text:
    Patsy LONG, Plaintiff-Appellee, v. MARTIN TIMBER COMPANY, INC., Defendant-Appellant.
    No. 14461.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 1981.
    En Banc. Rehearing Denied March 27, 1981.
    Writ Refused May 1, 1981.

      Love, Rigby, Dehan, Love & McDaniel by Kenneth Rigby, Shreveport, for defendant-appellant.
    Richard N. Ware, Coushatta, for plaintiff-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   MARVIN, Judge.

From a judgment awarding worker’s compensation benefits for total and permanent disability to claimant, the employer appeals, contending that the employee’s disability ended some five months following her accidental injury. The sole issue is whether the trial court was clearly wrong in weighing the medical evidence. We affirm.

The claimant, Mrs. Long, sustained an injury to her lower back when she lifted a wooden box while at work on May 30, 1978. She saw her employer’s local physician who referred her to a Shreveport orthopedist (Dr. Edwards) for treatment. Dr. Edwards saw her first on June 5, 1978, and during the course of his hospitalization of her from June 7 to June 14, 1978. After that time and during the course of his treatment, he saw her on July 7, July 28, August 4, August 23, September 20, December 20, 1978, and on June 20, 1979. Dr. Edwards referred her to Dr. Boykin, a neurosurgeon, who saw her on August 4, 1978, and to Dr. Osborne, an MD who is called a pain specialist, who saw her about two months later. These doctors reported to Dr. Edwards. Dr. Edwards’ trial disposition was taken October 8,1979. Judgment in this case was signed on June 11, 1980.

Mrs. Long was seen on July 11, 1978, by Dr. Rambach, an orthopedist, at the request of the employer. He referred her to Dr. Brown, a neurologist, for electromyographic (EMG) studies to determine if Mrs. Long was exaggerating her complaints of pain which Dr. Rambach thought were generally inconsistent. The validity of the EMG as a diagnostic aid was questioned by Dr. Edwards.

Dr. Edwards diagnosed claimant’s injury as a lumbosacral sprain [a probable L4-5 disc on the right side, and possibly an L-5S-l disc on the right side]. Dr. Edwards found claimant to be in great pain which only moderated somewhat over the ensuing year. Claimant had difficulty dorsal flexing her right big toe. Dr. Edwards revealed that claimant had a negative straight leg raising on the right while seated and positive while she was supine. Dr. Edwards agreed that this was inconsistent with her objective symptoms, but stated that her performance was consistent in this respect throughout his treatment and the evaluation of Mrs. Long by Dr. Edwards and other physicians. Dr. Edwards noted some scoliosis (lateral curvature of the spine) that was probably posture-related. He also noted a psychological overlay, secondary to the injury, which he said bordered on neurosis. Mrs. Long’s pain persisted throughout the period she consulted Dr. Edwards.

When Dr. Edwards felt he could no longer do her any good, he referred her to Dr. Osborne, a pain specialist. Claimant could not afford to see Dr. Osborne because her employer refused to pay for such consultation. Throughout his experience with claimant, Dr. Edwards observed in his reports and maintained that Mrs. Long remained unable to return to work until her lumbosacral sprain was resolved. His evaluation was made with full knowledge of the medical “inconsistencies” noted by himself and by other specialists and was maintained by him after he re-examined claimant after she had been evaluated by other specialists.

Dr. Rambach and Dr. Boykin expressed some doubt about the validity of Mrs. Long’s complaints of pain. Dr. Rambach, who saw Mrs. Long only on July 11, 1978, and who reviewed Dr. Brown’s EMG of August 23,1978, opined on October 23,1978, that Mrs. Long . is able to return to work.” Dr. Edwards saw her three or more times after August 23, 1978, nonetheless remained firm in his opinion that Mrs. Long’s disability continued. The trial court discusses the details of the lay and the medical testimony:

“The Court notes that plaintiff is a large framed 40 year old white woman who can weigh 190 pounds and not be considered overweight. She had done moderately heavy labor shortly prior to her injury for 15 months at the Louisiana Pacific Plywood Mill in Texas and for the defendant. Prior to the subject accident she had never had any such or kindred injury. She had been the bread-winner in her family since her husband’s total disability in October, 1970. She had been a good housekeeper, mother of four, worked a good-sized garden almost every year, hunted and fished with friends, and was a happy, congenial person who seldom, if ever, complained about anything. The lay testimony adduced and that of her attending physician, Dr. T. A. Edwards, describes her as a completely changed personality as a result of the subject accident. The essence of the lay testimony is that plaintiff seems to have undergone personality and physiological changes since the subject injury, no longer being energetic, diligent about her housework, gardening, etc., and that she has continuously complained of debilitating pain in the lower legs and back.
“Dr. T. A. Edwards, orthopedic surgeon, was consistent, even with respect to the inconsistencies he noted on July 7, 1978. Irrespective of the inconsistencies which he noted, he remained strongly of the opinion that the plaintiff was disabled as a result of the subject injury. The Court had the occasion to observe plaintiff closely during these proceedings and made specific notation that she was a person with ‘problems, depressed, moved very carefully etc. .. ., never smiling, occasionally biting her nails, ofttimes seeming a bit distracted.’ In effect, the Court observed her to be substantially as described by Dr. Edwards and the lay testimony.
“This testimony is supported in part by that of two other medical experts, Drs. Fred B. Boykin and Baer I. Rambach, neurosurgeon and orthopedic surgeon, respectively. Dr. Edwards referred plaintiff to Dr. Boykin because of his initial concern that plaintiff had suffered a disc injury. It is important to note that Dr. Boykin examined the plaintiff only one time, on August 14,1978, two months and one week after the injury. Dr. Rambach examined the plaintiff only one time, on July 11, 1978. Both found some of the subjective complaints that Dr. Edwards had noted, pain in flexion, extension, tenderness in the lumbar region, etc. Both found the same inconsistencies that Dr. Edwards noted and evaluated over the lengthy period of time he treated plaintiff. Dr. Rambach also noted ‘moderate paraspinal involuntary muscle spasm in the lower region of the spine and mid-lumbosacral area’ (Page 5 of deposition, Line 5) and ‘... some weakness noted upon extension or straightening out or raising up of the great toe of the right foot’ (Lines 17 and 18), etc., this on July 11, 1978. Dr. Boykin found no muscle spasm.
“Of concern to the Court was Dr. Ram-bach’s letter dated October 23, 1978, (Rambach No. 2, next to last page of his deposition) wherein he notified the employer-defendant that plaintiff was able to return to work. Dr. Rambach had not seen the plaintiff in 3¡á months (since July 11, 1978), at which time he noted muscle spasms, etc. (supra) and heard her complaints. He clearly based this conclusion on an EMG report by Dr. H. Winston Brown, dated August 23, 1978, two months earlier, and a month and one-half after July 11,1978, the date of Rambach’s only examination (and EMG does not rule out a lumbosacral strain]). Dr. Boykin also placed great emphasis on the EMG report, again for the sole purpose of eliminating the probability of a disc injury and consequent nerve irritation. Dr. Edwards testified that the EMG was a questionably valid diagnostic aid (Page 29, Lines 1-3, Edwards deposition).
“Both Drs. Boykin and Rambach agreed, as does the jurisprudence of this state, that they would have to defer to the treating physician, Dr. Edwards, if his examinations continued to find plaintiff disabled as a consequence of the subject injury (Rambach, Page 19; Boykin, Page 23).
“This Court has struggled with concern over the objective evidence by Drs. Boy-kin and Rambach that plaintiff was not cooperating with their examinations (Boykin deposition, Pages 12-14; Ram-bach deposition, Page 11). Nevertheless, the treating orthopedic surgeon, Dr. T. A. Edwards, was well aware of these ‘inconsistencies’ and took their possible portent into consideration in evaluating the physical condition of his patient. Drs. Boykin and Rambach each had only one opportunity (one examination) to evaluate the possible implications of these inconsistencies. All witnesses, lay and expert, are consistent in their observations of the plaintiff and consistent with the Court’s observation of her. The Court is convinced from its own observations of the plaintiff and the lay testimony adduced that plaintiff has never been a malingerer, but on the contrary; to find otherwise would be to conclude that plaintiff has been conducting a charade for almost two years, playing a completely contradictory personality. Her attending orthopedic surgeon, Dr. T. A. Edwards, the most knowledgeable expert on her condition, concludes that she continues to suffer a disabling injury, in the nature of a lum-bosacral strain, resulting from the subject accident. He had made her an appointment with a Dr. Philip Osborne for possible rehabilitation and consultation, but defendant refused to honor the medical bills portent and plaintiff was unable to finance same (she kept her first appointment). She was financially unable to continue seeing Dr. Osborne after June 20, 1979 (transcript Page 74, Lines 24-30, Page 75, Lines 1-3).
“The Court finds that plaintiff has established by a preponderance of the evidence that her disability resulted from the subject accident which has continued through the date of this trial (October 12, 1979), and indefinitely. * * * ”

Defendant contends on appeal that Dr. Edwards’ evaluation of disability is based solely upon Mrs. Long’s subjective complaints of pain and is not sufficient to overcome the other medical testimony and that the trial court erred in finding otherwise.

