author: DOMENGEAUX, Judge.

text:
    LOUISIANA PACIFIC CORPORATION, Plaintiff-Appellee, v. SECRETARY OF the DEPARTMENT OF REVENUE AND TAXATION, State of Louisiana, Defendant-Appellant.
    No. 7814.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.
    W. Steven Mannear, Baton Rouge, for defendant-appellant.
    Gold, Little, Simon, Weems & Bruser, F. A. Little, Jr., Alexandria, for plaintiff-ap-pellee.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   DOMENGEAUX, Judge.

This is a Louisiana state income tax case. The secretary of the Department of Revenue and Taxation (The Department), appeals from a decision of the District Court affirming a determination made by the Board of Tax Appeals which sustained the peremptory exception of prescription filed by Louisiana Pacific Corporation (The Taxpayer).

The sole issue is this: Is the running of prescription against state income tax interrupted by the formal assessment of such tax (La.R.S. 47:1564) or must the notice of assessment (La.R.S. 47:1565) be mailed to the taxpayer before prescription is arrested?

The facts are as follows. On October 14, 1977, The Department, pursuant to La.R.S. 47:1562, mailed a notice of intent to assess income taxes for the years 1973 and 1974 to The Taxpayer. On December 30, 1977, a formal assessment against The Taxpayer was executed pursuant to La.R.S. 47:1564. Notice of this assessment was mailed to The Taxpayer on January 4, 1978, as provided by La.R.S. 47:1565.

The Taxpayer appealed this assessment to the Board of Tax Appeals claiming that the taxes had prescribed under the provisions of La.Const. 1974 Article VII, § 16. That Article provides that taxes (other than real property taxes) prescribe in three years after December 31 of the year in which they are due. The Article further provides that prescription may be interrupted or suspended as provided by law.

The Board of Tax Appeals held that since the 1973 taxes became due in 1974, they prescribed on December 31, 1977. The Board further held that prescription was not interrupted until notice of the assessment (under 47:1565) was mailed to The Taxpayer. Since notice of the assessment was not mailed until January 4, 1978, the Board concluded, the taxes for the year 1973 had prescribed, and were not enforceable.

The Department appealed from this decision to the District Court, which affirmed the decision of the Board of Tax Appeals. The Department then appealed to this Court.

The Department contends that compliance with La.R.S. 47:1564 interrupts prescription. Since it complied with 47:1564 by formally assessing The Taxpayer on December 30, 1977, the Department argues, prescription was interrupted on that date.

The Taxpayer contends that the two statutes (R.S. 47:1564 and 1565) should be read together to provide that prescription is not interrupted until the formal assessment is made and notice of the assessment is mailed to The Taxpayer, ostensibly because it would be inequitable to allow The Department to assess taxes without notice.

We believe The Department’s view is the correct one. We hold that the prescription running against the state income tax was interrupted when The Department formally assessed The Taxpayer on December 30, 1977, pursuant to La.R.S. 47:1564. We rely upon La.R.S. 47:1580(1) which provides that prescription running against any state tax is interrupted by “the collector’s action in assessing any such amount in the manner provided by law.” The manner provided by law for the actual assessment of taxes is found in R.S. 47:1564, supra. We believe that when the requirements set forth in that Section were satisfied before the three years passed, the running of prescription ceased. We find no indication of a legislative intent to require that notice of the assessment (under 47:1565) be sent before prescription is interrupted. We note that the taxpayer must have already received the initial notice under 47:1562 before the assessment can be made under 47:1564, and therefore knows of the Collector’s intent to assess him. The taxpayer is not prejudiced by receipt of the notice under 47:1565 after the three years have run since he has thirty days from the date of the notice within which to pay the assessment or to appeal to the Board of Tax Appeals. Since the assessment herein was completed in accordance with 47:1564 before prescription had run, the taxes for 1973 did not prescribe.

For the assigned reasons, the judgment of the District Court affirming the decision of the Board of Tax Appeals is reversed.

This case is remanded to the Louisiana Board of Tax Appeals for further proceedings in order to determine the correctness of the assessment for 1973 income tax made against Louisiana Pacific Corporation.

All costs are assessed against The Taxpayer.

REVERSED AND REMANDED.

      . La.R.S. 47:1564 reads as follows:
      “At the expiration of fifteen calendar days from the date of the collector’s notice provided in R.S. 47:1562, or at the expiration of such time as may be necessary for the collector to consider any protest filed to such notice the collector shall proceed to assess the tax, penalty and interest that he determines to be due under the provisions of any Chapter of his Subtitle. The assessment shall be evidenced by a writing in any form suitable to the collector, which sets forth the name of the taxpayer, the amount determined to be due, the kind of tax, and the taxable period for which it is due. This writing shall be retained as a part of the collector’s official records. The assessment may confirm or modify the collector’s originally proposed assessment.”

      . Paragraph A of La.R.S. 47:1565 reads as follows:
      “A. Having assessed the amount determined to be due, the collector shall send, by registered mail, a notice to the taxpayer against whom the assessment lies, at the address given in the last report filed by said taxpayer, or if no report has been filed to any such address as may be obtainable. This notice shall inform the taxpayer of the assessment made against him and notify him that he has thirty calendar days from the date of the notice within which either to pay the amount of the assessment or to appeal to the board of tax appeals for a redetermination of the assessment. All such appeals shall be made in a manner set out in Chapter 17, Subtitle II of this title.”

      . The portion of the assessment pertaining to the 1974 taxes was upheld by the Board and The Taxpayer has not complained of this ruling.

      . No argument is made by The Taxpayer that The Department did not comply with the requirements of 47:1564, quoted in footnote 1, supra.

      . Some jurisprudential authority suggests that prescription may have been interrupted when The Department first mailed its notice of intent to assess The Taxpayer in October of 1977, pursuant to La.R.S. 47:1562. Collector of Revenue v. Pioneer Bank and Trust Company, 250 La. 446, 196 So.2d 270 (1967); Henwood v. Collector of Revenue, 51 So.2d 105 (La.App. 1st Cir. 1951). These cases held prescription was interrupted by the mailing of a notice of an alleged tax deficiency, as provided by Act 21 of 1934, Section 83. Section 88 of Act 21 of 1934 expressly provided for the suspension of the “running of the statutes of limitations” after the mailing of the deficiency notice. Act 21 of 1934 was repealed by the Louisiana Legislature in 1950 when the Revised Statutes were enacted. The notice provision of Section 83 was substantially reenacted as La.R.S. 47:1562 but the provision in Section 88 was not reenacted. Thus, our decision is not based on these earlier cases since the statute upon which they relied (Section 88 of Act 21 of 1934) is no longer the law.

      .We need not decide whether the mailing of the notice of intent to assess (47:1562) alone suspended the running of prescription since we conclude that prescription was surely interrupted when the assessment was made under 47:1564, an event which occurred later in time than the initial notice but which, like the initial notice, was completed before the three year period expired.


source: Caselaw Access Project

author: GUIDRY, Judge.

license: Public Domain

text:
    Hugh R. LEE, Plaintiff-Appellant, v. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, Defendant-Appellee.
    No. 7821.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.
    Writ Refused Jan. 9, 1981.
    Charles W. Seaman, Natchitoches, for plaintiff-appellant.
    Watson, Murchison, Crews, Arthur & Corkern, R. Raymond Arthur, Natchitoches, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   GUIDRY, Judge.

The plaintiff-appellant, Hugh R. Lee, instituted this redhibitory action against the defendant-appellee, The Equitable Life Assurance Society of the United States for a reduction in the purchase price of certain real property located in Natchitoches Parish. The defendant filed an exception of prescription in response to the plaintiff’s petition. The trial court sustained the defendant’s exception and the plaintiff herein appeals that judgment. We affirm the trial court’s judgment.

The following facts are established by the record. On October 18, 1977, the plaintiff purchased a house and lot located in Natchi-toches Parish from the defendant. Immediately prior to completion of the sale, the plaintiff discovered that the carpeting in the den was rotten. An agreement between the plaintiff and the realtors was confected whereby the defective carpet was replaced and the costs were shared equally by the parties. In either December of 1977 or January of 1978, the plaintiff noticed water seeping into the den whenever there was a heavy rain. The plaintiff attempted to remedy this problem by ditching and reshaping the hillside upon which his house was situated, however, his actions were to no avail. In January of 1979, the plaintiff was advised that the house was constructed adjacent to a “spring”, and that whenever a substantial rain occurred, the spring would flow against the house causing water to seep into the den. Plaintiff filed the instant suit on March 8, 1979 over one year from both the date of the sale and from the time when plaintiff first noticed the water seepage.

The trial court determined that the plaintiff’s cause of action had prescribed, noting that “the plaintiff knew or should have known the vice or defect involved was water leaking into his home ... and that such knowledge was sufficient to begin the running of prescription.”

Prescription of redhibitory actions is governed by Louisiana Civil Code Articles 2534 and 2546. Civil Code Article 2534, dealing with good faith vendors, provides:

“The redhibitory action must be instituted within a year, at the farthest, commencing from the date of the sale.
This limitation does not apply where the seller had knowledge of the vice and neglected to declare it to the purchaser.
Nor where the seller, not being domicil-iated in the State, shall have absented himself before the expiration of the year following the sale; in which case the prescription remains suspended during his absence.”

Civil Code Article 2546, dealing with bad faith vendors, reads:

“In this case, the action for redhibition may be commenced at any time, provided a year has not elapsed since the discovery of the vice.
This discovery is not to be presumed; it must be proved by the seller.”

Plaintiff contends that the water seepage was a result of the vice and not the vice itself, therefore, prescription should not commence until the cause of the seepage was discovered. In support of this contention, plaintiff cites Hill v. John L. Crosby, Inc., 353 So.2d 421 (La.App.4th Cir. 1977). The Hill case involved a suit for redhibition filed five years after the purchase of the house. The plaintiff in that case had noticed severe mildewing and rotten boards more than one year before suit was filed. The Fourth Circuit held that because the plaintiff did not discover the cause of the mildew until within one year of the suit, prescription had not run.

