author: COLE, Judge.

text:
    Edward I. DANIEL, III and Eileen Percy Daniel v. DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT of the State of Louisiana et al.
    No. 13873.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Writ Denied June 5,1981.

      Stephen P. Dart, St. Francisville, counsel for plaintiffs and appellees.
    Robert R. Roche, Baton Rouge, counsel for defendant and appellant.
    R. H. Madden, III, Ruston, counsel for defendant and appellee.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

Appellant Department of Transportation and Development (DOTD) appeals a judgment rendered against it for the wrongful removal of a live oak tree on appellees’ property. Six issues are presented on appeal; each will be discussed below.

This case arose from the following facts. Appellees are the owners of a 28 acre tract of land near St. Francisville, Louisiana known as “The Oaks” Plantation. The property is situated on both sides of Highway 61 (originally known as Route 3) in West Feliciana Parish. The entrance to the property is locally referred to as an “oak alley,” i. e., a lane lined with 15 large live oak trees on either side. The trees are estimated to be 80 to 100 years old. In the summer of 1979 DOTD was improving the shoulder of Highway 61. Mr. James Gas-pard, District Right of Way Supervisor for DOTD, contacted Mr. Daniel concerning the removal of a live oak tree alleged to be in the right of way on the east side of the road. Mr. Daniel refused to grant permission to remove the tree and contacted his attorney, Mr. Stephen Dart. Mr. Dart obtained a copy of a right of way deed executed by appellees’ ancestor in title, Mrs. Mary Butler. The deed was executed in her capacity as administratrix of the estate of her late husband, Thomas Butler, and was dated May 9, 1931.

Mr. Dart contacted Mr. Gaspard and informed him research had revealed Mrs. Butler was not the administratrix of the estate of Thomas Butler at the time she executed the right of way deed, and therefore, she had no authority to grant the right of way as to anything but her own one-half undivided interest. Further research by Mr. Dart revealed the deed contained a specific restriction which reads in part as follows:

“Fences to be constructed along Right of Way at the option of the grantor and no live oak tree or trees to be cut on the East side of said right of way except with the consent of the grantor.”

The right of way agreement granted a servitude of 40 feet on either side of the center line of the road, or a total of 80 feet.

Mr. Dart wrote a letter to Mr. Gaspard, dated June 8, 1979, which confirmed their previous conversation and specifically mentioned the invalidity of the right of way agreement and the contractual prohibition against cutting live oak trees. The letter stated it was Dart’s understanding DOTD would not cut the tree in question without the permission of Mr. Daniel or a court order. The letter concluded, “If there is any change in this policy, please advise in writing.” When questioned at the hearing Mr. Gaspard admitted he had given his word to Dart that the tree would not be removed without Daniel’s permission or a court order.

Meanwhile, Mr. Gaspard had sought an opinion from DOTD’s legal department concerning the contractual provision in the servitude agreement. The legal section informed him the restrictive language applied only to trees beyond the 40 foot servitude, therefore the tree in question, only five or six feet from the surface of the road, was not protected. Gaspard and the District Administrator, Carlisle Richard, agreed with the opinion and Mr. Richard determined it was necessary to remove the tree for safety reasons. Late Friday afternoon Mr. Gaspard was informed the tree would be cut and stated he planned to call Mr. Dart Monday. Late Friday evening Mr. Gaspard was notified the tree would be removed the next day, Saturday. He stated he intended to inform Daniel or Dart Saturday morning. When Mr. Daniel left his house at 8:00 Saturday morning (June 23, 1979), he saw the tree had been cut down. Mr. Gaspard testified he was unaware the tree would be removed so early and did not have time to contact Daniel or his attorney.

The Daniels filed suit against DOTD and Lamar Haddox, the contractor who actually removed the tree, seeking an injunction against the cutting or trimming of any other trees or shrubs. After a hearing on the matter in August 1979 a preliminary injunction was issued. A trial on the merits was held in February of 1980 and the court issued a permanent injunction against the defendants. A judgment was rendered in favor of plaintiffs and against DOTD and Lamar Haddox, in solido, in the amount of $16,083.52. The court found the value of the tree to be $11,083.52 and awarded $3,000.00 for the mental anguish of Mrs. Daniel and $2,000.00 for the mental anguish of Mr. Daniel.

In written reasons for judgment the trial court found the right of way deed to be invalid because Mrs. Butler acted as an administratrix when in fact there was no administration of the succession of Thomas Butler. The court stated further that even had the right of way agreement been effective the restrictive language prohibited the removal of the tree without the landowner’s permission. DOTD appealed.

ACQUISITIVE PRESCRIPTION OF THE RIGHT OF WAY

Appellant argues the trial court erred in failing to find that the right of way had been acquired by acquisitive prescription of ten or thirty years under La.Civil Code art. 3472-3527. We disagree.

The law of predial servitudes (Book II, Title IV of the La.Civ.Code) was revised by Acts 1977, No. 514 and became effective in 1978. Certain changes concerning the prescription of servitudes were made; however, the new law is not to be applied retroactively. Willis v. Southwest La. Elec. Membership Corp., 357 So.2d 1313 (La.App. 3d Cir. 1978). Since the revision has been in effect only three years it is apparent no prescription could have taken place under the new law. Therefore it is necessary that we examine the law in effect at the time of the alleged acquisition to see if the right of way was acquired by prescription.

