text:
    STATE of Louisiana v. Aubrey GIVENS.
    No. 80-KA-2817.
    Supreme Court of Louisiana.
    Sept. 2, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Lowen B. Lof-tin, Dist. Atty., E. Rudolph McIntyre, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Paul H. Kidd, Monroe, for defendant-appellant.
   PER CURIAM.

Defendant was charged by bill of information with distribution of marijuana in violation of La.R.S. 40:967. On June 17, 1980, he was tried before a jury of twelve persons. At the close of the case, the jury returned a verdict of not guilty. When polled by the trial court on its own initiative, however, it became apparent that only nine of the twelve jurors had concurred in the verdict. The trial court accordingly refused to accept the verdict and sent the jury back for further deliberation. La.C.Cr.P. Art. 812; cf., La.Const.1974, Art. I, § 17; La.C.Cr.P. Art. 782. The jurors then reported that they were hopelessly deadlocked, and the trial court ordered a mistrial. Counsel thereafter filed a motion to quash the information on grounds that further prosecution would violate defendant’s protections against double jeopardy. The motion alleged that because neither the state nor the defense had requested the polling of the jury, trial should have ended with the not guilty verdict, a bar to any subsequent prosecution. On November 5, 1980, after a hearing, the trial court denied the motion. At the proceeding, the state then amended the charge to simple possession of marijuana, a misdemeanor offense. Defendant entered a plea of guilty to the amended information, reserving his right to pursue review of the ruling on the motion to quash. Cf., State v. Crosby, 338 So.2d 584 (La.1976). That same day, the trial court sentenced him to six months in jail and a fine of five hundred dollars. It also placed defendant on active probation for a period of two years. The court suspended execution of this sentence pending review of the ruling on the motion to quash. Defendant has not appealed his conviction and sentence to this Court, reurging his double jeopardy argument and attacking his sentence as illegal.

Defendant was not convicted of a felony; and his fine and term of imprisonment did not exceed five hundred dollars or six months in jail. La.Const.1974, Art. V, § 5(D). The case is therefore not appeala-ble to this Court. Nevertheless, we will consider the appeal as an application for supervisory writs and reach the merits accordingly. Cf., Rule I, § 11, Rules of the Supreme Court of Louisiana; see also, State v. Warner, 369 So.2d 135 (La.1979); State v. Mims, 330 So.2d 905 (La.1976); State v. Romano, 320 So.2d 167 (La.1975); State v. Robertson, 310 So.2d 619 (La.1975).

We do not agree with counsel that defendant had a right to the unlawful verdict. La.C.Cr.P. Art. 812 provides that “[t]he court shall order the clerk to poll the jury if requested by the state or the defendant.” The article makes no change in the prior law, see former La.R.S. 15:416, 417, and we have repeatedly held in the past that a trial court has no independent obligation to poll the jury. In the absence of a request by either the state or the defense, the failure of the court to order the jurors polled is therefore not erroneous. State v. Johnson, 171 La. 95, 129 So. 684 (1930); State v. Fernandez, 157 La. 149, 102 So. 186 (1924); State v. Bullock, 136 La. 167, 66 So. 767 (1914); State v. Colomb, 108 La. 253, 32 So. 351 (1902); State v. Atkinson, 104 La. 570, 29 So. 279 (1901).

However, Art. 812 does not expressly prohibit the trial court from ordering the jurors polled on its own accord. La.C.Cr.P. Art. 3 states that “[wjhere no procedure is specifically prescribed by this Code or by statute, the court may proceed in a manner consistent with the spirit of the provisions of this Code and other applicable statutory and constitutional provisions.” In this case, defendant was initially charged with a felony offense necessarily punishable at hard labor. La.R.S. 40:967(B)(2). La.Const.1974, Art. I, § 17 and La.C.Cr.P. Art. 782 thus called for a jury of twelve persons, ten of whom had to concur to render a lawful verdict. In addition to monitoring the selection of that jury, the trial court was obligated to instruct the jurors with regard to the law of the case, including the requirements for a legal verdict. La.C.Cr.P. Art. 802. The trial court was further obligated to inspect any verdict returned in order to determine whether it was lawful in form and responsive to the bill of information. La.C.Cr.P. Art. 813. We think it clear that the additional inquiry into the legal basis of the verdict, before it was recorded and the jury discharged, was consistent with this duty of the trial court to administer the system of jury trials in Louisiana.

We therefore find no error in the denial of the motion to quash and affirm defendant’s conviction accordingly. However, we agree with counsel that the sentence imposed by the trial court is illegal and must be set aside. La.C.Cr.P. Art. 894 authorizes probation in misdemeanor cases when the trial court has suspended the sentence in whole or in part. The article also provides that “[wjhen a suspended sentence in excess of ninety days is imposed, the trial court may also place the defendant on probation under the supervision of the Department of Corrections, division of probation and parole for a period not in excess of two years....” In this case, the trial court’s suspension of sentence will operate as a stay only; in the event that this Court affirms defendant’s conviction, he will be required to serve his entire sentence. As no part of that sentence has been suspended, the additional two-year probationary period clearly exceeds the trial court’s authority under Art. 894.

Accordingly, we affirm defendant’s conviction but vacate the sentence imposed and remand the case to the trial court for resen-tencing in accord with the views expressed herein.

CONVICTION AFFIRMED; SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.


source: Caselaw Access Project

license: Public Domain

text:
    Harold J. NAQUIN v. UNIROYAL, INC.
    No. 81-C-1081.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Harold J. Naquin, applying for writs of certiorari, or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 401 So.2d 384.

Granted.


text:
    Buel Merritt BROWN v. DRILLERS, INC.
    No. 81-C-1163.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Roc, Inc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Iberville. 401 So.2d 366.

Denied.

MARCUS and BLANCHE, JJ., would grant the writ.


text:
    Frank CACIOPPO v. HANOVER INSURANCE COMPANY, et al.
    No. 81-C-1204.
    Supreme Court of Louisiana.
    May 29, 1981.
   In re Frank Cacioppo, applying for writs of certiorari, to the Court of Appeal, First Circuit. Parish of Tangipahoa. 401 So.2d 415.

Writ denied.


text:
    Lou Ida WHITE, et al. v. BAKER MANOR NURSING HOME, et al.
    No. 81-C-1258.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Lou Ida White, et al., applying for writ of certiorari, or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 400 So.2d 1168.

Denied. The result is correct.


text:
    Ebb K. HARRISON v. MORGAN PORTABLE BUILDING COMPANY.
    No. 81-C-1247.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Ebb K. Harrison, applying for writ of certiorari, or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 400 So.2d 1140.

Writ denied.

WATSON, J., would grant the writ.


text:
    Richard STREB v. ABRAMSON-CARO CLINIC, A Professional Medical Corporation.
    No. 81-C-1260.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Richard Streb, applying for writs of certiorari and review, to the Court of Appeal, First Circuit. Parish of Ascension. 401 So.2d 410.

Denied.

DIXON, C. J., and DENNIS and LEM-MON, JJ., would grant the writ.


text:
    Tammy Wheat PARKER v. Charles H. PARKER.
    No. 81-C-1271.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Charles H. Parker, applying for writs of certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Livingston. 401 So.2d 395.

Denied.

MARCUS, J., would grant the writ.


text:
    Charles Edward KLOHN v. LOUISIANA POWER & LIGHT COMPANY.
    No. 81-C-1233.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Charles Edward Klohn, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Lafourche. 401 So.2d 377.

Granted.


text:
    George PETERS, Husband of and Doris Peters, and George Peters Enterprises v. LIFE GENERAL SECURITY INSURANCE COMPANY, a Subsidiary of Louisiana General Services, Inc.
    No. 81-C-1261.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Life General Security Insurance Company, applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Parish of Terrebonne. 400 So.2d 1103.

Denied.


text:
    Griffin F. PHILLIPS v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 81-C-1273.
    Supreme Court of Louisiana.
    June 5, 1981.
   In re Griffin F. Phillips, applying for writ of review, from the First Circuit, Court of Appeal. Parish of East Baton Rouge. 400 So.2d 1091.

Not considered. Not timely filed. Rule 10, Sec. 4(b).


text:
    Clotile White, Wife of/and Reuben M. NEWMAN and Ico, Inc. v. Narcille Drouin, Wife of/and Webb J. POLITE a/k/a Webb J. Polite, Sr.
    No. 81-C-1613.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Narcille Drouin Wife of/and Webb J. Polite a/k/a Webb J. Polite, Sr., applying for writs of certiorari, mandamus and supervisory writs, to the First Circuit, Court of Appeal. Parish of East Baton Rouge. 400 So.2d 1186.

Denied.


author: PER CURIAM.

text:
    Robert Dale WASSON v. Varell Lee WASSON.
    No. 13586.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Kenneth L. Riche, Baton Rouge, for defendant-relator.
    James E. Durbin, Denham Springs, for plaintiff-respondent.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PER CURIAM.

Judgment was rendered in the Family Court for East Baton Rouge Parish on May 16, 1979, granting unto Mrs. Varel Lee Wasson a separation from bed and board from Robert Dale Wasson. The judgment further fixed custody and child support.