It is not error for a trial court to give greater weight to the testimony of the treating physician than to testimony of other physicians who had not frequently examined the claimant. See Gowers v. Gour, 350 So.2d 935 (La.App. 2d Cir. 1977), writ refused. This is the “most oft-cited rule”. See Malone-Johnson, “Workmen’s Compensation”, 2d Ed., La.Civil Law Treatise, Vol. 13, § 288, and at p. 674.

For reasons assigned by the lower court which we adopt, and at appellant’s cost, judgment is

AFFIRMED.


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    Sharon Ann GUICE, Plaintiff-Appellant, v. MFA MUTUAL INSURANCE COMPANY, Defendant-Appellee.
    No. 14462.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 1981.

      Theus, Grisham, Davis & Leigh by R. L. Davis, Jr., Monroe, for plaintiff-appellant.
    Snellings, Breard, Sartor, Inabnett & Trascher by Kent Breard, Monroe, for defendant-appellee.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   HALL, Judge.

Plaintiff brought this wrongful death action against MFA Mutual Insurance Company under the personal liability section of a homeowner’s policy issued by MFA to plaintiff and her husband. Plaintiff’s seven-year-old son was fatally injured when the Honda 90 bike (3-wheeler) he was riding with his father hit a hole in a logging road and flipped over. Plaintiff alleged the accident occurred on premises covered by the policy and was caused by her husband’s negligent operation of the vehicle. Defendant moved for summary judgment, contending that the homeowner’s policy excluded coverage for bodily injury or property damage arising out of the operation of a recreational motor vehicle owned by the insured if the injury or damage “occurs away from the residence premises.” The trial court granted the motion and plaintiff appealed.

The pleadings and the deposition of plaintiff’s husband establish the following undisputed facts. Plaintiff and her husband own six acres of land in Morehouse Parish in Section 23, Township 22 North, Range 6 East on which their home is located. The accident did not occur on plaintiff’s property, but rather, occurred about 250-300 yards from plaintiff’s property line. Plaintiff’s husband, with their son as a passenger, drove the 3-wheeler around their property then down a logging road near their property for about Vi to V2 mile. As the 3-wheeler was being driven back toward plaintiff’s property, it struck a hole and flipped over.

Plaintiff claims coverage under “Coverage E — Personal Liability”: “This Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an occurrence.”

Defendant argues that exclusion 1(a)(3) applies to the accident in this case. The exclusion reads:

“This policy does not apply:
1. Under coverage E . ..:
a. to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:
* * * *
(3) any recreational motor vehicle owned by any Insured, if the bodily injury or property damage occurs away from the residence premises; . . . . ”

The term “residence premises” is defined in the policy as “a one or two family dwelling building, appurtenant structures, grounds and private approaches thereto.” The policy does not define “private approaches” or “grounds”.

First, plaintiff argues that the accident occurred on the “grounds” of the residence premises because it occurred in Section 23, Township 22 North, Range 6 East, the location of the described premises as noted in the policy. This argument is without merit. The insurance policy obviously was not meant to cover the entirety of Section 23, the section number being included only for the purpose of identifying the general location of plaintiff’s rural home.

Second, plaintiff argues that the policy definition of recreational motor vehicle is ambiguous and should not be interpreted as including a 3-wheeler motorcycle. Recreational motor vehicle is defined as: “(1) a golf cart or snowmobile or (2) if not subject to motor vehicle registration, any other land motor vehicle designed for recreational use off public roads.” The Honda 3-wheel-er is not subject to motor vehicle registration and is designed for recreational use off of public roads. It is a “recreational motor vehicle” within the meaning and definition of that term as used in the exclusionary clause.

Third, plaintiff argues that the accident occurred on a logging road which may be construed to be a “private approach” as contained in the definition of “residence premises”.

“Private approaches thereto” is not defined in the policy. The parties have not cited any cases interpreting the provision. “Private” could mean exclusively used by the insured or it could mean private as distinguished from public. The latter definition is broader and is adopted as the correct interpretation under the rule that ambiguities in an insurance policy are construed in favor of coverage and exclusionary clauses are to be narrowly and strictly construed. The logging road is private in character.

“Approach” is defined by dictionaries as a means of access. The policy provision defines residence premises as a dwelling, appurtenant structures, grounds and “private approaches thereto." (Emphasis supplied). This phrase denotes means of access to the dwelling, appurtenant structures and grounds of the insured. It denotes an approach or access reasonably and ordinarily necessary or incidental to the use and enjoyment of the insured’s residence property.

The logging road runs from wooded land owned by Georgia-Pacific Corporation, crosses a corner of plaintiff’s property, and continues on across the property of others. It obviously exists as a means of access to other property and only incidentally crosses the rear of plaintiff’s six-acre tract. The regular approach or access, as those terms are commonly used, to plaintiff’s property is from a public road running in front of the home. The logging road was not designed as a means of access to plaintiff’s property nor is it a means of access reasonably or ordinarily necessary or incidental to the use and enjoyment of the insured’s residence. It is not a private approach thereto as contemplated by the policy.

The unfortunate accident on the recreational motor vehicle occurred away from the residence premises. Coverage is excluded under the exclusionary clause of the policy.

The judgment of the district court is affirmed at plaintiff-appellant’s costs.

Affirmed.


text:
    Mildred Bryant CORY, Plaintiff-Appellee, v. James Cecil CORY, Defendant-Appellant.
    No. 14463.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 1981.
    Writ Refused April 27, 1981.
    Wilson & Veatch by Thomas A. Wilson, Jr., Shreveport, for defendant-appellant.
    Bethard & Davis by Walter E. Dorroh, Jr., Coushatta, for plaintiff-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   HALL, Judge.

The plaintiff-wife, an interdict represented by her curatrix, filed suit against her nonresident husband for a separation on grounds of abandonment, cruel treatment and nonsupport and, alternatively, for a divorce on grounds of living separate and apart for one year. Defendant filed an exception of lack of jurisdiction over the person contending that LSA-R.S. 13:3201(f), the long-arm statute, does not subject defendant to the personal jurisdiction of the court and if it is held to give jurisdiction to the court, it is unconstitutional. Additionally, defendant pled that neither he nor his wife are Louisiana domi-ciliaries; thus, the court has no jurisdiction over the subject matter of the action. These exceptions were overruled. Defendant then filed a peremptory exception of no right of action, contending that the curator exceeded her authority in filing a suit for separation or divorce and that there is no legal basis for a curator to institute such a proceeding on behalf of an interdict. This exception was also overruled. The case was heard on the merits and the trial court granted a separation on grounds of abandonment, and awarded alimony pendente lite in the sum of $50 per month. The defendant appealed.

On appeal defendant makes four assignments of error: (1) the trial court erred in holding that a curator has the authority to file a suit for separation or divorce on behalf of an interdict; (2) the trial court erred in holding that a mentally incompetent person can change her domicile to Louisiana after being interdicted in another state; therefore, the court erred in holding it had jurisdiction over the subject matter of this suit; (3) the trial court erred in holding that LSA-R.S. 13:3201(f) gives Louisiana personal jurisdiction over a nonresident and in holding the statute constitutional; and (4) the trial court erred in holding that the evidence established that defendant abandoned his wife.

Pretermitting consideration of the first three assignments of error which raise serious and interesting issues, we reverse the judgment of the district court for the reason that the evidence does not support a finding of abandonment or other grounds for a separation.

The Corys were married in Louisiana on September 2,1944 and lived in this state for about two years. The couple moved to California in the late forties and lived there together until 1977. They reared two children, now grown. Defendant is legally blind but supported his family by operating concession stands in public buildings. The Corys own a home in California which is paid for.

In 1973 Mrs. Cory began losing her mental faculties. She was diagnosed by physicians as having a disease in which there* is a steady and permanent deterioration of the brain cells. By 1975 or 1976 plaintiff was completely helpless and had to be cared for like an infant. She was hospitalized on several occasions because she would not eat. Defendant instituted guardianship proceedings in California and was appointed his wife’s guardian.

