearing from a decision of the New Orleans Civil Service Commission, and that they might reasonably have been interpreted as mover says we should have construed them. We believe, however, that our decision in Quinn, supra, is equally as logical and is as well supported by the law as are the views expressed by mover. Also, that decision has remained the jurisprudence of this court since it was rendered in 1977, and we think parties to actions such as the one involved here, including plaintiff in the instant suit, had the right to rely on it. It involved a technical issue relating to procedure, and we adopted the view which tended to broaden, rather than to restrict, access of parties to the courts.

The cases of Patorno v. Department of Public Safety, Etc., 226 La. 471, 76 So.2d 534 (1954), and Cross v. Delgado Junior College, 331 So.2d 599 (La.App. 1st Cir., 1976), which are relied on by mover, are not applicable here. Patorno was decided before the constitutional provision, the statutes and the Uniform Rules of the Courts of Appeal which are applicable here were adopted. In Cross, the appeal was not sought until 76 days after the decision of the Commission was filed, not within 40 days as in the instant suit.

We have not been persuaded that the decision rendered in Quinn, supra, is incorrect. Our conclusion is that the appeal taken in the instant suit was timely, and that the motion to dismiss that appeal should be denied.

The motion filed by defendant, Department of Sanitation, City of New Orleans, to dismiss the appeal taken by plaintiff is denied.

MOTION DENIED.

BOUTALL, J., concurs in result only.

BOUTALL, Judge,

concurring in result only.

I would not dismiss this appeal because it is timely within the limitations laid down in Quinn v. Department of Health, 347 So.2d 954 (La.App. 4th Cir. 1977). However, I believe Quinn is wrong and should be annulled. The Administrative Procedure Act does except the Civil Service Commission of the City of New Orleans from its provisions. It is not an “agency” as defined in R.S. 49:951 (2). If we apply R.S. 49:959 (Rehearing) how do we fail to apply the rest of the regulations concerning procedure (except for the Constitutional appeal, La.Const. of 1974, Art. 10, § 12)?


author: FORET, Judge.

text:
    Dennis TALLEY et al., Plaintiff-Appellant, v. ESTATE OF John B. TALLEY et al., Defendant-Appellee.
    No. 7326.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.
    Rehearing Denied May 29, 1980.

      Dennis Talley, in pro. per.
    Earl H. Willis, St. Martinville, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and FORET, JJ.
   FORET, Judge.

Appellant, Dennis Talley, appeals from a judgment rendered by the district court denying several motions made by appellant without a hearing.

MOTION TO DISMISS

Appellee, Estate of John Talley, moved to dismiss the appeal on the grounds that appellant failed to pay the costs of preparing the record and the filing fee required by the appellate court three days prior to the return day.

The district judge signed the order of appeal on May 31, 1979, and made the appeal returnable on July 30,1979. Appellant paid the costs for filing the record and the filing fee on July 30, 1979.

C.C.P. Article 2126 provides, in pertinent part:

“The clerk of the trial court, immediately after the order of appeal has been granted, shall estimate the cost of the preparation of the record on appeal, including the fee of the court' reporter .for preparing the transcript and the filing fee required by the appellate court. The clerk shall send a notice by certified mail of the estimated costs to the appellant.
‡ * * * * ‡
“If the appellant pays the costs required by this Article, the appeal may not be dismissed because of the passage of the return day without an extension being obtained or because of an untimely lodging of the record on appeal. Amended by Acts 1976, No. 708, § 2; Acts 1977, No. 198, § 2, eff. Jan. 1, 1978; Acts 1978, No. 449, § 1, eff. Jan. 1, 1979.”

Since appellant paid the costs of preparing the record and the filing fee on the return day, the appeal may not be dismissed. The motion to dismiss is denied.

MERITS

John Talley, appellant’s brother, died February 9,1976, leaving a will. Appellant, aggrieved that his brother had left nothing to him under the terms of the will, filed proceedings seeking to have the will declared null and void. Following a trial, judgment was rendered denying opposition to the will; On appeal, this Court, finding the will to be valid, affirmed the trial court’s ruling. Talley v. Talley, 350 So.2d 1276 (La.App. 3 Cir. 1977).