This suit was filed on January 3, 1980 in the 21st Judicial District Court for Livingston Parish by Mr. Wasson, seeking a divorce on the grounds of living separate and apart for one year subsequent to October 30, 1978. The suit also prays that Mrs. Wasson be granted custody of the children, but no mention is made of child support.

To the petition, Mrs. Wasson filed a decli-natory exception of lack of jurisdiction, alleging the judgment of the Family Court to be dispositive of the issues of custody, alimony pendente lite and child support, and praying that the 21st Judicial District Court decline jurisdiction over those matters.

After a hearing, the exception was overruled, and Mrs. Wasson applied to this court for a writ of certiorari. This court issued an alternative writ, ordering the district judge to dismiss the petition as to custody, visitation rights and child support, or to show cause why the writ should not be made peremptory. Both the trial judge and Mr. Wasson elected to respond to the writ.

We now find the writ to have been improvidently issued. The Livingston Parish Court is certainly one of proper venue, since Mr. Wasson is domiciled there and separation and divorce actions may be brought in the parish of the domicile of either spouse. Article 3941, Code of Civil Procedure. There is also jurisdiction over Mrs. Wasson personally, since personal service was made on her, and over the status of the parties, since both are Louisiana domiciliaries and the grounds alleged for the divorce occurred in this state. Articles 6 and 10, Code of Civil Procedure; Smith v. Smith, 179 So.2d 433 (La.App. 3rd Cir. 1965).

The Family Court judgment fixed custody and child support pendente lite. The Livingston Parish suit seeks to adjudicate these matters as a consequence of a final divorce. A judgment of divorce has the effect of terminating all prior orders relative to matters incident to the proceeding, such as custody and child support. It is therefore proper that these matters be considered by that court, so that proper provision can be made relative thereto. Smith v. Smith, supra.

The alternative writ heretofore issued is therefore recalled, and the case remanded to the trial court for further proceedings in accordance with law. Mrs. Wasson shall pay all costs of this writ application and all other costs shall await final determination hereof on its merits.

WRIT RECALLED.


author: ELLIS, Judge:

text:
    Fannie GODWIN v. EAST BATON ROUGE PARISH SCHOOL BOARD et al.
    No. 14363.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 5, 1981.
    Woodrow W. Wyatt, Baton Rouge, for Fannie Godwin.
    John F. Ward, Jr., Robert L. Hammonds, Baton Rouge, for East Baton Rouge Parish School Bd.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

In this suit, plaintiff Fannie Godwin seeks to enjoin the East Baton Rouge Parish School Board from enforcing Rule VII of its Rules of Procedure on the ground of its alleged unconstitutionality. Rule VII, which was adopted on December 4, 1980, provides, in part, as follows:

“VII. ORDER AND DECORUM AT SCHOOL BOARD AND COMMITTEE MEETINGS.
“It is in the public interest, and the public demands, that meetings of the School Board or its Committees, in handling the public’s business, be conducted in an orderly and dignified manner. To this end, the following rules are established for the conduct of all persons, including Board members and staff members, attending a meeting of the School Board or its Committees.
“No signs, poster, placards, etc. shall be affixed to the walls, doors, etc. of the School Board office building or any room therein, except by the School Board Staff in connection with School Board Business and then only with permission of the Superintendent. No sign, placard, or poster which is carried by hand shall be permitted in the School Board office building or any of its rooms.”

On January 5, 1981, Mrs. Godwin attended a School Board meeting, bringing with her a hand carried sign measuring about 15 by 23 inches. During the meeting, she stood in the back of the room, holding the sign over her head. She was asked to remove the sign, and, upon her refusal to do so, was asked to leave the meeting. On her continuing refusal to remove the sign or to leave, Mrs. Godwin was arrested and removed from the meeting. It was stipulated that Mrs. Godwin knew of Rule VII before the meeting, and had informed others of her intention to carry a sign into the meeting; that she indulged in no loud or boisterous conduct; and that the public did not react to her sign in a loud or disruptive manner.

The president and immediate past president of the School Board testified relative to the adoption of Rule VII. They testified that, in past meetings, hand held signs had created a problem by blocking the view of others at the meetings; by distracting the members of the School Board from their deliberations, by creating a circus-like atmosphere, and by creating a potential hazard, should signs be dropped on those at the meeting. With the exception of persons being injured by falling signs, specific examples of such occurrences were proven.

Plaintiff alleges that Rule VII violates her right of free speech under the First and Fourteenth Amendments to the Constitution of the United States, and Article I, Sections 7 and 9 of the Louisiana Constitution of 1974. Under those provisions, freedom of speech is a fundamental right, which may not be abridged or limited unless in the furtherance of a compelling state interest. Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); Tinker v. Des Moines Independent Com. School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).

As pointed out by the trial judge, the issue in this case is not the propriety of the arrest of the plaintiff, nor the content of the writing on the sign. The issue is whether or not the School Board may prohibit persons from bringing hand held signs, regardless of content, into its meetings.

We think the trial judge correctly resolved the question. The record affirmatively shows that hand carried signs have been both disruptive and distracting in previous meetings. All persons attending School Board meetings are given the opportunity to speak on matters of interest to them. We find that, since an equivalent method of expression is available to all persons attending School Board meetings, and since hand carried signs have proven to be disruptive and distracting at previous meetings, the restriction placed on bringing such signs into School Board meetings is reasonable and designed to permit the business of the School Board to be conducted in an orderly manner.

We therefore hold Rule VII to be a constitutional exercise of the authority of the School Board, and that the trial judge properly denied the injunctive relief sought by plaintiff.

The judgment complained of is affirmed, at plaintiff’s cost.

AFFIRMED.


text:
    Connie Lee Clarke McDONALD v. Phillip Charles SCARDINA. Connie Lee Clarke MORNHINVEG v. Phillip Charles SCARDINA.
    Nos. 14213, 14214.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Donna W. Lee, Baton Rouge, for plaintiff-appellant Connie Lee Clarke Mornhin-veg.
    Alexis A. St. Amant, Baton Rouge, for defendant-appellee Phillip Charles Scardina.
    Before ELLIS, COLE and WATKINS, JJ.
   ELLIS, Judge:

Plaintiff Connie Lee Clarke McDonald Mornhinveg was divorced from defendant Phillip Charles Scardina. After the divorce, on April 21, 1975, she transferred to him her undivided one-half interest in certain immovable property formerly belonging to the community, for a recited cash consideration of $6,300.00.

Plaintiff brought the first of these suits, alleging that only $3,300.00 of the consideration had been paid, and asking for a money judgment for $3,000.00, the balance allegedly due. In answer to the petition, defendant denied any liability to plaintiff, and alleged that the sale was part of a community property settlement made after the dissolution of the community. Alternatively, in the event the court should find that there was no community settlement, and that plaintiff is entitled to judgment against him, defendant reconvened for a partition of all property owned in indivisión by the parties.

Plaintiff subsequently brought the second suit, alleging that the price paid in the sale of her interest in the property was lesionary beyond moiety, and prayed that the sale be annulled for that reason, upon her returning the purchase price, or that the defendant be permitted to retain title by paying to her the sum of $6,000.00. Defendant’s answer denied the allegations of the petition.

In the pre-trial order, plaintiff’s position is as set forth in her petitions. Defendant’s position is as recited in his answer and reconventional demand in the first suit, stating that: “In the event the court finds that there was no property settlement, then Mr. Scardina desires the court to order one.” The two cases were consolidated for trial.

At the trial, Mrs. Mornhinveg testified that she had agreed to sell the property for $6,300.00, that she had been paid only $3,000.00, and that she knew nothing of any community property settlement. She admitted that she had never paid any community debts. She recalled some debts for medical services, and knew that there was a balance due on two automobiles owned by the community. She listed 22 items of furniture retained by her. She retained a 1967 Volkswagen automobile. She also retained a number of bathroom accessories, a brass bed, two television sets, an oak table with five chairs, and seven antique clocks. There was also some furniture that she stated that Mr. Scardina bought and paid for after their separation, and which she retained.

Mr. Scardina took a stereo, a ceramic LSU tiger, a collection of Jim Beam bottles, and some towels. Mrs. Mornhinveg testified that he took nothing else, other than the 1972 Thunderbird automobile. He testified that no furniture was bought by him after their separation, and that everything was community property. He testified that he agreed with plaintiff on a property settlement, by virtue of which she was to keep all the furniture, he was to give her some money for the land and he was to pay the community debts. He testified that he figured out the value of everything, and “it came out to be pretty close to what I paid her in cash for this property.” He stated that the remainder of the price was made up in clocks and material goods.

He further testified that he paid the following debts:

For the Volkswagen $ 647.53
Goudchaux’s 81.08
For the Thunderbird 4,701.39
Balance on furniture 1,300.00
D. H. Holmes 370.00
Medical bills totalling 470.00
Total $7,570.10.

By expert testimony it was established that the antique clocks in plaintiff’s possession were worth between $1,205.00 and $1,365.00. By stipulation it was established that the value of the property as of the time of the settlement was $16,775.00.

The trial judge found that there was no longer any community property between the parties which could be partitioned; that, considering the testimony of the parties, and their actions, the transaction which took place between them was, in essence, a property settlement; and that plaintiff had received, in money and property, full consideration for the sale, and an amount sufficient to defeat the claim of lesion beyond moiety.

