author: LEAR, Judge.

text:
    E. LIONEL PAVLO ENGINEERING CO. v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION, et al.
    No. 15034.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Ralph L. Kaskell, Jr., New Orleans, for plaintiff-appellant E. Lionel Pavlo Engineering Co.
    William J. Doran, Jr., Baton Rouge, for defendant-appellee State of Louisiana, Through the Department of Transp. & Development, etc., et al.
    John L. Dardenne, Jr., J. Huntington Odom, Baton Rouge, Jack Horner, York, for defendant-appellee Buchart-Horn, Inc.
    Before LEAR, CARTER and LANIER, JJ.
   LEAR, Judge.

Plaintiff filed suit, seeking to prohibit defendant from awarding a bridge construction contract to any firm other than itself. The petition sought both injunctive and declaratory relief. Defendants filed an exception of no cause of action, which the trial court sustained and dismissed plaintiff’s claim with prejudice. Plaintiff then took a devolutive appeal.

Defendants have now filed a motion to dismiss the appeal as moot. They submit that the contract has been awarded to Buc-hart-Horn, Inc. (a defendant), and that work thereunder began on December 21, 1981.

Thus, the issue before us is whether the appeal should be dismissed as moot, both as to the injunctive and declaratory relief.

The work to date is only a minute part of the total contract. Exhibit A of appellees’ motion authorizes work to begin only for Part 2 of Phase I and for a pre-design planning conference. Part 2 of Phase I is only a topographic survey. A pre-design conference is merely an initial meeting to determine design criteria. The project is one to construct a bridge and roads to service it, and the contract at issue is for all related engineering and land surveying services in connection therewith. It is a very extensive undertaking, as shown by the map provided in Exhibit B of the motion.

If the contract were totally or even mostly complete, the case would be moot as to injunctive relief. Cox v. Watts, 329 So.2d 917 (La.App. 1st Cir. 1976); Upper Audubon Association v. Audubon Park Commission, 329 So.2d 209 (La.App. 4th Cir.), writ denied, 333 So.2d 240 (La.1976). See also Sobolewski v. Brown, 405 So.2d 1254 (La.App. 4th Cir. 1981) and cases cited thereon. Even the petition for declaratory relief would fall for lack of a justiciable controversy. Upper Audubon Association v. Audubon Park Commission, supra; A to Z Paper Company v. Louisiana State Board of Education, 251 So.2d 643 (La.App. 1st Cir. 1971). See also Sierra Club v. Louisiana Department of Wildlife and Fisheries, 365 So.2d 880 (La.App. 4th Cir. 1978).

However, only a small portion of the work under the contract at issue has begun in the instant case. Phase III work is to be performed by Buchart-Horn, Inc., and represents 64.7% of the contract, which work has not as yet been authorized. Under the circumstances, the fact that performance of a small portion of the contract has already begun should not render the appeal moot. We find that appellant retains his right to appeal and this case is not moot. Taylor and Taylor Builders v. Moore, 393 So.2d 792 (La.App. 2nd Cir. 1981).

For the foregoing reasons, the motion to dismiss the appeal is hereby denied.

MOTION TO DISMISS APPEAL DENIED.


source: Caselaw Access Project

author: WATKINS, Judge.

license: Public Domain

text:
    ASSOCIATES COMMERCIAL CORPORATION v. BAYOU MANAGEMENT, INC., et al.
    No. 82 CA 0245.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      J. Glenn Dupree, Baton Rouge, for plaintiff-appellant Associates Commercial Corp.
    Russell J. Nunez, Jr., New Orleans, for defendants-appellees Bayou Management, Inc., et al.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

Plaintiff, Associates Commercial Corporation, institutes this action seeking, inter alia, to have a lease cancelled and rent refunded and a penalty paid pursuant thereto returned to it. Made defendants in the lawsuit were the owners of the leased premises, James R. McAndrew, Vernon G. Bratten, Jr., and J. H. Harris, and their agent for management of the building, Bayou Management, Inc. Defendants answered and reconvened, seeking various items of damages associated with the lease.

Trial was held on November 10,1981. At the close of trial, the trial court rendered judgment, awarding plaintiff the sum of $24,196.25, together with all interest earned by defendants on money advanced by plaintiff, on the main demand, and awarding defendants $6,089.88 pursuant to their re-conventional demand.

On December 4, 1981, according to “Exhibit A-l” attached to defendants’ motion to dismiss, plaintiff’s attorney sent to defendants’ attorney a proposed judgment and letter which included the following statement:

“My client (viz. plaintiff) has refused to pay any sums other than those ordered by the oral reasons for judgment. If this judgment meets with your approval, please sign and return it to my office.”

On December 7, 1982, defendants’ attorney forwarded a letter to plaintiff’s attorney which indicated that the parties had reached an agreement as to the amount due plaintiff under the judgment. Enclosed with this letter was the original judgment, prepared by plaintiff’s attorney and approved as to form by defendants’ attorney and a check in the sum of $21,158.54.

On December 11, 1982, the approved judgment was signed by the trial court. On February 3, 1982, the trial court signed an order, granting plaintiff an appeal from the judgment. On April 12, 1982, defendants filed the instant motion to dismiss, contending that plaintiff acquiesced in the judgment by accepting and cashing the check.

Acquiescences in judgment are regulated by LSA-C.C.P. art. 2085, which reads as follows:

“An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him. Confession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment.”

The following quotation from this court’s opinion in Succession of Marcel, 387 So.2d 1363 (La.App. 1st Cir. 1979) well summarizes the legal principles governing acquies-cences in judgment:

“Appeals are favored in law and forfeiture of a party’s right to an appeal through acquiescence should be decreed only when the party’s intention to acquiesce and to abandon his right of appeal is clearly demonstrated. Kendrick v. Garrene, 231 La. 462, 91 So.2d 603 (1956). Acquiescence in a judgment is never presumed. The party alleging same must establish by direct or circumstantial evidence that the party now appealing intended to acquiesce. Koerner & Lambert, A Professional Law Corp. v. Allstate Insurance Company, 363 So.2d 546 (La.App. 4th Cir. 1978). A party favored by judgment may accept the full amount thereof from the party cast or may even cause execution on the judgment without forfeiting his right of appeal because of acquiescence. Glasper v. Wright Root Beer Co., 216 So.2d 586 (La.App. 1st Cir. 1968).” (at page 1364)

The mere preparation of judgment by plaintiff’s attorney did not indicate an intention not to appeal that judgment, as judgments are customarily prepared by the counsel who prevails overall.

The letter in which plaintiff’s attorney forwarded the proposed judgment indicated plaintiff refused to pay a greater amount on defendant’s reconventional demand than that given in oral reasons for judgment. Plaintiff’s attorney did not thereby bindingly accept the amount of the award made on the reconventional demand, as he indicated no express acquiescence in the amount awarded on the reconventional demand, nor for that matter, did he indicate a clearly contrary intention.

A judgment is acquiesed in only if an intention to accept the judgment and not to appeal is shown, and under Marcel, that intention must be expressed unambiguously. Here, no such intention is shown.

Nor did plaintiff’s cashing of the check in the sum of $21,158.54 manifest clearly and unequivocally an intention not to appeal, or to acquiesce in the amount of the judgment on reconventional demand. Only when appellant has accepted the sum tendered in full satisfaction of the judgment or full settlement of the dispute is there an acquiescence in the judgment. Cf. Jack v. Lambert’s in Metairie, Inc., 348 So.2d 102 (La.App. 4th Cir. 1977). Here, there is nothing in the verified record that would indicate that plaintiff accepted and cashed the check in full settlement of the judgment. Under Marcel, an unequivocal intention to acquiesce must be shown. This is lacking.

Appeals are favored in law, as we noted in Marcel. No appeal should be dismissed on the ground of acquiescence in judgment unless an unequivocal intention to accept the judgment is manifested. Here, no such unequivocal intention is manifested by any action taken by plaintiff.

We, therefore, deny defendants’ motion to dismiss the present appeal.

MOTION TO DISMISS DENIED.


author: COLE, Judge.

text:
    Rhett R. RYLAND v. John J. CUMMINGS, III.
    No. 82 CM 0239.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Rhett R. Ryland, Baton Rouge, for plaintiff-appellee Rhett R. Ryland.
    Stephen B. Murray, New Orleans, for defendant-appellant John J. Cummings, III.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

Plaintiff-appellee moves to dismiss this appeal on the ground that defendant-appellant confessed judgment. La.Code Civ.P. art. 2085.

On December 16, 1981, plaintiff sued defendant to obtain a partition by licitation of certain property (mainly an office building and lot) which they hold in common. Personal service was made on defendant on December 29, 1981. On January 18, 1982, defendant caused to be filed a motion for an extension of time in which to plead. On that same day, a preliminary default was entered against defendant and plaintiff wrote a letter to the trial judge objecting to any extension of time for pleading. The trial court, by order dated January 20,1982, granted defendant until February 4, 1982, to file responsive pleadings. Defendant’s answer was filed February 3, 1982. In the meantime, on January 22, 1982, plaintiff sought and obtained a final judgment against defendant, by default, decreeing that the subject property be partitioned by licitation. The record on appeal contains nothing affecting the status of this default judgment.