To the extent that Hill, supra, is interpreted to hold that the prescriptive period for redhibition actions as provided in LSA-C.C. 2546 begins to run from the date of discovery of the cause of the defect, this court must respectfully disagree. We believe that Judge Schott’s dissent in Hill more correctly represents the present state of the jurisprudence regarding the issue at bar. In his dissent, Judge Schott notes that to hold that the prescriptive period for red-hibition actions begins to run from the date of the discovery of the cause of the defect is inconsistent with the rationale of Rey v. Cuccia, 298 So.2d 840 (La.1974). In Rey, supra, the court held that it was not incumbent upon the purchaser of a trailer to prove the exact or underlying cause of the trailer’s malfunction in order to recover in an action for redhibition. See also, Crawford v. Abbott Automobile Co., 157 La. 59, 101 So. 871 (1924); Fisher v. City Sales and Service, 128 So.2d 790 (La.App. 3rd Cir. 1961); Ticheli v. Silmon, 304 So.2d 792 (La. App. 2nd Cir.1974). In our view it is clearly inconsistent to hold that a purchaser need not establish the underlying cause of a defect or malfunction and on the other hand, although the defect or malfunction is manifest, conclude that the prescription provided for in C.C. Article 2546 is suspended until such time as the purchaser actually discovers the underlying cause of the defect.

We find that plaintiff had sufficient notice that a defect existed in the house when he first discovered water seeping into the den. Such notice was enough to trigger the running of the prescriptive period applicable to redhibitory actions. In Blalock v. American Employers Insurance Company, 345 So.2d 166 (La.App. 2nd Cir.1977) writ refused, 346 So.2d 221 (La.1977), the Second Circuit discussed the type of knowledge which must be possessed by the purchaser in order to trigger the running of prescription. The court, quoting Cartwright v. Chrysler Corporation, 232 So.2d 285 (La.1970) stated:

"... (I)t is not necessary that the party have actual knowledge of the conditions as long as there is ‘constructive notice’. Whatever is notice enough to excite attention and put the owner on his guard and call for inquiry is tantamount to knowledge or notice of every thing to which inquiry may lead and such information or knowledge as ought to reasonably put the owner on inquiry, is sufficient to start the running of prescription.”

In either December of 1977 or January of 1978, the plaintiff discovered that water was seeping into the den of his newly-purchased home each time that there was a heavy rain. The occurrence of the water seepage was sufficient to put the plaintiff on guard that a vice in the house existed. This notice was sufficient to commence the running of prescription. Since the plaintiff failed to file his redhibitory action within one year from the date of his discovery of the defect, his cause of action in redhibition has prescribed.

For the above and foregoing reasons, the judgment of the trial court sustaining the defendant’s peremptory exception of prescription is affirmed. All costs are assessed against the plaintiff-appellant.

AFFIRMED.


author: SWIFT, Judge.

text:
    Wilbert THOMAS, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Defendant-Appellee.
    No. 7834.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.

      Sandoz, Sandoz & Schiff, Leslie J. Schiff, Opelousas, for plaintiff-appellant.
    Gist, Methvin, Hughes & Munsterman, H. B. Gist, III, Alexandria, Fusilier, Pucheu, Soileau & Coreil, L. 0. Fusilier, Ville Platte, for defendant-appellee.
    Before CULPEPPER, CUTRER and SWIFT, JJ.
   SWIFT, Judge.

This suit was brought by Wilbert Thomas for injuries and damages sustained as a result of an automobile accident allegedly caused by the negligence of Duras Fontenot and Rufus Fontenot, the minor son of Clen-ny Fontenot. Made defendants were Duras and Clenny Fontenot (no relationship), State Farm Mutual Automobile Insurance Company (State Farm), the insurer of Du-ras Fontenot, Southeastern Fidelity Insurance Company (Southeastern), the alleged insurer of Clenny Fontenot, and Hartford Accident and Indemnity Company (Hartford), the plaintiff’s own uninsured or unde-rinsured motorist insurer.

State Farm deposited into the registry of the court its $5,000.00 policy limit with accrued interest and court costs, which was withdrawn by the plaintiff through court order.

Hartford and Thomas settled for $6,000.00 and a compromise agreement was also concluded by the latter and Southeastern for $850.00. The insurance company defendants were dismissed from the suit with reservations of rights and the plaintiff then went to trial against Duras and Clen-ny Fontenot.

The facts of the case are undisputed. On October 13,1977, Thomas was proceeding in a northerly direction on Highway 167 towards Ville Platte, Louisiana, in his 1973 pickup truck. Rufus Fontenot, who was driving Clenny Fontenot’s automobile, was following the Thomas vehicle. An eighteen wheeler truck was parked on the right shoulder of Highway 167 just south of where a private road intersects the highway. It was from this road that Duras Fontenot entered the intersection in his 1949 Chevrolet pickup from behind the eighteen wheeler. Thomas slammed on his brakes, but was unable to avoid a collision with Duras Fontenot’s truck. Rufus Fon-tenot then collided with the rear of the Thomas vehicle.

The trial judge found that the accident was caused solely by Duras Fontenot’s negligence in entering the intersection when his view was obstructed by the eighteen wheeler and rejected plaintiff’s demands against Clenny Fontenot. He found that Thomas sustained $10,000.00 in general damages and incurred medical expenses of $7,324.55 or a total of $17,324.55. However, from this sum the judge deducted $5,000.00 as the amount paid by State Farm under its insurance policy with Duras Fontenot and $6,000.00 as the amount which Thomas received from Hartford, his own insurer. These deductions left plaintiff’s damages in the sum of $6,324.55. However, the trial judge then found that because of his age and financial condition Mr. Duras Fontenot was unable to pay such an award. He therefore reduced the total amount of the decree to $1,800.00.

From this judgment the plaintiff has appealed. We affirm.

The appellant has assigned as errors the trial court’s (1) allowing a credit to Duras Fontenot for the $6,000.00 received in settlement from Hartford and (2) reduction of the award to $1,800.00 because of Duras Fontenot’s age and alleged financial inability to pay.

We are inclined to agree with appellant’s contention that this defendant was not entitled to the $6,000.00 credit for the sum which plaintiff received from his own unde-rinsured motorist carrier, a collateral source to which the tort feasor contributed nothing. Hall v. State, Dept, of Highways, 213 So.2d 169 (La.App. 3 Cir. 1968), writ refused, 252 La. 959, 215 So.2d 128 (La.1968). However, it is unnecessary for us to decide this question in view of the conclusion we have reached in regard to the second assignment of error. Having decided that the trial judge did not abuse his discretion in reducing the judgment to $1,800.00 because Mr. Fontenot is unable to pay any more, whether the plaintiff’s total damages are $6,324.55 or $12,324.55 by reason of the disallowance of the credit for the $6,000.00 paid by Hartford is of no significance.

In his written reasons for judgment the trial judge said:

“Mr. Fontenot is 92 years of age. He receives Social Security benefits, and this is his only source of income. He has $400.00 in the bank. He owns no truck, no cattle, and no land. Considering Du-ras Fontenot’s age and financial condition and ability to respond in damages, the court will reduce the amount of the judgment against him to $1800.00”

Duras Fontenot and his son, Murray B. Fontenot, testified that the father’s monthly social security benefits are about $200.00 and he owns 30 arpents of land on which is located a wooden house, 24 feet wide and 26 feet long with a tin roof. They also said the defendant owes Murray Fontenot $22,-250.00 which was lent over a period of from 20 to 25 years and that such indebtedness is secured by a mortgage on the 30 arpent tract. The mortgage was executed after this accident.. The son further testified that the property is probably worth about $25,000.00.

Although the statement that the defendant owned “no land” in the written reasons for judgment is clearly wrong, we are convinced the judge meant to say that this defendant owned no unencumbered land. Under such circumstances we cannot say that the trial judge abused his “much discretion” in reducing the award based on the defendant’s inability to pay.

The appellant objected to the admissibility of evidence on this subject on grounds of relevancy and as a deprivation of his constitutional right to just compensation. It was overruled, but made general. Inasmuch as defendant’s brief does not mention the objection, we assume that it has been waived.

It is well settled in our jurisprudence that in awarding damages the trial court may consider the ability of a defendant to respond in judgment. Williams v. Garner, 268 So.2d 56 (La.App. 1 Cir. 1972). And the defendant’s ability to pay is a factor which can be taken into consideration in awarding either special or general damages. State Farm Fire and Casualty Co. v. Drost, 330 So.2d 393 (La.App. 3 Cir. 1976). There is no requirement that this subject be specially pleaded as a defense. If surprised, the proper remedy for the plaintiff is to request a continuance for time to investigate the matter. Williams v. Garner, supra. No such action was taken in this case.

From the uneontradicted testimony of Duras and Murray Fontenot, we must conclude that the indebtedness and mortgage actually existed. Such being the case, either in the execution of this judgment or a foreclosure of the son’s mortgage, after payment of court costs Duras Fontenot would be left with very little even if the property was bid in at the sheriff’s sale for its full $25,000.00 value. Thus, it is rather clear that he can barely afford the necessities of life on the basis of his income and possessions. We therefore are unable to say that the reduction of the award constituted an abuse of discretion.

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

AFFIRMED.


author: CUTRER, Judge.

text:
    Carl Brent FONTENOT, Plaintiff-Appellant, v. ANDRUS HOMES, INC., Defendant-Appellee, and Hanover Insurance Company, Intervenor-Appellant.
    No. 7851.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.
    Carey D. Bearden, Lafayette, for plaintiff-appellant.
    Allen, Gooch & Bourgeois, Frank A. Flynn, Lafayette, for intervenor-appellant.
    Mouton & Jeansonne, John J. Lewis, Jr., Lafayette, for defendant-appellee.
    Before CULPEPPER, CUTRER and SWIFT, JJ.
   CUTRER, Judge.

The sole issue on this appeal is whether Carl Fontenot was the statutory employee of Andrus Homes, Inc. (Andrus) for purposes of exclusive liability under the workmen’s compensation act, LSA — R.S. 23:1032 and 1061.

