author: DOUCET, Judge.

text:
    PARGAS, INC., et al., Plaintiffs, Hartford Accident & Indemnity Company, Plaintiff and Appellant, v. ESTATE of Leonard Parvin TAYLOR, et al., Defendants and Appellees.
    No. 82-74.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.

      Gist, Methvin, Hughes & Munsterman, John W. Munsterman, Alexandria, for plaintiff and appellant.
    Gold, Little, Simon, Weems & Bruser, Donald Sharp, Alexandria, for defendants and appellees.
    Before FORET, SWIFT and DOUCET, JJ.
   DOUCET, Judge.

This is an employee embezzlement — commercial paper case. During the course of his employment as a district manager for Pargas, Inc., Leonard Taylor diverted checks, beginning in April of 1975, with his employer named as payee, into his personal account at Rapides Bank and Trust Co. in Alexandria, Louisiana. He did so by endorsing the checks with a rubber return address stamp, imprinted as follows:

PARGAS

Post Office Box 1887

Alexandria, Louisiana 71301

Some of the checks were also endorsed with his personal signature. Rapides Bank never obtained a corporate resolution authorizing Mr. Taylor to endorse checks on behalf of Pargas nor was there any authorization received for deposit of said checks into Taylor’s personal account.

A company audit, conducted in 1977, revealed the embezzlement and Taylor subsequently confessed his embezzlement in the sum of $28,262.59 and agreed to reimburse his employer. Thereafter Taylor died, apparently from the result of suicide.

Pargas was insured against loss by theft or embezzlement by a policy issued by Hartford Accident & Indemnity Co. The claim between insured and insurer was subsequently settled by the payment of $62,000 to Pargas, Inc. and Hartford obtained an assignment and subrogation of the rights of Pargas. Thereafter Hartford brought this action against Rapides Bank & Trust Co. for their wrongful honor of the forged instruments, and against the Estate of Leonard Taylor for his embezzlement. The claim against Rapides Bank involves 64 checks totalling $17,805.59 payable to the order of Pargas, Inc. but deposited to the personal account of Mr. Taylor at the Rap-ides Bank. As suit was filed on November 28, 1978, appellant correctly concedes that those checks deposited by Mr. Taylor to his personal account prior to November 28, 1975 are not at issue as the three-year statute of limitations set forth in R.S. 10:4-406(4) is applicable thereto.

The trial judge dismissed the claims of Hartford against Rapides Bank on the grounds that Taylor had the implied authority to endorse checks on behalf of Pargas, and there was no evidence that the bank had actual knowledge that the deposit of such funds into Taylor’s personal account constituted a breach of his fiduciary duties. The trial judge further noted, that as a matter of equity, the loss should be borne by the party employing the dishonest employee as they were in a superior position to prevent the loss by auditing his activities. From that judgment Hartford appeals.

This appeal requires a determination of the legal rights and responsibilities of two relatively innocent parties who were victimized by the criminal activities of the employee Taylor, who forged the payee’s endorsement. (The claims of plaintiff against the Succession of Leonard Taylor are not presently before this court.) The precise question appears to be one of first impression in Louisiana since adoption of the relevant chapters of the Uniform Commercial Code. Accordingly we look to the law of other jurisdictions.

LSA-R.S. 10:3-419(1) provides that “when a person pays an instrument on a forged endorsement, he is liable to the true owner.” The measure of the drawee’s liability is the face amount of the instrument. R.S. 10:3-419(2). The third paragraph of said section provides that a depository or collecting bank, who is in good faith and in accordance with the reasonable commercial standards applicable to the business of such representative who dealt with an instrument or its proceeds on behalf of one who was not the true owner is not liable to the true owner beyond the amount of any proceeds remaining in his hands.

Defendant contends that it is absolved of liability by virtue of the following provisions of LSA-R.S. 10:3-304:

(2) The purchaser has notice of a claim against the instrument when he has knowledge that a fiduciary has negotiated the instrument in payment of or as security for his own debt or in any transaction for his own benefit or otherwise in breach of duty.
* * * * * *
(4) Knowledge of the following facts does not of itself give the purchaser notice of a defense or claim, (emphasis added)
******
(e) that any person negotiating the instrument is or was a fiduciary.

In support thereof the bank contends the above provisions require actual knowledge of the fiduciary’s breach of duty before it can be held liable. The remaining defense, related thereto, is that Taylor had either apparent or implied authority to endorse the checks.

We find that the purchaser Rapides Bank had knowledge, either actual or implied, that Taylor was negotiating the instrument for his personal benefit.

The Uniform Fiduciaries Act did away with the payee’s liability for negligence in failing to investigate the use to which the fiduciary was putting the funds, and substituted a new test: For the payee to become liable under this Act it must be found either that it had actual knowledge of the misappropriation or that it acted in bad faith. Colby v. Riggs National Bank, 67 App.D.C. 259, 92 F.2d 183, 114 A.L.R. 1065 (1937); Maryland Casualty Company v. Bank of Charlotte, 340 F.2d 550 (U.S. App. 4th Cir. 1965). In the latter aforementioned ease it was held that the payee bank was liable to the corporation’s surety due to its application of checks, payable to the bank and drawn on the corporation’s accounts in other banks, to the secretary’s personal account and outstanding loans, notwithstanding the existence of a corporate resolution protecting the bank from liability for assisting a fiduciary in misappropriation.

We take judicial notice of the fact that checks payable to a corporation are not normally endorsed in blank by use of a return address stamp and delivered to third parties. The collecting bank should have inquired as to the reason and authority for the deposits of corporate checks into Taylor’s personal account. However, the evidence clearly shows that Rapides Bank never obtained a corporate resolution authorizing Mr. Taylor to endorse checks on behalf of Pargas nor was there any authorization received for deposit of corporate checks into Taylor’s personal account. Indeed, Rapides Bank made no inquiry whatsoever. Not only does such conduct fall below reasonable commercial standards, but it also violates defendant’s internal procedures which the record discloses to require bank employees to obtain a resolution from the principal prior to acceptance of such checks. Mr. John Leavines, a senior vice-president and long-time employee of the Rapides Bank testified that it was the standard operating procedure of the Rapides Bank to obtain a resolution authorizing someone to execute checks on behalf of the corporation when opening a corporate account. However none was obtained from Pargas, Inc. It was commercially unacceptable for the bank to remain passive, disregard and refuse to learn facts readily available. They cannot now seek refuge under the fiduciary proviso of R.S. 10:3-304(4)(e).

Defendant Rapides Bank also contends that Taylor had the apparent authority to conduct the banking transactions involved on behalf of Pargas. In support thereof Rapides Bank emphasizes Taylor’s managerial status, with its accompanying duties, and his use of the rubber stamp. However, it is well established that the mere fact that an employee has managerial status' and is in charge of a company’s office does not entitle third persons to assume that he has authority to execute or endorse negotiable paper belonging to his employer. Guillory v. Braswell Motor Freight Lines, Inc., 256 So.2d 646 (La.App. 2nd Cir. 1972), writ ref. 260 La. 1134, 258 So.2d 381 (1972); Massey-Ferguson, Inc. v. Fargo National Bank, 270 F.Supp. 227 (N.D.1967), aff’d. 400 F.2d 223 (8th Cir. 1968); Mott Grain Co. v. First National Bank & Trust Co., 259 N.W.2d 667 (N.D.1977). If mere employment furnished apparent authority to endorse checks no business would be safe. There was no apparent authority to justify the actions of Rapides Bank.

The judicially created doctrine of apparent authority has two requirements: (1) the principal must make some form of manifestation to an innocent third party; and (2) the third party must rely reasonably on purported authority of the agent as a result of the principal’s manifestations. Lilliedahl & Mitchell, Inc. v. Avoyelles Trust and Savings, 352 So.2d 781 (La.App. 3rd Cir. 1977). Here, assuming defendant can rightly be considered an innocent party entitled to the doctrine’s protection, there was no manifestation whatsoever by the principal. The furnishing of a rubber stamp bearing the name and address of the principal, a commonplace occurrence, did not cloak Taylor with apparent authority to endorse corporate checks and receive payment for them. Whatever appearance of authority the stamp created arose from the actions of Taylor himself and not Pargas. Furthermore, the reliance of Rapides on the authority of Taylor to apply corporate checks to his personal benefit was not reasonable under the circumstances presented.

As stated in Lilliedahl, supra, “Banks stand in a peculiarly unique place in the business world. They are entrusted with huge sums of money by their depositors and must proceed cautiously when dealing with deposited sums. We also note that it is axiomatic that a corporation can only act through individuals and these individuals must be given legal power to act on behalf of a corporation.” These principles apply with equal force to the case at bar.

Nor is this a case for application of UCC § 3-405 involving issuance of a negotiable instrument induced by an imposter as clearly Taylor was not impersonating anyone. The imposter rule does not extend to a false representation as to agency. See: Annot. 92 A.L.R.3d 608. Likewise this is not a case of a fictitious payee.

Furthermore, we find that Par-gas did not ratify the unauthorized endorsement of Taylor. It is well established that in order for ratification to occur the person to be bound must, with full knowledge of all material facts, express an intent to ratify the unauthorized act. Clearly Pargas was unaware of Taylor’s embezzlement and due to the employee’s conniving control of the books, his employer was unlikely to readily discover same. The account was in Taylor’s name, thus the corporate bank statements would not have disclosed the fraud. The general rule is that the laxity of an employer in supervision of the performance of employees’ duties does not afford a defense to a bank which has accepted checks on an endorsement forged by the employee as the primary obligation to determine whether there is a forged endorsement is rightly placed on the bank whose business is banking. See: California Stucco Co. v. Marine National Bank, 148 Wash. 341, 268 P. 891 (1928); Standard Steam Specialty Co. v. Corn Exchange Bank, 220 N.Y. 478, 116 N.E. 386; Hamlin’s Wizard Oil Co. v. U.S. Express Co., 265 Ill. 156, 106 N.E. 623; Annot. 87 A.L.R.2d 638.

The courts have uniformly rejected similar arguments urged on behalf of banks in the position of appellee. The established law throughout the country is that the pay- or bank must pursue the forger and bear any ultimate loss under such circumstances.