In determining whether or not acquisitive prescription has taken place we must first determine what type of servitude the right of way agreement established. Under article 727 (repealed in 1977) a right of way, or right of passage, was classified as a discontinuous servitude. The article reads as follows:

“Servitudes are either continuous or discontinuous.
Continuous servitudes are those whose use is or may be continual without the act of man.
Such are aqueducts, drain, view and the like.
Discontinuous servitudes are such as need the act of man to be exercised.
Such are the rights of passage, of drawing water, pasture and the like.” (Emphasis added.)

Servitudes are also classified as being apparent or nonapparent under La.Civ.Code art. 728 (now art. 707). As the name suggests, apparent servitudes are those that are perceivable by exterior signs and nonap-parent ones are those which have no exteri- or evidence of their existence. Under art. 765 continuous apparent servitudes may be established by a possession of ten years. To the contrary, art. 766 declares that continuous nonapparent servitudes and discontinuous servitudes, whether apparent or not, can be established by title only.

Under art. 727 a “right of passage” such as was granted in this case, is a discontinuous servitude and therefore cannot be acquired by prescription. It is clear appellant’s argument must fall. The case books are filled with cases holding such servitudes can be acquired by title only. Landry v. Gulf States Utilities Co., 166 La. 1069, 118 So. 142 (1928), rehearing denied 1928; Boothe v. Department of Public Works, 370 So.2d 1282 (La.App. 3d Cir. 1979); Patin v. Richard, 291 So.2d 879 (La.App. 3d Cir. 1974).

EFFECT OF THE RESTRICTIVE LANGUAGE

DOTD argues it acted within its authority when removing the tree because the restrictive language found in the right of way agreement was simply a personal covenant which had no effect on any subsequent landowners. We disagree. Even if the right of way agreement was found to be valid, the restrictive language is clearly a covenant that “runs with the land” so as to preclude DOTD from removing the tree without permission.

The crucial factor in determining whether a covenant is one that “runs with the land” (a predial servitude) or is a mere personal agreement (a personal servitude), is whether or not the obligation was imposed in favor of the estate or in favor of a person. La.Civil Code art. 646 (now arts. 646 and 534); Levy v. Graham, 347 So.2d 1180 (La.App. 1st Cir. 1977); LeBlanc v. Palmisano, 43 So.2d 263 (La.App. Orl. Cir. 1949). After carefully examining the right of way agreement we conclude the restriction concerning the cutting of live oak trees was a covenant for the benefit of the estate, and as such runs with the land.

We reach this conclusion because of the particular importance of these trees to the entire landscape of the property. It would be naive to assume the grantor, Mrs. Butler, desired the oak trees be preserved simply because of a personal fondness for them. To the contrary, it is obvious that the preservation of the oak trees was a benefit to the estate itself, because the oak trees formed the impressive oak alley that was the distinguishing feature of the plantation. Certainly the parties intended that this restriction, designed to preserve the estate, be honored by the State regardless of who owned the land. A conventional servitude established by title is governed by the intentions of the parties. Dixie Elec. Membership Corp. v. Jones, 360 So.2d 216 (La.App. 1st Cir. 1978); Clause v. Brous-sard, 146 So.2d 828 (La.App. 3d Cir. 1962).

Indeed, the restrictive language forms somewhat of a predial servitude within the predial servitude (right of way) granted for the road. Just as the right of way, if valid, would be effective against and in favor of all subsequent owners of “The Oaks,” so too is the restriction. Pre-termitting the validity of the right of way deed, the State still acted wrongfully because it violated the clear language of the agreement.

POLICE POWER OF THE STATE

Appellant argues the removal of the tree was justified under the general police powers of the state, citing La.Const. art. VI, § 9. This argument is without merit. It is true private property may be destroyed to protect the public safety. City of Shreveport v. Kansas City Southern Ry. Co., 193 La. 277, 190 So. 404 (1939), rehearing denied 1939, cert, denied, 308 U.S. 621, 60 S.Ct. 298, 84 L.Ed. 519 (1939). However, there is absolutely nothing in the record to suggest the oak tree in question posed any immediate peril to the public. The tree had stood for decades and there was no justification for removing it without taking the appropriate legal steps. DOTD cannot hide behind the general police powers of the state to justify the sudden destruction of private property in absence of some showing of a public emergency requiring immediate action.

MEASURE OF DAMAGES FOR THE TREE '

The issue presented is whether or not the trial court erred in accepting the proper measure of damages to be the value of the tree alone rather than the depreciated value of the land on which the tree is located (i. e., the diminution value). Because we find the trial court committed no manifest error in awarding $11,083.52 for the loss of the tree, we affirm the judgment as to quantum.

Appellees’ expert at trial was Mr. L. D. Kelleher, a practicing landscape architect for 24 years. Appellant’s expert was Mr. Lewis Peters, a consultant and appraiser with degrees in forestry. Both experts relied on the method of evaluation provided in Guide For Establishing Values of Trees and Other Plants, a pamphlet prepared by the Council of Tree and Landscape Appraisers. Using this method, one considers the size, species, condition and location of the tree. Mr. Kelleher estimated the tree to be worth $11,083.52. Mr. Peters concluded the award for the loss of the tree should be $3,000. The basic difference in the two opinions is that Mr. Kelleher based his computation on the value of tree alone and did not consider the value of the surrounding land. To the contrary, Mr. Peters based his estimation primarily on the value of the surrounding property before and after the removal of the tree.

We are aware that generally, the method of estimating the value of a shade or ornamental tree wrongfully removed is to compare the value of the surrounding property before and after the removal. Womack v. Travelers Ins. Co., 258 So.2d 562 (La.App. 1st Cir. 1972), writ refused 1972; Davis v. Chicago R. I. & P. Ry. Co., 13 So.2d 389 (La.App. 2d Cir. 1943). However, we decline to apply the general rule in this case, because of the circumstances surrounding the removal.