In October 1977 plaintiff was still in poor condition. Defendant had been caring for her by himself for about two years. He had retired from his work in order to be home with his wife. Mrs. Pickett, Mrs. Cory’s sister, visited the couple in California and it was decided that Mrs. Cory would be taken to Louisiana to stay with Mrs. Pickett. Mrs. Pickett, a nurse’s aide by training, had taken care of several invalid members of her family and, to her credit, was pleased to have the opportunity to care for her sister. On several previous occasions she had offered to care for Mrs. Cory. The Corys and Mrs. Pickett flew to Louisiana and Mrs. Cory was brought to Mrs. Pickett’s home where she still lives.

Within two weeks Mrs. Pickett filed interdiction proceedings in Louisiana, seeking to be appointed Mrs. Cory’s curatrix. Defendant came back to Louisiana in December 1977 to visit his wife. He remained in Louisiana until January when a brother of Mrs. Pickett and Mrs. Cory ordered him off Mrs. Pickett’s property and told him his presence upset Mrs. Pickett. Mrs. Pickett did not inform defendant of the interdiction proceedings until after the judgment appointing her curatrix was signed in January 1978.

Defendant returned to California and has not been back to Louisiana since that time. Defendant, whose only income is about $390 per month from social security disability benefits, testified that each month he sent Mrs. Pickett a check for $25 to help care for his wife, but that only one of the cheeks was cashed by Mrs. Pickett. His testimony was corroborated by his checkledger which showed an entry of such a check each and every month. Mrs. Pickett denied receiving any checks, except one in January 1978, until after this suit was filed in June 1979. She did not cash the checks received after the suit was filed on advice of her attorney. The suit was filed on the advice of her doctor and her. attorney in order to obtain financial aid for Mrs. Cory and to obtain her share of the California community property.

As curatrix, with court approval, Mrs. Pickett sold Mrs. Cory’s undivided interest in some family property in February 1978 for $3,500. Mrs. Cory receives social security benefits of more than $200 each month.

The trial court correctly held that a divorce could not be granted under the provisions of LSA-R.S. 9:301 because a separation is not considered to be voluntary where either spouse is insane at the time of the separation. Ridell v. Hyver, 215 La. 358, 40 So.2d 785 (1949); Galiano v. Monteleone, 178 La. 567, 152 So. 126 (1934).

The trial court also correctly held that the evidence did not support a finding that defendant had failed to support his wife. Mrs. Pickett’s testimony that she did not receive checks was not sufficient to establish that defendant failed to send money for his wife’s support in light of his believable and somewhat corroborated testimony that he did send checks monthly. It is significant that, except for a request by Mrs. Pickett’s brother in January 1978, no member of the family, including Mrs. Pickett, ever contacted defendant to ask for financial assistance.

On the issue of abandonment the trial court found that defendant brought his wife to her former home in Red River Parish voluntarily and left her with relatives, “probably for the noble purpose of seeing if perhaps additional medical treatment was available to her which she could not receive in California.” The trial court found that after some unpleasant incidents occurred between Mrs. Cory’s family and defendant he returned to California and had made no effort, legal or otherwise, to have his wife return with him. The court concluded that defendant had, in fact, abandoned his wife within the meaning of LSA-C.C. Art. 143.

LSA-C.C. Art. 143 provides:

“Separation grounded on abandonment by one of the parties can be admitted only in the case when he or she has withdrawn himself or herself from the common dwelling, without a lawful cause, has constantly refused to return to live with the other, and when such refusal is made to appear in the manner hereafter directed; provided, however, that separation grounded on abandonment may be the object of a reconventional demand in any suit for separation from bed and board.”

Courts have granted a separation on the basis of “constructive abandonment” where a spouse orders or causes the other spouse to leave the common dwelling and has refused to allow the other spouse to return. Burnett v. Burnett, 349 So.2d 488 (La.App. 3d Cir. 1977); Gilberti v. Gilberti, 338 So.2d 971 (La.App. 4th Cir. 1976); Robertson v. Robertson, 332 So.2d 896 (La.App. 2d Cir. 1976).

Neither abandonment as defined in the code article nor constructive abandonment was established in this case. The decision to bring Mrs. Cory to Louisiana to stay with Mrs. Pickett was a mutual decision made by defendant and Mrs. Pickett in the best interest of Mrs. Cory in order to provide her with care and attention. Mrs. Cory was brought to Louisiana for a lawful and worthy cause with good intentions. The defendant has not visited in Louisiana because of the unpleasantness that exists between him and his wife’s family and because of financial limitations. He has, however, stayed in touch indirectly through frequent telephone calls to relatives in Louisiana. He has sent money for his wife and occasionally, gifts. Mrs. Cory is totally unaware of her surroundings and would not know defendant if he were to visit her. Undoubtedly, any attempt by him to bring Mrs. Cory back to California would be resisted by Mrs. Pickett, as she conceded in her testimony.

Abandonment as a grounds for separation under the code article was not established. Mrs. Cory’s removal from the matrimonial domicile was for a lawful cause, with good intentions and for the purpose of providing her with the best possible care and attention in a rather difficult and pitiful situation. Defendant has not refused to take her back into his home nor has he indicated any intention to terminate the marital relationship or to abandon his marital obligations, which he met for the more than 35 years of their marriage. He has not abandoned his wife, either factually or legally.

For the reasons assigned, the judgment of the district court granting a separation from bed and board and awarding alimony pendente lite is reversed and set aside. Plaintiff’s demands are rejected and the suit is dismissed. Court costs, including the cost of appeal, are to be paid out of community funds.

Reversed and rendered.


text:
    R. H. S. (RACING HEAD SERVICE), Plaintiff-Appellee, v. Wiley FALLON d/b/a/ A & F Automotive, Defendant-Appellant.
    No. 14464.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 16, 1981.
    Writ Refused April 27, 1981.
    Robert W. Raley, Bossier City, for defendant-appellant.
    Burnett & Frederickson by Gerald L. Burnett and John F. Frederickson, Shreveport, for plaintiff-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   HALL, Judge.

Plaintiff, R.H.S. [Racing Head Service], sued Wiley Fallon d/b/a/ A & F Automotive for $2,643.98, the balance due on an open account. Defendant contended that the purchases were made on behalf of A & F Automotive, Inc., a Louisiana corporation whose president is defendant Fallon. The trial court found Fallon personally liable for the debt because of his failure to disclose his agency status when he secured a line of credit with plaintiff. We affirm.

A & F Automotive, Inc. was incorporated in June 1977. Wiley Fallon and Sheri Anthony are the sole stockholders. In August 1977, Fallon contacted plaintiff to secure a line of credit for the corporation. Fallon testified that he spoke on the telephone with a woman in plaintiff’s credit department and told her several times that he was acting for the corporation in trying to secure the line of credit. Plaintiff’s president testified that he spoke with Fallon over the telephone and, at all times, thought he was dealing with Wiley Fallon d/b/a/ A & F Automotive, a noncorporate proprietorship.

After these telephone conversations, plaintiff sent Fallon a credit application customarily sent to partnerships or sole pro-prietorships. Fallon’s wife or Sheri Anthony filled out the application and gave it to Fallon to sign. On the application, which was filed into evidence, the name of the business seeking credit is listed as “A & F Automotive;” the owners are listed as “Wiley Fallon and Sheri Anthony.” Fallon’s signature is found in the place provided for the “owner’s signature.” In short, there is no indication of the corporate nature of A & F Automotive or that Fallon signed in any capacity other than as the owner of the business.

Plaintiff’s president testified it is standard company policy when dealing with a closed corporation to get personal guarantees from the shareholders for the debts of the corporation. Had the credit application submitted by Fallon revealed the corporate status of A & F Automotive, Inc., plaintiff would have required guarantees from Fal-lon and Anthony that they would be personally responsible for the corporation’s debts to plaintiff. The fact that such guarantees were not secured bolsters the testimony of plaintiff’s president that he thought he was dealing with Wiley Fallon d/b/a/ A & F Automotive. Additionally, plaintiff filed into evidence a number of invoices sent by plaintiff which were addressed to A & F Automotive rather than A & F Automotive, Inc.

In an attempt to counter this testimony, Fallon testified that he revealed the corporate nature of his business when he initially spoke with plaintiff’s credit manager. Fal-lon also testified that he had some correspondence with plaintiff, in which he used the corporation’s stationery with letterhead bearing the name A & F Automotive, Inc. Additionally, Fallon testified that all checks sent to plaintiff in payment of merchandise received carried the corporate name, A & F Automotive, Inc. Fallon argues from this that plaintiff was put on notice that it was dealing with a corporation and not with Fallon individually.