On February 11, 1982, a pre-trial conference was held by the trial judge pursuant to a request by plaintiff dated February 3, 1982. A formal pre-trial order was filed in the record and the case was set for trial on March 25, 1982. In defendant’s portion of the pre-trial order, he alleges plaintiff bought an interest in the property from defendant’s former spouse who had no right to sell it since the community had not been partitioned. Defendant asserted the purported sale was null and void in that his former spouse could not legally convey her undivided interest in the property, absent a legal partition of the community assets. Defendant further claimed his former spouse was an indispensible party to the proceedings and should be joined as a party defendant.

At the end of defendant’s pre-trial statement is a handwritten note (presumably that of the trial judge) which, though somewhat illegible, apparently states: “Mrs. Cleo Pelleteri will be made a party herein. After joinder of Mrs. Pelleteri a joint statement of fact as to indivisibility in kind will be submitted by the parties.” There is no such joint statement in the record.

On February 22, Mrs. Pelleteri intervened stating she sold her interest in the property to plaintiff. On February 25, the trial judge signed a judgment prepared by plaintiff which ordered a partition of the property by licitation. The judgment states it is based upon pleadings, stipulations, and admissions. Defendant then moved for a new trial, claiming that plaintiff had misled the court as to alleged stipulations. The motion for new trial was denied on March 4, and on March 17 defendant’s motion for a suspen-sive appeal was granted. The appeal bond was filed timely as of March 31.

Written reasons by the trial judge for the judgment of February 25th state defendant agreed to a consent judgment provided Mrs. Pelleteri was made a party defendant.

The only reference of record to any kind of agreement is the handwritten note at the end of defendant’s pre-trial statement. It says only that, if Mrs. Pelleteri is joined, the parties will execute a joint stipulation of fact as to the insusceptibility of the property to division in kind. Such a stipulation was unnecessary because defendant admitted the fact in his answer. This admission of fact does not remove all issues. Defendant also claims the sale of Mrs. Pel-leteri’s interest is void. Thus, a legal issue is presented.

The fact that the trial court believes the judgment appealed was a consent judgment does not relieve plaintiff of his burden of proof. See, Succession of Marcel, 387 So.2d 1363 (La.App. 1st Cir. 1980). Therein, this court set forth quite succinctly the applicable jurisprudential and statutory guidelines on consent judgments. We view the instant case less clearly subject to dismissal than was Marcel. See also, State, Dept. of Transp., Etc. v. K. G. Farms, 402 So.2d 304 (La.App. 1st Cir. 1981).

Appeals are favored in law and the forfeiture of a party’s right to an appeal through acquiescence should be decreed only when the party’s intention to acquiesce and to abandon his right of appeal is clearly demonstrated. Acquiescence in a judgment is never presumed. The party alleging consent or acquiescence must establish by direct or circumstantial evidence that the party now appealing intended to consent or acquiesce. Marcel, supra. However, in this instance, the contrary is apparent. At all times, defendant has contended a partition should not be effected because of what he perceives to be a title defect. Regardless of any possible merit to the contention, this position evidences a clear intent not to acquiesce in the judgment.

Mover has failed to prove the judgment appealed from was a consent judgment. The motion to dismiss is, therefore, denied.

We now feel compelled to note the viability of the default judgment of January 22, 1982. That judgment has not been appealed and its validity is not reviewable under the instant appeal. It does, of course, create substantive and procedural problems and constitutes an irregularity which must be corrected. La.Code Civ.P. art. 2132. Jurisdiction on that issue lies at the district court level. La.Code Civ.P. arts. 2006, 2088(4). Action by this court on the judgment appealed would be a vain and useless thing in light of the existence of the default judgment. We therefore stay all further proceedings in the instant appeal until such time as the parties, by appropriate action at the district court level, have placed it in a posture which would allow some meaningful action by this court.

All costs relative to the motion to dismiss are assessed against appellee.

MOTION DENIED. APPEAL STAYED.

      . The trial court proceedings reflect this motion was mailed by counsel for defendant to the Clerk of Court on January 15, 1982, with copy of the transmittal letter going to plaintiff.

      . Under the rules of the Nineteenth Judicial District Court, uncontested matters such as preliminary defaults and the confirmation thereof are handled by the “Duty Judge” who, in this instance, was not the judge of the trial division in which the case was docketed and who granted the motion for an extension of time within which to plead and otherwise acted in the matter. See, West’s Louisiana Rules of Court, 1982, p. 449, et seq.

      . Defendant’s answer admits the property is insusceptible of division in kind.


author: DOUCET, Judge.

text:
    Cathy Ann MOREAU, Plaintiff-Appellant, v. John SANDERS, Defendant-Appellee.
    No. 8795.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Martin L. Laird, Alexandria, for plaintiff-appellant.
    Brittain & Williams, Joseph Payne Williams, Natchitoches, for defendant-appellee.

      Before CULPEPPER, FORET and DOU-CET, JJ.
   DOUCET, Judge.

This is a suit by Cathy Ann Moreau against John W. Sanders and Louisiana Farm Bureau Mutual Insurance Company (Farm Bureau) for personal injury damages sustained in a boating accident. The jury rendered a verdict against the plaintiff and in favor of Farm Bureau finding no insurance coverage. From this verdict plaintiff now appeals. We affirm.

This suit arises out of a boating accident which occurred on Cane River Lake in Natchitoches Parish on August 23, 1979. The plaintiff, Cathy Ann Moreau, was a passenger in a boat which collided with a boat owned and operated by John Sanders.

The stipulated facts show that on April 8, 1978, John W. Sanders applied for a homeowner’s insurance policy with Farm Bureau through its Natchitoches Parish agency. At that time he filled out an application indicating truthfully that he did not own a watercraft with an outboard motor in excess of 25 horsepowers. The policy was issued with an effective term of April 11, 1978 to April 10, 1979.

The policy contains an exclusion which provides in pertinent part:

“This policy does not apply:
... b. to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of any watercraft: ... (2) powered by any outboard motor(s), singly or in combination of more than 25 total horsepower, if such outboard motor(s) is owned by any Insured at the inception of this policy and not endorsed hereon, unless the Insured reports in writing to this Company within 45 days after acquisition his intention to insure the outboard motor or combination of outboard motors, ownership of which was acquired prior to the policy term.”

Stipulated facts also show that on October 20, 1978, John Sanders purchased a watercraft with a 40 horsepower outboard motor, this being the same boat and motor that was involved in the August 23, 1979 accident. Thereafter, the homeowner’s policy was renewed by Farm Bureau with a policy term of April 11, 1979 to April 11, 1980. The accident occurred within this time period. At no time after the acquisition of his boat and motor did Mr. Sanders inform Farm Bureau of their purchase, nor did he request coverage for them under the personal liability section of his homeowner’s policy.

It was shown by stipulated testimony of Mr. Lanny Crow, Agency Manager of the Natchitoches Parish Farm Bureau office, that had Mr. Sanders informed Farm Bureau of his purchase of a boat with the 40 horsepower motor and requested coverage that a specific watercraft endorsement would have been attached to his renewal policy and an additional premium charge of $6.00 would have been assessed.

The jury found that under these stipulated facts, Farm Bureau did not provide coverage for the alleged negligent acts of John W. Sanders which resulted in injuries to Cathy Moreau. From this adverse jury verdict, the plaintiff now appeals.

The sole issue on appeal is whether the jury erred in finding that the policy in question did not afford coverage to the plaintiff for injuries she received in the boating accident.

A discussion of the law applicable to the interpretation of an insurance contract is found in Zurich Insurance Company v. Bouler, 198 So.2d 129 (La.App. 1st Cir. 1967) and restated in Traders & General Insurance Company v. Tillman, 349 So.2d 1370 (La.App. 2nd Cir. 1977):

“A contract of insurance should be given a fair, reasonable and sensible construction compatible with the apparent object and plain intention of the parties as expressed in the words of the agreement. The effect attributed to an insurance policy should be such as would be accorded its terms by an ordinary intelligent business man, that is, a practical and reasonable interpretation rather than a literal one. Such a contract should not be given a strained, forced or unreasonable application or one which would enlarge or restrict its provisions beyond what is reasonably contemplated by its terms, or which would lead to an absurd conclusion ... . ”

The policy contains an exclusion to coverage for damages arising out of the ownership, operation or use of a watercraft-powered outboard motor of more than 25 horsepower, if owned at the inception of the policy and not endorsed thereon. The exclusion does not apply if the insured reports within 45 days after acquisition his intention to insure the motor, ownership of which was acquired prior to the policy term. Appellant contends that there was but one continuing policy and that since the motor was not acquired prior to the policy’s inception it is not excluded and therefore covered. The argument lacks merit in law and logic.