Carl Fontenot sued Andrus for damages due to injuries he incurred in an accident during the installation of an air conditioning system in a home being constructed by Andrus. Hanover Insurance Company (Hanover), the workmen’s compensation carrier for Fontenot’s employer, Marine Appliance and Air Conditioning (Marine), intervened seeking reimbursement for workmen’s compensation and medical expenses paid to Fontenot. The trial judge granted a motion for summary judgment in favor of Andrus on the basis that Fontenot, although employed by Marine, was a statutory employee of Andrus. As a result, An-drus was held to be immune from tort liability under the provisions of LSA-R.S. 23:1032. Fontenot and Hanover appeal. We affirm.

Fontenot alleges in his petition that on June 22, 1978, he was employed by Marine as an air conditioning installation mechanic. He alleges that on that date, he was injured in an accident while installing an air conditioning system in a new residence being constructed by Andrus. As a result of such injuries, Fontenot seeks $150,000.00 damages.

Fontenot contends that there is an issue of material fact as to whether Andrus was his statutory employer at the time of the accident. He seeks a remand for trial on the merits.

The jurisprudence has established the following guidelines for the consideration of motions for summary judgment:

The party who seeks a summary judgment bears the burden of showing that there is no genuine issue of material fact. Any doubt as to granting the motion shall be resolved in favor of trial on the merits. Atkinson v. Allstate Ins. Co., 361 So.2d 32 (La.App. 3rd Cir. 1978), writs den., 363 So.2d 535 (1978); Craft v. Trahan, 351 So.2d 277 (La.App. 3rd Cir. 1977), writs den., 353 So.2d 1336 (1978).

The question, as to whether the work performed by a contractor is part of the principal’s business, is an issue of fact and consequently summary judgment is seldom appropriate for its resolution. McMoris v. Sheppard, 315 So.2d 342 (La.App. 4th Cir. 1975). Where appropriate, however, courts have not hesitated to utilize it. Barnes v. Sun Oil Co., 358 So.2d 655 (La. App. 1st Cir. 1978), aff’d, 362 So.2d 761 (1978); Pullig v. Shreveport Packing Co., Inc. of Kansas, 342 So.2d 1217 (La.App. 2nd Cir. 1977); Burse v. Boh Brothers Construction Company, 349 So.2d 438 (La.App. 4th Cir. 1977), writs den., 351 So.2d 172 (1977).

With these principles in mind, we examine the evidence offered in support of the motion for summary judgment to determine whether there is an issue of material fact as to Fontenot’s employment status.

The affidavit of Joe Jones, field coordinator for Andrus, was introduced in support of Andrus’ position.

Jones’ affidavit stated that Andrus is in the business of constructing residential homes. Andrus has constructed many homes and has developed subdivisions over the past seven years of Jones’ employment. Marine has contracted to install the air conditioning systems in many homes constructed by Andrus and, to Jones’ knowledge, all the work performed by Marine during this seven year period, except for eleven houses, has been done for Andrus. He further stated that:

"... Andrus Homes, Inc. regularly employs workers in all crafts and trades on its payroll as well as sub-contractors in the customary and usual part of its trade, business or occupation; that any work which is performed by sub-contractors and their employees could be done by employees directly on the payroll of An-drus Homes, Inc., such sub-contracts being made as a matter of business convenience. ”

Fontenot’s brief affidavit states:

“That he was employed by Marine Appliances for approximately 2 years, and during that time, he installed air conditioning equipment in new homes which had been constructed by various contractors; that he performed the installation of the air conditioning units without the supervision of an employee of said contractors; that he did specialty work which the contractors did not have the personnel to do; that Andrus Homes is not in the business of selling and/or installing air conditioners; that he does not engage in routine repairs or maintenance.”

Fontenot, in his deposition, states that he has worked for Marine two years as an installation mechanic. He has made many installations of air conditioning systems in Andrus Homes. He was working on a residence that Andrus was constructing in a subdivision when the accident occurred causing his injuries. He stated that Marine was a sub-contractor on this job.

As we consider the above, we conclude that there is no genuine issue of material fact that Fontenot was the statutory employee of Andrus.

Where an employee of an independent contractor is injured by the negligence of the principal for whom the independent contractor is performing a service, the employee has no right to recover in tort from the principal if the work is a part of the regular business of the principal. Barnes v. Sun Oil Co., 362 So.2d 761 (La.1978).

The evidence undisputably establishes that Andrus was regularly engaged in the business of constructing homes. A component part of such construction was the installation of air conditioning systems. Marine regularly contracted to make such installations for Andrus. Fontenot was making such an installation when he was injured. Such work by Fontenot was clearly a “part of the regular business” of the principal, Andrus.

Plaintiff’s affidavit characterizes his job as specialty work which Andrus did not have the personnel to do, while Jones’ affidavit states that any work performed by the sub-contractors could be done by employees on the payroll of Andrus. The case of Barnes v. Sun Oil Co., supra, held that the fact that a principal does not perform particular types of work with its own employees does not prevent the work from being part of its regular business. Therefore, the conflict in the affidavits does not affect our decision.

The trial court correctly ruled that Fon-tenot was the statutory employee of Andrus and was relegated to the exclusive remedy of workmen’s compensation.

For the above reasons, the judgment of the trial court granting summary judgment to Andrus Homes, Inc. is affirmed, with all costs of the appeal assessed to appellants, Carl Brent Fontenot and Hanover Insurance Company.

AFFIRMED.


text:
    In re James Richard WHITTEN and Judith Elaine Whitten, Applying for Adoption.
    No. 7868.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.

      Roland V. McKneely, Jr., Bossier City, for defendant-appellant.
    Robert L. Salim of Kelly, Ware & Salim, Natchitoches, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   DOMENGEAUX, Judge.

Brandi Lynne Newman was born November 11, 1978. Her mother, Lynne McCom-mon Newman, was killed by Brandi Lynne’s father, Glen Dale Newman, on April 2, 1979. The father was subsequently convicted of manslaughter for the death of his wife and was sentenced to twenty-one years at hard labor. He is presently confined in the state penitentiary at Angola.

On April 5, 1979, the Bossier City Court granted custody of Brandi Lynne to her uncle, James Richard Whitten, and his wife, Judith Elaine Whitten. The deceased mother was Mr. Whitten’s sister.

On November 27,1979, the Whittens filed a petition for adoption in the Tenth Judicial District Court. Petitioners desire to adopt Brandi Lynne. A hearing was set for January 22, 1980. On January 18, 1980, Glen Newman, through counsel, filed an answer to the petition for adoption, stating that he had no objection to the Whittens’ retention of custody, but he did not give his consent to the adoption of his daughter. A request for a continuation filed by his attorney was denied.

The adoption hearing was held in chambers on January 22nd by the district judge who, on that day, granted the adoption “for the reasons this day orally assigned, that the adoption is for the best interest for [sic] the child”, and authorized that the child’s name be changed to Brandi Lynne Whitten.

Before an adoption can be granted, the consent of the legitimate parents is necessary, except in those limited instances where parental consent has been dispensed with by law. Adoption of Latiolais, 376 So.2d 555 (La.App. 3rd Cir. 1979), aff’d 384 So.2d 377 (La.1980); Adoption of Rapp, 348 So.2d 107 (La.App. 4th Cir. 1977). La.R.S. 9:422.1 provides circumstances under which a child may be adopted without the consent of one of the legitimate parents. That statute provides:

“If the spouse of the petitioner is the legitimate parent of the child or if the petitioner is the grandparent or grandparents of the child, then the consent of the other legitimate parent is not necessary if the first and second or the first and third conditions exist:
(1) The spouse of the petitioner or the grandparent or grandparents or the mother or the father have been granted custody of the child by a court of competent jurisdiction and
(2) The other legitimate parent has refused or failed to comply with a court order of support for a period of one year or
(3) The other legitimate parent is a nonresident of this state and has failed to support the child for a period of one year after judgment awarding custody to the mother or father or grandparent or grandparents.”

Our Courts have recognized that La. R.S. 9:422.1 and other adoption statutes are to be strictly construed because they are in derogation of the natural rights of a legitimate parent to the child and of the child to the parents. Roy v. Speer, 249 La. 1034, 192 So.2d 554 (1966); Haynes v. Mangham, 375 So.2d 103 (La.1979); Adoption of Edwards, 369 So.2d 210 (La.App. 3rd Cir. 1979).

A cursory reading of R.S. 9:422.1 reveals that the consent of the non-supporting spouse is not required only if the petitioner seeking adoption is a step-parent or a grandparent or grandparents. Thus, unless the petitioner is a step-parent or a grandparent, the consent of the non-supporting legitimate parent must still be obtained before an adoption can be approved. The statute does not dispense with the consent of the non-supporting parent when the petitioners are an uncle and his wife. Had the legislature intended the statute to encompass such a class of persons (aunts and uncles) it would have expressly included them, instead of deliberately narrowing the class of persons to whom the statute was available.

The trial judge stated that the adoption would be in the best interest of the child, Brandi Lynne. While we recognize, as did the trial judge, that the Whittens are hardworking responsible people who would, in all probability, provide Brandi Lynne with a fine home and healthy environment, we are nevertheless constrained to hold that the trial judge’s decision to grant the adoption, over the specific objection of the natural father, is simply not permitted by any law, and for that reason must be and is hereby reversed. Our decision in no way is meant to deprive the Whittens of the custody they now have of the infant, Brandi Lynne Newman.

For the above and foregoing reasons the judgment of the District Court which authorized the adoption of the infant Brandi Lynne Newman, and which further authorized the changing of said infant’s name to Brandi Lynne Whitten is reversed, and the petition for adoption filed by Mr. and Mrs. Whitten is hereby ordered dismissed.

Costs at trial and on appeal are assessed against petitioners.

REVERSED AND RENDERED.


text:
    Frances Vandersypen LACHNEY, Plaintiff-Appellant, v. Gordon Wayne LACHNEY, Defendant-Appellee.
    No. 7869.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.
    Edward G. Randolph, Jr., Alexandria, for plaintiff-appellant.
    Gordon W. Lachney, in pro. per.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   GUIDRY, Judge.

