text:
    STATE of Louisiana, In the Interest of the Minor, Tonya Reshell McGRUDER.
    No. 7683.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.

      Walter Edward Keller, Southwest La. Legal Services, Lake Charles, for curator ad hoc, the mother, Marilyn McGruder.
    Ronald A. Rossitto, Asst. Dist. Atty., Lake Charles, for the State of Louisiana.
    Raggio, Cappel, Chozen & Berniard, Stephen A. Berniard, Jr., Lake Charles, for Louisiana Health and Human Resources.
    Jack Rogers, Lake Charles, for Curator ad hoc, Juvenile Tonya R. McGruder.
    John S. Hood, Lake Charles, for Curator ad hoc, Absentee father, Willie Rose.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   DOUCET, Judge.

This is an abandonment proceeding initiated by the State of Louisiana pursuant to LSA-R.S. 9:403. A hearing was held on October 5, 1979, at which the minor child, Tonya Reshell McGruder, and her alleged father, Willie Rose, were represented by curators appointed by the Court. The child’s mother, Marilyn McGruder, was represented by privately retained counsel. After a hearing, Tonya was decreed to be an abandoned child within the meaning of LSA-R.S. 9:401-407, and her custody was awarded to the Louisiana Department of Health and Human Resources, Office of Human Development. Marilyn McGruder appeals. The child and her alleged father have not appealed, or answered the appeal.

At the outset, we note that the curator appointed to represent the minor child has submitted a brief in which he argues that this matter should be remanded for a new hearing because of the trial judge’s refusal to grant a continuance pursuant to a motion that he filed on October 5, 1979, the day of the hearing. The grounds for the motion were that the child was denied effective counsel, because he was not given adequate time to prepare. The record indicates that although these proceedings were initiated by the State on August 6, 1979, a curator was not appointed to represent the child until September 28, 1979.

In addition to the fact that we do not believe that this issue is properly before us, because the child neither appealed nor answered the appeal, we find that the record does not support counsel’s assertions that the child was prejudiced or that the trial judge abused his discretion. Accordingly, the request that we remand this matter for a new hearing is denied, and we will address the issues raised by appellant with regard to the merits.

The facts are undisputed. On November 21, 1975, Tonya McGruder, who was then two years old, was taken into protective custody by the State. On December 5, 1975, she was adjudicated a neglected child by the Juvenile Court in and for the Parish of Calcasieu, and she has remained in foster care ever since. Shortly after her adjudication, a child welfare caseworker employed by the Louisiana Department of Health and Human Resources, Office of Human Development, attempted to contact her parents. The attempt to locate her father, Willie Rose, was unsuccessful, but the caseworker was able to find appellant, Marilyn McGru-der.

Arrangements were made by the caseworker for visits between the child and appellant. The visits, which were usually for a period of one hour, were infrequent, because appellant repeatedly broke appointments and failed to respond to letters sent by the caseworker. In 1976, she visited with her child a total of five times. The visits took place on March 26, May 7, June 11, July 20, and September 3. In 1977, there were four visits. They were on April 22, July 1, August 19, and November 21. In 1978 there were only three visits. They took place on May 5, August 18, and November 21.

On November 21, 1978, the date of the last visit, the child’s caseworker discussed with appellant the need for regular monthly visits so that some sort of relationship could be built up between she and the child. The caseworker also encouraged her to contribute to the child’s financial support, if possible. After the discussion, appellant agreed to visit once a month and to contribute $50.00 per month for Tonya’s support. There were no visits in 1979. Appellant failed to respond to letters sent by the child’s caseworker and made no attempt to arrange for a visit until September 5, 1979, subsequent to the filing of the petition for these proceedings on August 6, 1979.

The trial judge concluded, after hearing all of the evidence, that Tonya had been abandoned within the meaning of LSA-R.S. 9:401-407. Appellant argues that he erred in doing so, because he applied the wrong legal standard. She contends that he based his decision on what he felt would be in the best interests of the child, rather than on a finding that the statutory requirements had been met. Those requirements are set out in LSA-R.S. 9:403(A), which provides:

“A. If any child has been deserted for a period of at least four months by his parent and the whereabouts of his parent are unknown and the parent has made no provision for the child’s care, or the parent has refused to provide for the care and support of the child for a period of at least four months under circumstances showing an intention to permanently avoid all parental responsibilities, the child shall, after proceedings hereinafter set forth, be considered an abandoned child. However, this Part shall not be construed to require physical care of a child by a parent to whom custody has been denied or from whom custody has been removed by a court of competent jurisdiction.”

We find nothing in the record to indicate that the trial judge was not fully aware of those requirements or that he did not find that they had been satisfied before rendering his decree. Appellant’s contention that he applied “the best interests of the child” standard is obviously based on his comments at the close of the evidence. It is clear from a reading of those comments, however, that they were not intended to be an explanation of the technical aspects of the applicable law. They were meant to explain to appellant the reasoning behind what must surely have seemed to her to be an extremely harsh law. We do not believe that the trial judge’s efforts to reassure appellant that the child would be benefited by his decision can be reasonably construed as an indication that he was applying an incorrect legal standard.

Appellant also argues that the State failed to carry its burden of proof. We disagree. The State established that there was a pattern of decreasing visits during the extended time that the child was in foster care, which, culminated in appellant’s absence for roughly eight months prior to the institution of these proceedings. Appellant offered several explanations for her absences and her failure to provide for the care and support of her child. However, we find them unpersuasive.

The only explanation which might reasonably have accounted for the long term nature of appellant's behavior was her claim that her mental state prevented her from doing more. Mrs. Julia Kaough, the child’s current caseworker, testified that she' believed that appellant was drawing S.S.I. benefits because she had been diagnosed as having a disabling mental illness known as “chronic undifferentiated schizophrenia”. Appellant testified that she had been treated at a state hospital for mental illness and that after her release from the hospital she had continued taking prescribed medication for the treatment of her illness. According to appellant, the medication made her feel like she didn’t want to be bothered with anyone. However, there was no evidence showing the kind of medication that appellant was taking, nor was there any expert testimony as to the effect that it might have had on her behavior.

It is well settled that all reasonable doubt should be resolved against entering a decree of abandonment, which is in derogation of the natural rights of a legitimate parent. In the Interest of Shumaker, 341 So.2d 583 (La.App. 2nd Cir. 1977); In the Interest of Jackson, 312 So.2d 912 (La.App. 4th Cir. 1975). However, we cannot agree with appellant that her uncorroborated, self-serving statements created a reasonable doubt. We do not find manifest error in the trial judge's finding that appellant refused to provide for the care and support of her child under circumstances showing an intention to permanently avoid all parental responsibilities.

For these reasons, the judgment of the district court is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    John WALLACE, Plaintiff, v. PAN AMERICAN FIRE & CASUALTY COMPANY et al., Defendants-Appellants-Appellees.
    No. 7684.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.

      Bolen & Erwin, James A. Bolen, Jr., Alexandria, for defendants-appellants-appel-lees.
    Stafford, Stewart & Potter, Grove Stafford, Jr., Alexandria, for defendants-appel-lees-appellants.
    Plauche, Smith, Hebert & Nieset, A. Lane Plauche, Lake Charles, Gist, Methvin, Hughes & Munsterman, H. B. Gist, II, Alexandria, Roy B. Tuck, Jr., Jackson, Smith & Ford, Simeon Chris Smith, III, Leesville, for defendant-appellee.
    Hardy 0. Hicks, in pro. per.
    Before DOMENGEAUX, FORET and CUTRER, JJ.
   DOMENGEAUX, Judge.

Today we write another chapter in the odyssey of the Evans High School Explosion. This remarkably protracted litigation originated a decade ago on October 23, 1970, when the original plaintiffs, John Wallace and H. F. McMullen, were severely injured in a gas explosion which rocked the school. After a lengthy trial on the merits, judgment was rendered in favor of plaintiffs and against several of the defendants. On appeal, this Court affirmed the trial court’s findings with respect to negligence and damages but remanded the cases to the trial court for consideration of the third party demands, which had not been disposed of in the signed judgment. Wallace v. Pan American Fire & Casualty Company, 352 So.2d 1048 (La.App. 3rd Cir. 1977), and McMullen v. Pan American Fire & Casualty Company, 352 So.2d 1058 (La.App. 3rd Cir. 1977), writs refused (both cases) 354 So.2d 209 (La.1978).

On this appeal from the trial court’s dismissal of certain third party demands, Wallace and McMullen are no longer involved in the lawsuit, having collected their judgments from certain of the defendants. The remaining cast of characters includes only those defendants found to be negligent towards the plaintiffs in the original opinion of the trial court. Those defendants are:

(1) H. L. Hunt (Hunt), and its insurer, Fidelity and Casualty Company of New York (Fidelity);

(2) Wanda Petroleum Company (Wanda), and its insurer, Insurance Company of North America (INA);

(3) Hardy 0. Hicks (Hicks); and

(4)Jesse Scoggins, d/b/a Star Butane Company (Star Butane), and its insurer, Pan American Fire & Casualty Company (Pan American).

In our previous opinion (352 So.2d 1048 at 1050) we listed those third party demands seeking indemnity and/or contribution which had been filed by some of the above named defendants, as follows:

“. . . (a) Jesse Scoggins d/b/a Star Butane and its insurer, Pan American filed a third party demand against Wanda and Hunt and their insurers seeking indemnity; (b) Wanda and its insurer, ICNA filed a third party demand seeking indemnity and/or contribution from Hunt' and his insurer, Fidelity; (c) Hunt, Hunt Oil Co., Hunt Petroleum Co. and Fidelity filed a third party demand against Jesse Scoggins, d/b/a Star Butane and Pan American seeking indemnity and/or contribution.”

As stated previously, the third party demands were remanded for further consideration because they had not been disposed of by the trial court.

Subsequent to the remand, both Hunt and Wanda were allowed to amend and supplement their third party demands by adding as defendants Hardy O. Hicks and Pan American as the executive officer insurer of Shawson Gas and Motor Company, Inc. (Shawson Gas). Wanda also added Star Butene and its insurer, Pan American, as third party defendants, claiming indemnity and/or contribution.