It is well established that to avoid personal liability an agent acting on behalf of a corporation must disclose his agency status and identify his principal. Lagniappe of New Orleans, Ltd. v. Denmark, 330 So.2d 626 (La.App. 4th Cir. 1976); Three Rivers Hardwood Lumber Co. v. Gibson, 181 So. 607 (La.App. 2d Cir. 1938). The trial court determined that the reasonable and appropriate time to make this disclosure was when the credit application was submitted. This is correct. In order to determine whether the balance sued for is a liability of the corporation or of Fallon individually, it is necessary to determine to whom plaintiff extended credit. The credit application is the best evidence from which to make this determination.

The credit application reveals that credit was extended to A & F Automotive, Wiley Fallon, owner. There is no indication that Fallon was acting as an agent for a corporation. Therefore, it was reasonable for plaintiff to conclude that it was extending credit to Wiley Fallon doing business as A & F Automotive. Fallon is personally liable for the debt.

For the reasons assigned, the judgment is affirmed. Costs of this appeal are assessed to the defendant-appellant.

Affirmed.


author: JASPER E. JONES, Judge.

text:
    Henry SALLES et al., Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTO. INSURANCE CO., et al., Defendants-Appellees.
    No. 14420.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 17, 1981.
    En Banc. Rehearing Denied March 27, 1981.
    Writ Refused May 18, 1981.
    Joel M. Sermons, Shreveport, for plaintiff-appellant Henry Salles.
    W. M. Conerly, Vicksburg, Miss., for plaintiff-appellant Glenn Wells.
    Lunn, Irion, Switzer, Johnson & Salley, Shreveport, for defendant-appellee State Farm.
    Bodenheimer, Jones, Klotz & Simmons, Shreveport, for defendant-appellee McLean.
    Jack, Jack, Cary & Cary, Shreveport, for defendant-appellee Caulder.
    Baggett, McCall, Singleton, Ranier & Ieyoub, Lake Charles, for defendant-appellee Warren A. Smith.
    Before PRICE, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

Plaintiffs, Henry Salles, individually and as tutor of his minor son Richard Henry Salles, and Glenn Wells, appeal a judgment rejecting their demands for damages sustained by them as result of the death of Opal E. Salles, wife of Henry Salles, and mother of minor Richard Henry Salles and plaintiff Glenn Wells. We reverse and award damages.

Decedent was killed in an automobile-tractor-trailer collision which occurred at the intersection of US Hwy. 80 and La. 169 in Caddo Parish, Louisiana. Decedent was riding as a guest passenger in a Buick automobile operated by Nellis Caulder in an easterly direction on US Hwy. 80 which at the site of the accident is a two-lane blacktop highway. The automobile was involved in a collision with a truck and trailer unit which was traveling south on La. 169, a two-lane black-top highway. The 18-wheel-er was owned by defendant McLean Trucking Co. and operated by defendant Warren A. Smith. The point of impact was in the southwest quadrant of the intersection of US Hwy. 80 and La. 169. There existed at said intersection blinking red lights facing traffic on US Hwy. 80 and blinking amber lights facing traffic on La. 169. There were also properly posted stop signs on US Hwy. 80 requiring traffic on 80 to stop at the intersection. The collision occurred at about 11:40 p. m. on March 10,1977. It had been raining that night but was not raining at the time of the collision. The driver of the Buick, as well as her guest passenger, were both killed in the collision, and the driver of the truck was severely injured.

Defendant, Smith, had been employed by McLean Trucking Co. as a truck driver for many years, and on the night of the accident had left McLean’s Shreveport terminal en route to Houston, Texas. Smith had entered 1-20 in the City of Shreveport and proceeded west on 1-20 for several miles to its intersection with La. 169 where he exited 1-20 and turned south on 169, planning to proceed to Houston on Hwy. 79 upon which he would have entered as he crossed Hwy. 80-La. 169 intersection. The distance between the point where Smith entered 169 and its intersection with 80 is approximately 1200 feet. Smith testified that as he crossed the overpass over 1-20 proceeding south, and while on the southerly side of the overpass, he touched his brakes “a little-bit”, stopped giving fuel to his engine, and slowed to a speed of 30-35 mph as he entered the intersection. There is a line of trees running north and south along the west side of 169 which line of trees is 140 feet west of 169. This line of trees impairs the vision of a driver approaching the intersection from the north on 169 and limits his ability to observe eastbound traffic on 80 until the eastbound traffic on 80 reaches a point 140 feet west of the intersection.

Smith for 2 years prior to the occurrence of this accident had been making the trip from Shreveport to Houston for McLean each day. He normally left Shreveport at about 10 p. m. at night. On his arrival at Houston he would change trailers and return to Shreveport. The trip normally took about 12 hours, and he made the trip 5 days a week. He crossed this intersection where the accident happened daily, and Smith had literally been through it from 800 to 1000 times prior to occurrence of this accident; and under these circumstances was very familiar with it and knew of the substantial vision impairment created by the line of trees above described.

Smith, the only eyewitness to the accident, testified at trial that when he was within about 50 feet of the intersection he looked to his right, or westerly, down Hwy. 80 and saw no approaching traffic and that the first time he saw the Buick occupied by Mrs. Salles was at the moment of impact.

Mr. Heard, an accident reconstruction expert, testified at trial for the appellees. This expert, based upon the nature and extent of damages to the Buick and the truck, the gouge marks located at the southwest quadrant of the intersection, and the location of the Buick and truck after the accident, expressed the opinion that the Buick was traveling east on Hwy. 80 and entered the intersection at a speed of 45-50 mph. He testified the truck entered the intersection at a speed of 30-35 mph. He stated the right front of the truck collided with the left front of the Buick which at this time was about 3 ft. past the right front of the truck. This expert expressed the opinion that the Buick was traveling 66 feet per second and it took the Buick 2.25 seconds after it passed the tree line to travel the 140 feet to the intersection where the accident occurred. This expert stated that because Smith was not required to expect eastbound traffic on Hwy. 80 to run the stop sign and blinking red lights that it would take him 1.5 seconds to perceive the danger of the eastbound Buick entering the intersection without stopping, and .7 seconds following said perception to react (presumably to take action to activate the brakes on the truck). He stated that 2.2 seconds would have elapsed before Smith could have taken evasive action, and by this time the two vehicles which were on a collision course would have collided. The tenor of Heard’s testimony was that with the Buick proceeding toward the intersection at 45-50 mph and the truck proceeding toward the intersection at 30-35 mph, there was no action which Smith could have taken after the Buick cleared the tree line which would have avoided the collision.

The trial judge did not favor us with any reasons for his decision to reject the plaintiffs’ demands against McLean and Smith. We assume that the trial judge found Smith guilty of negligence for his failure to maintain a proper lookout, if for no other reason, but that the trial judge concluded, based upon Heard’s testimony, that even if Smith had seen the Buick he could not have avoided the accident, and for that reason Smith’s negligence was not a cause in fact of the accident.

The driver of the Buick who entered the intersection without stopping as required by the stop sign and the blinking red light was clearly guilty of negligence which was a cause of the accident. The issue here presented is whether defendant Smith, who entered the intersection faced with blinking yellow lights is also guilty of negligence which contributed to the accident. The duty of a driver who is faced with blinking amber lights is set forth in LSA-R.S. 32:234, which provides:

“A. Whenever an illuminated flashing red or yellow signal is used in a traffic sign or signal, it shall require obedience by vehicular traffic as follows:
(1) * * *
(2) FLASHING YELLOW OR AMBER (CAUTION SIGNAL) — When a yellow lens is illuminated with rapid intermittent flashes, drivers of vehicles may proceed through or past such signal only with caution.”

In the decision of Lockhart v. McInnis-Preston Chevrolet, Inc., 205 So.2d 744 (La. App. 1st Cir. 1967), the term caution as used in the statute was defined as:

“Prudent forethought to minimize risk.” Id. at 747.

The statute has been construed to require motorists who approach an intersection controlled by a flashing amber light to exercise a greater degree of care and vigilance than one approaching a green light or an uncontrolled intersection. He is required to approach the intersection at a reasonable speed maintaining a proper lookout. What constitutes reasonable speed and a proper lookout depends on the facts of each case. Great American Ins. Co. v. Turnage, 339 So.2d 1322 (La.App. 1st Cir. 1976); Rogers v. Tiger, 305 So.2d 147 (La.App. 1st Cir. 1974).

