text:
    Wilda PROVOST et al v. A. E. GRAVOIS AND SONS, INC. et al.
    No. 11845.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 7, 1981.
    Rehearings Denied June 15, 1981.

      Robert B. Keaty and Kerry E. Shields, Keaty, Keaty & Garvey, New Orleans, for plaintiffs-appellees.
    Kantrow, Spaht, Weaver & Walter, Gerald L. Walter, Jr., Baton Rouge, for defendants-appellants.
    Before REDMANN, BARRY and KLIE-BERT, JJ.
   KLIEBERT, Judge.

On February 13, 1976, Wilda Provost (hereafter Provost), as operator, with her three minor children, Sonia, Christy and Clara, as passengers, all plaintiffs-appellees, was operating an automobile north (towards front Vacherie) on Louisiana Highway 20, a two-lane highway. Following the Provost vehicle was a tractor-trailer driven by Charles Bovie (hereafter Bovie), and owned by A. E. Gravois & Sons, Inc., defendants-appellants. As Mrs. Provost approached her destination, she attempted to turn left into a driveway or roadway. At the same time, Bovie was operating the tractor-trailer in the extreme left or passing lane. The right-front fender of the truck struck the left side of the turning Provost vehicle.

Suit was filed by Wilda Provost and Car-ley Provost, her husband, individually and on behalf of the minor children, Sonia, Christy and Clara. Named defendants were Bovie, A. E. Gravois & Sons, Inc. (hereafter Gravois) and their insurer, Southwestern Insurance Company (hereafter Southwestern). They in turn filed a third party demand against Wilda and Car-ley Provost.

The jury found mutual fault on the part of Provost and Bovie and awarded damages of $10,000.00 for each of the children, Sonia, Christy and Clara. Cast in judgment for total damages of $30,000.00 were the defendants-appellants, Bovie, Gravois and Southwestern. There was also judgment under the third party demand in favor of these defendants and against Wilda and Carley Provost for one-half of the total award.

On appeal, defendants-appellants urge two specifications of error: (1) the evidence adduced at trial does not support the finding of negligence on defendants’ part and (2) the evidence does not support the damage award.

First, we will consider the negligence issue. Mrs. Provost’s version of the accident is as follows: The truck being operated by Bovie had been traveling behind her for several miles at a distance of four to five car lengths. She put her left-turn signal on approximately one hundred yards prior to reaching the driveway and came to a complete stop at the driveway while she allowed oncoming traffic to pass. After the oncoming vehicle passed, she checked the rear through her mirror, put her left hand out the window, then turned her head to see if the path was clear. As she was executing her turn, her vehicle was struck by Mr. Bovie’s truck. She denied hearing any horns or seeing the truck’s blinkers as it changed lanes to pass. She also stated that Mr. Bovie made the statement to her that he was sorry he couldn’t stop before hitting her.

The operator of the truck, Bovie, testified he had been following Mrs. Provost for approximately a mile and a half at a speed of 30-35 miles per hour. He had been wanting to pass her, but couldn’t because of oncoming traffic. As soon as the traffic was clear, he picked up speed, put on his left blinker, blew his horn, and proceeded to pass. When the front of his truck was about even with plaintiff’s left front door, Mrs. Provost turned left in front of him. He denied seeing Mrs. Provost come to a complete stop or seeing any brake lights, signal lights, or left-turn signal by Mrs. Provost. He further denied telling Mrs. Provost that he was sorry he was unable to stop before hitting her.

Olivia Scioneaux was the owner of the house adjacent to the roadway or driveway which was Mrs. Provost’s destination. While she did not see the collision, Mrs. Scioneaux stated she saw, through her window, Mrs. Provost come to a complete stop prior to attempting to turn. Additionally, she testified that she heard no horns prior to hearing the sound of the collision.

Apparently believing only part of Mrs. Provost’s testimony and only part of Mr. Bovie’s testimony, the jury found both parties were at fault in the accident.

Mrs. Provost’s credibility may have been considered impaired somewhat by her giving different accounts of the day’s events and her route during her deposition from that testified to at the trial. In addition, Dr. Olin Dart, an accident reconstruction expert, testified that under the facts as asserted by Mrs. Provost, the truck would either have had to stop or hit her from the rear rather than in the side as shown by the physical facts.

However, Mr. Bovie’s credibility may also have been impaired by his testifying that Mrs. Provost turned just as he was even with her left door, which is a physical impossibility given the 63 feet long skid-marks which were made by his truck prior to the point of impact and given the fact that the resting place of the vehicles was at the driveway’s entrance. In addition, Bovie stated in a deposition that he blew his horn twice before passing, but on trial, he stated that he blew the horn only once. Furthermore, Bovie admitted that he had seen the Provost vehicle slowing down, but maintained he did not see any brake lights or blinkers.

The Supreme Court has restricted the intermediate appellate court’s ability to change a trial court’s finding of fact only to instances where the trial court’s finding of fact was “clearly wrong.” Canter v. Koehring Company, 283 So.2d 716 (La.1973), and Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). Based upon the record before us, we believe there was evidence before the trier of the fact (the jury) which upon its reasonable evaluation of credibility, furnished a reasonable factual basis for the jury’s finding of mutual fault; hence, under the Supreme Court mandate, we cannot change the jury’s findings of fact.

Next, we consider the issue of quantum. Each minor child was awarded damages of $10,000.00. As is true for the appellate review of facts, there are restrictions imposed on the intermediate appellate court by the Supreme Court in the methodology to be followed in changing a damage award.

Article 1934(3) of the Civil Code provides in pertinent part as follows:

“In the assessment of damages under this rule, as well as in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury, while in other cases, they have none, but are bound to give such damages under the above rules as will fully indemnify the creditor, whenever the contract has been broken by the fault, negligence, fraud or bad faith of the debtor.”

As the Supreme Court deemed it necessary to effect a change in the philosophy for the review of damages awarded by the lower courts or juries, judges paraphrased this legislative language into jurisprudential guidelines for appellate review of damages. More specifically, Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), restated the principles first enunciated in Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971) as follows:

“(1) To modify the amount of an award for general damages, an appellate court must find that the trial judge or jury has abused the ‘much discretion’ accorded by the codal provision. (2) The awards in other cases serve only as an aid in determining whether there has been an abuse of discretion and rivet no steel frame of uniformity.”

and in the same case thereafter made the following observation:

“Recitation of the principles governing the legal issue presents no problem for appellate courts. It is the application of those principles to particular cases which has proved difficult on occasion. Two questions are especially troublesome. What, in a given case, constitutes an acceptable quantum judgment in the sense of its being neither excessive nor inadequate within the frame-work of the legally directed ‘much discretion’ accorded judge or jury? When do awards in other possibly similar, reported cases properly aid (or erroneously mislead) an appellate court in determining whether there has been an abuse of discretion by a given judge or jury?”

Thereafter, for further elaboration and guidance in the methodology for appellate review, the Supreme Court in Reck v. Stevens, 373 So.2d 498 (La.1979) quoted the following from the Coco decision, supra:

“We do re-emphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.”

To further illustrate its philosophy for review of quantum, the Supreme Court in Coco, supra, p. 334, quoted from some of its previous decisions as follows:

“... The question is not whether a different award might have been more appropriate, but whether the award of the trial court can be reasonably supported by the evidence and justifiable inferences from the evidence before it. That such evidence might also support a greater (or smaller) award will not justify a change in the amount by the appellate court. Bitoun v. Landry, supra at 279 [302 So.2d 278, La.1974].”

And also in Reck v. Stevens, supra p. 501, the Supreme Court quoted from its prior decisions as follows:

“Thus, the initial inquiry must always be directed at whether the trier court’s award for the particular injuries and their effects upon this particular injured person is, a clear abuse of the trier of fact’s ‘much discretion,’ La.Civ.C. art. 1934(3) in the award of damages. 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, Carollo v. Wilson, 353 So.2d 249 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977), or insufficient, Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967). Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case.
In the initial determination of excessiveness or insufficiency, an examination of prior awards has a limited function — if indeed the facts and circumstances of the prior awards are closely similar to the present. The 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, see Coco at 341 So.2d 334.
However, absent an initial determination that the trial court’s very great discretion in the award of general damages has been abused under the facts of this case, the reviewing court should not disturb the trier’s award. Wilson v. Magee, 367 So.2d 314 (La.1979).”