This appeal is from a judgment rendered on two rules, consolidated for hearing, one, a rule for change of custody filed by Gordon Wayne Lachney and the other a rule for past due child support filed by Frances V. Lachney. The trial court, by judgment dated February 15, 1980, removed Frances V. Lachney as legal custodian of her minor child, Tammy Lynn Lachney, and awarded permanent care, custody and control of said minor child to her father, Gordon Wayne Lachney. Additionally, the judgment referred to, dismissed plaintiff’s demand for a judgment for arrearages in child support allegedly due under an alleged judgment signed March 27, 1978. Plaintiff, Frances V. Lachney, has appealed from only that part of the judgment which denied her right to child support payments allegedly in arrears.

The record lodged with this court omits material portions of the trial record. The record in its present state is so incomplete that we cannot render a judgment which is just, legal and proper upon the record on appeal. Accordingly, pursuant to the authority granted by LSA-C.C.P. Article 2161 we remand this matter to the trial court with instructions to complete the record on appeal by including therein all evidence contained in the trial record, documentary and otherwise, necessary to a decision of the issue presented by the order of appeal dated March 27, 1980.

REMANDED FOR COMPLETION OF THE RECORD ON APPEAL.


author: STOKER, Judge.

text:
    Lois DORNAK, Plaintiff-Appellant, v. LAFAYETTE GENERAL HOSPITAL, William Grun, and Continental Insurance Company, Defendants-Appellees.
    No. 7874.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.
    Edward J. Milligan, Jr., Lafayette, for plaintiff-appellant.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abel, Dennis Doise, Lafayette, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY, and STOKER, JJ.
   STOKER, Judge.

The issue posed by this appeal may be stated as follows: Where a prospective employer requires a pre-employment physical examination and a physical examination performed as a result reveals a condition which requires treatment, does the employer have a duty to inform the employee of that condition? That question was answered in the negative in a previous case dealing with the exact same facts as those involved here. Dornak v. Lafayette General Hospital, 368 So.2d 1185 (La. App. 3rd Cir. 1979). The only differences in that ease (Raymond Dornak’s case) and this case of Lois Dornak are in the persons bringing suit and the damages sought.

Raymond Dornak is the husband of Lois Dornak and the latter is the party who was given the physical examination by the defendant hospital. The hospital was the prospective employer and also the medical facility at which the x-ray in question was given. In the case reported at 368 So.2d 1185, Raymond Dornak sued for medical expenses and loss of earnings. He was met with an exception of no cause of action, which was sustained by the trial court. We affirmed on the basis of Dowling v. Mutual Life Insurance Company of New York, 168 So.2d 107 (La. App. 4th Cir. 1964), writ refused, 247 La. 248, 170 So.2d 508 (1965) and Devore v. Hobart Manufacturing Co., 367 So.2d 836 (La.1979). In the present suit Lois Domak seeks her own personal damages in the form of pain caused from having to undergo treatment for a tubercular condition, additional damage to her lungs she would not have suffered, emotional distress and depression.

The defendants, Lafayette General Hospital, William Grun and Continental Insurance Company filed exceptions of no cause of action, judicial estoppel and res judicata in response to Lois Dornak’s petition. The trial court sustained the exception and dismissed Lois Dornak’s suit against the defendants. For the reasons we gave in Raymond Dornak’s appeal, 368 So.2d 1185, we affirm.

Defendants answered Lois Dornak’s appeal and complained of the action of the trial court in overruling the exception of judicial estoppel and failure to rule on the exception of res judicata. We do not reach these issues.

In oral argument, plaintiff-appellant referred us to the case of Bran ton Insulation, Inc. v. Standard-Taylor Industries, Inc., 376 So.2d 178 (La. App. 4th Cir. 1979). Assuming this case would lend any support to plaintiff’s petition as asserting a cause of action, the Louisiana Supreme Court case of Devore v. Hobart Manufacturing Co., supra, would control over it.

Accordingly we affirm the judgment of the trial court. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


author: FORET, Judge.

text:
    Judith Anne Hoover GOWINS, Plaintiff-Appellant, v. Carroll E. GOWINS, Defendant-Appellee.
    No. 7889.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.

      Luse & Lee, Donna W. Lee, Hoover & Wade, Robert D. Hoover, Baton Rouge, for plaintiff-appellant.
    Gravel, Robertson & Brady, Robert L. Royer, Alexandria, for defendant-appellee.
    Before FORET, DOUCET and LA-BORDE, JJ.
   FORET, Judge.

This action arises out of a rule to show cause wherein plaintiff-in-rule, Carroll Gowins, sought to have specified visitation rights with his children. His wife, Judith Gowins, was made the defendant-in-rule.

The trial court rendered judgment in favor of Carroll Gowins, and Judith Gowins has appealed.

Judith Gowins (appellant) filed suit on July 2,1979, seeking a separation from Carroll E. Gowins (appellee) on the grounds of cruel treatment. Appellee is a major in the United States Air Force, stationed in South Dakota. The appellant sought, and subsequently obtained, the permanent care, custody, and control of the three minor children born of the marriage. The three children, Wendy, Michelle and Jennifer are 16, 12 and 9 years of age, respectively.

The trial court, in that proceeding, granted appellee reasonable visitation rights to be exercised in the home of the appellant’s parents, where she was residing at the time. This arrangement was made by stipulation of the parties.

Carroll Gowins then filed the present rule to show cause on November 16, 1979. The trial court ordered the appellant to show cause why appellee should not be awarded specified visitation rights during the 1979 Christmas holiday season and in the future, generally, which rights may be exercised out of the presence of appellant or her parents. The trial court held a hearing on this rule on March 17, 1980, and rendered the following judgment, which reads, in pertinent part, as follows:

“IT IS ORDERED, ADJUDGED, AND DECREED that with respect to each child, visitation rights for the children are to be with their father, Carroll E. Gowins, at a place selected by him, one weekend per month, with two weeks during the summer, in South Dakota, or wherever the father may select, and also each alternate Christmas season, commencing with the 1980 Christmas season, to commence at 12:00 o’clock noon on December 23, 1980, and terminate at 12:00 o’clock noon on December 26,1980. The weekend visitations will commence at 5:00 o’clock p.m. on Friday, and terminate at 6:00 o’clock p.m. on Sunday, commencing the weekend of March 22-23, 1980, except that with respect to the commencing weekend, the visitation rights will commence at 12:00 o’clock noon on Saturday, March 22, and terminate at 6:00 o’clock p.m. on March 23, 1980.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that with the exception of the weekend of March 22-23, 1980, the father should give a two-week’s notice in advance to the mother of his visitation intentions, and the mother will have the responsibility of keeping the father advised with respect to her correct mailing address.”

It is well settled that the paramount consideration in determining visitation rights following a separation or divorce is the welfare of the child. Reavill v. Reavill, 370 So.2d 175 (La.App. 3 Cir. 1979); Johnson v. Johnson, 357 So.2d 69 (La.App. 4 Cir. 1978), writ denied, 359 So.2d 197 (La.1978). As such, the trial court is vested with a broad discretion in its award of visitation privileges to a parent. Reavill v. Reavill, supra; Spencer v. Spencer, 273 So.2d 605 (La.App. 4 Cir. 1973). The award of the trial court will not be disturbed on review absent an abuse of that discretion, a specific finding that the physical health, emotional stability or moral well being of a child is adversely affected, or that the visitation is tantamount to a division of custody. Spencer v. Spencer, supra.

Appellant argues that the judgment of the trial court allowed the appellee to visit one, two, or all three of the children during the specified visitation, thereby dividing the children during that period of time which amounts to prohibited divided custody. The appellant cites a number of cases which it feels point out the error of the trial court. We have examined these cases and find that none are apposite to the case at bar. We find no merit to this contention by appellant either in fact or in law.

We likewise find no merit to appellant’s argument that the father should be denied visitation rights of his children because of an emotional problem. There is no medical evidence whatsoever in the record to support that contention.

Finding, not only that there is no manifest error in the trial court’s ruling, but on the contrary, such judgment to be justified, we affirm the judgment of the trial court.

All costs of this appeal are assessed against plaintiff-appellant, Judith Anne Hoover Gowins.

AFFIRMED.


text:
    Bernadine B. COCO et al., Plaintiffs-Appellees, v. ALLSTATE INSURANCE COMPANY et al., Defendants-Appellants.
    No. 7892.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.
    Provosty, Sadler & deLaunay, William H. deLaunay, Alexandria, for defendants-appellants.
    Tucker L. Melancon, Marksville, for plaintiffs-appellees.

      Gold, Little, Simon, Weems & Bruser, Edward E. Rundell, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   DOMENGEAUX, Judge.

Bernadine B. and Richard L. Coco seek damages for the wrongful death of their daughter, Cynthia Ann Coco. The facts are undisputed. On December 16, 1977, Cynthia, 17, was killed in an automobile accident while riding as a guest passenger in the front seat of a 1974 Chevrolet Vega owned by Prentiss P. St. Romain, and being driven with the permission of the owner by Paul M. St. Romain, Jr., the owner’s younger brother.

The trial court held that Paul M. St. Romain, Jr. was guilty of negligent conduct which caused, the death of Cynthia Ann Coco. This finding has not been appealed.

At the time of the accident there was in full force and effect between Prentiss P. St. Romain and Allstate Insurance Company, a policy of liability insurance which was issued and delivered to Prentiss P. St. Ro-main in North Carolina. The Allstate policy provided coverage for bodily injury in the amount of $15,000.00 and also provided uninsured motorist (UM) protection in the same amount. The policy excluded from the definition of an “uninsured automobile” an insured automobile (i. e. the St. Romain vehicle). Also, Travelers Insurance Company issued a policy of insurance to the Cocos providing uninsured motorist coverage in the amount of $10,000.00.

Prior to trial, Allstate paid the Cocos $15,000.00 plus interest under the bodily injury coverage of the Allstate policy. After trial, the court, applying Louisiana law, held the Cocos were entitled to receive, in addition to the liability benefits, which were already paid, the UM benefits of $15,-000.00. The court reasoned that Allstate’s exclusion of a vehicle with liability coverage from the definition of an uninsured vehicle was in derogation of the uninsured motorist statute, La.R.S. 22:1406(D), and would be given no effect. From that judgment Allstate has appealed.