In Massey-Ferguson, Inc. v. Fargo National Bank, 270 F.Supp. 227 (N.D.1967), an action by the corporation to recover proceeds of checks, made payable to corporation which were accepted by the bank upon forged endorsement by the employee district manager, it was held that the bank could not establish a custom and confer authority upon an unauthorized agent by recognizing the agent’s acts over a period of time and then relying upon such custom as conferring apparent authority in absence of the employer’s knowledge of the custom. The court therein further held that the doctrine of apparent authority was inapplicable, stating:

“. . . During the entire period of time during which the checks were accepted the only information in the bank’s possession concerning Geering’s authority was knowledge of his employment by Massey-Ferguson as district manager. Even this meager knowledge was furnished by Geering. The mere fact that an employee has charge of a company’s office does not entitle third persons dealing with the employee to assume that he has the authority to execute or endorse the company’s negotiable paper.” (citations omitted)

The court in Massey-Ferguson relied in part on Gresham State Bank v. O and K Construction Co., 231 Or. 106, 370 P.2d 726, wherein it was stated:

“In the ordinary case it seems proper that the negligent payor, rather than the negligent principal, should bear the loss caused by an agent’s unauthorized endorsement of his principal’s check. An important factor supporting this conclusion is the relative ease with which the payor, having knowledge of the agency, can ascertain the agent’s authority, as compared with the difficulty with which an employee’s dishonesty may be detected by his employer. The employer must overcome the obstacles which the employee devises for the very purpose of making it difficult to detect the defalcations. Certainly under the circumstances of the present case, it was more reasonable for the officers of the O and K Construction Company ... to assume that their employee was honest than it was for Zimmerman ... to assume that he had the authority to endorse checks and receive payment in cash for no ostensible corporate purpose.”

The court in Gresham went on to hold that even though the employer was negligent in failing to scrutinize its records over a 3-year period during which the defalcation occurred, such did not preclude the corporate payee from prevailing on the ground that its negligence substantially contributed to the forgery as the payor failed to inquire as to the employee’s authority to endorse checks thereby failing to act in accordance with reasonable commercial standards of its business.

The employer in Atlantic Trust Co. v. Subscribers to Auto. Ins. Exchange, Keystone Indem. Co., 150 Md. 470, 133 A. 319 (1926) had employed a resident manager who opened an account in his own name with defendant bank, and during a period of several months endorsed 36 checks made payable to his principles by using a rubber stamp he found in the office bearing plaintiffs’ business name, and writing his own name after the affixing of the stamp, describing himself as resident manager. The bank honored these checks and deposited the proceeds thereof to the private account of such employee, who then checked the moneys out of such account and appropriated them to his own use (as here). Upon discovery of the forgeries, the plaintiffs brought suit against the collecting bank. In allowing plaintiffs recovery for the amount of the checks against defendant bank, the court stated that the mere fact that the employee held the title of resident manager did not constitute a delegation of apparent authority to endorse checks payable to plaintiffs, and stated that the controlling rule was that a principal can be bound by the acts of another as his agent only so far as the principal empowers or permits the agent to represent him, and if a bank has been misled by an appearance of authority not known and acquiesced in by the principal, and so has accepted unauthorized endorsements, the bank is answerable for the loss. Annot: Check — -Unauthorized Indorsement, 100 A.L.R.2d 100, A.L.R.2d 670.

Under similar circumstances, the court in Belmar Trucking Corp. v. American Trust, 65 Misc.2d 31, 316 N.Y.S.2d 247 (1970) stated:

“It was a palpable excess of authority and any person taking the paper was bound to inquire as to the power of the agent so to contract . .. ‘No businessman of common intelligence could take these checks in good faith, and without suspicion or notice of this fraud.’ ”

In Rochester & C.T.R. Co. v. Paviour, 164 N.Y. 281, 58 N.E. 114, where the fact situation, although different, was related, the court made this pertinent observation:

“One who suspects, or ought to suspect, is bound to inquire, and the law presumes that he knows whatever proper inquiry would disclose. While the courts are careful to guard the interests of commerce by protecting the negotiation of paper, they are also careful to guard against fraud by defeating titles taken in bad faith, or with knowledge, actual or imputed, which amounts to bad faith, when regarded from a commercial standpoint.”

In R. Mars, The Contract Co. v. Massanutten Bank of Strasburg, 285 F.2d 158, 87 A.L.R.2d 633, (U.S.App. 4th Cir. 1960), the corporate payee of a number of checks sought recovery of the proceeds of the checks, which had been accepted by the defendant bank for deposit and credited to the individual account of an employee of the corporation upon the employee’s forged endorsements. In effecting his scheme, the employee took advantage of unbusinesslike conduct of the corporation's affairs and lack of careful supervision of its employees. The corporation had no direct dealings with the bank and did nothing constituting a representation to the bank that the employee was authorized to endorse the checks in the manner in which they were endorsed. Held: any negligence on the part of the corporation was too remote from the bank’s acceptance of the forged endorsements to be regarded as a proximate cause of the resulting loss. Accord: Massey Ferguson, Inc. v. Fargo National Bank, supra.

See also: Salsman v. National Community Bank of Rutherford, 102 N.J.Super 482, 246 A.2d 162 (1968); National Bank of Georgia v. Refrigerated Transport Co., Inc., 147 Ga.App. 240, 248 S.E.2d 496 (1978); E. L. Von Gohren v. Pacific National Bank of Washington, 8 Wash.App. 245, 505 P.2d 467 (1973), wherein it was held that failure to inquire into the validity of the endorsements in question precluded the bank from asserting the defense of commercial reasonableness as a matter of law; Sheriff — Goslin Co. v. Cawood, 91 Mich.App. 204, 283 N.W.2d 691 (1979); and cases cited therein.

Appellees’ reliance on Peoples Cotton Oil Co., Ltd. v. Hunt Foods & Industries, Inc., 147 So.2d 687 (La.App. 4th Cir. 1962), is misplaced for two equally valid reasons: the case pre-dated Louisiana’s adoption of the relevant U.C.C. provisions, and the facts are inapposite. Similarly, Ashley-Hall Interiors, Ltd., Inc. v. Bank of New Orleans, 389 So.2d 850 (La.App. 4th Cir. 1980) is inappo-site as it involved substantial employer negligence contributing to the employee’s raising checks drawn on the corporate account, payable to the employee.

We find no case on point reaching a contrary result. This is rightly so inasmuch as the Uniform Commercial Code was, of course, designed to “promote uniformity of the law among the various jurisdictions.” LSA-R.S. 10:1-102(2)(c). Provisions of the code should be construed so that rights and liabilities of the parties, absent serious factual dispute, are ascertainable without resort to expensive and delaying litigation over each item which might be paid on an unauthorized signature or endorsement, thereby facilitating commercial transactions.

For the reasons assigned the judgment appealed from denying the claims of Hartford Accident & Indemnity Company against Rapides Bank & Trust Co. is reversed and judgment is granted in favor of Hartford Accident & Indemnity Co., and against Rapides Bank & Trust Co., in the sum of $17,805.59, with interest from date of judicial demand. Costs are to be taxed against appellee.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: FORET, Judge.

license: Public Domain

text:
    Elizabeth Cannatella POOLE, Plaintiff-Appellant, v. AMERICAN BANK & TRUST COMPANY, Lafayette, La., Charles N. Wooten, Ltd., and Charles N. Wooten, Defendants-Appellees.
    No. 82-79.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    Kenneth W. DeJean, Lafayette, for plaintiff-appellant.
    Charles N. Wooten, Ltd. by Robert P. Brenham, Lafayette, for defendants-appel-lees.
    Voorhies & Labbe, James P. Lambert, Lafayette, for defendants-exceptors.
    Before FORET, STOKER and DOUCET, JJ.
   FORET, Judge.

A number of related actions brought to recover damages for wrongful seizure were consolidated for purposes of this appeal. These actions will be referred to throughout the remainder of this opinion by their trial court docket numbers. This Court will render separate judgments in each of these cases for the reasons expressed in this opinion.

Defendants filed various exceptions in each of these actions. The trial court, after trial, rendered judgment sustaining defendants’ peremptory exceptions of prescription filed in actions # 73,782-1, 73,784-2, 73,-785-1, and 73,786-2, dismissing those actions without prejudice. The trial court further rendered judgment sustaining a dilatory exception of prematurity filed by certain defendants in 73,783-1 dismissing that action without prejudice.

Plaintiffs, in actions # 73,782-1, 73,784-2, 73,785-1 and 73,786-2, appeal devolutively from the trial court’s judgment and raise the identical issue of:

Whether the trial court committed manifest error in sustaining defendants’ peremptory exception of prescription.

Plaintiffs in action # 73,783-1 (our docket # 82-80), 416 So.2d 1369, also appeal devolutively from the trial court’s judgment sustaining defendants’ dilatory exception of prematurity. These plaintiffs have failed, however, to file a brief with this Court. Thus, we dismiss their appeal.

FACTS

These actions for damages for wrongful seizure all arise out of the seizure of certain property, allegedly belonging to plaintiffs, pursuant to a writ of fi.fa. issued on the basis of a default judgment signed February 12, 1975, in American Bank & Trust Co. v. Marbane Investments, Inc., et al, Docket No. 68,249-1, 27th Judicial District Court, St. Landry Parish, La. On remand from a judgment rendered in American Bank & Trust Co. v. Marbane Investments, Inc., 337 So.2d 1209, on rehearing, 337 So.2d 1213 (La.App. 3 Cir. 1976), the trial court declared the above mentioned default judgment to be a nullity. American Bank & Trust Company v. Marbane Investments, Inc., supra, provides a concise summary of the pertinent facts leading up to the present litigation, and we see no need to repeat them here.

PRESCRIPTION

Plaintiffs contend that the trial court committed manifest error in sustaining defendants’ peremptory exceptions of prescription filed in the four actions noted above. They argue that prescription has yet to begin to run against their actions for damages for wrongful seizure because there has been no determination made as to whether their property was, in fact, wrongfully seized. On the other hand, defendants argue that plaintiffs’ actions have prescribed since they were brought more than one year after the last seizure of property took place.

The crucial issue to be decided is whether prescription begins to run against an action for damages for wrongful seizure from the date on which the seizure took place, or from the date on which the seizure is judicially declared to have been wrongful. For the following reasons, we find that prescription begins to run against such an action from the date on which the seizure is judicially declared to have been wrongful.

Hernandez v. Harson, 237 La. 389, 111 So.2d 320 (1959), was an action with facts and circumstances similar to those found in the actions before us. Plaintiff in Hernandez had purchased an automobile. The motor number of that automobile had been erroneously included with those of two other automobiles on which a chattel mortgage had been granted by another person to secure a promissory note. Plaintiff’s automobile was seized when the holder of the promissory note brought a foreclosure suit via ordinaria to have the chattel mortgage recognized and enforced. A judgment was obtained decreeing the validity of the chattel mortgage and directing the sheriff to seize and sell the mortgaged chattels. Plaintiff’s automobile was seized while in his possession, and he and his mortgage creditor filed a third opposition to set aside the seizure insofar as it affected his car.

The trial court rendered judgment maintaining the third opposition, decreeing the third opponent to be the lawful owner of his automobile, and holding invalid the chattel mortgage, finding that the chattel mortgagor was never the owner of that vehicle. This ruling was upheld on appeal.