As we understand these rulings, they may be crystallized into one principle enunciated in Coco, supra, at page 335, to-wit:

“Nonetheless, the ultimate determination by an appellate court as to whether a given judge or jury abused their ‘much discretion’ as a matter of law is a judgment call ....” (Emphasis Supplied)

In making the “judgment call,” however, the reviewing intermediate appellate courts may not substitute its judgment for that of the trier of the case, rather, it is relegated to the position of determining whether the trier of the case has abused its “great discretion” as the judges having the last say in the matter may in their judgment believe that discretion to be. With these principles in mind, we proceeded to review the record here.

There is a paucity of evidence to support the damage awards to Sonia, Christy and Clara Provost. No expert medical testimony to substantiate physical injuries to any of the children was submitted. Mr. Bovie removed the children from the Provost automobile and testified that none of them was bleeding. Mrs. Provost stated that Christy had a scratch over an eye and the other two children “were bruised pretty bad,” with Sonia having bruises on her legs and an arm. Furthermore, the two children in the rear seat (Sonia and Clara) were thrown into the front seat. It is unclear as to whether the children were taken to the hospital, with Mrs. Provost stating that they were, but with Mrs. Scioneaux and Mr. A. E. Gravois stating that they were not. Mrs. Provost testified to Sonia’s having had nightmares nightly since the accident (a period of four years) and she did not have them prior to the accident. Based on this evidence, the jury awarded $10,000.00 to each child.

Were we the initial maker of the “judgment call” or the final authority on the “judgment call,” we could and would render an opinion stating that all of the awards are excessive. As an intermediate appellate court, however, we are neither and must instead determine first, whether the trier of the case “abused its much discretion,” and second, “articulate the basis used in fixing a different award, as in the judgment of the superior court is proper.”

Notwithstanding the paucity of the evidence here, we cannot conclude that the jury abused its “much discretion” in finding that all three of the children were in fact injured in the accident. In our judgment, however, the jury did abuse its “much discretion” in awarding $10,000.00 for the injuries sustained by Clara Provost and those sustained by Christy Provost, but did not abuse their “much discretion” in awarding $10,000.00 to Sonia for over 1000 nights of nightmares. Thus, we cannot disturb the award of $10,000.00 to Sonia Provost, but must articulate the basis for a different award to Christy and Clara.

Although believing $300.00 to be the right award for soft tissue injuries, this court reluctantly affirmed $2,000.00 for each of five persons in a minor accident because of constraints imposed by the Supreme Court on review of quantum, Sanders v. Hall, 345 So.2d 590 (4th Cir. 1977). The Supreme Court granted writs at 347 So.2d 248 with an order remanding “for consideration in the light of Art. 5, Section 10(B), Louisiana Constitution and Article 1934(3) of the Louisiana Civil Code.” On the remand at 350 So.2d 262, this Court reduced the district court award to $300.00 for each plaintiff. From that, we must accept as a matter of Louisiana Law that $2,000.00 is too high for simple soft tissue injuries. Then, from this court’s reduction to $300.00 each on remand, we must conclude that $300.00 is the highest possible award for such soft tissue injuries and a fortiori for mere bruises as here testified to. Accordingly, we conclude that the figure which in the judgment of the Supreme Court to be right for the injuries sustained by Christy and Clara Provost is $300.00 each.

Accordingly, the judgment is amended to read as follows:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the defendants pay unto Carley Provost in his capacity as Administrator of the estate of his minor children, Sonia Provost, Christy Provost and Clara Provost, the following: To Carley Provost as Administrator of the Estate of Sonia Provost the sum of $10,000.00; to Carley Provost as Administrator of the Estate of Christy Provost the sum of $300.00; and to Carley Provost as Administrator of the estate of Clara Provost the sum of $300.00; all sums with legal interest thereon from date of judicial demand until paid.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the defendants, A. E. Gravois & Sons, Inc., Charles Bovie and Southwestern Insurance Company, and against the plaintiffs, Wilda Provost and Carley Provost for one-half of the amounts awarded hereinabove.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the costs of court be paid by defendants, A. E. Gravois & Sons, Inc., Charles Bovie and Southwestern Insurance Company.
All costs of this appeal to be paid by appellants.

AMENDED AND AFFIRMED.

BARRY, Judge,

dissents in part.

I cannot agree with the majority conclusion “that $300 is the highest possible award for such soft tissue injuries” based upon the facts of Sanders v. Hall, 350 So.2d 262 (La.App. 4th Cir. 1977). In Sanders five people were occupants of a vehicle which was rear-ended by a bus that caused $111.26 damage to the automobile. All five claimed soft tissue injuries, were treated by a physician whose opinions have been questioned by this Court, all five claimants had the same number of diathermy treatments, none were x-rayed, and all were discharged on the same day. On remand from our Supreme Court the original award of $2,000 (345 So.2d 590) to each of the five plaintiffs was reduced to $300 to each plaintiff because of the . suspicious similarity of soft tissue injuries. ...” (emphasis added).

The present matter was heard by a jury. Plaintiffs’ vehicle was struck by defendant’s eighteen wheel tractor-trailer truck causing substantial impact. Two of the minor plaintiffs in the back seat were thrown into the front seat and “were bruised pretty bad” and the other child in the . front seat received a facial laceration and bruises. The testimony conflicts as to whether the children were taken to a hospital, but their mother (the driver testified they did go to the hospital after the accident and her testimony was obviously accepted by the jury which awarded $10,000 to each child. Conceded there is no medical testimony on the children’s injuries, but there is no suspicion that the children pretended to be hurt. The mere fact that plaintiff failed to produce medical testimony cannot exclude recovery for injuries. Pereira v. Herbert, et al, 59 So.2d 729 (Orleans App.1952). It is not controverted that the children were badly bruised, one child received a laceration, and another child experienced nightmares regularly since the accident.

I therefore find that the impact in Sanders v. Hall, supra, was much less severe than the type of traumatic impact experienced by these children. I agree with the award of $10,000 to the minor (Sonia) for suffering nightmares more than three years following the accident. However, as to the other two awards, Reck v. Stevens, 373 So.2d 498 (La.1979) requires that if the much discretion of the trial court is abused, then the award should be lowered to the highest point which is reasonable.

Soft tissue injuries, by their very nature, are often extremely painful, can be extensive (as here), and their duration prolonged depending upon location and depth of the injury. I feel the majority erred in applying an ironclad conclusion that $300 is the highest possible award for soft tissue injuries using the inapplicable factual comparison found in Sanders v. Hall, supra. I have articulated why I feel my brethren have abused their appellate discretion in reducing the $10,000 awards to $300 for each child. Considering the evidence in this record, the type of injuries sustained, and the status of the children, for the above reasons which include abuse of appellate discretion in reducing the jury award, I feel these two children (Christy and Clara) require an appropriate award of $2,500 for each child.

      . This particular article is found in Title IV of Book III which is entitled “Of Conventional Obligations” with the particular article being entitled “Measure of damages for breach of contract.”


source: Caselaw Access Project

author: GULOTTA, Judge.

license: Public Domain

text:
    FIRST NATIONAL BANK OF COMMERCE v. Benjamin BERNARD.
    No. 12389.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 12, 1981.
    Newman & Drolla, Mark C. Landry, New Orleans, for plaintiff-appellee.
    Benjamin Bernard, in pro. per.
   MOTION TO DISMISS

Before SAMUEL, REDMANN and GU-LOTTA, JJ.

GULOTTA, Judge.

Plaintiff-appellee, First National Bank of Commerce, has filed a supplemental motion to dismiss defendant’s devolutive appeal on the ground that it “was not timely perfected within the delay authorized by law...” In an earlier opinion denying plaintiff’s pri- or motion to dismiss, we noted that defendant’s petition for appeal was filed within the ten day appeal period applicable to city court judgments. Plaintiff has moved again for dismissal on the ground that although defendant’s motion was timely filed the trial judge did not sign an order of appeal until after expiration of the delay for taking the appeal.

Defendant, in proper person, filed a petition for appeal on November 21, 1980 within the delay for taking the appeal. This petition contains no language ordering the granting of a devolutive appeal and fixing a return date, but does contain a blank signature line over the word “judge”. The record also includes a second petition for appeal which contains an order granting appellant a devolutive appeal and fixing the return date as February 5, 1981. This appeal order was signed by the trial judge on January 5, 1981, after expiration of the appeal period. No filing date is stamped on this second petition for appeal.