In Womack, plaintiff’s trees were damaged when the defendant, who was working on plaintiff’s property with plaintiff’s consent negligently ruptured a gas line. In Davis, plaintiff’s trees were damaged when the defendant, burning railroad ties nearby, negligently allowed the fire to spread. In both cases the damage was done by mere carelessness, i. e., simple negligence. To the contrary, the facts of the present case indicate appellant’s behavior should be characterized as something more than simple negligence; it was a willful and wanton disregard for the rights of the property owner. As opposed to the above cited cases, the removal of the tree was not accidental, it was intentional. We therefore decline to apply the usual rule concerning the assessment of damages for the removal of this tree.

We find ample support in the Louisiana jurisprudence for the proposition that the trial court has discretion to apply a different measure of damages than above mentioned, in cases involving willful and wanton disregard for the interests of the property owner. In Turner v. Southern Excavation, Inc., 322 So.2d 326 (La.App. 2d Cir. 1975), the defendant-contractor asked permission of plaintiff to clear plaintiff’s property and use it as a storage area for heavy equipment. (The defendant was involved in a construction project on a nearby highway.) The plaintiff refused his request but defendant proceeded to clear the land and continued to occupy it over plaintiff’s protestations. At trial, plaintiff sought damages for the destruction of various ornamental and fruit trees. The court noted the trees had no real economic value but did have a substantial sentimental and esthetic value. The court refused to apply the usual measures of replacement value or diminution of market value and stated:

“There is no hard and fast rule for measuring damages in a case of willful and wanton trespass and destruction of private property. The court must adopt an approach in each case that will do substantial justice between the parties.”

The “substantial justice” test was also applied in Curóle v. Acosta, 303 So.2d 530 (La.App. 1st Cir. 1974). Defendant’s bulldozer deliberately entered plaintiff’s property (without permission) and damaged various trees and shrubs. The court cited Womack, supra, and declared the trial court had much discretion in determining the amount of damages in cases of this nature. This court affirmed the trial court’s award which was based on the “aesthetic value” of the trees. Although no particular formula was mentioned, the trial judge had observed the damage done to the site and based his award on what he thought would do “substantial justice in this case.”

A case with very similar facts to the present one is City of New Orleans v. Shreveport Oil Co., 170 La. 432, 128 So. 35 (1930). Defendant had requested plaintiff’s permission to remove a certain water oak tree on plaintiff’s property. Plaintiff declined to grant a permit but defendant removed the tree anyway. The Supreme Court recognized the trial court had great discretion in granting an award in this situation. The court noted it was impossible to replace the tree and that it was inappropriate to consider cases applicable to ordinary trespass.

Considering the foregoing cases, we cannot say the trial court erred in basing its award on the value of the tree as estimated by appellees’ expert. As established above, the court is allowed great discretion in determining the proper award and need not use any particular standard, such as the diminution value of the surrounding land. Considering the age of the trée, its position at the beginning of the historic oak alley, its location on a plantation listed on the National Register of Historic Places, its size, its generally healthy condition and the lack of symmetry caused by its removal, we hold the trial court acted within its discretion in awarding approximately $11,000. We find this award does substantial justice to the parties involved.

THE AWARD FOR MENTAL ANGUISH

Appellant argues the trial court erred in awarding $3,000 to Mrs. Daniel for mental anguish and $2,000 to Mr. Daniel. Considering the circumstances surrounding the removal of this tree, we feel the award is entirely justified and well within the discretionary range allowed by a trial court. These circumstances — the violation of DOTD’s assurance the tree would not be removed without the Daniels’ consent, the expeditious and somewhat surreptitious removal of the tree at 6:30 A.M. without any notification — obviously caused a great deal of anguish and worry for the Daniels. Their discovery of the felled tree as they were leaving the country for a vacation made the situation even more anxious for them because they were not able to personally see to it that no other trees were cut. Certainly they are entitled to some award for the emotional discomfort caused by DOTD’s deliberate removal of the historic oak.

ATTORNEY’S FEES

The judgment of the trial court provided for attorney’s fees in the amount of 20% of the principal and interest. The attorney’s fees may have been awarded under the assumption that the case was an expropriation proceeding. The facts as reflected by the record clearly indicate the situation is one of tort, or perhaps trespass, but not expropriation. Indeed, if the award was made on the basis of expropriation there would be no question but that the proper measure of damages is the diminished value of the property. Reymond v. State, Department of Highways, 255 La. 425, 231 So.2d 375 (1970), rehearing denied 1970; State Through Dept of Highways v. Ponder, 345 So.2d 106 (La.App. 1st Cir. 1977), writ refused 1977. Since the case is not an expropriation matter and because it is well settled there can be no attorney’s fees except as provided by statute or contract, the award for the attorney’s fees was erroneous. Simmons v. Hernandez, 287 So.2d 637 (La.App. 3d Cir. 1973), writ refused 1974. We reverse that portion of the judgment only.

In conclusion, for the foregoing reasons we affirm in part the judgment of the trial court. We reverse only that portion of the judgment which granted attorney’s fees. Appellant is to pay all costs of these proceedings.

AFFIRMED IN PART; REVERSED IN PART.

      . He did not seek an opinion on Mary Butler’s right to grant the servitude although he was aware of this issue.

      . The parties stipulated that all testimony taken at the August hearing be adopted as part of the record of the trial on the merits.

      .Lamar Haddox did not appeal the judgment rendered against him, therefore the judgment is definitive. La.Code Civ.P. art. 1842. Haddox had filed a third party demand against DOTD; judgment was rendered in favor of Haddox. DOTD has not appealed the third party judgment, therefore it too is definitive.