Each subsequent renewal of an insurance contract is a separate contract, even though a new policy is not issued. Courville v. State Farm Mutual Automobile Ins. Co., 393 So.2d 703 (La.1981), Fontenot v. State Farm Mutual Ins. Co., 119 So.2d 588 (La.App. 1st Cir. 1960). Thus the boat was owned at inception of the April 11, 1979 contract.

The case relied upon by appellant, Traders & General Ins. Co. v. Tillman, 349 So.2d 1370 (La.App. 2nd Cir. 1977), to the extent it survives after Courville, is distinguishable from the present situation in that Tillman involved replacement of a listed vehicle without notification to the insurer, prior to renewal, of the newly acquired vehicle. The court therein noted:

The replacement of a vehicle will result in little or no increase in the risks insured and the premium charged for liability insurance will remain substantially the same. However, if an additional vehicle is purchased, it will proportionately increase the risks to be insured and will increase the premium owed to the insurer.
349 So.2d 1370, at 1372

The case at bar involves an additional vehicle with an accompanying increase in risk. The plain intention of parties to an insurance contract is to provide coverage for those risks which are agreed to and for which premiums are paid. It would be unreasonable and impractical to find that the insurance company agreed to cover a boat and motor it didn’t know existed and for which it had received no premium.

Conversely, the insured cannot expect coverage he did not bargain for. The construction given the insurance contract and policy exclusion was fair, reasonable and sensible and the trial court’s verdict was clearly correct.

AFFIRMED at appellant’s cost.


text:
    Frances RANDALL, Plaintiff and Appellant, v. JENA WIRE AND CABLE COMPANY, Defendant and Appellee.
    No. 8820.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.

      William Henry Sanders, Jena, for inter-venor-appellant.
    Bruscato & Loomis, Albert E. Loomis, III, Monroe, for plaintiff-appellee.
    Gaharan & Wilson, Joseph Wilson, Jena, for defendant-appellant-appellee.
    Before CULPEPPER, FORET, and DOU-CET, JJ.
   DOUCET, Judge.

This is an attorney intervention workmen’s compensation case wherein the attorney instituting suit was discharged prior to settlement between employer and employee. Counsel pursued his theretofore filed intervention action against the employer who responded with peremptory exceptions, which were sustained. From an adverse judgment at the trial court, intervenor appeals.

On April 2, 1979, Frances Randall instituted this suit against Belden Corporation and Jena Wire and Cable Co. seeking payment of workmen’s compensation benefits for an injury sustained on or about May 31, 1977. The attorney of record for Mrs. Randall, at that time, was William Henry Sanders, intervenor herein.

The injury involved resulted in the aggravation of a pre-existing thrombophlebitis of claimant’s right leg. Weekly compensation benefits for the period May 31, 1977 to October 7, 1977 were paid to claimant and all medical and hospitalization expenses incurred in treating this thrombophlebitic condition were paid by the employer. Subsequently, after claimant had been released for return to her regular employment, she underwent back surgery in Houston. Demand for reimbursement of these expenses followed and was rejected by the employer.

Meanwhile claimant’s attorney-client relationship became strained, resulting in dismissal of counsel on January 23,1980. Contemporaneous with withdrawal of counsel, Sanders received an order permitting his intervention claim against Belden in the pending workmen’s compensation litigation. Thereafter, on September 9, 1980, a “Joint Petition for Compromise of Workmen’s Compensation Claim” was filed in the District Court with Albert E. Loomis appearing as the attorney of record for the claimant. Both the judgment and the receipt and release executed by Mrs. Randall reflected satisfaction of her claim against Belden Corporation for payment of $5,000 in addition to compensation benefits and medical expenses “heretofore paid”. The compromise was approved by the trial judge and plaintiff’s suit was dismissed with prejudice on September 9, 1980. On the same day attorney Loomis forwarded to intervenor $1,552.08 as payment of expenses and advances relative to the Randall case.

Thus, the only matter remaining in the cause was the intervention of Sanders who sought a lien for reimbursement of his own expenses and those of medical creditors. Additionally, Sanders sought quantum meruit recovery. Belden Corporation filed peremptory exceptions of res judicata (based upon the settlement agreement), no right of action, and no cause of action. The trial judge sustained the exceptions of res judicata and no right of action and dismissed intervenor’s demands against Bel-den. Intervenor Sanders appeals.

EXCEPTION OF RES JUDICATA

We first address the peremptory exception of res judicata. The principles governing the content and application of res judicata are located in the section of the Civil Code concerning legal presumptions. One presumption drawn by the law attributes authority to the “thing adjudged” as proof of the existence or non-existence of certain facts, LSA-C.C.Art. 2285. The thing adjudged is said of that which has been decided by final judgment, from which there can be no appeal, either because the appeal did not lie, or because the time fixed by law for appealing is elapsed, or because it has been confirmed on the appeal. LSA-C.C.Art. 3556(31). A compromise may, as between the interested parties, have a force equal to the authority of “things adjudged”. LSA-C.C.Art. 3078. The requisites of “thing adjudged” are: the thing demanded must be the same, the demand must be founded on the same cause of action, the demand be between the same parties and formed by them against each other in the same quality. LSA-C.C.Art. 2286. From the facts given it is clear that the last of these requirements was not met, therefore the trial judge erred in sustaining the exception of res judicata. We reject appel-lee’s contention that intervenor, claiming his own attorney’s fees and medical expenses on behalf of others, is an “ayant cause” or successor in title for res judicata purposes so as to sustain the peremptory exception. Having reached this result we need not consider whether the former two requirements for “thing adjudged” were met as all must concur. The exception is overruled.

NO RIGHT OF ACTION

Sanders’ intervention claim for medical bills was met with an exception of no right of action. This exception addresses itself to whether the party it is asserted against has any interest in enforcing judicially the right alleged against the mover. LSA-C.C.P.Art. 681. The pleadings fail to disclose any interest of Sanders in collection of unpaid medical bills of his former client from Belden. And although evidence is admissible at a hearing on such exception, Sanders produced no evidence indicative of his right to relief. In fact he admitted there had been no assignment of any medical creditors’ claims and he had made no assurance whatsoever that he would collect same on their behalf. The exception was properly sustained.

EXCEPTION OF NO CAUSE OF ACTION

As aforementioned, the trial judge did not address appellee’s exception of no cause of action. Although Belden does not urge this exception on appeal, courts are ex-officio empowered to notice the failure to disclose a cause of action. LSA-C.C.P.Art. 927. We do so with respect to intervenor’s claim for attorney’s fees from Belden. The exception addresses itself to whether the law affords a remedy to intervenor under the allegations of his petition. The objection is triable on the face of the petition and all well pleaded facts are accepted as true. LSA-C.C.P.Art. 931.

Attorney’s fees are not allowed except when authorized by contract or statute. Killebrew v. Abbott Laboratories, 359 So.2d 1275 (La.1978). Intervenor does not allege a contract with Belden nor does he infer that defendant’s actions in withholding workmen’s compensation benefits were arbitrary or capricious such as to invoke LSA-R.S. 23:1201.2. Furthermore, interve-nor does not allege a written contract, signed by his client and duly recorded, such as would form the basis of an attorney privilege pursuant to LSA-R.S. 37:218. The Louisiana Supreme Court has recently held that imposition of an obligation upon the client’s obligor in a suit to retain settlement funds until determination of fee entitlement requires the attorney’s full compliance with R.S. 37:218, including recordation. Scott v. Kemper Insurance Co., 377 So.2d 66, 70 (La.1979). We consider Scott to be dispotive of the case at bar. Hence, appellant’s exclusive remedy for recovery of attorney’s fees is against his former client. The petition against Belden discloses no cause of action.

For the reasons set forth above the judgment sustaining the exception of res judica-ta is reversed and vacated and the exception is overruled. The exception of no right of action relative to medical expenses and judgment sustaining same is affirmed. It is further ordered, adjudged and decreed that there be a judgment herein sustaining the exception of no cause of action. Costs of this appeal are taxed to appellant.

AFFIRMED AS AMENDED.

      . Dismissal of the principal action did not effect a dismissal of the incidental demand. LSA-C.C.P.Art. 1039.

      . Belden asserted “no cause or right of action”. There is no such exception. The exception of “no cause of action” and the exception of “no right of action” are distinct exceptions subject to different rules, thus appellee’s loose pleading is not to be condoned.

      . In this regard we note that appellee contends its aforementioned payment of $1,552.08 to in-tervenor satisfied his claim, however, the exception of no cause of action is not available to urge a defense and evidence relative thereto is inadmissible. Nevertheless, from the face of the pleadings we find intervenor disclosed no cause of action.


text:
    Odell McNEAL, Sr., Plaintiff, v. WYETH-SCOTT, INC., et al., Defendants. MISSOURI-PACIFIC, Defendant-Third Party Plaintiff-Appellant, v. LOUISIANA INDUSTRIES, Third Party Defendant-Intervenor-Appellee.
    No. 8844.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.