The only issue before us is whether the Cocos may recover both liability and UM benefits under the Allstate policy insuring the 1974 Vega owned by Prentiss P. St. Romain.

Allstate relies upon Breaux v. Government Employees Insurance Company, 369 So.2d 1335 (La.1979) to support its contention that the trial court erred in holding the Cocos could recover under both the liability and the UM provisions of the Allstate policy; the Cocos cite Guillot v. Travelers Indemnity Company, 338 So.2d 334 (La.App. 3rd Cir. 1976), writ dismissed 341 So.2d 408, as authority for allowing this “double” recovery.

In Guillot, supra, Mrs. Guillot was injured in an accident while riding as a guest passenger in her husband’s car. The accident resulted from the negligence of her husband, the host driver. The Travelers Indemnity Company, which insured Mr. Guil-lot’s car, argued that certain exclusionary clauses in the policy precluded Mrs. Guillot’s recovery under the UM provisions of the policy. Essentially, these exclusionary clauses provided that, with respect to UM coverage, an “uninsured highway vehicle” did not include an insured automobile. According to these clauses, Travelers reasoned, if a guest passenger was injured in an accident caused by the sole negligence of the insured (although under insured) host driver, the guest passenger could recover only under the liability provisions of the policy insuring the automobile driven by the host driver. We rejected Travelers argument in Guillot and found the exclusionary clauses to be in derogation of La.R.S. 22:1406(D)(l)(a) and (2)(b) because they attempted to limit the class of tortfeasors against whom the policyholder was protected. Thus, we declared those clauses to be invalid and inoperative, 338 So.2d at 337, and allowed Mrs. Guillot to recover under both the liability and the UM provisions of her husband’s policy.

In Breaux v. Government Employees Insurance Company, supra, the Louisiana Supreme Court faced for the first time the issue of whether a claimant could recover under both the liability and uninsured motorist provisions of the same automobile insurance policy. The Court examined La. R.S. 22:1406(D) and determined that an “insured vehicle” and an “uninsured vehicle” could not be the same vehicle. The Supreme Court observed:

“In our view, the intent and effect of this provision is plain. A person insured under the uninsured motorist provision of a particular policy delivered or issued for delivery in this state with respect to a motor vehicle registered or principally garaged in this state must establish that he is legally entitled to recover damages from the owners or operators of uninsured or underinsured motor vehicles in order to obtain coverage thereunder. As to coverage under the uninsured motorist provisions of a particular policy, the statute thus contemplates two distinct motor vehicles: the motor vehicle with respect to which uninsured motorist coverage is issued and the ‘uninsured or underin-sured’ motor vehicle. In addition, as to each policy containing uninsured motorist coverage, the statute distinguishes between the person insured under the policy in question and the owner or operator of the uninsured or underinsured motor vehicle.” (Emphasis added) 369 So.2d at 1338.

The Supreme Court also, after a discussion of the provisions of the policy therein (which are substantially the same as those involved here) and La.R.S. 22:1406(D), stated:

“It is thus apparent that our uninsured motorist statute does not mandate protection under the host driver’s uninsured motorist coverage when the sole cause of the accident is the negligence of the host driver.” (Emphasis added) 369 So.2d at 1338-9.

The Supreme Court’s decision in Breaux was contrary to our decision in Guillot which was cited favorably by the First Circuit in its decision in Breaux, 364 So.2d 158 (La.App. 1st Cir. 1978), reversed 369 So.2d 1335. The First Circuit’s decision would have allowed the guest passenger to recover under both the liability and UM coverage of the host’s policy. The Supreme Court, by rejecting the First Circuit’s decision in Breaux (which was substantially the same as this Court’s decision in Guillot), impliedly overrules our decision in Guillot.

Since, under Breaux, the UM statute does not mandate protection under the host driver’s UM coverage when the sole cause of the accident is the negligence of the host driver, insurance companies are free to exclude such protection from the coverage afforded by their automobile insurance policies.

Such an exclusion exists under the instant facts. Under “Part 5. Protection Against Uninsured Motorists”, the Allstate policy provides: “... the term ‘uninsured automobile’ shall not include: (1) an automobile defined under Part 5 as an ‘insured automobile’ ”. Part 5 defines “insured automobile” as: “(a) an owned automobile provided the use thereof is by or with the permission of the named insured ...” The involved vehicle (Prentiss St. Romain’s 1974 Vega) was an owned vehicle driven with the permission of the named insured. Therefore, under express terms of the policy, the 1974 Vega could not be an uninsured (or underinsured) automobile. As this Court appreciates the Breaux case, this result is not prohibited by our uninsured motorist statute. Feeling obligated to follow the rationale of the Beaux case as decided by the Supreme Court, we conclude that the Cocos may recover only under the liability provisions of the host driver’s policy; they may not recover under the UM coverage.

Allstate argues alternatively that North Carolina law, rather than Louisiana law, should apply. North Carolina’s uninsured motorist statute expressly provides, in salient point: “.. . the term ‘uninsured motor vehicle’ shall not include: a. a motor vehicle owned by the named insured . . .. ” N.C. Gen.Stat. § 20-279.21(b)(3). Since the result would be the same whether North Carolina law, or Louisiana law, as interpreted by Breaux, is applied, the collateral issue of which state’s law applies loses importance and does not merit further consideration.

For the above and foregoing reasons, the judgment of the District Court is reversed insofar as it requires Allstate Insurance Company to pay to Bernadine B. and Richard L. Coco the sum of $15,000.00 pursuant to the uninsured motorist coverage of the Allstate’insurance policy. Accordingly, the judgment in favor of Bernadine B. Coco against Allstate Insurance Company is reduced from $20,000.00 to $10,000.00, and the judgment in favor of Richard L. Coco against Allstate Insurance Company is reduced from $10,000.00 to $5,000.00. Allstate Insurance Company is to be given credit for any sums previously paid to plaintiffs Bernadine B. and Richard L. Coco. In all other respects the judgment of the District Court is affirmed.

Costs of this appeal are assessed against Bernadine B. and Richard L. Coco.

REVERSED IN PART, AFFIRMED IN PART, AND AMENDED.

      . At the time of the accident, Paul M. St. Ro-main, Jr. was a resident of his parents’ household in Marksville, Louisiana. Prentiss P. St. Romain was not a member of his parents’ household.

      . The court also held that Travelers’ uninsured motorist coverage applied. Travelers has not appealed so that portion of the judgment is not before us.

      . La.R.S. 22:1406(D)(l)(a) and (D)(2)(b) provide as follows:
      “D. The following provisions shall govern the issuance of uninsured motorist coverage in this state.
      (l)(a) 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; ....
      ******
      (2).
      (b) For the purposes of this coverage the term uninsured motor vehicle shall, subject to the terms and conditions of such coverage, also be deemed to include an insured motor vehicle when the automobile liability insurance coverage on such vehicle is less than the amount of damages suffered by an insured and/or the passengers in the insured’s vehicle at the time of an accident, as agreed to by the parties and their insurers or as determined by final adjudication.” (Emphasis added).

      . The author of the case under review also authored Guillot.


author: LABORDE, Judge.

text:
    Bobby L. CROWLEY, Plaintiff-Appellee, v. HERMITAGE HEALTH AND LIFE INSURANCE COMPANY, Defendant-Appellant.
    No. 7904.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.

      Gravel, Robertson & Brady, James J. Brady, Alexandria, for defendant-appellant.
    Monty L. Doggert, Natchitoches, for plaintiff-appellee.
    Before FORET, DOUCET and LA-BORDE, JJ.
   LABORDE, Judge.

Bobby L. Crowley sued Hermitage Health and Accident Insurance Company as third party beneficiary of an accident policy issued by Hermitage to Crowley’s employer, Cecil E. Boswell. The trial court granted Crowley a default judgment. Hermitage appeals. We reverse. We hold that Crowley is not a third party beneficiary of the insurance agreement between Hermitage and Boswell. Thus, he can assert no rights under it.

Cecil Boswell hired Bobby L. Crowley as a truck driver for his trucking business. On December 28, 1978, Crowley was instructed to haul cross ties owned by Roy 0. Martin Lumber Company, Inc. On that day, while preparing to unload the cross ties from the truck, approximately five of them fell on Crowley, crushing his left leg and foot. It later became necessary to amputate Crowley’s left leg between the knee and ankle.

As a result of this work-related accident, Crowley instituted two suits. In one, Crowley sued Cecil Boswell and Roy 0. Martin Lumber Company, Inc., seeking payment of workmen’s compensation benefits. In that suit, the trial court determined that Cecil Boswell was Crowley’s immediate employer and that Roy 0. Martin Lumber Company, Inc., was his statutory employer. Therefore, both were liable in solido for Crowley’s workmen’s compensation benefits. The court also awarded penalties and attorney’s fees in that suit.

In a separate suit, here on appeal, Crowley sued Hermitage as third party beneficiary of an accident and health policy it issued to his employer Boswell. When Hermitage failed to answer timely, Crowley obtained a default judgment. Hermitage appeals this default judgment on several grounds.

In its brief to this Court, Hermitage urges as one assignment of error that “Crowley has no claim for benefits and has no standing to bring an action against Hermitage.” Before we address this issue, we first determine whether it is properly raised on appeal. Characterizing Hermitage’s contentions against Crowley as no cause or no right of action to institute suit, we hold these contentions are p operly raised on appeal as peremptory exceptions. See LSA-C.C.P. Art. 927 and Art. 2163.

We now proceed to decide whether Crowley is entitled to sue for benefits under the accident and health policy between Hermitage and Boswell. Crowley’s ability to sue under the policy hinges upon whether or not the insurance agreement contains a stipulation pour autrui in his favor.

At the outset we note that Boswell is a self-insured employer, thus exposing him to workmen’s compensation liability for work-related injuries suffered by his employees. Aware of this liability exposure, Boswell executed an insurance agreement with Hermitage. By the agreement, Boswell obligated himself to pay premiums in return for Hermitage’s promise to pay benefits to Boswell. The parties agreed that the triggering device for payment of benefits would be the occurrence of a work-related injury suffered by a Boswell employee. We think it apparent that this policy was designed specifically to provide indemnification protection to the employer, Boswell, and that it in no way attempts to establish indemnification protection for employees of Boswell. This is borne out by the very terms of the agreement specifically providing that all benefits are payable to Boswell or to persons rendering services to Boswell’s employees.