      . All references to Civil Code articles are to the pre-1977 revision. Where applicable, the current code articles will be given.

      . The 1977 revision abolished the category of continuous and discontinuous servitudes. Now the relevant inquiry would be whether the servitude was apparent or nonapparent. Under revised art. 739 nonapparent servitudes may be acquired by title only, while under revised art. 740 apparent servitudes may be acquired by acquisitive prescription.

      . Attorney’s fees are allowed in expropriation cases under La.R.S. 19:8A where the highest amount offered by the expropriating authority is less than the compensation awarded.


source: Caselaw Access Project

license: Public Domain

text:
    Edward I. DANIEL, III and Eileen Percy Daniel v. DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT of the State of Louisiana et al.
    No. 14279.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.

      R. Randall Roche, Baton Rouge, for plaintiff-appellant, Dept, of Transp. and Development.
    Robert 0. Butler, Jr., Stephen P. Dart, St. Francisville, for intervenors-appellees, Edward I. Daniel, III and Eileen Percy Daniel.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

The issue presented by this motion to dismiss is whether a garnishee who admits having funds of the debtor “in retainage” is entitled to an appeal from the garnishment judgment or whether his answers to the interrogatories are equivalent to a confession of judgment so as to preclude appeal.

The pertinent interrogatories propounded by the mover (plaintiff in the main demand) and answered by the garnishee, Department of Transportation and Development (DOTD) are as follows:

“INTERROGATORY NO. 1: Do you have under your control directly or indirectly, any money, rights, credits or other property belonging to the defendant, Lamar Haddox Contractor, Inc., or in which he has any interest or may acquire at the time of service of these interrogatories?” Answer: “Yes.”
“INTERROGATORY NO. 2: If your answer to Interrogatory No. 1 is yes, what is the nature, description and amount of money, rights, credits or other property? Is the amount sufficient to satisfy the following judgment, Sixteen Thousand Eighty-three and 52/100 ($16,-083.52) Dollars with legal interest as (sic) the rate of seven (7%) percent, from July 24, 1979, until paid, twenty (20%) percent of both principal and interest in attorney’s fees and expert witness’ fees in the amount of Four Hundred and No/100 ($400.00) Dollars? A certified copy of the judgment and statement of the sum due and owing is attached hereto and forms a part hereof.”
Answer: “Lamar Haddox Contractor, Inc. currently has on deposit with Department of Transportation and Development $93,717.46 in retainage from Project No. 839-16-05 outstanding against this re-tainage are leans (sic) in the amount of $35,121.53. The remaining amount is adequate to satisfy the judgment as set out in Interrogatory No. 2.”

Although the issue of the garnishee’s right to appeal the garnishment judgment (which orders him to pay funds or deliver property to the appropriate sheriff) has not arisen in recent jurisprudence, we find ample authority for this right in the older cases. The principle was first articulated in Hanna’s Syndics v. Lauring, 10 Mart. (O.S.) 568 (La. 1822). The court recognized the right of a garnishee to appeal to protect his own interest in the garnished property, but denied the garnishee’s appeal because it asserted a defense of the judgment debtor. In State ex rel. Tureaud v. Parish Judge of Ascension, 23 La.Ann. 717 (1871), the court held that answers to interrogatories which disclosed a liability of the garnishee to the judgment debtor were not a confession of judgment so as to defeat the garnishee’s right of appeal. The court reasoned the admission of having money belonging to the debtor did not necessarily admit the right of the creditor to have the money.

The garnishee’s right to appeal was again recognized in Halpin v. Barringer, 26 La. Ann. 170 (1874), where the garnishee resisted handing over the garnished funds because they belonged to the debtor only in his role as executor of an estate. The garnishee was allowed to appeal, and asserted the funds were not seizable. This is analogous to the present case where the garnishee asserts he has property which may belong to the debtor, but the funds are on retainage and are not seizable until the construction project has been accepted and the proper lien procedure has been completed.

In Johnson v. Bolt, 144 So. 296 (La. App.2d Cir. 1932), the court specifically addressed the issue of the answers to interrogatories constituting a confession of judgment. The court held that all of the answers must be read together, and althoügh some seemed to unconditionally confess that money was available, others contained some reservations. We feel this is the situation in the present case. Although mover argues that one particular sentence of the answer, “The remaining amount is adequate to satisfy the judgment as set out in Interrogatory No. 2.” is a confession of judgment, one cannot ignore that this answer was preceded by a sentence declaring that the funds held were “retainage.” Taken as a whole, we cannot conclude that the answers constituted a confession of judgment.

In Maybeno v. Battaglia, 26 So.2d 315 (La.App. Orl. Cir. 1946), the court recognized that a garnishee (who answered the interrogatories negatively but admitted he possessed some funds at the hearing on the traversal) had the right to appeal the garnishment judgment. The court rejected the argument that the garnishee was merely a disinterested third party with no right of appeal and pointed out that the garnishee is the party cast in judgment and therefore should not be denied an appeal.

We have found nothing in the recent jurisprudence to contradict the holdings of these older cases. Based on this jurisprudence we conclude that the garnishee in this case is entitled to an appeal. The motion for dismissal is denied.

MOTION DENIED.


author: WATKINS, Judge.

text:
    Marcella McGinnis SIMS v. Winston H. SIMS.
    No. 13966.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1981.
    Rehearing Denied April 13, 1981.
    Dickie W. Patterson, Baton Rouge, for defendant-appellee in rule, Marcella McGin-nis Sims.
    Melanie A. Kleinpeter, Baton Rouge, for plaintiff-appellant in rule, Winston H. Sims.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an appeal from a judgment of the trial court dismissing a rule nisi filed by a former husband to terminate alimony to his former wife due under prior judgment of that court. We affirm.