      Hudson, Potts & Bernstein, B. Roy Liuz-za, Monroe, for plaintiff-appellant.
    Führer & Flournoy, Leonard Führer, Alexandria, for plaintiff-appellee.
    Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr., Natchitoch-es, for intervenor-appellee.
    Gist, Methvin, Hughes & Munsterman, David A. Hughes, Stafford, Stewart & Potter, Grove Stafford, Jr., Alexandria, for defendant-appellee.
    Before CULPEPPER, FORET and DOU-CET, JJ.
   DOUCET, Judge.

This appeal concerns interpretation of an indemnity clause contained in a contract of lease whereby lessee Louisiana Industries, Inc., third party defendant herein, agreed to indemnify lessor Missouri-Pacific Railroad Company, third party plaintiff, for any claim arising on the leased premises. From a judgment in favor of lessee, Missouri-Pacific appeals. We reverse and remand.

This cause originated after plaintiff, Odell McNeal, Sr., sustained personal injuries while working in the course and scope of his employment with Louisiana Industries, Inc. in Alexandria, Louisiana. On August 22, 1979, plaintiff was among a group of employees attempting to pull open the stuck door of a railroad hopper car so as to allow the cement contained therein to fall into the unloading facilities constructed by Louisiana Industries, Inc. under the railroad track. The railroad car was owned by Illinois Central Gulf Railroad who furnished it to the carrier. Missouri-Pacific in turn delivered the car to Louisiana Industries. In attempting to open the jammed door, the Louisiana Industries employees employed a device known as a power puller or “come-along” which, through the use of pulleys and leverage, enables great force to be asserted in a pulling fashion. The device broke causing plaintiff the loss of an eye.

Plaintiff brought suit against the vendor of the come-along, Mid-State Supply Co., Inc., its manufacturer, Wyeth-Scott, Inc., and Missouri-Pacific Railroad Co., and later against Illinois Central Gulf Railroad.

Missouri-Pacific answered and filed a third-party demand against Louisiana Industries contending that under the terms of a lease agreement between the two, dated November 26, 1968, Louisiana Industries was required to defend, indemnify, and save harmless Missouri-Pacific from and against any liability, including attorney’s fees and costs arising out of an injury to persons on the premises. In response thereto Louisiana Industries filed a pleading styled “Exception, Motion for Summary Judgment, and Petition for Declaratory Judgment” which urged immunity under workmen’s compensation laws and further alleged that upon the stipulations of fact and under the terms of the lease movant was entitled to summary judgment and a declaration of no liability. The pleading was supplemented by allegations that the indemnification portions of the lease were adhesionary and contrary to public policy. Louisiana Industries prayed that the matter be tried in preference to the main demand.

Upon trial of the aforementioned pleading Louisiana Industries sought to introduce evidence of prior negotiations of the parties relative to the clause in question. Missouri-Pacific objected. The trial judge admitted the extrinsic documents “for the purpose for which they are intended and that is to show, if I understood you correctly .. . the indemnification agreement was forced upon L. I. due to the fact that Missouri-Pacific was the only source available for this particular service.” Nevertheless, the trial judge considered the extrinsic evidence “most significant” in determining the scope of indemnity provided rather than its relevance to the issue of whether the contract was adhesionary. He concluded that the lease agreement indemnified Missouri-Pacific for damages occasioned by the operation of the underground hopper facilities, and did not indemnify them for any damages caused by their own neglect. Accordingly, the demands of the third-party plaintiff were denied. Thereafter, a petition and order for devolutive appeal were filed by Missouri-Pacific.

The remainder of the case was subsequently settled, with reservation to Missouri-Pacific to pursue its indemnity recourse. Thus the liability of the manufacturer and vendor of the power puller is not at issue, nor is the liability of the owner and furnish-er of the railroad car at issue. The only issue remaining is the effect to be given the indemnity clauses in the parties’ lease agreement.

Section 3(a) of the lease agreement provides in pertinent part:

Lessee shall defend, indemnify and save harmless Carrier from and against any and all liability, judgments, outlays, expenses, including attorneys’ fees and costs, soever, consequent on injury to or death of persons; including among others, the Lessee, Lessee’s agents, servants and employees, as well as the agents, servants and employes of Carrier, and loss or destruction of or damage to property of whatsoever kind and to whomsoever belonging, in any manner caused by or resulting from, or incident to, the construction, existence, maintenance, use or operation of said facilities under said track, or the operation of engines, cars or trains upon or over said track and said facilities thereunder, or resulting from or growing out of any failure of Lessee to comply with or perform any of the obligations, terms, conditions or provisions on Lessee’s part to be complied with or performed hereunder, and whether any such injury to or death of persons or loss or destruction of or damage to property shall be caused or contributed to by the negligence of Carrier or otherwise.

An additional indemnity provision is found in Section 4(g):

(g) to indemnify and hold harmless Carrier against all claims, demands, suits or actions arising out of injury to or death of any person, or loss of or damage to any property, while on or about Premises, when such injury, death, loss or damage results from any act or omission of Lessee or of Lessee’s agents, servants or employes; and except as may be otherwise provided in this agreement, if any claim or liability due to some other cause than fire or flood shall result from the joint or concurring negligence of both parties hereto it shall be borne by them equally.

The law applicable to such an indemnity agreement was set forth by the Louisiana Supreme Court in Polozola v. Garlock, Inc., 343 So.2d 1000 (La.1977), as follows:

A contract of indemnity whereby the indemnitee is indemnified against the consequences of his own negligence is strictly construed, and such a contract will not be construed to indemnify an indemnitee against losses resulting to him through his own negligent act, unless such an intention was expressed in unequivocal terms. Lee v. Allied Chemical Corp., [331 So.2d 608 (La.App.1976) ] supra; Strickland v. Nutt, 264 So.2d 317 (La.App. 1st Cir.), cert. denied, 262 La. 1124, 266 So.2d 432 (1972); Elephant, Inc. v. Hartford Accident & Indemnity Co., 216 So.2d 837 (La.App. 1st Cir. 1968), on remand, 239 So.2d 692 (La.App. 1st Cir. 1970); Arnold v. Stupp Corp., 205 So.2d 797 (La.App. 1st Cir. 1967); Jennings v. Ralston Purina Co., 201 So.2d 168 (La. App. 2d Cir.), cert. denied, 251 La. 215, 203 So.2d 554 (1967).

That indemnity agreements are to be strictly construed does not mean that such clauses are to be disregarded; the agreement must be given the effect intended by the parties. LSA-C.C. Art. 1901. Strict construction does not mandate a nugatory interpretation, since, when a clause is susceptible of two interpretations, it must be considered in that sense in which it may have some effect. LSA-C.C. Art. 1951.

Furthermore, all clauses of a contract should be interpreted the one by the other, giving to each the sense that results from the entire agreement. LSA-C.C. Art. 1955.

Applying the law set forth above to the indemnity agreement involved, it becomes clear that the construction imposed by the trial judge was erroneous.

Section 3(a), also known as the Industrial Track Agreement, provides in the broadest permissable terms that the lessee (Louisiana Industries) shall defend, indemnify and save harmless, the carrier (Missouri-Pacific) from any and all liability consequent on injury to persons, including specifically lessee’s employees, caused by or resulting from or incident to, the construction, existence, maintenance, use or operation of said facilities under said track, or the operation of engines, cars or trains upon or over said track and said facilities thereunder, whether caused or contributed to by the negligence of carrier. Undisputed is that the accident involved occurred when the lessee’s employee, while on lessee’s premises, attempted to open a car above the unloading facility.

Section 4(g), which pertains to the entire premises leased, provides that lessee shall indemnify the carrier for injuries occasioned by the neglect of lessee or its agents or servants; provided however that if liability arises from the joint or concurring negligence of both parties, the cost thereof shall be borne equally between the parties.

We conclude that the clear intent of the parties was to provide indemnity under one of the aforesaid provisions.

Whether appellee’s liability falls under Section 3(a) or 4(g) must be determined upon trial on the merits whereat fault and the circumstances incident thereto will be determined.

In reaching this conclusion we note that we are not dealing with an ordinary lease agreement with an indemnity clause. The record reflects that the agreement was the result of extensive negotiations between parties of comparable business expertise and equivalent bargaining power and was not a contract of adhesion. Appellee made a calculated business decision to oblige itself to the terms agreed upon. That contract leads to no absurd consequences. The corporate leasee was in a superior position to control the risks inherent in its enterprise due to its control and supervision of the property. The unloading facilities were placed upon the leased premises for the convenience of the lessee whereas the benefit to the railroad was marginal. Conversely, the deliverer of the hopper has a limited opportunity between receipt and forward to inspect the filled carload for defects. Admittedly a different result might obtain if the case were decided according to tort principles inasmuch as a dispatcher filling a hopper could more readily inspect the oper-ability of the release door prior to the increase of opposing force. Stated otherwise, the only way to ascertain whether the door of a hopper is functioning properly is to open it, therefore every carrier could not open the door and still forward the contents. However, this is not a case of tort, intentional or otherwise, but of contract. The parties have specified for the allocation of risk and their agreement has the effect of law upon them. LSA-C.C. Art. 1945.

