author: PONDER, Judge.

text:
    Murlon WEBB v. POLK CHEVROLET, INC.
    No. 14760.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Johnnie A. Jones, Baton Rouge, for plaintiff-appellant Murlon Webb.
    John Dale Powers, Baton Rouge, for defendant-appellee Polk Chevrolet, Inc.
    Henry D Salassii Jr>> Baton Rouge> for third party defendant-appellee General Motors Corp.
    Before ELLIS, PONDER and SAVOIE, JJ.
   PONDER, Judge.

Plaintiff appealed from a judgment sustaining an exception of no cause of action to his petition for nullity of a prior judgment.

The issue is whether plaintiff’s petition for nullity states a cause of action for nullity, either absolute or relative.

We reverse and remand.

Plaintiff filed a suit in redhibition against defendant, Polk Chevrolet, Inc. The trial court granted a directed verdict in favor of defendant. This court reversed and remanded. Webb v. Polk Chevrolet, Inc., 387 So.2d 1240 (1st Cir. 1980), writs denied 390 So.2d 1344 (La.1980).

A new trial was scheduled for February 12 and 13, 1981. When defendant refused to answer interrogatories prior to trial, plaintiff filed a “Notice of Intent to Apply for Writ(s) of Certiorari, Mandamus and/or Prohibition and For Stay of Proceedings During Pendency of Application”. Plaintiff obtained an order on January 5,1981, which provided:

“.... all trial court proceedings herein are hereby stayed until further ordered by the court.”

After this court denied the application for writs on January 12, 1981, plaintiff applied for writs to the Supreme Court; these were denied on February 20, 1981 on a technicality. Upon reapplication, however, the Supreme Court granted the writ and on March 20, 1981, ordered the defendant to answer the interrogatories.

Meanwhile, on February 12,1981, the trial court had proceeded with the trial, in plaintiff’s absence, and had rendered judgment for the defendant.

Plaintiff filed a petition for nullity in the same suit as the redhibition action, praying for citation. Defendant answered and filed an exception of no cause of action. The trial court sustained the exception on the ground that the petition was a collateral attack on the redhibition judgment. Plaintiff appealed.

Plaintiff argues that causes of action of both an absolute nullity and a relative nullity were stated in his petition.

La.C.C.P. Art. 2002 declares that those judgments are absolutely null which are rendered 1) against an incompetent not properly represented; 2) against a defendant who has not been served with process or against whom a valid default judgment has not been taken; or 3) by a court without subject matter jurisdiction to state a cause of action for an absolute nullity. These grounds are exclusive. Warner v. Garrett, 268 So.2d 92 (1st Cir.), writ denied 263 La. 987, 270 So.2d 123 (1972). Plaintiffs petition does not state a cause of action for absolute nullity.

To state a cause of action for a relative nullity, plaintiff must show that the judgment was obtained by fraud or ill practices. La.C.C.P. Art. 2004. The term “ill practices” has been liberally interpreted so as to cover a situation where no intentional wrong has been committed, but the enforcement of the judgment would be unconscionable. Evans v. Ivy, 387 So.2d 626 (1st Cir. 1980). A relative nullity may be raised only by a direct action. Pontchartrain Park Homes, Inc. v. Sewerage and Water Board of New Orleans, 246 La. 893, 168 So.2d 595 (1964).

The exception of no cause of action raises the question of whether the law affords any remedy under the allegations of plaintiff’s petition. Johnson v. Edmonston, 383 So.2d 1277 (1st Cir. 1980). Although the petition in the present case does not specifically allege that the judgment was obtained by fraud or ill practices, it does allege facts which, if proved, might be sufficient to justify relief. Sterling v. Jones, 255 La. 842, 233 So.2d 537 (1970).

Defendant contends that plaintiff’s petition fails to state a cause of action because it was filed in the same proceeding as the judgment which it attacks, making it a collateral attack upon that judgment.

We find no merit in that contention. The only defect defendant complains of is the filing in the suit record of the redhibition suit and with the same number. We can find no real reason to require the filing of a new suit with a new number. In Nethken v. Nethken, 307 So.2d 563 (La.1975) in the following quotations from page 565, the Supreme Court defined direct and collateral actions.

“By a direct action is meant that the party praying for the nullity of a judgment, before the court which has rendered same, must bring his action by means of a petition; and the adverse party must be cited to appear, as in ordinary suits. ****’’
“A collateral attack, on the other hand, is defined as an attempt to impeach the decree in a proceeding not instituted for the express purpose of annulling it.”

For these reasons, the trial court judgment is reversed and the suit is remanded to the trial court for proceedings consistent with the above findings. Costs of this appeal are assessed to the defendant.

REVERSED AND REMANDED.

      . The objection was evidently raised by an exception of improper cumulation of actions in LeGlue Buick, Inc. v. Smith, 390 So.2d 262 (3d Cir. 1980).

      . La.C.C.P. Art. 2004:
      “A final judgment obtained by fraud or ill practices may be annulled.
      An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.”

      . As an interesting aside the rules of court of The Nineteenth Judicial District require that it be assigned the same number and be treated as a part of the original suit:
      “Suits or proceedings not in their nature original, but growing out of suits or proceedings previously pending, such as actions of nullity of judgment, or to restrain or regulate the execution of process, mesne or final, in suits previously pending, shall not be docketed as separate suits, but shall be treated as parts of the original suits out of which they arise, shall be docketed and numbered as parts of such suits, and shall follow the prior allotment or assignment to the respective Divisions of the Court.”


source: Caselaw Access Project

author: ELLIS, Judge:

license: Public Domain

text:
    Ansil BICKFORD v. RELIANCE INSURANCE COMPANIES, et al.
    No. 14762.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Hobart O. Pardue, Jr., Springfield, for plaintiffs-appellants Ansil Bickford and David A. Bickford.
    Gerald L. Walter, Jr., Baton Rouge, for defendant-appellee Reliance Ins. Co. (Erroneously referred to as Reliance Ins. Companies) and John B. Sardisco.
    Before ELLIS, PONDER and SAVOIE, JJ.
   ELLIS, Judge:

This is a quantum case, in which plaintiff David Bickford is asking for an increase in the general damage award of $45,000.00 made in the trial court.

Plaintiff was injured in a motorcycle accident on August 1,1978. He suffered severe fractures of the right knee and ankle, and of the second toe of his right foot, as well as a lacerated Achilles tendon on his right foot and a severe laceration of the right foot.

His fractures were surgically reduced and repaired with internal fixation, and his lacerations cleaned and sutured at Willis-Knighton Memorial Hospital in Shreveport. Six days later, with his wounds healing well, he was placed in a hip cast, and on August 10, 1978, was discharged to the care of his family orthopedist, Dr. Luis Matta. When plaintiff left the hospital, he was walking with the aid of crutches.

He was treated by Dr. Matta, who removed the cast on September 7, 1978, and started plaintiff on a regimen of physical therapy. In the ensuing months plaintiff improved steadily. In April, 1979, Dr. Mat-ta hospitalized plaintiff and operated on his right knee to free up a number of adhesions and improve the motion, and to repair a hole in the joint capsule.

By May, 1979, plaintiff was sufficiently improved to be discharged from Dr. Matta’s care, subject to a return for evaluation. On March 3, 1980, Dr. Matta saw plaintiff for the last time.

At that time, x-rays showed the fractures were all well healed and well aligned. Plaintiff had good extension and flexion of his knee, with some mild ligamentous instability, which Dr. Matta felt would cause no problem. There was a ten-degree loss in dorsiflexion in the ankle, and no significant findings relative to the second toe.

Plaintiff had marked severe crepitation in the right patellar femoral articulation, which Dr. Matta felt resulted from chondro-malacia or from traumatic arthritis. Dr. Matta was of the opinion that plaintiff would require surgery to repair or remove his right patella within three years.

Dr. Matta assigned a permanent partial disability rating of about 40% to plaintiff’s right leg. He was of the opinion that plaintiff should not engage in activities which would involve squatting, climbing and going up and down stairs, because of the patellar problem. Otherwise, he felt plaintiff could do anything he wanted.

Dr. Herbert K. Plauche, an orthopedic surgeon, saw plaintiff on one occasion for evaluation. His physical findings were the same as those of Dr. Matta. He testified that plaintiff probably could never engage in activities which involved a significant amount of heavy lifting, stooping, squatting, or climbing without a significant degree of difficulty. He also thought plaintiff would need knee surgery in the future, and assigned a disability rating to the leg of 35 to 45 per cent.

Plaintiff was 16 years of age when he was injured. He had been a member of his high school track team, an activity which he had to give up because of his injuries. He testified that he underwent a severe degree of pain while under treatment for his injuries, and that he was greatly distressed by his disability. He testified that he had given up hunting, dancing and roller skating because of the injury.

He finished high school with his class in May, 1979, and went to work as a rodman with a surveying party. He testified that he had some knee trouble when he had to squat to do measurements, and that his knee and ankle would bother him as the day wore on. For one semester, he attended college, where he was a member of the marching band. He testified that he was not permitted to march, however, because of his leg injury. After he left college, he returned to work on a surveying crew, and continued to have the same problems. However, he testified that he was able to do his job.

He next got a job in a warehouse, where he was required to unload freight, store it, tag it, and sometimes climb up on stacks of boxes. He was able to do this job without difficulty, although he complained of some pain after working long hours.

His next job required him to clean the ends of oilfield pipe, and roll the segments of pipe around. He stated that the segments weighed 400 to 500 pounds each. Plaintiff’s next job was as a rodman, doing construction surveying. He was required to work ten hours per day, four days per week. His job involved climbing ladders, while carrying a sack of tools weighing 65 or 70 pounds, and squatting. Plaintiff testified that it was not an easy job, but that he was able to do the work without problem. He further testified that both of his legs bothered him after a day’s work, but that his right leg bothered him more. At the time of the trial, plaintiff had been working at this job for about nine months.

In this court, plaintiff claims that the $45,000.00 award for past and future pain and suffering and future medical expense?-! is inadequate, and complains of the failure of the trial judge to make an award for mental anguish and future loss of earnings and disability.

Plaintiff has offered no evidence as to loss of earning capacity, so that any award for that element of damages would be entirely speculative. After reading the oral reasons for judgment rendered by the trial judge, we find that mental anguish was considered by him in fixing the award, although he did not specifically so state.