Thereafter, by judgment rendered October 9, 1978, and signed March 7, 1979, District Judge James C. Terrell, Jr., maintained peremptory exceptions of no cause of action and res judicata filed by Pan American as the liability insurer of the executive officers of Shawson Gas to the amended third party demands of Hunt and Wanda and their insurers, Fidelity and INA. He also maintained the peremptory exception of “no cause or right of action” filed by Star Butane and Pan American to the amended third party demands of Hunt, Wanda, and their insurers. Thus, the third party demands of Hunt and Wanda and their insurers against Star Butane and Pan American (both as insurer of Star Butane and as insurer for the executive officers of Shawson Gas) were dismissed. Both Wanda and Hunt filed motions for a new trial. The motions were denied orally on July 9, 1979, and the judgment accordingly was signed on August 1, 1979.

Hunt then filed peremptory exceptions of no cause of action, no right of action, res judicata, and prescription to the third party demands of Star Butane and Pan American and of Wanda and INA. A signed judgment denying each of these exceptions was rendered on September 27, 1979.

Thereafter, Hunt and Wanda appealed from the maintaining of Star Butane’s and Pan American’s exceptions and consequent dismissal of their third party demands against Star Butane and Pan American. Additionally, Hunt has “appealed” from the denial of his exceptions against the third party demands of Star Butane and Pan American and Wanda and INA. Both Hunt and Wanda have also appealed from the trial court’s denial of a new trial.

DECIDING ON THE MERITS

When we earlier remanded this case, we intended only that the trial court render judgment on the third party demands. We were prevented from ruling on the third party demands only by the well-settled rule that no appeal lies from a judgment before it is signed, and not because the third party demands were not submitted for decision. Our review of the voluminous record reveals that the failure to dispose of the third party demands was apparently due to an oversight. None of the parties can seriously contend that the trial court was not called upon to decide all issues — including all third party demands — at the conclusion of the trial. Forty-five witnesses were called by the various parties, producing over 3,000 pages of testimony; fourteen volumes of exhibits were introduced into evidence, and the Judge wrote a thirty page opinion thoroughly explaining the issues of negligence and damages. Also, when the case was appealed to this Court for the first time, the parties referred to their third party demands and briefed their contentions in connection therewith, as though the third party demands were ripe for appellate review.

Because there is now a signed judgment dismissing the third party demands of Hunt and Wanda against Star Butane and Pan American (both as insurer for Star Butane and as executive officer insurer for Shaw-son Gas) we will consider the merits of those demands on the basis of facts developed at the original trial.

HICKS: EXECUTIVE OFFICER?

Both Hunt and Wanda (and their insurers) strenuously urge this Court to rule that the trial court erred in sustaining the peremptory exceptions of Pan American as the insurer for the executive officers of Shaw-son Gas. Each invites us to remand the case to allow them to prove that Hardy 0. Hicks was an executive officer of Shawson Gas and was therefore insured by Pan American at the time of the explosion. These third party plaintiffs reason that, although Pan American was released by plaintiffs (Wallace and McMullen) as the executive officer insurer for Ralph and Vernon McRae (the owners of Shawson Gas who were found by the trial court to be free of negligence towards the plaintiffs), the plaintiffs never released Hicks and, in fact, expressly reserved their rights to proceed against him. Since Hicks was found to have been negligent, they argue, they now have a statutory right to proceed against him and his insurer (allegedly Pan American) for contribution. (See C.C. Art. 2103).

Although the third party demands of Hunt and Wanda against Hicks and Pan American were non-existent when we first heard the case (since the amendments were made after remand), the record reveals that the issue of whether Hicks was an executive officer of Shawson Gas was contested during the trial. The evidence in the record (which, on this issue, consists mostly of testimony by Hicks and Vernon McRae) indicates that Hicks was only a service and installation employee who had worked for Shawson Gas for more than twenty years prior to the accident. He was not an officer, director, or stockholder of Shawson Gas, and he had no administrative or corporate decision-making duties. There were no facts tending to show that Hicks was an executive officer, other than that he was performing a task over which Vernon McRae, the President of Shawson Gas, had supervision. During the trial, the Court commented on this delegation of duty:

“The way I look at it Hardy 0. Hicks was working for Shawson Gas, and Mr. [Vernon] McRae was president of the corporation, and he put him in charge to do that work — the work that Hardy Hicks did, and he thought well enough of him to let him work on his own without checking behind him. That’s what I got out of it.”

The delegation of executive officer duties to a duly qualified subordinate does not necessarily elevate the subordinate to executive officer status. Determination of whether an employee is an executive officer is largely a factual issue. Hadrick v. Diaz, 302 So.2d 345 (La.App. 1st Cir. 1974); Crandall v. Scott, 350 So.2d 922 (La.App. 4th Cir. 1977). Under this set of facts, we find that Hardy Hicks was not an executive officer of Shawson Gas. Hardy Hicks simply was an experienced service and installation employee who was not in need of constant supervision. Accordingly, we affirm the judgment insofar as it dismisses the third party demands of Hunt, Wanda, and their insurers against Pan American as the insurer of the executive officers of Shawson Gas.

DEMANDS AGAINST STAR BUTANE

We conclude that the trial court judgment dismissing the third party demands of Hunt and Wanda and their insurers, Fidelity and INA, against Star Butane and Pan American (as Star Butane’s insurer) is correct. The dismissal arises from a factual determination by the trial court that the fault of all four negligent defendants, Hunt, Wanda, Star Butane and Hicks, contributed equally to the explosion and resulting injuries.

Hunt asserts that it is entitled to contribution from Star Butane for the latter’s virile share of damages. This claim is denied. The trial court reduced the plaintiffs’ judgment by one-fourth — Star Butane’s virile share — because of the plaintiffs’ earlier settlements with Star Butane. In essence, the release granted by the plaintiffs served as an acknowledgement that Star Butane had already paid its virile share. Consequently, there is no basis for Hunt’s claim of contribution.

Hunt and Wanda both argue that they are entitled to indemnity from Star Butane and Pan American because Star Butane committed negligence which was primary and substantial, or active, whereas the negligence of Hunt and Wanda was merely technical or passive. Thomas v. W & W Clarklift, Inc., 365 So.2d 913 (La.App. 4th Cir. 1978); Philip R. Farnsworth & Company, Inc. v. State, Department of Highways, 277 So.2d 500 (La.App. 1st Cir. 1973), writ denied 281 So.2d 740 (La.1973).

The active/passive negligence issue is one which must be decided upon the facts of each case. In his thirty page opinion (after the original trial) the trial judge found that:

“. . . the negligence of Hunt, Wanda, Star Butane and Hardy Hicks all equally contributed to this accident. The negligence of each was a cause in fact of the accident and each breached a duty to the plaintiffs herein which led to and was a proximate cause of the accident and the injuries.”

The court was concerned with the negligence of defendants towards plaintiffs and did not consider whether the negligence of the defendants was passive or active for indemnity purposes. However, our analysis of the facts as found by the court persuades us that the negligence of Hunt and Wanda was at least equal to that of Star Butane.

True, neither Hunt’s or Wanda’s was the hand that lit the match that ignited the gas which caused the explosion that injured the plaintiffs. Yet, both were found negligent. The Judge reasoned that each breached an affirmative duty to guard against and protect others from the inherent dangers involved with un-odorized or under-odorized gas. This duty arises from the Louisiana Liquified Petroleum Gas (LPG) Commission regulations which impose a duty upon all manufacturers and distributors of liquefied petroleum gas to use proper means to insure that a malodorant is applied to all gas that is destined for commercial uses. Star Butane’s negligence resulted solely from its breach of the same duty owed by Hunt and Wanda.

Because Hunt, Wanda, and Star Butane each breached a duty to odorize the gas, we find that Star Butane’s fault is not greater than the fault of Hunt or Wanda and the claims for indemnity by the latter two against Star Butane on the basis of active/passive negligence are without merit and were properly dismissed.

DENIAL OF HUNT’S EXCEPTIONS

In an effort to finally dispose of all issues in this case, Hunt has “appealed” from the denial of its peremptory exceptions. A judgment which dismisses or denies a peremptory exception is an interlocutory judgment. Such a judgment is not appealable in the absence of a showing of irreparable harm. La.C.C.P. Art. 2083; Jarvis v. Lafayette General Hospital, 373 So.2d 1000 (La.App. 3rd Cir. 1979), reversed in part on other grounds, 378 So.2d 430 (La.1979); Millet v. Johnson, 352 So.2d 1301 (La.App. 4th Cir. 1977); Thibaut v. Thibaut, 346 So.2d 809 (La.App. 1st Cir. 1977), application denied, 349 So.2d 1269 (La.1977). Proof that the interlocutory judgment will cause further delay, increased labor, and added expense is not sufficient to show irreparable injury. Smith v. Hartford Accident & Indemnity Co., 195 So.2d 743 (La. App. 1st Cir. 1967), application not considered, 250 La. 642, 197 So.2d 898 (1967).

This Court recognizes that Article 5, Section 10 of the Louisiana Constitution of 1974 expressly provides that a Court of Appeal has supervisory jurisdiction over cases in which an appeal would lie to it. However, this Court has adopted and adheres to the policy that such supervisory jurisdiction will be used sparingly. Chambers v. Ortho Pharmaceutical Corp., 383 So.2d 46 (La.App. 3rd Cir. 1980); Alexander v. Administrator, Division of Employment Security, 302 So.2d 64 (La.App. 1st Cir. 1974).

Since appellant Hunt has made no showing of irreparable harm which would entitle him to review under La.C.C.P. Article 2083, his request that we review the trial court’s denial of his exceptions is denied, and the third party demands of Wanda and Star Butane against Hunt will be remanded to the District Court for further proceedings.

REQUEST FOR NEW TRIAL

Both Hunt and Wanda have appealed from the trial court’s denial of their motion for a new trial. Hunt concedes that the jurisprudence accords the trial court great discretion in granting a new trial. Southern Natural Gas Company v. Roland, 123 So.2d 891 (La.1960); Renz v. Texas & Pacific Railway Company, 138 So.2d 114 (La.App. 3rd Cir. 1962). The appellate courts will not interfere in decisions of the trial court denying motions for a new trial unless there has been a clear abuse of discretion. Allen v. Riley Mobile Home Sales, Inc., 307 So.2d 773 (La.App. 3rd Cir. 1975). In light of our decision today, which affirms the trial court judgment (albeit for reasons other than those given by the trial court), we find that the trial court did not abuse its discretion in denying the motions for a new trial.