On April 16, 1979, appellant filed a motion for a new trial based on newly discovered evidence. Appellant also filed the four following motions:

(1) A rule to show cause why the application of the administrator of the estate of John Talley to sell movable and ' immovable property should not be denied;
(2) A rule to show cause why Willis Talley should not be removed as executor of the estate of John Talley;
(3) A rule requesting the court to maintain the will of John Talley in a safe place; and
(4) A rule requesting the court to order the executor of the estate of John Talley to file an annual account.

The trial court denied each motion without granting a hearing. Appellant assigns as error the court’s ruling denying the motions ex parte.

Counsel for defendant-appellee, the Estate of John B. Talley, filed in this Court a pleading styled “Exception of No Right and No Cause of Action”. We have noted repeatedly the difference between an exception of “No Cause of Action” and an exception of “No Right of Action”. Properly speaking, there is no such exception as an exception of “No Right or Cause of Action”. Bamber Contractors, Inc. v. Henderson Bros., Inc., 345 So.2d 1212 (La.App. 1 Cir. 1977). Likewise, there is no such exception as an “Exception of No Right and No Cause of Action”. Obviously, what counsel for defendant-appellee intended to do was assert an exception of no right of action and an exception of no cause of action. The pleading, however, alleges as grounds only objections related to the exception of no right of action. For this reason, we are of the opinion that the exception of no cause of action was pleaded out of an abundance of caution.

The exceptions of “No Right of Action” and of “No Cause of Action” have different purposes and are subject to entirely different rules and the bar and trial courts are encouraged to recognize which exception is pleaded and to apply the proper rule.

This Court has previously held that the will of John Talley is valid. Talley v. Talley, supra. Since appellant is neither a forced heir nor a legatee under the will, he had no right of action to file the motions concerning the administration of the estate of John Talley. For this reason, the exception of no right of action is sustained.

In view of our sustaining the exception of no right of action filed by defendant-appel-lee, we see no necessity to discuss any other assignments of error urged by plaintiff-appellant.

For the above and foregoing reasons, the judgment of the trial court is affirmed.

Costs of this appeal are assessed against plaintiff-appellant, Dennis Talley.

AFFIRMED.


author: DOUCET, Judge.

text:
    Cecile MORGAN, Plaintiff-Appellee, v. EQUITABLE GENERAL INSURANCE COMPANY, Defendant-Appellant.
    No. 7464.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.
    Rehearing Denied May 29, 1980.

      Gold, Little, Simon, Weems & Bruser, John F. Simon, Alexandria, for defendant-appellant.
    Thomas & Dunahoe, G. F.. Thomas, Jr., Natchitoches, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY, and DOUCET, JJ.
   DOUCET, Judge.

This suit for workmen’s compensation benefits was brought by Ceeile Morgan against Houston General Insurance Company, her employer’s workmen’s compensation insurer. The defendant-insurer appeals a judgment of the district court in favor of plaintiff, awarding her benefits for total and permanent disability, plus penalties and a $5,000.00 attorney’s fee.

Plaintiff was employed as a domestic servant by Judge and Mrs. Richard B. Williams of Natchitoches, Louisiana. In addition to her duties in the Williams household, plaintiff was required to care for a Mr. Francois Mignon, an elderly, blind man, who lives in a small guest house on the Williams’ property. Plaintiff cleaned the guest house, did Mr. Mignon’s laundry, and delivered meals to him which she prepared at the Williams’ house.

Mrs. Williams testified that plaintiff had worked for her family for twenty-five years. She was paid a fixed amount weekly! regardless of the number of hours that she actually worked. Periodically, Mrs. Williams divided plaintiff’s salary by the average number of hours that she worked in order to determine whether she was being paid at least the prevailing federal minimum wage. At the time of the accident, plaintiff was receiving a total of $76.50 per week. In addition, the Williamses provided her with transportation to and from work in their personal automobiles and allowed her to eat one meal per workday in their home.

Mrs. Williams valued the work performed by plaintiff for Mr. Mignon’s benefit at $21.50 per week. She paid that portion of plaintiff’s salary from a bank account that she kept for him. Mr. Mignon had a meager income, which was insufficient for his maintenance and support. In order to justify claiming him as a dependent for income tax purposes, Mrs. Williams maintained the separate bank account and kept separate records of the expenses paid by the Wil-liamses for him.

On November 27, 1975, plaintiff fell and seriously injured her left ankle as she was leaving the guest house, after delivering Mr. Mignon’s breakfast to him. She was hospitalized, and her ankle was surgically repaired. Approximately ten months later, she returned to work, however, the prolonged standing and walking incident to her employment resulted in severe pain and swelling in her ankle. She resigned after eleven months, when her physician advised that she do so, and underwent additional surgical procedures for the placement of prosthetic devices in her ankle.