As to the amount of the award for general damages, we find it to be low, but not so low as to constitute an abuse of the discretion of the trial judge. The trial judge was of the opinion that plaintiff was able to do his various jobs without too much difficulty, and apparently did not find the pain in which plaintiff worked was of such a nature or severity as to impair his capacity. There is substantial evidence in the record to support this conclusion of fact, and we cannot say it is manifestly erroneous or clearly wrong. See Reck v. Stevens, 373 So.2d 498 (La.1979).

The judgment appealed from is affirmed. Costs of this appeal shall be paid by plaintiff.

AFFIRMED.


text:
    Bob ROTHMAN, d/b/a Bob Rothman Heating and Air Conditioning v. J. C. HEBERT, et al.
    No. 14763.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      John Dale Powers, David M. Vaughn, Sanders, Downing, Kean & Cazedessus, Baton Rouge, of counsel, for plaintiff-appellant.
    Joseph W. Cole, Jr., Cole & White, Port Allen, of counsel, for defendants-appellees.
    Before ELLIS, PONDER and SAVOIE, JJ.
   PONDER, Judge.

This is a suit for the balance of subcontract on a construction job. One of the defendants reconvened for the amount alleged expended to complete plaintiff’s work. The trial court rejected both claims and plaintiff appealed.

The issues are the amount of the contract, substantial performance and the offset of defendant’s reconventional demand.

We amend and affirm.

Plaintiff alleged he had an oral contract with West Side Materials, Inc. and J. R. Cross, the general contractors, to supply the labor and materials for the heating and air conditioning work to be done on a church addition. Plaintiff contends that the parties agreed to a bid of $18,700.00, while defendant, Cross, contends that the amount was $17,600.00. Plaintiff was paid $15,-500.00 for the work he performed.

When the general contractors refused to pay more, plaintiff sued J. C. Hebert, the owner of the West Side Materials, Inc., West Side Materials, Inc., and J. R. Cross. Cross reconvened asking that plaintiff pay the $2,657.00 allegedly spent for completion.

The trial judge stated in oral reasons that he found that there was no meeting of the minds on the price of $18,700.00, that plaintiff did not complete the work and did not sufficiently prove that he could not complete it, and that there was insufficient proof of the amount paid to complete the job. J. C. Hebert was dismissed as a defendant and both plaintiff’s and reconve-nor’s claims were denied.

Plaintiff argues that the trial court erred in holding that the contract price was $17,600.00 rather than $18,700.00. Cross testified that the amount was the lower figure, that the general contractor had received a bid from another contractor for $17,600.00 but that he had agreed with Hebert to allow plaintiff to have the job if he would do it for the same price. We cannot say that the finding that the contract price was $17,600.00 was manifestly erroneous.

Plaintiff did not complete the job. He contends, however, that the general contractor is estopped to claim an offset because of the circumstances.

Plaintiff testified that in March of 1979 he was waiting for the arrival of heaters he had ordered to complete the job. Defendant, Cross, had his attorney write the plaintiff a letter dated April 2, 1979, giving plaintiff 48 hours to finish the remaining work. Plaintiff testified that the heaters came in the same day, and he, his son and a third person installed them the following day. The units could not be turned on and the lines could not be charged with refrigerant because the electricians had not completed the necessary wiring. Plaintiff asked Cross to call him when the electricians were through. He would then complete the job which included charging the units, servicing them, checking for leaks, putting in the return air grills and installing fire dampers and drainage pans.

Cross testified that the heaters were installed prior to the time the demand letter was sent. He also testified that he never called plaintiff, because he saw plaintiff’s son, who worked with plaintiff, at the job-site and informed him that the work could be completed. Plaintiff’s son denied that he was at the site following the installation of the heaters.

The trial court made its finding on conflicting testimony. We cannot say that such a finding was manifestly erroneous. The requirement of “justifiable reliance” for the application of equitable estoppel is absent once this finding is made.

However, if plaintiff substantially performed the work agreed to under the contract, he is entitled to recover the contract price minus the loss proved attributable to the breach of the contract. Merrydale Glass Works, Incorporated v. Merriam, 349 So.2d 1315 (1st Cir. 1977), writ denied 350 So.2d 1211 (La.1977).

Among the factors to be considered in determining whether plaintiff substantially performed the contract are the extent of the defect of the nonperformance, the degree that the purpose of the contract is defeated by nonperformance, the ease of correction of the defect and the benefit derived by the owner from the work performed. Airco Refrigeration Service, Inc. v. Fink, 242 La. 73, 134 So.2d 880 (1961); Henson v. Gonzalez, 326 So.2d 396 (1st Cir. 1976).

Plaintiff testified that the job could have been completed in three to four hours. Jim Barksdale testified that he inspected the job after the heaters were installed by plaintiff and that the remaining work would take six to seven hours to complete. The testimony of the supervising architect indicated that, with all materials delivered at the site and no delays, the entire heating and air conditioning job should have taken from six to eight weeks. We find sufficient evidence that plaintiff substantially performed the contract. He should, therefore, be allowed to recover $17,600.00 less the reasonable cost to complete the work.

The lower court denied defendant’s re-conventional demand for the cost of completion because of lack of evidence. Defendant did not appeal or answer the appeal. This point is, therefore, not before us.

The reconventional demand was for the cost of completion. Since this was not proved, it follows that defendant did not prove the cost of completion as an offset. Plaintiff therefore should be allowed to recover the contract price of $17,600.00, less the amount admittedly paid.

For these reasons, the judgment is amended so as to award plaintiff the sum of $2100.00 plus legal interest thereon from date of judicial demand until paid from West Side Materials, Inc. and J. R. Cross in solido. The judgment is otherwise affirmed. Defendants are cast with all costs.

AMENDED AND AFFIRMED AS AMENDED.


author: SAVOIE, Judge.

text:
    Rose GEYSTAND v. LOUISIANA SPECIAL EDUCATION CENTER.
    No. 14764.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Louis Berry, Alexandria, for plaintiff-appellant.
    Annette R. Seng, Asst. Atty. Gen., Baton Rouge, for appellee.
    Laura Denson Holmes, Civ. Service Legal Counsel, Baton Rouge, for George Hamner, Director Dept, of State Civ. Service.
    Before ELLIS, PONDER and SAVOIE, JJ.
   SAVOIE, Judge.

Mrs. Rose Geystand was formerly employed caring for handicapped children at the Louisiana Special Education Center in Pineville, Louisiana. She was a classified employee entitled to the job protection of the Civil Service rules and regulations. She was suspended from her job and subsequently dismissed following an incident of August 17th, 1980, in which it was alleged that she beat one of the children living at the Center. She hired an attorney who filed an appeal from the suspension, as was her right, and a hearing was held before a hearing officer of the State Civil Service Commission in Pineville. Based on the evidence received at this hearing, the Civil Service Commission found her suspension to have been justified. A notice of appeal was filed in this court, listing nine alleged errors in the judgment of the Civil Service Commission. A late brief has been filed which denies the sufficiency of the evidence of the beating in general terms.

After carefully reviewing the entire record, particularly the transcript of the hearing below, in light of the nine assignments of error in the notice of appeal, we find that none of the assignments has any merit and that outside the noted assignments, the record reveals no plain error requiring reversal. We, therefore, affirm the decision of the Civil Service Commission.

ASSIGNMENT OP ERROR I

Geystand claims there was no evidence introduced at the hearing to show she had been informed prior to the beating incident that the institutional rules forbade corporal punishment. In fact, the agency introduced as State Exhibit 1 a training manual setting forth the policy against corporal punishment. Additionally, there was a signed certificate of attendance at an in-service training session where the policy was discussed. Mrs. Geystand denied familiarity with the manual and denied attend-anee at the training session. She said that' her signed statement of attendance was false — that she and other employees regularly signed such statements even though they did not attend the required training sessions. By such testimony, of course, she condemns herself as mendacious, seriously calling into question all her other testimony. At all events, the agency has shown that either (1) it informed Mrs. Geystand of the anticorporal punishment policy, or (2) it made an effort to so inform her which was intentionally thwarted by her. In neither case could the agency be reasonably held responsible for her lack of knowledge of the policy.

This assignment lacks merit.

ASSIGNMENT OF ERROR II

Geystand disputes the Commission’s finding that Mrs. Corrine Thompson testified that Geystand admitted spanking the child. Corrine Thompson did so testify.

ASSIGNMENT OF ERROR III

It is denied that Mrs. Matthews testified that Geystand admitted spanking the child. Mary Theresa Matthews testified to exactly that effect.

ASSIGNMENTS OF ERROR IV AND V

Assignment No. IV condemns Mrs. Sessions’ testimony as inherently incredible. Margaret Sessions testified like the others, that Mrs. Geystand said in the lunchroom: “I spanked Michelle for biting Debbie and if Debbie bites Michelle, I spank Debbie.” What Mrs. Geystand’s attorney finds incredible is Mrs. Sessions’ insistence, contradicted by the testimony of others, that after this statement by Mrs. Geystand, nothing else was said by anyone in the lunchroom for the rest of the dining period.

Assignment No. V declares Mrs. Shorts’ testimony unworthy of belief and denies that Mrs. Shorts testified that Mrs. Gey-stand spanked the child. On page 82 of the hearing transcript, Mrs. Marie Shorts is recorded as testifying on oath “... she said that I spanked her and I would do it again. I will spank Debbie for biting her, they were biting or fighting.” The claimed incredibility of her testimony is based on the fact that she testified rather exactly to the words spoken by Mrs. Geystand relative to the beating, but could recall nothing of the other conversation in the lunchroom that day.

We find that the testimony of Mrs. Sessions and Mrs. Shorts as to relevant matters is corroborated by the testimony of all other witnesses for the employing agency, and there is no error in accepting it simply because their memory of other concurrent matters is less than perfect.

ASSIGNMENT OF ERROR VI

Barbara Nalezinek was the only witness to corroborate Rose Geystand’s claim that what she said in the lunchroom was not “I spanked Michelle” but “Michelle needs a spanking”. By this assignment, attorney Weeks asserts that Nalezinek positively corroborated Geystand. The Commission found that Nalezinek’s corroboration of Geystand was only a qualified corroboration. The Commission is correct.