DECLINATORY EXCEPTION

In brief, counsel for Hunt suggests that one issue for our consideration is: “Whether the Trial Court erred in maintaining the declinatory exception of improper citation and insufficiency of service of process filed on behalf of Hardy 0. Hicks.”

The trial court sustained numerous exceptions advanced by several parties. Hunt specifically limited its appeal to those issues previously discussed herein. Its appeal did not raise as an issue the correctness of the court’s ruling on the declinatory exception. Accordingly, we will not consider the issue as it is not properly before us.

DECREE

For the above and foregoing reasons, the judgment of the district court is affirmed in all respects. The consolidated cases will be remanded to the trial court for further proceedings on the third party demands of Star Butane, Pan American, Wanda, and INA, against Hunt and Fidelity. All costs on appeal are divided between Hunt and Wanda and their insurers, with Hunt and its insurer, Fidelity, liable for two-thirds, while Wanda and its insurer, INA, are liable for one-third.

AFFIRMED AND REMANDED.

      . This case is consolidated with McMullen v. Pan American, 386 So.2d 164 (La.App. 3rd Cir. 1980) (Docket No. 7685), which follows this case. All issues are common to both cases and are discussed in this case only.

      . Before the trial was completed, Scoggins & Pan American settled the claims against them and were released by the plaintiffs. Accordingly, the judgment of each plaintiff was reduced by one-fourth after the trial court found Scog-gins to have been negligent.

      . Before the trial was completed, Shawson Gas and Pan American, its insurer, were also released by the plaintiffs after a settlement was reached. However, the trial court found Vernon McRae, the executive officer in charge of overseeing the operations at the Evans School, to be free of any negligence towards plaintiff.

      . Many other exceptions were maintained at that time but no others have been appealed, so they are not before us.

      . Wallace v. Pan American, supra; Rourke v. Coursey, 334 So.2d 480 (La.App. 3rd Cir. 1976); DiSalvo v. Picard, 303 So.2d 900 (La.App. 1st Cir. 1974).

      . We further note that judgment for the plaintiffs was rendered against Hunt, Wanda, their insurers, and Hicks. Star Butane and Pan American were not cast in judgment.

      . We find it unnecessary to decide whether the negligence of Hunt, Wanda, and Star Butane was active or passive, since we need only find that the negligence of Star Butane did not exceed that of Hunt and Wanda.


text:
    H. F. McMULLEN, Plaintiff, v. PAN AMERICAN FIRE AND CASUALTY COMPANY et al., Defendants-Appellants-Appellees.
    No. 7685.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.
    Bolen & Erwin, James A. Bolen, Jr., Alexandria, for defendants-appellants-appel-lees.
    Stafford, Stewart & Potter, Grove Stafford, Jr., Alexandria, for defendants-appel-lees-appellants.
    Plauche, Smith, Hebert & Nieset, A. Lane Plauche, Lake Charles, Gist, Methvin, Hughes & Munsterman, H. B. Gist, II, Alexandria, Roy B. Tuck, Jr., Jackson, Smith & Ford, Simeon Chris Smith, III, Leesville, for defendant-appellee.
    Hardy 0. Hicks, in pro. per.
    Before DOMENGEAUX, FORET and CUTRER, JJ.
   DOMENGEAUX, Judge.

This is a companion case to Wallace v. Pan American Fire & Casualty Company, 386 So.2d 158 (La.App. 3rd Cir. 1980), (Docket Number 7684), also decided this day. The pertinent facts and all the issues are common to both cases and are fully discussed in the Wallace case.

For the reasons provided in the Wallace case, the judgment of the district court is affirmed in all respects. The consolidated cases will be remanded to the trial court for further proceedings on the third party demands of Star Butane and Pan American, Wanda and INA, against Hunt and Fidelity. All costs of this appeal are assessed against Hunt, Wanda, and their insurers, with Hunt and Fidelity cast for two-thirds of the costs, and Wanda and INA cast for one-third.

AFFIRMED AND REMANDED.


author: CUTRER, Judge. FORET, Judge,

text:
    Joseph FONTENOT et al., Plaintiffs-Appellees, v. AMERICAN FIDELITY FIRE INSURANCE COMPANY, Defendant-Appellant.
    No. 7692.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.

      Franklin, Moore & Walsh, Ray C. Dawson, Baton Rouge, for defendant-appellant.
    Tate, Tate & Tate, Paul C. Tate, Mamou, plaintiff-appellee.
    Before DOMENGEAUX, FORET and CUTRER, JJ.
   CUTRER, Judge.

This is a tort suit arising out of an automobile-bicycle collision which occurred on August 2, 1977, in Eunice, Louisiana. Joseph Fontenot, as father and administrator of the estate of his minor son, Charles Ray Fontenot, sued American Fidelity Fire Insurance Company (American). American answered, resisting coverage, asserting that the automobile involved in the accident was no longer owned by their named insured. Defendant further denied any negligence on the part of the driver of the automobile, Rhonda Pomier, and alternatively, that plaintiff’s son was contributorily negligent. The trial court held in favor of plaintiff and against defendant on all issues.

Defendant assigns as error:

(1)That the trial court erroneously concluded that the defendant insured the 1968 Ford Mustang automobile involved in the accident;
(2) That, assuming arguendo, that American provided coverage for the accident involved herein, the court erroneously concluded that there was negligence on the part of the driver of the insured vehicle; alternatively, the court erred in not finding that the plaintiff’s son was contributorily negligent;
(3) That, assuming arguendo, if this court finds that there was negligence on the part of the driver of the vehicle and no contributory negligence on the part of the plaintiff’s son, the trial court’s award was excessive; and
(4) That the trial court erred in granting judgment on an incomplete record.

The record shows that the automobile involved in the accident was being driven by Rhonda Pomier. The automobile, a 1968 Ford Mustang, was purchased by Miss Po-mier with her own funds which she had received by inheritance. At the time of the purchase, she was a minor, sixteen years of age, and living with her sister, Elaine Manuel, who had qualified as her tutrix. Rhonda purchased the automobile with the consent of her tutrix. The automobile was titled in Elaine’s name on the advice of the dealer that it could not be titled to the minor’s name. Elaine obtained insurance from Buford Perron Insurance Agency of Mamou to cover the automobile. However, Rhonda paid the insurance premium with her own funds. Some time before the accident, Rhonda went to live with her brother, Randall Pomier, and, in connection with this move, Elaine signed the title papers of the automobile to Randall. However, the insurance policy remained in Elaine’s name up through the time of the accident. The evidence is in dispute as to whether or not Perron Insurance Agency was asked to change the policy from Elaine to Randall. However, we see no great significance in this connection, as will be more fully discussed below.

The record shows further that Buford Perron of Perron Insurance Agency knew that although the automobile was titled to Elaine Manuel, it would be driven primarily by Rhonda, the placing of the certificate of title in the name of Elaine Manuel being merely for convenience, and because of the fact that Rhonda was a minor. As stated above, the premiums on the insurance policy were paid by Rhonda and accepted by Perron. The vehicle was maintained and used exclusively by Rhonda Pomier, another fact which was well known to Perron Insurance Agency.

It is the opinion of this court that although the title to the automobile at the time of the accident was in the name of Randall Pomier, the owner was Rhonda Po-mier. A Louisiana certificate of title is only an indicia of ownership. Rhonda used and controlled the vehicle to the exclusion of all other persons; she had immediate dominion over it, and had more than a beneficiary right in it. See LSA-C.C. articles 488 and 489. Agent Perron knew that the risk being insured was that of Rhonda’s operation of this vehicle. The insuring of this risk was no more or less burdensome on American whether title was in the name of Mrs. Manuel or Randall Pomier, or Rhonda' herself.

In Bonadona v. Guccione, 362 So.2d 740 (La. 1978), the Supreme Court dealt with a coverage issue not unlike the one presented here. In that case, an insurance policy covered liability for injuries arising out of operation of a motel. The named insureds were the original owners-operators. The motel was then leased to tenants-operators; the policy was renewed, with the tenants paying the premium. No formal change or addition to the named insured was made; however, the policy covered the same premise and risks. A motel guest was injured during the tenant’s operation of the motel and he sued to recover damages thereby sustained. The insurer denied coverage, urging that it was not liable since it insured solely the owners of the motel and not the lessee against liability arising out of the operation of the motel.

The court of appeal reversed the trial court and held that plaintiff had not proved a reformation of the policy by clear and convincing evidence.

The Supreme Court, in reversing the court of appeal and reinstating the judgment of the trial court stated, at page 743:

“Where an insurance policy is issued to cover certain risks of a named insured, if these risks are transferred to or assumed by another person who continues to pay the insurance premiums for their coverage, the insurer is bound by the knowledge of its agent and is estopped to deny its liability or the reformation of its policy to cover such risks incurred by the other person, when it has accepted the payment of premiums from or for him knowing of the change or addition of insured expressly or impliedly intended (even though there has been no formal endorsement reflecting the change or addition of insured) — at least in the absence of proof that the risks thus insured would be different in nature or substantially greater than those initially covered by the policy.” (Citations omitted.)

Although the Bonadona case is factually distinguishable from the case at bar, its ration decidendi is nevertheless applicable here. The agent knew the risk being insured was that of the operation of a vehicle by Rhonda Pomier. The defendant insurer introduced no evidence disputing this, nor was any evidence introduced showing that the representations made to Agent Perron by the named insured and Rhonda Pomier were false and made with the intent to deceive or that the representations materially affected either the acceptance of the risk or hazard assumed by the insurer. See LSA-R.S. 22:619.

Where an insurer is held liable in fact for the identical risk for which it issued the policy and that insurer has acquiesced in an arrangement whereby the risk for which the policy was issued will be the same no matter who the named insured is, a subsequent transfer of title to another without increasing the risk to the insurer is consented to impliedly by the continued acceptance of premiums from the premium payer.

Here, the situation created by the transfer of title created no greater risk for the insurer. To hold otherwise would allow a windfall to an insurer which collects premiums from one who reasonably believes he is provided coverage but is denied the expected coverage.