In support of its motion to dismiss, plaintiff relies on two First Circuit cases holding that a devolutive appeal is perfected by the sighing or granting of the order of appeal within the delay for appeal, and not merely by the timely presenting of the motion and order of appeal to the clerk of court or the judge. In Scales v. State, 391 So.2d 871 (La.App. 4th Cir. 1980), writ granted, 396 So.2d 909 (La.1981), we held, however, that when a motion for appeal has been timely filed with the clerk, the failure of the trial judge to grant the motion until after the delay for appeal has passed does not automatically result in a dismissal of the appeal, since such an irregularity is not imputable to the appellant. See LSA-C. C.P. Art. 2161.

Pursuant to our holding in Scales, supra, we decline to dismiss this appeal. Even though the first motion for appeal contained no language expressly ordering the granting of an appeal, it prayed for an appeal returnable to this court and contained a line for the judge’s signature. Under these circumstances, we conclude the appeal will not be dismissed.

The motion to dismiss is denied.

MOTION DENIED

      . No. 12389, handed down April 7, 1981, La. App., 396 So.2d 1010.

      . Traigle v. Gulf Coast Aluminum Corp., 391 So.2d 1290 (La.App. 1st Cir. 1980); Abernathy v. Stanley A. Lafargue and Associates, Inc., 382 So.2d 1002 (La.App. 1st Cir. 1980).

      . In Scales, supra, we disapproved the First Circuit’s rule and expressly overruled Thomas v. Berman, 308 So.2d 797 (La.App. 4th Cir. 1975), which is also relied on by defendant in support of its motion to dismiss.


author: WATKINS, Judge.

text:
    Rose SCHIRO v. Mr. and Mrs. Anthony VIOLA.
    No. 14477.
    Court of Appeal of Louisiana, First Circuit.
    May 12, 1981.

      Ron Macaluso, Hammond, for appellant.
    Louis L. Sherman, Jr., Kentwood, for defendants.
    Before ELLIS, COLE and WATKINS, JJ.
   ON RULE TO SHOW CAUSE

WATKINS, Judge.

This court ordered appellant, Mrs. Rose Schiro, to show cause why her appeal should not be dismissed for the reason that this court lacked jurisdiction, there being no signed judgment. The rule to show cause was issued by this court on its own motion on March 26, 1981. Thereafter, on March 31,1981, appellant and appellees obtained a signed judgment, which was filed in the record on appeal which had previously been lodged on March 25, 1981.

The trial court gave oral reasons for judgment at the conclusion of the trial on the merits held January 12, 1981, stating in the last sentence of its oral reasons of some three and one-half pages: “Therefore, there is judgment for the defendant.” On January 26, 1981, the trial judge signed an appeal order from a judgment for appellees asserted in the motion for appeal to have been rendered on January 12, 1981.

The language of the oral reasons contains no decretal language other than the phrase “... there is judgment for the defendant.” An appeal cannot be taken from reasons for judgment, but must be taken from the judgment itself. Pearce v. Johnson, 250 So.2d 567 (La.App. 3d Cir. 1971). Furthermore, under LSA-C.C.P. art. 1911, an appeal may be taken only after a final judgment has been signed by the trial judge. That article, quoted in full, reads as follows:

“Except as otherwise provided by law, every final judgment shall be signed by the judge. For the purpose of an appeal as provided in Article 2083, no appeal may be taken from a final judgment until the requirement of this Article has been fulfilled.”

The trial court did not sign the judgment before the appeal order was signed and the appeal was lodged. Thus, there was no appeal, and the appeal order, there having been no final judgment from which to appeal, was a nullity. This court, therefore, lacks jurisdiction to entertain the appeal, the trial court continuing to have jurisdiction until a (valid) order of appeal is granted. LSA-C.C.P. art. 2088.

The appeal, not complying with C.C.P. art. 1911, is an utter nullity. We are mindful of the order by this state’s Supreme Court in In the Matter of Brandy Lynn Parker, 399 So.2d 607 (La.1981), reinstating an appeal in a case apparently similar to the present one, except that in Parker, the judgment was ultimately signed before the appeal was lodged. We are unaware of what consideration the Supreme Court may have had in mind in that case, the Supreme Court not having written an opinion or given its reasons. Suffice it to say there may have been factors considered by the Supreme Court that distinguished Parker from the present case, and that the law is quite clear that in the present ease there is no valid appeal.

Accordingly, the appeal of Rose Schiro is dismissed and the matter remanded to the trial court, all costs of this attempted appeal to be borne by Mrs. Rose Schiro.

APPEAL DISMISSED.


author: ELLIS, Judge:

text:
    Linda Trahan WHIPPLE v. Keith M. WHIPPLE.
    No. 14455.
    Court of Appeal of Louisiana, First Circuit.
    May 12, 1981.
    Stephen M. LaRussa, Houma, for plaintiff and appellee.
    Ernest A. Kelly and Jules Boquet, Hou-ma, for defendant and appellant.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

This is a suit on two promissory notes, brought by Linda Trahan Whipple against Keith M. Whipple. Mr. Whipple then filed a reconventional demand against plaintiff. Plaintiff filed a dilatory exception of vagueness to the reconventional demand, which was maintained, and defendant was ordered to amend his reconventional demand on or before January 9, 1981, or have the demand dismissed. No amendment was filed by Mr. Whipple, and, on January 21, 1981, plaintiff moved for and obtained an ex parte order dismissing the reconventional demand without prejudice. From the judgment of dismissal, defendant has appealed.

Plaintiff has moved to dismiss the appeal on the ground that the judgment appealed from is interlocutory in nature and does not cause irreparable injury. Plaintiff relies on Simmons v. Dixon, 306 So.2d 67 (La.App. 1st Cir. 1974), which held that an ex parte judgment dismissing a suit without prejudice for failure to prosecute for five years was interlocutory and non-appealable.

We find, however, that this case is controlled by People of Living God v. Chantilly Corporation, 251 La. 943, 207 So.2d 752 (1968), in which the Supreme Court held, in a case similar to this case, that a judgment of dismissal without prejudice is an appeal-able judgment.

The motion to dismiss is therefore denied, at plaintiff’s cost.

MOTION DENIED.


author: MARVIN, Judge.

text:
    Wiley J. GATES and Sidney R. Smith, Plaintiffs-Appellants, v. G. M. S. DEVELOPMENT CORPORATION, Defendant-Appellee.
    No. 14519.
    Court of Appeal of Louisiana, Second Circuit.
    April 27, 1981.
    En Banc. Rehearing Denied June 4,1981.

      Bruscato & Loomis by Philip T. Deal and Anthony J. Bruscato, Monroe, for plaintiffs-appellants.
    Hudson, Potts & Bernstein by B. Roy Liuzza, Monroe, for defendant-appellee.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   MARVIN, Judge.

Lessee’s assignors, as plaintiffs, appeal from a rejection of their demands for a declaratory judgment of a restrictive use provision in a 1967 lease in a Monroe shopping center. We affirm a judgment upholding this restrictive use provision in the lease:

“It is understood, and the Tenant so agrees, that the leased premises, during the term hereof, shall be used and occupied by the Tenant only for the purpose of: operating a nationally franchised ‘Shakey’s Pizza Parlor’ and for no other purpose or purposes.” Emphasis supplied.

Lessee lost its Shakey’s franchise in 1979 when it failed to pay franchise royalties. The nominal plaintiffs, Gates and Smith, hereafter called lessee, then bought the stock of lessee and began operating the restaurant under the name, Rocky’s Pizza and Game Room. When the lessor learned of this development, lessor inquired if lessee was operating as “Rocky’s”. Lessee confirmed that it was using the premises as “Rocky’s” and not as “Shakey’s”. The lessor then informed the lessee that the Sha-key’s franchise was very important to the lessor’s development of the shopping center. Citing the use provision of the lease, the lessor further informed lessee’s representative that the operation of “Rocky’s” constituted a default of the lease agreement and that if such default was not corrected within the 30-day cure provision of the lease, legal action would follow. Shortly thereafter (but more than 30 days after the letter) plaintiff ceased operations under the name of “Rocky’s” and filed this suit for declaratory judgment.

The defendant lessor reconvened and sought cancellation of the lease, alleging the violation of the use provision. The trial court correctly found no ambiguity in the use restriction and held the lessee to the restrictive use. Dissolution of the lease was denied, however, because the contrary use as “Rocky’s” had terminated before the case was tried. Only the lessee appeals.