ASSIGNMENT OF ERROR VII

This assignment questions the Commission finding that Rose Geystand “Did not deny the charge against her.” Obviously, she did deny it at the hearing, but numerous co-workers testified that she readily admitted the spanking in the lunchroom immediately after the event. It is to this admission, and the later one made when first confronted with the charge by her superior next day, that the Commission refers.

ASSIGNMENT OF ERROR VIII

This assignment asserts that there is no (sic) evidence in the record to support a finding that Rose Geystand spanked a child. The testimony referred to in our discussion of the other assignments is sufficient to dispose of this.

ASSIGNMENT OF ERROR IX

This assignment denies that the agency proved Rose Geystand’s mis-feasance by a preponderance of the evidence. There is no merit to such a claim.

In addition to the assigned errors discussed above, the late-filed brief of appellant makes much of the fact that there was no eye-witness to the beating and that the alleged victim was not produced as a witness against the appellant. We do not think the lack of an eye-witness crucial, considering the admissions which the evidence of record preponderantly shows were made by the appellant shortly after the fact. It is questionable whether the victim would have been a competent witness. However, nothing prevented the appellant from calling her, had she thought her testimony likely to be favorable.

The decision of the Civil Service Commission is affirmed.

All costs are to be paid by appellant.

AFFIRMED.


text:
    RTL CORPORATION v. MANUFACTURER’S ENTERPRISES, INC.
    No. 14770.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Nathan T. Gisclair, Jr., New Orleans, for plaintiff-RTL Corp.
    F. Barry Marionneaux, Plaquemine, for defendant-Manufacturer’s Enterprises, Inc.
    Before ELLIS, PONDER and SAVOIE, JJ.
   PONDER, Judge.

Plaintiff appealed the dismissal of its suit for the alleged balance on the rental of two cranes.

The issues raised by plaintiff are accord and satisfaction, the terms of the contract, the accuracy of plaintiff’s invoices, and the validity of plaintiff’s charges.

We affirm.

Plaintiff, RTL Corporation (RTL), and defendant, Manufacturer’s Enterprises, Inc. (MEI), entered into a verbal contract by which plaintiff agreed to furnish, maintain and operate a 165 ton and a 140 ton crane, to provide the necessary equipment, trucks, material and labor necessary to transport, install and properly rig the cranes for operation on the job site and to return the cranes to plaintiff’s yard at the end of the job.

Plaintiff billed the defendant for $143,-016.93. Defendant’s general manager, Mr. Cook, questioned those portions of the bill relating to 1) specific charges for crane time; 2) charges for crane mats on a per shift basis rather than a per day basis; 3) labor charges for a maintenance man that never appeared on the job and 4) excessive charges for the “move-in and move-out” of the cranes.

After several meetings and telephone conversations, the president of MEI sent RTL a check for $107,023.68 with a notation on the check stub that the amount constituted payment in full. RTL changed the notation on the stub to “partial payment” and cashed the check.

To the lawsuit ultimately filed, the defendant answered alleging the affirmative defenses of payment and accord and satisfaction and denial on the merits. The trial court dismissed plaintiff’s suit without assigned reasons.

Plaintiff argues that accord and satisfaction or compromise does not bar its claim. The three elements of accord and satisfaction are: (1) an unliquidated or disputed claim, (2) a tender by the debtor, and (3) an acceptance by the creditor. Amite County Co-operative v. Heck, 393 So.2d 341 (La.App. 1st Cir. 1980).

Prior to the issuance of the check, MEI had sent plaintiff a letter outlining the areas of dispute and the parties had discussed them. The record clearly indicates that a dispute existed as to the amount owed.

The stub portion of MEI’s check was marked “Payment in full for crane rentals on CF Industries turn around Job # 1199.” Although there was no cover letter, the statement on the check makes it clear that defendant intended the check to compensate in full the amount owed the plaintiff. Plaintiff’s action in telephoning the defendant and in changing the words “payment in full” to “partial payment” support the finding that plaintiff understood this intent.

The acceptance by the creditor must be an informed consent. Charles X. Miller, Inc. v. Oak Builders, Inc., 306 So.2d 449 (La.App. 4th Cir. 1975). Thus the creditor must have knowledge of the dispute and must be aware that the tender was made in full payment. Unilateral action of the creditor in changing the provision denoting full payment does not change the legal import of its acceptance by the payee as an acknowledgement of payment in full. Eppling v. Jon-T Chemicals, Inc., 363 So.2d 1263 (4th Cir. 1978).

The president and the secretary-treasurer of RTL, both testified that upon receiving the check they called Mr. Cook and he told them they could make the change on the check stub to “partial payment.” Mr. Cook admits they told him they would accept the check as partial payment, but denies agreeing to such acceptance or consenting to the change. Mr. Cook further testified that he did not have the authority to consent to the change without the approval of the president of MEI.

A finding that MEI did not consent to acceptance of their check as partial payment depends upon the evaluation of conflicting testimony. We do not find error justifying a reversal.

The meetings following the acceptance of the check do not defeat the defense of accord and satisfaction. Mr. Cook testified that he was trying to maintain harmony between the two businesses and to attempt to have plaintiff understand the areas of overcharges. There was no evidence that MEI ever consented to pay any amount above their original payment.

Since we find that the defense of accord and satisfaction applies, it is unnecessary to consider plaintiff’s other arguments.

For these reasons, the trial court’s judgment is affirmed at plaintiff’s cost.

AFFIRMED.

      . The rationale of accord and satisfaction is explained in Linda Mercantile Corporation v. Bowers, 230 So.2d 302 (La.App. 1st Cir. 1969), writ denied 255 La. 810, 233 So.2d 250 (1970) quoting from Corbin on Contracts, § 1279 at page 1046:
      “Where the amount due is in dispute, and the debtor send cash or check for less than the amount claimed, clearly expressing his intention that it is sent as a settlement in full, and not on account or in part payment, the retention and use of the money or the cashing of the check is almost always held to be an acceptance of the offer operating as full satisfaction, even though the creditor may assert or send word to the debtor that the sum is received only in part payment. The creditor’s action in such case is quite inconsistent with his words. It may, indeed, be clear that he does not in fact assent to the offer made by the debtor, so that there is no actual ‘meeting of the minds.’ * * * * The court is in these cases faced with the alternative between holding that the creditor is a wrongdoer in cashing the check or using the money, and holding that his conduct is operative as an acceptance and is therefore not wrongful. The latter holding is a short cut to complete justice, protects the debtor against injury, and prevents unnecessary litigation. It is true that the creditor may bring suit for the balance claimed; but he loses his case and is taxed with the costs. If the contrary rule were adopted, the creditor would get judgment for such balance as he can prove; and the debtor would have to support a counter action, or a counterclaim in the same action, for damages for the creditor’s wrongful retention of the money or check. It has seemed to the courts more beneficial to hold that the creditor’s action speaks louder than his words and is operative as an acceptance of the offer as made.”


text:
    TERREBONNE BANK & TRUST COMPANY v. William R. G. SMITH, Katherine Brunet Smith, Prentice L. G. Smith, Jr., Patricia Robison Smith and Gerald J. Beauregard.
    No. 14780.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Edward James Gaidry, Houma, for plaintiff and appellee.
    Thomas D. Benoit, Baker, La., for defendants and appellants Prentice L. G. Smith, Jr. and Patricia Robinson Smith.
    Before ELLIS, PONDER and SAVOIE, JJ.
   ELLIS, Judge:

The original petition herein was filed by Terrebonne Bank & Trust Company against William R. G. Smith and Katherine Brunet Smith, husband and wife; Prentice L. G. Smith, Jr. and Patricia Robison Smith, husband and wife; and Gerald J. Beauregard, alleging a debt of $166,078.29, plus 18% interest and 20% attorney’s fees, due by William R. G. Smith, Prentice L. G. Smith, Jr., and Beauregard. The petition further alleges that plaintiff is the holder of a promissory note, dated June 2, 1980, drawn by the two Messrs. Smith and Mr. Beauregard, in the original sum of $166,672.99, payable to the order of plaintiff in 26 monthly installments of $3,209.33, plus a final installment of the entire balance due. The note is alleged to contain an acceleration clause.

It is alleged that, in order to secure the above indebtedness, defendants “gave and delivered” to plaintiff 1,000 shares of stock in South Central Foods, Inc.; a demand collateral mortgage note for $30,000.00, dated May 22, 1980, drawn by Prentice L. G. Smith, Jr. and Patricia R. Smith; a second demand collateral mortgage note for $30,-000.00, also dated May 22, 1980 and drawn by the same parties; a third demand collateral mortgage note, for $17,000.00, dated September 10, 1979, drawn by William Rushing Griffith Smith and Katherine Brunet Smith; and a certificate of deposit for $50,000.00, dated September 4, 1979, issued in the name of Prentice L. G. Smith, Jr. It is further alleged that the defendants executed continuing guaranties, which further pledged the above described stocks, notes and certificate as security for the said loan.

Petitioner then prayed that executory process issue as to the properties covered by the collateral mortgages, and that the pledge of the other items given as security be recognized and maintained. It is also prayed that the proceeds of the sale be applied to the indebtedness represented by the primary note with interest and attorney’s fees, as above set forth.

An affidavit attached to the petition, states the balance due to be as alleged in the petition, and that nothing had been paid thereon since September 22, 1980. The petition does not allege that the mortgages securing the collateral notes contain confessions of judgment.

Pleadings entitled “Written Motion for Hearing” were filed on behalf of three of the four Smiths. Shortly thereafter, all four Smiths filed petitions for injunction to stop the sale of the mortgaged properties, alleging that the suit was premature; that the suit improperly cumulates an executory proceeding with an action via ordinaria for the recognition of the pledge of the stock and the certificate of deposit; that the interest rate is misstated in the petition; that the petition does not allege that the mortgages contain confessions of judgment; that there is not sufficient authentic evidence to support executory process, in that the pledge of the collateral mortgage notes is not in authentic form; and that there is a discrepancy as to attorney’s fees.

After the petitions for injunction were filed, but before a hearing thereon, plaintiff amended its petition so as to allege the interest rate on the hand note to be two percent over prime as determined by Chase Manhattan Bank of New York, with a minimum rate of 12% and a maximum of 18%. The petition was further amended to incorporate therein the three collateral mortgages, and to allege them to be in authentic form and to contain confessions of judgment. The petition was further amended to pray for a writ of seizure and sale to seize and sell the properties, with appraisement, “said seizure and sale to be to the full extent of the mortgage and mortgage note obligations as reflected by the said act of mortgages attached hereto and made a part hereof.” That part of the petition asking for recognition of the pledge of the stock and certificate of deposit was eliminated.