Our courts have recognized the rule that a written contract of insurance can be reformed to conform to the original intention of the parties thereto, whether for mutual error or for fraudulent, negligent, or mistaken conduct on the part of the agent issuing the policy. If an agent has knowledge of the true intention of the policyholder as to the coverage sought, the insurer is bound by the agent’s knowledge, and the policy thus issued will be reformed to conform to the original intention. Hebert v. Breaux, 285 So.2d 829 (La.App. 1st Cir. 1973); Anderson v. Sciambra, 310 So.2d 128 (La.App. 4th Cir. 1975), writ denied, 313 So.2d 835 (La. 1975); Urania Lumber Co. v. Insurance Company of North America, 177 So.2d 640 (La.App. 3rd Cir. 1965).

We conclude that Elaine Manuel, the sister of Rhonda Pomier, was acting in the interest of her younger sister in procuring the policy herein discussed and that she intended to obtain appropriate insurance against Rhonda Pomier’s liability, and that the insurer intended to insure the risk arising out of the operation of the vehicle by Rhonda Pomier. Transfer of title to Rhonda’s brother, Randall, during the policy period did not affect coverage of Rhonda Po-mier.

NEGLIGENCE OF RHONDA POMIER

We now address the issue of the negligence vel non of Rhonda Pomier. Rhonda Pomier was traveling west on Laurel Avenue (U.S. Highway 190) through Eunice. She was proceeding in the right lane, intending to make a right turn into a service station situated on the north side of Laurel Avenue. Her sister, Elaine, had already arrived at the station and was waiting for Rhonda. Plaintiff’s son was traveling east on a sidewalk which traversed the southern edge of the service station lot and the northern edge of Laurel Avenue. A second vehicle was emerging from the station at the time of the accident. When Miss Pomier turned into the station lot, her vehicle struck the plaintiff’s son and the bicycle he was riding.

Defendant alleges that its insured could not see the boy soon enough to stop because the emerging vehicle blocked her vision. The station has two exit/entrances on its southern side. Miss Pomier testified that the vehicle was exiting through the same passageway that she was entering, i.e., the eastern-most passageway. This would mean that the exiting vehicle would have been approximately two to three feet from the Pomier vehicle at the time the plaintiff’s son appeared from behind said vehicle. Contrariwise, Elaine Manuel testified that the exiting vehicle was leaving through the western-most exit, which would have given Miss Pomier a considerably longer time to recognize and react to the situation. Thus, there is a conflict in the testimony as to which exit the second vehicle was emerging from at the time of the accident. Also, defendant alleges that the bicycle struck the automobile with its front wheel and that the vehicle did not, as plaintiff would have the court believe, strike the rear part or all of the bicycle. Be that as it may, our review of the record reveals no finding of fact by the trial court which can be construed as manifestly erroneous.

CONTRIBUTORY NEGLIGENCE

Defendant argues that the trial court erred in finding Rhonda Pomier negligent and that plaintiff’s son was not con-tributorily negligent.

Charles Fontenot testified that he was riding his bicycle along the sidewalk which traversed the outer portion of the two filling station entrances. As he was so proceeding, he saw the Pomier vehicle proceeding toward him as he was traversing the entrance. He stated that he attempted to avoid the accident by speeding up but this was to no avail. The vehicle suddenly struck him, causing injuries.

As heretofore reiterated, Rhonda’s contention that her view of the bicycle was obstructed by a car leaving the station in the same entrance she was in is without merit. The facts do not support such a contention. Rhonda had a clear view of the entrance and the bicycle proceeding across the entrance. Rhonda was not keeping a proper lookout as she crossed the sidewalk entering the station. The sole cause of the accident was the negligence of Rhonda Po-mier. Charles Fontenot was free of contributory negligence.

QUANTUM

Defendant argues that the amount of damages awarded to plaintiff was excessive.

Immediately after the accident, plaintiff’s son was taken by ambulance to Moosa Memorial Hospital in Eunice. He was treated there by Dr. B. N. Heinen. Dr. Heinen’s diagnosis revealed that Fontenot had a fractured tibial tubercle (posterior), abrasions of the right knee, and a fractured acetabulum (cup-shaped socket in the hip bone). He was x-rayed, given some medication and ultrasonic treatment, and placed in a brace. The knee joint was aspirated on August 5,1977. A subsequent examination on August 25, 1977 showed that Fontenot was improving at a satisfactory rate and had full range and motion in his leg and hip with some mild pain in the right hip. He was still receiving ultrasonic treatment. Prognosis was for a full recovery. Fonten-ot was seen again on September 2, 1977. He was ambulating well and had no complaints of pain. Full range in motion was present in the right knee, leg and hip. Fon-tenot was released from treatment with no permanent disability and could return to his regular activities.

In reviewing the award of damages, we are guided by LSA-C.C. art. 1934(3), which states, in pertinent part:

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

The Supreme Court’s most recent analysis of this article was in Reck v. Stevens, 373 So.2d 498 (La. 1979). In that ease, the court accosted anew and recriticized the practice of using a scale or prior awards given for generically analogous injuries, which practice was previously condemned by Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963) and Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1976). Only when there is a clear abuse of the “much” discretion granted to the finder of fact by LSA-C.C. art. 1934(3) in the award of damages may the reviewing court alter the award. A hypothetical scale of hypothetical awards cannot serve as a guide in determining whether or not this trier of fact has abused its discretion in the award to this particular plaintiff under the facts and circumstances peculiar to this case. Reck v. Stevens, supra.

Finding no abuse of discretion of the trial court in awarding $5,000.00 to plaintiff, we affirm the award.

COMPLETENESS OF THE RECORD

Defendant’s final assignment of error addresses the question of whether or not the trial judge was correct in rendering judgment on the record before it.

At the trial on the merits, counsel for plaintiff sought to introduce additional medical evidence in the form of a doctor bill. This evidence was not previously stipulated to by counsel for defendant and had not been pre-filed into the record pursuant to the pre-trial order. Counsel for defendant objected to the offering. The court then agreed to allow plaintiff to subpoena the bookkeeper of Dr, Heinen in order that plaintiff may attempt to prove the claim. Likewise, the defendant was given an opportunity to rebut and defend against the additional evidence sought to be admitted.

We note at the outset that this matter is largely within the discretion of the trial judge. Smith v. V. V. Sharpe Co., Inc., 379 So.2d 1216 (La.App. 3rd Cir. 1980).

Supreme Court rule 13:4207.1 is authority for the holding open of a note of evidence by a trial court for the taking of additional evidence. This rule provides for a fifteen day period within which parties litigant are to submit additional evidence to the court

The trial was held on September 6, 1979. Written reasons for judgment were assigned on September 27, 1979, and judgment was signed on October 9, 1979. We think that counsel for defendant had ample time within which to make his defense, and find no error or abuse of discretion on the part of the trial judge in rendering judgment as he did. Smith v. V. V. Sharpe Co., Inc., supra.

For the reasons assigned, the judgment of the trial court is affirmed. All costs of these proceedings are assessed against American Fidelity Fire Insurance Company.

AFFIRMED.

FORET, J., concurs with written reasons.

FORET, Judge,

concurring.

I concur in the result arrived at by the majority. However, I cannot agree with the majority on the contributory negligence issue.

Baumgartner v. State Farm Mutual Auto. Ins. Co., 356 So.2d 400 (La.1978) marked the demise of the plea of contributory negligence as a defense to a claim arising out of a pedestrian-automobile collision. In Baumgartner, the Supreme Court adopted the “humanitarian doctrine” and held that a defendant could not avail itself of the plea of contributory negligence against a pedestrian who was struck by an automobile while he was in a marked crosswalk. In so holding, the Court stated:

“. . . The operator of a motor vehicle, a dangerous instrumentality, has the constant duty to watch out for the possible negligent acts of pedestrians and avoid injuring them. A higher standard of care than that required of pedestrians is imposed upon the motorist commensurate with the hazards his conduct inflicts upon the public safety. Therefore, he should not be able to escape responsibility for injury to the pedestrian by pleading the latter’s negligence. And since, in such case, a plaintiff’s contributory negligence will not bar his recovery, the last clear chance doctrine, used to avoid the harsh effects of the contributory negligence defense, is not at issue.”

In the recent case of Widcamp v. State Farm Mutual Automobile Ins. Co., 381 So.2d 937 (La.App. 3 Cir. 1980), this Court applied the Baumgartner rationale to a situation involving an eight-year-old pedestrian who was not in a marked crosswalk when struck by an approaching vehicle. We held Baumgartner applicable to pedestrians not in marked crosswalks, stating:

“We agree with plaintiff that Baumgart-ner does not appear to be limited to pedestrians at crosswalks. Defendants herein cite the recent case of Osby v. Harris, 375 So.2d 181 (La.App. 2 Cir. 1979) which states that Baumgartner was inapplicable in that case because Baum-gartner is applicable only to pedestrian-crosswalk accidents. As stated above, we do not agree that Baumgartner is strictly limited to crosswalk accidents. . . . ”

Again, in Hryhorchuk v. Smith, 379 So.2d 281 (La.App. 3 Cir. 1979), writs granted, 381 So.2d 1225 (La.1980), we applied Baumgart-ner to a pedestrian-automobile accident wherein the plaintiff was not in a marked crosswalk.

After a careful study of Baumgartner and the policy and reasons underpinning that decision, I believe that a plea of contributory negligence is not a defense to a bicycle-automobile collision. Bicyclists frequently traverse the same areas pedestrians do and are subject to virtually the same perils of the highway. Bicyclists are equally vulnerable to injuries resulting from collisions with automobiles as are pedestrians.

      . LSA-C.C. art. 488 states:
      “Ownership is the right by which a thing belongs to some one in particular, to the exclusion of all other persons.”
      LSA-C.C. art. 489 states:
      “The ownership of a thing is vested in him who has the immediate dominion of it, and not in him who has a mere beneficiary right in it.”
      Articles 488 through 498 of the Louisiana Civil Code of 1870 were amended by Acts, 1979, #180, § 1, effective January 1, 1980, and their substance is reproduced in Revised Articles 477 through 482. Revised Article 477 is based on Articles 488 and 491 of the Louisiana Civil Code of 1870 and does not change the law. Official Revision Comment “Ownership”, Book II, Title II, Chapter 1, LSA-C.C. article 477. Article 489 was suppressed, it being unnecessary and confusing. Exposé des Motifs, “Ownership”, Book II, Title II, Louisiana Civil Code of 1870.