Winston H. Sims and Marcella McGinnis Sims were married May 30,1946. The parties to the marriage adopted two children, Lori Ann, and Lynn Hall, the latter of whom is twenty years of age, and the former of whom attained the age of majority (18) only recently.

The marriage was terminated by a divorce decree rendered November 19, 1975. The custody of the two children was awarded to Mrs. Sims. By consent, permanent alimony to the former wife was fixed at $300.00 per month and child support for the two children (then minors) at $250.00 per month.

Winston Sims applied for termination of alimony by rule nisi filed September 9, 1977, one of two grounds being that his wife had become gainfully employed after rendering of the consent decree. The same trial judge who earlier had rendered the consent decree, and who much more recently heard the rule nisi now under appeal to this court, at that time refused to terminate or reduce alimony, stating in written reasons dated November 8, 1977, that the un-contradicted testimony of Mrs. Sims was that she was already employed by Louisiana State University at the time the former husband agreed to the consent decree of November 19, 1975, and indicating that he so found.

The present rule nisi to terminate alimony was filed April 29,1980. The trial court dismissed the rule after trial, giving oral reasons not in the record.

Appellant, Winston H. Sims, properly requested “written reasons for judgment” which the trial court failed to give as it is required under LSA-C.C.P. art. 1917. While the trial judge was in error in this regard, and we do not condone his failure to submit in writing his findings of fact and reasons for judgment, the proper remedy was for appellant to apply for supervisory writs or move for a remand for the purpose of requiring or affording the trial judge an opportunity to comply with the request. Since neither procedure was utilized by appellant, we shall review this appeal on the merits as in any other case where the record contains no reasons for judgment. Bro-cato v. Brocato, 369 So.2d 1083 (La.App. 1st Cir. 1979), writ refused 371 So.2d 1341 (La. 1979).

The principal arguments of Mr. Sims are:

(1) The amendment of LSA-C.C. art. 160, which‘provides for permanent alimony, by Act 72 of 1979 did away with the rule that the party seeking a termination or reduction of alimony must show a change of circumstances; or, alternatively,

(2) The former wife had become gainfully employed since the rendering of the alimony decree; or, alternatively,

(3) The former wife’s income had increased by $200.00 per month since the rendering of the decree; and, further,

(4) The children had become majors since the rendering of the alimony decree.

Because of the conclusion that the present financial condition of the former husband and former wife compels us, as it compelled the trial court, to reach, we find it unnecessary and inappropriate to decide upon the present status of the change of circumstances rule as it affects alimony decrees rendered before Act 72 of 1979 became effective (June 29, 1979). We also find it unnecessary to determine whether or not there has been a change of factual circumstances as is argued under the second, third, and fourth grounds contended by the former husband. We will consider the matter as if it were an appeal from a trial de novo resulting in a decree fixing alimony originally, the position most favorable to the appellant.

Mrs. Sims bought the marital community’s three bedroom house at the termination of the marriage, and borrowed money from her parents and Capital Savings to do so. She owed Capital Savings approximately $16,200.00, and her parents $14,500.00, at the time of the trial. Her two children, now majors, still live with her. Neither was employed at the time of the trial.

Mr. Sims has remarried, and lives with his present wife in a three bedroom house, on which he owes a note.

Mrs. Sims’ net income is $718.18 per month. Mr. Sims “takes home” approximately $1,950.00 per month.

By affidavit introduced at the trial as Exhibit D-l, and from which Mrs. Sims testified, Mrs. Sims’ monthly expenses are listed as follows:

“Housing {including insurance and taxes)
(Debt $30,000) ' $ 165.00
Side note on house 200.00
Food and Household Supplies 300.00
Transportation (including car payment, repairs, oil & lube, gas, insurance) 250.00
Utilities 100.00
Educational 20.00
Newspaper and magazines 7.00
Church Contributions 60.00
Entertainment 30.00
Medical, Dental, Drugs (self only) 20.00
legal fees (remaining debt $2330) 30.00
House Repairs, House and lam equipment 65.00
Gifts 15.00
Personal and Groaning 35.00
Clothing t 130.00
Life Insurance „ 15.00
Miscellaneous 30.00
TOTAL EXPENSES $1,462.00"

In her testimony, Mrs. Sims admitted that “Food and Household Supplies” included amounts purchased for the two major children. We will reduce the amount by $100.00, which we estimate was spent for the two children. Mrs. Sims also admitted that the “Educational” expense was only for Lori; that only $65.00 was spent for her personal “Clothing” out of $130.00, and only $25.00 was spent for herself for “Personal and Grooming” out of $35.00. Also, Mrs. Sims testified that $100.00 of the $250.00 listed for “Transportation” was for monthly payments on a note on a car which has now been paid off in full. Deducting the expenses for the major children and the monthly payment on the discharge note, we arrive at an amount of $1,167.00 for monthly expenses for Mrs. Sims alone. This far exceeds the amount of her monthly net income, $718.18.

Mr. Sims testified, on the other hand, that his total monthly expenses, including the amount of $300.00 paid as alimony, were about the same as the amount he took home.