The prayer is for the issuance of a writ of seizure and sale as prayed for to satisfy the indebtedness represented by the hand note, with interest and attorney’s fees.

After the amended petition was filed, the Prentice L. G. Smiths filed exceptions of improper cumulation of actions, directed at the original petition.

After a hearing on all matters judgment was signed overruling the exception of improper cumulation of actions, and denying the preliminary injunctions sought by the Smiths. From this judgment Prentice L. G. Smith, Jr. and Patricia Robison Smith have appealed.

In this court, it is alleged that the trial court erred in overruling the exception of improper cumulation of actions; in permitting the filing of the supplemental petition; in finding that there was sufficient authentic evidence to support executory process; and in failing to find the suit to be premature.

Turning first to the claim of prematurity, we find it to be based on testimony that Prentice and William Smith had an agreement with the bank that the hand note would not have to be paid according to its terms. It was testified that negotiations relative to payment of the note were in a “work-out” stage, during which the bank would not demand payment. However, it further appears that, although the bank did agree to one 90-day moratorium on payment of principal, no further agreement was made, and, for over six months after the moratorium expired, no payments of any kind were made. In about January, 1981, there were discussions relative to the furnishing of additional collateral. This collateral was not forthcoming and the bank instituted this proceeding in March, 1981. The trial judge found there was no agreement which precluded the bank from demanding payment of the full obligation. We find this conclusion to be supported fully by the evidence.

Appellants further argue that the trial judge erred in permitting the filing of the amended petition. It is clear that the original petition improperly cumulated an ordinary proceeding with an executory proceeding since these actions do not employ the same mode of procedure. Article 463, Code of Civil Procedure, and comments thereto.

An improper cumulation of actions may be cured by either ordering separate trials of the actions, or ordering the plaintiff to elect which actions he will pursue, and to amend his petitions so as to delete the other actions cumulated therewith. Article 464, Code of Civil Procedure. Had plaintiff not voluntarily amended his original petition so as to remove the ordinary proceeding therefrom, the exception filed by appellants thereafter would have been valid, because the suit was not entirely one via executiva. In that case, the court could have ordered plaintiff to do what it did voluntarily, that is, to elect which part of its action to proceed with, and to amend its petition accordingly. We therefore see no objection to the amendment of the petition.

Appellants argue that the amendment had the effect of converting an ordinary proceeding to an executory proceeding, which is expressly prohibited by Article 2644 of the Code of Civil Procedure. We cannot agree. Plaintiff’s original petition was improper for the reasons outlined above, but we have found he has the right to elect which action to pursue.

It follows that, once plaintiff has elected to proceed with the action via executiva, the exception of improper cumulation of actions, filed by appellants, was no longer a proper pleading under Article 2642 of the Code of Civil Procedure, which provides that a defendant may assert his defenses only through an injunction proceeding, by a suspensive appeal, or both.

In this case, appellants sought to enjoin the proceeding by filing a petition for an injunction, based on lack of authentic evidence and prematurity. The question of prematurity has already been disposed of above. In this court appellants claim that authentic evidence is lacking in three respects. First, it is claimed that there is no authentic evidence to show the pledge of the collateral mortgage notes to secure the debt. The record shows that the collateral mortgage notes are made payable to “Ourselves”, and are signed and endorsed in blank by appellants.

Article 2635 of the Code of Civil Procedure provides as follows:

“The plaintiff shall submit with his petition the authentic evidence necessary to prove his right to use executory process to enforce the mortgage or privilege. These exhibits shall include authentic evidence of:
“(1) The note, bond, or other instrument evidencing the obligation secured by the mortgage or privilege;
“(2) The authentic act of mortgage or privilege importing a confession of judgment; and
“(3) Any judgment, judicial letters, order of court, or authentic act necessary to complete the proof of plaintiff’s right to use executory process.
“This requirement of authentic evidence is relaxed only in those cases, and to the extent, provided by law. A variance between the recitals of the note and of the mortgage regarding the obligation to pay attorney’s fees shall not preclude the use of executory process.”

It is settled law that a collateral mortgage note is the note evidencing the obligation, and that a bearer note, such as in this case, which is negotiable by delivery, may be transferred with no formality other than delivery. A pledgee to whom such a note is delivered becomes the holder thereof and may enforce payment. Slidell Building Sup., Inc. v. I.D.S. Mortgage Corp., 273 So.2d 343 (La.App. 1st Cir. 1972), writ denied 274 So.2d 708 (La.1973); First National Bank of Lafayette v. Gaddis, 250 So.2d 504 (La.App. 3rd Cir. 1971).

Appellants next complain that there is no authentic evidence of claimed interest. The hand note herein, which is appellants’ principal obligation to plaintiff, provides for an interest rate of “2% over prime as determined by the Chase Manhattan Bank of New York, Min. 12% Max; 18%.” The collateral mortgage notes provide for interest at the rate of 12% per annum. The petition, as amended, prays that the properties be sold, with appraisement, and that the proceeds of the sale, “to the extent of said mortgage and mortgage notes” be applied to the payment of the principal obligation. Both of the collateral mortgage notes are for $30,000.00. Appellants claim that extrinsic evidence of the prime rate as determined by Chase Manhattan Bank must be introduced in order to define the full extent of the obligation under the hand note, and that there is therefore no authentic evidence as to the main obligation. We cannot agree.

As pointed out above, the collateral mortgage note is the note evidencing the obligation secured. Variances between the collateral note and the hand note are common, and do not affect the right of the holder of the collateral note from proceeding with executory process. Citizen’s Finance Service, Etc. v. Hollier, 398 So.2d 582 (La.App. 1st Cir. 1980). The collateral mortgage can be enforced only to the limit of its own terms, and that is what is prayed for in this suit. See Nathan and Marshall, The Collateral Mortgage, 33 La.L.Rev. 497 (1973); Nathan and Marshall, The Collateral Mortgage: A Reassessment and Postscript, 36 La.L.Rev. 973 (1976).

Finally, appellants claim there is a variance, and therefore a lack of authentic evidence, between the attorney’s fees expressed in the collateral notes and collateral mortgages. The notes provide for “an attorney’s fees of $50.00 minimum or 25% of the total due. .. . ” The collateral mortgages provide that “said attorney’s fees to be fixed at twenty-five (25%) percent on the amount due or in suit.” The only discrepancy is that the note provides for a minimum fee of $50.00. We do not find that this constitutes a sufficient variance to preclude the use of executory process.

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

AFFIRMED.


text:
    Danny Glenn MILLER v. MCDONALD’S CORPORATION, et al.
    No. 14781.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Fred R. DeFrancesch, Baton Rouge, for plaintiff-appellant Danny Glenn Miller.
    Vincent P. Fornias, Baton Rouge, for defendants-appellees McDonald’s Corp. and McDonald’s Perkins Road, Inc.
    Before ELLIS, PONDER and SAVOIE, JJ.
   PONDER, Judge.

Plaintiff appealed the dismissal of his claims (with one exception) in tort.

The issues are the duties owed by defendant to plaintiff and the propriety of the dismissal of some but not all the multiple grounds of recovery on a peremptory exception of no cause of action.

We reverse and remand.

Since we are doing so on the second issue, we elect to express no opinion on the first tissue.

Plaintiff ordered food at one of defendants’ places of business. A heated argument arose between him and the manager over whether he was due change from a $5.00 or a $10.00 bill. Finally, plaintiff broke off the argument and walked outside to eat the food there. He was followed by three women who had been in line behind him. The ensuing argument was vociferous and obscene. Finally, the women left in an automobile but, while leaving, one of the women shot plaintiff, wounding him severely-

Plaintiff sued McDonald’s, the parent corporation, McD’s Perkins Road, Inc. and a fictitious insurance company, alleging that although the restaurant had been the scene of numerous criminal acts, defendants failed to provide adequate security and that the manager failed to calm a dangerous situation. Defendants’ exception of no cause of action was granted but plaintiff was allowed to amend. The amendment supplied a number of specific details to the allegations of negligence and added a claim for the return of the $5.00 he alleged he had been “shortchanged”. Defendants filed another exception of no cause of action. The court maintained the exception and dismissed all claims except that for the return of the $5.00.

The purpose of the peremptory exception of no cause of action is to test the legal sufficiency of the pleadings. Johnson v. Edmonston, 383 So.2d 1277 (La.App. 1st Cir. 1980); Gustin v. Shows, 377 So.2d 1325 (La.App. 1st Cir. 1979).

“When a petition states a cause of action as to any ground or portion of the demand, the exception of no cause of action must be overruled.” Rodriguez v. American Bankers Insurance Co. of Fla., 386 So.2d 652 (La.1980) citing Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La.1975); Louisiana & Arkansas Railway Company v. Goslin, 258 La. 530, 246 So.2d 852 (1971); Burns v. Genovese, 254 La. 237, 223 So.2d 160 (1969); Elliott v. Dupuy, 242 La. 173, 135 So.2d 54 (1961); Harwood Oil & Mining Co. v. Black, 240 La. 641, 124 So.2d 764 (1960). See also Taft v. City of Bossier City, 401 So.2d 461 (La.App. 2d Cir. 1981); Degel v. Deffes, 398 So.2d 1256 (La.App. 4th Cir. 1981); Ezell v. Morrison, 380 So.2d 664 (La.App. 4th Cir. 1980); Walker v. Western Southern Life Insurance Co., 361 So.2d 892 (La.App. 2d Cir. 1978), writ denied 363 So.2d 537 (La.1978); Ford Motor Credit Co. v. Soileau, 357 So.2d 563 (La.App. 3d Cir. 1978); Bailey v. Texas Pacific Coal and Oil Company, 134 So.2d 339 (La.App. 3d Cir. 1961). See also the opinion in Cenac Towing Co. v. Cenac, La.App., 413 So.2d 1351.

It is true that there is a line of cases to the contrary. City of Natchitoches v. State, 221 So.2d 534 (3d Cir. 1969), writ denied 254 La. 464, 223 So.2d 870 (1969) and cases listed in Bailey v. Texas Pacific Coal and Oil Company, supra, pages 340-341. We prefer to follow the first line.