The trial judge found that despite the medical treatment of her injury, plaintiff is totally and permanently disabled. He awarded benefits based on the following figures:

“(1) 40 hours at $2.20 $88.00
(2) Payment for services to Francois Mignon 21.50
(3) Six (6) meals at $3.00 18.00
(4) Six (6) roundtrips at $1.50 — taxi fare 9.00
Total $136.50
Compensation rate:
66%% of $136.50 limited to statutory maximum, $85.00 per week.”

On appeal, defendant argues that the trial judge erred in the following respects:

(1) In finding that plaintiff was paid on an hourly basis,

(2) In including in plaintiff’s wages for computing workmen’s compensation benefits the $21.50 that she received for services rendered for the benefit of Francois Mig-non,

(3) In including as part of plaintiff’s wages the value of meals which were available to her at work,

(4) In finding that one meal per day should be valued at $3.00,

(5) In including as part of plaintiff’s wages the value of taxi fare between her residence and her place of employment,

(6) In finding that plaintiff is entitled to benefits for total and permanent disability, and

(7) In awarding the sum of $5,000.00 as attorney’s fees.

SPECIFICATION OF ERROR NO. 1

As we noted earlier, plaintiff was paid a fixed amount weekly, regardless of the number of hours that she actually worked. She worked 6 days per week, arriving at about 8:30 A.M. and leaving at 12:30 to 1:30 P.M. Her work varied according to the day-to-day schedules and activities of her employers, however, her salary did not. Defendant argues that under these circumstances she cannot properly be considered an hourly employee. We agree.

In finding otherwise, the trial judge was apparently influenced by Mrs. Williams’ testimony regarding the calculations that she made for the purpose of determining whether the federal minimum wage laws were being complied with. The hourly rate of $2.20 that she used in computing the amount of plaintiff’s benefits was the current federal minimum wage at the time of the accident. It is clear from Mrs. Williams’ testimony, however, that plaintiff’s right to receive her salary was not conditioned upon her working any specified number of hours. In fact, no one kept track of the actual number of hours that she worked. The figure that Mrs. Williams used in making her calculations was an estimate used for the limited purpose of measuring compliance with the federal minimum wage law.

In view of these facts, we believe that the trial judge erred in finding that plaintiff was being paid $2.20 per hour. The weekly salary of $55.00 that she received for work done in the Williams household should have been used in computing the amount of her benefits rather than the $88.00 figure that he used.

We note that defendant argues that plaintiff’s average weekly salary for that part of her work was only $36.64. Defendant arrives at that figure by what we find to be a somewhat strained and illogical application of subparagraph (d) of LSA-R.S. 23:1021(7). That provision was clearly not intended for use in cases such as this. Since plaintiff was paid a fixed amount weekly, her average weekly salary is readily ascertainable without resorting to any of the formulas set out in LSA-R.S. 23:1021(7).

SPECIFICATION OF ERROR NO. 2

Defendant argues that because plaintiff was paid with funds from Mr. Mignon’s personal checking account for the work that she did for his benefit, she was employed by both Mr. Mignon and the Williamses. It further argues that the $21.50 that she received from her allegedly separate employment by Mr. Mignon should not have been included in computing the amount of her benefits. It is clear, however, from a reading of the testimony of plaintiff and Mrs. Williams that plaintiff did not at any time have an employment agreement with Mr. Mignon. Her work was done under Mrs. Williams’ direction, and we conclude that the rendering of those services was a requirement of her employment by the Wil-liamses.

We attach little significance to the fact that plaintiff’s salary was paid from the two separate accounts. Payment of wages is not conclusive proof of an employer-employee relationship, particularly when another party directly controls the employee’s actions. Fontenot v. Town of Kinder, 377 So.2d 554 (La.App.3rd Cir. 1979). Moreover, we believe that plaintiff’s payment from Mr. Mignon’s checking account resulted from Mrs. Williams’ method of record keeping rather than from' an employment arrangement with Mr. Mignon. As we noted earlier, Mr. Mignon’s income was insufficient for his support and had to be supplemented with gifts from the Williamses. If she had found it more convenient to do so, Mrs. Williams could have achieved the same result by paying plaintiff’s salary entirely from her own account and using Mr. Mi-gnon’s funds to pay for some other necessity. We, therefore, reject defendant’s contention that the trial judge erred in including the $21.50 in computing the amount of plaintiff’s benefits.