In so finding, the trial judge disregarded the payment of the $4,701.39 balance due on the Thunderbird, apparently being of the opinion that the value of the automobile counterbalanced the debt. He placed no value on the other items received by Mr. Scardina nor did he evaluate the 22 items of furniture retained by Mrs. Mornhinveg, and neither party was debited with the value of these items. Nor did he debit Mrs. Morn-hinveg with the value of three clocks and some furniture sold by her.

He credited Mr. Scardina with having paid debts of $2,670.33, and gave him a total credit for this, together with the $1,300.00 worth of furniture and the Volkswagen of $2,317.68. He found that this, when added to the $3,300.00 received in cash, and the $1,205.00 value of the clocks, far exceeded one-half of the value of plaintiff’s interest in the property, which he computed to be $4,193.75.

We think the record fully supports the above finding. Whether the transaction is viewed as a sale or as a partition, we think it clear that the parties had come to an accommodation that disposed of all questions regarding property ownership, and that each has abided by it, the plaintiff by assuming dominion over the property received by her and the defendant by paying the community obligations. Under those circumstances, when it appears likely that each party received reasonable value in the transaction, it would be wholly unfair to regard the transfer of plaintiff’s interest in the property as an isolated sale, without reference to the other matters involved in the settlement. See Tyson v. Spearman, 190 La. 871, 183 So. 201 (1938); Beatty v. Vining, 147 So.2d 37 (La.App.2nd Cir. 1962).

The judgment appealed from is therefore affirmed, at plaintiff’s cost.

AFFIRMED.


author: SAMUEL, Judge.

text:
    ACORN, For Itself and its Members, Paul Cox, Steve Holt, Beulah Labostrie and Brenda Quant v. CITY OF NEW ORLEANS, Ernest Morial, Sidney Barthelemy, Joseph Giarruso, Frank Friedler, Jim Singleton, Mike Early, Brod Bagert, Philip Ciaccio, Erroll Williams and Patrick Koloski. Mrs. Rosemary Bayolo, Wife of and Joseph S. GEECK, Jr. v. Erroll WILLIAMS, Director of Finance of the City of New Orleans, et al. Mrs. Janet, Wife of and Edwin H. HEATON, et al. v. Erroll WILLIAMS, Director of Finance of the City of New Orleans, et al. JACKSON HOMESTEAD ASSOCIATION, Individually, and on Behalf of Others Similarly Situated, and on Behalf of Certain of its Borrowers, and South Pines, Inc., Individually and on Behalf of Others Similarly Situated v. Erroll WILLIAMS, Director of Finance of the City of New Orleans, et al. Louis W. SCHLEKAU v. Erroll WILLIAMS, Director of Finance of the City of New Orleans and the City of New Orleans, Through Hon. Ernest N. Morial, Mayor. Jimmie WALKER, Bertha Rotert, Wife of and Ronald Rotert and Helen Novella v. The CITY OF NEW ORLEANS, Ernest Morial, Frank Friedler, James Giarusso, James Singleton, Brod Bagert, Mike Early and Philip Ciaccio.
    Nos. 11805-11810.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1981.
    Rehearing Denied Sept. 15, 1981.
    Writ Granted Sept. 11, 1981.
    Alvin R. Childress, III, New Orleans, for Daryl Claire Sins, wife of and Alvin R. Childress, III, and class of plaintiffs.
    George W. Gill, Jr., New Orleans, for Louis W. Sehlekau, and class of plaintiffs-appellants.

      Salvador Anzelmo, City Atty., Galen S. Brown, Deputy City Atty., Marc Shachat, Thomas W. Milliner, Asst. City Atty., New Orleans, for appellees.
    Before SAMUEL, GARRISON and BAILES, JJ.
   SAMUEL, Judge.

In these consolidated proceedings, the various plaintiffs attack the validity of City of New Orleans Ordinance No. 7011, M.C.S., passed on December 28, 1978 and approved by the Mayor on January 2, 1979, enacting a “road use charge”.

The various suits were consolidated and tried together. Thereafter, judgment was rendered upholding the validity and constitutionality of the ordinance. Some of the plaintiffs have appealed.

This is Ordinance No. 7011, Mayor Council Series, the ordinance in suit:

“AN ORDINANCE relative to the levy of a road use charge according to the classifications as provided, upon all motor vehicles registered in Orleans Parish or owned by residents of Orleans Parish, or owned by persons, firms and/or corporations whose principal place of business is located in Orleans Parish, for the year 1979 and for each year thereafter for the purpose of providing revenues to promote and benefit the health, safety and welfare of the citizens of the City of New Orleans including, but not limited to, the aiding of motor bus lines carrying passengers and other modes of public transit, which as a matter of public convenience and necessity, may be required to be maintained and continued in operation, and to otherwise provide with respect thereto.
SECTION I. THE COUNCIL OF THE CITY OF NEW ORLEANS HEREBY ORDAINS, that a road use charge be and is hereby levied on all motor vehicles registered in Orleans Parish, or owned by residents of Orleans Parish, or owned by persons, firms and/or corporations whose principal place of business is located in Orleans Parish, for the year 1979 and for each year thereafter for the purpose of providing revenues to promote and benefit the health, safety and welfare of the citizens of the City of New Orleans including, but not limited to, the aiding of motor bus lines carrying passengers and other modes of public transit, which as a matter of public convenience and necessity, may be required to be maintained and continued in operation.
The charge herein levied shall be according to the following classifications:
Motorcycles and other two wheeled vehicles $ 25.00 annually
Automobiles $ 50.00 annually
Trucks, vans and pickups $100.00 annually
SECTION II. That the Director of Finance of the City of New Orleans be and he is hereby authorized to place the revenues received from the aforesaid road use charge upon the personal property tax bills of the City of New Orleans and to collect them at one and the same time, and the said Director of Finance is authorized to pay over, day by day as collected, to the General Fund of the City of New Orleans. The Director of Finance is further authorized to promulgate such rules and regulations as may be necessary to effect implementation of this provision of this ordinance, including the formulation of new and the amendment of present definitions of vehicles in their respective classifications, as provided for in Section I thereof.
SECTION III. Notwithstanding any provision of this ordinance to the contrary and notwithstanding the number of vehicles owned by and registered to a resident of Orleans Parish or a person, firm and/or corporation whose principal place of business is located in Orleans Parish, no person shall be required to pay a road use charge in excess of one thousand ($1,000.00) dollars in any one year.
SECTION IV. That if any portion of this Ordinance be held unconstitutional or invalid by a court of competent jurisdiction, such holding shall not affect the validity of the remaining portion of the Ordinance, but such remaining portion shall be and remain in full force and effect.
SECTION V. All ordinances or parts of ordinances in conflict herewith are hereby repealed.”

Appellants have argued numerous legal questions regarding the validity of the ordinance. However, many of these arguments have been raised for the first time on appeal, and this court is not obliged to pass on them.

Generally, issues not raised by the pleadings or passed upon by the trial court cannot be raised for the first time on appeal. In the case of Mayo v. Stoessell, the court stated the proposition as follows:

“Lastly, we refer to the argument of counsel for appellants in their ‘Reply Brief’ that the trial court failed to consider the proposition ‘that if the property had been properly adjudicated to the State for 1933 taxes, then the tax sales for 1937 and 1939 taxes were absolute nullities because title was, at those times, in the State, not ■ the falsely assessed ‘ “tax debtor.” ’ (Emphasis supplied) That issue was not raised by any pleading filed by plaintiff or intervenor and was not even made an assignment of error in this court. Though argued in appellants’ brief, briefs are merely written arguments and form no part of the pleadings. Chase v. Davis, 20 La.Ann. 201 (1868). We decline to consider the matter.”

Since these issues were not raised in the trial court, the City had no chance to offer any evidence to defend against them. It would be improper and perhaps unjust for this court to chance prejudicing the rights of the City by considering and deciding these issues. Accordingly, we consider and decide only those issues properly before us.

First, appellants argue the road use charge is unconstitutional under Article 7, § 18 of the Louisiana Constitution of 1974 because it does not tax property based on a uniform percentage of its fair market value. They also argue the road use charge violates the millage limitation of Article 6, § 27(A).

These issues were answered by the Louisiana Supreme Court in Acorn v. City of New Orleans in a case attacking a $100 real property service charge, similar to the present road use charge. The Supreme Court answered the question as follows:

“For over half a century there has been neither statutory nor constitutional requirement in Louisiana that taxes on property be levied in proportion to its value.
In the Constitution of 1974 property taxation is treated in Part II of Article 7. Section 18 concerns ad valorem taxes. Section 18 provides that property subject to ad valorem taxation shall be listed on the assessment rolls and that the assessment (percentage of fair market value) ‘shall be uniform throughout the state upon the same class of property.’ In Louisiana today, the same class of property must be assessed uniformly throughout the state for the purpose of taxation according to value. Other kinds of taxation are not constitutionally bound to a value basis.
The tax involved here is not an ad valorem tax. Ad valorem means ‘according to value. Duties are either ad valo-rem or specific; the former when the duty it laid in the form of a percentage on the value of the property; the latter where it is imposed as a fixed sum on each article of a class without regard to its value. The term ad valorem tax is as well defined and fixed as any other used in political economy or legislation, and simply means a tax or duty upon the value of the article or thing subject to taxation.’ Black’s Law Dictionary, 3d ed.
The tax under consideration here is clearly not levied according to the valuation of the property taxed; it is a specific tax, and not an ad valorem tax: It is not, therefore, a millage increase upon a parish ad valorem tax, and is not regulated by other provisions of law governing ad valorem taxation.”