With respect to the extrinsic evidence introduced, we find that, although admission of the documents relative to prior negotiations between the parties was proper as to the question of adhesion, its consideration in determining the scope of the indemnity agreement was improper. LSA-C.C. Art. 2276 states: “Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.” Where the contract exhibits no uncertainty or ambiguity as to the nature, object and extent of the parties’ agreement, as here, Art. 2276 controls, and it is presumed that the writing expresses the true and complete undertaking of the parties.

For the reasons assigned, the judgment appealed from is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion. Costs taxed to appellee.

REVERSED AND REMANDED.

      . A freight car with a funnel-shaped floor sloping to one or more hinged doors for discharging bulk materials (e.g., coal, grain, cement).

      . Uncontested on appeal is that Louisiana Industries’ workmen’s compensation immunity does not extend to such contractual committments. See Fontenot v. Monsanto Co., 363 So.2d 1309 (La.App. 4th Cir. 1978).


author: LABORDE, Judge.

text:
    Chester G. BOND, III, et ux., Plaintiffs-Appellants, v. COMMERCIAL UNION ASSURANCE COMPANIES, et al., Defendants-Appellees.
    No. 7488.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Bolen & Erwin, Gregory S. Erwin, Alexandria, for plaintiffs-appellants.
    McBride & Foret, Norman P. Foret, Cooks & Chretien, Sylvia R. Cooks, Lafayette, McLure & McLure, John G. McLure, Broussard, Bolton & Halcomb, Dorwan G. Vizzier, Alexandria, for defendants-appel-lees.
    Before GUIDRY, STOKER and LA-BORDE, JJ.
   LABORDE, Judge.

This matter returns to this court on remand from the Louisiana Supreme Court with instructions that our judgment, reported at 387 So.2d 617 (La.App. 3rd Cir. 1980), should be amended to allow the subrogation claim of Lumbermen’s Mutual Casualty Company. In fixing the amount due Lumbermen’s under its subrogation claim we are instructed as follows:

“For the foregoing reasons, we conclude that the court of appeal’s judgments in favor of the plaintiffs are correct and should be affirmed. The judgment rejecting Lumbermen’s subrogation claim in Bond v. Commercial Union Assurance Company, 387 So.2d 617, must be amended, however, because upon payment to the plaintiffs the insurer is entitled to be subrogated to their rights against the tortfeasor. In reforming this judgment evidence of Cindy Jack’s inability to pay must be taken into consideration.”

Our review of the record indicates that on the trial date, Cindy Jack, who was 21 years old, was unemployed. She was a student at U.S.L. Cindy’s father died when she was 15 years old leaving six (6) children and no estate. Cindy’s mother was employed as a cook. To pursue her studies, Cindy obtained a loan which she supplemented with a student job. Her total assets consisted of a 1965 Oldsmobile, $30 in a bank account, an electric typewriter, a small refrigerator, and her personal clothing.

Considering the income and possessions of Cindy Jack, her present financial condition and her ability to respond in damages, we will limit the amount of the judgment against her to $5,000. See Thomas v. State Farm Mutual Automobile Insurance Company, 391 So.2d 39 (La.App. 3rd Cir. 1980) and Comeaux Greyhound Lines, Inc., 381 So.2d 910 (La.App. 3rd Cir. 1980).

Accordingly, the decree portion of our original judgment, reported at 387 So.2d 617, is hereby amended to read as follows:

For the reasons set forth herein and in the companion case the judgment of the trial court dismissing plaintiffs’ demands is reversed and accordingly, it is Ordered, Adjudged, and Decreed that there be judgment herein in favor of plaintiffs and against defendant Commercial Union Assurance Company for the sum of Two Thousand Five Hundred Twenty-Four Dollars and Seventeen Cents ($2,524.17), together with legal interest from date of judicial demand until paid.

It is further Ordered, Adjudged, and Decreed that there be judgment herein in favor of plaintiffs and against defendant Lumbermen’s Mutual Casualty Company for the sum of Fifty Thousand Four Hundred Eighty-Three Dollars and Forty-One Cents ($50,483.41), together with legal interest thereon from date of judicial demand until paid.

It is further Ordered, Adjudged, and Decreed that the judgment of the District Court dismissing the third party demands of Commercial Union against Cindy Jack is affirmed. However the District Court judgment is amended to allow Lumbermen Mutual’s subrogation claim against Cindy Jack in the sum of Five Thousand and No/100 ($5,000) Dollars, together with legal interest from date of judicial demand until paid.

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

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

AMENDED ON REMAND AND JUDGMENT AS AMENDED REINSTATED.

      . For a complete recitation of the facts and the original and rehearing opinions of the Supreme Court, see Bond v. Commercial Union Assurance Co., 407 So.2d 401 (La.1981).


author: SWIFT, Judge.

text:
    Richard L. THOMAS, Plaintiff-Appellee, v. CONTINENTAL STATES AUTO CLUB, INC. and Manchester Life Insurance Company, Defendanfs-Appellants.
    No. 8424.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.

      Ardoin & Daigle, J. Winston Ardoin, Eunice, for defendants-appellants.
    Preston N. Aucoin, Ville Platte, for plaintiff-appellee.
    Before DOMENGEAUX, CUTRER and SWIFT, JJ.
   SWIFT, Judge.

On May 23, 1980, Richard L. Thomas sustained injuries in an automobile accident for which he was hospitalized from May 26, 1980, through June 2, 1980. At the time plaintiff was a member of the Continental States Auto Club, Inc., (Continental) and as such he was insured by the latter’s underwriter, Manchester Life Insurance Company (Manchester), the defendants herein.

The policy contained a provision restricting recovery of benefits to injuries for which the insured was hospitalized within 48 hours after the accident causing same. Because Mr. Thomas admittedly was not hospitalized within 48 hours after the accident, Manchester refused to honor his claim.

In this suit judgment was rendered in favor of the plaintiff in the sum of $505 for medical and hospital benefits, but his demand for the statutory penalty and an attorney’s fee was rejected.

The trial judge ruled that the 48 hour exclusionary clause in the policy was an unreasonable restriction and against public policy, adopting the written reasons he had rendered in a similar case, Frank v. Continental States Auto Club, Inc., which was on appeal to this court at the time of the district court’s judgment. Our decision in that suit, adverse to the plaintiff’s contentions, was rendered on November 10, 1981, and a rehearing was denied January 4,1982. 407 So.2d 10 (La.App. 3 Cir. 1981). The supreme court refused an application for writs on February 12, 1982. 412 So.2d 76 (La.1982).

The principal issue in the present suit is the same as in Frank. Therefore, for the reasons stated in our decision in that prior case, we conclude the plaintiff is not entitled to any benefits under the policy.

Accordingly, the judgment of the district court is reversed insofar as the awards to plaintiff of hospital and medical benefits, interest and court costs are concerned, but affirmed as to its denial of the statutory penalty and attorney’s fees. The suit is dismissed and the costs of court, including this appeal, are assessed to the plaintiff.

REVERSED AND RENDERED.


author: CULPEPPER, Judge.

text:
    Coleman WHITE and Jimmy White, Plaintiffs & Appellants, v. CUMIS INSURANCE SOCIETY, et al., Defendants & Appellees.
    No. 8639.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.

      William Henry Sanders, Norris Dale Jackson, Jena, for plaintiffs & appellants.
    Stafford, Stewart & Potter, Grove Stafford, Jr., Alexandria, for defendants & ap-pellees.
    Before CULPEPPER, FORET and DOU-CET, JJ.
   CULPEPPER, Judge.

This is a tort action arising from an automobile accident in which the vehicle occupied by the plaintiffs was rear-ended by a car driven by the defendant’s insured, Mrs. Jean Sooter. A jury found Mrs. Sooter’s negligence was the sole cause of the accident, but denied damages to either plaintiff. Plaintiffs appeal. We affirm.

The plaintiff, Coleman White, contends: (1) The jury erred in finding Coleman White sustained no damages as a result of this accident. (2) The trial judge erred in refusing to allow introduction of the entire hospital record of Coleman White. (3) The court erred in excluding the testimony of Dr. Riaz Chaudhry.

The plaintiff, Jimmy White, contends: (1) The jury erred in finding that Jimmy White sustained no damages as a result of the July 26,1979 accident. (2) The trial court should have granted Jimmy White’s request to sever the trial of his cause of action from that of Coleman White.