The Louisiana Supreme Court in Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973) held that the party receiving permanent alimony (although only the wife could receive alimony at the time that decision was rendered, the principles set forth therein hold good for either former spouse) was entitled to not simply food, clothing, and shelter, but also to “transportation or automobile expenses, medical and drug expenses, utilities, household expenses, and income tax liability generated by alimony payments...” (p. 229). The expenses set forth by Mrs. Sims fall within the scope of the Bernhardt standard. Clearly, by his own admission, Mr. Sims can pay $300.00 per month as alimony and still meet expenses. Mrs. Sims, conversely, will not meet expenses, even if we take into consideration her present income earned from her employment, unless that income is supplemented by the payment of the $300.00 per month as alimony. We find the record does not support Mr. Sims’ contention that Mrs. Sims is employed for less than her earning capacity.

The trial court was correct in continuing the alimony at $300.00 per month.

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

AFFIRMED.

      . The other ground alleged was that Mrs. Sims had substantial property of her own.


author: SWIFT, Judge.

text:
    Elton DEVILLE, Plaintiff-Appellant, v. Judge Allen M. BABINEAUX, Defendant-Appellee.
    No. 8298.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1981.
    Rehearing Denied April 28, 1981.

      Elton Deville, in pro. per.
    Champagne, Colomb & Brumbaugh, Patrick L. Colomb, Lafayette, for defendant-appellee.
    Before DOMENGEAUX, CUTRER and SWIFT, JJ.
   SWIFT, Judge.

MOTION TO DISMISS

The plaintiff-appellant, Elton Deville, appearing in proper person, filed suit seeking $50,000 in damages and the impeachment of defendant-appellee, Judge Allen M. Babi-neaux, for defendant’s actions in rendering judgment against him in a personal injury suit. The trial judge sustained a peremptory exception of no right of action dismissing plaintiff’s claim. We dismiss the appeal ex proprio motu as being untimely filed under LSA-C.C.P. Article 2087(1).

The chronology of events is as follows:

On June 30, 1980, the trial judge gave written reasons sustaining defendant’s peremptory exception of no right of action dismissing plaintiff’s claim. The plaintiff filed a motion for a new trial on July 7, 1980. Subsequently, the trial court signed a final judgment on July 18, 1980. The sheriff served plaintiff with notice of the judgment on July 22, 1980. On November 12, 1980, the trial judge denied plaintiff’s motion for a new trial. Notice of the denial was sent to the parties on November 21, 1980. Plaintiff filed a motion for a devolu-tive appeal on January 19, 1981.

The issue is whether an application for a new trial made before the signing of a final judgment can have any effect on appeal delays.

This court in Bordelon v. Dauzat, 389 So.2d 820 (La.App. 3rd Cir. 1980) stated that an application for a new trial filed prior to the signing of a final judgment was without effect. In doing so, we cited the case of Chamblee v. Chamblee, 340 So.2d 378 (La.App. 4th Cir. 1976) which is factually similar to the present case.

In Chamblee, supra, the trial judge denied an application for a new trial on the same day he signed the final judgment which was filed seven days prior thereto. The court found the application for a new trial to be:

“premature, not timely, and, thus, without legal effect. Hence, this matter falls under subsection (1) of Art. 2087. Accordingly, under LSA-C.C.P. Art. 1974, the delay for a new trial commences to run on the day after the judgment was signed ...”

Here, the trial judge signed the final judgment prior to denying plaintiff’s application for a new trial. However, the application for a new trial was still filed prematurely. Thus, it could have no effect.

Since the application for a new trial was ineffective, the delay for filing an application for a new trial began running the day after the sheriff served notice of judgment, viz. on July 23, 1980. LSA-C.C.P. Article 1974(2). The delay for applying for a new trial is seven days exclusive of legal holidays. LSA-C.C.P. Article 1974(1). A de-volutive appeal must be taken within 60 days of the expiration of the delay for applying for a new trial. LSA-C.C.P. Article 2087(1). The plaintiff did not file a motion for an appeal until January 10,1981, over five months past the date on which the delay for applying for a new trial expired.

For the above and foregoing reasons, the appeal is dismissed.

APPEAL DISMISSED.


author: DOMENGEAUX, Judge.

text:
    Elite H. VALLOT, Plaintiff-Appellee, v. CAMCO, INC., et al., Defendants-Appellants.
    No. 8083.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.
    Rehearing Denied April 27, 1981.

      Olivier & Brinkhaus, John L. Olivier, Sunset, for defendants-appellants.
    Broussard, Broussard & Moresi, Paul G. Moresi, Jr., Abbeville, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and DOUCET, JJ.
   DOMENGEAUX, Judge.

This suit for damages arise from an automobile accident which occurred in a light rain on January 3, 1979, at about 6 P.M. in Vermilion Parish. Plaintiff, Elite Vallot, was negotiating a left turn into her daughter’s driveway from Highway 167 between Abbeville and Maurice, when her 1977 Buick was violently struck by a pickup truck attempting to pass her. The 68 year old Mrs. Vallot suffered serious injuries as a result of the accident.

The pickup truck which struck plaintiff’s car was driven by Kenneth E. Combs, owned by Cameo, Inc., and insured by North-West Insurance Co. Combs, Cameo, and North-West were named as defendants in this suit filed by Mrs. Vallot to recover damages for personal injuries, medical expenses, lost wages, and property damage sustained as a result of the accident.

Following a non-jury trial held February 20 and 22, and May 20, 1980, the district judge found that the accident was caused by the negligence of the defendant Combs and awarded plaintiff general damages of $65,000.00, special damages of $17,800.06, and lost wages of $15,000.00. Accordingly, the judge signed the judgment against all defendants, Combs, Cameo, and NorthWest, jointly, severally, and in solido in the amount of $97,800.06 at 7% interest from March 7, 1979. Defendants have appealed. We affirm.