Relying on cases arising under CC 2711, the lessee contends that the lessor is required to show that it will suffer a loss because of the operation of the business under a name other than Shakey’s in order to enforce the use restriction. The cases cited by lessee, however, do not stand for the proposition that a tenant may continue to use leased premises in violation of use restrictions in the lease. These cases indicate that the dissolution of the lease may be too drastic a remedy where no loss is suffered by the lessor. The lessor here has not appealed and does not seek a dissolution of the lease, but is apparently satisfied with the result below which impliedly, if not expressly, upholds the use restriction and the obligation of the lessee to pay rent.

Our examination of CC 2711, in the light of CC 2710, convinces us that lessee’s argument, that the lessor is required to show a loss before lessor can enforce the use restriction, is without merit. CC 2711 reads:

“If the lessee makes another use of the thing than that for which it was intended, and if any loss is thereby sustained by * the lessor, the latter may obtain the dissolution of the lease.
“The lessee, in that case, shall be bound to pay the rent, until the thing is again leased out; and the lessee is also liable for all the losses which the owner may have sustained through his misconduct.”

The explanatory note of the asterisk reads:

“ *Note error in English translation of French text; ‘and if any loss is thereby sustained by’ should be ‘or a use which may cause damage to.’ ”

The clear language of CC 2711 requires a showing of loss or damage only where the lessor seeks to . obtain the dissolution of the lease.” As we have noted, the lessor here has abandoned its efforts to dissolve the lease. CC 2710, the general and the governing article, binds the lessee to

“. .. enjoy the thing leased as a good administrator according to the use for which it was intended by the lease [and] ... to pay the rent at the terms agreed on.” Emphasis supplied.

The unequivocal language of the use provision allows only the operation of a nationally franchised Shakey’s ■Pizza Parlor and no other. ■ The loss of the Shakey’s franchise was not caused by the franchisor, but by the lessee-franchisee’s voluntary neglect or refusal to pay the franchise fees. Under these circumstances, there is no merit in the equitable arguments of lessee that value of the Shakey’s name has recently declined and that it is unreasonable to restrict lessee’s use to a Shakey’s Pizza Parlor because of economic detriment and because the lease contemplates that lessee might operate under a different trade name. The provisions in the lease supporting lessee’s equitable arguments, more importantly, require that any other use or change of name be with the express consent of the lessor. Being the law between these parties, and no consent being alleged or shown to change the restrictive provision of the lease, the provision will be upheld. CC 1901; Louisiana Nat. Leasing v. Family Pools, Inc., 345 So.2d 480 (La.1977). The trial court did not err.

At appellants’ cost, judgment is AFFIRMED.

      . These cases are:

        Wilson v. Cost + Plus of Vivian, Inc., 375 So.2d 683 (La.App. 2d Cir. 1979)

        Illinois Cent. R. Co. v. International Harvester, 368 So.2d 1009 (La.1979)

        Riverside Realty Co. v. National Food Stores of La., Inc., 174 So.2d 229 (La.App. 4th Cir. 1965)

        Arbo v. Jankowski, 39 So.2d 458 (La.App. 1949)

        Boh v. Pan American Petroleum Corporation, 128 F.2d 864 (5th Cir. 1942)

        Selber Bros., Inc. v. Newstadt’s Shoe Stores, 194 La. 654, 194 So. 479 (1940)

        New Orleans & C. R. Co. v. Darms, 39 La. Ann. 766, 2 So. 230 (1887)
      These cases are inapposite to the proposition that a lessee may continue use of a premises in violation of the lease. For example, in the leading case of New Orleans & Carrolton R. Co. v. Darms, the lessor was denied dissolution of a lease because of a use violation but was granted an injunction to prohibit lessee from continuing the use violations. An injunction likewise issued in Boh to compel the lessee to comply with the use provision in the lease. In the recent Illinois Cent. R. Co. v. International Harvester, supra, the court more recently indicated in dicta that a mere use violation under 2711 might call for a lesser remedy than cancellation:
      “If unauthorized use of the premises were the only bases for the dissolution proven in the instant case we might agree that a less drastic remedy would be more appropriate.”

      An injunction, as in Darms and Boh, would be less drastic than dissolution. The case of Riverside Realty Co., supra, did not involve dissolution or the right to operate in violation of a use provision in the lease. Wilson v. Cost + Plus of Vivian, Inc., supra, concerned not a use provision, but whether or not there was an implied obligation of continuous use on the part of the lessee.


author: SWIFT, Judge. GUIDRY, Judge, LABORDE, Judge,

text:
    Mary Alice HEBERT, Plaintiff-Appellant, v. James F. BREAUX, Jr., et al., Defendants-Appellees.
    No. 8120.
    Court of Appeal of Louisiana, Third Circuit.
    May 6, 1981.
    Writ Denied June 22, 1981.

      Michael Harson, Lafayette, for plaintiff-appellant.
    Onebane, Donohoe, Berrand, Torian, Diaz, McNamara & Abell, Frank X. Neuner, Voo-rhies & Labbe, John N. Chappuis, McBride & Brewster, Norman P. Foret, Lafayette, for defendants-appellees.
    Before GUIDRY, SWIFT, STOKER, DOUCET and LABORDE, JJ.
   SWIFT, Judge.

In this suit plaintiff, Mary Alice Hebert, seeks recovery under the uninsured motorist provisions of a policy of insurance issued by Bellefonte Insurance Company, hereafter Bellefonte, to her father, Alfred Hebert. The trial court granted summary judgment dismissing plaintiff’s claim against Belle-fonte. Plaintiff appeals.

There are three issues presented on appeal:

(1) Is plaintiff afforded coverage under the uninsured motorist provisions of the automobile insurance policy issued by Bellefonte to plaintiff's father, Alfred Hebert?
(2) Assuming coverage is afforded, can plaintiff “stack” the UM coverage provided on two vehicles insured by the subject policy resulting in UM coverage of $20,-000.00 for each person and $40,000.00 for each occurrence?
(3)Assuming coverage is afforded, is plaintiff entitled to recover penalties and attorney’s fees under the circumstances of the present suit?

The parties stipulated to the facts pertinent to a resolution of the issues presented and submitted the matter to the trial court for its decision. The trial court, without rendition of reasons, dismissed plaintiff’s claim concluding that the uninsured motorist provisions of the insurance policy issued by defendant afforded no coverage to the plaintiff. Thus, the lower court did not reach the “stacking” issue or the issue of penalties and attorney’s fees.

According to the record, on September 13, 1977, James F. Breaux drove his automobile over the center line of Cameron Street in Lafayette, Louisiana, striking plaintiff’s vehicle head-on. The negligence of Breaux is undisputed. The parties stipulated that plaintiff’s injuries entitled her to recover damages in excess of $36,000.00.

At the time of accident, plaintiff was thirty-two years old and resided with her parents in Lafayette. Ms. Hebert owned the 1975 Chevrolet Nova which she was driving at the time of the collision. It is undisputed that plaintiff is a member of her parents’ household.

Plaintiff settled her claims against Breaux and his liability insurer, Dairyland Insurance Company, for $5,000.00. In addition, plaintiff settled her claims against her own liability insurer, State Farm Mutual Automobile Insurance Company for $10,-000.00 under that policy’s uninsured motorists provisions. In each of the aforesaid settlements, plaintiff reserved her rights against all other remaining parties in the litigation. Subsequently, plaintiff’s claims against Breaux, Dairyland, and State Farm were dismissed by the trial court.

On February 4,1977, Bellefonte issued an automobile liability insurance policy to plaintiff’s father, Alfred Hebert, which was in full force and effect on the date of plaintiff’s accident. The subject policy provided coverage for two vehicles owned by Mr. Hebert, specifically, a 1974 Toyota pickup truck and a 1973 Chevrolet Impala. Further, the policy provided uninsured motorists coverage in the amount of $10,000.00 ' for each person and $20,000.00 for each accident.

IS PLAINTIFF AFFORDED COVERAGE UNDER THE UNINSURED MOTORIST PROVISIONS OF THE BELLE-FONTE POLICY?

The plaintiff contends on appeal that the trial court erred in its conclusion that she was not afforded coverage under the uninsured motorists provisions of the policy issued by Bellefonte. Under the pertinent terms of the policy, an “insured” for the purposes of UM coverage is defined as:

“(a) the named insured and any relative;” Further, the policy defines a “relative” as “a relative of the named insured who is a resident of the same household;”.

Under the facts stipulated to by the parties, plaintiff is an insured for the purposes of UM coverage under the Bellefonte policy absent any applicable exclusions. The only exclusion pertinent to the plaintiff provides:

“Exclusions: This policy does not apply under Part IV:
(a)to bodily injury to an insured while occupying an automobile (other than an insured automobile) owned by the named insured or a relative, or through being struck by such an automobile; ...”