FACTS

The accident occurred on Louisiana Highway 8 in LaSalle Parish on July 26, 1979. The jury’s finding that Mrs. Sooter’s negligence was the sole cause of the accident is not contested on appeal. The central issue involves the fact that on June 25,1979, one month before this collision, the plaintiffs were involved in another rear-end collision. The suit arising from that accident was settled by the plaintiffs for $15,000. The question in the instant case is which of the two accidents caused the damages claimed by plaintiffs.

In the June accident, the plaintiffs were struck from behind by a pickup truck proceeding at an estimated 60 miles per hour. Their vehicle, a Chevy Luv truck, was hit twice by the pickup truck and knocked into a telephone pole.

Plaintiffs were in the same vehicle when the second accident occurred. It was estimated that defendant’s insured, Mrs. Soot-er, was traveling at approximately 30 to 40 miles per hour at the time of impact, since she had been going 50 but had released the accelerator and tried to brake upon seeing the plaintiff’s vehicle. There was only one impact, and the state trooper who investigated considered this simply a minor accident.

FAILURE TO AWARD DAMAGES

The jury refused to award damages to either plaintiff because it did not believe that either of them was injured as a direct result of the accident in this case. The major contention of plaintiffs on appeal is that this finding by the jury is clearly wrong. They argue that the evidence shows that both Coleman and Jimmy White were injured in the July 26 accident.

We recognize that a jury may not refuse general damages where there are objective injuries and resulting medical expense. Robinson v. General Motors Corporation, 328 So.2d 751 (La.App. 4th Cir. 1976); Brown v. Grigsby, 394 So.2d 847 (La.App. 3rd Cir. 1981). Also, the defendant takes his victim as he finds him. Hale v. Champagne, 365 So.2d 55 (La.App. 3rd Cir. 1978). Nevertheless, in situations involving multiple accidents, whether preceding or subsequent to the accident at issue, it is well settled that a tortfeasor is liable only for the direct and proximate results of his wrongful act. Comeaux v. Barksdale, 342 So.2d 1181 (La.App. 1st Cir. 1977).

Furthermore, the plaintiff has the burden of proving by a preponderance of the evidence the causal connection between the accident and the injuries claimed. Coleman v. Victor, 326 So.2d 344 (La.1976); Comeaux v. Barksdale, supra. Whether or not this burden has been sustained is a question for the trier of fact and its finding will not be disturbed on appeal unless clearly wrong. Dofflemyer v. Gilley, 384 So.2d 435 (La.1980); Hale v. Champagne, supra.

Of particular relevance in the present case is the statement by this Court in Guidry v. Davis, 382 So.2d 250 (La.App. 3rd Cir. 1980):

“[1,2] It is also well settled that the jury or trial judge may, and should, assess the credibility of experts who testify at the trial, as well as that of lay witnesses, to determine the most credible and realistic evidence and the fact finder’s determination of the credibility of those witnesses will not be disturbed unless found to be clearly erroneous. Green v. State, Southwest Louisiana Charity Hosp., 309 So.2d 706 (La.App. 3 Cir. 1975); Monette v. Aetna Cas. & Sur. Co., 352 So.2d 423 (La.App. 3 Cir. 1977). After weighing and evaluating all of the medical evidence, and in most cases the lay testimony, relating to the injuries sustained by a plaintiff, the jury or trial judge may accept or reject the opinion expressed by any medical expert, depending upon how he is impressed with the qualifications and the testimony of that expert. Touchet v. Fidelity and Casualty Co. of New York, 264 So.2d 752 (La.App. 3 Cir. 1972).”

With regard to the injuries of Coleman White, it was testified by Mrs. Sooter that he had no complaints of pain immediately after the accident and assured her that both he and Jimmy were alright. The investigating trooper also testified that Coleman White made no complaint of injury to him. The witness from the body shop which gave Mr. White an estimate on repairing the damage to his truck from the first accident testified that the vehicle had not been repaired between the first and second accidents, and that the additional damage from the second accident was slight. Mr. White, however, testified that it had been repaired and that all the present damage resulted from the July accident.

The testimony of both Mr. White and the neurologist, Dr. John McCutchen, established that he had the same complaints after both the June and the July accidents. Dr. McCutchen testified that his examination of July 27, the day after the accident in question, showed Coleman White’s condition to be essentially unchanged from the last time he had seen him, and “unremarkable.” Mr. White has had a long history of back problems, beginning at least 25 years ago. Dr. McCutchen acknowledged that in his diagnosis he must rely heavily on the history which he is given by his patient, and that any major misstatement in that regard could cause an error in his conclusions. He also stated that he had hospitalized Mr. White after each accident and that the diagnosis of his condition was the same on both occasions. Defendants’ expert, Dr. T. E. Banks, testified that this would indicate to him that the most likely cause of Coleman’s condition was the accident of June 25.

A careful review of the record reveals several inconsistencies between Coleman White’s testimony on direct examination and on cross-examination. Also, Donald Gucker, the defendants’ expert in psychology, testified he had examined Coleman and concluded he showed a “fake sick” profile, i.e., acting as if he is much more sick than he actually is.

In light of the fact that the jury and the trial judge are in the best position to evaluate the credibility and demeanor of witnesses in the trial court, our reading of the record leads us to conclude that no manifest error exists in the jury’s finding that the second accident was not the cause of the injuries for which Coleman White claims damages.

As for Jimmy White, the record is devoid of any objective evidence to show that he suffered any injury as a result of the accident in question. The owner of the auction barn where he worked one day a week testified that he missed work during this period of time, but that his absence from work commenced at least two weeks before the first accident. Then he returned to work in September, 1979, and made no complaints about neck, back or leg pain. The only evidence that he made any complaints of pain immediately following either accident was the testimony of his father. Dr. Turnley, the family physician, examined Jimmy on July 31,1979, five days after the accident, and found no objective evidence of any injuries. There was no muscle spasm nor any restriction of motion. In April, 1981, he began having complaints of severe pain, but the doctor testified that there was no way of knowing what was causing the new problem. We discern no clear error in the jury’s denial of damages to this plaintiff.

EXCLUSION OF MEDICAL EVIDENCE

Plaintiff, Coleman White, further cites as error the trial court’s exclusion of evidence which he sought to introduce to prove that the accident in question was also a cause of the heart attack he later suffered. Allegations to this effect were not included in the original petition. Mr. White sought permission to include such allegations on the first day of the trial. The trial court denied the motion to amend and excluded the proffered evidence as being outside the pleadings.

We find no error in this ruling. Amendment and supplementation of a petition may be done after filing of the answer by leave of court, but is within the sound discretion of the trial judge. See LSA-C.C.P. Articles 1151,1155; Sikes v. McLean Trucking Company, 383 So.2d 111 (La.App. 3rd Cir. 1980). This ruling will not be disturbed on appeal unless there has been an abuse of the broad discretion vested in him. Independent, Inc. v. Watson, 394 So.2d 710 (La.App. 3rd Cir. 1981).

As noted by this Court in Calvary Tabernacle v. Louisiana Central Bank, 384 So.2d 814 (La.App. 3rd Cir. 1980), reversed on other grounds, 393 So.2d 708 (La.1981), the most important consideration in granting or refusing permission to amend is whether the opponent is unfairly prejudiced. The plaintiffs’ request here on the very day set for trial sought to add a new element of damages of which the defendant had no prior notice, and gave them no opportunity to prepare to rebut. We find no abuse of discretion by the trial court.

MOTION FOR SEVERANCE

Plaintiff, Jimmy White, contends the trial court erred in refusing his request for severance of the trial of his cause of action from that of his father. He argues that he was prejudiced by the denial because the antagonism between the attorney for the defendant and his father, Coleman White, caused the jury to become inflamed against both plaintiffs. This specification of error is without merit.

These plaintiffs voluntarily joined in one suit pursuant to the statutory authority of LSA-C.C.P. Articles 463 and 647.

The court does have authority to order a separate trial of even properly cumulated actions at any time prior to trial, where it would simplify the proceedings, permit a more orderly disposition of the case, or otherwise would be in the interest of justice. See LSA-C.C.P. Article 465. The decision to sever or not is within the sound discretion of the trial court, but he may grant the motion only if he finds that the case falls within the scope of the code article. Johnson v. Marvin Cutrer Contractor, 348 So.2d 1256 (La.App. 2d Cir. 1977).

In the instant case, the claims of both plaintiffs arose out of the same automobile accident, and the contested issues of both claims rested on the same evidence, including both lay witnesses and expert medical testimony. In light of the voluntary joinder of Jimmy White and Coleman White as plaintiffs, and considerations of judicial efficiency and economy having both claims heard by one jury, we find no abuse of discretion in the trial court’s denial of the motion to sever.

For the above and foregoing reasons, the judgment appealed is affirmed. All costs of this appeal are assessed against plaintiffs-appellants.

AFFIRMED.