While a driver approaching a flashing yellow light may ordinarily rely on the fact that a driver approaching a flashing red light will stop before entering the intersection as required by law, the driver approaching a yellow light is under a duty to exercise caution and vigilance so that he may ascertain whether he can cross with safety. Greater American Ins. Co. v. Turnage, supra; State Farm Mutual Automobile Ins. Co. v. Merritt, 185 So.2d 832 (La. App. 3d Cir. 1966); Liberty Mutual Insurance Company v. Wilson, 282 So.2d 745 (La. App. 1st Cir. 1973).

The court in State Farm v. Merritt, supra, further explained the duty of the motorist approaching the flashing yellow light and quoted extensively from the jurisprudence on this duty as follows:

“In Savoy v. Cooley, [La.App., 144 So.2d 233], supra, a motorist on a right-of-way street was held to be negligent in proceeding into an intersection which, was controlled by a flashing amber light. In so holding, the court stated:
‘ * * *, we believe where, as here, the intersection was controlled by a semaphore light which was flashing red for the inferior traffic and yellow for Plaintiff, that Plaintiff was thereby given warning that caution was required of her in entering the intersection and she had no right to believe that her entrance therein could be made in full disregard of traffic on the inferior street. A motorist confronted with a caution light is not in the same position as one confronted with a green semaphore light which has been held to be an invitation to proceed through the intersection; on the other hand, the presence of the caution light served to give warning to the motorist that he is required to proceed through the intersection with caution. Thus a yellow light is a restriction on his movement through the intersection rather than an invitation to proceed oblivious of other traffic. Though the driver on the favored street when confronted with the yellow light may ordinarily rely on the motorist approaching the intersection on the inferior street stopping as required by the red light confronting him, if the evidence reflects such a motorist will not stop then the duty rests upon the driver on the favored street to avoid the accident if he can. The amber light serves as a warning to proceed with care and a motorist is guilty of negligence if he fails to take measures to avoid obvious danger. From the evidence in this case, despite the fact that Mrs. Savoy observed the approaching motorist, the Pace vehicle, rather than comply with the admonition given to her by the presence of the amber light and exercising caution, her action consisted in accelerating her vehicle and colliding with the Pace vehicle when she could have avoided the accident simply by stopping her car.’ (emphasis added)
In Wise v. Prescott, [244 La. 157, 151 So.2d 356] supra, the driver of a bus on a right-of-way street, who was confronted with a ‘slow sign’ at an intersection, collided with a vehicle which entered the crossing from an inferior street controlled by a ‘stop sign’. In holding the bus driver negligent, our Supreme Court said:
‘As the driver of the bus approached the intersection, he was confronted with a slow sign. What degree of care is required of a driver approaching such a sign? In our opinion, he is warned by such a sign that the locus or intersection is hazardous and unusual, his duty to exercise vigilance and prudence is increased, and it is inescapable that his right to rely on a motorist to obey a stop sign at that intersection is greatly decreased. When an intersection is controlled by a stop sign and a slow sign, a high duty of care is put on the drivers of vehicles on both thoroughfares, and, as stated by the Court of Appeal, a motorist when confronted with a slow sign must do more than diminish his speed. He must enter the intersection with extreme caution and vigilance so as to apprise himself that he may proceed safely across. Reducing his speed is only a partial fulfillment of the duty such a sign imposes.’ (emphasis added)
We stated in Landrum v. New Amsterdam Casualty Co., [La.App., 149 So.2d 182] supra, that:
‘We believe, however, that the blinking yellow light at the intersection added an additional duty on the driver approaching on the right-of-way street and that duty is to approach the intersection with caution commensurate to the situation. Such a blinking traffic light would indicate to any reasonable person that the intersection is more dangerous than other intersections where such a light does not exist. Although the additional duty to be cautious may vary according to the individual circumstances, in the case before us on appeal, Mrs. Landrum had the duty of proceeding into the intersection with caution, at a reasonable rate of speed and also had the duty of looking carefully for the approach of vehicles along the inferi- or street.’ (emphasis added)
And, in the recent case of Granata v. Simpson [La.App., 181 So.2d 791], supra, our brothers of the First Circuit, in concluding that a motorist on a favored street, who entered an intersection controlled by a yellow flashing light, was negligent, said:
‘We also find that defendant, Maury Simpson, was guilty of negligence in failing to heed the warning of the flashing yellow light which was installed at this intersection by the Department of Highways to control the movement of north-south traffic on Plank Road. The statute, LSA-R.S. 32:234, supra, places the positive duty on Simpson to “proceed through or past such a signal only with caution.” We find that he failed in this duty in proceeding through this intersection at 40 to 45 miles per hour without observing the approach of the Brown vehicle on his right at such speed as to give notice to him that it might not stop before entering Plank Road. We find that Simpson was not keeping a proper lookout and was not operating his vehicle at such speed that he could have stopped in time to avoid the accident. * * * ’ (emphasis added)” Id. at 836-837.

The court in Merritt, supra, found that a motorist facing a flashing yellow light who had entered a blind intersection at a speed in excess of 15 miles per hour failed to use the caution required by the statute, stating:

“ * * * it is clear that he did not approach and enter this intersection with caution, or in such a manner that he could have brought his car to a stop after he reached a point where he could determine whether another vehicle on the inferior street was also about to enter the crossing.” Id. at 838. (our emphasis)

In Liberty Mutual v. Wilson, supra, among reasons given by the court for finding a motorist who entered an intersection with obstructions of vision facing a flashing yellow light at a speed of 35 mph guilty of negligence and causing an accident was:

“Additionally, Watson was also negligent in failing to approach the intersection with caution, in that the speed at which he was traveling was too great under the circumstances. At such speed, and without taking steps to reduce his speed in his approach to the intersection, he was unable to ascertain whether he could proceed into the intersection with safety. His conduct was even more unreasonable because of the fact that he was familiar with the hazardous nature of the intersection.” Id. at 747. (our emphasis)

In the decision of Rogers v. Tiger, supra, the court found a motorist who entered an intersection against a flashing yellow light at a speed of 15 mph guilty of negligence contributing to the accident because his speed was unreasonable and lookout improper considering the blindness of the corner, with the following statement:

“ ‘What constitutes reasonable speed and proper lookout must, of course, be determined in the light of the circumstances of each individual case.’ * * *
In the present case, the intersection was a blind one, a fact of which plaintiff was fully aware. He was also aware that Convention Street was one way west. Yet, he still looked to the right, a direction from which no traffic could legally travel on the one way street, and entered the intersection at such a speed that by the time he did check to the left, it was too late to avoid the collision.” (emphasis added) Id. at 150.

See also Wall v. American Employers Ins. Co., 386 So.2d 79 (La.1980), where the supreme court discussed the duty of drivers to maintain good lookout and reasonable speed when approaching an uncontrolled intersection that contained obstructions to visions with which the motorists are familiar.

The facts and circumstances of this case must be evaluated in light of the preceding principles of law in order to determine if Smith was guilty of negligence that contributed to this accident.

Included among a series of pictures taken by the expert, Heard, a few days before the trial of this case in February 1980, were two pictures taken from the west shoulder of La. 169 with a camera directed at the tree line located 140 feet west of 169 and at US Hwy. 80 as it approached from the. west. The picture designated as 0-6 was said to have been taken 100 feet north of the intersection, and in this photograph one can see through the trees a vehicle located 200 feet west of the intersection. In a picture designated as P6 which was also taken from the west shoulder of 169 (there is no distance given as to the location of the photographer north of the intersection) one can see a vehicle on US 80 through the tree line which Heard estimated as being approximately 300 feet west of the intersection. It is significant that these photographs which were taken in February 1980 viewed the trees without any foliation upon them and therefore in about the same condition as they were on the date of the accident in March 1977. Heard testified on cross-examination that a vehicle proceeding south on 169 at a point 200 feet north of the intersection could see flashing lights on vehicles proceeding east on 80 after they reached a point of approximately 200 feet west of the intersection. The significance of these observations is that if defendant Smith, who was well aware of the hazardous intersection and the impairment of the vision because of the trees by having passed through there once each night, had been maintaining a proper lookout when he reached a point 200 feet north of the intersection, he would have observed the lights on the automobile proceeding east on 80 at a point when it was 200 feet west of the intersection. Because of his knowledge of the hazardous intersection he should have been ready to have taken an extremely good look at the approaching eastbound vehicle when it cleared the tree line 140 feet from the intersection. His speed at this point should have been reduced so he could stop before entering the intersection if necessary.

The facts and circumstances of the situation required him to maintain such a lookout and to have reduced his speed sufficiently that he could have brought his vehicle under control if the approaching eastbound vehicle failed to stop at the intersection. His failure in this regard is negligence.