SPECIFICATIONS OF ERRORS 3, 4, & 5

In concluding that the value of the meals and transportation furnished to plaintiff should be included as part of her weekly wage, the trial judge relied on this court’s decisions in Bananno v. Employer’s Mutual Liability Ins. Co., 299 So.2d 923 (La.App.3rd Cir. 1974), and Ardoin v. Southern Farm Bureau Casualty Ins. Co., 134 So.2d 323 (La.App.3rd Cir. 1961).

Defendant would distinguish those cases, arguing that there was never an agreement between plaintiff and her employees that the value of the meals and transportation would be part of the remuneration for plaintiff’s services. Although we find no direct evidence of such an agreement, our examination of the testimony of plaintiff and Mrs. Williams leads us to believe that the value of those benefits was a factor that was considered in fixing the amount of her salary. Thus, we cannot say that the trial judge was clearly wrong in including those items in computing the amount of plaintiff’s benefits.

With regard to the value of the meal, defendant contends that the trial judge erred in accepting the testimony of plaintiff’s attorney that in 1975 a restaurant meal in Natchitoches was worth $3.00. Defendant argues that the only competent evidence relevant to this issue was the testimony of its expert, Dr. Vazgen Yaghoubi-an, who estimated that the average cost of a meal- prepared in a Natchitoches home in 1975 was between $1.40 and $1.50.

After reviewing Dr. Yaghoubian’s testimony, we do not believe that the trial judge was clearly wrong in not relying on it. His estimate was based on numerous assumptions about the quality of the food that was served, the size of the servings, etc. He acknowledged that there could been a great deal of variation in the price of the mpal, depending on the eating habits of a particular family, and admitted that he had not particular knowledge about the Williams family. We will, therefore, not disturb the trial judge’s finding as to the value of the meals.

SPECIFICATION OF ERROR NO. 6

In his written reasons for judgment, the trial judge noted that plaintiff continues to suffer from pain as a result of her injury. Plaintiff testified that she cannot move' about or perform even the simplest tasks in her home without suffering pain, which she described as intolerable. Her testimony, which was corroborated by the testimony of her daughter, is consistent with the medical evidence that was presented.

A workmen’s compensation claimant is totally and permanently disabled if he or she is suffering from real and substantial pain which disables him or her from engaging in any gainful occupation for wages. Rachal v. Highlands Insurance Company, 355 So.2d 1355 (La.App.3rd Cir. 1978), writ denied 358 So.2d 645 (La.1978); Phillips v. Dresser Engineering Co., 351 So.2d 304 (La.App.3rd Cir. 1977). Accordingly, we reject defendant’s contention that the disability found by the trial judge should be only partial rather than total.

SPECIFICATION OF ERROR NO. 7

Defendant’s objection to the trial court’s award of attorney’s fees is directed to the amount of that award. It argues that the award of $5,000.00 is not commensurate with the time and effort required of plaintiff’s attorney. A similar objection was rejected by this court in Fontenot v. Town of Kinder, supra, wherein we stated:

“The trial court assessed $5,000.00 against Zurich as an award for plaintiff’s attorney’s fees. Counsel for Zurich argues that the award is excessive because the amount of time spent by and the degree of skill required of plaintiff’s counsel to prosecute this case was minimal. While such factors may bé considered by the trial court when fixing attorney’s fees, they do not limit the exercise of the judge’s discretion. When attorney’s fees are awarded as a result of arbitrary nonpayment of benefits, such an award is deemed to be a penalty and the value of the attorney’s fees need not be proven. Trahan v. Rockwood Insurance Company, 284 So.2d 659 (La.App.3rd Cir. 1973). We do not think the trial court abused its discretion in awarding $5,000.00. Similar awards have recently been affirmed by the Courts of Appeal in this state. Wactor v. Gurtler Hebert Construction Company, 343 So.2d 383 (La.App.4th Cir. 1977), writ denied 345 So.2d 59 (La.1977); Fazande v. Continental Grain Company, 363 So.2d 1253 (La.App.4th Cir. 1978); Dement v. International Paper Company, 363 So.2d 952 (La.App.3rd Cir. 1978); Carmouche v. Haynes Lumber Company, Incorporated, 378 So.2d 466 (La.App.3rd Cir. 1979).”