Hernandez was a suit for damages for wrongful seizure of the automobile brought by the former third opponent, who was now plaintiff. Hernandez stated, on page 322, that:

“It is manifest that the final judgment in the original case, supra, declaring the seizure of the Plymouth automobile void and invalid and that said vehicle on the date of the seizure was legally owned and possessed by plaintiff, is res judicata on the right to actual damages sustained by the true owner of the seized property. We adhere to this salutary principle of law recognizing that the owner of property is entitled to actual damages sustained where it is wrongfully seized by judicial process in a suit in which he is a stranger, his property being seized to pay the debt of a third person, the judgment debtor of defendant. Such a seizure is classified as a quasi offense, for which the seizing creditor is responsible in damages to the owner of the property seized. LSA-C.C. Art. 2315. Deliole v. Morgan, 2 Mart., N.S., 24; Edwards v. Turner, 6 Rob. 382; Soniat v. Whitmer, 141 La. 235, 74 So. 916, 919.”
(emphasis ours.)

A defendant in Hernandez had filed a peremptory exception of prescription (which was overruled by the trial court), apparently contending that prescription began to run from the date of the wrongful seizure.

Hernandez rejected this argument, holding at page 323, that:

“We concede that earlier eases relied on by defendant seemingly uphold his contention. Later decisions, however, have firmly established the rule that a party damaged by an illegal seizure of his property may file suit within one year after the final termination of the litigation, or in other words, that the running of one year prescription begins not from the date of the illegal seizure, but from the time the rights of the parties are finally determined. Obviously, the measure of damages grows out not only from the wrongful seizure but its continued illegal detention, the loss and deprivation to which the owner is illegally subjected. The soundness of this rule is instantly apparent in that the owner of property illegally seized is incapable of ascertaining or knowing the quantum of damages he has sustained until his rights to its ownership have been definitively decreed.”
(emphasis ours.)

It is possible to distinguish Hernandez from the actions sub judice brought by Marvin Poole and Marbane Investments, Inc., in that Hernandez was concerned with actions brought by a third party, who was a stranger to the litigation that resulted in the seizure of his property. Marvin Poole and Marbane Investments, Inc., were judgment debtors in the action that resulted in the seizure of their property. However, Hernandez cited Commercial Securities Company, Inc. v. Mattingly, 26 So.2d 37 (La.App. 1 Cir. 1946), with approval in formulating the rule noted above.

Commercial, in part, was concerned with a reconventional demand brought by the defendant thereto in which she sought to recover damages for the wrongful seizure of her property under a writ of sequestration. The reconventional demand was filed some 13'/2 months after judgment had been rendered granting her motion to dissolve the writ of sequestration. Plaintiff in Commercial (defendant-in-reconvention) filed a peremptory exception of prescription in response to the reconventional demand. The trial court overruled the exception and plaintiff appealed. Commercial reversed the trial court and ordered that plaintiff’s exception of prescription be maintained. On the issue of when prescription began to run against defendant’s claim, Commercial said that:

“The former jurisprudence was that prescription for the illegal issuance of the writ of sequestration began to run from the date of seizure. However, it is now settled jurisprudence of this State that prescription against suit for wrongful seizure under a writ of sequestration begins to run from the termination of litigation adjudicating the illegality of the seizure. See Burglass v. Villere, 170 La. 805, 129 So. 209; Tyler v. Phillips, La.App., 150 So. 681.”

Defendant in Commercial was a judgment debtor to the action which resulted in the seizure of her property. It is our opinion that, under the rationale expressed in Hernandez, prescription begins to run against an action brought by a judgment debtor for damages for the wrongful seizure of his property under a writ of fi.fa. from the date on which the litigation establishing that the seizure was wrongful is finally concluded.

As noted in footnote 3, the trial court rendered judgment on September 14, 1981, declaring the default judgment, under which the writ of fi.fa. was issued and property allegedly belonging to plaintiffs seized, to be an absolute nullity. This judgment is final and there can be no doubt that property seized under the writ of fi.fa., issued pursuant to it, was wrongfully seized. “An execution is wrongful where the writ is issued on a void judgment. .. . ” 33 C.J.S. Executions § 452.

Plaintiffs brought their actions to have the default judgment declared to be a nullity and for damages for wrongful seizure some four years prior to the date on which the default judgment was finally declared to be an absolute nullity. Thus, plaintiffs’ actions for damages for wrongful seizure were instituted timely and the trial court committed manifest error in sustaining defendants’ exceptions of prescription.

A review of the record shows that the trial court made no determination regarding the ownership of the property seized as no issue concerning said ownership was before it. The only issues considered by the trial court were those relating to the validity of the default judgment and the exceptions filed by defendants. We will remand the following suits to the trial court with instructions that it allow the parties thereto to adduce evidence concerning the ownership of the property seized, and that it make a determination of the ownership of said property based on said evidence. Further, the trial court will be instructed to allow these parties to introduce evidence concerning any damages plaintiffs may have suffered, if property owned by them was in fact wrongfully seized by defendants.

These suits are:

Elizabeth Cannatella Poole v. American Bank & Trust Co., Lafayette, La., et al, Docket # 73,782-1 (our docket # 82-79); Marbane Stables, Inc., et al v. American Bank & Trust Co., Lafayette, La., Docket # 73,784-2 (our docket # 82-81), 416 So.2d 1370; Marvin Poole & Associates of Texas, Inc., d/b/a Pik ‘N Pak Food Stores v. American Bank & Trust Co., Lafayette, La., Docket # 73,785-1 (our docket # 82-82), 416 So.2d 1370; and Marvin Poole, Individually, et al v. Charles N. Wooten, Individually, et al, Docket # 73,786-2 (our docket # 87-83), 416 So.2d 1371.

DECREE

For the above and foregoing reasons, the judgments of the trial court sustaining the exceptions of prescription filed in the above named suits are reversed, and they are remanded to the trial court with the following instructions:

a. To allow the parties thereto to adduce evidence concerning the ownership of the property seized, and for the trial court to make a determination as to the ownership of said property based on that evidence;
b. To allow these parties to introduce evidence relating to any damages suffered by plaintiffs, if any property owned by them was wrongfully seized by defendants.

The appeal from the trial court’s judgment rendered in Marvin Poole, Individually, et al v. American Bank & Trust Co., Lafayette, La., et al, Docket # 73,783-1 (our docket # 82-79) is hereby dismissed.

All costs of this appeal (our docket # 82-79) are assessed against defendants-appel-lees. The assessment of costs in the trial court in this action, which has been remanded, shall be made upon a final determination of the issues raised therein.

REVERSED AND REMANDED WITH INSTRUCTIONS.

      . These actions include the following:

        Elizabeth Cannatella Poole v. American Bank & Trust Co. of Lafayette, La., # 73,782-1, 27th Judicial District Court, St. Landry Parish, La.; Marvin Poole, Individually, et al v. American Bank & Trust Co. of Lafayette, La., et al, # 73,-783 -1, 27th Judicial District Court, St. Landry Parish, La., 416 So.2d 1369; Marbane Stables, Inc., et al v. American Bank & Trust Co. of Lafayette, La., # 73,784-2, 27th Judicial District Court, St. Landry Parish, La., 416 So.2d 1370; Marvin Poole and Associates of Texas, v. American Bank & Trust Co. of Lafayette, La., # 73,785-1, 27th Judicial District Court, St. Landry Parish, La., 416 So.2d 1370; and Marvin Poole, Individually, et al v. Charles N. Wooten, Individually, et al, # 73,786-2, 27th Judicial District Court, St. Landry Parish, La., 416 So.2d 1371.

      . Plaintiffs in action # 73,783-1 are: Marvin Poole, Individually and as sole proprietor of Marbane Construction Co., and as sole proprietor of Marbane Real Estate and Insurance; and, Marbane Investments, Inc.

      . A thorough search of the record fails to reveal that a judgment of nullity was signed in the lower court, declaring the default judgment to be a nullity; however, one of the counsel involved herein has annexed to his brief a copy of a judgment signed in open court on September 14, 1981, and marked filed on the same day by Delores S. Couvillion, Dy. Clerk, 27th Judicial District Court, which judgment declares the original judgment dated February 12, 1975, to be an absolute nullity. The judgment of nullity shows that it was rendered in Docket No. 68,249-1, and that lower court docket number has been assigned our docket number 5492. However, since the judgment of nullity was not appealed, and no issue is being made thereof by any of the parties, its apparently inadvertent omission from the record is of no significance.


text:
    Marvin POOLE, Individually, et al, Plaintiffs-Appellants, v. AMERICAN BANK & TRUST COMPANY, Lafayette, Louisiana, et al, Defendants-Appellees.
    No. 82-80.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    Kenneth W. DeJean, Lafayette, for plaintiffs-appellants.
    Charles N. Wooten, Ltd. by Robert P. Brenham, Lafayette, for defendants-appel-lees.
    Voorhies & Labbe, James P. Lambert, Lafayette, for defendants-exceptors.
    Before FORET, STOKER and DOUCET, JJ.
   FORET, Judge.

Appellants having failed to file any brief whatsoever in this Court, the appeal is hereby dismissed.

All costs of this appeal are assessed against plaintiffs-appellants.

DISMISSED.


text:
    MARBANE STABLES, INC. and Marbane Realty Corporation, Plaintiffs-Appellants, v. AMERICAN BANK & TRUST CO., Lafayette, La., Defendant-Appellee.
    No. 82-81.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    Kenneth W. DeJean, Lafayette, for plaintiffs-appellants.
    Charles N. .Wooten, Ltd. by Robert P. Brenham, Lafayette, for defendant-appel-lee.
    Voorhies & Labbe, James P. Lambert, Lafayette, for defendants-exceptors.
    Before FORET, STOKER and DOUCET, JJ.
   FORET, Judge.

For the reasons assigned in Elizabeth Cannatella Poole v. American Bank & Trust Co., Lafayette, La., Charles N. Wooten, Ltd., and Charles N. Wooten, 416 So.2d 1365 (La.App. 3 Cir. 1982) (our docket # 82-79), in which a separate judgment is being rendered this date, this matter is reversed and remanded with instructions as shown in # 82-79.

All costs of this appeal are assessed against defendant-appellee. The assessment of costs in the trial court in this action (82-81), which has been remanded, shall be made upon a final determination of the issues raised therein.

REVERSED AND REMANDED WITH INSTRUCTIONS.


text:
    MARVIN POOLE & ASSOCIATES OF TEXAS, INC. d/b/a Pik ’N Pak Food Stores, Plaintiff-Appellant, v. AMERICAN BANK & TRUST COMPANY, Lafayette, Louisiana, Defendant-Appellee.
    No. 82-82.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    Kenneth W. DeJean, Lafayette, for plaintiff-appellant.
    Charles N. Wooten, Ltd. by Robert P. Brenham, Lafayette, for defendant-appel-lee.
    Voorhies & Labbe, James P. Lambert, Lafayette, for defendants-exceptors.
    Before FORET, STOKER and DOUCET, JJ.
   FORET, Judge.