Even should it be considered that the duty of proper lookout does not require an observation of the lights through the tree line, Smith’s intimate knowledge of the intersection and of its hazardous nature construed in light of the duty placed upon him approaching the flashing yellow light, at the very least, places him under a duty to approach this intersection at such a speed, maintaining such a lookout, that he could have avoided entering the intersection upon observing a vehicle proceeding toward it at a fast rate of speed once it cleared the tree line 140 feet west of the intersection.

If, as the expert testified, Smith was on a collision course with the eastbound vehicle at the point it cleared the tree line, and under these circumstances could not avoid the accident because he did not have time to perceive, react and activate the brakes, these unfortunate circumstances were created by the negligence of Smith in approaching the intersection at too great a speed, and this negligence is a proximate cause of the accident.

In the case of Haire v. Allstate Insurance Company, 224 So.2d 531 (La.App. 2d Cir. 1969), relied upon by appellees in brief, there was no obstruction or impairment of vision at the intersection as plaintiff approached it facing the blinking yellow light in the day time at a speed of 55 mph. While the court there held that this speed did not establish plaintiff failed to exercise due caution in entering the intersection the evidence there reflected that the vehicle which proceeded through the flashing red light could be observed by plaintiff and was traveling at a slow rate of speed, and perhaps had even slowed or stopped behind a truck which had stopped in obedience to the flashing red light before pulling around the truck and entering into the intersection. These factual circumstances are totally distinguishable from the facts presented in this case.

In the decision of McMillan v. St. Farm Mut. Auto. Ins. Co., 356 So.2d 1368 (La. 1978), also relied upon by appellees in brief, the intersection was not blind and the motorist approaching the flashing yellow light had observed that the vehicle approaching the intersection facing the flashing red light had slowed as though to stop before entering the intersection, whereupon the motorist facing the flashing yellow preempted the intersection at a slow rate of speed and was then collided into by the motorist approaching facing the red light which had thereafter accelerated and entered the intersection without stopping. This case is factually dissimilar from the one here presented.

If Smith had made his proper observation he would have known that the approaching vehicle was not going to stop at the intersection and if he had been proceeding at the slow rate of speed required by the hazardous intersection he could have brought his vehicle under control and not entered the intersection, and the collision could have been avoided. We conclude that the negligence of Smith in failing to maintain a proper lookout and traveling at an excessive rate of speed, under the facts as exist in this case, were among the causes in fact of the accident which brought about the death of Mrs. Salles. The fact that Smith’s negligence had placed him in the posture described by the expert where he could not avoid the accident does not exonerate his negligence from being a contributing cause in fact of the accident.

While we are unaware of the reason for the trial judge’s factual conclusions upon which he based rejection of plaintiffs’ demands, we conclude he was clearly wrong in failing to find that the negligence of defendant, Warren A. Smith, was a contributing cause in fact of the accident.

QUANTUM

A letter written by one of decedent’s major daughters, no longer a party to this action, was introduced into evidence and stipulated to as being evidence of the close relationship that decedent had with her major son, Glenn Wells. This letter evinces a close and loving relationship between Wells and the decedent, his mother. It also establishes that he visited his mother monthly, on holidays, and had frequent telephone conversations with her.

Henry Salles testified that he and his wife had never been physically or legally separated (except for a short time when he was in the Coast Guard) and they had married in 1961. They participated in outdoor activities and social functions together. Henry Salles testified decedent was close to her adopted minor son Richard Henry Salles and took him to recreational, school and social functions. Henry also testified that Richard was uncontrollable after his mother’s death and did poorly in school but that he has finally straightened out. Henry stated that it was necessary that his 84-year old mother come to live with him and his minor son in order that she could prepare Richard for school and fix his supper.

Plaintiffs cite several cases reflecting damage awards in wrongful death actions, including the following:

Robertson v. Handy, 354 So.2d 626 (La. App. 1st Cir. 1977), in which the Court of Appeal affirmed a $40,000 wrongful death award to the surviving spouse, $15,-000 to each of the surviving minor children, and $10,000 to each of the surviving major children;
Graham v. Rudison, 348 So.2d 711 (La. App. 1st Cir. 1977), in which awards of $60,000 to the surviving husband, $45,000 to a minor son and $32,500 each to two older minor children of a former marriage for the wrongful death of the mother were affirmed;
Fowler v. Western Union Telegraph Co., 357 So.2d 1305 (La.App. 3d Cir. 1978), affirmed awards of $90,000 to the surviving husband and $25,000 to each of her major sons for the wrongful death of the mother; and
McKenzie v. Nationwide Mutual Ins. Co., 363 So.2d 1340 (La.App. 3d Cir. 1978), in which there was found to be no abuse of discretion in an award of $37,000 each to two major children for the wrongful death of both parents.

Looking at these awards as a whole, we find on the basis of the jurisprudence and the evidence, Henry Salles is entitled to $60,000 for the wrongful death of his wife; Richard Henry Salles, the minor, is entitled to $40,000 for the wrongful death of his mother; and Glenn Wells, the major son, is entitled to $25,000 for the wrongful death of his mother.

Appellants initially included as defendant in this wrongful death action Henry T. Caulder, husband of the driver of the Buick, as head and master of the Caulder community and the Caulder insurer, State Farm Mutual Automobile Insurance Co., alleging Mrs. Caulder’s negligence as one cause of the accident. Before trial appellants settled their claim against Caulder and State Farm and reserved their rights against Smith and his employer, McLean. Evidence was presented at the trial which proved Mrs. Caulder’s joint concurring negligence with Smith caused the accident.

Appellants are entitled to recover from appellees here one-half of the damages they respectively sustained because of the death of Mrs. Salles. See Harvey v. Travelers Ins. Co., 163 So.2d 915 (La.App. 3d Cir. 1964); Wall v. American Employers Ins. Co., supra.

For the reasons assigned we REVERSE the judgment herein rejecting appellants’ demands and enter judgment as follows:

IT IS THEREFORE ORDERED that there be judgment herein in favor of Henry Salles and against Warren A. Smith and McLean Trucking Co., in the amount of $30,000, plus legal interest from date of judicial demand until paid.
IT IS FURTHER ORDERED that there be judgment herein in favor of Henry Salles, in his capacity as tutor of the minor Richard Henry Salles, and against Warren A. Smith and McLean Trucking Co., for the sum of $20,000, plus legal interest from date of judicial demand until paid.
IT IS FURTHER ORDERED that there be judgment herein in favor of Glenn Wells and against Warren A. Smith and McLean Trucking Co., for the sum of $12,500, plus legal interest from date of judicial demand until paid.
IT IS FURTHER ORDERED that Warren A. Smith and McLean Trucking Co. be cast for all costs incurred in these proceedings.


author: SCHOTT, Judge.

text:
    Hillary CARRERE v. Peter CASTANO, Respondent-Contestee, and Edwin Lombard, Clerk of Criminal District Court.
    No. 12335.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 18, 1981.

      Matthew H. Greenbaum, Fawer & Greenbaum, Bernard L. Charbonnet, Jr., New Orleans, for respondents-appellees.
    Stephen B. Murray and Kern A. Reese, Murray, Murray, Ellis, Braden & Landry, Bruce McConduit, New Orleans, for petitioner-appellant.
    Before SCHOTT, CHEHARDY and KLIEBERT, JJ.
   SCHOTT, Judge.

Plaintiff, a qualified elector of District D, of the City of New Orleans, brought this action pursuant to LSA-R.S. 18:1401 et seq., objecting to the candidacy of defendant Peter Castaño for the office of Councilman, District D, of the City of New Orleans. Plaintiff has appealed from a dismissal of his suit. The issue is whether defendant meets the residency requirements of the City Charter to qualify as a candidate in the election.

Section 3-104 of the City Charter provides:

“Candidates for district councilman shall have been residents of the district from which elected for at least two years immediately preceding their election.” '

We find the essential facts to be as follows: After living in apartments in District D from 1975 forward defendant took a lease on a house in the district at 920 Frenchmen Street in 1977. When he was unable to purchase this house at the end of 1979 he bought a house down the street at 831 Frenchmen. He intended to make this his home but it was in run down condition and needed extensive repairs before defendant could move in.

After moving from 920 Frenchmen in December, 1979, defendant, a bachelor, spent his nights for the next three months with various friends. During this period he also spent five or six nights monthly at 831 Frenchmen. In the meantime he had purchased a house at 4209 Canal Street, outside of the district, which he was converting into law offices. When this project was completed in April, 1980, defendant started on the repair of 831 Frenchmen and defendant began to stay overnight in a room behind the law offices. When the Frenchmen Street project is complete this room is to be converted into defendant’s private law office. At the time of the trial only the heating and air conditioning remained to be installed at 831 Frenchmen Street.