The citation of LSA-C.C.P. Art. 1915 is unavailing, we believe, since although it speaks of dismissal of the suit as to some of the parties and adjudication of less than all issues of the case, it does so under the circumstances listed, none of which refers to a peremptory exception of no cause of action.

For these reasons the judgment appealed from is reversed and the case is remanded for further proceedings. Defendants are cast for the cost of this appeal.

REVERSED AND REMANDED.

      .This case contains a concise statement of the purpose of the rule:
      “The purpose of the rule is to prevent multiple appeals. The trial court’s ruling in this case is a final judgment which creates the right of appeal as to only part of plaintiffs cause of action and forces the intermediate court to consider the merits of that cause of action in a piece-meal fashion. The preferable procedure is for the trial court to overrule the exception and at the trial on the merits to exclude evidence of damages for breach of fiduciary obligation, if the court believes such damages are not recoverable. Relator can then include the evidence by means of a proffer, and in any subsequent appeal all issues can be presented at one time.”

      . This case contains the following at page 1256:
      “The effect of sustaining the exception of no cause of action or any peremptory exception, is to dismiss the action, not a part of the action. LSA-C.C.P. Art. 934.”

      . See the following on page 665:
      “Neither the exception of no right nor no cause of action can be employed to eliminate an isolated element of damage ... . ”

      . LSA-C.C.P. Art. 1915:
      “A final judgment may be rendered and signed by the court, even though it may not grant the successful party all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
      (1) Dismisses the suit as to less than all of the plaintiffs, defendants, third party plaintiffs, third party defendants, or interveners;
      (2) Grants a motion for judgment on the pleadings, as provided by Articles 965, 968, and 969;
      (3) Grants a motion for summary judgment, as provided by Articles 966 through 969; or
      (4) Renders judgment on either the principal or incidental demand, when the two have been tried separately, as provided by Article 1038.
      If an appeal is taken from such a judgment, the trial court nevertheless shall retain jurisdiction to adjudicate the remaining issues in the case.”


text:
    Brenella J. BROUSSARD v. FOREMOST INSURANCE COMPANY, et al, City of Zachary, and Home Insurance Company.
    No. 14784.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Robert C. Funderburk, Baton Rouge, for plaintiff-appellant Brenella J. Broussard.
    John R. Keogh, Baton Rouge, for defendants-appellees City of Zachary and Home Ins. Co.
    Dan Edward West, Baton Rouge, for defendants-appellees Ronnie Freeman and Commercial Union Ins. Co.
    Richard T. Reed, Baton Rouge, for defendants-appellees Donald J. Kleinpeter and International Indem. Co.
    Horace C. Lane, Baton Rouge, for defendants-appellees Ruby M. Wright and State Farm Mut. Auto. Ins. Co.
    J. Gregg Collins, Dale W. Poindexter, New Orleans, for defendants-appellees Foremost Ins. Co. and Lawless J. Broussard.
    W. S. McKenzie, Nancy C. Tyler, Baton Rouge, for defendant-appellee Travelers Ins. Co.
    Before ELLIS, PONDER and SAVOIE, JJ.
   SAVOIE, Judge.

This action arises out of an accident that occurred during daylight hours on June 21, 1979, at a bridge located on Louisiana Highway 19 near the City of Zachary, Louisiana.

On this date, the City of Zachary had detailed employees to paint the bridge on which the accident occurred. A passing motorist, Ruby Wright, stopped her vehicle on the shoulder and partially on the north bound lane of Highway 19 to ask the employees to see if she was getting a flat tire. Several of the employees approached the vehicle and spoke to Ruby Wright. At this same time a vehicle being driven by Mr. Ronnie Freeman approached the scene and went around the Wright vehicle by going partially into the south bound lane of travel of Highway 19. The Freeman vehicle was being followed by a pick-up truck operated by Mr. Donald J. Kleinpeter. Mr. Kleinpeter decided to stop rather than go into the south bound lane of traffic as Mr. Freeman had done. The husband of the plaintiff, Lawless Broussard, who was following some three to four car lengths behind the Klein-peter vehicle, failed to stop his motorcycle in time. He hit the rear of the Kleinpeter vehicle' with his handlebar. The plaintiff, Mrs. Broussard, riding with her husband, was thrown from the motorcycle and suffered a displaced fracture of the tibia, a fracture of the fibula and lacerations of the leg.

This action was tried by jury against Foremost Insurance Company, insurer of the motorcycle operated by Lawless Brous-sard, on which plaintiff was a passenger; against Ruby Wright, owner and operator of a vehicle insured by State Farm Mutual Automobile Insurance Company; against Ronnie Freeman, owner and operator of a vehicle insured by Commercial Union Insurance Company; against Donald J. Kleinpeter, owner and operator of a vehicle insured by International Indemnity Company; against the City of Zachary, employer of “CETA” workers, insured by Home Insurance Company; and against Travelers Insurance Company, the plaintiff’s underin-sured motorist carrier.

The jury found defendants Kleinpeter and Freeman free from negligence; plaintiff has not appealed this portion of the judgment. The jury found defendants Ruby Wright and Foremost Insurance Company (through Lawless Broussard) liable unto plaintiff. Plaintiff has accepted payment from these parties and Travelers Insurance Company, and has released them with reservation of rights against Home Insurance Company and the City of Zachary-

The jury found that-the City of Zachary was negligent, but that its negligence was not a proximate cause of the accident. Stipulated medical expenses were $15,-156.33 and general damages awarded to plaintiff were $25,000.00.

By this appeal, Mrs. Broussard claims that the jury’s conclusion that the employees of the City of Zachary did not contribute to the accident is clearly wrong and that the amount of damages awarded is too small.

Mrs. Broussard’s claim against the City rests on the argument that it negligently failed to provide warning devices at the site of maintenance work on the bridge and to adequately train and supervise its employees in traffic control. The jury evidently accepted this argument because it declared the City negligent. However, it found that that negligence was not a proximate cause of the accident. There is some evidence in the record on which the jury could have based a finding of liability against the City. But the record also contains evidence which fully supports the finding of no liability that the jury in fact produced. Particularly relevant is the testimony of Mr. Donald J. Kleinpeter, who has been mentioned already.

Q. So, her vehicle sticking out into the northbound lane of traffic is what caused you to come to a stop?
A. Right.
Q. Were any CETA workers stepping out in front of your vehicle or going out in your lane of traffic?
A. No. That was all the CETA workers I saw was around the vehicle.
Q. On the other side of the vehicle?
A. Right.
(Tr. 328)

This shows that in the opinion of Mr. Kleinpeter, the obstruction to traffic was caused solely by Mrs. Ruby Wright’s improperly parked car, and not by city employees standing in the roadway.

A review of the record convinces us that the conclusions of the jury were correct, and we find no error therein, manifest or otherwise; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The injuries suffered by Mrs. Brous-sard were quite painful, temporarily disabling, and have left scars. She has, however, substantially recovered from them. Article 1934 of our Civil Code allows the trier of fact much discretion in fixing a money amount in cases of this sort and we can find no reason to say that a $25,000.00 award in this case is an abuse of that discretion; Coco v. Winston Industries, Inc., 341 So.2d 332, (La.1976).

The judgment of the trial court will be affirmed in all respects. Costs of this appeal are to be paid by appellant.

AFFIRMED.


text:
    PAN AMERICAN LIFE INSURANCE COMPANY v. Terry Yamazaki HANCOCK, Administratrix of the Succession of Verna L. Coleman, et al. The MUTUAL BENEFIT LIFE INSURANCE COMPANY v. Terry Yamazaki HANCOCK, Administratrix of the Succession of Verna L. Coleman, et al. Terry Yamazaki HANCOCK, Administratrix of the Succession of Verna L. Coleman v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA.
    Nos. 14786-14788.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      John Swanner, Baton Rouge, for plaintiff-appellee Pan American Life Ins. Co.
    Carlos G. Spaht, Baton Rouge, for defendant-appellee Ann Herron Williams.
    John R. Olds, Baton Rouge, for defend-ani>appellant Terry Yamazaki Hancock.
    Victor A. Sachse, III, Jay G. McMains, Baton Rouge, for plaintiff-appellee The Mut. Benefit Life Ins. Co.
    Charles W. Wilson, III, Baton Rouge, for defendant-appellee The Pnidential Ins. Co. of America.
    Before ELLIS, PONDER and SAVOIE, JJ.
   ELLIS, Judge:

These three consolidated concursus proceedings present a contest as to the proceeds of three group life insurance policies on the life of Walter Nelson Williams, each of which named Verna Coleman as beneficiary. Contestants are the heirs of Mr. Williams and the Succession of Miss Coleman. After trial on the merits, one judgment was signed in the three cases, awarding the proceeds of the policies to the Williams heirs, and the Administratrix of the Succession of Verna Coleman has appealed.

The record reveals that the bodies of Mr. Williams and Miss Coleman were found in their apartment, several days after their deaths. Both had been shot and killed by a .25 caliber automatic, which was the property of Miss Coleman.

Mr. Williams had been shot in the left temple, and killed instantly. Powder burns on his head indicated that the gun had been held against his temple when it was fired. After his death, his boots and trousers had been removed and were at some distance from his body. Miss Coleman died from a single shot to her left breast, which passed through her body and probably produced death within one or two minutes. It was clear from the evidence that she was shot after Mr. Williams had been shot and died after he died.

Expert witnesses concluded from the evidence that Miss Coleman had killed Mr. Williams, and had later committed suicide. The investigation did not reveal any evidence that a third party or parties were present in the apartment, nor were any property or valuables missing.

Other evidence indicated that both decedents were right-handed. Invitations for their forthcoming wedding had been printed, addressed and stamped, but not mailed. One witness testified that Mr. Williams had said that he was not ready to get married and that he was going to tell Miss Coleman that the wedding was off. The witness also stated on cross examination, that Mr. Williams might have been joking, but that he seemed serious.

The investigating detective, who qualified as an expert in homicide and suicide investigations, testified that he did not believe the killing of Mr. Williams to have been accidental because of the fact that the gun was pressed to his head when it was fired. He did not believe that Mr. Williams shot himself because he was right-handed and was shot in the left temple. The forensic medicine expert agreed that Miss Coleman had shot Mr. Williams and then committed suicide, but declined to speculate further.