Applying the Acorn case to the case presently before us, it is clear the road use charge is a specific tax, since it is a flat charge imposed upon each automobile, motor cycle, truck, or van registered in the City of New Orleans, without regard to value. The tax rate established by the ordinance is predicated on the number of vehicles a person owns, and not their value. Consequently, road use charge is a specific tax, and not subject to the constitutional requirements of Article 7, § 18 pertaining to ad valorem taxes.

Second, appellants contend the ordinance violates the “uniformity” clause of the 1974 Constitution, Article 7, § 1. That article and section vest the power of taxation in the legislature, but mention nothing about the “uniformity” clause. This clause

is only under Article 7, § 18(A), pertaining to ad valorem taxes. The provision is a departure from the Constitution of 1921 which provided in Article X, § 1, that the taxing power was vested in the legislature and that all taxes would be uniform upon the same class of subjects throughout the territorial limits of the authority levying the tax. The 1921 constitutional provision is absent from the 1974 constitutional provision, and, to reiterate, appears only under the ad valorem tax section. Having decided the tax or charge in suit is a specific tax, the uniformity clause of the 1974 Constitution is not applicable.

Third, appellants argue the road use charge is not within the taxing powers of the New Orleans City Council. This issue also was answered with regard to the real property service charge, upheld by the Supreme Court in Acorn v. City of New Orleans, by the following language:

“It is clear therefore that the Constitution had the legislature, acting under that Constitution, have granted to the City of New Orleans full and complete power to impose all kinds and classes of taxes, provided only that they are ‘not expressly prohibited by the Constitution of the State of Louisiana.’
Plaintiffs argue that the additional tax on a parcel of land in New Orleans circumvents the provisions of Article 6, § 26 of the Constitution of 1974 by increasing the amount of taxes on property subject to ad valorem taxes. However, if the tax is not ‘expressly prohibited,’ it is not outside the taxing power of the City of New Orleans.”

The imposition of a specific tax upon automobiles is not prohibited by the 1974 Constitution. It is therefore within the scope of the taxing authority of the City Council of New Orleans.

Next, appellants challenge the ordinance for lack of procedural due process because they assert it does not provide for remedies against possible unfair administration of the tax. However, the City correctly points out that state law already provides an adequate remedy against improper or unfair administration.

Act 330 of 1938 provides:

“Section 1. Be it enacted by the Legislature of Louisiana, That no court of this State shall issue any process whatsoever to restrain the collection of any tax imposed by the State of Louisiana, or by any political subdivision of the State of Louisiana, under authority granted to it by the Legislature or by the Constitution.
Section 2. (a) A right of action is hereby created to afford a remedy at law for any person aggrieved by the provisions of this Act; and in case of any such person resisting the payment of any amount found due, or the enforcement of any provision of such laws in relation thereto, such person shall pay the amount found due by the officer designated by law for the collection of the said tax and shall give the officer notice, at the time, of his intention to file suit for the recovery of the same; and upon receipt of such notice, the amount so paid shall be segregated and held by the officer designated by law for the collection of the tax for a period of thirty (30) days; and if suit be filed within such time for the recovery of such amount, such funds so segregated shall be further held, pending the outcome of such suit. If the person prevails, the officer designated by law for the collection of the tax shall refund the amount to the claimant, with interest at the rate of 2% per annum covering the period from the date said funds were received by the officer designated by law for the collection of said tax to the date of refund.” (Emphasis supplied).

In Acosta v. Board of Com’rs of Lake Borne Basin L. D., the Supreme court held this act had not been repealed by the adoption of the Revised Statutes of 1950 and that it still applied to specific taxes such as the one in question.

In so holding, the Supreme Court stated:

“We agree with the trial judge that the Act is still in effect. It is true the redactors of the Revised Statutes listed Act No. 330 of 1938 as the source of Sections 1575, 1576, and 2110 of Title 47, ‘Revenue and Taxation.’ But these sections are quite consistent with the original Act within the more limited scope of their application.
Sections 1575 and 1576 appear in Subtitle II, dealing with taxes collected and administered by the State Collector of Revenue. These sections ban injunctions against the collection of ‘any tax, penalty, interest, or other charge imposed in this Sub-title.’ They also set up payment-under-protest procedures identical to those in Act No. 330 of 1938 for the recovery of taxes wrongfully collected.
Section 2110 appears in Sub-title III, relating to ad valorem taxes. This section prohibits injunctions to restrain the collection of ad valorem taxes. It sets forth the same payment-under-protest procedures as Section 1576.
The statutes repealed by the Revised Statutes are listed in Section 2 of Act 2 of the Extraordinary Session of 1950, the enacting law. Act No. 330 of 1938 is not included among those repealed. In Olan Mills, Inc. v. City of Bogalusa, 225 La. 648, 73 So.2d 791 (1954), we recognized that Act No. 330 of 1938 was still in effect. We reaffirm our pronouncement.”

Moreover, the Acosta case held Act 330 of 1938 applied to specific taxes as follows:

“The statutory ban of Act No. 330 of 1938 against injunctions in tax suits is very broad. The statute prohibits an injunction to restrain the collection of ‘any tax imposed by the State of Louisiana, or by any political subdivision * * * under authority granted to it by the Legislature or by the Constitution.’ It then provides an adequate remedy for an aggrieved taxpayer through payment of the tax under protest followed by suit to recover the amount paid. The salutary purpose of this enactment is to prevent the disruption of fiscal and governmental functions during the pendency of a taxpayer’s suit.
We conclude that the local or forced contribution of fifty cents per acre is a tax within the intendment of Act No. 330 of 1938. Hence, the trial court correctly sustained the peremptory exception.”

If there is an unfair administration of the road use charge, a tax payer has the remedies provided in Act 330 of 1938. Consequently, the ordinance attacked is not invalid because it deprives tax payers procedural due process.

The last argument raised properly by plaintiffs is that the ordinance levies a “license fee” in violation of Article 7, § 5 of the Constitution of 1974, which provides as follows:

“The legislature shall impose an annual license tax of three dollars on automobiles for private use, and on other motor vehicles, an annual license tax based upon horsepower, carrying capacity, weight, or any of these. No parish or municipality may impose a license fee on motor vehicles.”

The last sentence of this constitutional provision prohibits local government from imposing a “license fee” on motor vehicles. Plaintiffs argue the provision reserves to the state legislature the power to impose any license tax on automobiles or other motor vehicles and removes from municipalities (and parishes) the power to levy any such tax.

The City contends a municipality is prohibited by the quoted constitutional provision from imposing a license fee on motor vehicles but nevertheless may impose license taxes on them. The City argues the difference in wording between a “license tax” and a “license fee” must be recognized in construing Article 7, § 5; that a “license” is a permit to enjoy the privilege of using streets, while a “license fee” is a sum charged for the permit; and that, in the present case, the charge levied by the “road use charge” is not a charge for the privilege of using municipal streets, but instead is a direct tax on the ownership of motor vehicles by residents of the city, whether or not the vehicles are used on the streets. Consequently, it contends the apparent conflict in Article 7, § 5 is resolved if it is interpreted to mean that the City may engage in imposing a specific tax to raise revenue but may not engage in licensing or registering motor vehicles for a fee. The City relies on the distinction between a license tax and a license fee as set forth in Black’s Law Dictionary, page 830 (Fifth Edition 1979) as follows:

“The term ‘license tax’ includes both charge imposed under police power for privilege of obtaining license to conduct particular business, and tax imposed upon business for sole purpose of raising revenue; ‘license tax’ being defined as sum exacted for privilege of carrying on particular occupation .... Where a fee is exacted and something is required or permitted in addition to the payment of the sum, either to be done by the licensee, or by some regulation or restriction imposed on him, then the fee is a ‘license fee.’ Conrad v. State, Del.Super., 2 Terry 107, 16 A.2d 121, 125. A license fee is charge made primarily for regulation, with the fee to cover cost and expense of supervision or regulation. State v. Jackman, 60 Wis.2d 700, 211 N.W.2d 480, 487.”

We do not agree with the City’s argument.

Our understanding of what occurred at the Constitutional Convention of 1973 regarding Article 7, § 5 of our 1974 Constitution is: The delegates were in agreement that § 5 of Article 7 was not “constitutional material”, i. e., should not properly be a part of the proposed new constitution. But the section was essentially the same as contained in the prior (1921) constitution, and to leave it out would endanger adoption of the new constitution because such action would suggest to the voter that he would be required to pay an “exorbitant” license charge for his automobile and thus result in having “people flocking to the polls to vote against” the new constitution. In other words, the purpose of retaining this non-constitutional material in the new constitution was to assure the voters the automobile license would not be increased. And it appears to us that the delegates were concerned with, and intended to limit, the cost or charge the automobile owner would be required to pay, regardless of whether that cost or charge be described by use of words such as “license tax”, “license fee”, or “road use charge”.