That reasoning is clearly applicable to the instant case. The trial court’s award of attorney’s fees is, therefore, affirmed.

For the above reasons, we find that plaintiff is entitled to benefits for total and permanent disability in the amount of $69.00 per week, based on the following figures:

(1) Payment for services to the Williamses $55.00
(2) Payment for services to Francois Mignon 21.50
(3) Meals 18.00
(4) Transportation 9.00
Total $103.50
Compensation rate: 66%% of $103.50 = $69.00

Accordingly, we amend the judgment to reduce the amount of plaintiff’s weekly benefits to $69.00. In all other respects, the judgment is affirmed.

All costs of this appeal are assessed to the defendant-appellant.

AMENDED AND AFFIRMED.

      . In plaintiffs original petition, defendant was erroneously named “Equitable General Insurance Company”.


author: SWIFT, Judge.

text:
    Elwood TRAHAN, Plaintiff-Appellee, v. BAILEY’S EQUIPMENT RENTALS, INC. et al., Defendant-Appellant.
    No. 7492.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.
    Rehearing Denied June 2, 1980.

      Onebane, Donahoe, Bernard, Torian, Diaz, McNamara & Abell, Edward C. Abell, Jr., Lafayette, for defendant-appellant-ap-pellee Mid-South.
    Seale, Smith & Phelps, James H. Morgan, III, Baton Rouge, for defendant-appellant-appellee E. N. 0. Carrier.
    Roy & Forrest, L. Albert Forrest, New Iberia, for defendant-appellee Southeastern Ins. Co.
    McBride & Brewster, Norman P. Foret, Domengeaux & Wright, Jack C. Fruge, Jr., Davidson, Meaux, Sonnier & Roy, L. Lane Roy and Richard C. Meaux, Lafayette, for defendant-appellee.
    Cline, Miller, Richard & Miller, Larry Richard, Rayne, for plaintiff-appellee.
    Before SWIFT, STOKER and LA-BORDE, JJ.
   SWIFT, Judge.

This case and Bailey’s Equipment Rentals, Inc. v. Southeastern Fidelity Insurance Company et al., 383 So.2d 1078, have been consolidated for trial and appeal and both will be covered in this opinion. However, separate decrees will be rendered.

The suits arose from a collision which occurred on November 13, 1975, at or near the T-intersection of U.S. Highway 90 and Louisiana Highway 91 in Estherwood, Louisiana. William Leary, Sr., while driving a truck owned by and in the employ of Bailey’s Equipment Rentals, Inc. (Bailey’s Equipment), struck the rear of a gooseneck trailer attached to the bed of a pick-up truck owned and operated by Manson Saltz-man in which Elwood Trahan was a passenger.

Mr. Trahan brought suit seeking damages for personal injuries sustained in the accident. The other suit was filed by Bailey’s Equipment for recovery of its own property damages, the sums which it had paid to Saltzman for his collision losses and attorney’s fees. The cases were submitted to a jury solely on the issues concerning liability, the parties having stipulated as to the amounts of the damages involved. The jury found Leary guilty of negligence and Saltzman free thereof. Additionally, it held Mid-South Underwriters, Inc. (Mid-South) and The Insurance House, Inc. (Insurance House) guilty of negligence in regard to the issuance of an insurance policy of Southeastern Fidelity Insurance Company (Southeastern Fidelity) to Bailey’s Equipment. From adverse judgments in favor of Mr. Trahan, Bailey’s Equipment, Southeastern Fidelity and State Farm Mutual Automobile Insurance Company, Mr. Saltzman’s insurer, Mid-South, Insurance House and the latter’s errors and omissions insurer, Employers Reinsurance Corporation (Employers Reinsurance), have appealed. Bailey’s Equipment has answered the appeals seeking an increase in its award for attorney’s fees.

On the day of the accident Saltzman and Trahan were proceeding east on Highway 90 in preparation for a left turn onto Highway 91. The trailer lights were connected with the pick-up by means of a plug assembly located on the left side wall of the truck bed. According to Mr. Saltzman, before leaving home he hooked up these brake lights and tested them to see that they were working by having his wife sit in the cab of the pick-up and push on the brakes while he observed the lights.

The accident occurred as the Saltzman truck and trailer were slowing to a stop in the eastbound lane of Highway 90 in order to make the left turn. According to Leary, no left turn signal was given by Saltzman and there were no brake lights showing on the trailer as he approached from the west. On the other hand, Saltzman testified that he not only used his left turn signal, but he also gave a hand signal.