The trial judge, in his oral reasons, concluded as follows:

“But after considering all of the facts, the court concludes that Verna Coleman did, in fact, kill Nelson Williams, and thereafter took her own life. The preponderance of the evidence, which is the burden of proof in this case, shows that. The court further feels that the evidence shows that Verna Coleman killed Walter Williams in one of three ways, either by murder, which would be intentional killing; by manslaughter, by an act of provocation; or by negligent homicide. All three of these theories would come under a felonious or intentional killing. And therefore, the court holds that Verna Coleman’s estate cannot be a beneficiary of these policies.”

In this court, the Administratrix of Miss Coleman’s succession argues that the trial judge erred in holding that an unintentional killing was sufficient, as a matter of law, to disqualify Miss Coleman as beneficiary; and that the evidence was not sufficient to support a finding that Miss Coleman intentionally and unjustifiably killed Mr. Williams.

The deaths occurred in March, 1979, prior to the enactment of Act 246 of 1979, R.S. 22:613(D). Therefore, the law applicable in this situation is as expressed in American Nat. Life Ins. Co. v. Shaddinger, 205 La. 11, 16 So.2d 889 (1944) as follows:

“... The heirs of the insured invoke the law which 'is recognized by all of the courts, as a matter of public policy, that a beneficiary named in a life insurance policy is not entitled to the proceeds of the insurance if he or she feloniously kills the insured.
“The converse of the proposition is that the intentional killing by the beneficiary of the person insured, if committed in lawful self-defense, will not prevent the beneficiary from claiming the proceeds of the insurance on his life.”

The word “felonious” is defined in Black’s Law Dictionary as follows:

“A technical word of law which means done with intent to commit crime, i.e. criminal intent.”

“Feloniously” is defined in Black’s Law Dictionary as follows:

“Of, pertaining to, or having, the quality of felony. Proceeding from an evil heart or purpose; done with a deliberate intention of committing a crime.”

We therefore find that a beneficiary is not deprived of the proceeds of a life insurance policy if he accidentally or unintentionally kills the insured.

However, we think the preponderance of the evidence is that the killing of Mr. Williams was done by Verna Coleman, and that it was neither accidental nor unintentional. We agree with the opinion of the investigating officer that the fact that the gun had been pressed to Mr. Williams’s temple when it was fired is not consistent with a finding that Miss Coleman accidentally fired the fatal shot. We therefore feel that Miss Coleman intentionally and feloni-ously killed Mr. Williams, without legal justification, and is thereby precluded from being a beneficiary under the policies in question in these three cases.

The judgment appealed from is therefore affirmed. Costs of this appeal shall be paid by appellant.

AFFIRMED.


text:
    Stanley C. GOBBLE, Individually and as Natural Tutor for the Minor, Beth E. Gobble, James Gobble, Vicky Gobble, Sheila Gobble Mankopf and Diane Gobble Traylor v. BATON ROUGE HOSPITAL and Roderick P. Perron.
    No. 14790.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Russell L. Dornier, Baton Rouge, for plaintiffs-appellants Stanley C. Gobble, Individually and as Natural Tutor for the Minor, Beth E. Gobble, James Gobble, Vicky Gobble and Sheila Gobble Mankopf.
    George K. Anding, Jr., Baton Rouge, for defendant-appellee Baton Rouge General Hospital.
    Frank W. Middleton, Jr., Baton Rouge, for defendant-appellee Roderick P. Perron.
    Before ELLIS, PONDER and SAVOIE, JJ.
   SAVOIE, Judge.

This negligence action against a hospital and a physician arises from the doctor’s alleged failure to diagnose pneumonia. The patient, a woman, sought emergency room treatment for difficulty in breathing. She was prescribed drugs for hyperventilation and was released. She died at her home the next morning. Because the case has never been put before a medical review panel as required by Louisiana’s Medical Malpractice Act L.S.A.-R.S. 40:1299.41 et seq., it was dismissed without prejudice on a dilatory exception of prematurity by the trial court.

On appeal, it is claimed (1) that the Medical Malpractice Act applies only to claims for injuries not resulting in death, and (2) that the act applies only to claims brought by the victim himself or by someone acting in his place. Each claim requires brief discussion.

As to claim No. 1, we hold that the Malpractice Act applies to all claims alleging medical malpractice. R.S. 40:1299.47 provides that “All malpractice claims” against defendants covered by the act, except those submitted to arbitration by consent of the parties “shall be reviewed by a medical review panel”. The argument that “all malpractice claims” does not really mean “all malpractice claims” has been sifted from the definitional section of the act.

R.S. 40:1299.41(A)(8) defines “malpractice” as, among other things not here relevant, a tort.

R.S. 40:1299.41(A)(7) defines “tort” as a breach of duty resulting in “injury or damage”. The argument presented here is that since, in other parts of this statute, the words “bodily injury or death” are used, exclusion of the word “death” and use of the words “injury or damage” instead in the special statutory definition of tort reflects an intent that death claims not be considered to be “torts” under the statute and thus not “malpractice” either. This conclusion, based on a highly strained chain of inferences is completely contradicted by the language of R.S. 40:1299.41(E) which speaks of the rights of a patient having a claim “for bodily injury or death on account of malpractice”, clearly showing that the legislature intended “malpractice” to encompass death claims.

As to claim No. 2, we hold that the Medical Malpractice Act applies to all persons alleging medical malpractice. Plaintiffs in this suit are bringing their action in two capacities. First, they are suing as the representatives of the deceased, to recover damages due her. Second, they are suing in their own behalf to recover damages caused to them by the loss of their wife and mother. They argue here that even if the Malpractice Act be construed to apply to their first claim, their second is free of it since R.S. 40:1299.41(E) restricts coverage of the act to claims brought by “a patient or his representative”. The short answer to this argument is that R.S. 40:1299.41(E) does not so restrict coverage of the act. The statutory language in question merely states that, subject to the terms of the Act “a patient or his representative ... may file a claim in any court of law having requisite jurisdiction”.

This would have been true whether stated or not and may have been inserted by the legislature just to reassure those who feared the effect of the statute would be to cut off access to the courts to persons with medical malpractice claims. Whatever the reason for it, it is not restrictive by its terms and does not change in any way the effect of 40:1299.47, already quoted, which states that “all malpractice claims” must go before a review panel. We hold that “all malpractice claims” includes death claims as well as claims for lesser injuries, and includes claims brought by third parties in their own behalf as well as those brought in a representative capacity.

We note in passing, that though the specific issues addressed here have apparently never been before raised, courts of our state have routinely disposed of wrongful death cases under the provisions of the Medical Malpractice Act. See, for example, Travasos v. New Orleans Metairie Hospital, 381 So.2d 877 (La.App. 4th Cir. 1980); Cashio v. Baton Rouge General Hospital, 378 So.2d 182 (La.App. 1st Cir. 1979); all cited in the brief of the appellee.

Additionally, our disposition here accords with the practice of our courts in applying the provisions of the act freely to the whole range of medical-related claims. We hold to the views expressed by Judge Ponder in the recent case of Cashio v. Baton Rouge General Hospital, 378 So.2d 182 (La.App. 1st Cir. 1979) where we held “based upon our understanding of the legislative intent, that any conduct complained of should be handled under the procedure of the Act if it can reasonably be said that it comes within the definitions of the Act ...” at 185.

The decision of the trial court is affirmed.

Appellant is to pay all costs.

AFFIRMED.


author: ELLIS, Judge.

text:
    Mary Foster FRANKLIN v. Eddie FRANKLIN.
    No. 14791.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Ben E. Atkins, Baton Rouge, for plaintiff-appellee Mary Foster Franklin.
    James B. Thompson, III, Baton Rouge, for defendant-appellant Eddie Franklin.
    Before ELLIS, PONDER and SAVOIE, JJ.
   ELLIS, Judge.

This is a suit for the partition of property belonging to the community which formerly existed between plaintiff Mary Foster Franklin and defendant Eddie Franklin. The record shows that the parties purchased Lot 9 of Square 11 of Jordan Terrace subdivision on July 10, 1962, while still married to each other. They were legally separated on August 28, 1968. Mr. Franklin testified that at the time of the separation, their equity in the property was worth $2,600.00. He testified that he had offered to sell to Mrs. Franklin or buy her out for $1,300.00, but she refused. Subsequent to the separation, Mr. Franklin remained in possession of the lot and home. On November 30, 1976, he purchased the adjoining lot, Lot 8 of Square 11, and thereafter improved the existing house and constructed an addition thereto, which was built partly on Lot 8 and partly on Lot 9.

As of the time of trial, the property, consisting of both lots and the improvements thereon, was appraised at $58,200.00. The original house on Lot 9 would have then had an appraised value of $16,500.00.

It was stipulated that Mr. Franklin paid $7,425.00 to retire a mortgage that was on the property securing a community debt for which he is entitled to credit. He expended $16,455.00 on the improvements added after the divorce. It was further stipulated that Lot 8 had a value of $5,250.00.

After the trial, at which it was further stipulated that the property could not be partitioned in kind, the court ordered the property to be sold to effect a partition by licitation, for not less than $40,000.00 cash. It was ordered that both Lot 9, which was community property, and Lot 8, which was Mr. Franklin’s separate property, be included in the sale, as well as the original community home and the addition made thereto by Mr. Franklin. It was further ordered that, from the proceeds of the sale, the Sheriff pay to Mr. Franklin $29,130.00, being the total expended by him in mortgage payments, improvements, and the purchase of Lot 8. The Sheriff was ordered to divide the balance of the purchase price equally between the parties hereto. From that judgment, Mr. Franklin has appealed.

In this court, defendant contends that the judge erred in ordering the sale of Lot 8, which is his,separate property; that the trial court erred in not giving him credit for the enhanced value of his separate property and the community property arising from the improvements placed thereon with his separate funds; and that the court erred in allowing the plaintiff to share in the enhanced value of defendant’s separate property.

Defendant argues that only the $16,-500.00 value of the original property should be partitioned; that defendant’s separate estate should pay that amount to the community estate; that defendant should receive credit for the community mortgage which he paid off, and the balance remaining should be equally divided between plaintiff and defendant. Apparently, defendant also contends that there is no necessity to order a sale of the property to effect the partition, if the above procedure is followed.