In our view, the ordinance in suit clearly violates this constitutional purpose. The ordinance “charge” is based on registration; the registration referred to is the license fee paid by the vehicle owner for the privilege of driving on Louisiana highways, roads and streets; and, by its specific wording, the ordinance is a charge for “road use”. Thus, at least within the contemplation of Article 7, § 5, the ordinance’s “charge” duplicates the state license tax and violates the prohibition contained in the last sentence of § 5.

For the reasons assigned, the judgment appealed from is reversed and New Orleans Ordinance No. 7011, Mayor Council Series, is declared unconstitutional.

REVERSED.

      . Krauss v. Develle, 236 La. 1072, 110 So.2d 104; Mundy v. Gentilly Oaks, 227 La. 118, 78 So.2d 530; Novick v. Miller, 222 La. 469, 62 So.2d 645.

      . La.App., 277 So.2d 520, 523.

      . The issues not considered in this opinion are: (1) The ordinance violates the apportionment and uniformity clauses of the United States Constitution; (2) the road use charge provided by the statute is a confiscatory tax that violates substantive due process; (3) the road use charge is unconstitutionally vague and represents an improper delegation of legislative power to the executive branch by allowing the director of finance to define what motor vehicles are covered by the ordinance and to define what residents the ordinance applies to; and (4) the ordinance is unconstitutional because it is selectively enforced.

      . La., 377 So.2d 1206, 1213.

      . Art. 7, § 1 reads: “Except as otherwise provided by this constitution, the power of taxation shall be vested in the legislature, shall never be surrendered, suspended, or contracted away, and shall be exercised for public purposes only.”

      . Art. 7, § 18(A): “The percentage of fair market value shall be uniform throughout the same class of property.”

      . Supra, note 4, at p. 1212.

      . 251 La. 789, 206 So.2d 496.

      . Acosta recently has been upheld in Charles v. Sewerage Dist. No. 2 of St. Charles Parish, 256 La. 953, 240 So.2d 719.

      . See Vo. XXXII La.Const. Conv. 1973, pp. 84, et seq., 99th Day’s Proceedings.

      . 1 LSA-Const., Art. 6, § 21 and 2 LSA-Const., Art. 10, § 17.


author: SAMUEL, Judge. REDMANN, Judge, GULOTTA, Judge, PER CURIAM.

text:
    Robert G. SUHOR, Jr. v. Richy J. GUSSE and Donald Bellow, et al.
    No. 9520.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 8, 1981.
    Rehearings Denied Sept. 28, 1981.

      Occhipinti, Grace, Berger & Dunford, John A. Occhipinti and Christopher T. Grace, Jr., New Orleans, for plaintiff-appellant.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Robert E. Barkley, Jr. and Linda S. A. Burke, Porteous, Toledano, Hainkel & Johnson, Ben C. Toledano, Michael K. Fitzpatrick and Margaret A. Bretz, New Orleans, for defendants-appellees.
    Before SAMUEL, REDMANN, GULOT-TA, BOUTALL and BARRY, JJ.
   ON REMAND FROM THE SUPREME COURT

SAMUEL, Judge.

This matter has been remanded to us by the Supreme Court for an independent evaluation of damages.

Plaintiff, Robert G. Suhor, Jr., filed this suit for personal injuries sustained by him in a rear end vehicular collision. Named defendants were Donald Bellow, individually and as administrator of the estate of his then minor daughter, Darlene (driver of the other vehicle involved), Allstate Insurance Company, the Bellows’ liability insurer, and State Farm Mutual Automobile Insurance Company, the liability insurer of plaintiff’s employer, whose truck plaintiff was driving at the time of the accident. Richy J. Gusse, newlywed husband of Darlene Bellow, also was a named defendant, but he was dismissed on an exception of no cause of action.

All defendants answered in the form of a general denial and pleaded negligence and contributory negligence on the part of plaintiff; State Farm Mutual made a third party demand against the Bellows; and State Farm Fire & Casualty Company, plaintiff’s employer’s compensation insurer, intervened for workmen’s compensation benefits, including medical expenses it had paid plaintiff.

Following trial by jury, judgment was rendered in favor of plaintiff and against Donald Bellow, individually and as administrator of the estate of Darlene M. Bellow, and Allstate Insurance Company, in solido, in the sum of $25,000. All claims against State Farm Mutual were dismissed, as was that litigant’s third party demand against the individual defendants. Plaintiff appealed, we affirmed, the Supreme Court granted certiorari, 380 So.2d 69, and remanded to us, as we have said, for an independent evaluation of damages.

The trial judge permitted evidence of the individual defendants’ inability to pay, but prevented plaintiff from informing the jury of the limits of various insurance policies, and then instructed the jury it could consider the inability to pay any damages over and above any insurance coverage, without informing the jury of the amounts of insurance available. The Supreme Court found these errors improperly influenced the jury in making its award for damages.

Although it was not introduced, the parties stipulated (outside the presence of the jury) that the Bellows’ liability policy issued by Allstate provided coverage of $50,000. The uninsured/underinsured motorist coverage of plaintiff’s employer was in the total amount of $700,000 in six separate policies issued by State Farm Mutual. The U/M coverage on the truck plaintiff was driving at the time of the accident was $100,000 per person, $300,000 per accident.

On our original hearing we reviewed the damage award under the “much discretion” standard of Coco v. Winston Industries, Inc., La., 341 So.2d 332, and affirmed. On rehearing before a five judge panel we again affirmed because of the absence of the majority needed to change the trial court judgment.

As stated in our original opinion, plaintiff was injured in a typical rear end vehicular collision and liability is not an issue. At this time the issues are the extent of the injuries and losses sustained by plaintiff, the amount of damages to which he is entitled, application of the inability to pay doctrine, what portions of the award, if any, are due by the Bellows, Allstate (under the liability policy it issued to Bellow), and State Farm Mutual under the U/M provisions in the liability policies it issued to plaintiff’s employer, and State Farm Mutual’s third party demand against the Bellows.

THE INJURIES AND LOSSES SUSTAINED

The principal medical evidence was given by Dr. Kenneth Adatto, an orthopedic surgeon who was plaintiff’s treating physician, Dr. Marvin Miller, a psychiatrist, and Dr. Richard Levy, a neurosurgeon who examined plaintiff on one occasion on behalf of defendants.

The accident occurred on November 3, 1975 and plaintiff was seen by Dr. Adatto on November 11, 1975. Dr. Adatto testified:

The orthopedic examination revealed spasms in the cervical and lumbar zones and plaintiff was placed on tylenol with codine for pain, and muscle relaxants. When seen on November 21, 1975, plaintiff had not improved. Physical therapy was recommended. On December 5, he showed slight improvement but was placed on new medication because of further complaints of pain. On December 19, he was much improved. He was permitted to return to work on January 5, 1976. However, he returned to this doctor on January 9 and 16 because the pain was worse. He was advised to see Dr. Palmer, a neurologist, and to get further bed rest. Examination on February 3 showed plaintiff was still having much difficulty.

Following consultation with Dr. Palmer, a myelogram was recommended and was performed in February, 1976. Defects revealed by the myelogram indicated surgery was advisable, and on March 30,1976 plaintiff was hospitalized and a laminectomy, a laminotomy and a spinal fusion were performed. Plaintiff was discharged from the hospital on April 15,1976. He was instructed to wear a metal brace for four to six months to protect his back. He returned to Dr. Adatto innumerable times thereafter and was improved on January 7, 1977, his last visit prior to trial. In Dr. Adatto’s firm opinion, as a result of the surgery, plaintiff will not be able to stoop, lift or bend on a competitive basis, nor will he be able to lift anything over 25-50 pounds for the remainder of his life.

Dr. Adatto further stated the purpose of fusing is to make the portion a solid fixed structure. However, x-rays showed the operation had not been successful in that respect; the fusion was not solid. He concluded that as a result of the accident plaintiff had a 25% permanent disability of the body as a whole and, since the fusion is not solid, another operation may be needed.

Dr. Coleman Schneider, a radiologist, confirmed Dr. Adatto’s finding that the fusion was not solid.

Because of the physical problems resulting from the accident, plaintiff became despondent and discouraged. He was seen by the psychiatrist, Dr. Marvin Miller, on eight occasions between May 26, 1976 and February 23, 1977. Dr. Miller’s diagnosis is that plaintiff experienced a neurotic depressive reaction as a result of the accident, injuries and subsequent medical events, and that he has a serious psychiatric problem. He found plaintiff anxious to return to an active, normal life but extremely worried about his inability to do so because of his unstable back and general physical condition.

Dr. Miller stated plaintiff sustained a loss of comfortable body use which made him unable to get in and out of his automobile. He was unable to continue driving a truck or working at the job he had prior to the accident, a job which held a promising future, and he was unable to participate actively in launching a boat or bringing it back to shore, thus interfering with his hobby of fishing which had given him great pleasure prior to the accident. Also, plaintiff lived with his mother and was unable to care for her as he had done previously. Plaintiff is very discouraged with the limitations placed on his life after the accident, which he felt was no fault of his own. He disliked becoming dependent on people, particularly because he had been an active participant prior to the accident. He formerly had a great deal of self esteem, which has now been shattered, particularly by his inability to work at the same or a similar job because he cannot stoop or lift without possible damage to his back.