      . “A. Except as provided in Sub-section B of this Section and R.S. 22:692, no oral or written misrepresentation or warranty made in the negotiation of an insurance contract, by the insured or in his behalf, shall be deemed material or defeat or avoid the contract or prevent it attaching, unless the misrepresentation or warranty is made with the intent to deceive.
      “B. In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer.” See also Cousin v. Page, 372 So.2d 1231 (La. 1979).

      . We noted earlier that title is merely an indicia of ownership. In this case title was vested in one other than the owner merely to comply with the statutory requirements dealing with minors, motor vehicles, and for the general convenience of the parties.

      . The standard of appellate review in this State has been clearly enunciated by our Supreme Court in Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978), and numerous times thereafter by the courts of appeal. This rule is now an aphorism which may be applied without resort to superfluous citations in support thereof.

      . “(a) When Submitted. A case or other matter shall be considered as fully submitted for decision to the trial judge and should be decided, immediately upon the. conclusion of trial or hearing, and judgment signed expeditiously thereafter.
      “In an exceptional case when the record has been left open upon the conclusion of trial or hearing for the filing of testimony by deposition and/or documents, such depositions and/or documents shall be filed within fifteen days and the case or matter shall be considered as fully submitted, and should be decided, immediately after such filing or the lapse of fifteen days, whichever occurs sooner.
      “If the court, in an exceptional case, orders post-trial or post-hearing briefs, or orders the transcript prepared, plaintiff shall be allowed a maximum of twenty days within which to file a brief; defendant shall be allowed a maximum of twenty days from the filing or lapse of time for filing plaintiffs brief (whichever occurs sooner) within which to file a brief. If the defendant timely files a brief, plaintiff shall be allowed a maximum of ten days to file a rebuttal brief. When briefs are so ordered, the case or matter shall be considered fully submitted on the day following the day of the latest timely filing of a brief or, at the latest, the day following the last day for filing of briefs. The judge may extend the time for filing a brief for a reasonable period not to exceed the original time granted.
      “If a transcript of the evidence, in an exceptional case, is deemed essential and is ordered by the court, it shall be filed within thirty days following the conclusion of trial or hearing. When necessary, for good cause shown, one extension may be granted by the judge not to exceed an additional fifteen days for filing of the transcript.
      “(b) Reports. Each judge of a district, juvenile, family, parish, city municipal or traffic court shall report to this court, through the office of Judicial Administrator, on or before the tenth day of each month, all cases which have been fully submitted and under advisement for longer than thirty days, together with an explanation of the reasons for any delay and an expected date of decision.
      Added Oct. 14, 1976, effective Jan. 1, 1977.”


author: FORET, Judge.

text:
    Maxine HUKILL et al., Plaintiff-Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY et al., Defendants-Appellees.
    No. 7694
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.
    Writ Refused Sept. 26, 1980.
    Fusilier, Pucheu, Soileau & Cored, C. Brent Cored, Vide Platte, for plaintiff-appellant.
    Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendants-appellees.
    Before DOMENGEAUX, FORET and CUTRER, JJ.

      . Gary M. Ray and Glen D. Ketcherside, who were also plaintiffs herein, compromised their claims prior to trial and are therefore not involved in this appeal.

   FORET, Judge.

The plaintiff, a 42-year-old female, brought this suit seeking to recover damages for the injuries she sustained as a result of an automobile accident. The trial court determined that defendants were liable and awarded the plaintiff damages in the amount of $3,521.90. The appellant brings this appeal, seeking an increase in damages. For the reasons hereinafter discussed, we are of the opinion that the trial court abused its discretion in the award given to plaintiff and same will be increased.

On February 3, 1978, the plaintiff was a guest passenger in an automobile driven by Gary M. Ray. The Ray vehicle was traveling on Louisiana Highway 112 in Rapides Parish. The automobile was traveling at a speed of approximately forty-five to fifty miles per hour. A gravel truck, driven by John C. Ulmer, made a left turn in front of the Ray vehicle, causing the accident. The truck driven by defendant, John C. Ulmer, was insured by the defendant, United States Fidelity and Guaranty Company.

The plaintiff’s injuries consisted of bruises, as well as multiple lacerations to her head, face and legs. The lacerations were treated and sutured at the emergency room of St. Francis Cabrini Hospital in Alexandria.

There is no apparent dispute over the special damages awarded by the trial court. Therefore, the issue on this appeal is limited to quantum for general damages. The appellant argues that the trial court abused its discretion in awarding insufficient damages considering the severity of injuries, pain, suffering, and mental anguish. We agree with appellant, and will amend to increase the trial court’s judgment for reasons that follow.

The record shows that the multiple cuts which plaintiff received as a result of the accident contained numerous small particles of broken glass which had to be removed by a physician. One piece of glass was so severely embedded in plaintiff’s head that it remained there for three days and could not be removed except by a physician. Plaintiff testified that the pain was so severe that she could not touch her head. Plaintiff was rendered unconscious as a result of the blow she received to her head. She remained unconscious for a short period of time immediately subsequent to the accident and prior to her being transported to the hospital by ambulance. The injuries which plaintiff received to her face and left eye required approximately one hundred twenty-five stitches. The record is replete with testimony supporting plaintiff’s statement that:

“Well, I’ll ... I had headaches for quite a few days afterwards. In fact I had to . practically, live on pain pills ’cause the pain was so terrific. And . my eyes bothered me quite a bit. I could ... it was blurry, like, you know, at times . . . ”.

In June of 1978, plaintiff’s family physician, Dr. Barney Fusilier, referred the plaintiff to Dr. Darrell Henderson, a plastic surgeon in Lafayette, Louisiana. Dr. Henderson performed surgery on October 10, 1978, on plaintiff’s face in order to remove the scars left by the accident. Plaintiff described the scars on her face as being rough and prominent, prior to the surgery. It is undisputed that the surgery was quite successful and that there is no serious residual facial disfigurement.

Plaintiff had several bruises and scars on her legs as a result of this accident. These scars were, in the opinion of Dr. Henderson, inoperable. The record shows that there was a scar on plaintiff’s left knee about one and one-half inches long. There was another cut in the right shin area, which could not be sutured, as it was too close to the bone. This cut left a scar of approximately two-and-a-half to three inches long.

For several months after the accident, plaintiff treated herself with cocoa butter or some other type of medicinal ointment in an attempt to mitigate the seriousness of the sears. In order to restore plaintiff’s face as near as possible to its original condition, Dr. Henderson performed a procedure known as a dermabrasion. A dermabrasion is a surgical procedure wherein a diamond wheel, not unlike a grinding wheel used by a mechanic or carpenter, is used to grind down or bray scar tissue. This is done in an attempt to help the scar tissue to blend into the surrounding tissue. Dr. Henderson, in his deposition, described parts of the operation, stating:

“ . . . she was given sedation through a needle in the vein in her arm, brought to the operating room where her face was washed off and sterlized [sic], as much as possible, needle injections of local anesthetic were carried out in all the areas involving the scars, which was as I said, the lower portions of the — the forehead, just above the eyebrow, the upper eyelid, the lower eyelid and the cheek area, all the places where the scars were. The diamond wheel was then used on a rotating device called a striker dermabrator.
******
“It looked like a sanding machine that you might use in a workshop, except on a minature [sic] fashion, and very much like a carpenter would sand a piece of rough wood and this is done with a sterile machine, it’s very small, but it’s the same principle. And all of the scarred areas were sanded, with the exception of the areas near where the letter ‘c’ is.” [referring to a photograph]
* * * * * *
“ . . a Z-plasty was done there which is a surgical procedure where we change the direction of a straight scar into a zig-zag scar.”

On two separate occasions, the plaintiff had to endure substantial pain during the removal of sutures from lacerations she had received. The first incident was shortly after the accident whereupon approximately one hundred twenty-five sutures had to be removed. Plaintiff testified that the pain was so severe that she perspired excessively during the procedure and had to hold on to two nurses until all the stitches were removed. The second time when stitches had to be removed was after the surgery performed by Dr. Henderson.

Dr. Henderson described the scarring of the plaintiff’s face and legs as follows:

“I felt that she had indeed sustained multiple lacerations and injuries from the ' accident and I felt that she — these scars that she had were permanent, inasmuch as any injury which lacerates the skin heals with permanent scar tissue. I did not believe that there would be any surgery that would be beneficial to her for improvement of the scars of the leg, and would recommend that these be left alone.”

The record further shows that the plaintiff suffered great embarrassment from the time of the accident until the time the wounds were surgically healed. The surgery which plaintiff underwent was performed approximately eight months after the accident, and healing was not accomplished for an additional two months thereafter. Plaintiff testified that she was very embarrassed and self-conscious about scars on her face and legs and that,

“I didn’t want to go anywhere. Well, I stayed out of public places for a long time till it was healed.”

At the time of the trial, plaintiff had developed numerous small “beads” underneath the left eyelid which were causing her pain and discomfort. Obviously plaintiff will have to seek further medical attention in regard to this condition.

To compound matters, plaintiff was continually taking a codeine-type pain killer for the severe pain which she suffered. Additionally, she could not go out into the sun for approximately five to eight months after the surgery on the advice of Dr. Henderson. Dr. Henderson felt that exposure to sunlight may cause a change in the pigmentation of the scar tissue thereby making it worse.

After a review of this record, we are of the opinion that plaintiff will always have permanent scars which may decrease in no-ticeability with time. However, Dr. Henderson was of the opinion that several of the scars which plaintiff had, in particular those on her legs, could not be surgically remedied and that the only thing which would improve the coloration of this scar tissue was the passage of time.

Dr. Henderson described the surgery he performed on the plaintiff as being very delicate in that the tissues were very thin and very near the eye. In addition to the one hundred twenty-five stitches originally taken in plaintiff’s face, a myriad of other sutures were required.