As to the sale of Lot 8, we can find no law, jurisprudential, codal or statutory, which covers this situation, in which a structure, part community and part separate, stands on property which is part community and part separate. Since positive law is silent, under the dictates of Art. 21 of the Civil Code, the question must be decided according to “natural law and reason”. In this case, it is apparent from the record that the house built on the two lots cannot be moved, disassembled, or returned to its original state, without substantial loss to both parties. We conclude, as did the district judge, that the partition sale must include both Lot 8 and Lot 9, and all of the improvements thereon. Defendant cannot be heard to complain, since the situation has resulted from his own actions.

An owner in indivisión of an immovable who is in possession thereof, and who constructs improvements thereon, bona fide, is entitled to be reimbursed the cost of the materials and of the workmanship, or their current value, or the enhanced value of the immovable. Article 496, Civil Code; Grouchy v. Williams, 161 La. 909, 109 So. 545 (1926). The choice of the method of compensation is at the option of the other co-owner. In this case, by not appealing, plaintiff has acceded to the judgment signed herein, which, in effect, reimburses defendant for the cost of the improvements made by him. We therefore find no error in the finding of the trial judge in this respect.

As to the suggestion that the partition be made without sale, we note that the Civil Code provides only for partition in kind or by licitation. It is stipulated in this case that the property is not divisible in kind. Therefore, it must be sold to effect the partition. Arts. 1336, 1337, 1339, Civil Code.

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

AFFIRMED.


text:
    Nancy Estill BERINGER v. Frederick Porter BERINGER, Jr.
    No. 14792.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.
    Michael W. McKay, Baton Rouge, for plaintiff-appellee Nancy Estill Beringer.
    C. John Naquin, Jr., Baton Rouge, for defendant-appellant Frederick Porter Ber-inger, Jr.
    Before ELLIS, PONDER and SAVOIE, JJ.
   PONDER, Judge.

Defendant appealed from that portion of a divorce judgment which continued the consent support provisions awarded by the judgment for separation.

The sole issue is the validity of the support awarded.

We affirm.

At the hearing on the petition for separation, plaintiff produced a letter from the defendant stating that he and his wife had agreed on the terms of the judgment, that he had discussed the matter with plaintiff’s attorney, had retained counsel for advice and that the judgment contained the terms he had agreed to. He had read and signed each page of the proposed judgment and requested that it be fully .implemented.

The terms agreed to and incorporated into the judgment of separation were the payment of 1) $700.00 per month for one year from the date of legal separation and $350.00 per month for another year; 2) $406.00 per month payment on the house mortgage for a period of five years unless plaintiff remarried or sold the house; 3) an amount sufficient to pay utility, telephone, medical, dental and house maintenance bills for two years; 4) an amount sufficient to pay various credit card bills for two years or until plaintiff became employed full-time; 5) maintenance of home and life insurance policies for two years; 6) payment for two years of all plaintiff’s taxes except on her income and 7) all attorney’s fees. This judgment was not appealed and is final. However, defendant filed a rule to reduce alimony, but the rule was not heard.

A year later, plaintiff petitioned for divorce and asked that the terms for support be continued. Defendant answered that plaintiff had sufficient means and was not entitled to permanent alimony.

The trial judge held that the parties agreed upon a form of “rehabilitative alimony,” by a method varying from customary procedures and incorporated the terms into the divorce judgment. He made the finding that the plaintiff would not be entitled to permanent alimony beyond the terms of the agreement.

Defendant argues that alimony after divorce is obtainable only when she is not at fault and without sufficient means for support. Although this is the standard under La.C.C. Art. 160, a spouse may now contract on this subject. See King v. King, 390 So.2d 250 (3rd Cir. 1980), writ denied 396 So.2d 884 (La.1981). The incapacities that once existed as to contracting between spouses were not in effect at the time the parties reached their agreement.

Defendant next contends that the parties agreed to the terms of the judgment for alimony pendente lite purposes only, but did not form an agreement for permanent alimony. He argues that that judgment of divorce terminated any order to pay alimony pendente lite.

The trial court’s determination that the intent of the parties was to enter into a binding agreement for support that would cover both the post-separation and pos1>di-vorce periods is not manifestly erroneous. Although the separation judgment used the term “alimony pendente lite,” it awarded cash payments for two years, the payment of the house note for five years unless the plaintiff remarried or sold the house prior to that time and other provisions without reference to any limitation to the time that alimony pendente lite would be payable.

For these reasons, the trial court’s judgment is affirmed with costs assessed to the defendant.

AFFIRMED.

      . La.C.C. Art. 160:
      “When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which has no jurisdiction over the person of the claimant spouse. In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouses’s earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; any other circumstances that the court deems relevant.
      In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capability, in light of all other circumstances.
      This alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries.”

      . La.C.C. Art. 2446 (Repealed by Acts 1978, No. 627, § 5; Acts 1979, No. 709, § 2).
      La.C.C. Art. 1790 (Amended by Acts 1978, No. 627, § 3; Acts 1979, No. 711, § 1.)
      “Besides the general incapacity that persons of certain descriptions are under, there are others applicable only to certain contracts, either in relation to the parties, such as tutor and ward, whose contracts with each other are forbidden; or in relation to the subject of the contracts, such as purchases, by the administrator, of any part of the estate committed to his charge. These take place only in the cases specially provided by law, under different titles of this Code.”


author: COLE, Judge.

text:
    Marcia Ann GRAND v. John Douglas GRAND.
    No. 14796.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Lawrence B. Shallcross, Jr., Baton Rouge, for plaintiff-appellee Marcia Ann Grand.
    Stephen C. Riedlinger, Baton Rouge, for defendant-appellant John Douglas Grand.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

Appellant, John Douglas Grand, and ap-pellee, Marcia Ann Grand, were divorced on November 25, 1980. Custody of the five minor children born of their marriage was awarded to appellee. The parties’ stipulation that appellant was to pay the sum of $300.00 per week child support was incorporated into the divorce judgment.

On April 14,1981, appellant filed a rule to change custody of his son, Warren Douglas Grand, from appellee to himself and to discontinue payments to appellee for the support of the child.

After a hearing was held on June 11, 1981, judgment was rendered, granting permanent custody of Warren Douglas Grand to appellant, but rejecting his request for a reduction in the amount of child support to be received by appellee. Judgment was signed accordingly on June 12, 1981.

Appellant has perfected a devolutive appeal only from that portion of the trial court judgment rejecting his request for a reduction in the amount of child support to be received by appellee. The only issues, therefore, are whether or not appellant is entitled to a reduction in the amount of child support he is obligated to pay; and, if he is entitled to a reduction, the amount thereof.

Warren Douglas Grand began living with his father sometime in March of 1981. He was sixteen years of age at that time. The trial court felt that despite the absence of Warren from the household, appellee’s expenses for raising four children would remain the same as for five children, except for the amount spent for Warren’s food. The court stated that particular expense did not amount to much and thus denied any reduction in child support.

To fulfill appellant’s child support obligation, the parties had agreed by stipulation, which was incorporated into the divorce judgment, to an arrangement whereby appellant would purchase certain certificates of deposit from which appellee would draw $300.00 per week until the funds from the certificates were exhausted. Although it is unclear from the record exactly when these funds will be depleted, they apparently have not as yet been exhausted. After the depletion of these funds the stipulation, and the divorce judgment, calls for appellant to pay support in the amount of $60.00 per week per child. Appellant thus seeks a reduction of $60.00 per week due to the transfer of custody of Warren, on the grounds that the child support award was calculated on that basis.

No evidence was offered by either party to show their current earnings or expenses or those necessary for the support of the minor children involved.

When an in globo award of child support has been made for several children, the faet that one child is no longer entitled to child support, even as a matter of law, or that custody of one child has been changed from one parent to the other does not necessarily entitle the parent paying child support to a reduction in the amount of child support he is obligated to pay. Gautreaax v. Gautreaux, 382 So.2d 996 (La.App. 1st Cir. 1980); Blankenship v. Blankenship, 382 So.2d 982 (La.App. 1st Cir. 1980); McDaniel v. McDaniel, 288 So.2d 86 (La.App. 4th Cir. 1974). Before the granting of such a reduction, a redetermination of the needs of the other children should be made. Gautreaux v. Gautreaux, supra; Wallace v. Wallace, 316 So.2d 496 (La.App. 2d Cir. 1975); McDaniel v. McDaniel, supra. There are many factors such as the ages of the children, special medical problems, or educational needs which may warrant an increase in child support. It may well be that their financial needs have increased to such an extent since the time of the original award so as to off-set any reduction which might otherwise be appropriate. Blankenship v. Blankenship, supra; Bordelon v. Bordelon, 380 So.2d 110 (La.App. 1st Cir. 1979).

However, even if the court concludes that there are no circumstances justifying such an increase, the parent who has received custody of one child and who is paying support for the children retained in the custody of the other parent is not necessarily entitled to a pro rata reduction in the amount he is required to pay. Gautreaux v. Gautreaux, supra; Wallace v. Wallace, supra; McDaniel v. McDaniel, supra. There is no requirement that an equal amount of child support be awarded for each child. Moss v. Moss, 379 So.2d 1206 (La.App. 3d Cir. 1980). Thus, where an in globo award of child support has been made, it cannot automatically be presumed that equal amounts were awarded for each child. Gautreaux v. Gautreaux, supra; Wallace v. Wallace, supra.

It is probably safe to say that no two children have exactly the same financial needs. There are a multitude of factors, which vary from child to child, such as age, emotional and physical health, and educational needs, which necessitate such a conclusion. Additionally, there are certain expenses which often remain the same despite the fact that one child has moved from the home. An example of one such expense is that required for housing. Gau-treaux v. Gautreaux, supra. Thus, in order to determine what reduction of an in globo award is appropriate when custody of one child has been transferred from one parent to the other, it is necessary to examine the individual needs of that child in relation to the total amount of child support awarded. It may be that the needs of the particular child for whom custody has been changed do not amount to what would be a pro rata share of the total award.