Dr. Miller concluded plaintiff wants to work on a fulltime basis and is very desirous of reentering a life situation involving work. Definitely, he is not a malingerer. Before the accident he would have had no need for psychotherapy. At his last visit on February 23, 1977 plaintiff still had intermittent pain and had an eight pound weight loss due to worry about the physical findings of which he recently had been informed, i.e., the fusion was not solid.

Dr. Levy, a neurosurgeon called by the defendants, examined plaintiff on one occasion, January 25, 1977. He was aware of the operation performed by Dr. Adatto. At the conclusion of his neurological examination, Dr. Levy found plaintiff did not have an active or current disability which would prevent him from doing whatever he wanted to do; there was no neurological abnormality. However, he admitted when an individual has a portion of two discs removed, he does have a degree of disability, and estimated plaintiff’s disability as 10-15% partially of the body as a whole. This rating did not include disability resulting from the spinal fusion, which was not solid, as disclosed by the x-rays which revealed motion at the L4-L5 and L5-S1 level, and which is an orthopedic problem not in the field of neurosurgery. We are totally unable to understand this doctor’s conclusion that plaintiff could do anything he wanted to do.

Susan Smith, an expert in occupational therapy and vocational evaluation, concluded: Plaintiff’s physical condition at present limits him to light work, lifting no more than 25-50 pounds (in line with Dr. Adat-to’s thinking); he cannot sit for long periods, is unable to work a full 8 hour day, and can work no more than 3 hours per day. She stated employers are reluctant to hire people with such back problems.

Lay testimony of plaintiff and his mother was to the effect that prior to the accident he had been very active physically, bowling, fishing, doing yard work at home and doing very well in a job which offered future advancement. He has been unable to return to that job since the accident because it requires heavy lifting. This testimony supports the conclusions reached by Dr. Miller, the psychiatrists, and all of the other medical evidence with the sole exception of a part of Dr. Levy’s testimony.

The only evidence regarding loss of wages was given by a plaintiff witness, Dr. Melville Wolfson, an expert in the computation of wage loss and present valuation analysis. Basing his finding on plaintiff’s age (25 years at the time of the accident), annual wage at the time of the accident ($10,234), work life expectancy (an additional 34 years), and taking into consideration discounting, which Dr. Wolfson explained in detail, he concluded plaintiff’s future wage loss was a minimal of either $107,423 or $165,718 (depending on whether plaintiff would be able to earn a lesser amount than formerly, as opposed to not being able to earn any income in the future). These figures do not include what this witness referred to as an improvement factor; they do include a 3% inflation rate.

To summarize: The overwhelming preponderance of the evidence is that plaintiff’s injuries from the November 3, 1975 accident resulted in a myelogram in February, 1976, and extensive back surgery in March, 1976, which surgery included a lami-nectomy, laminotomy, and spinal fusion. The spinal fusion was unsuccessful and further surgery may be needed to make the fusion solid. Plaintiff was required to wear a metal brace from four to six months. He cannot stoop, lift anything over 25-50 pounds for the remainder of his life, bend on a competitive basis, or work at any job which requires such activity. Twenty-six years of age at the time of trial, he is despondent and discouraged by his problems, resulting in severe neurotic depressive reaction. All of the testifying doctors state he has a permanent residual physical disability from an estimated 25% (Dr. Adatto) to 10-15% (Dr. Levy). It appears clear this formerly active 25 year old has not, and in all probability will not, be able to continue his recreational activities, or other similar physical activities, for the remainder of his life, nor will he be able to engage in the type of remunerative employment for which he is qualified.

The only evidence contained in the record which in any way tends to lessen this sum-marization is the testimony of Dr. Levy. His testimony is restricted to his field of neurology and, despite his conclusion, he still estimated plaintiff’s disability as 10-25% of the body as a whole.

DAMAGES

Thus, the evidence establishes that plaintiff has a serious and permanent disability as a result of the accident. In our view, he is entitled to recover stipulated medical expenses of $6,504.06, loss of wages to date of trial of $12,462, future loss of wages of $107,423, and an award for present, past and future pain and suffering in the sum of $150,000, for a total award of $276,389.06.

INABILITY TO PAY AND WHAT PROPORTIONS OP THE AWARD, IF ANY, ARE DUE BY THE VARIOUS DEFENDANTS

In this case the Supreme Court has found the inability of the defendants to respond in damages is a proper subject of consideration in assessing damages. This, of course, is restricted to the inability of the individual defendants to pay more than the available insurance coverage; it does not apply to the defendant insurers, who are solvent and whose liability is limited only by the terms of their respective policies.

Allstate is liable in solido with its insureds to the full extent of the $50,000 liability policy it issued to the defendant, Bellow.

The extent of State Farm Mutual’s liability presents a more difficult problem. At the time of the accident this insurer had in force a liability policy issued to plaintiff’s employer, A. & A. Spice & Food Co., Inc., which covered the truck involved in the accident. That policy provided U/M coverage of $100,000 per person ($300,000 per occurrence). It also had five additional liability policies issued to plaintiff’s employer covering various other of the employer’s vehicles with additional aggregate coverage of $600,000 under U/M provisions. One of those policies provided $300,000 per person, $600,000 per accident U/M coverage, and one policy did not provide any U/M coverage. The remaining policies provided $100,-000/$300,000 U/M coverage.

Plaintiff contends he is an insured under the U/M provisions and therefore should be permitted to stack coverage on all vehicles covered under these various policies, thereby exposing State Farm Mutual to a possible liability of $700,000. The trial court did not reach the question of stacking because the amount of the award did not exceed the liability of the tort feasor’s insurer, Allstate. We do not agree with this plaintiff contention relative to stacking.

The named insured under all of the State Farm Mutual policies is A. & A. Spice & Food Co., Inc., plaintiff’s employer. Each policy defines the insured as follows:

“II. Definitions.
(a) ‘insured’ means:
(1) the named insured as stated in the policy (herein also referred to as the ‘principal named insured’) and, while residents of the same household, the spouse of any such named insured and relatives of either;
(2) any other person while occupying an insured automobile; and
(3) any person, with respect to damages he is entitled to recover because of bodily injury to which this endorsement applies sustained by an insured under (1) or (2) above.”

In Burns v. Fernandez, recently handed down by this court, we held the premiums paid by that plaintiff’s employer were not sufficient to permit stacking by the plaintiff, a “permissive user”. Burns is materially indistinguishable from the instant case and, for the reasons expressed in Burns, we hold plaintiff cannot stack. Thus, under its various contracts with plaintiff’s employer, the liability of State Farm Mutual is $100,000, the limit of the U/M provision in its policy on the truck driven by plaintiff and involved in the accident.

Testimony relative to inability to pay was given by Mr. Bellow and the other individual defendant, his daughter. Bellow testified he is a widower supporting seven children, ages 19, 17, 15,14, 12, 11 and He receives $282 per month in social security benefits on his deceased wife’s account on behalf of the children. He has a full-time job as an accountant, earning $15,000 per year. He owns his own home (mortgaged), 35 shares of Puttman Vista Funds which cost $500, but has a current market value of $350, no savings account, and two automobiles, a 1969 Chrysler, and a 1972 Impala (mortgaged). We note that at least one of the seven children is not a minor and another is close to majority.

Darlene Bellow Gusse had been married for 15 months at the time of trial and was expecting a child. She works as a clerk-typist for a local accounting firm at a salary of $480 per month. Her take-home pay is about $103-104 per week. She has a Vio interest in a home.

Clearly, the Bellows are unable to pay the full judgment to which plaintiff is entitled. Equally clearly, they are not able to pay that part of such a judgment which is in excess of the insurance coverage. However, we are of the opinion that, to some extent, they can and should respond to damages in excess of the amount plaintiff will receive from the two defendant insurers. The inability to pay doctrine was and is not intended to completely relieve a tort feasor from liability. As was said in Lacaze v. Horton:

“. It must be borne in mind that this principle is not intended to completely relieve a defendant of liability for reparation of damages inflicted by his own negligence, nor should it be considered as justifying the reduction of the allowance of damages to a bare minimum. Either of these alternatives, in our opinion, would be an extreme application of the principle and would result in effecting a gross injustice toward a plaintiff, under the guise of the application of a humane consideration for the plight of an impecunious defendant.”

While we ordinarily would not be disposed to follow the inability to pay doctrine in this case, we apply that doctrine because, as we understand the Supreme Court’s opinion, we are required to do so. In our view, the fairest result we can reach regarding both the plaintiff and the individual defendants is to hold those defendants liable in solido in the amount of $50,000, which is one-third of the $150,000 general award to which plaintiff is entitled for pain and suffering.