For the reasons assigned in Elizabeth Cannatella Poole v. American Bank & Trust Co., Lafayette, La., Charles N. Wooten, Ltd., and Charles N. Wooten, 416 So.2d 1365 (La.App. 3 Cir. 1982) (our docket # 82-79), in which a separate judgment is being rendered this date, this matter is reversed and remanded with instructions as shown in # 82-79.

All costs of this appeal are assessed against defendant-appellee. The assessment of costs in the trial court in this action (82-82), which has been remanded, shall be made upon a final determination of the issues raised therein.

REVERSED AND REMANDED WITH INSTRUCTIONS.


text:
    Marvin POOLE, Individually, Marbane Construction Company, Marbane Real Estate and Insurance, and Marbane Investments, Inc., Plaintiffs-Appellants, v. Charles N. WOOTEN, Individually, and Charles N. Wooten, Ltd., Defendants-Appellees.
    No. 82-83.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    Kenneth W. DeJean, Lafayette, for plaintiffs-appellants.
    Charles N. Wooten, Ltd. by Robert P. Brenham, Lafayette, for defendants-appel-lees.
    Voorhies & Labbe, James P. Lambert, Lafayette, for defendants-exceptors.
    Before FORET, STOKER and DOUCET, JJ.
   FORET, Judge.

For the reasons assigned in Elizabeth Cannatella Poole v. American Bank & Trust Company, Lafayette, La., Charles N. Wooten, Ltd., and Charles N. Wooten, 416 So.2d 1365 (La.App. 3 Cir. 1982) (our docket # 82-79), in which a separate judgment is being rendered this date, this matter is reversed and remanded to the trial court for further proceedings in accordance with the views and instructions contained in # 82-79, mentioned above.

All costs of this appeal are assessed against defendants-appellees. The assessment of costs in the trial court in this action (# 82-83), which has been remanded, shall be made upon a final determination of the issues raised therein.

REVERSED AND REMANDED WITH INSTRUCTIONS.


author: STOKER, Judge.

text:
    Terry SONNIER, Plaintiff-Appellant, v. Melvin DUPIN, et al., Defendants-Appellees.
    No. 82-87.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.

      Rogers & St. Romain, Lake Charles, for plaintiff-appellant; Jack Rogers and John M. Crochet, Lake Charles, of counsel.
    Hall, Lestage & Lestage, David R. Les-tage, DeRidder, Durrett, Hardin, Hunter, Dameron & Fritchie, Emile Rolfs, III, Cassandra Simms, Baton Rouge, for defendants-appellees.
    Before FORET, STOKER and DOUCET, JJ.
   STOKER, Judge.

This is a personal injury action growing out of a diving accident. Plaintiff-appellant Terry Sonnier dove from the bank of Bundicks Creek in Beauregard Parish, Louisiana, and injured himself when he struck a shallow bottom. His injuries have left him paralyzed and a quadriplegic. The plaintiff was a minor at the time this suit was filed and was substituted as a plaintiff when he became of age. The defendants-appellees are certain deputies and employees of the Sheriff’s Department of Calcasieu Parish and the State of Louisiana as their alleged employer and as owner of the premises where the accident occurred.

FACTS

At the time of the accident Terry Sonnier was sixteen years old and was a member of an Explorer Post, a unit in the Explorer program of the Boy Scouts, sponsored by the Sheriff’s Department of Calcasieu Parish (Sheriff’s Department). The Sheriff’s Department also sponsored an organization of Junior Deputies, boys and girls younger than the Explorers, The Sheriff’s Department projected an outing for the Junior Deputies at Bundicks Creek in Beauregard Parish, and members of the department agreed that the Explorers could also attend. As a condition of their going on the outing, Explorers had to help handle the younger group, the Junior Deputies. Deputy Dupin advised the group that a section of the creek in shallow water would be roped off, and the swimmers should remain within the roped-off area. Additionally, the group was told not to run and jump into the water because an accident occurred in a previous year’s outing when a girl stepped on broken glass. Deputy Dupin and Deputy Kenneth W. Potts, assisted by some of the Explorers, tied a rope across one end of the creek and then “walked the creek” toward a deeper end. A rope was to be tied in the deeper water which was relatively shallow. The purpose of the walking procedure was to discover deep holes, objects, debris, bottles and other foreign matter, if any, in the roped-off area which might cause injury to a swimmer.

Deputy Dupin tried to fix the second limit of the swimming area by tieing one end of the rope at one bank and moving to the other bank, but the rope was too short. He sent for additional rope. While Dupin was in the water waiting for the additional rope, plaintiff’s accident occurred.

Approximately nine Explorers made the outing. Some of them, including plaintiff Terry Sonnier, had moved a short distance beyond the roped-off area. They had begun diving from the creek bank about one foot above the water level. It is disputed whether Deputy Dupin was aware of the actions of the Explorers. All insisted that they had been given permission to go outside the roped-off area. Deputy Dupin denies having given the Explorers permission. In addition, he testified that he was unaware of their presence beyond the rope. Dupin was standing in the water with the rope behind him. By this time the Junior Deputies had apparently “buddied up” and had entered the water and were splashing about. Deputy Dupin stated that any diving noise the Explorers made was not heard or was not distinguishable from the noise created by the Junior Deputies.

The water in which the Explorers were diving was shallow. The evidence is that the depth was between three and four feet, or at most five feet. Each of the Explorers made at least one dive or jump into the water. Some stated they made four or five dives. Terry Sonnier himself had made two dives and was injured on his second dive. It is apparent that except for Terry’s unfortunate dive, all the dives must have been shallow ones or were made straight out from the bank so that the divers either did not penetrate deeply or they hit the top of the water. What Terry did on his second dive is not clear. Terry remembers little of the event. He dove and then did not come up above the water surface. When Terry did not surface, his older brother Joe and one or more other Explorers went in and brought him up, got him out of the water and sat him up on the bank. Deputy Dupin was alerted at this point and all the adults came to the place where Terry was located on a ledge of the creek bank. A cot belonging to one of the adults was brought, and Dupin and Potts placed Terry on the cot. The ledge of the bank was about one foot above the creek level. The creek bank then sloped upwards perhaps seven or eight feet above the ledge, as shown by a picture introduced into evidence. Terry was carried up this embankment of the cot in a level position.

The deputies contacted the Beauregard Parish Sheriffs Department and requested that an ambulance pick up Terry Sonnier. When it was determined that it would take some forty-five minutes for the ambulance to arrive from DeRidder, Terry, while remaining on the cot, was placed inside a van belonging to one of the adults. The owner drove toward DeRidder to meet the ambulance half way in order to save time.

When brought out of the water, Terry Sonnier apparently had no feeling in his extremities. As stated above, he is a quadriplegic as a result of his injuries.

PLEADINGS AND PARTIES

This suit was first asserted by Terry Son-nier’s mother individually and on behalf of Terry as a minor. Initially, she named as defendants the Sheriff of Calcasieu Parish, The Calcasieu Parish Police Jury and Deputy Sheriff Melvin Dupin along with insurers. Terry Sonnier was later substituted as an additional plaintiff in his own right when he became eighteen years old. His mother, Shirley LeDee, remained in the case as a claimant for Terry’s medical expenses incurred during his minority. Subsequently, other Deputy Sheriffs were named as additional defendants. These were Frank Adams, Gene Morgan, Ray Jordan and Kenneth Potts. Also by amendment, the State of Louisiana was named as a defendant with allegations that the State was guilty of negligent acts “through its agents and employees who operate, control and maintain the Bundicks Lake area, as well as the Deputy Sheriff [sic] for which the State is responsible ... ”. The State is charged with negligence generally consisting of inadequate supervision of the area, failing to have “medical help and facilities available,” failure to provide life guards, failure to designate various swimming areas as safe or unsafe and not adequately warning the public of the known dangers in the swimming area or of those which could be reasonably anticipated.

The allegations of negligence as to the officials and employees of the Sheriff’s Department, Deputy Dupin in particular, are extensive. Acts of negligence leading up to the diving accident and failure to properly handle Terry Sonnier after injury in view of his particular injury are alleged. Plaintiffs also invoked the doctrine of res ipsa loquitur. The specific acts of negligence charged against Deputy Dupin and the other members of the Sheriff’s Department cover charges such as inadequate and improper supervision, including failure to provide enough life guards with proper training to handle the number of youths swimming. The deputies are also charged with inadequate inspection of the swimming area, failure to determine that the area was safe for swimming or to make the area safe, and failure to properly handle and care for Terry Sonnier once he was hurt.

The defendants raised the affirmative defense of contributory negligence and assumption of the risk.

ACTION IN THE TRIAL COURT

At the close of the plaintiff’s case in chief the trial judge granted a directed verdict in favor of defendants Adams, Jordan and Morgan. The jury returned a special verdict form in which it answered interrogatories as to Melvin Dupin and Kenneth Potts. In the interrogatories the jury was asked to answer whether the two deputies were negligent and, if so, was the negligence a legal cause of the accident and injuries? The jury answered negatively as to both deputies. Therefore, the jury either found the deputies not negligent, or if they were negligent, the jury found their negligence was not a legal cause of the accident.

The State of Louisiana was tried before the judge alone. The trial court gave judgment for the State and against plaintiffs. In a memorandum opinion the trial court stated that Terry Sonnier was barred from recovery from the State “because he assumed the risk of injury and because he was guilty of negligence which was a legal cause of his accident and injuries.”

SPECIFICATION OF ERRORS

Plaintiffs list the following specifications of errors:

I. The jury was manifestly in error in determining that Deputies Dupin and Potts were not negligent or that their negligence was not the legal cause of the plaintiff’s injuries.

II. The trial court was manifestly in error in determining that plaintiff was con-tributorily negligent or assumed the risk of his injuries and that his recovery was thereby barred.

Plaintiffs make no complaint of the dismissal of Deputies Adams, Jordan and Morgan, through directed verdict, and the trial court’s findings in releasing them appear proper under the appropriate standard governing directed verdicts.

NEGLIGENCE OF DEPUTIES DUPIN AND POTTS

We will first address ourselves to the question of negligence of the deputies. The essence of plaintiff’s argument on appeal is that “boys will be boys; ” and that the deputies owed a duty to the Explorer Scouts to discover that they were diving in shallow water where the creek bottom could not be seen and to stop their further diving.