NEGLIGENCE

The duties and rights of a left-turning motorist with respect to overtaking traffic were set forth by this Court in Petite v. Richardson, 347 So.2d 23 (La.App. 3rd Cir. 1977), and were reiterated in Aetna Insurance Company v. Southern Farm Bureau Casualty Insurance Company, 347 So.2d 924 (La.App. 3rd Cir. 1977) as follows:

“It is well established in the jurisprudence of this state that a motorist who attempts to make a left turn from a public highway is required to ascertain in advance that the way is clear and that the turn can be made safely and without endangering overtaking or oncoming traffic. The failure of a left turning motorist to make such a determination and to exercise the required degree of caution before undertaking to make such a turn constitutes negligence. Sonnier v. Hardware Mutual, 242 So.2d 900 (La.App. 3rd Cir. 1971). The duty of the left turning motorist is two-fold, first to give a proper signal, and secondly to make proper observation that the turn can be made without endangering oncoming or overtaking vehicles. Bamburg v. Nelson, 313 So.2d 872 (La.App. 2nd Cir. 1975).
It is likewise well established that a motorist in judging whether a left turn can be made in safety has the right to assume that the following traffic will observe all the duties imposed upon it by law and common sense and is keeping a proper lookout. Faulkner v. Ryder Tank Lines, Inc., 135 So.2d 494 (La.App. 2nd Cir. 1961) writs denied February 2, 1962; Worley v. Heinen, 280 So.2d 301 (La.App. 1st Cir. 1973) writs refused September 14, 1973.”

Based upon the testimony of the eyewitnesses who were following Mrs. Val-lot, and upon the above principles of law, we believe the issue of negligence is easily decided in plaintiff’s favor.

Shortly before this accident occurred, Mrs. Vallot, Combs, and several eyewitnesses were located about two miles north of Abbeville and were slowly traveling north in their respective automobiles towards Maurice on Highway 167, a two-lane highway. It was not completely dark, but most of the vehicles, including those driven by Mrs. Vallot and by Combs, had their headlights turned on.

Following Mrs. Vallot was Alfred Bousta-ny, a 26 year old attorney who was driving a small car. He testified he was 20 to 30 feet behind plaintiff when she began her left turn. He had contemplated passing Mrs. Vallot because she was driving so slowly, but reconsidered when he saw her left turn signal begin to flash 100 to 150 feet before she began her left turn. He first became aware of Combs’ pickup truck when it was even with his car. He estimated Combs was traveling 65 to 70 miles per hour in a 55 mile per hour speed zone, while his own speed he estimated to be 35 miles per hour just before the accident.

Ten feet behind Boustany’s vehicle was a 1958 rice truck being driven by Jeffery Faulk, 18. Faulk recalled seeing plaintiff’s left turn signal begin blinking about 200 feet from the accident site. His view was not obstructed by Boustany’s vehicle because he could see over the top of the smaller car ahead of him. According to Faulk, plaintiff had already begun her left turn when the defendant passed him by at a speed in excess of 55 miles per hour.

Fifty feet behind Faulk’s rice truck was 18 year old Cordell Broussard, who was driving a 1975 Chevrolet Caprice Classic. Broussard testified that Combs was trailing his Caprice by 20 to 30 feet when the defendant pulled into the left lane to begin his passing maneuver. He estimated defendant’s speed at 60 to 65 miles per hour. Broussard was unable to see whether Mrs. Vallot had her left turn signal on because his view was obstructed by Faulk’s rice truck, but he did witness the accident because it occurred in the left lane.

Kenneth Combs testified that he was only IV2 to 2 car lengths away, or about even with Boustany’s automobile, when plaintiff began turning left. The front end of her car had just cleared the left edge of the paved portion of the highway, and was pointed directly at the driveway, when he smashed into her car at 65 miles per hour, propelling both vehicles into the ditch next to the west or left-hand shoulder of the highway. Evidentiary photographs vividly reveal that plaintiff’s car was struck in the middle of the driver’s side. Additionally, Combs testified that a light rain had been falling, that he had consumed three beers within an hour or two of the accident and that he began his passing maneuver despite the presence of a solid yellow line in the northbound lane of traffic. Combs acknowledged that the solid yellow line meant that passing was prohibited at that point.

Lona Sellers, plaintiff’s daughter and a passenger in the front seat of plaintiff’s car, testified that her mother had just begun to turn when she (Lona) turned around to wake up her two small sons, who were sleeping on the back seat of plaintiff’s car. She saw defendant’s truck bearing down on her mother’s car when it was about five car lengths away. However, she did not say whether she told her mother she saw the truck. She also testified that her mother put her left turn signal on about six feet before the driveway.

Plaintiff testified that she activated her left turn signal well before the point at which she intended to turn. Before she began her turn, she came to a complete stop, looked to her rear but saw no one attempting to pass, and then proceeded to turn into her daughter Lona’s narrow driveway when the truck hit her side of the car. She never saw the truck. From that point, she said, she remembered nothing until about February 7, 1979, two weeks after she had been discharged from the hospital.

Each party expended considerable energy and effort in an attempt to prove or disprove the presence of a solid yellow line in the northbound lane at the point of the accident and at the time of the accident. Most of the eyewitnesses, including the defendant Combs, remembered seeing a solid yellow line in the northbound lane. The defendant introduced photographs of the accident scene taken by an insurance adjuster three days after the accident occurred. The photographs belie the testimony of the eyewitnesses that a solid yellow line existed in the northbound lane at the point of the accident. However, the photographs do not rule out the presence of a solid yellow line in the northbound lane south of the accident site, where the defendant began his passing maneuver, because all of the photographs of the accident site were taken from points a short distance south of the accident site and include that portion of Highway 167 north of the accident site.