      . Two or more parties may be joined in the same suit, either as plaintiffs or as defendants, if:
      (1) There is a community of interest between the parties joined;
      (2) Each of the actions cumulated is within the jurisdiction of the court and is brought in the proper venue; and
      (3)All of the actions cumulated are mutually consistent and employ the same form of procedure.
      The permissive joinder of two or more plaintiffs or defendants in the same suit is governed by the rules regulating the cumulation of actions provided in Articles 463 through 465.

      . It might be noted that LSA-C.C.P. Article 465 is primarily for the purpose of protecting the rights of defendants involuntarily joined in the same suit by plaintiffs, and not plaintiffs who presumably desired to be joined when they filed suit together (see the Comments thereto).


author: STOKER, Judge.

text:
    Charles Ray ALEXANDER, Sr., Plaintiff-Appellant, v. ACADIAN PONTIAC-BUICK, INC., et al., Defendants-Appellees.
    No. 8675.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Charles Ray Alexander, Sr., in pro. per.
    Peter C. Piccione, Sr., Lafayette, Armentor & Wattigny, Gerard B. Wattigny and David W. Groner, New Iberia, for defendants-appellees.
    Before GUIDRY, STOKER and LA-BORDE, JJ.
   STOKER, Judge.

This is a suit by the owner of a 1976 Chevrolet Impala automobile for damages against an automobile repair shop and plaintiff’s insurer. The plaintiff Charles Ray Alexander, Sr. (Alexander) took his automobile to defendant Acadian Pontiac-Buick, Inc. (Acadian) for repair of a motor failure breakdown. Defendant Motors Insurance Corporation (MIC) insured Alexander under a “breakdown” policy which insured Alexander against major automobile damage or failure which occurred within 36 months or 36,000 miles of travel.

The trial court gave judgment in favor of defendants and Alexander has appealed. We affirm. The case presents purely factual issues.

FACTS

The trial court gave the following summary of the facts in this case which we take the liberty of adopting:

“The plaintiff in this case purchased a new 1976 Chevrolet Impala automobile from the Jeanerette Motor Company, and at the same time he purchased an insurance policy from the Motors Insurance Corporation (MIC). The MIC policy is sometimes referred to as a ‘breakdown’ policy and is designed to insure the owner of the vehicle in the case of major automobile damage that occurs within 36 months of the issuance of the policy or after the vehicle has traversed 36,000 miles, whichever comes first.
“After the car had gone about 29,000 miles, in November of 1977 the crankshaft failed. A claim was made against MIC and they responded by paying for the installation of a rebuilt crankshaft, an engine overhaul, and a car rental bill of $50. The plaintiff was disturbed about the use of the rebuilt crankshaft, preferring instead to have a new one. Mr. Larry Simon, the senior adjuster of MIC who handled the claim, agreed to carry the coverage further and if there was any additional difficulties, they would be recompensed by MIC. After the car had been driven 39,000 miles, the engine froze while the car was in Lafayette, and the plaintiff had the car removed to the Aca-dian Pontiac-Buick garage in New Iberia for repair. The repair or lack of repair is the crux of this suit.
“Mr. Simon met with representatives of Acadian Pontiac in New Iberia to discuss the repairs and the payment of it. They concluded that the vehicle needed a new block, which was ordered from Polk Chevrolet in Baton Rouge. It was then installed in the plaintiff’s vehicle, and the repairs were almost complete when an incident arose which terminated the attempt.
“The plaintiff went to the Acadian Pontiac garage and expressed his dissatisfaction voluably [sic] with the failure of the Acadian Pontiac people to put a brand new complete motor in his vehicle. The dispute and his actions caused the Acadian Pontiac people to call the police and to end any business dealings with the plaintiff. They removed the new engine block from the vehicle and put the plaintiff’s old engine block and the rest of his parts in the plaintiff’s trunk. The next day the plaintiff picked up his car and brought it to Fred Valsin’s garage, whereupon Mr. Valsin put in a brand new engine and billed the plaintiff for some $2023. The plaintiff has filed this suit seeking to recover this $2023 and also $5000 for mental anguish, breach of contract, and reasonable attorney’s fees of $2500 for having to bring this suit.
“It is the contention of the plaintiff that not only did the defendants fail to have his car prepared properly but that when Acadian Pontiac put his old block in the car, they in fact substituted a different block than the one that was originally in the plaintiff’s car. He produced two witnesses that seemed to bear out that claim, at least from their testimony. Sidney Lumpkin was a mechanic for Jeaner-ette Motors who knows the plaintiff and knows that he did buy the Impala, which at the time had a blue 350 cubic inch Chevrolet engine in it. He states that the engine which the plaintiff displayed to him was a 327 cubic inch engine and not the one he had when it was purchased.
“Mr. Fred Valsin testified that he worked on the plaintiff’s car and he had noticed that it too had a 350 cubic inch blue engine before it was broken, and that when he saw the block and parts returned by Acadian Pontiac that it was ot a 350 cubic inch engine but a 327 cubic inch. Other members of the plaintiff’s family indicated that the engine was blue.”

Alexander partly bases his contention that the engine that was returned to him by Acadian was not his original engine on the fact that the engine returned to him was orange in color rather than blue. Although the evidence is clear that the engine is now orange, there is conflicting evidence as to its original color. However, we find it unnecessary to resolve this conflict. Antoine Elow, the mechanic at Acadian who worked on Alexander’s car, testified that he used some of the parts from Alexander’s original engine, including the heads, intake manifold, and valve covers, and that he spray-painted those parts orange to match the color of the new block to which he attached the parts. When seen from above with these parts attached, the whole engine looks orange. This may explain why Alexander believed that Acadian was installing an old engine before he halted the repairs. In any case, this would explain why Alexander’s engine now appears to be a different color from that which it was originally. Mr. Elow testified that the spray-painted parts were removed from the new block and returned to Alexander with his old block. Therefore, Alexander’s engine is not the same color as it was originally, and the difference in color does not mean that Aca-dian returned a different engine to Alexander.

Defendants demonstrated at trial that the serial numbers on the engine returned to Alexander matched the vehicle identification number of Alexander’s car. They also showed that the numbers were those of a 350 cubic inch engine. Alexander contends, however, that Mr. Elow admits changing the serial numbers on the engine block and that Alexander saw him do this. This statement is misleading and inaccurate. Mr. Elow testified that he stamped the serial number on the new engine block to match that of Alexander’s old engine block. No serial numbers appear on new engine blocks and it is standard practice recommended by the Pontiac and Buick Motor Division to transfer the serial numbers from the old engine block to the new engine block which replaces it. Alexander may have seen Elow performing this procedure.

Both Elow and his service manager, John Dominic, adamantly denied at trial that they altered the serial number on Alexander’s old engine block. Both parties testified that they returned Alexander’s old engine block to him along with all the original parts removed from the block. We find no manifest error in the trial court’s conclusion that Alexander failed to prove by a preponderance of the evidence that Acadian did not return his original engine to him.

Alexander has likewise failed to prove his claim against Motors Insurance Corporation. MIC had agreed to extend coverage beyond the original 36,000 mile warranty period only as to damage which resulted from the failure of the rebuilt crankshaft, the installation of which MIC had paid for during the warranty period. The breakdown in question occurred after the warranty period. MIC agreed to cover the replacement of Alexander’s engine block because the damage to the block was possibly caused by the crankshaft. None of the other engine parts which Valsin replaced were damaged because of the crankshaft failure, and in fact may not have been damaged at all. MIC paid $720.34 to Alexander, the retail price of a new engine block, and paid $192.25 to Acadian for towing and the labor performed before Alexander disrupted Acadian’s repair efforts. Since Alexander unilaterally halted the repairs, MIC is not obligated to pay a second fee for installing the new engine block. Therefore, MIC has paid Alexander all that it is obligated to pay him.

For the foregoing reasons, the judgment of the trial court is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


author: FORET, Judge.

text:
    Polly Ann SHIPP, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Defendant-Appellee.
    No. 8735.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    John W. Porterfield, Jeanerette, for plaintiff-appellant.
    Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendant-appellee.
    Before CULPEPPER, FORET and DOU-CET, JJ.
   FORET, Judge.

The sole issue presented for our consideration is whether the State Farm policy issued with respect to the Shipp vehicle affords uninsured motorist coverage to the plaintiff, daughter of Shipp (who was a guest passenger in the Shipp vehicle), when the sole cause of the accident was the negligence of the host driver of that automobile, in a case where the plaintiff has settled for the full liability policy limits of the insurer of the host driver, plus that of the Shipp’s liability policy.

Polly Ann Shipp, on April 12, 1980, was a guest passenger in a 1974 Toyota automobile owned by her parents, Mr. and Mrs. Louis V. Shipp, Jr., which automobile was being driven at the time of the accident by Margaret L. Hemingway. The sole alleged cause of the accident was the negligence of Margaret L. Hemingway.