THE THIRD PARTY DEMAND

In the trial court proceedings State Farm Mutual filed a third party demand against the Bellows for any amounts it might be held liable to pay plaintiff as a result of its U/M coverage. At the conclusion of the trial the third party demand was dismissed as State Farm Mutual was found not liable on the principal demand. The plaintiff appealed but State Farm Mutual did not appeal, nor did it answer plaintiff’s appeal.

The first question presented is whether or not the third party demand is before us on this appeal. For the reasons set forth in Bond v. Commercial Union Assur. Companies we hold the third party demand is properly before us. Those reasons, which appear at page 619 of the reported opinion, are:

“We note that an ‘[a]ppeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court.’ (La.C.C.P. Art. 2082).
An appellee is required to answer an appeal only if he ‘desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. ... Additionally, however, an appellee may by answer to the appeal, demand modification, revision, or reversal of the judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court.’ (La.C.C.P. Art. 2133).
The party successful at the trial level cannot appeal the judgment to the Court of Appeal. Petition of Sewerage and Water Board of New Orleans, 248 La. 169, 177 So.2d 276 (1965). Defendants, Commercial Union and Lumbermen’s Mutual, were successful at the trial level. Even though their third party demands were dismissed by the trial court, these defendants were not required to appeal from that dismissal under Articles 2083 and 2133 since they would be requesting relief incompatible with the judgment dismissing the plaintiffs’ claims. Such relief could not be granted by this Court without first reversing the judgment on the main demand. To hold that
Articles 2082 and 2133 require Commercial Union and Lumbermen’s Mutual to appeal or answer the appeal in order that this Court could hear their third party demands in the event the trial court judgment was reversed would extend these Articles to a situation which the Legislature never intended to be covered by the statute. Such an absurd result will not be imputed to those Articles. Emmons v. Agricultural Insurance Company, 245 La. 411, 158 So.2d 594 (La.1963).”

Since we have increased the jury’s award on the main demand, we must now address ourselves to the rights of State Farm Mutual against the individual defendants on its third party demand.

The pertinent statute is R.S. 22:1406 D(4). This statute has been interpreted by the Louisiana Supreme Court in Niemann v. Travelers Ins. Co., as follows:

“Furthermore no provision of our statute grants the UM insurer a right to subrogation,5 that is, the right to exercise the legal rights and actions of its insured. Rather R.S. 22:1406 D(4) affords only certain reimbursement rights in the following language:
‘D. The following provision shall govern the issuance of uninsured motorist coverage in this state.
‘(4) In the event of payment to any person under the coverage required by this Section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer.’
Defendant’s claim to subrogation is based on a provision which it has written into the policy. And it is this subro-gation policy provision which creates the need for the other policy clause at issue here, consent to settle. It is our ultimate conclusion that the statute neither explicitly nor implicitly sanctions a clause such as consent to settle, which in operation serves to block the statutorily mandated UM coverage.
Just what are defendant’s rights under R.S. 22:1406 D(4)? As we read the literal language of the statute, it is to receive (‘be entitled to’) the proceeds of any settlement or judgment which has resulted or might result (‘resulting’) from the exercise of the insured’s rights against the uninsured tortfeasor (and by implication the underinsured tortfeasor).” (Emphasis ours).

Thus, an U/M motorist insurer has no right to claim against the tort feasor under subrogation principles. However, it may recover the proceeds of a judgment resulting from legal action by its insured against such a tort feasor. This right to “the proceeds” amounts to a right to be reimbursed from any sums actually recovered by its insured from the uninsured or underinsured tort feasor. A right to reimbursement from sums the insured in fact recovers strongly implies an U/M carrier’s only cause of action is against its own insured for such reimbursement.

This interpretation was adopted by the Third Circuit in Bond v. Commercial Union Assur. Companies, where the court noticed on its own motion (pursuant to C.C.P. Art. 927) that the U/M carrier had no cause of action against the defendant tort feasor and dismissed such a third party action against such a defendant.

As we understand Niemann and Bond, and we agree, the U/M insurer only has a cause of action against its insured, and then only for reimbursement of sums in fact received by its insured from the uninsured or underinsured tort feasor. Because there is no subrogation, the U/M insurer does not have a cause of action against the U/M tort feasor. Accordingly, we dismiss State Farm Mutual’s third party demand against the individual defendants.

For the reasons assigned, the judgment appealed from is affirmed in part, amended in part and reversed in part. Accordingly, it is ordered that:

1. There be judgment in favor of plaintiff, Robert G. Suhor, Jr., and against the defendants, Donald Bellow, individually and as administrator of the estate of his minor child, Darlene M. Bellow, and Allstate Insurance Company, in solido, in the full sum of $50,000, together with legal interest thereon from date of judicial demand until paid;
2. There be further judgment in favor of plaintiff, Robert G. Suhor, Jr., and against the defendants, Donald Bellow, individually and as administrator of the estate of his minor child, Darlene M. Bellow, and State Farm Mutual Automobile Insurance Company, in the full sum of $100,000, together with legal interest thereon from date of judicial demand until paid;
3. There be further judgment in favor of plaintiff, Robert G. Suhor, Jr., and against the defendant, Donald Bellow, individually and as administrator of the estate of his minor child, Darlene M. Bellow, in solido, in the full sum of $50,000, together with legal interest thereon from date of judicial demand until paid.

As thus amended and changed, and in all other respects, the judgment appealed from is affirmed.

All costs in all courts are to be paid by the two corporate defendants, Allstate Insurance Company and State Farm Mutual Automobile Insurance Company.

AFFIRMED IN PART; AMENDED IN PART; REVERSED IN PART.

REDMANN, Judge,

dissenting in part.

I join in Judge Gulotta’s observations (as I did in Judge Beer’s, 377 So.2d at 1263) concerning the preferability of remanding a case like this to the trial court, but I agree the remand to us obliges us to fix quantum.

I.

The repudiated jury award of $25,000 would have been affirmable on this record (ignoring the ability-to-pay evidence) as within the jury’s “much discretion.” La.C.C. 1934(3), although testing the lower limit of that discretion, under these circumstances:

1. Plaintiff’s testimony on the occurrence of the accident is interpretable as inconsistent: he says he had not started up after the light turned green, yet he says the contents of his van slid forward on impact, into the back of the driver’s seat, which (because of the commonly-experienced Newton’s law that a body in motion tends to remain in motion and one at rest tends to remain at rest) they could do only if the van were previously moving forward. Their sliding forward is explicable by an inference that, having started up with the green light, plaintiff jammed on his brakes (as defendant driver testified), either because the car in front of him made a sudden near-U-turn back on to the service road or because plaintiff himself suddenly realized he wanted to make that turn. Although plaintiff’s sudden stopping might not relieve defendants of liability, the inconsistency of his testimony might reduce plaintiff’s credibility.
2. Photographs of plaintiff’s van show it was not damaged except for a bent rear bumper.
3. Plaintiff did not suffer any painful injury at the time of the accident, but believed himself uninjured.
4. Plaintiff’s own psychiatrist likened him, in his desire for compensation for his injury, to a car owner who because of a “little scratch ... may be extremely disturbed and insist on compensation well beyond the actual damage ... [more like] someone who goes mad literally than someone on the other end of the continuum [between two extremes of reaction to slight damage] that says ‘forget it.’ ” Thus the psychiatrist’s testimony further detracts from plaintiff’s credibility as a witness.
5.Plaintiff’s own orthopedic surgeon testified that the purpose of the surgery was to relieve pressure on the nerve and thus relieve pain; that surgeons hoped not to have any motion after the fusion attempt, “ideally it is a solid procedure all the way around but a little motion is acceptable.” “Q. Do you feel that Mr. Suhor can go back to work ... ? A. I find it much easier to say what the person cannot do rather than can. For example, ... some truck drivers can drive trucks, some unload trucks as well as drive, so I don’t say he drives trucks but he can. Q. The only thing he can’t do is excessive stooping or bending or lifting? A. Correct .... Q. I believe you indicated that you told him that he should go back to work consistent with the limitations that you specified? A. Right, the limitations what he can’t do and it is up to a person to find out what he can do with the limitations.”

From all of these circumstances the jury could reasonably have concluded that plaintiff was exaggerating his inability to work, by simply not working, and that defendants were not even fully responsible for the $12,-000 earnings plaintiff had lost or merely declined to earn since the accident in his inordinate desire for compensation. Moreover, the jury could have concluded that plaintiff was not significantly disabled in respect to future earning capacity, notwithstanding an “anatomical” (“not a functional”) disability of 10 to 15% in neurosurgeon Levy’s view or 25% in plaintiff’s orthopedist’s view. Thus the jury could have concluded that pecuniary damages were $6,500 (or less) for medical expenses and a few thousand dollars for past and future lost wages, and allowed $10,000 to $15,000 general damages for their total award of $25,-000. I would think that general damages award strained mightily the lower limit of the jury’s “much discretion” but I should not attempt to articulate that it transgresses it. In Bolin v. National Tea Co., La.App. 1 Cir. 1978, 359 So.2d 690, writ refused La., 362 So.2d 577, the courts upheld a jury award of only $10,000 general damages for a ruptured disc that required surgery twice (although one doctor thought the second rupture and surgery on the same disc not related to the accident), caused pain for over a year and a half, and left plaintiff with ten to 25% permanent disability.

II.