In Hall v. Godchaux, 149 La. 733, 90 So. 145 (1921) the court said:

“... However, we think that he is required to maintain such a relation with the place or premises so selected as will entitle him at his will, and without making new arrangements therefor upon each return, to occupy such place whenever his necessities or pleasure require, and this without having to ask the permission of someone else.”

Defendant’s furniture is at 831 Frenchmen and he may occupy those premises anytime. The mere fact that he prefers to spend his nights in what one witness described as a “shabby little room in the back of his office” until the work at his house on Frenchmen Street is complete does not preclude its classification as a residence.

In support of his position, however, plaintiff point to these facts: In the telephone directory his residence as well as his office is listed at 4209 Canal Street. The records of the Registrar of Voters still show his address at 920 Frenchmen — not 831; his driver’s license shows two addresses, 920 Frenchmen and 1440 Canal Street (which was the address of his law office before he moved to 4209 Canal); and he has not filed application for a homestead exemption at 831 Frenchmen.

Overlooking for the moment that these facts do not refute the classification of 831 Frenchmen as defendant’s residence under the language quoted alone from the Hall case, defendant explained that the retention of 920 Frenchmen Street as his address on voting records and driver's license was due to simple inadvertence and that he did not file for the homestead exemption on 831 Frenchmen Street because he could not reside there on a permanent full time basis until the renovation work was completed.

As to the residential listing in the telephone directory at 4209 Canal Street it is significant that this telephone number is the same number defendant had at 920 Frenchmen Street even though 4209 Canal Street is in a different telephone exchange. Defendant must pay a “mileage” rate of $23 per month for this privilege and he testified that his purpose is to keep the same number without interruption at 831 Frenchmen as he had at 920 Frenchmen.

In most of our past election contests on domicile, e. g., Charbonnet v. Hayes, 318 So.2d 917 (La.App. 4th Cir. 1975), Mix v. Alexander, 318 So.2d 130 (La.App. 4th Cir. 1975) and Mix v Blanchard, 318 So.2d 125 (La.App. 4th Cir. 1975) and those on residence, e. g., Brown v. Democratic. Com. Court of App., Fourth Cir., 238 So.2d 48 (La.App. 4th Cir. 1970) and Stavis v. Engler, 202 So.2d 672 (La.App. 4th Cir. 1967), there were competing facts on which strong arguments could be made to conclude that the contestee’s domicile or residence was at one address or the other. But in the present case there seems to be little support to conclude otherwise but that 831 Frenchmen Street is defendant’s only residence and domicile. The only alternate address advanced by plaintiff is 4209 Canal Street and this, as defendant’s law office, is nothing more than a convenient place for defendant to sleep while his residence is being repaired.

The judgment appealed from is affirmed.

AFFIRMED.

      . Defendant had arranged for the same contractor to start on 831 Frenchmen as soon as he finished Canal Street. Everyone anticipated that Canal Street would be completed in February. Because of a fire next door the Canal Street work was delayed until April when it was too late for the contractor to start Frenchmen Street due to other commitments.


text:
    Hillary CARRERE v. Peter CASTANO and Edwin Lombard, Clerk of Criminal District Court.
    No. 12335.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 5, 1981.
    Writ Refused March 20, 1981.
    Matthew H. Greenbaum, Fawer & Greenbaum, Bernard L. Charbonnet, Jr., New Orleans, for respondent-appellee.
    Stephen B. Murray and Kern A. Reese, Murray, Murray, Ellis, Braden & Landry, Bruce McConduit, New Orleans, for petitioner-appellant.
    Before SAMUEL, REDMANN, GULOT-TA, BOUTALL, SCHOTT, GARRISON, CHEHARDY, BARRY and KLIEBERT, JJ.
   On the application of plaintiff, Hillary Carrere, for writs of certiorari or review, the Supreme Court of Louisiana, 396 So.2d 1346, issued the following order:

“Granted and remanded to the Court of Appeal to decide en banc pursuant to R.S. 18:1409(H).”

The statute cited by the Supreme Court and added to R.S. 18:1409 by Act 506 of 1980 provides as follows:

“All appellate decisions shall be rendered by the judges of the appellate court sitting en banc.”

Art. 5, § 8(A) of the Constitution of 1974 provides:

“The state shall be divided into at least four circuits, with one court of appeal in each. Each court shall sit in panels of at least three judges selected according to rules adopted by the court.” (Emphasis supplied)

R.S. 18:1409(H) is plainly inconsistent with the constitutional requirement that the Court of Appeal sit in panels.

However, because the Supreme Court has ordered us “to decide en banc” pursuant to the questioned statute and because it does not appear that the Supreme Court considered the question we raise that the statute is unconstitutional, we, therefore, as the court en banc, certify to the Supreme Court pursuant to Art. 5, § 11, of the Constitution of 1974, the question:

“Is R.S. 18:1409(H) unconstitutional by virtue of Art. 5, § 8(A) of the Constitution of 1974?”

      . Compare the language of the present constitution with that of Art. 7, § 23 of the Constitution of 1921 which required courts of appeal to sit in panels but provided “However, in exceptional cases or when deemed necessary or expedient by the judges thereof, a court of appeal may sit en banc.”

      . Because the Act seems clearly unconstitutional under Art. 5, § 8(A) we have pretermit-ted discussion of its seeming unconstitutionality under Art. 2’s provision for Distribution of Powers and Art. 3, § 15’s provisions for title-body.


author: FRED W. JONES, Jr., Judge.

text:
    Billy and Jan TRICHEL, Plaintiffs-Relators, v. Dr. Michael CAIRE; Dr. Albert Donald; Donald, Watson & Caire; Lynn Duffy; and Glenwood Hospital et al., Defendants-Respondents.
    No. 14590.
    Court of Appeal of Louisiana, Second Circuit.
    March 17, 1981.
    Writ Refused May 1, 1981.
    Chris J. Roy, Alexandria, for plaintiffs-relators.
    Hayes, Harkey, Smith & Cascio by Thomas M. Hayes, III, Monroe, for defendants-respondents.
    Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

In this application for supervisory writs plaintiff seeks to have vacated an order of the trial court denying her a civil jury trial.

The following chronology of pleadings and court orders places in proper perspective the central issue confronting us:

July 18, 1979 — Plaintiffs, husband and wife, file medical malpractice action against defendants.
Dec. 21, 1979 — Defendants file answer.
April 25, 1980 — With leave of court, plaintiffs file supplemental and amending petition, joining two additional defendants and requesting a jury trial. Case placed on civil jury docket.
July 1, 1980 — Defendants answer supplemental and amending petition.
Nov. 26, 1980 — Defendants file motion to assign case for trial on merits.
Dee. 19, 1980 — Judge Norris orders plaintiffs to post bond in amount of $1500 within 30 days to cover cost of civil jury trial.
Jan. 21, 1981 — Judge Hightower orders case removed from civil jury docket and placed on docket for non-jury cases because motion for assignment of trial on merits had been filed and plaintiffs failed to post bond within prescribed time limit.
Feb. 20, 1981 — Plaintiff wife files second supplemental and amending petition asking that divorced husband be eliminated as party plaintiff, for increase in damages, for a civil jury trial and for permission to proceed in forma pauper-is. Judge Farr signs order allowing the filing of this pleading, but lines out the portion allowing a civil jury trial, adding this explanatory notation: “The Court declines to order jury trial, holding this amendment does not raise a new issue and plaintiff has previously lost her right to jury trial by failing to post security as required.”
March 6, 1981 — Plaintiff applies to this court for supervisory writs.

We find that the Louisiana Supreme Court case of Barberito v. Green, 275 So.2d 407 (La.1973), is dispositive of the primary question raised here. There the original petition for damages was filed on July 28, 1969 and was supplemented and amended with leave of court on October 20, 1971 to request an increase in damages. Answer to the supplemental petition was filed on November 18, 1971. Motion for jury trial was filed on November 22,1971. Agreeing with the defendants that the supplemental petition asking for an increase in damages did not raise a new issue, the trial judge refused to sign the order for a jury trial.

Reversing the lower court, the Supreme Court held that under Louisiana C.C.P. Article 1732 the motion for jury trial was timely because it was filed within ten days after service of the last pleading (answer) directed to an issue (damages) and that the latter did not have to be a new issue. It was pointed out that a trial judge may prevent abuse of this means of securing a civil jury trial by disallowing the filing of a supplemental and amending pleading if it is patently designed to circumvent the ten day limitation prescribed by Article 1732.