The record further reveals that Mr. Leary had been drinking intoxicants the evening before the accident until about two o’clock in the morning shortly before he left Lafayette for Lake Charles. He had had no food, coffee, or sleep after he left home about 8:30 p. m. on November 12, 1975. Howard Nugent, the chief of police for the Town of Estherwood, who investigated the accident, testified he smelled liquor on Leary’s breath and that he was not acting normal. He also said that Leary told him he had had no sleep at all that night and with the sun in his face, he “kind of fell asleep” and did not see the truck and trailer.

From our review of the record, we are in complete accord with the jury’s conclusions that this accident was caused by Mr. Leary’s negligent operation of his truck and that Mr. Saltzman was free from fault. We also agree with the trial judge’s ruling on a motion for a directed verdict that Mr. Trahan was not contributorily negligent. Consequently, the plaintiffs in both suits are entitled to recover their damages.

The remaining issues in the case revolve around the question of whether Bailey’s Equipment was insured by Southeastern Fidelity in regard to the damages sustained in this accident, or whether an exclusionary provision contained in the policy eliminated such coverage. If this exclusion is applicable, then we must determine whether the jury was correct in finding that Insurance House, Bailey’s Equipment’s insurance agent, and Mid-South, the brokerage house which placed the insurance with Southeastern Fidelity, were responsible for the failure of such policy to cover this risk.

In September of 1975, because of the imminent bankruptcy of Medallion Insurance Company (Medallion) which then insured his company, Mr. Bailey asked his agent, Mr. Daniel Blum, the President of the Insurance House, to find another insurance company to cover the same risks. Blum instructed his employee, Marcie Brown, who had been employed only three weeks, to obtain from several insurance brokers quotations as to the amount of the premium for such coverage. This was the first time Mrs. Brown had ever requested a quote on a commercial policy of this sort. She did this and coverage was ultimately ordered through Mid-South. It furnished a policy by Southeastern Fidelity which was based on the information received from Insurance House in connection with the prior quotation. This policy was sent to the Insurance House in late October, 1975. Mr. Blum reviewed it, but did not notice that the policy contained an endorsement limiting coverage to trips by the insured vehicles within a radius of 50 miles from the named insured’s address. He did not furnish Mr. Bailey with the policy and, of course, did not advise him of the endorsement. Bailey had not seen the policy when the accident occurred on November 13, 1975.

Upon being notified of this accident, Southeastern Fidelity denied coverage on the basis of the limitation of use endorsement in the policy, which provides, inter alia:

“In consideration of the premium charged, it is agreed that the described vehicle(s) will be operated and used entirely within a radius of 0-50 miles from the address of the named insured as designated in Item One of the policy declarations; and it is expressly agreed that no coverage is provided under this policy while the insured vehicle is proceeding to or returning from a point beyond 50 miles from the address of the named insured as designated in Item One of the policy declarations regardless of where the described automobile may be involved in any accident.”

Item One of the declarations designates only the Lafayette address for Bailey’s Equipment, although the company vehicles are based in both Morgan City and Lafayette. Thus, coverage in this accident was clearly excluded by the provisions of this endorsement as Mr. Leary was returning from a point beyond 50 miles from Lafayette.

Negligence of the Insurance House

The law is well settled that an insurance agent, who undertakes to procure insurance for another, owes an obligation to his client to use reasonable diligence in attempting to place the requested insurance and to notify the client promptly if he is unable to do so. The client can recover from the agent the loss he sustains as a result of the failure to procure such coverage if the agent’s conduct warrants the assumption by the client that he is so covered. Stacy v. Petty, 362 So.2d 810 (La.App. 3 Cir. 1978); Karam v. St. Paul Fire & Marine Insurance Company, 281 So.2d 728 (La.1973).

The evidence clearly reflects that Mr.- Daniel Blum, an experienced insurance agent, knew that Mr. Bailey desired full coverage and could not have an endorsement of this kind on the policy, because he was aware that Bailey’s business extended statewide and on some occasions beyond the borders of Louisiana. Regardless of the information hereinafter mentioned which was exchanged between his employee, Marcie Brown, and Mid-South in obtaining the policy, Blum admitted that he overlooked the limitation of use endorsement when the policy was received in his office and failed to inform Bailey thereof. Further, it is evident that Mr. Bailey relied on Mr. Blum’s assurances his company was fully covered as it had been by Medallion.