The general rule is that parties to a contract may stipulate only for themselves. As a result, a third person not a party to a contract lacks the relationship necessary to sue for recovery of any of the contractual benefits. Nevertheless, there is an exception recognizing that contracting parties may agree between themselves that a third person not a party to their contract may derive benefit from it. This is the stipulation pour autrui and it allows the third party, for whose benefit the advantage is stipulated, an action to enforce the stipulation. The requirements of a stipulation pour autrui are that it be in writing and that it clearly express the intent to benefit another. See LSA-C.C. Art. 1890 and Art. 1902. With respect to this second requirement of clear intent by the parties to benefit one not a party, Professor J. Denson Smith, in his law review article on third party beneficiaries, warned:

“But it is also true that not every promise, the performance of which may be advantageous to a third person, will create in him an actionable right. The problem is to separate the cases where an advantage has been stipulated from those where the advantage relied upon is merely an incident of the contract between the parties.”

With these criteria in mind, we now proceed to decide whether Boswell and Hermitage, through their agreement, sought to stipulate an advantage in Crowley’s favor allowing him to sue under the policy as a third party beneficiary or whether the advantage Crowley relies upon is instead merely an incident of the contract between Boswell and Hermitage making it one under which Crowley lacks any actionable right to sue upon.

Applying the above criteria, we conclude that the advantage Crowley relies upon is merely an incident of the agreement between Boswell and Hermitage and more importantly, that the agreement fails to show that Boswell and Hermitage clearly intended to stipulate an advantage in Crowley’s favor. Hence, Crowley is without an actionable right to sue under the policy.

Our finding of no actionable right under the policy pretermits the necessity of our ruling on the other issues raised on appeal.

For these reasons, the judgment of the trial court in favor of plaintiff is reversed and judgment is hereby entered in favor of Hermitage Health and Life Insurance Company dismissing plaintiff’s suit. Costs of this appeal are assessed against plaintiff-appellee.

REVERSED AND RENDERED.

      . Crowley later discovered that “Hermitage Health and Accident Insurance Company” was instead “Hermitage Health and Life Insurance Company”.

      . This was suit Number 45,993 entitled Bobby L. Crowley versus Roy O. Martin Lumber Company, Inc., et al., filed and tried in the Tenth Judicial District Court, Natchitoches Parish, Louisiana.

      . Part 5, Section (h) of the insurance agreement provides:
      “All benefits for loss of life shall be payable to the Employer. All other benefits, at the option of the Company, are payable either to the Employer or to the hospital or persons rendering such services; or jointly to both the Employer and to the hospital or persons rendering services.”

      . La.Civ.Code Art. 1889 provides:
      “No one can, by a contract in his own name, bind anyone but himself or his representatives;

      . La.Civ.Code Art. 1890 provides:
      “A person may also, in his own name, make some advantage for a third person the condition or consideration of a commutative contract, or onerous donation; ...”

      . Smith, Third Party Beneficiaries in Louisiana: The Stipulation Pour Autrui, 11 Tul.L.Rev. 18, 28 (1935).


text:
    MARTIN MILLS, INC., Plaintiff-Appellant, v. DEPARTMENT OF EMPLOYMENT SECURITY and Dorothy M. Stelly, Defendants-Appellees.
    No. 7907.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.
    Onebane and Associates, Robert W. Dai-gle, Lafayette, for plaintiff-appellant.
    Willie D. Maynor, Baton Rouge, for defendants-appellees.
    Before FORET, DOUCET and LA-BORDE, JJ.
   FORET, Judge.

This is a suit for judicial review of the eligibility of a claimant granted unemployment compensation benefits by the Department of Employment Security, State of Louisiana.

The claimant applied for unemployment compensation benefits and was determined to be eligible for such benefits by the local agency of the Department of Employment Security. The agency found that the claimant had requested and was granted a maternity leave of absence at the advice of her physician, Dr. Gerald Posner. The agency further found that after the leave of absence had been granted, Dr. E. E. Padgett had released the claimant to do light work until her delivery date. Claimant’s separation from employment was determined to be under non-disqualifying conditions.

The ruling of the local agency was appealed by the claimant’s employer, Martin Mills, Inc. The ruling was upheld by the appeals referee and the Board of Review for the Office of Employment Security.

A petition for judicial review of the Board of Review’s decision was then filed by the said employer in the Twenty-Seventh Judicial District Court, Parish of St. Landry. The Administrator of the Office of Employment Security and the claimant, Dorothy Stelly, were named defendants. The Administrator filed an answer pursuant to LSA-R.S. 23:1634 and prayed that the decision of the Board of Review be affirmed.

The district judge rendered judgment in favor of the Administrator, upholding the decision of the Board of Review and decreeing claimant to be eligible for unemployment compensation benefits. Martin Mills, Inc. has perfected this devolutive appeal from the judgment of the district court.

Martin Mills, Inc. (hereinafter the Appellant) presents two issues on appeal:

(1) Whether an employee who voluntarily requests a leave of absence from her employer as a result of her pregnant condition is entitled to unemployment benefits prior to the termination of the employee’s leave of absence, and
(2) Whether the claimant in this case removed herself from available work by restricting her willingness to work to conditions not usual or customary in the occupation, trade or industry.

We note at the outset that in unemployment compensation cases, the scope of review of this Court is confined to questions of law, and the findings of the Board of Review, as to facts, if supported by sufficient evidence, and, in the absence of fraud, are conclusive. LSA-R.S. 23:1634; Cotton Brothers Baking Company, Inc. v. Bettevy, 367 So.2d 1274 (La. App. 3 Cir. 1979); Lingo v. State, Department of Employment Security, 364 So.2d 1367 (La. App. 3 Cir. 1978).

The Board of Review adopted the findings of fact of the appeals referee. Those findings of fact are:

“FINDINGS OF FACT:
The claimant worked for this employer from January 7, 1977, to April 18, 1977, and again from June 15,1977, to June 19, 1978, as a sewing machine operator. Her pay was based on a combination of hourly pay and piece work and she averaged $3.42 per hour for her last pay period. The claimant was scheduled to work from 7:00 a. m. to 3:45 p. m., plus overtime when needed, Monday through Friday. On occasions the claimant was required to work on Saturdays. The claimant requested and was granted a maternity leave of absence at the end of her sixth month of pregnancy. The claimant was advised by her doctor that she stop working at that time. The claimant is expected to return to her employment after she is released by her doctor after the birth of her baby. The expected date of the birth of her child is during the last week of August 1978. The claimant submitted medical certification from her doctor stating that she may do light work until her delivery date. The claimant could no longer continue her employment with the employer, as it was causing her to have back pains due to the constant sitting at the sewing machine all day.”

We agree that these findings of fact are conclusive as they were based on sufficient evidence and there is no allegation of fraud.

The claimant, Dorothy M. Stelly, applied for a maternity leave of absence with the appellant on June 9, 1978. The claimant presented a note, with her request for leave, signed by Dr. Gerald Posner, in which he advised her to stop working. Appellant granted the leave of absence.

Dorothy Stelly then filed a claim for unemployment benefits, effective June 18, 1978. She presented a note from Dr. E. E. Padgett with her claim, in which the doctor advised that she could do light work .until her delivery date. She was subsequently determined to be eligible for such benefits.

The first question which we address is whether an employee who voluntarily requests and is granted a leave of absence by her employer as a result of her pregnancy is eligible for unemployment benefits prior to the termination of that leave of absence.

Appellant argues that, based on the findings of fact by the appeals referee, as well as the transcript of testimony taken by the appeals referee, the claimant is clearly disqualified as a matter of law from benefits under the Employment Security Act. LSA-R.S. 23:1601(1) provides that an individual shall be disqualified for unemployment benefits if the administrator finds that she has left her employment without good cause connected with her employment It is appellant’s contention that the cause of Dorothy Stelly’s leaving her employment, i. e., her pregnancy, is not a cause connected with her employment. We note that there is no specific disqualification for benefits found in LSA-R.S. 23:1601 based on the fact that an employee has left her employment because of pregnancy.

Our Supreme Court, in Algiers Homestead Association v. Brown, 246 La. 738, 167 So.2d 349 (1964) (See also South Central Bell Telephone Company v. Department of Employment Security, 389 So.2d 790 (La. App. 3 Cir. 1980), interpreted LSA-R.S. 23:1601(1) with regard to an issue similar to that raised in this case. That Court held that a woman who left her employment because she was pregnant certainly had good cause for doing so, “but this good cause was in no way connected with her employment”. The Court stated, 167 So.2d on page 351, that:

“[3] This subsection provides in plain language that an individual is disqualified for benefits if he leaves his employment without good cause connected with his employment. In the instant case certainly the claimant had good cause for leaving her employment-about this there could be no dispute-, but this good cause was in no way connected with her employment. To hold that she was entitled to unemployment benefits under the facts of this case the court would have to disregard the plain language of the statute and rewrite the law under the guise of interpreting it. In other words, the court would have to read out of the statute the words ‘connected with his employment-words which the Legislature specifically incorporated into the statute by amendment in 1952.”

The Court defined the policy of the law on pages 350 and 351 as follows:

“[1,2] The broad purpose of the unemployment compensation acts which have been adopted by various states is to provide a measure of economic security to those who are unemployed because industry does not provide enough jobs to employ all those available for, and seeking, employment. To accomplish this purpose the states have enacted varied disqualification provisions which will in their opinion insure that unemployment compensation payments will be received only by workers who are unemployed primarily as a result of economic causes. Stated another way, their purpose is to make sure that compensation is not paid to those who choose not to work, that the compensation law does not encourage idleness, and that it does not weaken the willingness of the individual to provide for himself through employment.”

It is clear that a woman who voluntarily requests and receives from her employer, a maternity leave of absence, is not unemployed primarily as a result of economic causes during the duration of that leave.