At this point it should be observed that the record does not disclose any indication that diving or jumping into the creek was ever contemplated prior to the time the Explorers began to do so. In fact Dupin had instructed the assembled group before they went in swimming that they were not to run and jump in the water in order to avoid injury from unexpected objects in the water. Although the Explorers state that they were given permission to swim outside the roped-off area, no one states they asked permission to dive. In our view however, whether Deputy Dupin gave permission to the Explorers to go beyond the roped-off area is not dispositive. Apparently there were no diving facilities such as diving boards or piers.

The crucial issue in the case is the evident danger in diving at the place where the Explorers were doing so. No argument disputing this is made. Plaintiff bases his case on this danger. All the Explorers fully appreciated the danger in jumping and diving off the clay bank ledge of the creek into the water. It is clear that each of the Explorers, some seven in number, who were jumping and diving fully understood that this was unreasonable conduct in the practical and in the legal sense. As the testimony of the Explorers indicates, prior to Terry’s second dive everyone had avoided diving too deeply or had jumped in feet first, as Explorer Joseph Philip Rubit did. Hence, the question is whether Deputies Dupin and Potts owed a duty to the Explorers to anticipate that they would ignore the danger by engaging in such unreasonable conduct and whether therefore the Deputies should have prevented it; or once it had begun, whether the Deputies should have discovered it and put a stop to it. It is the essence of plaintiff’s argument that such a duty was owed.

From our study of the record we agree that the water safety procedures in force at the time of Terry Sonnier’s accident could be criticized. We might conclude, for example, that someone should have been stationed as a life guard on the upper bank of Bundicks Creek to observe all areas of the creek occupied by participants in the outing. Conceivably a person so stationed would have seen Terry and the other Explorers diving and might have stopped them until the safety of diving in that part of the creek was determined. Plaintiff’s argument assumes that someone in the capacity of a life guard or monitor would have stopped the diving and thereby would have protected Terry Sonnier from taking the risks he incurred. In short, we may conjecture that had stricter measures been adopted, someone might have done what plaintiff argues should have been done, that is, that someone in authority should have stopped Terry Sonnier from doing what he evidently well knew he should not do.

The failure of the Deputies to prevent Terry Sonnier from hurting himself by ordering a halt to the diving is the only negligence of which he complains. We note that the failure to give warnings concerning diving in shallow water is not a significant factor in the case inasmuch as Terry and all the other Explorers indicated they were fully aware of the danger in diving in unfamiliar waters and therefore needed no warning. Likewise, the possible inspection of the area and discovery of the shallowness of the water is not a significant factor inasmuch as Terry and the other Explorers were aware the water was shallow. See Knott v. Williams, 109 So.2d 517 (La.App. Orl.1959) and Rivere v. Thunderbird, Inc., 353 So.2d 346 (La.App. 1st Cir. 1977), cert. denied, 354 So.2d 1380 (La.1978). Therefore, if we assume without so holding that any of the defendants were guilty of negligence which was a legal cause of Terry’s accident, plaintiff’s recovery is barred by the contributory negligence of Terry Sonnier and his assumption of the risk which were legal causes of the accident.

Terry must have known of the shallowness of the water in which he was diving. He fully understood and appreciated the dangers and risk to which he exposed himself. At the time of his accident he was sixteen years old and apparently of average intelligence and judgment for his age. He was an experienced swimmer who began to swim at about eight years of age. He had been taught basic rules of safety concerning swimming and diving. Terry testified he knew that if one dived in shallow water in swimming pools he should dive straight out. Terry’s own testimony shows his complete understanding, appreciation and acceptance of the extreme risk he took in diving in water he knew to be shallow where he could not see the bottom.

In our opinion Terry Sonnier was guilty of both assumption of risk and contributory negligence which barred his recovery for his damages. Doffiemeyer v. Giiley, 384 So.2d 435 (La.1980); Rivere v. Thunderbird, Inc., supra; Knotts v. Williams, supra, and Liedtke v. Allstate Ins. Co., 405 So.2d 859 (La.App. 3rd Cir. 1981), writ denied, 407 So.2d 748 (La.1981).

In the pleadings and in the evidence adduced, plaintiff contended the deputies did not properly handle Terry Sonnier after he received his injury in view of the indication that he might have sustained a spinal injury. This point has not been pressed by plaintiff in his brief. In any event, the burden of proof on this issue had not been borne by plaintiff. Terry was pulled out of the water onto the creek bank by his older brother and others. Thereafter, it seems that reasonable measures were adopted by the deputies. Finally, it would be speculative to assume that any handling of Terry Sonnier after he hit the creek bottom caused his injury or aggravated it. On that point there is no proof.

NEGLIGENCE OF THE STATE

In his brief plaintiff has not pursued his charge of negligence against the State. Insofar as the State might be liable under the doctrine of respondeat superior as the alleged employer of the deputies, plaintiff’s claim is rejected for the reasons given above. No specific evidence was presented to establish negligence on the part of the State relative to its alleged ownership and operation of the Bundicks Lake area as a resort or recreation area. If the State was negligent as alleged for its failure to have life guards on hand, the contributory negligence and assumption of risk of Terry Son-nier would bar recovery. However, the record does not establish whether or not the contemplated use of the area in question was such that the State owed a duty to provide life guards at the area.

We conclude that the trial court was not clearly wrong in holding that Terry Sonnier was guilty of contributory negligence and assumption of risk which barred recovery by plaintiffs.

RES IPSA LOQUITUR NOT APPLICABLE

Plaintiffs pleaded that the doctrine of res ipsa loquitur was applicable in this case. Although plaintiff’s recovery is barred in any event, the doctrine is not applicable. The event or events which resulted in Terry Sonnier's injury are known. There is no occasion to resort to the doctrine.

CONCLUSION

For the foregoing reasons we affirm the judgment of the trial court. Costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.

      . Henry A. Reid, Jr., The Sheriff of Calcasieu Parish, was later dismissed as a defendant. The insurers which went to trial were The North River Insurance Company and International Supplies Insurance Company. Holland American Insurance Company was dismissed prior to trial. The Calcasieu Parish Police Jury was dismissed on a motion for summary judgment.

      . Mrs. LeDee was not listed as an appellant in the written motion for appeal to this court. In view of our affirmance of the trial court’s judgment, the failure of Mrs. LeDee to appeal does not present an issue.


text:
    Johanna Quinn CROWE, Individually and for and on behalf of the minor, Trenton E. Quinn, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 82-108.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.

      Baggett, McCall, Singleton & Ranier, Homer C. Singleton, Jr., Lake Charles, for plaintiff-appellant.
    Hall, Lestage & Lestage, David R. Les-tage, DeRidder, Raggio, Cappel, Chozen & Berniard, Richard B. Cappel, Stockwell, Sie-vert, Viccellio, Clements & Shaddock, Bernard H. McLaughlin, Jr., Scofield, Berg-stedt, Gerard, Hackett & Mount, Benjamin W. Mount, Lake Charles, for defendants-ap-pellees.

      Before FORET, STOKER and DOUCET, JJ.
   FORET, Judge.

Johanna Quinn Crowe (plaintiff) brought this tort action, individually and on behalf of her minor son, Trenton E. Quinn (Trent), to recover damages for personal injuries suffered by him, when the Honda ATV (ATV) on which he was riding as a passenger, was struck by an automobile owned and driven by Robert K. King, Jr. (King). Named defendants were: State Farm Mutual Automobile Insurance Company (State Farm), the automobile liability insurer of King; Allstate Insurance Company (Allstate), plaintiff’s uninsured motorist insurer; James J. Miller (James Miller) and Joyce Belle Miller (Joyce Miller), the divorced parents of the minor driver of the ATV, Hank Miller (Hank); King; and Fireman’s Fund Insurance Company (Fireman’s), the automobile liability and homeowners insurer of James Miller.

Plaintiff requested a trial before a jury and the jury returned a verdict finding no negligence on King’s part. In addition, the trial court had granted a motion for a directed verdict filed by Fireman’s during the trial. The trial court, pursuant to the jury’s verdict, rendered judgment in favor of all other defendants, dismissing plaintiff’s claims against them. Plaintiff’s motion for a new trial was denied, and she was then granted a devolutive appeal to this Court, where she raises the following issues:

(1) Whether the jury committed manifest error in finding no negligence on the part of King;
(2) Whether the jury committed manifest error in finding no negligence on the part of James Miller;
(3) Whether the trial court erred in granting Fireman’s motion for a directed verdict;
(4) Whether the jury committed manifest error in finding that Trent was guilty of contributory negligence, and had assumed the risk of his injuries.

FACTS

This action arises out of a tragic accident which occurred on November 4, 1978, near DeQuincy, in Calcasieu Parish, at approximately 9:00 A.M. Hank and Trent were both nine years old at the time of the accident. They were riding the ATV, which had been purchased by James Miller, and were heading south on Pecan Street, located in the Pine Acres Subdivision (a rural subdivision). They approached the intersection of that street with Grape Street, and should have come to a complete stop as there was a stop sign directing traffic on Pecan Street to stop before entering the intersection. They failed to do so and were struck by an automobile being driven by King in an easterly direction on Grape Street.

The impact of the collision hurled the ATV and both boys some fifty feet from the point of impact and caused them to suffer multiple, severe injuries. Hank died two hours later at the Calcasieu-Cameron Hospital. Trent underwent extensive surgery at the same hospital and survived. He was released from the hospital one month later and wore a cast on his right leg for the next few weeks. He has made a good recovery so far. However, at the time of trial, medical testimony indicated that, because of his age and the fact that he had injured a portion of his right thigh where bone growth takes place, his left leg was growing much faster than his right leg. Because of this, he would have to undergo surgery within the next two years to correct this worsening condition. He will suffer a permanent disability in that he will be unable to grow to the height he would have reached had he suffered no injuries, and his right leg will have less strength than it normally would have.

KING’S ALLEGED NEGLIGENCE

Plaintiff contends that the jury committed manifest error in finding no negligence on the part of King which was a proximate cause of this accident.

Plaintiff’s action is brought under the provisions of LSA-C.C. Articles 2315 and 2316. Thus, plaintiff must first show that she probably would not have suffered the injuries complained of but for defendants’ conduct.

The evidence shows that King was traveling at approximately 45 miles per hour as he approached the intersection where the accident occurred. Randall Authement, a Louisiana state policeman .who investigated the accident, testified that the speed limit on the road on which King was traveling was 55 miles per hour. Thus, King was traveling well within the speed limit. King testified that he knew the intersection between Grape and Pecan Streets existed, but saw nothing as he approached the intersection which caused him any concern. Photographs introduced in evidence show that there is a heavy growth of brush on the left side of Grape Street as one proceeds in an easterly direction down the street and approaches the intersection. It is from this side of Grape Street that the boys entered the intersection from Pecan Street. The photographs also clearly show the presence of a stop sign at the intersection directing traffic traveling in a southerly direction on Pecan Street to stop‘before entering the intersection.