On the issue of damages, we observe that Civil Code Article 1934 provides, in the assessment of general damages, “much discretion must be left to the judge or jury . ”. The Supreme Court, beginning in Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963) and concluding in the most recent case of Reck v. Stevens, 373 So.2d 498 (La.1979), has, in unequivocal language, announced the principle that before a court of appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. See also Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1976). Reck v. Stevens, supra, requires that there be an initial inquiry directed at whether the trial court’s award for the particular injuries and their effects upon this particular injured person, is a clear abuse of the trier of fact’s “much discretion” in the award of damages. We have determined that there is an abuse of discretion in this case for the particular injuries and their effects on this particular plaintiff. Secondly, Reck requires that only after an in depth analysis of the facts, which analysis discloses an abuse of discretion, that an award of a trial court may, on appellate review, for articulated reasons, be considered either excessive or insufficient.

We have given a detailed and articulate description of the injuries and subsequent medical history of the plaintiff in this case. Having done so, we have fulfilled the requirements of Gaspard, Coco and Reck. This being the case, we feel a resort to prior awards as a guide in determining what would be an appropriate award for the present case is proper.

In Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971), a jury awarded $60,000.00 in general damages to a seventeen-year-old female guest passenger who had sustained painful injuries resulting in more than one hundred sutures being taken in her face. The injuries she received left her with permanent facial disfigurement and necessitated future plastic surgery. This award was reduced by the appellate court to $25,000.00. On appeal to the Supreme Court, the award was reinstated as being not excessive.

In Billeaud v. United States Fidelity & Guaranty Co., 349 So,2d 1379 (La.App. 3 Cir. 1977), we held that an award of $17,-081.12 to a seventy-eight-year-old school crossing guard who, as a result of being struck by an automobile, suffered an abrasion of the left knee, multiple lacerations, fractured ribs and a bruised kidney, was within the discretion accorded to the trier of fact and would not be disturbed.

In our opinion, the scale of prior awards is nothing more than a vague yardstick which aids our appellate courts in determining a proper award. Many of these cases give merely an idea of what a “ballpark figure” is for the type of injury or injuries sustained by the plaintiff in any given case.

Here, we have reviewed the record with the admonitions of Reck and Coco in mind and have concluded that there was a clear abuse of discretion by the trial court in its award to the plaintiff. After articulating all the facts and circumstances of this case and how these injuries affect this plaintiff, we are of the opinion that the lowest award which the trial court should have made to do substantial justice to the plaintiff is $10,-000.00.

For the above and foregoing reasons, the judgment of the trial court is amended by increasing the award to $10,000.00 for general damages, plus $1,021.90 for special damages, for a total of $11,021.90. The judgment, in all other respects, is affirmed.

The costs of the proceedings in this Court are assessed to the defendant-appellee, United States Fidelity and Guaranty Company.

AMENDED AND AFFIRMED.

      . The damages awarded by the trial court are itemized as follows:
      Pain, suffering, and mental anguish before surgery__ $1,000.00
      Pain, suffering, and inconvenience after surgery_ 1,000.00
      Disfigurement_ 500.00
      Special damages_ 1,021.90
      TOTAL_$3,521.90

      . LSA-C.C. Article 1934(3)

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

      . See also Perniciaro v. Brinch, 384 So.2d 392 (La.1980).


author: LABORDE, Judge.

text:
    Joseph A. COURVILLE, Sr., et al., Plaintiffs-Appellees, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. et al., Defendants-Appellants.
    No. 7706.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.
    Writ Granted Sept. 26, 1980.
    McBride & Brewster, Norman P. Foret, Lafayette, for defendants-appellants.
    Morrow & Morrow, Patrick C. Morrow, Opelousas, for plaintiffs-appellees.
    Richard B. Millspaugh, Opelousas, for defendant-appellee.
    Before GUIDRY, DOUCET and LA-BORDE, JJ.
   LABORDE, Judge.

This appeal is in a suit for personal injuries. Plaintiffs filed suit to recover damages for medical expenses, pain and suffering and property damage caused by an automobile accident which occurred late at night on February 12, 1978 in St. Landry Parish, Louisiana. On the date of the accident, plaintiff Joseph Arthur Courville, Jr. was driving his father’s 1964 GMC pickup truck. Young Courville was a major child living with his parents. Plaintiffs sued Danny P. Richard, the driver of the other vehicle, the driver’s father and State Farm Mutual Automobile Insurance Company (State Farm), the insurance company that had contracted with plaintiff’s father to insure him and members of his household against damages caused by an uninsured motorist. The plaintiffs sought recovery against the insurance company on two policies, one covering the GMC pickup truck and the second covering another vehicle (1968 Oldsmobile) owned by his father; i. e., plaintiffs sought to “stack” the uninsured motorist coverage.

Defendant, State Farm, filed a third party demand against young Richard and his father for amounts for which it might be held liable.

State Farm filed a motion for summary judgment denying that plaintiffs were entitled to “stack” the limits of the two policies. The trial judge denied the motion, but withheld a final ruling on the issue until after trial on the merits.

At the trial on the merits, the defendants stipulated to their liability and to property damage in the amount of $830.50. The only question given to the jury was damages due Joseph Arthur Courville, Jr. The jury returned a verdict in favor of young Courville for $30,000. The judge ruled that plaintiffs could stack the $10,000 limits of the two policies, resulting in State Farm being cast in judgment for $20,000.

From the judgment, State Farm appeals urging that the trial judge or jury erred as follows:

1.denying State Farm’s motion for summary judgment;
2. showing the insurance policies to the jury at the outset of the trial and before finally ruling on the motion for summary judgment;
3. failing to grant State Farm judgment on its third party demand; and,
4. granting the plaintiffs recovery in excess of what they were entitled to recover.

As appellant notes in its brief, the main issue is whether plaintiffs can “stack” uninsured motorist coverage under two policies issued to them by State Farm. A brief chronological review is necessary here. The policy on the GMC truck driven by plaintiff was issued December 15, 1970 and renewed every six months. The policy was amended to increase the limits of uninsured motorist coverage to $10,000 per person and $20,000 per accident on December 15, 1974. The policy on the second Courville vehicle (Oldsmobile) was issued July 19, 1973 and renewed every six months. It was similarly amended on January 14, 1975. Act 623 of 1977 amended LSA-R.S. 22:1406(D)(l)(c), relative to uninsured motorist insurance, to prohibit stacking except under certain designated circumstances. The Act became effective on September 9, 1977. The accident occurred on February 12, 1978.

We have consistently held that a substantive amendment such as this amendment has no retroactive effect on existing insurance contracts. O’Banion v. Allstate Insurance Co., 347 So.2d 878 (La.App. 3rd Cir. 1977); Ryder v. Trisler, 367 So.2d 1257 (La. App. 3rd Cir. 1979); Manuel v. American Indemnity Co., 368 So.2d 1200 (La.App. 3rd Cir. 1979).

However, in the instant case, we find that a new contract of insurance was issued subsequent to the effective date of the Act. We arrive at this holding by looking to the policy itself which is issued for a policy term of six months and is renewed for subsequent six month periods unless the insurer or insured decides not to renew the policy. Since there is no absolute right to insurance beyond six months, the initial insurance contract is limited to that term and each subsequent renewal is a separate contract, even though a new policy is not issued. Fontenot v. State Farm Mutual Insurance Company, 119 So.2d 588 (La.App. 1st Cir. 1960).

LSA-R.S. 22:623 requires insurance contracts to contain such standard provisions as are found in the Insurance Code, i. e., LSA-R.S. 22:1406(DXl)(e). Therefore, the Act is applicable herein. The pertinent language is as follows:

(c) If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subsection D(l), then such limits of liability shall not be increased because of multiple motor vehicles covered under said policy of insurance and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy; provided, however, that with respect to other insurance available, the policy of insurance or endorsement shall provide the following:
With respect to bodily injury to an injured party while occupying an automobile not owned by said injured party, the following priorities of recovery under uninsured motorist coverage shall apply:
(i) The uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary;
(ii) Should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him. In no instance shall more than one coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant.

The trial judge held that plaintiff was an occupant of the vehicle and therefore came within the exception in LSA-R.S. 22:1406(D)(l)(c). The difficulty arises due to the qualifying language of the exception that

(w)ith respect to bodily injury to an injured party while occupying an automobile not owned by said injured party . . (Emphasis added)

Plaintiff, Joseph Arthur Courville, Jr. while an insured under the policy covering the vehicle he was occupying when injured, did not own the vehicle. Is plaintiff an insured or should he be considered an occupant of a non-owned vehicle so as to treat the insurance on the GMC truck as primary and the policy on the Oldsmobile as excess and permit recovery under both?

We recognize, as did the trial judge, that a literal reading of the provisions of the second paragraph of LSA-R.S. 22:1406(D)(l)(c) suggests the result reached by the trial court. However, when the provisions of LSA-R.S. 22:1406(D)(l)(c) are read together and in pari materia it is unclear whether such statutory provision authorizes or prohibits stacking under the facts of the instant case.

The second paragraph, which authorizes limited stacking, addresses itself to the situation where an injured party occupying a vehicle not owned by said party has uninsured motorist coverage available to him other than that being carried on the vehicle in which said party is an occupant. But where the named insured on the uninsured motorist policy insuring the occupied vehicle is also the named insured of the only other uninsured motorist insurance available to the occupant, then stacking would presumably be unavailable under the first paragraph of LSA-R.S. 22:1406(D)(l)(c).

We conclude for the above reasons that application of the provisions of LSA-R.S. 22:1406(D)(l)(c), under the particular facts and circumstances of this case, is ambiguous and therefore we must endeavor to construe these provisions to reflect the intention of the legislature. In doing so we are mindful of the familiar rule of statutory construction that the general purpose and object of the law must be kept in mind and the statute given such a fair and reasonable interpretation as will effect the purpose and object for which it was enacted. See J. M. Brown Construction Company v. D & M Mechanical Contractors, Inc., 275 So.2d 401 (La.1973).

The obvious intent of the Legislature in enacting the provision of LSA-R.S. 22:1406(D)(l)(c) was to limit those instances where stacking is available. Clearly, the exceptions which allow stacking set forth in the statute were intended to allow as excess coverage that insurance available to an injured occupant from sources other than the owner of the insured vehicle which he was occupying. This appears to be so because it would be a legal absurdity to permit double recovery by an occupant by stacking two policies of insurance provided by the insured owner when the insurance owner, who provided the insurance, would be limited to recovery under only one policy. We therefore conclude that when the injured non-owner occupant is an insured under a policy covering the occupied vehicle as well as under another uninsured motorist policy, where both policies are owned by the owner of the occupied vehicle as in the instant suit, then no excess coverage is available as stacking is proscribed under the first paragraph of LSA-R.S. 22:1406(D)(l)(c).