The trial jury found that the Insurance House was at fault, obviously in failing to obtain the proper coverage and not advising the insured of the limitation of use endorsement. It also concluded that such negligence was a cause of the damages claimed by Bailey’s Equipment in these suits. We fully agree with its findings and conclusions in this regard.

Negligence of Mid-South

Similarly, the jury found that Mid-South was also guilty of negligence which was a contributing cause of the failure to obtain a policy providing proper coverage of the claims asserted here in by Bailey’s Equipment.

There are some discrepancies as to just what was said by Mrs. Brown and Mr. Dale Reid of Mid-South when the premium quotation was obtained. However, Reid testified that Brown informed him three of the vehicles were based in Morgan City and balance were in Lafayette. He said he knew that the distance between Morgan City and Lafayette was over 70 miles. Thus, Reid knew that the policy he was about to obtain from Southeastern Fidelity would not even cover the Bailey vehicles when transporting oil field equipment between the company’s own two bases. Clearly, this was not the type of coverage which the insured proposed to purchase for its oil field business. Nevertheless, Reid did not ask for the Morgan City address for possible insertion in Item One of the policy, nor did he explain to Brown that a mileage use limitation was to be a part of the policy.

Mr. Reid said he assumed Mrs. Brown knew the policy would contain such an endorsement when he asked her about the radius, of operations and she responded “local”, because in the insurance industry that meant the vehicles would be used within a 50 mile radius. However, Reid acknowledged that such use information is obtained in connection with some policies simply to determine the amount of the premium, without limiting the coverage in any way.

Mrs. Brown denied that she was ever asked by or told anyone at Mid-South that the insured’s trucks were to be used only locally or that the policy would contain a limitation of Use endorsement. Furthermore, she sent Mid-South a copy of the terminating Medallion policy (which contained no such limitation) for use in preparing the replacement policy of Southeastern Fidelity.

The jury apparently accepted Mrs. Brown’s testimony as being correct and we certainly cannot say it was clearly wrong in this respect.

Generally, the question of whether an insurance broker in any particular transaction is acting as the agent of the insured or the insurer is one of fact dependent on the particular circumstances of the case. But the general rule is to the effect that an insurance broker is the agent of the insured and not of the insurer. In Karam v. St. Paul Fire & Marine Insurance Co., 265 So.2d 821 (La.App. 3 Cir. 1972), affirmed in part on other grounds, supra, this court said:

“There is a distinction between insurance agents who are employed by an insurance company to solicit risks and effect insurance for that company, and insurance brokers, who solicit insurance from the public generally, under no employment from any special company, placing the insurance with any company selected by the insured or, failing such selection, by the broker himself. In the absence of special circumstances, an insurance broker generally is considered to be the agent of the insured in procuring a policy of insurance. Foster v. Nunmaker Discount Company, 201 So.2d 215 (La.App. 4 Cir. 1967); Security Transfer Company v. Insured Lloyds Company, 225 So.2d 284 (La.App. 4 Cir. 1969); Blashfield, Cyclopedia of Automobile Law and Practice, Sec. 3491; Appleman, Insurance Law and Practice, Sec. 8726; Couch on Insurance 2d, Sec. 25:99-25:101.”

Under the circumstances of this case, we believe that Mid-South, as well as the Insurance House, was acting as Bailey’s Equipment’s agent to procure the replacement policy of insurance from Southeastern Fidelity and as such owed a duty to the insured to use reasonable diligence in attempting to place the insurance requested. The record reveals ample support for the jury’s conclusion that Mid-South breached this duty. Consequently, it is liable in soli-do with Insurance House (and its liability insurer) to Bailey’s Equipment.

Reformation of the Southeastern Policy

Mid-South asserts that, in the event it is held jointly negligent with the Insurance House, the policy with Southeastern should be reformed to eliminate the mileage use endorsement.

Our jurisprudence recognizes that in certain instances of mistake, error or even negligence on the part of an agent or employee of an insurer, a policy erroneously issued will be reformed to conform with and reflect the true intent of the parties. Billiot v. Sentry Ins., 366 So.2d 1017, (La.App. 1 Cir. 1978) writ denied, 368 So.2d 125 (La.1979).