King testified that he first saw the boys on the ATV when he was approximately thirty to forty feet from the intersection. At that time, he stated that the ATV was approximately six feet from the paved surface of Grape Street. This is consistent with what an alert driver would have seen as shown by the photographs. King stated that he immediately applied his brakes upon seeing the boys and turned his wheels to the right in an attempt to avoid hitting them. This statement comports with a drawing made by Authement of the accident scene.

We find that plaintiff has failed to prove that King engaged in any of the conduct which she contends was a cause-in-fact of this accident. Our review of the record establishes that the jury’s finding of no negligence on the part of King is correct.

ALLEGED LIABILITY OF JAMES MILLER

Plaintiff admits, in brief, that James Miller is unable to be held liable for the acts of his son, Hank, by virtue of the divorce decree which awarded the care, custody and control of Hank to his mother prior to the accident. See Flannigan v. Valliant, 400 So.2d 225 (La.App. 4 Cir. 1981), writ denied, 406 So.2d 611 (La.1981).

Instead, plaintiff would have this Court hold James Miller negligent for allegedly violating LSA-R.S. 32:416 which provides:

“§ 416. Unlawful operation by minors; parents responsible
No person shall cause or knowingly permit his child or ward, under the age of fifteen years, to drive a motor vehicle, except a power cycle, and under the age of fourteen years, to drive a power cycle, upon any highway.”

Plaintiff relies on Hartman v. Allstate Insurance Company, 271 So.2d 372 (La.App. 4 Cir. 1972), affirmed, 284 So.2d 559 (La.1973), in support of her contention. We find Hartman to be distinguishable on its facts from the case sub judice. In Hartman, plaintiff was found negligent for granting permission to her daughter to drive her stepfather’s stationwagon across La. Highway 40, when she knew her daughter was only 14 years old at the time and was unable to obtain a Louisiana driver’s license.

In the instant action, James Miller admitted that he had purchased two ATV’s for use by members of his family, including Hank. He testified that, when he was present, Hank was never allowed to ride the ATV on the highway, except along the shoulder for a short distance to reach a pasture in which he would ride it. He admitted that there was another means of reaching the pasture without having to ride on the shoulder of the highway. He stated that while he was living with Hank and his mother, he was always present when Hank rode the ATV. He instructed Hank that he was to ride it on family property only and nowhere else.

In establishing negligence on the part of James Miller, plaintiff must first prove that but for James Miller’s conduct, she would not have suffered the injuries complained of. See Footnote # 2. This she has failed to do. The evidence clearly shows that James Miller allowed Hank to ride the ATV on the shoulder of the highway only to get to the pasture where he would usually ride the vehicle. Hank was forbidden by his father to ride the ATV at any other times on the highway or its shoulder. Hank was forbidden to ride the ATV on Pecan Street, and James Miller had no knowledge that his son was doing so. Thus, there is no conduct of James Miller which can be said to be a cause-in-fact of this accident and the plaintiff’s injuries. See Liedtke v. Allstate Insurance Co., 405 So.2d 859 (La.App. 3 Cir. 1981), writ denied, 407 So.2d 748 (La.1981), where this Court discussed causation and LSA-R.S. 32:416.

The jury made no finding as to any negligence on the part of James Miller. We find none.

FIREMAN’S MOTION FOR A DIRECTED VERDICT

Fireman’s filed a written motion for a directed verdict after the plaintiff rested her case and the trial court granted the motion. Plaintiff contends that the trial court committed manifest error in doing so.

LSA-C.C.P. Article 1810(A) provides:

“Art. 1810. Directed verdicts; motion to dismiss at close of plaintiff’s evidence
A. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.”

Fireman’s motion for a directed verdict set forth a number of specific grounds as the basis therefor. First, that the parents of Hank had been divorced before the accident and that Joyce Miller had been awarded the care, custody and control of him. Thus, Hank’s father (Fireman’s insured), James Miller, is unable to be held legally responsible for Hank’s negligence. Second, that the automobile liability insurance policy issued to James Miller provides no coverage for the ATV. Third, that Hank and Joyce Miller were unable to qualify as insureds under the terms of the homeowners policy. Finally, that no coverage was provided under the homeowners policy issued to James Miller by Fireman’s on the De-Quincy property since the policy excluded coverage for bodily injury resulting from an accident involving a recreational vehicle owned by an insured, when the accident occurred away from the residence premises.

The trial court, without reaching the issue of whether Joyce Miller or Hank were insureds under either of the two homeowners policies or automobile liability insurance policy issued to James Miller, granted Fireman’s motion for a directed verdict based on exclusions found in those policies. Plaintiff, on appeal, limits her argument as to insurance coverage solely to the homeowners policy issued to James Miller.

Under the heading of “EXCLUSIONS”, that policy provides:

“This policy does not apply:
1. Under Coverage E — -Personal Liability and Coverage F — Medical Payments to Others:
a. to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:
(1) any aircraft; or
(2) any motor vehicle owned or operated by, or rented or loaned to any Insured; but this subdivision (2) does not apply to bodily injury or property damage occurring on the residence premises if the motor vehicle is not subject to motor vehicle registration because it is used exclusively on the residence premises or kept in dead storage on the residence premises; or
(3) any recreational motor vehicle owned by any Insured, if the bodily injury or property damage occurs away from the residence premises; but this subdivision (3) does not apply to golf carts while used for golfing purposes.”

Plaintiff concedes that the ATV was a recreational motor vehicle for purposes of this policy exclusion. However, plaintiff argues that the accident did not occur away from the residence premises. The policy defines the “residence premises” as follows:

“c. “residence premises” means
(1) a one or two family dwelling building, appurtenant structures, grounds and private approaches thereto; or
(2) that portion of any other building occupied as a residence; provided that such premises is used as a private residence by the Named Insured or his spouse but excluding any portion of the premises used for business purposes.”

The evidence leaves no doubt that the accident occurred in the intersection of two public roads and away from the residence premises. Thus, the exclusion found in Fireman’s policy is clearly applicable and that policy provides no insurance coverage for bodily injury or property damage resulting from the accident.

Campbell v. Mouton, 373 So.2d 237 (La.App. 3 Cir. 1979), sets forth the standards to be used by the trial court in determining whether to grant a motion for a directed verdict. Campbell stated, on page 238, that:

“The motion for directed verdict is a common law procedural device which has only recently found its way into the law of Louisiana through Article 1810 of the Code of Civil Procedure. The purpose of the directed verdict is that “it serves judicial efficiency by allowing the judge to conclude the litigation (in a jury trial) if the facts and inferences are so overwhelmingly in favor of the moving party that the court believes that reasonable men could not arrive at a contrary verdict.” Civil Procedure — Work of Louisiana Legislature for 1977 Regular Session, 38 La.L.Rev. 152, 157 (1977); See also Williams v. Slade, 431 F.2d 605 (5th Cir. 1970).”

We find that the trial court correctly granted Fireman’s motion for a directed verdict as the facts and inferences, as shown above, are so overwhelmingly in its favor that reasonable men could arrive at no other verdict than that its policy exclusion was applicable and no coverage for the accident was provided. We find no need, as did the trial court, to make any determination as to whether Hank or Joyce Miller were insureds under this policy, as the result would be the same no matter what the outcome of such a determination, because of the above mentioned policy exclusion.

CONTRIBUTORY NEGLIGENCE OR ASSUMPTION OF THE RISK ON THE PART OF TRENT

Plaintiff contends that the jury committed manifest error in finding that Trent was guilty of contributory negligence and had assumed the risk of his injuries. Cormier v. Sinegal, 180 So.2d 567 (La.App. 3 Cir. 1965), set forth the test for determining contributory negligence on the part of a child on page 569:

“In evaluating whether the child’s conduct constitutes contributory negligence, the child is required to exercise only the care expected of his age, intelligence, and experience under the particular circumstances presented to him; in this respect, the obviousness or not of the danger to one of the child’s years, experience, and intelligence is taken into consideration.”

Cormier further delineated the test for determining contributory negligence on the part of a child, on page 570, where we stated:

“Young Cormier’s left turn under these circumstances thus meets the tests of contributory negligence for such a youngster — a “gross disregard of one’s safety in the face of known, perceived and understood dangers”, Danna v. London Guarantee & Accident Co. [La.App.], cited above, at 147 So.2d [739] 742; an intentional exposure to “obvious danger in connection with non-technical and ordinary objects and situations” within the capacity of the child of that age “to appreciate and realize”, Juhas v. American Casualty Co. [La.App.], cited above, at 140 So.2d [676] 679. See also Veillon v. Muffoletto, La.App. 1 Cir., 77 So.2d 118.” (emphasis ours.)

The child in Cormier was 12 years old at the time he was injured, when he suddenly turned the bicycle he was riding into the path of an automobile attempting to overtake and pass him.

A nine-year-old may be capable of contributory negligence, but like a twelve-year-old, he is not held to adult standards of comprehension of danger and duty of self-care. Outlaw v. Bituminous Insurance Co., 357 So.2d 1350 (La.App. 4 Cir. 1978), writ denied, 359 So.2d 1293 (La.1978).

The evidence shows that the accident was the sole result of negligence on the part of Hank. Trent was nothing more than a passenger on the ATV, and there was no evidence presented to indicate that he knew that Hank was a reckless or careless driver. Indeed, there was no evidence presented to show that Hank was such a driver.

Jagers v. Royal Indemnity Co., 257 So.2d 806 (La.App. 3 Cir. 1972), affirmed, 276 So.2d 309 (La.1973), held, on page 809, that:

“The rule of White v. State Farm Mutual Automobile Insurance Company, 222 La. 994, 64 So.2d 245 (1963) is still applicable to us, and a guest or passenger in an automobile has the right to place reliance upon the driver and is not required to monitor the operation or pay strict attention to the road, save under special circumstances or conditions which dictate preventive measures by such passenger or guest.” (emphasis ours.)

We find that there were no special circumstances present in this case which would have dictated that Trent pay special attention to Hank’s driving or to the road conditions. The ATV the boys were riding was capable of achieving speeds of 20 to 25 miles per hour and no more. Trent did admit that he was talking to Hank while Hank was driving. However, he also stated that Hank never looked back and kept his attention focused on the road ahead of him. It is our opinion that Trent’s conduct in simply riding as a passenger on the ATV and talking to Hank can in no way be construed as contributory negligence on his part and the jury was manifestly erroneous in finding it to be such.