Uninsured motorist coverage covers an insured in limits which he chooses. The limits he chooses are applicable to both himself and other insureds such as members of his family and, therefore, he chooses the limits he desires for them. The concept we find in the exception in LSA-R.S. 22:1406(D)(l)(c) is that plaintiff should be able to avail himself of insurance protection against the risk of injury from an impecunious tortfeasor in amounts which he or his relative has chosen.

In this case, plaintiff need not resort to the exception to avail himself of uninsured motorist coverage in limits which he or his relative has chosen.

Clearly, the situation presented here is exactly what the legislature sought to prohibit. Therefore, we hold plaintiff is unable to “stack” the two policies and increase his recovery against State Farm.

Appellant’s specification that it was error to show both policies to the jury before finally ruling on the motion for summary judgment suggests that they were influenced in their award. Since we treat quantum in response to appellant’s specification number four, we will defer that discussion. We would note that both policies were introduced as evidence and, therefore could be exhibited to the jury.

Appellant’s third specification of error related to its third party demand. We believe the denial of the third party demand is correct under the rule expressed in Niemann v. Travelers Insurance Co., 368 So.2d 1003 (La.1979). Therefore, there is no error.

Appellant claims that $30,000 is an excessive award for plaintiff’s injuries (fracture of right tibial plateau and laceration of left eyebrow) which necessitated wearing of a cast on his leg for six weeks and caused a 12% disability of the right knee. We do not feel it is an abuse of discretion based on our careful review of the record. The award should not be disturbed. See Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976) and Reck v. Stevens, 373 So.2d 498 (La.1979).

For the foregoing reasons, the judgment of the trial court is amended to reduce the judgment against State Farm to $10,000 and is affirmed as amended. Costs of this appeal are assessed in equal shares to appellant and appellee.

AMENDED AND AFFIRMED.


author: GUIDRY, Judge.

text:
    Frederick SOILEAU, Plaintiff-Appellee, v. EVANGELINE FARMER’S CO-OP et al., Defendants-Appellants.
    No. 7710.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.

      Dubuisson, Brinkhaus & Dauzat, Jerry J. Falgoust, Opelousas, for defendants-appellants.
    Fruge & Vidrine, Richard W. Vidrine, Ville Platte, Sessions, Fishman, Rosenson, Boisfontaine and Nathan by Robert C. Lowe, New Orleans, for plaintiff-appellee.
    Before GUIDRY, DOUCET and LA-BORDE, JJ.
   GUIDRY, Judge.

Plaintiff, Frederick Soileau, instituted this suit for damages, alleging as grounds therefor that he purchased 75 bushels of soybean seed, purported to be the “Dare” variety, which in actuality were a mixed variety which caused uneven plant maturity with a concomitant loss of yield and damages to the soybeans harvested. Made defendants were Evangeline Farmers Co-op, Inc. (Evangeline); Southern Farmers Association (SFA); Collier-Cain-Alexander Seed and Grain Company (Collier); and Miller Mutual Insurance Company, insurer of Evangeline.

Plaintiff purchased the soybean seed in question on April 24, 1978, from Evangeline, a Louisiana corporation. Evangeline had purchased the seed from SFA, a foreign corporation authorized to do business in Louisiana, who, in turn, had purchased the seed from Ring Around Products, Inc. (Ring Around), a foreign corporation authorized to do business in Louisiana, who originally purchased the seed from Collier, an Arkansas partnership, which grew the seed and packaged it for sale.

After the initial filing of suit, SFA filed a third party demand against Ring Around, who thereafter, filed a third party demand against Collier. Collier filed an exception of lack of personal jurisdiction to the original lawsuit and the third party demand of Ring Around and an exception of insufficiency of service of process to the plaintiff’s petition. Trial of the exceptions was fixed for October 30, 1979. On October 16, 1979, Ring Around caused a subpoena duces te-cum to be issued to Collier through its attorney of record ordering the production of certain business records for the hearing on the exceptions set for October 30, 1979. On October 24, 1979, Collier filed a motion for a protective order seeking to have the court quash the previously ordered subpoena duces tecum or to limit the records ordered to be produced in compliance therewith. All exceptions and the motion were heard on October 30, 1979, and in a judgment rendered without written reasons on November 28, 1979, the trial court ruled in favor of Collier on all issues sustaining both exceptions and the motion for a protective order, and dismissed plaintiff’s demand and Ring Around’s third party demand against Collier. From this judgment plaintiff and Ring Around have appealed.

JURISDICTION

Appellants rely on Louisiana’s Long Arm Statute, which is contained in LSA-R.S. 13:3201, and specifically section (d) thereof, to support the proposition that Collier is amenable to suit in this state. LSA-R.S. 13:3201 provides in part as follows:

“A court may exercise personal jurisdiction over a nonresident who acts directly or by an agent, as to a cause of action arising from the nonresident’s
(a) transacting any business in this state ;
(b) contracting to supply services or things in this state;
(c) causing injury or damage by an offense or quasi offense committed through an act or omission in this state;
(d) causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state ;

It is well settled that the legislative intent in enacting this statute' was to extend personal jurisdiction of Louisiana courts over non-residents to the full limits of due process, i. e., to any non-resident who has “minimum contacts” with this state. Drilling Engineering, Inc. v. Independent Indonesian American Pet. Co., 283 So.2d 687 (La.1973), and Aucoin v. Hanson, 207 So.2d 834 (La.App. 3rd Cir. 1968). This jurisprudence requires a liberal interpretation of LSA-R.S. 13:3201 in favor of finding jurisdiction. Adcock v. Surety Research & Inv. Corp., 344 So.2d 969 (La.1977); Latham v. Ryan, 373 So.2d 242 (La.App. 3rd Cir. 1979).

The finding of jurisdiction over non-residents involves an evaluation of the factual circumstances of the case in light of federal constitutional principles. In order for the proper exercise of jurisdiction in personam over a non-resident there must be sufficient minimum contacts between the non-resident defendant and the forum state to satisfy due process and “traditional notions of fair play and substantial justice” as required by Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977); International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); and McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). Whether or not a particular defendant has sufficient minimum contacts with a state is to be determined from the facts and circumstances peculiar to each case. Drilling Engineering, Inc. v. Independent Indonesian American Pet. Co., 283 So.2d 687 (La.1973).

The evidence adduced at the hearing on the exceptions shows that Collier is an Arkansas partnership, and has never qualified or been authorized to do business in Louisiana. It employs no personnel in Louisiana, has no salesmen, telephone or office here, and has no appointed agent for service of process in Louisiana. Collier’s sales are FOB their plant in McCroy, Arkansas, and the responsibility of arrangements for the shipment of seed purchased is on the buyer as Collier owns no trucks and makes no deliveries. Collier sells seed to Ring Around, d/b/a Moss Seed Company out of Little Rock, Arkansas. Ring Around introduced into evidence thirty-seven invoices it had received from Collier in connection with seed purchases made in 1978. On each invoice is reflected the quantity and description of seed purchased, the purchase price, and the place where the seeds were being shipped. Ten of the invoices reflected that seed purchases totalling the amount of $65,057.50 were made by Ring Around from Collier for shipment to Evangeline in Ville Platte, Louisiana. The remaining twenty-seven invoices reflected that seed purchases totalling the amount of $192,631.25 were made by Ring Around from Collier for delivery in eleven different locations in Louisiana. Collier also occasionally sold seed in Louisiana through Arkansas brokers in which case the Louisiana purchaser was billed directly. The amount of these additional sales through brokers is not reflected by the record. Collier solicited business through advertisements in an industry publication, the Southern Seeds-man Buyers Guide, which is circulated in at least sixteen southern states, including Louisiana.

Plaintiff in petition alleges that because of the negligent marking, processing, and packaging of the soybean seed by the named defendants, including Collier, he sustained the following injuries and damages: reduction in yield, $6,000.00; damage to soybeans harvested, $300.00; mental anguish and distress, $5,000.00; and inconvenience, $5,000.00. Plaintiff’s allegations of the aforestated damages caused by defendants’ alleged fault clearly sets forth a cause of action based on an offense or quasi offense within the contemplation of LSA-C.C. Article 2315 et seq. and makes LSA-R.S. 13:3201(d) the applicable provision of the long arm statute in asserting jurisdiction in personam over the non-resident Collier.

From the evidence adduced at the hearing it was shown that Collier made sales in excess of $250,000.00 of seeds which were shipped to growers in Louisiana. As shown by the invoices Collier had full knowledge that these seeds were being shipped from Collier’s plant in Arkansas directly into Louisiana for resale and planting. There can be no doubt that Collier derived substantial revenue from its seed resold and consumed in this state. The knowledge with which Collier sold the seed to Ring Around, i. e., that the seed was bound for Louisiana farms, shows that Collier purposefully and systematically availed itself of the privilege of entering its products into the commercial markets of Louisiana. Under these circumstances we hold that Collier is amenable to suit in this state under the provisions of LSA-R.S. 13:3201(d) and that the trial court erred in sustaining the exception to jurisdiction filed by Collier to plaintiff’s demand and the third party demand of Ring Around. As was stated in Liddell v. Hanover Insurance Company, 289 So.2d 299 (La.App. 1st Cir. 1973):

. . the manufacturer of a product who sells in its home or another state with knowledge that its product will systematically be resold and consumed or used in Louisiana, and who derives substantial income therefrom, has sufficient contact with this state for us to assert jurisdiction. The statute was passed for the purpose of giving Louisiana citizens maximum access to nonresident defendants. The state has a manifest interest in protecting its citizens who are commercially or physically injured by nonresidents. . . .”

See also Boykin v. Lindenkranar, 252 So.2d 467 (La.App. 4th Cir. 1971), writs refused.