Mr. Bailey testified that in his business operations, which he discussed with Mr. Blum, he had occasion to dispatch his vehicles to various places within and even out of the state. It is clear that any limitation of use endorsement would be unthinkable from his standpoint. Conversely, Mid-South’s Mr. Reid testified that had he known that Bailey’s operations covered the entire state and beyond he would have declined to submit any quote whatsoever on the requested coverage as Southeastern Fidelity, a surplus' line insurer, would not have issued a policy without some limitation of use endorsement. Although the insured intended to acquire full liability coverage of its trucks, neither Mid-South nor Southeastern Fidelity ever intended to issue such a policy. Therefore, the policy cannot be reformed to include unlimited coverage under the guise of making it conform to the true intent of the contracting parties because there never was any such understanding between them. Stacy v. Petty, supra.

Counsel for the Insurance House and Employers Reinsurance further asserts that such a mileage use limitation is against public policy and therefore void, citing a New York case, Kasson and Keller, Inc. v. Centennial Insurance Company, 359 N.Y.S.2d 760, 79 Misc.2d 450 (N.Y.Sup.Ct.1974), and Article 1, Section 8, Clause 3, of the United States Constitution (the interstate commerce clause),

In that case the court found that the exclusion limiting coverage was not one authorized by the Rules and Regulations of the superintendent of Insurance of New York. We do not find that such an endorsement conflicts with any law, regulation or policy of this state. Nor was it shown that the endorsement involved in this case imposed any undue burden on interstate commerce. It was not established that Bailey’s Equipment could not have purchased more extended coverage had it been willing to pay the premium therefor and the matter had been handled properly.

COURT COSTS

The Insurance House and its insurer contend that the judgments are unclear in regard to court costs as they appear to cast them and Mid-South each for one-third thereof.

Although these defendants are solidarily liable to the plaintiffs for the costs, as between themselves Insurance House and its errors and omissions insurer, Employers Reinsurance, are only liable for one-half and Mid-South is obliged to pay the other one-half thereof. The judgments will be amended accordingly.

ATTORNEY’S FEES

Finally, Bailey’s Equipment has answered this appeal, requesting additional attorneys fees for services rendered in connection therewith. The parties agreed at the hearing in this court that an additional award of $750.00 is appropriate.

For the above and foregoing reasons, the judgments of the trial court are amended to provide that as between the defendants assessed with court costs they are to be paid one-half by Mid-South Underwriters, Inc. and one-half by The Insurance House, Inc. and its insurer, Employers Reinsurance Corporation; and also to award an additional $750.00 to Bailey’s Equipment Rentals, Inc. as attorney’s fees. The court costs and attorney’s fees are to be divided equally between the two cases. Otherwise, the judgments are affirmed. The costs of this appeal are to be paid in the same manner.

AFFIRMED AS AMENDED.


text:
    BAILEY’S EQUIPMENT RENTALS, INC., Plaintiff-Appellee, v. SOUTHEASTERN FIDELITY INSURANCE COMPANY et al., Defendants-Appellants.
    No. 7493.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.
    Rehearing Denied June 2, 1980.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Edward C. Abell, Jr., Lafayette, for defendant-appellant-appel-lee, Mid-South.
    Seale, Smith & Phelps, James H. Morgan, III, Baton Rouge, for defendant-appellant-appellee, E. N. O. Carrier. .
    Roy & Forrest, L. Albert Forrest, New Iberia, for defendant-appellant, Southeastern Ins. Co.
    McBride & Brewster, Norman P. Foret, Domengux & Wright, Jack C. Fruge, Jr., Davidson, Meaux, Sonnier & Roy, L. Lane Roy and Richard C. Meaux, Lafayette, for defendant-appellant.
    Cline, Miller, Richard & Miller, Larry Richard, Rayne, for plaintiff-appellee.
    Before SWIFT, STOKER and LA-BORDE, JJ.
   SWIFT, Judge.

For the reasons this day assigned in the consolidated case bearing our docket No. 7492, entitled Elwood Trahan v. Bailey’s Equipment Rentals, Inc., et al., 383 So.2d 1072, the judgments of the trial, court are amended to provide that as between the defendants assessed with court costs they are to be paid one-half by Mid-South Underwriters, Inc. and one-half by The Insurance House, Inc. and its insurer, Employers Reinsurance Corporation; and also to award an additional $750.00 to Bailey’s Equipment Rentals, Inc. as attorney’s fees. The court costs and attorney’s fees are to be divided equally between the two cases. Otherwise, the judgments are affirmed. The costs of this appeal are to be paid in the same manner.

AFFIRMED AS AMENDED.