We note here that the record of testimony taken at the August 1, 1978 hearing before the appeals referee reveals testimony to the effect that appellant would have rehired the claimant if she felt she could work. Appellant’s representative testified before the appeals referee and stated that, “company policy is that we let a person or let a woman work as long as she and her doctor feel that she can still work”. Appellant’s representative then asked the claimant if she was willing to return to work immediately in the same position she originally held. The claimant replied that she could not do so. The claimant’s job consisted of sitting at a sewing machine and sewing pieces of clothing together. She indicated that her state of health was such that she could not perform this job. Appellant’s representative then testified that there was no lighter work than that available at the plant.

The trial judge, in his written reasons for judgment on the issue of whether the claimant was disqualified for benefits, cited a number of cases which he felt indicated that claimant was not disqualified. These were King v. Louisiana Department of Employment Security, 229 So.2d 387 (La. App. 3 Cir. 1969); Southern Bell Telephone and Telegraph Company v. Administrator, Division of Employment Security, 211 So.2d 634 (La.1968); and South Central Bell Telephone Company v. Administrator, Division of Employment Security, 247 So.2d 615 (La. App. 3 Cir. 1971), writ denied, 249 So.2d 210 (La.1971).

We have reviewed these cases and find that they can be readily distinguished from the facts of the case before us. The women in each of those cases sought to return to work after their maternity leave of absence had expired, but were not rehired because of economic reasons such as a slow down in the economy. However, in this case, the employer was willing to rehire the claimant at any time.

The trial judge also cites Turner v. Department of Employment Security, 423 U.S. 44, 96 S.Ct. 249, 46 L.Ed.2d 181 (1975) which he finds practically abolished, as unconstitutional, any flat rule denying benefits because of pregnancy. We fail to see the significance of this because LSA-R.S. 23:1601 does not contain any such rule and appellant did not argue that there was one. Therefore, we find that each of the authorities cited by the trial judge has no application to the issues before us.

We find that the claimant in this case requested and was granted a leave of absence. She had the opportunity to return to work with her employer at any time she felt she could do so. She failed to notify her employer that a second doctor had advised her that she could do light work, and, indeed, she refused to return to her job when her employer asked her to do so.

We hold that a female employee is disqualified for unemployment benefits as a matter of law for the duration of a leave of absence voluntarily requested by her and granted by her employer because she is pregnant, for the reason that such condition is not connected with her employment.

For the reasons assigned, the claimant, Dorothy Stelly, is hereby declared to be disqualified for unemployment compensation benefits. The judgment of the trial court affirming the decision of the Board of Review awarding such benefits is therefore reversed, annulled and set aside, and the decision of the appeals referee is likewise annulled and set aside.

REVERSED.

      . § 1601. Disqualification for benefits
      An individual shall be disqualified for benefits:
      (1) If the administrator finds that he has left his employment without good cause connected with his employment. Such disqualification shall continue until such time as the claimant (a) can demonstrate that he has been paid wages for work subject to the Louisiana Employment Security Law or to the unemployment insurance law of any other state or the United States, equivalent to at least ten times his weekly benefit amount following the week in which the disqualifying act occurred and (b) has not left his last work under disqualifying circumstances.
      Amended by Acts 1978, No. 285, § 1, eff. July 5, 1978; Acts 1978, No. 517, § 2; Acts 1978, No. 538, § 1, eff. July 12, 1978.


author: CULPEPPER, Judge.

text:
    Antha Lee DAUZAT, Plaintiff and Appellee, v. Malcolm J. DAUZAT, Defendant and Appellant.
    No. 7914.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1980.
    Harold J. Brouillette, Marksville, for defendant-appellant.
    Michael Johnson, Cottonport, for plaintiff-appellee.
    Before CULPEPPER, CUTRER and SWIFT, JJ.
   CULPEPPER, Judge.

Antha Lee Dauzat sues her husband, Malcolm J. Dauzat, for divorce and for past due alimony pendente lite. The husband does not contest the divorce, but he does contend appellee remitted her rights to alimony pen-dente lite by an oral agreement after judicial separation but before divorce. The district court granted the divorce and held defendant liable for $2,500 in back alimony pendente lite plus $250 in attorney’s fees. Defendant appeals only from that portion of the judgment awarding plaintiff past due alimony pendente lite and attorney’s fees. The wife answered the appeal, seeking an increase in the alimony award.

The issue is whether the obligation to pay alimony pendente lite may be waived or remitted by oral agreement between the spouses after the judgment of separation but prior to divorce without a modification of the judgment awarding the alimony. We conclude it may not.

Malcolm J. Dauzat and Antha Lee Dauzat were judicially separated on June 9, 1978. The judgment ordered defendant to pay his wife $500 per month as alimony pendente lite. Also, the judgment stated “said alimony shall terminate upon the plaintiff securing gainful employment, upon the completion of her schooling.”

For the first two months, defendant made all alimony payments in accordance with the separation judgment. In early August of 1978, Mrs. Dauzat informed her husband she desired to cash two certificates of deposit, which were community assets, and take her one-half of the proceeds. Defendant was unwilling to forfeit the interest on the certificates by early withdrawal. He also preferred a full community settlement rather than a piecemeal partition of the community. This impasse was avoided when Mrs. Dauzat, by oral agreement, offered to forego her right to future alimony pendente lite if her husband would agree to cash these certificates of deposit. The certificates were cashed the same day of the agreement, and Mrs. Dauzat received $22,-959, representing her one-half of the proceeds.

Following this agreement, defendant stopped making alimony payments to plaintiff. In October of 1979, plaintiff, through her new attorney, filed this suit for divorce and for past due alimony accruing from the date of defendants’ last payment. Her petition contained no reference to the agreement. At the hearing for divorce, plaintiff testified she agreed to waive her rights to alimony on the advice of her attorney that she would no longer be entitled to alimony if she received the proceeds from the certificates of deposit. Both defendant -and plaintiff’s former attorney testified that defendant’s sole reason for cashing the certificates of deposit was in exchange for plaintiff’s agreement to waive her right to further alimony pendente lite.

Counsel for appellant cites to us much authority from the law on remission of debt found in Book 3, Title IV, Chapter 5 of the Louisiana Civil Code entitled “Of The Manner In Which Obligations May Be Extinguished.” A judgment ordering the payment of alimony pendente lite, it is urged, represents nothing more than a debt, which, like any other debt, can be voluntarily remitted by the obligee. Appellant contends the agreement made in the office of plaintiff’s attorney constituted a valid remission of the debt, since a remission need not be in writing and no particular form is necessary. We do not agree.

A judgment ordering the payment of alimony pendente lite is not controlled by the above cited rules on remission of debts. LSA-C.C. Article 232 provides for the reduction or discharge from payment of alimony as follows:

“Art. 232. When the person who gives or receives alimony is replaced in such a situation that the one can no longer give, or that the other is no longer in need of it, in whole or in part, the discharge from or reduction of the alimony may be sued for and granted.”

Jurisprudence construing Article 232 has established the rule that the only remedy available to a husband to relieve himself of the obligation to pay alimony decreed in a judgment is by a judicial proceeding to have the judgment amended, suspended or terminated. In Pisciotto v. Crucia, 224 La. 862, 71 So.2d 226 (1954) the court held with regard to alimony ordered for support of the wife and children:

“... that liability cannot be avoided by simply claiming that the alimony was not due, since a reduction of alimony or a discharge from the obligation to pay may be granted only from and after the time when it is sought, by suit or in answer to a suit to enforce payment. Article 232, LSA-Civil Code; Snow v. Snow, supra, 188 La. at page 670,177 So. 793; Gehrkin v. Gehrkin, supra; Wainwright v. Wainwright, supra.”

In the more recent case of Rodriguez v. Rodriguez, 245 So.2d 765 (La.App. 4th Cir. 1971), the facts were similar to those in the present case in that there the wife, soon after the judgment awarding her alimony pendente lite, became gainfully employed and agreed to waive the alimony. Nevertheless, in the subsequent divorce proceedings, she sought judgment for the delinquent alimony pendente lite. Citing Pisciotto v. Crucia, supra, the court held:

“Applying the jurisprudence expressed in the foregoing authorities, the only remedy available to Mr. Rodriguez to relieve himself of the obligation imposed by the alimony decree would have been in a proceeding seeking to have the judgment amended, suspended or terminated.”

Applying these rules to the present case, the only way Mr. Dauzat could have relieved himself from paying the alimony pendente lite ordered in the separation judgment was by petition to the court for a modification of the judgment. Having failed to file such a proceeding, he is liable for the full alimony awarded by the decree.

We are aware of the recent decision by our Supreme Court in Moga v. Dubroc, 388 So.2d 377 (La.1980). In that case the divorce judgment gave custody of two children, a boy and a girl, to the mother and ordered the father to pay $250 per month in child support. Shortly thereafter, the parents agreed the father would take care of the boy in his own home and reduce his payments to the mother to the sum of $125 for the girl. They complied with this agreement for four years. Then the mother sued the father for delinquent child support in the sum of $4,500 not paid in accordance with the judgment. The trial judge, relying on Halcomb v. Halcomb, 352 So.2d 1013 (La.1977), gave the mother judgment for the unpaid child support. The Court of Appeal reversed, distinguishing Halcomb on the basis that Mrs. Dubroc agreed to the reduction of child support, whereas in Hal-comb the father acted unilaterally.

The Supreme Court, affirming the Court of Appeal, stated:

“Halcomb and the cases upon which Hal-comb relies (e. g., Pisciotto, supra) rest on a strong policy in the area of child custody judgments to safeguard the sanctity of judgments and the orderly processes of law, and to prevent husbands from invoking ‘self-help.’ It is an effort by the courts to prevent over-reaching by husbands compelled to pay estranged wives support for their children. The cases have interpreted Civil Code Article 232 to require this result, namely, to require parties to resort to the courts for any alteration in a custody decree.
******
“The Civil Code nowhere mandates a lawsuit for a change in alimony, and the Code of Civil Procedure merely provides for the proper procedure in seeking ar-rearages. This Court in Halcomb and earlier in Pisciotto engrafted a jurisprudential rule onto the alimony statutes to the effect that absent a lawsuit to alter an alimony decree the plaintiff in a rule for arrearages would be entitled to the full amount under the prior judgment up to three years prior to the rule.”