A modification of a child support award is appropriate only where there has been a change in circumstances justifying it. Blondeau v. Blondeau, 396 So.2d 403 (La.App. 1st Cir. 1981). In the present case, the change in circumstances upon which appellant relies to justify a reduction in his child support obligation is the change of custody of his eldest son, Warren, from appellee to himself. Such a change in custody is usually considered sufficient to warrant a modification of an award of child support. Blondeau v. Blondeau, supra; Smith v. Smith, 357 So.2d 1380 (La.App. 4th Cir. 1978), writ denied, 359 So.2d 1305 (1978); Cenac v. Power, 211 So.2d 408 (La.App. 1st Cir. 1968); writ denied, 215 So.2d 123 (1968). Of course, this premise is valid only in the event no circumstances justifying an increase in the amount of support required for the other children is shown. Blankenship v. Blankenship, supra; Bordelon v. Bordelon, supra. Here, appellee has not shown any changed circumstances justifying an increase in the child support for the four children remaining in her custody. In fact, appellee has not alleged any changes in circumstances justifying an increase in child support and she failed to present any evidence in this regard. The record is devoid of any evidence of current expenses or the financial needs of the children remaining in appellee’s custody. Strangely, appellee did not even testify.

The effect of the trial court’s refusal to grant appellant a reduction in his child support obligations was to increase the amount of child support due for each of the four children in appellee’s custody. Under Blondeau, supra, error was committed when this increase was granted without evidence to make out the requisite showing of changed circumstances. The award originally made for five children should have been reduced when it became applicable to only four children. Accordingly, appellant is now entitled to a reduction.

The appropriate amount of the child support reduction must be determined. As discussed above, where an in globo award has been made, it cannot automatically be presumed that an equal amount was awarded for each child. However, the judgment in the present case was a consent decree agreed upon by the parties. They stipulated child support in the amount of $300.00 per week was to be drawn by appel-lee from certain certificates of deposit and that, once these funds were depleted, appellant was to pay $60.00 per week per child. Appellant argues the latter portion of this stipulation proves the original in globo award of $300.00 per week was based upon $60.00 per child, and he is thus automatically entitled to a reduction of $60.00 per week. We do agree it was the obvious understanding of the parties that the in globo amount of $300.00 per week represented $60.00 per child per week. At the time of the stipulation, the children ranged in age from approximately 12 to 16 and thus there was no substantial disparity in circumstances to suggest a difference in financial needs. They were all of school age and without any evidence to the contrary, it can be presumed their needs were similar. In view of this situation, and the short period of time between the stipulated judgment and the judgment under review, a reduction upon a pro rata basis is both logical and fair. In addition to food, appel-lee was undoubtedly required to make expenditures on Warren’s behalf for clothing, medical care, educational supplies, and the usual miscellaneous items common to all teenagers. She will no longer be required to make these expenditures.

For the foregoing reasons, we amend the judgment appealed to the extent that appellant’s child support obligation be ordered reduced from the sum of $300.00 per week to the sum of $240.00 per week, all other aspects of the child support provisions previously decreed by judgment of November 25, 1980 to remain the same.

Appellee is cast for all costs of court.

AMENDED AND RENDERED.


author: WATKINS, Judge.

text:
    Earl DOMINGUEZ v. The TRAVELERS AND ALLSTATE INSURANCE COMPANY.
    No. 14797.
    Court of Appeal of Louisiana, First Circuit.
    May 25, 1982.

      Arthur Cobb, Baton Rouge, for plaintiff-appellant Earl Dominguez.
    Donald R. Smith, Baton Rouge, for defendant-appellee Allstate Ins. Co.
    John Michael Parker, Baton Rouge, for defendant-appellee The Travelers Ins. Co.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action brought by Earl Dominguez against The Travelers Insurance Company and Allstate Insurance Company. Travelers and Allstate each filed an exception of prescription, which exceptions were sustained. Dominguez appealed. We affirm.

The sole question presented by this case is whether or not Act 444 of 1977, which took effect on July 1, 1978, and became LSA-R.S. 9:5629, may be retroactively applied to an accident that allegedly took place on June 9, 1977. R.S. 9:5629, which reduced the prescriptive period for filing an uninsured motorist action under a motor vehicle insurance policy from 10 years to 2 years, reads as follows:

“Actions for the recovery of damages sustained in motor vehicle accidents brought pursuant to uninsured motorist provisions in motor vehicle insurance policies are prescribed by two years reckoning from the date of the accident in which the damage was sustained.”

It is alleged that an automobile accident resulting in injury to Dominguez occurred on June 9, 1978, through the fault of J. D. Knight, an uninsured motorist. Defendants are Allstate, plaintiff’s uninsured motorist insurer, and Travelers, which provided uninsured motorist coverage on the vehicle plaintiff was driving at the time of the accident. Knight was not sued.

Act 444 of 1977 was enacted in July 1977, and published in the state’s official journal on August 8, 1977. The statute took effect on July 1, 1978. If the statute is given retroactive effect, the uninsured motorist claim prescribed on June 8,1979, or approximately a year and a half before suit was filed.

The general rules of this state regarding the retroactive application of state statutes are clearly and succinctly set forth in the following passage from Lott v. Haley, 370 So.2d 521 (La.1979), which denied LSA-R.S. 9:5628 (a wholly unrelated statute dealing with the prescriptive period for medical malpractice) retroactive effect:

“La. Civil Code art. 8 provides that ‘[a] law can prescribe only for the future; it can have no retrospective operation, .... ’ Likewise, La.R.S. 1:2 states that no statute is retroactive unless it is expressly so stated. According to this court’s consistent interpretation, however, the general rule of prospective application applies only to substantive laws as distinguished from merely procedural or remedial laws which will be given retroactive effect in the absence of language showing a contrary intention. Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d 1331 (La.1978); General Motors Acceptance Corp. v. Anzelmo, 222 La. 1019, 64 So.2d 417 (1953). This jurisprudential rule is subject to the exception that procedural and remedial laws are not accorded retroactive effect where such retroac-tivity would operate unconstitutionally to disturb vested rights. Orleans Parish School Board v. Pittman Construction Co., 261 La. 665, 260 So.2d 661 (1972); Succession of Lambert, 210 La. 636, 28 So.2d 1 (1946); Shreveport Long Leaf Lumber Co. v. Wilson, 195 La. 814, 197 So. 566 (1940).
It is well established that statutes of limitation are remedial in nature and as' such are generally accorded retroactive application. State v. Alden Mills, 202 La. 416, 12 So.2d 204 (1943); Shreveport Long Leaf Lumber Co. v. Wilson, supra; DeArmas v. DeArmas, 3 La.Ann. 526 (1848). However, statutes of limitation, like any other procedural or remedial law, cannot consistently with state and federal constitutions apply retroactively to disturb a person of a preexisting right. Orleans Parish School Board v. Pittman Construction Co., supra. Nonetheless, a newly-created statute of limitation or one which shortens existing periods of limitation will not violate the constitutional prohibition against divesting a vested right provided it allows a reasonable time for those affected by the act to assert their rights. Cooper v. Lykes, 218 La. 251, 49 So.2d 3 (1950); State v. Recorder of Mortgages, 186 La. 661, 173 So. 139 (1937). Moreover the legislature is the judge of the reasonableness of the time and the courts will not interfere except where the time is so short as to amount to a denial of justice. Cooper v. Lykes, supra. Finally, where an injury has occurred for which the injured party has a cause of action, such cause of action is a vested property right which is protected by the guarantee of due process. Burmaster v. Gravity Drainage District No. 2 of the Parish of St. Charles, 366 So.2d 1381 (La.1978).” (footnote omitted) (370 So.2d 521, 523-524)

In Johnson v. Fournet, 387 So.2d 1336 (La.App. 1st Cir. 1980), we held, under the facts of that ease in which the plaintiff had only some 7 or 8 months after the effective date of Act 444 of 1977 to file suit, that Act 444 could not be applied retroactively to cause the tolling of prescription. However, a more recent holding of this court, Tate v. Rea, 405 So.2d 1200 (La.App. 1st Cir. 1981) accorded Act 444 of 1977 retroactive application, as the Third Circuit had done in Tilley v. Government Employees Insurance Company, 396 So.2d 525 (La.App. 3d Cir. 1981), stating that sufficient time was permitted by the approximately nine months between enactment of R.S. 9:5629 (Act 444 of 1977) and its effective date to satisfy the requirements set out in Lott. Johnson v. Fournet was held to apply only to the facts of that ease.

Several recent cases decided by the Courts of Appeal also reached the result reached in Tate and Tilley. See Reichenphader v. Allstate Insurance Company, 402 So.2d 311 (La.App. 4th Cir. 1981); Ewing v. State Farm Mutual Automobile Insurance Company, 402 So.2d 779 (La.App. 3d Cir. 1981), and Hoefly v. Government Employees Insurance Company, 403 So.2d 853 (La.App. 2d Cir. 1981). Thus, it would appear Act 444 should be applied retroactively.

Dominguez contends, however, that his right to UM coverage exists by virtue of insurance contracts, and that to apply Act 444 retroactively is to unconstitutionally impair the obligation of contracts. However, enactment or amendment of a statute of limitations reducing the time in which an action in contract may be brought does not impair the obligation of contract if a reasonable time is permitted the litigant to file suit after enactment. Cooper v. Lykes, 218 La. 251, 49 So.2d 3 (La.1950); see also generally Constitutional Law, § 394, 16A C.J.S., pp. 79 et seq. With regard to Act 444 of 1977, it has repeatedly been held that a reasonable time was afforded the prospective litigant between the date of enactment of that statute and its effective date. Hence, the obligation of contract is not impaired by applying Act 444 retroactively.

Dominguez further contends that Lott is not applicable because it considered the retroactivity of a prescriptive statute in a medical malpractice case, a tort claim, while the present case is based on insurance contracts. However, Lott bases its analysis upon a determination of whether or not vested rights are divested. A vested right to file an action is not deemed divested by a prescriptive statute if a reasonable time is permitted to file suit after enactment. No distinction is made between an action based on contract and an action for a tortious offense. Nor do we see a reason why a different rule should apply to a vested right created by contract from that applicable to a vested right created by tort. In either case, a reasonable time must be allowed after a prescriptive statute takes effect to file an action to enforce such a vested right. Furthermore, all four Circuits of this state’s Courts of Appeal have applied the Lott analysis to Act 444 in holding that Act shall be accorded retroactive application, that Act dealing with uninsured motorist claims, claims based upon contract.

We, therefore, conclude that the trial court acted properly in applying Act 444 retroactively to the present case and thus in sustaining the plea of prescription. The present action, furthermore, was not filed until January 20,1981, some two and a half years after the effective date of the statute and three and a half years after the enactment of the statute. This is clearly an unduly long delay.

The judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.