As we appreciate defendant’s argument in support of the trial court’s judgment, defendant contends that although plaintiff falls within the policy’s definition of an “insured”, she is precluded from coverage because she was not driving an “insured automobile” at the time of the accident. An “insured automobile” as defined by the policy means:

“ ‘insured automobile’ means:
(a) an automobile described in the policy for which a specific premium charge indicates that coverage is afforded,
(b) a private passenger, farm or utility automobile, ownership of which is acquired by the named insured during the policy period, provided
(1) it replaces an insured automobile as defined in (a) above, or
(2) the company insures under this Coverage all private passenger, farm and utility automobiles owned by the named insured on the date of such acquisition and the named insured notifies the company during the policy period or within 30 days after the date of such acquisition of his election to make the Liability and Uninsured Motorist Coverages under this and no other policy issued by the company applicable to such automobile,
(c) a temporary substitute automobile for an insured automobile as defined in (a) or (b) above, and
(d) a non-owned automobile while being operated by the named insured; and the term ‘insured automobile’ includes a trailer while being used as an automobile described in (a), (b), (c) or (d) above, but shall not include:
(1) any automobile or trailer owned by a resident of the same household as the named insured,
(2) any automobile while used as a public or livery conveyance, or
(3) any automobile while being used without the permission of the owner.”

In other words, Bellefonte maintains that in order to recover under the subject policy’s UM provisions, the plaintiff must not only be within the policy’s definition of an “insured”, but also, be driving an “insured automobile” as defined in said policy. This argument has been rejected by our courts on numerous occasions. At the outset, we observe that the exclusionary provision of the subject policy as quoted above has been declared to be against public policy as expressed in LSA-R.S. 22:1406(D). See Guillot v. Travelers Indemnity Company, 338 So.2d 334 (La.App. 3 Cir. 1976), writ refused 341 So.2d 408 (La.1977); Bourgeois v. United States Fidelity and Guaranty Company, 385 So.2d 584 (La.App. 4 Cir. 1980); Griffin v. Armond, 358 So.2d 647 (La.App. 1 Cir. 1978); Thomas v. Nelson, 295 So.2d 847 (La.App. 1 Cir. 1974), writ refused 299 So.2d 791 (La.1974); Elledge v. Warren, 263 So.2d 912 (La.App. 3 Cir. 1972), writ refused, 262 La. 1096, 266 So.2d 223. The intent of the statute is to provide protection to an insured who becomes the innocent victim of the negligence of an uninsured motorist. As long as the claimant is an “insured” under the policy, he is entitled to UM coverage whether or not he is driving an automobile insured by the policy. Any exclusion providing more restricted UM coverage is in derogation of the statute. Elledge v. Warren, supra; Griffin v. Armond, supra; Bourgeois v. United States Fidelity and Guaranty Company, supra. In Bourgeois, supra, our brethren of the Fourth Circuit expressed agreement on this issue with this court and our brethren of the First Circuit stating:

“. . . Although neither the Supreme Court, nor this Court, have passed on the issue confronting us in the instant case, our brothers on the First and Third Circuits have concluded that an exclusion for uninsured motorist coverage of an insured as defined in the policy is against public policy. See Griffin v. Armond, 358 So.2d 647 (La.App. 1 Cir. 1978); Thomas v. Nelson, 295 So.2d 847 (La.App. 1 Cir. 1974), writ, denied [La.] 299 So.2d 791; Elledge v. Warren, 263 So.2d 912 (La. App. 3 Cir. 1972), writ refused [262 La. 1096], 266 So.2d 223.
“To reach this conclusion, these cases relied on the following statement by the Supreme Court in Booth v. Fireman’s Fund Insurance Company, 253 La. 521, 218 So.2d 580 (1968):
‘We conclude that the intent of our uninsured motorist statute and the policy endorsement issued thereunder is to afford protection to the insured when they become the innocent victims of the negligence of uninsured motorists.’ 218 So.2d at 583.
“In Elledge v. Warren, supra, the Third Circuit concluded:
‘(t)he intent of the coverage is to protect the insured at all times against the generalized risk of damages at the hands of the uninsured motorists and not to limit coverage to certain situations or to a certain degree of risk of exposure to the uninsured motorist. * * *
“It follows that any policy provisions which narrows the coverage mandated by the statute will not be enforced. * * *
“There is no requirement in the statute that the insured have any relation, at the time of the accident, with any vehicle he owns and that is insured with the insurer.’ 263 So.2d at 918.
“We are in agreement with the First and Third Circuits.
“The statute requires that automobile liability policies provide UM coverage for the protection of persons insured under the policy, unless the named insured rejects the UM coverage. As long as a claimant is insured under the policy, he is entitled to UM coverage whether or not he is driving a vehicle listed or covered under the policy, unless the named insured has rejected the UM coverage. UM coverage, as required under the statute, is designed to protect the persons insured under the policy. Any exclusion providing for more restricted UM coverage is in derogation of the statute.” (Emphasis ours.)

Therefore, we conclude that the jurisprudence clearly confirms that the plaintiff herein is afforded UM coverage under the Bellefonte policy issued to her father, Alfred Hebert.

CAN PLAINTIFF STACK THE UM COVERAGE PROVIDED BY THE BELLEFONTE POLICY?

The plaintiff contends that she should be allowed to “stack” the UM coverages provided by the policy issued by defendant to plaintiff’s father which provides UM protection on two vehicles. As previously stated, this issue was not reached by the trial court. The insurance policy issued by Bellefonte to Mr. Hebert contains the following language to prohibit “stacking”:

“(a) The limit of liability for uninsured motorists coverage stated in the declarations as applicable to ‘each person’ is the limit of the company’s liability for all damages, including damages for care or loss of services, because of bodily injury sustained by one person as the result of any one accident and, subject to the above provision respecting each person, the limit of liability stated in the declarations as applicable to ‘each accident’ is the total limit of the company’s liability for all damages, including damages for care or loss of services, because of bodily injury sustained by two or more persons as the result of any one accident.”

The subject policy was issued on February 4, 1977 and expired one year from the date of issuance. The accident which precipitated the present litigation occurred on September 13, 1977. On September 9, 1977, Act 63 of 1977 which amended LSA-R.S. 22:1406 became effective. Act 623 provided, among other things, that the policy limits of UM coverage shall not be increased because multiple vehicles are covered by the policy. Bellefonte argues that since the policy at issuance prohibited “stacking” and since the collision giving rise to the instant suit occurred after the effective date of the 1977 amendment to LSA-R.S. 22:1406, the plaintiff should not be allowed to “stack” the limits of her father’s policy in that the policy provisions were not inconsistent with the law in effect at the time of the accident.

The precise question was before this court in Thibodeaux v. Olivier, 394 So.2d 684 (La.App. 3 Cir. 1981), and we held that “stacking” was not permitted under similar circumstances. Our supreme court has denied an application for writs therein. (1981). We adhere to our decision in Thibo-deaux and conclude that the plaintiff’s recovery herein against Bellefonte is limited by the latter’s policy to $10,000.00.

IS PLAINTIFF ENTITLED TO RECOVER PENALTIES AND ATTORNEY’S FEES?

Plaintiff contends that she is entitled to recover penalties and attorney’s fees because of the alleged arbitrary and capricious refusal by Bellefonte to pay any benefits due her under the subject policy. We note that the parties stipulated to the pertinent facts of the instant case, therefore, the only issues presented concerned the interpretation of the Bellefonte policy in the light of settled jurisprudence. In Carney v. American Fire and Indemnity Company, 371 So.2d 815 (La.1979), the Louisiana Supreme Court stated:

“An insurer’s liability to pay penalties and attorney’s fees is based on whether their action in denying coverage is arbitrary, capricious and without probable cause. LSA-R.S. 22:658. An insurer must take the risk of misinterpreting its policy provisions. If it errs in interpreting its own insurance contract, such error will not be considered as a reasonable ground for delaying the payment of benefits, and it will not relieve the insurer of the payment of penalties and attorney’s fees. Albert v. Cuna Mutual Insurance Society, 255 So.2d 170 (La.App. 3 Cir. 1971), and cases therein cited.”