The Supreme Court has ruled, however, that our jury’s award was tainted by the trial judge’s treatment of ability to pay and of insurance coverages, and has remanded to us for an independent evaluation of damages.

I see this case in the same manner outlined above as I believe the jury saw it, although I would be much more generous on quantum. I would, moreover, allow plaintiff added medical expenses for a second fusion attempt if he desires it, plus a lower five-figure amount for all lost wages, and much more substantial general damages for the ruptured discs and surgery (even conceding that there were no other injuries, not a broken bone or cut or even a bruise). As one of a panel of judges I would adjust my own figures (as would the other judges) to reach a consensus figure agreeable to the panel if possible. Here, however, my under-$100,000 estimate (not yet considering defendants’ poverty) would be accommodable with Judge Gulotta’s $100,000 total but not with the majority’s $300,000 (reduced to $200,000 for defendants’ poverty).

III.

I further dissent from the majority’s rejection of uninsured motorist insurer State Farm’s third-party demand against the Bellows.

The Supreme Court declares, 388 So.2d at 757, n.5,

Although insurance was available to plaintiff under the uninsured motorist provisions of the State Farm Mutual policies, such insurance was not available to Mr. Bellow and Mrs. Gusse because the uninsured motorist insurer, if cast in judgment, would be entitled to indemnity from them.

In view of that express reasoning (impliedly overruling or at least narrowing Niemann v. Travelers Ins. Co., La. 1979, 368 So.2d 1003), we are obliged to render judgment over in favor of State Farm against the Bellows for the amount of the judgment against State Farm.

GULOTTA, Judge,

dissenting.

Considering the testimony of Suhor, together with that of Doctors Adatto, Miller, Levy and Wolfson, I respectfully dissent from the amount of the amended award reached by the majority.

Suhor was a van driver for a company that supplied spices to various super markets. At the time of the rear-end collision, he sustained injury to his back. He testified that he had previously lifted packages in excess of twenty pounds, but after the accident could not return to his job because he was told by Adatto not to bend, stoop, or lift in excess of twenty pounds. Post-accident he did work at Banner Chevrolet transporting vehicles from one city to another and additionally did odd jobs. Based on Wolfson’s calculations this 27-year old, with a 34-year life expectancy, earning approximately $10,000.00 per year, would suffer a minimum loss of $159,000.00 total, plugging in discounts and inflation. This amount is based upon a restricted earning capacity of approximately $3,600.00 per year. (I am not sure whether the $159,-000.00 figure or a subsequently discussed $107,000.00 figure takes into account the $3,600.00 per year restricted earnings.)

Doctor Adatto acknowledges that the fusion following the laminectomy was not solid and that there was movement in one of the two places of the fusion. He testified that Suhor had a 25% disability of the body and could not return to work which involved lifting in excess of 25 to 50 pounds.

Doctor Miller indicated that Suhor suffered from lack of self esteem because of his limited work and earning capacity.

Doctor Levy, on the other hand, testified that, from a neurological standpoint, Suhor was not restricted from doing anything that he might have done before the accident.

In a dissent from the original opinion rendered in this Court, I expressed the belief that the posture of this case, when the matter was submitted to the jury in the trial court, required a remand for a new trial. My belief is buttressed by the language of the Supreme Court in Ragas v. Argonaut Southwest Ins. Co., 388 So.2d 707, Sup.Ct., September 3, 1980, where the court stated:

“... [1] Where a finding of fact is interdicted because of some legal error implicit in the fact finding process or when a mistake of law forecloses any finding of fact, and where the record is otherwise complete, the appellate court should, if it can, render judgment on the record.
This is not to say, and Gonzales [v. Xerax Corp., La., 320 So.2d 163 (1975)] should not be read to require, that the appellate court must find its own facts in every such case. There are cases where the weight of the evidence is so nearly equal that a first-hand view of witnesses is essential to a fair resolution of the issues. The appellate court must itself decide whether the record is such that the court can fairly find a preponderance of the evidence from the cold record. Where a view of the witnesses is essential to a fair resolution of conflicting evidence, the case should be remanded for a new trial. ...” At page 708.

Nonetheless, the Supreme Court in Suhor v. Gusse, 388 So.2d 755 (La. 1980), on the same day that the Ragas opinion was rendered, mandated that we make “an independent evaluation” of the damages due plaintiff in this case and not remand this matter to the trial court. Obliged by the mandate of the Supreme Court in this case, and considering the “inability to pay” doctrine, together with the “independent evaluation” of the evidence concept, I conclude that a $100,000.00 amended award is proper.

ON APPLICATION FOR REHEARING

PER CURIAM.

On plaintiff's demand for cumulating the uninsured motorist coverages of defendant’s six separate insurance policies, Seaton v. Kelly, 339 So.2d 731 (La. 1976), controls. There, as here, an owner had separate policies on his vehicles, a Ford and a Volkswagen. Seaton was injured by an uninsured motorist while a passenger in the Ford. The court awarded the UM limit of the policy insuring the Ford, but expressly rejected Seaton’s claim for the UM limit of the policy insuring the Volkswagen. The Supreme Court reasoned, at pp. 733 and 735,

The issue is not whether plaintiff can “stack” the uninsured motorist coverages on the two policies issued to Kelly. The question of “stacking” only arises once it is determined that the person seeking to cumulate benefits on two or more uninsured motorist coverages is an insured under the terms of those policies ....
. .. Since by the clear terms of the policy in this case ..., the plaintiff was not occupying the automobile “described in the policy for which a specific premium charge indicates that coverage is afforded ...” (the Volkswagen), he was not occupying the “insured automobile.” As such he was not an “insured” under the Volkswagen policy and is, therefore, not entitled to the benefits contained therein.

The case before us is identical in respect to stacking; it is a case in which stacking does not become an issue because plaintiff is not an insured under any policy except the one covering the vehicle he was occupying. He is therefore not entitled to any benefits provided by any other policy.

Seaton requires us to reject, insofar as it applies to a mere occupant, the contrary (and unexplained) reasoning by Wilkinson v. Fireman’s Fund Ins. Co., 298 So.2d 915, 918 (La.App. 3 Cir. 1974), writ refused La., 302 So.2d 306 and 308, that “if we had six distinct policies [instead of two three-ear policies] it is clear ... that plaintiff [a named insured as to one but only an occupant as to the other three-car policy] could recover the full minimum $5,000 under each of the six policies since his damages exceed $30,000.”

The decisions in Barbin v. United States F. & G. Co., 315 So.2d 754 (La. 1975), and Wilkinson, above, and the obiter dictum of Holmes v. Reliance Ins. Co., 359 So.2d 1102 (La.App. 3 Cir. 1978), writ refused La., 362 So.2d 1120, might support a different result because they appear to assume (as Wilkinson explicitly reasons, as just noted) that a mere occupant of one vehicle can recover on each separate policy insuring the host owner. But, apart from their implied conflict with Seaton, the supreme court’s latest decision in this area, the declarations of Bar-bin, Wilkinson and Holmes are not applicable to our case, because those cases involve a single policy with more than one vehicle insured rather than separate policies.

Plaintiff’s application for rehearing is therefore denied.

Defendant State Farm’s application for rehearing is also denied.

      . Suhor v. Gusse, La.App., 388 So.2d 755.

      . Now Mrs. Darlene B. Gusse, wife of Richy J. Gusse. We note that an exception to State Farm Mutual’s third party demand against this defendant (alleging she is of the full age of majority), which exception is based on minority at the time of the accident, was overruled.

      .It was further ordered that State Farm Fire & Casualty be given preference in the judgment for $12,539.06, workmen’s compensation previously paid plaintiff. Plaintiffs claim against State Farm Mutual, its third party demand,and State Farm Fire’s intervention against State Farm Mutual were dismissed.

      . La.App., 377 So.2d 1259 (on rehearing).

      . See Daigle v. Lang, La.App., 377 So.2d 1384, and Novick v. Textron, La.App., 375 So.2d 730.

      . La., 388 So.2d 755, 757.

      . See Holmes v. Reliance Ins. Co., La.App., 359 So.2d 1102.

      .At the time of this accident on November 3, 1975, R.S. 22:1406 had not been amended so as to prevent stacking. That amendment, Act 623 § (1), was passed by the legislature in 1977.

      . No. 11,481 of our docket, 401 So.2d 1033, handed down June 10, 1981.

      . La.App., 100 So.2d 252, 255.

      . La.App., 387 So.2d 617.

      . La., 368 So.2d 1003, at 1006.

      . Supra, note 11.

      . Holmes speaks of stacking a 160-vehicle policy’s coverage but in fact its sole award on that policy was only $8,428, far below the single-vehicle limit of $15,000 per person. Thus Holmes in fact did not allow stacking, and the discussion of stacking was unnecessary to the decision.

      . Redmann, J., dissents from refusal of rehearing to State Farm, especially as to the third-party demand, because of the supreme court’s declaration, in remanding this very case to this court, 388 So.2d 755, 757, n.5, “the uninsured motorist insurer [State Farm], if cast in judgment, would be entitled to indemnity from [Mr. Bellow and Mrs. Gusse],” and State Farm’s third-party demand thus asks exactly what the supreme court has said State Farm should have.