As to the affirmative defense of assumption of the risk, Dofflemyer v. Gilley, 384 So.2d 435 (La.1980), stated, on page 438, that:

“We stated in Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971):
The determination of whether a plaintiff has assumed a risk is made by subjective inquiry, whereas contributory negligence is determined objectively under the reasonable man standard.
It is fundamental that, in order to assume a risk, one must knowingly and voluntarily encounter a risk which caused him harm. Plaintiff must understand and appreciate the risk involved and must accept the risk as well as the inherent possibility of danger because of the risk. Prestenbach v. Sentry Insurance Co., 340 So.2d 1331 (La.1976); McInnis v. Fireman’s Fund Insurance Co., 322 So.2d 155 (La.1975); Brantley v. Brown, 277 So.2d 141 (La.1973); Langlois, supra. Assumption of risk is an affirmative defense that must be specially pleaded. La.Code Civ.P. art. 1005. The burden of proving this defense is upon the defendant. Lan-glois, supra.”

The evidence clearly shows that Trent in no way assumed the risk of his injuries. The risk here was that Hank would fail to stop for the stop sign on Pecan Street and, thus, subject both himself and Trent to the danger of being struck by a vehicle traveling on Grape Street, the favored street. Defendant, Allstate, failed to produce any evidence whatsoever to show that Trent knowingly and voluntarily encountered this risk which caused him harm.

It is our opinion that the jury was clearly wrong in finding that Trent had assumed the risk of his injuries. Thus, Allstate, as the uninsured motorist insurer of Trent’s mother (plaintiff), must provide coverage up to its policy limits for the injuries received by Trent.

QUANTUM

Allstate’s automobile liability insurance policy, issued to plaintiff, was introduced in evidence. It provides for the following limits of liability: uninsured motorist — bodily injury, $10,000.00 each person or $20,000.00 each accident; and, automobile medical payments, $2,000.00 each person. Thus, the limit of liability available to plaintiff is $12,000.00. The evidence shows that plaintiff sustained more than $12,-000.00 in special damages and, therefore, is entitled to recover that amount from Allstate.

For the above and foregoing reasons, the judgment of the trial court, rendered pursuant to the jury’s verdict, is reversed in part insofar as it dismissed plaintiff’s claim against Allstate. Judgment is hereby rendered in favor of plaintiff and against Allstate, ordering Allstate to make available to plaintiff its uninsured motorist and automobile medical payments coverages up to its policy limits.

The trial court’s judgment is affirmed in all other respects.

All costs of this appeal, and in the trial court, are assessed equally between plaintiff-appellant and defendant-appellee, Allstate.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.

      . An ATV is an all terrain vehicle usually designed for use in areas other than on the public roads and streets. In this case, the ATV was what is commonly known as a “three wheeler” motor bike.

      . See Shelton v. Aetna Casualty & Surety Co., 334 So.2d 406 (La.1976); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Head v. St. Paul Fire & Marine Ins. Co., 408 So.2d 1174 (La.App. 3 Cir. 1982); writ denied, 412 So.2d 99 (La.1982); Wattigny v. Lambert, 408 So.2d 1126 (La.App. 3 Cir. 1981), writ denied, 410 So.2d 760 (La.1981).


author: CULPEPPER, Judge.

text:
    Meldon M. MESHELL, Plaintiff-Appellant-Appellee, v. INSURANCE COMPANY OF NORTH AMERICA, et al., Defendants-Appellants-Appellees.
    No. 82-3.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.

      Smith, Ford & Clark, Chris Smith, III, Leesville, for Meshell.
    Provosty, Sadler & deLaunay, F. Rae Swent, Alexandria, for Insurance Co. of North America, et al.
    Skeels, Baker, Coleman & Strickland, Donald L. Baker, Shreveport, for interve-nor-appellee.
    Trimble and Associates, Lon P. Wilson, Alexandria, for defendants-appellees.
    Before CULPEPPER, SWIFT and LA-BORDE, JJ.
   CULPEPPER, Judge.

This case is consolidated with two others which arise out of a collision between a large dump truck, owned and driven by the plaintiff, Meldon M. Meshell, and a pickup truck, owned by Montgomery-Ward and being driven by its employee, John Noel. In the present case, plaintiff sues Noel and Montgomery-Ward for damages for personal injuries, property damage and loss of profits. In our Docket No. 82-4, “G.M.A.C. v. Meldon M. Meshell,” 416 So.2d 1390, the plaintiff seeks to foreclose on a mortgage on the dump truck. In No. 82-5 on our docket, "Meldon M. Meshell v. Motors Insurance Corporation,” 416 So.2d 1391, plaintiff sues his collision insurer for the value of the dump truck which Meshell contends was a total loss, for penalties and attorney’s fees and for loss of profits. The district judge found the accident was caused solely by the negligence of Noel, the Montgomery-Ward employee. In the present case, the court awarded plaintiff judgment against Noel and Montgomery-Ward for $750 personal injuries and mental anguish, $5,533.33 representing the value of the dump truck less salvage of $1,700, and $9,938 loss of profits, a total award of $16,-221.33. In our Docket No. 82-4, 416 So.2d 1390, judgment was in favor of General Motors Acceptance Corporation and against Meshell for the balance of $5,647.18 due on its mortgage, which sum is payable out of the award to Meshell and against Noel and Montgomery-Ward. In our Docket No. 82-5, 416 So.2d 1391, the trial judge rejected Meshell’s demand against Motors Insurance Company for penalties and attorney’s fees and loss of profits, and awarded Motors Insurance Corporation judgment for $2,089 on its third party demand, representing the amount which it paid to Meshell for repairs to the dump truck, said amount to be paid from the award in favor of Meshell and against Noel and Montgomery-Ward. Noel and Montgomery-Ward appeal. Plaintiff Meshell also appeals. Separate judgments are rendered by us this date in these companion eases.

Defendants Noel and Montgomery-Ward raise the following issues on appeal:

1) Whether the trial court erred in finding that the defendant Noel’s conduct was the sole cause of the accident;
2) Whether the court erred in awarding the plaintiff $750 for personal injury and mental anguish;
3) Whether the trial court erred in its award for loss of use of the plaintiff’s vehicle for 60 days and in calculating the award based on a 6-day work week;
4) Whether the district court erred in casting the defendants in judgment on MIC’s third party demand for reimbursement.

The plaintiff-appellant raises three issues on appeal:

1) Whether the trial court erred in finding that MIC’s failure to pay the plaintiff the full value of his truck was not arbitrary, capricious or without reasonable cause;
2) Whether the trial court erred in refusing to cast MIC in judgment for damages due to the loss of use of the vehicle;
3) Whether the trial court erred in failing to award the plaintiff adequate damages.

GENERAL FACTS

The accident from which this suit arose occurred on December 16, 1978 at approximately 10:30 a. m. on Louisiana Highway 464 in Vernon Parish. The plaintiff Me-shell was proceeding north with a load of gravel in his 1974 Chevrolet tractor and dump truck/trailer rig. John V. Noel, III was proceeding south in a service truck belonging to his employer, Montgomery-Ward. Noel was in the course and scope of his employment with Montgomery-Ward at the time of the accident. Highway 464 is a narrow, two-lane blacktop road and was wet at the time pertinent hereto, as it had rained earlier in the day.

As the two vehicles approached each other on the highway, the plaintiff was crossing a bridge and defendant Noel was entering a curve just north of the bridge. As he entered the curve, Noel applied his brakes and his vehicle skidded into the opposing lane where it collided with the plaintiff’s vehicle.

NEGLIGENCE

Defendant Noel testified that as he approached the curve he saw the plaintiff’s truck straddling the center line and proceeding toward him. This was his reason for application of his brakes, which caused his vehicle to begin skidding and move into plaintiff’s lane. The plaintiff testified that Noel was traveling in the middle of the road when he first saw him, but had moved over to Noel’s side of the road and straightened his vehicle before he began to skid into plaintiff’s lane. Meshell stated he pulled his truck off the road to his right just before the collision occurred. It was clearly established that the point of impact was located in plaintiff’s lane of travel.

Defendants argue that Noel acted reasonably in a sudden emergency not of his own making. They cite Henderson v. Shewbart, 112 So.2d 727 (La.App. 1st Cir. 1959) and State Farm Mutual Automobile Insurance Company v. Hamilton, 91 So.2d 438 (La.App. 2d Cir. 1956). These cases are factually inapposite to the instant one. The Henderson case involved a following motorist who hit his brakes and skidded into the car in front of him when confronted with an accident which was occurring just ahead of him. The State Farm case involved a driver who was suddenly confronted with a car which had been negligently placed in the path of highway traffic. Therefore, it was held that in light of the emergency situation created by other vehicles the actions of these defendants were entirely reasonable, and they could not be required to anticipate the occurrence of these obstructions in their immediate paths.

The sudden emergency doctrine is available only to a driver proceeding carefully and prudently who does not contribute to the creation of the sudden emergency. It is not available to a person who participates in creation of an emergency or who fails to properly act in order to avoid an emergency. Smith v. Marquette Casualty Company, 247 La. 1054, 176 So.2d 133 (1965); Hebert v. Lefty’s Moving Service, 389 So.2d 855 (La.App. 4th Cir. 1980).

The driver of a vehicle has the duty to maintain a proper lookout and to keep control of his vehicle at all times. Cory v. Employers Mutual Liability Insurance Company of Wisconsin, 267 So.2d 761 (La.App. 2d Cir. 1972); Hebert v. Lefty’s Moving Service, supra. The trial court found that Noel failed to maintain control of his vehicle and permitted it to skid into the lane of travel properly occupied by the plaintiff’s vehicle, where the two vehicles collided. He held that the defendant’s conduct was negligent and was the sole cause of the accident. Our review of the record reveals no manifest error in these findings. Nor does the evidence show that the trial court was clearly wrong in finding the plaintiff free of contributory negligence. We therefore affirm the trial court’s holding on the issue of liability.

DAMAGES FOR PERSONAL INJURY AND MENTAL ANGUISH

The first element of damages to be considered is the award of $750 for personal injuries and mental anguish. The defendant contends that this award is in error since it is unsupported by the evidence. We agree.

There is no evidence that plaintiff received any personal injuries or even that he was jostled in the accident. The mere presence of the plaintiff in his truck at the time of the accident does not entitled him to an award for personal injuries. State Farm Mutual Automobile Insurance Company v. Terrebonne, 356 So.2d 1073 (La.App. 4th Cir. 1978).

The four instances in which an award for mental anguish as a result of damage to property is normally permitted were set out in Dugas v. St. Martin Parish Police Jury at 351 So.2d 271 (La.App. 3rd Cir. 1977), writ denied 353 So.2d 1046 (La.1978).

“[4] According to Louisiana jurisprudence as regards an award for mental anguish as a result of damage to property, recovery is normally permitted in but four instances: (1) property is damaged by an intentional or illegal act; (2) property is damaged by acts for which the tort-feasor will be strictly or absolutely liable; (3) property is damaged by acts constituting a continuous nuisance; (4) property is damaged at a time in which the owner thereof is present or situated nearby and the owner experiences trauma as a result. Farr v. Johnson, 308 So.2d 884 (La.App. 2 Cir. 1975), writ refused, 310 So.2d 854 (La.), and cases cited therein.”