In our case the trial judge signed the order permitting the filing of the supplemental and amending petition, which included a request for an increase in damages (an issue). Under the reasoning of Barberi-to, plaintiff could have timely filed a motion for civil jury trial within ten days after defendants answered this second supplemental and amending petition. However, rather than waiting for the filing of this responsive pleading, plaintiff included a request for a civil jury trial in the body of the supplemental and amending petition. This was clearly timely under Barberito and the trial judge erred in deleting that portion of the order relating to a civil jury trial.

For these reasons, IT IS ORDERED that plaintiff-applicant’s request for a writ of certiorari be granted, that the order of the trial judge denying plaintiff a civil jury trial be vacated and that the case be returned to the lower court’s civil jury docket. Costs of this writ proceeding are assessed to respondents.


author: REDMANN, Judge.

text:
    CITY STORES COMPANY v. JOHNS-MANVILLE SALES CORPORATION et al.
    No. 12429.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 26, 1981.

      John G. Gomila, Jr., New Orleans, for relator.
    James B. Irwin, Frederick R. Bott, William M. Barnett, Guste, Barnett & Shushan, New Orleans, for respondents.
    Before SAMUEL, REDMANN and CHE-HARDY, JJ.
   REDMANN, Judge.

On the application of Johns-Manville Sales Corporation, one of several defendants in this action for failure of a roof, we grant mandamus to order the trial judge to grant jury trial.

This action began against several defendants in 1977. In 1980 plaintiff added Mechanical Construction Co. as a defendant. Mechanical moved for a trial by jury on October 27, 1980, well within ten days of service of its supplemental answer. On March 13, 1981, Johns-Manville filed a request for trial by jury, noting prior inaction on Mechanical’s request. On March 23 the trial judge denied both requests for jury trial and this writ application followed.

La. C.C.P. 1732 provides:

A party may demand a trial by jury of any issue triable of right by a jury in a pleading filed not later than ten days after the service of the last pleading directed to such issue.

When the last pleading, such as an amended answer, is directed to only one issue, such as quantum, the Louisiana supreme court apparently interprets that article to afford trial by jury not merely as to “such issue” but as to all issues; Barberito v. Green, La.1973, 275 So.2d 407. And when the last pleading is filed by only one of several defendants, the plaintiff by timely asking can obtain trial by jury as to all defendants, Cornish v. American Ins. Co., La.App. 1 Cir. 1970, 238 So.2d 765. Simple fairness dictates that if the plaintiff could, within ten days of service of the last defendant’s answer (or amended answer), obtain jury trial against a 11 defendants, then any defendant (rather than just the one who filed the last pleading) should also be allowed within the same time period to obtain jury trial. Thus we conclude that, after co-defendant Mechanical served its amended answer in October 1980, plaintiff City Stores Company could have asked for jury trial (as to all defendants) and so could co-defendant Johns-Manville.

Louisiana courts have decided that if any party entitled to demand a jury trial does so, then no other party is obliged to do so; Alger v. Continental Contractors, Inc., La. App. 4 Cir.1979, 878 So.2d 556. We thus conclude that Johns-Manville was not obliged to file its own demand for a jury trial because the demand by Mechanical protected the right of all parties to a jury trial.

City Stores argues that Mechanical is probably going to be dismissed as a defendant by summary judgment, that there will then be no jury trial as to Mechanical, and therefore there should be no jury trial at all. We believe that such a circumstance would be governed in principle by Cazes v. Ragusa, La.App. 4 Cir. 1976, 336 So.2d 904. In Cazes we held that if the party who demanded the jury later withdraws his request, the other parties must then be allowed the opportunity to make the request that they withheld (as unnecessary) while the first request was protecting them. If, in our case, Mechanical is dismissed before trial, that would be the equivalent of withdrawing its request, and the other parties would have to be allowed the opportunity to make their requests. (Because Johns-Man-ville has in fact made such a request by now, the dismissal of Mechanical would not affect other parties’ entitlement to jury trial.)

It is therefore ORDERED that the Honorable Joseph V. DiRosa, Judge, Division “L”, Civil District Court for the Parish of Orleans, vacate his ruling of March 23,1981 and enter in lieu thereof an order granting jury trial.

      . City Stores’ counsel finds no such motion in the four-volume record, but he says he received an unconfirmed copy by mail and he further informs us that the clerk’s docket is annotated “October 27, 1980 Motion for Trial by Jury (Order not signed).” We assume the trial judge concluded that the motion was filed and we believe that conclusion supported by the facts counsel recites. Presumably the motion was misfiled or otherwise lost.


author: WALKER, Justice,

text:
    ESTATE OF L. P. RATLIFF, Sr., Deceased. May Dee FIELDS and Fluvia Jan Kessler v. Jerry R. RATLIFF, Executor.
    No. 52116.
    Supreme Court of Mississippi.
    Feb. 18, 1981.
    Charles E. Hughes, Joshua Green, Green, Cheney & Hughes, Jackson, for appellants.
    John H. Barnett, III, Barnett, Montgomery, McClintock & Cunningham, Jackson, for appellee.
   ON PETITION FOR REHEARING

WALKER, Justice,

for the Court:

The appellants’ petition for rehearing and the appellee’s answer thereto have been fully considered by the Court sitting en banc, and the Court finds that the per curiam affirmance of the decree of the lower court, without opinion, should be and is hereby withdrawn, and the following opinion substituted therefor.

The original appeal in this cause arose out of objections by two of the heirs of L. P. Ratliff to the accounting filed by Jerry R. Ratliff, Executor of the Estate of L. P. Ratliff, Sr., deceased, in the Chancery Court of .Lincoln County, Mississippi.

L. P. Ratliff, Sr. died in September, 1977, leaving nine adult children as heirs. One of his sons, Jerry R. Ratliff, is executor of the estate. The executor filed his accounting and also filed a petition for authority to sell certain of the estate lands to satisfy debts, taxes, and administrative expenses of the estate, stating in effect that the estate did not have sufficient money or personal property to satisfy same. The appellants, Mrs. May Dee Fields and Mrs. Fluvia Jan Kes-sler, daughters of the deceased, objected to the accounting, questioning its truthfulness and accuracy in certain respects, and prayed that it be corrected.

On this petition for rehearing, we are concerned with:

(1) Whether decedent owned at the time of his death any interest in the partnership known as Ratliff Sheet Metal Works in Brookhaven, Mississippi, and whether the value of that interest is an asset of the estate that should have been included in the accounting of the executor. We answer that in the affirmative.

The chancellor’s original opinion and the decree heretofore affirmed by this Court were based on oral testimony of witnesses that the deceased gave his interest in the Ratliff Sheet Metal Works to the executor and two other sons in 1971. On petition for rehearing, the appellants urge that the chancellor erred in such finding since the documentary evidence is to the contrary. In particular, the executor’s Federal Estate Tax return represented that the decedent owned an interest in the partnership at the time of his death valued at $14,186.71. This return was attached to the executor’s petition for authority to sell certain real estate belonging to the estate in order to satisfy debts, taxes, and administrative expenses of the estate because there was not sufficient money or personal property to satisfy same. These representations were made under oath and have not been corrected, if erroneous.

In the absence of fraud or mistake, the executor may not take, in the course of the same cause or proceeding, inconsistent positions which would be detrimental to the appellants, on the one hand, and beneficial to himself, on the other hand. See Mississippi State Highway Commission v. West, 181 Miss. 206, 179 So. 279 (1938). We are therefore of the opinion that the chancellor was manifestly wrong in finding that the deceased made an inter vivos gift of his complete interest in the partnership to the executor and two other sons prior to his death. It is evident, however, that he made a partial gift of his interest to the three partner — sons over several years prior to his death.

(2) Did the chancellor err in erasing the estate’s claim for rent on the land and buildings occupied by the partnership?

In view of the above holding, upon remand a hearing should be conducted to determine how much, if any, rental is owed by the partnership and sons to the estate. We would point out that there is no evidence in this record that would support a finding that the deceased conveyed the real estate and shop buildings out of which the partnership operated to the partnership or his partner sons.

(3) Does appellants’ claim for annual interest on decedent’s “money invested” in the partnership stand as an asset of the estate?

Since this cause has to be remanded for further proceedings, the question of how much interest, if any, remains due and owing to the estate according to the partnership agreement “on the money invested by L. P. Ratliff, Sr.” in the partnership should be determined.

This cause is, therefore, remanded to the chancery court for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

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