At the time of the accident, State Farm Mutual Automobile Insurance Company had issued a policy of automobile liability insurance to Louis V. Shipp, Jr., with per person bodily injury limits of $10,000, medical payment insurance limits of $5,000, and uninsured motorist benefits for each person of $10,000. Coincidentally, State Farm had also issued to the parents of Margaret L. Hemingway, the driver, who was residing with her parents, a policy of automobile liability insurance affording per person liability insurance limits of $25,000.

Prior to the institution of this suit, plaintiff executed a release in favor of the Hem-ingways, her father, Louis V. Shipp, Jr., and State Farm Mutual Automobile Insurance Company for the $10,000 liability limits on the Shipp vehicle, $5,000 medical payments coverage on the Shipp vehicle, and the $25,000 liability limits on the Hemingway policy, for a total of $40,000. Plaintiff reserved her rights to pursue a claim against State Farm for the $10,000 uninsured motorist limits on the Shipp vehicle.

Following the execution of the restricted receipt and release, plaintiff instituted suit against State Farm claiming the $10,000 under the uninsured motorist coverage afforded in the Shipp policy. Defendant filed a motion for summary judgment which was sustained by the trial court, dismissing plaintiff’s suit with prejudice. From this judgment plaintiff appeals.

State Farm claims that there is no UM coverage affordable to plaintiff under its policy provisions. The State Farm policy, under Part IV, Protection Against Uninsured Motorists, provides that the company agrees: .

“To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury * * * sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile * * * ”.

Under Part IV, the definitions of the State Farm policy specifically exclude from the definition of an “uninsured automobile” an “insured automobile”. An “insured automobile” thereunder is defined as an automobile described in the policy for which a specific premium charge indicates that coverage is afforded.

The vehicle which Ms. Hemingway was driving when the accident occurred was described in the policy issued to Mr. Shipp as an insured automobile to which State Farm provided bodily injury liability coverage. Since the vehicle which Ms. Hemingway was driving was an “insured automobile”, it is excluded as an “uninsured automobile” under the policy definition.

Under the plain reading of this policy, State Farm provides no uninsured motorist coverage as to the plaintiff, and unless such policy provisions are contrary to law or public policy, they are the agreements between the parties.

In our opinion, the issue posed for decision in this case was initially decided by the Supreme Court in Breaux v. Government Employees Insurance Co., 369 So.2d 1335 (La.1979), Nall v. State Farm Mutual Insurance Company, 406 So.2d 216 (La.1981), and Coco v. Allstate Insurance Company, 391 So.2d 50 (La.App. 3 Cir. 1980). The rationale of these cases is dispositive of the issue involved herein. A guest passenger is not entitled to recover under both the liability and UM coverages in a situation such as the one at bar. In all three of those cases above mentioned, the guest passenger was allegedly injured or killed due to the negligence of the host driver. In all three of those cases, it was held that recovery could not be had under both liability and uninsured motorist coverages of the policy insuring the automobile involved in the accident, which was due to the host driver’s negligence. This case presents an identical situation in theory.

The trial court judgment dismissing plaintiff’s suit with prejudice is affirmed.

All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    James N. HENNIGAN, Plaintiff-Appellee, v. VERNON PARISH POLICE JURY, Defendant-Appellant.
    No. 8762.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1982.
    Edwin L. Cabra, Leesville, for defendant-appellant.
    Herman I. Stewart, Jr., DeRidder, for plaintiff-appellee.
    Before DOMENGEAUX, CUTRER and SWIFT, JJ.
   DOMENGEAUX, Judge.

Defendant, Vernon Parish Police Jury, appeals from a judgment awarding $109,-548.80 to plaintiff, James N. Hennigan, for personal injuries. We affirm the judgment of the district court.

The issues presented on appeal are:

(1) Was the Police Jury guilty of negligence which was a proximate cause of the accident?
(2) Were the damages awarded to plaintiff excessive?

On January 30, 1979, plaintiff, James N. Hennigan, incurred personal injuries as a result of his automobile striking a hole in a bridge known as the “Slough Bridge” on Harvey Road in Vernon Parish. The hole was approximately one foot wide, three to three and one-half feet long, and its open depth to the water line was three to five feet. The accident occurred on a rainy morning between 11:00 and 11:30 A.M. Plaintiff was driving at a speed of approximately twenty miles per hour when approaching the bridge. He did not see the hole on the bridge until it was too late to avoid striking it. After striking the hole the plaintiff’s car turned over and toppled off the bridge, there being no railings on the bridge. There were no warning signs of any kind posted pertaining to the condition of the bridge. The plaintiff had not travelled on this road for approximately five years.

As a result of striking the hole, plaintiff received injuries requiring hospitalization and treatment by his physician. He instituted suit against the Police Jury of Vernon Parish to recover the damages incurred. The parish answered and denied liability.

After trial on the matter the district court rendered judgment on September 4, 1981, in favor of plaintiff in the sum of $100,000.00 as general damages and $9,548.80 as special damages. The defendant has perfected this appeal.

LIABILITY OF POLICE JURY

Under negligence theory, a public body is responsible for damages caused a motorist if the public body has either actual or constructive notice of the defect which caused the accident and failed to remedy the situation within a reasonable time. Fontenot v. State of Louisiana, through the Department of Highways, 346 So.2d 849 (La.App. 1st Cir. 1977).

The evidence shows that the defective condition on the bridge was of long standing and was constantly recurring. The road foreman for the defendant testified that it had to be repaired two or three times previously. There was much testimony at the trial of the frequency of the repairs and the quality of the repair work. A C.E.T.A. employee, James Ersel, testified that the repair work that he did on the bridge was patch work in October, 1978, and March or April, 1979. This repair work covered a period approximately three months prior to the accident and approximately three months after the accident.

Furthermore, the record reflects that any repairs made to the bridge were not adequate and could not be expected to last any length of time. Mr. Larry Bailey, an employee of the defendant, testified that at times the repair work to the bridge would not last more than a couple of days. The record also reflects, through the testimony of the witnesses, that various employees of the Police Jury passed over the bridge with some degree of regularity and were aware of the defective condition of the bridge. Testimony also indicated that there were no warning signs posted by the Police Jury to advise motorists of the constantly recurring defective condition of the bridge.

The evidence is clear that the hole in the bridge was a recurring problem which the Police Jury failed to adequately remedy on numerous occasions. The Police Jury had adequate constructive and actual knowledge of this defect and failed to warn motorists of the hazardous condition. Under the facts and testimony presented to this court we must concur with the trial court’s determination that the Vernon Parish Police Jury was guilty of negligence which resulted in injuries to the plaintiff.

QUANTUM

The only remaining issue concerns the amount of quantum awarded to plaintiff. Appellant contends that the trial court abused its discretion in awarding plaintiff $100,000.00 general damages. In the assessment of quantum of damages, much discretion is left to the trier of fact and the award may be disturbed only if the record clearly reveals abuse of this discretion.

Plaintiff was a 34 year old male, married and the father of four children. He was a self-employed firewood cutter. As a result of the accident, plaintiff incurred a severe back injury diagnosed as a herniated disc. Surgery was required, which resulted in the removal of the nucleus pulposus of the disc at L-5 and a laminectomy and fusion of L-4, L-5, and S-i. After surgery, plaintiff remained immobilized in a spica cast for a period of two months. Plaintiff was then required to wear a back brace for an extended period of time. Doctor Schneider, an attending orthopedist, testified plaintiff was still disabled to do any heavy work and estimated that he would have a permanent 20% disability.

The medical record is clear that plaintiff suffered a severe injury resulting in intense pain over an extended period of time and will endure partial permanent disability. The record does not show an abuse of discretion on the part of the trial court in awarding $100,000 in general damages.

Accordingly, the trial court judgment is affirmed. Appellant, Vernon Parish Police Jury, is to bear all costs of this appeal.

AFFIRMED.

      . Although the plaintiffs contributory negligence is not at issue on appeal, we quote a portion of the trial judge’s reasons concerning plaintiffs actions and the scenario which he faced as follows:
      “Although the evidence showed that plaintiff was traveling at a relatively slow rate of speed, about 20 miles per hour, his failure to see the hole is understandable for several reasons: he was not particularly familiar with the road; it was raining at the time and leaves and debris had gathered around and over the hole which tended to obscure his vision thereof; and the bridge is situated at the end of a curve, if going in the direction in which plaintiff was traveling. The bridge, moreover, had no guard rails and there were no signs or warning devices to alert an unsuspecting driver of the bridge’s presence or of any hazardous condition. The bridge seemed to be a mere extension of the roadway (see P-1, regarding which the photographer stated that she had to remove the leaves, etc., in order to take the picture of the hole.)”

      . Plaintiff suggests, alternatively, that the doctrine of strict liability would be applicable in this case under the pronouncements of the Louisiana Supreme Court in Jones v. City of Baton Rouge, Inc., 388 So.2d 737 (La.1980). However, he contends, and we agree, that there is ample evidence of negligence on the part of the Police Jury to allow us to decide this case under negligence theory. Consequently, we shall proceed accordingly.