In the suit presently before this court Belle-fonte relied upon the provisions of its insurance policy to deny plaintiff UM coverage. However, the terms relied upon had previously been held by the appellate courts of this state to be null and void and in derogation of public policy. We therefore conclude that Bellefonte acted arbitrarily and capriciously in refusing to pay the $10,-000.00 UM benefit to which the plaintiff is entitled. We consider that an award of $2,000.00 for her attorney’s fee will adequately compensate for the services rendered by plaintiff’s counsel at the trial level and on appeal.

As indicated at the outset of this opinion, this matter comes to us on appeal from a summary judgment rendered in favor of appellee, Bellefonte, dismissing plaintiff’s claim against that insurance company. Ordinarily, upon finding that a motion for summary judgment has been improvidently granted by the trial court this court would not dispose of the case on the merits, but rather remand the suit for further proceedings. However, in the instant case, we observe that the parties filed a joint motion for summary judgment on an agreed stipulation of facts not limited to the resolution of the motion. Specifically, the joint motion states:

“NOW INTO COURT, through undersigned counsel, comes Plaintiff, MARY ALICE HEBERT, and Defendant, BEL-LEFONTE INSURANCE COMPANY, who respectfully represent that certain agreements have been reached by and between the parties, in order to avoid any unnecessary litigation, court time and expense and that in connection with said agreements, would desire to present this matter for final resolution to this Court by means of a Joint Motion for Summary Judgment ...
“Inasmuch as this matter has resolved itself into primarily issues of law and contractual interpretation, the parties have agreed to present this matter to this Court by way of stipulations of fact and the introduction of certain uncontested documents and to ask this Court to render a summary judgment in favor of the party in whose' favor this Court determines the law and evidence to be in favor of.” (Emphasis ours.)

Under such circumstances and under the provisions of LSA-C.C.P. Article 2164, we consider that a remand of this case for further proceedings would be useless, result in unjustifiable delay and would impede the administration of justice. We find support for our conclusion in this regard in the recent decision on rehearing in the case of DeFelice v. Garon and Carimi, 395 So.2d 658, (La.1981) wherein the court stated:

“ ... An opinion reversing a summary judgment in favor of one party should not be written in terms that may result in a final determination (as the law of the case) granting in effect the benefit of an affirmative adjudication in favor of the opponent to the motion, unless the issues presented are purely legal and utterly devoid of factual considerations.”

For the above reasons, the decree of the trial court granting summary judgment in favor of the defendant is reversed and set aside and it is now ordered, adjudged, and decreed that:

There be judgment rendered herein in favor of plaintiff, Mary Alice Hebert, and against the defendant, Bellefonte Insurance Company, in the full sum of Ten Thousand and No/100 Dollars ($10,000.00), plus a penalty of Twelve Per Cent (12%) thereof and an attorney’s fee in the amount of Two Thousand and No/100 Dollars ($2,000.00), with legal interest on all amounts from date of judicial demand at the rate of Seven Per Cent (7%) per annum until September 12, 1980, and thereafter at the rate of Ten Per Cent (10%) per annum until paid. Defendant is cast for all costs incurred at the trial level and on appeal.

REVERSED AND RENDERED.

STOKER, J., concurs.

GUIDRY, J., concurs in part and dissents in part and assigns reasons.

LABORDE, J., concurs in part and dissents in part and assigns reasons.

GUIDRY, Judge,

concurring in part and dissenting in part.

I fully concur with the conclusions of the majority that plaintiff is afforded coverage under the uninsured motorist provisions of the automobile insurance policy issued by Bellefonte to plaintiff’s father, Alfred Hebert, and that she is entitled to recover penalties and attorney’s fees for Belle-fonte’s arbitrary and capricious refusal to pay benefits due under that policy. However, I respectfully dissent from the majority’s conclusion that plaintiff, under the particular circumstances of this case, cannot stack the UM coverages.

The insurance policy issued by Bellefonte to Mr. Hebert contains the following language which seeks to prohibit “stacking”:

“(a) The limit of liability for uninsured motorists coverage stated in the declarations as applicable to ‘each person’ is the limit of the company’s liability for all damages, including damages for the care or loss of services, because of bodily injury sustained by one person as the result of any one accident and, subject to the above provisions respecting each person, the limit of liability stated in the declaration as applicable to ‘each accident’ is the total limit of the company’s liability for all damages, including damages for care or loss of services, because of bodily injury sustained by two or more persons as the result of any one accident.”

The subject policy was issued on February 4, 1977 and expired one year from the date of issuance. The accident which precipitated the present litigation occurred on September 13, 1977. On September 9, 1977, Act 623 of 1977 which amended LSA-R.S. 22:1406 became effective. Act 623 restricted the applicability of “stacking” to certain specific situations, which are admittedly not applicable in this case. My brethren of the majority conclude that since the policy at issuance prohibited “stacking” and since the accident giving rise to the instant suit occurred after the effective date of the 1977 amendment to LSA-R.S. 22:1406, the plaintiff cannot “stack” the limits of her father’s policy in that the policy provisions were not inconsistent with the law in effect at the time of the accident. This same result was reached under similar factual circumstances in the case of Thibodeaux v. Olivier and Fireman’s Fund Insurance Company, 394 So.2d 684 (La.App.1981). For the reasons set forth hereafter I respectfully disagree with the result reached on this issue in this case and in Thibodeaux, supra.

Although the terms of the subject policy seek to prohibit “stacking”, at the time the subject policy was issued, the courts of our state had determined that “stacking” was not prohibited by the provisions of the Louisiana Insurance Code. See Barbin v. United States Fidelity and Guaranty Co., 315 So.2d 754 (La.1975); Wilkinson v. Fireman’s Fund Insurance Co., 298 So.2d 915 (La.App. 3rd Cir. 1974), writ granted 302 So.2d 304 (La.1974), dismissed, 309 So.2d 657 (La. 1974). In fact, at the time the policy was issued, such policy provisions, according to numerous appellate decisions, were in derogation of the provisions of the applicable law, specifically, LSA-R.S. 22:1406 as amended by Act 154 of 1974. See Anderson v. West, 354 So.2d 636 (La.App. 1st Cir. 1977), writ refused, 356 So.2d 1013 (La. 1978); Hayden v. Torrence, 355 So.2d 1362 (La.App. 1st Cir. 1978), writ refused, 357 So.2d 1166, 1169 (La.1978). Our brethren of the First Circuit in Anderson, supra, considered the issue of stacking under LSA-R.S. 22:1406(D) as amended by Act 154 of 1974 stating:

“The permissibility of stacking had already been jurisprudentially approved prior to the 1974 session of the Louisiana Legislature. Considering the particularity with which the legislature by Act 623 of 1977, Regular Session, prohibited stacking, we must conclude that if the legislature had intended to preclude stacking by the 1974 act, that it would have so said, as it seemingly has done by Act 623 of 1977. Therefore, regardless of any possible interpretation of Act 154 of 1974, and regardless of the broadness of the language contained therein, we are of the opinion that it was not the intention of the legislature in 1974 to prohibit stacking. The public policy of Louisiana as enacted bv the leeislature and interpreted bv the Courts provided that stacking was permissible, and anv language contained in insurance policies to prohibit stackiner and avoid a stated policy of the state was null and void. Thus, we now hold that anv laneruaere in the instant Hartford policy intended to prohibit stackiner is null and void.” (Emphasis ours)

I fully agree with the findings of the Anderson court and would conclude that the provisions of the Bellefonte policy which sought to prohibit “stacking” were of no effect as contra to the public policy.

It is well settled that Louisiana’s laws are considered as written into all insurance policies. Thus, the Insurance Code is considered to form part of all insurance contracts as if written into them. See Succession of Feist, 274 So.2d 806 (La.App. 4th Cir. 1973), writ granted, 277 So.2d 670 (La. 1974), aff’d in part and reversed in part, 287 So.2d 514 (La.1973); Webb v. Zurich, 251 La. 558, 205 So.2d 398 (La.1967). LSA-R.S. 22:623 specifically provides that no insurance contract shall contain any provision inconsistent with or contradictory to any standard provision used or required to be used by the applicable chapter(s) of the Insurance Code. The quoted provisions of the Bellefonte policy when issued and delivered were clearly inconsistent with and contradictory to the provisions of LSA-R.S. 22:1406 as judicially interpreted and therefore, should be considered as not written since stipulations in an insurance policy are without legal effect if contrary to law. Webb v. Zurich Insurance Company, supra.