There is no evidence to bring this case within any of the four instances in which an award for mental anguish would be permitted. Minimal worry over damage to ones property is not recoverable “damage.” See Farr v. Johnson, 308 So.2d 884 (La.App. 2d Cir. 1975).

We therefore find that this plaintiff is not entitled to any award of damage for personal injuries or mental anguish.

DAMAGES FOR LOSS OF USE OF THE TRUCK

The defendants also contend that it was error for the trial court to award the plaintiff damages for loss of use of his dump truck for 60 days. The gravel truck was the plaintiff’s sole means of livelihood. An adjuster procured by Montgomery-Ward examined the truck three days after the accident and estimated that repair would cost more than the truck’s fair market value less its salvage value. . Therefore, he deemed it to be a total loss. The trial court correctly accepted this testimony.

Loss of the truck’s use resulted in the plaintiff’s loss of earnings from hauling sand and gravel. Meshell stated that soon after the accident he began searching for a replacement. He was unsuccessful in his attempts to find a suitable replacement until the second week in February. This truck had to be replaced a few weeks later because it was not mechanically sound. The trial court allowed recovery for earnings lost as a result of the accident for a period of 60 days.

The general rule is stated in Washington v. Lake City Beverage, Inc., 352 So.2d 717 (La.App. 3rd Cir. 1977), writ denied 354 So.2d 1050 (La.1978):

“Generally, damages for loss of the use of a vehicle (or for the rental of another) are recoverable. However, that rule is subject to the following reservation. In those cases in which the wrecked vehicle is totally destroyed or its repair is not economically feasible, those damages are recoverable only for a reasonable time, that period in which the owner becomes aware of the situation and secures a replacement therefor. Hoffman v. All Star Ins. Corp., 288 So.2d 388 (La.App. 4 Cir. 1974), writ refused, 290 So.2d 909 (La.); Barry v. United States Fidelity & Guaranty Co., 236 So.2d 229 (La.App. 3 Cir. 1970).”
(See also Menard v. Prejean, 374 So.2d 1275 (La.App. 3rd Cir. 1979).

The court in the instant case found that 60 days was a reasonable time to take to secure a suitable replacement for the plaintiff’s gravel truck, and that the plaintiff made a good faith effort to do so within that time. Considering the nature and cost of the property sought to be replaced, we find no abuse of discretion in awarding damages for this length of time.

The defendants contend further that the trial court erred in basing the award for loss of use on the premise that the plaintiff worked six days a week. We find sufficient evidence in the record to support the court’s conclusion that the plaintiff quite often worked six days a week hauling gravel and is entitled to an award on this basis.

VALUE OF THE TRUCK

The plaintiff takes issue with the trial court’s award of $5,533.33 for the value of the truck, based on the appraised value of $7,233.33, less the salvage of $1,700. He argues the trial court erred in deducting the salvage. The plaintiff contends the salvage should not be deducted from the award since he did not receive the benefit thereof. However, since the salvage was sold at the foreclosure sale by GMAC, and the proceeds thereof applied against the amount plaintiff owed on the note for which the truck stood as security, the plaintiff did in fact receive the benefit of the truck’s salvage value, as properly pointed out by the trial court. We therefore find no abuse of discretion in the trial court award to the plaintiff for the value of the truck.

LOSS OF FUTURE PROFITS DUE TO SMALLER REPLACEMENT TRUCK

The plaintiff contends he sustained future damages because he was unable to secure a vehicle comparable in size to the one which he lost. Therefore, he had to use a smaller vehicle which produced less income per load.

It is an established rule that lost profits resulting from an offense or quasi offense must be proved with reasonable certainty, and damages will not be allowed where the lost profits are purely conjectural or uncertain. LSA-C.C. article 2315; Koncinsky v. Smith, 390 So.2d 1377 (La.App. 3rd Cir. 1980); Galloway v. Tenneco Oil Company, 313 So.2d 317 (La.App. 4th Cir. 1975); writ denied 318 So.2d 42 (La.1975).

The plaintiff introduced testimony of an economic expert calculating his future economic loss in terms of the difference in capacity of the two trucks. The one which was damaged had a 20 cubic yard capacity, whereas the replacement truck had only a 17 cubic yard capacity. He estimated the plaintiff carried 12 fewer yards per day with the new truck and suffered a net loss of $2.39 per yard.

The trial court found the plaintiff failed in his burden of proof of a causal connection between the defendants’ negligence and the claimed loss of future profits. Plaintiff failed to show there were no trucks available to him with the same capacity as the damaged truck. He testified himself that trucks of this size were available, but stated that he lacked the financial means with which to purchase one.

We find the following rule, stated in Menard v. Prejean, supra, applicable in the instant situation:

“. .. while the lack of adequate finances to purchase a replacement boat provoked much sympathy, the law does not support the inclusion of damages for the loss of use of such an item beyond a reasonable time that it would take for the replacement unit to be purchased had adequate finances been available. We believe that to hold otherwise would definitely open the door to the possibility of considerable abuse.”
See Hoffman v. All Star Insurance, 288 So.2d 388 (La.App. 4th Cir. 1974); writ denied 290 So.2d 909 (La.1974).

Furthermore, the plaintiff introduced no evidence to show the expected work-life of the damaged truck if the accident had not occurred. We conclude that the trial court did not commit an abuse of discretion in finding this element of the plaintiff’s claim too speculative.

PLAINTIFF’S CLAIM AGAINST MIC

The plaintiff contends the trial court erred in holding that MIC was not arbitrary and capricious and without reasonable cause in its failure to pay the plaintiff under his collision policy, and thus not liable for penalties and attorney’s fees under LSA-R.S. 22:658. We find no merit in this contention.

Mr. Meshell first reported his claim to MIC on January 17, 1979, one month after the accident. The next day he again called MIC and advised the claims clerk that he did not want his property damage claim to be handled under MIC’s collision policy. He said he planned instead to pursue his claim directly against the responsible tort-feasor. At that point, MIC closed its file. Then on March 21, 1979, he advised MIC that he wished to make the claim under his collision policy. MIC then reopened the file and sent an adjuster to inspect the damage to the vehicle. At this point a substantial dispute arose as to whether the vehicle was a total loss or whether it could be repaired. MIC subsequently tendered to the plaintiff a check for $2,089.96, which was the amount of the company adjuster’s repair estimate. MIC also subsequently tendered another check to cover possible hidden damages not discovered by the adjuster.

The penalty provisions of LSA-R.S. 22:658 are penal in nature and are imposed in only those instances where the facts show that the insurer’s failure to timely pay benefits is arbitrary, capricious or without probable cause. The burden of proof is on the claimant to show that the failure to pay is arbitrary and capricious. Thomas v. McInnis Bros. Construction, Inc., 401 So.2d 522 (La.App. 2d Cir. 1981); writ denied 406 So.2d 608 (La.1981); Carter v. American Mutual Liability Insurance Company, 386 So.2d 1072 (La.App. 3rd Cir. 1980); Breaux v. Marine Electric & Reliance Insurance Company, 369 So.2d 196 (La.App. 3rd Cir. 1979).

The trial court’s conclusion with regard to the assessment of penalties and attorney’s fees under this statute is a factual determination which should not be disturbed absent a finding of manifest error. Carter v. American Mutual Liability Insurance Company, supra; Cullivan v. Fish Engineering & Construction Company, Inc., et al., 354 So.2d 597 (La.App. 3rd Cir. 1977).

The trial court concluded the delay in payment by MIC was attributable as much to the action or inaction of the plaintiff himself as it was to MIC and, accordingly, rejected plaintiff’s claim. We decline to disturb this holding on appeal inasmuch as we discern no manifest error therein.

As for plaintiff’s claim against MIC for damages for loss of use of the truck, the trial court correctly pointed out that the plaintiff failed to establish a causal connection between the tardy disposition of his claim under the policy and his loss of earnings. Accepting his assertion that his damage was sustained primarily because he did not have the funds to obtain another comparable truck, the evidence does not show that his loss would have been lessened by an earlier disposition of his claim by MIC. See Hoffman v. All Star Insurance Corporation, supra. We therefore affirm the trial court’s rejection of the plaintiff’s claim against MIC.

MIC’s THIRD PARTY DEMAND

Defendants Noel and Montgomery-Ward contend that it was error for the trial court to cast them in judgment on MIC’s third party demand for reimbursement of the $2,089 paid to the plaintiff’s insured for damages to his vehicle. They argue that the effect of this judgment is to cast them twice for the same loss. We find this contention to be without merit.

The trial court judgment in favor of the plaintiff Meshell and against the defendants Noel and Montgomery-Ward included the sum of $5,533.33 for the loss of the value of his truck. The judgment on the third party demand by MIC specifically decreed that the defendants, Noel and Montgomery-Ward, were liable to MIC for the sum of $2,089 to be paid from the award in favor of plaintiff Meshell in the tort suit, and for which the defendants would receive credit on the judgment in the tort suit. The award in favor of the intervenor GMAC is against plaintiff alone, to be paid from the award in his favor against the defendants Noel and Montgomery-Ward. Thus, all parties have been satisfied for their losses, and the defendants have not been cast with liability for more than the value of the vehicle in question at the time of loss. This aspect of the trial court judgment is affirmed.

For the reasons assigned, the judgment appealed is amended to delete the award of $750 to Meshell for personal injuries and mental anguish, thereby reducing the award to Meshell to the sum of $15,471.33. In all other respects, the judgment appealed is affirmed. Costs of this appeal are assessed against defendants-appellants-appel-lees.

AFFIRMED, AS AMENDED.


text:
    G.M.A.C., Plaintiff & Appellee, v. Meldon M. MESHELL, Defendant & Appellee-Appellant.
    No. 82-4.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    Smith, Ford & Clark, Chris Smith, III, Leesville, for G.M.A.C.
    Provosty, Sadler & deLaunay, F. Rae Swent, Alexandria, for Meshell.
    Skeels, Baker, Coleman & Strickland, Donald L. Baker, Shreveport, for interve-nor-appellee.
    Trimble and Associates, Lon P. Wilson, Alexandria, for defendants-appellees.
    Before CULPEPPER, SWIFT and LABORDE, JJ.
   CULPEPPER, Judge.

For the reasons assigned in the companion case entitled “Meldon M. Meshell v. Insurance Company of North America, et al,” 416 So.2d 1383, our Docket No. 82-3, in which a separate judgment is rendered by us this date, the judgment appealed in the present case is affirmed. All costs of this appeal are assessed against the defendant, Meldon M. Meshell.

AFFIRMED.