INSUFFICIENCY OF SERVICE OF PROCESS

Plaintiff attempted to have his petition served on Collier through the Secretary of State as a foreign corporation authorized to do business in Louisiana. Collier is an Arkansas partnership not authorized to do business in Louisiana and without an agent for service of process in this state. Plaintiff concedes that his attempt at service was ineffective. Plaintiff contends, however, that when the trial court sustained the declinatory exception based on the objection of insufficiency of process, it should have ordered him to remove the grounds therefor within a delay allowed by the court is provided for in LSA-C.C.P. Article 932. Article 932 provides in pertinent part as follows:

“When the grounds of the objections pleaded in the declinatory exception may be removed by amendment of the petition or other action of plaintiff, the judgment sustaining the exception shall order the plaintiff to remove them within the delay allowed by the court. . . .”

The trial court obviously failed to observe the provisions of Article 932 because of its finding of lack of jurisdiction. As we have found the trial court does have jurisdiction over Collier in this matter and since the grounds of the objection raised in the decli-natory exception can be removed by complying with the provisions of LSA-R.S. 13:3204, plaintiff should be allowed a reasonable delay in order to make proper service on Collier.

For the above and foregoing reasons, that part of the judgment of the District Court sustaining the declinatory exception of lack of personal jurisdiction over Collier and dismissing the demand of Frederick Soileau and dismissing the third party demand of Ring Around is hereby reversed and set aside and it is now ordered, adjudged and decreed that said exception is hereby overruled. That part of the trial court’s judgment sustaining Collier’s declinatory exception of insufficiency of service of process is affirmed but amended so as to allow plaintiff a reasonable time not to exceed thirty days from and after the finality of this judgment, in which to cure the defect of service- in the manner set forth above.

This case is now remanded for further proceedings consistent with the views herein expressed and in accordance with law.

Appellee, Collier, is assessed with all costs of this appeal. Assessment of costs in the trial court are to await the final determination of this cause.

REVERSED IN PART; AFFIRMED AS AMENDED IN PART; AND, REMANDED.

        . The exception of insufficiency of citation was not directed against the third party demand filed by Ring Around against Collier.'

      . Appellants additionally specified as error that the trial court erred (1) in granting the motion for protective order and (2) in not finding that Collier waived its exception of lack of jurisdiction by riiaking a general appearance. We do not reach these issues as it is unnecessary in light of our finding jurisdiction on the basis of the evidence adduced.


text:
    Deanna Boutte SHANNON, Plaintiff-Appellee, v. Wilkin R. SHANNON, Defendant-Appellant.
    No. 7726.
    Court of Appeal of Louisiana, Third Circuit.
    June 25, 1980.
    Gahagan & Gahagan, Russell E. Gahagan, Natchitoches, for defendant-appellant.
    Whitehead & McCoy, Kenneth D. McCoy, Jr., Watson, Murchison, Crews, Arthur & Corkern, Ronald E. Corkern, Jr., Natchi-toches, for plaintiff-appellee.
    Before GUIDRY, DOUCET and LA-BORDE, JJ.
   GUIDRY, Judge.

The sole issue on this appeal is whether a garnishment of a father’s wages instituted to enforce a judgment for past due child support payments primes and takes precedence in enforcement over a prior existing garnishment instituted to enforce a judgment for an unpaid debt on a promissory note. The trial court held that under the provisions of LSA-R.S. 13:3928 the latter garnishment is subordinate to and is ranked behind the garnishment for child support arrearages. From this judgment the subordinated garnisher, Natchitoches Collections, Inc., appeals. We affirm.

Plaintiff, De Anna B. Shannon, obtained a judgment of separation from her husband, Wilkin Shannon, on June 15, 1978. The judgment awarded plaintiff custody of the minor child of the marriage and ordered Wilkin Shannon to pay child support in the sum of $300.00 per month.

On August 12, 1979, the plaintiff wife obtained judgment in the 11th Judicial District Court in Sabine Parish, Louisiana, making executory past due child support payments totalling the sum of $2,930.00 and awarding attorney’s fees in the sum of $1500.00.

On August 13, 1979, plaintiff filed a rule in the 10th Judicial District Court, Natchi-toches Parish, Louisiana, requesting that the August 12th Sabine Parish judgment be recognized and made executory in Natchi-toches Parish. Plaintiff also demanded that a writ of fi. fa. be issued and that Western Kraft, Inc., Wilkin Shannon’s employer, be cited as garnishee and ordered to answer interrogatories.

Western Kraft, Inc. answered the interrogatories and informed plaintiff that Wil-kin Shannon’s wages were under garnishment by Termplan Financing of Shreveport, Inc.; Natchitoches Collections, Inc.; and Credit Thrift of America. Following receipt of the answers, plaintiff, contending that her garnishment should be ranked superior to the pre-existing garnishments, filed the instant rule to rank garnishments. Termplan Financing of Shreveport, Inc., entered a consent judgment stipulating that plaintiff’s garnishment be ranked superior to its garnishment. Following a hearing on the rule, the trial judge rendered judgment ranking the garnishment held by Natchi-toches Collections, Inc. inferior to the garnishment held by plaintiff.

Generally a garnishment of wages prior in time is superior to any subsequent such garnishment and the latter garnishment does not take effect until the former is satisfied. LSA-R.S. 13:3922; see also Grand v. Kado, 279 So.2d 811 (La.App. 1st Cir. 1973). A statutory exception to this general rule is provided for in LSA-R.S. 13:3928. The clear and unambiguous terms of the latter article provide that the enforcement of a judgment for child support primes any garnishment of the father’s wages, be it pre-existing or otherwise.

Appellant contends that once the claim for unpaid support is rendered executory by its conversion to a judgment for a sum certain, it is no longer an order, judgment or decree for child support, but merely an executory judgment enjoying no special rank or privilege. In support of this proposition appellant refers us to Davis v. Contorno, 234 So.2d 470 (La.App. 1st Cir. 1979).

The court in Davis, supra, was concerned with the question of what constitutes the wage base for the calculation of the non-exempt percentage of wages subject to garnishment as provided in LSA-R.S. 13:3881 where the father was paying current child support payments as well as having his wages garnished for support payments in arrears. The Davis court construed LSA-R.S. 13:3881 in pari materia with LSA-R.S. 13:3928 concluding that the amount of wages garnishable were to be calculated by first deducting the amount of current child support payments from the father’s disposable income and then calculating the non-exempt percentage as provided by LSA-R.S. 13:3881 from the balance. We subscribed to this latter method in Theriot v. Melancon, 311 So.2d 578 (La.App. 3rd Cir. 1975), but in Theriot, as well as in Davis, there was no question of the ranking of competing garnishments of the father’s wages. The court in Davis, supra, at 474, specifically noted that the executory judgment for past due child support being enforced by the wife was not in competition with some other judgment for enforcement purposes. Yet in spite of the absence of a ranking issue in Davis the court, in dicta, offered the following interpretation of LSA-R.S. 13:3928, upon which appellant relies:

. . It appears that Section 3928, above, confers priority and preference upon ‘Any judgment, decree, order or sentence of court, whether in a civil or criminal case, by which a father is ordered to pay for the support of a child or children * * *’ Statutes in derogation of common rights, such as those creating liens and privileges, are to be strictly construed and not to be extended by implication or through considerations of equity. State ex rel. Maitrejean v. Demarest. 229 La. 300, 85 So.2d 522. Section 3928, being in derogation of common rights insofar as it creates a priority for payment of child support, must be strictly construed. On this basis, we hold that the provisions of Section 3928 apply only to orders of child support as such. It follows that Section 3928, above, does not apply and give enforcement preference to a judgment which renders executory a claim for past due and unpaid child support. Once the claim for unpaid support is rendered executory by conversion to judgment for a sum certain, it is not an order, judgment or decree for child support. It is merely an execu tory judgmen t enjoying no special rank or privilege.”

The underlying premise in Davis, supra, i. e., that the conversion of past due and unpaid child support payments into a judgment for a sum certain somehow alters the character of the obligation into a “merely an executory judgment enjoying no special rank or privilege,” was later explained by the same court who announced it. In White v. Kleine, 263 So.2d 496, at 498 (La. App. 1st Cir. 1972) the court announced that the dicta in Davis, supra, was not intended to intimate that the character of child support payments is changed from an obligation or duty to a mere money debt simply because they have been reduced to an exec-utory judgment in order to facilitate collection thereof. This latter statement of the First Circuit presumably negates any validity of the previous conclusion in Davis, supra, as to the inapplicability of LSA-R.S. 13:3928 to give enforcement preference to a judgment which renders executory a claim for past due and unpaid child support payments.

However, in any event, we construe LSA-R.S. 13:3928 to be primarily concerned with and applicable to a situation where a proper party seeks to enforce the collection of child support payments due and not paid and there are competing judgment creditors seeking to garnish the father’s wages. By the plain terms of said article the enforcement of the judgment for child support would take preference over the competing garnishments. That LSA-R.S. 13:3928 may serve a secondary function when construed in pari materia with LSA-R.S. 13:3881, as in Davis and Theriot, we need not comment on as the question present in those cases is not presently before us. We conclude that LSA-R.S. 13:3928 is applicable in the instant case and that the trial court was eminently correct in ranking plaintiff’s garnishment ahead of appellant’s.

For the above and foregoing reasons the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

      . LSA-R.S. 13:3928 provides as follows:
      “Any judgment, decree, order or sentence of court, whether in a criminal or civil case, by which a father is ordered to pay for the support of a child or children, shall prime and take precedence and priority in enforcement, over any judgments of garnishments, orders of garnishments or writs of garnishment already rendered or later rendered for the garnishment of the father’s wages.”

      . The disposition of the garnishment held by Credit Thrift of America is not reflected in the record, however, in plaintiff’s brief it is asserted that pending the hearing on the rule one of the prior garnishments was paid in full and cancelled. Apparently this assertion refers to Credit Thrift, however, the outcome of the instant suit would not be changed if it were otherwise.

      . LSA-R.S. 13:3881, as amended, provides in pertinent part as follows:
      “A. The following income or property of a debtor is exempt from seizure under any writ, mandate, or process whatsoever:
      (1) Seventy-five per centum of his disposable earnings for any week, but in no case shall this exemption be less than an amount in disposable earnings which is equal to thirty times the federal minimum hourly wage in effect at the time the earnings are payable or a multiple or fraction thereof according to whether the employee’s pay period is greater or lesser than one week. The term ‘disposable earnings’ means that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld. . .