Bellefonte asserts that the law applicable to the present litigation is that in force at the time of the accident, thus, plaintiff is prohibited from “stacking” due to Act 623 of 1977. I cannot agree. A substantive amendment has no retroactive effect on existing insurance contracts. O’Banion v. Allstate Insurance Company, 347 So.2d 878 (La.App. 3rd Cir. 1977); Ryder v. Trisler, 367 So.2d 1257 (La.App. 3rd Cir. 1979); Manuel v. American Indemnity Company, 368 So.2d 1200 (La.App. 3rd Cir. 1979). In Ryder, supra, our court considered whether or not the provisions of Act 154 of 1974 applied to insurance policies issued before the effective date of the Act and concluded that the provisions of that amendment applied only to policies issued after its effective date. Although not the precise issue before the Court, the Louisiana Supreme Court in Courville v. State Farm Automobile Insurance Company, et al., 393 So.2d 703 (La.1981) painstakingly indicated an adherence to the general rule that insurance policies shall be interpreted in light of the law existing at the time of issuance of said policies not as of the time of the accident as defendant herein suggests. In O’Banion, supra, this court confronted a factual situation which presented exactly opposite circumstances as in the instant case. There, our court determined that a statutory amendment, which if applied retroactively to a policy, would give the insured added benefits which he had not expected to receive, which the insurer had not agreed to pay, and for which no premiums were paid, cannot be construed as amending an insurance contract since it would impair the obligations of that contract by imposing a more onerous obligation on the insurer which neither party had contemplated or agreed to at the time the policy was issued. In the suit presently before this court, the defendant knew at the time the policy was issued that it was subjected to the risk of “stacking” the UM coverage provided by the subject policy and applicable to the two vehicles owned by Mr. Hebert. Further, Mr. Hebert presumably contracted for such coverage contemplating his right to “stack” the UM coverage. Just as this court determined in O’Banion, supra, that the retroactive application of a statutory amendment may not bestow additional benefits not contracted for by the parties to the agreement, I would conclude that a statutory amendment may not be applied retroactively which would operate to take away “bargained-for” benefits flowing to the insured.

In summary, I would find that- the policy provisions which seek to prohibit “stacking” were contrary to public policy when the policy was issued and delivered and are therefore invalid and of no effect. Further, I would conclude that the relationship of the parties to the subject insurance agreement is governed by the applicable provisions of the Louisiana Insurance Code as existing at the time the subject policy was issued. For these reasons I respectfully disagree with the conclusion of the majority that plaintiff is not entitled to stack the UM coverage of the Bellefonte policy.

LABORDE, Judge,

concurring in part and dissenting in part.

With the majority’s conclusion, that plaintiff is afforded UM coverage under the policy issued by Bellefonte to her father, and that she is entitled to recover penalties and attorney’s fees, I fully agree.

I respectfully disagree with the majority’s conclusion that plaintiff is not entitled to stack the UM coverage under the Belle-fonte policy.

It is my opinion that insurance policies should be interpreted in light of the law existing at the time of issuance of the policy. Stacking was1 permitted at the time this policy was issued. No contract .language or subsequent statutory amendment can deprive plaintiff of her rights as they existed on' February 4, 1977, the date the subject policy was issued. Our Supreme Court in Courville v. State Farm Automobile Insurance Company, et al., 393 So.2d 703 (La.1981) recently reaffirmed the general rule that insurance policies shall be interpreted in light of the law existing at the time of issuance of said policies.

For these reasons, and for the reasons assigned by Judge Guidry with which I fully agree and adopt as my own, it is my opinion that plaintiff is entitled to stack the UM coverage of the Bellefonte policy.

      . LSA-C.C.P. Article 2164 provides:
      “The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.”

      . In Thibodeaux, supra, plaintiff-appellee-ap-pellant applied to the Louisiana Supreme Court for a writ of certiorari, however, the application was denied on March 27, 1981. Although a writ of certiorari was denied such denial does not constitute an approval of the court of appeal’s decision nor does it create precedent. White v. Louisiana Western Ry. Co., 174 La. 308, 140 So. 486 (La.1932); Lombardo v. Argonaut Insurance Co., 354 So.2d 731 (La.App. 4th Cir. 1978), writ denied, La., 355 So.2d 1325.

      . Act 154 of 1974 provides in pertinent part:
      “D. (1) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage or selects lower limits.”
      We observe that LSA-R.S. 22:1406(D) was amended by Act 494 of 1975, however, that amendment made no change which affects the issue presently before this court.

      . The exclusionary provisions applicable to the UM policy in Anderson were similar to those with which our court is concerned. The Anderson policy provided:
      “LIMITS OF LIABILITY: Regardless of the number of (1) persons or organizations who are insured under this policy, (2) persons or organizations who sustain bodily injury or property damage, (3) claims made or suits brought on account of bodily injury or property damage, or (4) automobiles or trailers to which this policy applies,
      ******
      “(C) The limit of Coverage D — Uninsured Motorist stated in the declarations as applicable to ‘each accident’ is the total limit of the company’s liability for all damages because of bodily injury sustained by one or more persons as a result of any one accident.”


text:
    Donald Eugene FARRIS v. SINGING RIVER BANK and Grady C. Farris.
    No. 52516.
    Supreme Court of Mississippi.
    April 8, 1981.
    Rehearing Denied May 27, 1981.
    Henry P. Pate, III and C. R. McRae, Pascagoula, for appellant.
    William Lee Guice, III, Rushing & Guiee, Biloxi, for appellees.
   Appeal from Chancery Court, Jackson County; Glenn Barlow, Chancellor.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

AFFIRMED.


author: SMITH, Presiding Justice,

text:
    Gail Haskel ALDRIDGE and Charles Aldridge v. STATE of Mississippi.
    No. 52629.
    Supreme Court of Mississippi.
    May 27, 1981.
    Rehearing Denied July 8,1981.

      F. Gerald Maples, Jones, Maples & Lo-max, Pascagoula, for appellants.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and WALKER and BROOM, JJ.
   SMITH, Presiding Justice,

for the Court:

Gail Haskel Aldridge and Charles Al-dridge, husband and wife, were tried and convicted in the Circuit Court of the Second Judicial District of Harrison County of felonious abuse and battery of their infant daughter under Mississippi Code Annotated section 43-21-27(b) (Supp.1978) (current version at 97-5-39(2) (Supp.1980). Each was sentenced to fifteen years imprisonment. From that conviction they have appealed, assigning several grounds for reversal.

Although there are reported cases of felonious abuse and battery of children in Mississippi, they are cases where the abuse resulted in death and the charge was murder. See Daumer v. State, 381 So.2d 1014 (Miss.1980) and Sanders v. State, 286 So.2d 825 (Miss.1973). Death did not result in the present case.

The ease now before us involves what has been for some years widely recognized by the medical profession and diagnosed as the “battered child syndrome.” See generally McCoid, The Battered Child and Other Assaults Upon the Family, 50 Minn.L.Rev. 1 (1966).

The medical definition of the syndrome was most forcefully documented in a 1962 report by a team of specialists in the field of pediatric radiology, which was based upon a nationwide study of the experience of seventy-one hospitals with abused children, as well as upon reports from the offices of seventy-seven district attorneys. The report stated:

[T]he syndrome should be considered in any child exhibiting evidence of possible trauma or neglect (fracture of any bone, subdural hematoma, multiple soft tissue injuries, poor skin hygiene, or malnutrition) or where there is a marked discrepancy between the clinical findings and the historical data as supplied by the parents.

[Id. at 10].

The evidence presented by the state consisted chiefly of the testimony of medical experts who had examined the infant, or had examined x-rays made of the infant. Neither of the appellants testified or presented any evidence whatever.

Appellants challenge the sufficiency of the evidence to sustain their conviction and argue that the trial court erred in denying their motion for a directed verdict of not guilty.

The long standing and well established rule in Mississippi as to the standard to be applied in determining whether evidence was sufficient to support a jury verdict is that, in reviewing such evidence, all evidence supporting or tending to support the verdict, together with all inferences supportive of. the verdict which reasonably may be drawn therefrom shall be taken as true. Hubbard v. Morris, 275 So.2d 858 (Miss.1973); McCollum v. Randolph, 220 So.2d 310 (Miss.1969); Spell v. Ruff, 217 So.2d 7 (Miss.1968).