The Supreme Court in Moga then stresses the duty of the parent to support the child, as distinguished from other types of alimony, and concludes:

“Since the parent’s duty of support and upbringing is a legal duty owed to the child, it cannot be renounced or suspended. There is no prohibition, however, expressed by the law against a spouse’s agreement to suspend his right to compel the other parent without custody to turn over to him in advance money necessary for the child’s maintenance. Of course, an essential prerequisite to such a conventional modification of a parent’s right to receive support payments is implied. The parent may not, by suspension of this right, thwart the purpose for which the right is established, i. e., the enforcement of the child’s right to support and upbringing.
“For these reasons, an agreement by a parent to suspend his right to receive child support payments will not be enforced unless it meets the requisites for a conventional obligation and fosters the continued support and upbringing of the child. To allow the parent to suspend his right to receive support payments under circumstances contrary to the child’s interests, would be inimical to the ultimate goal of support and upbringing of the child. On the other hand, if the parties clearly agree to a suspension of the .payments, and such agreement does not interrupt the child’s maintenance or upbringing or otherwise work to his detriment, the agreement should be enforceable.”

After careful study, we do not find Moga overrules Pisciotto as to alimony payments for support of the wife. The Moga decision appears to be carefully limited to child support agreements entered into by both the mother and the father and which foster the child’s maintenance. The court takes note of Pisciotto but does not overrule it except in the limited situation presented. Pisciotto is still controlling in the present case.

Having decided this case under Pisciotto, we do not reach the question of the wife’s incapacity to contract prior to divorce.

Mrs. Dauzat, in her answer to this appeal, seeks an increase in the award of back alimony. She claims she is entitled to arrearages from the time of defendants’ last payment up until the judgment of divorce was rendered in April of 1980. The district court, adhering to the express provisions of the judgment of separation, awarded past due alimony only up until the time she secured gainful employment as a hairdresser in January of 1979. Thus, he found defendant was required to pay alimony for seven months, and that he had paid for two months, leaving five months, a total of $2,500, past due.

Plaintiff contends she did not earn enough as a hairdresser to support herself, and that she is not now employed. There is some question from the evidence as to how much plaintiff earned and how long she worked. These are factual questions as to which we do not find the trial judge was clearly wrong.

For the reasons assigned, the judgment appealed is affirmed at the cost of defendant-appellant.

AFFIRMED.

SWIFT, J., concurs in the result.


author: SAMUEL, Judge.

text:
    George WERNER v. SOUTHERN FOREST PRODUCTS ASSOC., Daniel Harigan and Commercial Union Assur. Comp.
    No. 10924.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 1980.
    Rehearing Denied Dec. 19, 1980.

      Gauthier & Murphy, T. Peter Breslin and Patrick J. McCabe, Kenner, for plaintiff-appellant.
    Drury & Lozes, Felicien P. Lozes, New Orleans, for defendants-appellees.
    Before SAMUEL, SCHOTT and SAR-TAIN, JJ.
   SAMUEL, Judge.

Plaintiff filed this $1,337,922.98 suit for personal injuries and property damages allegedly resulting from an automobile collision. Following trial to a jury there was judgment in favor of plaintiff in the sum of $302.18, representing property damages only. Thereafter, plaintiff filed a rule for additur and alternatively for a new trial. The rule was denied. Plaintiff has appealed seeking an award for personal injuries in the sum of $150,000.

Plaintiff is a thirty-five year old police officer. The accident occurred on December 30, 1975. The defendant driver was backing out of a parking space in a bank parking lot and struck plaintiff’s vehicle. The impact was slight. According to plaintiff, he felt nauseous and remained in the car for some time, then went into the bank where someone reported the accident.

According to the defendant driver: He immediately stepped out of the van and asked plaintiff if he was “O.K.”; plaintiff said he was not hurt and went to call the police to report the accident. Shortly thereafter an ambulance and a police car passed the scene (apparently responding to another call) and plaintiff rushed down the street after the vehicles, causing both to return. The ambulance then left because it was not needed and the parties gave their versions of the incident to the police officers investigating the accident. He did not hear plaintiff complain of injury at the time. (However, we note the report indicates plaintiff stated he was injured.)

Thereafter, plaintiff was treated by Dr. Ignatious Tedesco who saw him on about 200 occasions and rendered a bill of $5,300. Dr. Tedesco did not testify. He was under subpoena but possibly because of a medical emergency did not appear. Plaintiff did not request that the case be held open for his testimony.

Medical testimony was given by Dr. Anthony Failla, an ear, nose and throat specialist, Dr. Norman Hunt, a radiologist, and Dr. Jose Garcia Oiler, a brain surgeon. Lay testimony was given by plaintiff, Grace Loyacano, August Werner (plaintiff’s brother), and Steven London, plaintiff’s roommate for two years (from April 3, 1975 to May, 1977).

Plaintiff testified: He graduated from the police academy in 1965 and rose to the rank of Sergeant. While on duty in March, 1974 he was involved in a serious accident in the police van. He was hospitalized with severe pains, loss of hearing, contusion on the left side of the head and dizziness. He returned to duty in August, 1974. On December 6, 1974 he was involved in a second accident when struck by a tanker-truck. His vehicle was demolished and he was out of work for one and one-half months, after which time he returned to light duty. Dizzy spells diminished and were insignificant and he returned to full duty in August, 1975.

Plaintiff further testified: As a result of this, his third accident, he again suffers vertigo which renders him unfit for police duty. He tried to return to work in March, 1976 and June, 1976 but because of severe attacks of vertigo is unable to drive, and thus is unable to work. He is receiving Social Security disability benefits and has applied for a police disability pension. The request was denied. He has not worked since June, 1976 and his only income is money borrowed from his brothers and mother.

Although he claimed no earned income, it was established that he received an out-of-court settlement for his December, 1974 and March, 1975 accidents, that he is a part owner of family land on the lakefront leased to The Bounty Restaurant, for which his mother receives the revenues, and is a part owner of Werner Enterprises which borrowed $350,000 to erect an office building with an apartment on the lakefront. Thus, he has substantial assets. He claims he is unable to drive because of vertigo but he has renewed his driver’s license, not disclosing his disability to the examining officer so, he says, he can use his license for identification purposes and he has driven about five weeks before the trial.

The brother and the roommate testified in general that plaintiff complains of sporadic episodes of dizziness. Miss Loyacano, his former girl friend, dated him once or twice a week during 1974-1976 and doesn’t remember whether he was dizzy or not on any of the occasions when they went to a movie or dancing.

Dr. Failla testified he examined plaintiff on September 21, 1976. Plaintiff complained of hearing problems and dizziness. He diagnosed plaintiff’s medical problems as vertigo and high frequency loss of hearing in the left ear. The prognosis was improved from the previous injury having reached maximum improvement. He was of the opinion the vertigo was caused by the prior March, 1974 accident.

Dr. Failla obtained a history and reviewed reports of previous physicians who examined plaintiff. He concluded plaintiff had a hearing deficit in the left ear for high pitched tones. He referred plaintiff to Dr. Wallace Rubin for an electronystagmogra-phy study (to determine damage, if any, to the equilibrium center). X-rays showed some subluxation of the cervical vertebra 3, 4 and 5, with narrowing of the inner space.

Based upon plaintiff’s history and other findings, the doctor determined plaintiff sustained damage to his equilibrium and to the high pitched tones of his hearing. Studies of plaintiff in 1974 and 1975 showed marked improvement from the 1974 study so the doctor concluded plaintiff had improved from his 1974 injury, but had no way of telling if the 1976 findings showed an improvement over the 1975 studies.

The doctor never saw plaintiff have an attack of dizziness and stated the complaints originated after the 1974 accident. He concluded the loss of hearing originated with the 1974 accident but could not say so with certainty because he did not examine plaintiff before this injury. The subluxation was also revealed in the 1974 x-rays.

Dr. Norman Hunt testified relative to x-rays taken in March, 1974, December, 1974 and December, 1975. After the March, 1974 x-rays, anterior subluxation at C3 and C4, on C5 showed loss of normal cervical curve. X-rays after the December 6, 1974 accident revealed normal cervical vertebrae and after the December 30, 1975 accident, x-rays revealed anterior subluxation of C3, C4 and C4-C5. On August 23, 1975 the subluxation on one area was gone, but still present on C3 and C4.

Dr. Garcia Oiler saw plaintiff on December 23,1974 after the accident of December 3,1974. Plaintiff complained of pain in the neck, dizziness, loss of hearing and fear of driving. He was also seen in December, 1975 complaining of inner ear problems and severe loss of equilibrium. Dr. Oiler thought he should see a psychiatrist. He considered all three accidents contributed to plaintiff’s problems, that plaintiff never recovered from the first accident before he got into a second and third accident. Plaintiff was hospitalized in November, 1977 after a vertigo attack and in September, 1978, he had another fall due to vertigo.

In this court appellant contends: (1) The jury abused its discretion in failing to accept uncontested medical evidence; and (2) the verdict was based on inflammatory argument of defendant’s counsel. We do not agree with either contention.

A reading of the transcript in its entirety reveals the jury was well within its wide discretion in finding plaintiff had failed to sustain its burden of proof that his personal injuries resulted from the accident in suit and we conclude it was not clearly wrong by so holding. Apparently they believed those injuries resulted from the prior accidents, and the record contains evidence which supports that conclusion. We find no abuse of discretion.

Plaintiff also argues comments by defense counsel adversely affected the jury. He does not point to any particular statement or statements, and our examination of the record does not reveal any comments of defense counsel sufficiently prejudicial to warrant setting aside the jury’s verdict. Counsel for the defendant had the right to comment on the testimony of plaintiff and his witnesses, and our conclusion is further strengthened by the absence of objection to comments by counsel for plaintiff.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . See Canter v. Koehring Company, La., 283 So.2d 716; Arceneaux v. Dominque, La., 365 So.2d 1330.

      . See Troxler v. Hertz Corporation, La.App., 385 So.2d 507; and Wilson v. Virgademo, La.App., 258 So.2d 572.