The statement of the medical evidence contained in the state’s brief appears to be a correct and concise synopsis thereof and is not seriously challenged by appellants in their reply brief. This statement is as follows:

Dr. Max Curry, the infant’s pediatrician, testified that on May 3, 1980, both appellants, parents of the child, brought the infant to him, and both told him the child was crying all the time as if in pain even at rest. Dr. Curry examined the child completely and noticed the child was holding her left leg with a degree of flexion. He noticed the child’s left leg was swollen and tender. He x-rayed the left leg and found a fresh chip fracture of the distal metaphysis of the left tibia. Both appellants told Dr. Curry that appellant Gail H. Aldridge had passed out the previous day and fallen with the child in her arms. Dr. Curry accepted their explanation at face value and put a cast on the child’s left leg.
Two days later, on May 5th, the child was again brought to Dr. Curry by both parents. At this time Dr. Curry found a fresh fracture, which had not been present on May 3rd. He observed that the child’s right leg and foot were swollen and tender. X-rays showed the child had suffered what was described by Dr. Curry as a bucket handle fracture where the whole metaphysis of the tibia is pulled loose from the bone. There were two (2) broken bones in the right leg. Dr. Curry stated that a pulling, twisting force had been necessary to produce the bucket handle fracture which the child had. Dr. Curry told appellants the second injury was worse than the first and felt an orthopedist should see the child. No further explanation, in addition to the mother’s alleged fall May 3rd, was offered by appellants to explain the second injury.
Dr. Hal Bishop, the orthopedist, testified that on May 5th he had examined the victim and ordered x-rays for the whole child. The child’s right leg at that time was swollen and the lack of bruises indicated the recency of the injury. Her left leg and right eye were bruised. Dr. Bishop confirmed the fracture to the child’s right lower leg. The child’s left leg, at the time he saw it, was in a cast. He described the fracture to the right leg as one from a rotational torque type stress. Appellee fails to see how Dr. Bishop’s analogy of an adult who stepped in a hole could be beneficial to appellants’ defense in view of the age of the infant. Dr. Bishop specifically stated the child could not have self inflicted the injury. He said, further, that the injuries to the right and left leg were of the same nature but had occurred at different times.
Dr. Richard Barlow, the radiologist, x-rayed the victim May 5th. The x-ray revealed two (2) fractures to the right ankle. He described the injury as a bucket handle fracture within a week old. He also took a second set of long bone x-rays which showed two (2) fractures at the left wrist, again of the bucket handle variety. Both major bones of the left wrist had been fractured and there was also a healing area up the left forearm which possibly indicated a third earlier fracture to the wrist. These fractures would have been about a month old. He described a bucket handle fracture as the result of a shearing or twisting force.
Appellants place emphasis on Dr. Barlow’s testimony that bucket type fractures “typically are silent fractures” with “no visible deformity” and “seldom, uh, any significant swelling or discoloration.” But appellee would also point out that Dr. Barlow did not examine this child and Dr. Curry and Dr. Bishop stated their examination of the child revealed screams, tenderness, swelling and bruises. Dr. Barlow also negated other physical conditions suggested by defense as causes of the fractures.

Obviously, the above evidence is circumstantial and in order to support the verdict must exclude every reasonable hypothesis save that of guilt. Sanders v. State, 286 So.2d 825 (Miss.1973). Dr. Curry’s testimony as to the nature of the fractures strongly tended to refute the explanation given him by the appellants as to how the fractures occurred. The other medical testimony as to some five additional fractures shown by x-rays of the infant revealed by their varying degrees of healing that they were inflicted over a comparatively short period of time and justified a finding that they were the results of a course of mistreatment extending over almost the entire brief life span of the child. There is no fact or circumstance in evidence tending in any way to support any other reasonable explanation of these injuries except that they were inflicted by its parents. No other person is shown to have had the custody or care of the infant save its parents. To sustain a verdict based on circumstantial evidence it is not necessary that such evidence exclude every possible doubt or theoretical supposition in no way related to the facts or circumstances of the case. It is enough that such evidence exclude every reasonable hypothesis of innocence. Andrews v. State, 237 Miss. 875, 116 So.2d 749 (1960).

The trial court properly denied appellant’s motion for a peremptory instruction of not guilty and properly submitted to the jury the issue of their guilt or innocence of the offense charged.

It is argued by appellants that the trial court erred in allowing testimony which showed that the child had sustained fractures of its arms and legs, including x-rays of the injuries which showed varying degrees of healing indicating they were inflicted at different times. The appellants argue this evidence violated the general rule that evidence of other crimes is inadmissible to prove the defendant’s guilt of the crime charged.

Chapter 494, section 4(b), Mississippi Laws of 1975 [43 — 21—27(b)], the statute under which the defendants were indicted, provides:

(b) Any person who shall intentionally burn or torture or, except in self defense, or in order to prevent bodily harm to a third party, whip, strike or otherwise abuse or mutilate any child under eighteen (18) years of age, and where such abuse or mutilation results in the fracture of any bone, the mutilation, disfigurement or destruction of any part of the body of such child, shall be guilty of felonious abuse and/or battery of a child, and upon conviction may be punished by imprisonment in the penitentiary for not more than twenty (20) years.

The Mississippi Legislature has defined “battered and abused child” in Mississippi Laws of 1977, chapter 474, section 1(h) [43-21 — 5(i)] as follows:

(i) “Battered and abused child” means a child whose parent, guardian or custodian, or any person responsible for his care or support, whether legally obligated to do so or not, has inflicted physical injury, including sexual abuse, or injuries other than by accidental means upon him as a result of abuse or neglect. In addition to physical injury, abuse encompasses a situation in which a child’s mental health has been adversely affected in some substantial way as determined by examination by competent mental health professionals. [Emphasis added].

Following argument of counsel, the trial court ruled that this evidence was admissible, denying appellant’s motion in limine to exclude it.

The State cites in support of the trial court’s ruling the case of Wansley v. State, 339 So.2d 989 (Miss.1976). In Wansley, this Court said:

In Engbrecht v. State, 268 So.2d 507 (Miss.1971), this Court quoting from Brooks v. State, Miss., 242 So.2d 865, 869 (1971) stated:
The general rule is that in a criminal prosecution evidence which shows or tends to show that accused is guilty of the commission of other offenses at other times is not admissible, unless the other offenses are reasonably connected with that for which he is on trial. There is a substantial number of these exceptions.
Evidence of other crimes is admissible to prove identity of the defendant, scienter or guilty or criminal knowledge, criminal intent or purpose, motive, a plan or system of criminal action where a continuing offense is charged, or where other crimes form a part of the res gestae. Lee v. State, 244 Miss. 813, 146 So.2d 736 (1962); 29 Am.Jur.2d Evidence §§ 320, 321 (1967). The “acid test is its logical relevancy to the particular excepted purpose or purposes” for which the evidence of prior offenses is sought to be introduced.

[339 So.2d at 990],

We think this evidence, indicating a series of injuries inflicted upon the child, was properly admitted as an exception to the general rule that evidence of more than one offense cannot be admitted upon the trial of a criminal case. The evidence complained of strongly supports an ongoing, continuing and purposeful course of criminal abuse of the child and tends to negate the idea that the injuries were the result of a fall or other isolated accident. Readus v. State, 272 So.2d 659 (Miss.1973); Strickland v. State, 209 So.2d 840 (Miss.1968). The trial court did not err in admitting this evidence.

It is next assigned as error that Dr. Curry, in his testimony, volunteered the statement that he had notified the Biloxi Police Department of “a possible case of child abuse” following his second examination of the child on May 5. Appellant objected and the court, after hesitating over sustaining or overruling the objection, stated that he sustained the objection. Later, counsel for appellants was permitted by the court to move for a mistrial which the court overruled stating again that he had sustained appellant’s objection to the testimony. No request was made by appellants that the jury be instructed to disregard the testimony. The objection made by appellants to the statement by Dr. Curry was nonspecific, assigning no ground therefor, and no request was made to the court to strike the answer or to instruct the jury to disregard it. In overruling appellant’s motion for a mistrial the trial court stated:

BY THE COURT: All right. Now, you see, his question, actually, Dr. Curry’s response was not, his answer was not responsive to the question and I sustained the objection. But, I think it’s all right. And, besides, Gerald, after that, I think you asked him some questions that brought out the same thing, in effect.

The Court also noted that an instruction would be given to the jury to disregard all testimony to which an objection had been sustained. This instruction was granted and no other specific instruction was requested by appellants on this subject. The trial court did not commit reversible error in denying appellant’s motion for a mistrial.

The other matters assigned and argued as error requiring reversal have been carefully examined in the light of the record and are found to be without merit.

The conviction and sentence will be affirmed.

AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, WALKER, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.