The trial court did not draw any conclusion as to whether or not a solid yellow line existed in the northbound lane at the point of impact at the time of the accident, but he did conclude that the defendant had begun his passing maneuver when there was a yellow line in his lane. Combs testified to that fact and several witnesses remembered seeing a yellow line in their lane of travel. The defendant later contradicted this testimony but the court found that this latter testimony lacked credibility. Furthermore, defense counsel offered no photographs to prove that the point at which Combs began his maneuver (anywhere from 400 feet to % of a mile before the accident site, according to Combs’ testimony) was free of the prohibitory yellow line. Thus, the evidence supports the court’s conclusion that Combs ignored the prohibition against passing when he sought to overtake the string of slow-moving vehicles.

The court found the testimony of plaintiff’s witnesses to be more believable than the testimony of either Combs or the witnesses called on his behalf. Based on his comments at the conclusion of the defendant’s evidence, the court concluded that defendant Combs initially crossed the yellow line in his lane, that he was driving at a rate of speed which exceeded the posted speed limit and which was excessive because the road was wet, and that this conduct amounted to negligence. This finding is not manifestly erroneous because it is amply supported by the evidence.

Since the court rendered judgment in plaintiff’s favor, we must conclude that he felt the evidence satisfactorily demonstrated that Mrs. Vallot performed the twofold duty required of left-turning motorists —1) to give a proper signal and 2) to make a proper observation that the turn can be made without endangering oncoming or overtaking vehicles.

The disinterested testimony of Boustany and Faulk corroborated plaintiff’s claim that she had given a proper signal. The trial court indicated he believed plaintiff’s witnesses. Therefore, a finding that plaintiff gave a proper signal is supported by the evidence.

We also believe there is a sufficient evidentiary basis to conclude that plaintiff made a proper observation that the turn could be made without endangering overtaking traffic. In this kind of case, often the only evidence that a proper observation was made will be the left-turning motorist’s testimony. Sometimes this testimony will be believed by the trier of fact (see Aetna Insurance Company, supra) and sometimes it will not (see Williams v. Inabnett, 345 So.2d 1294 (La.App. 3rd Cir. 1977)). In this case, the court obviously believed that plaintiff made a proper and careful observation of the following traffic, and that she concluded from this observation that the turn could be made safely.

Defendants argue that the trial court apparently completely ignored the testimony of Lona Sellers, plaintiff’s passenger, that she turned around and noticed defendant’s truck in the left lane five car lengths back. Defendants suggest that the court failed to recall Mrs. Sellers’ testimony because of the months that transpired between the beginning of the trial on February 20, 1980 (when Mrs. Sellers testified) and its conclusion on May 20, 1980.

We find defendants’ suggestion that the court failed to recall Mrs. Sellers’ testimony wholly without merit and unsupported by the record. We point out that the court vividly recalled the testimony given by Combs at an earlier time than that given by Mrs. Sellers. Hence we conclude that the court was fully aware of Mrs. Sellers’ testimony and all other testimony given during the earlier portion of the trial.

In response to the defendants’ contention that the court simply ignored Mrs. Sellers’ testimony, we note that Mrs. Sellers testified, under close questioning by the court, that her mother had already begun the left turn when she (Lona) noticed defendants’ truck five car lengths back in the left lane. This testimony does not negate the possibility that plaintiff had looked to her rear just before she began to turn, observing that no vehicles were attempting to pass.

The defendants argue that Combs began his passing maneuver before plaintiff crossed the center line into the left lane. The testimony of Faulk and Broussard support this contention. However, we do not believe that proof of this fact constitutes negligence on the part of the plaintiff, as defendants suggest, because the record does not establish that Combs had begun his passing maneuver before the plaintiff last looked to her rear.

Testimony by Broussard supports Combs’ later testimony that he began his passing maneuver only 400 feet or less before the accident site rather than Vfe to % of a mile before as he had previously testified. Accepting the overwhelming evidence that Combs was traveling at 65 miles per hour, then we take note of the fact that this speed is equal to a speed of 95.3 feet per second. Thus, at his excessive rate of speed, Combs could have traversed the entire distance, from the point where he pulled into the left lane to the point of impact, in only four seconds.

Other evidence demonstrates that plaintiff may have required several seconds to execute her turn safely after she last inspected the traffic to her rear. Photographs of her car disclose that it was a rather large Buick Electra 225. Photographs of the accident site reveal Lona Sellers’ driveway to be a narrow gravel driveway flanked on either side by a deep ditch. The turn was attempted at dusk in a light rain. Plaintiff came to a complete stop before beginning her turn. Under these circumstances, it would be reasonable to assume that the turn might take several seconds to execute safely, even after the plaintiff last checked the rear.

We refuse to speculate as to when a left-turning motorist must make a final inspection to the rear to determine if the turn can be made safely. This is often a close factual issue. In this instance, the issue was decided by the factfinder in plaintiff’s favor and the evidence supports that decision. The testimony of Lona Sellers is not compelling enough to warrant a reversal. Therefore, we affirm the trial court’s finding that Kenneth Combs was negligent and that Mrs. Elite Vallot was free of negligence.

DAMAGES

The trial court awarded plaintiff $65,-000.00 for general damages, $17,800.06 for special damages, and $15,000.00 for lost wages. The defendants would have us reduce the general damage award to an amount between $20,000.00 and $40,000.00, and eliminate the lost wage award altogether. On the other hand, plaintiff asks us to increase the general damage award to $150,000.00 and to increase the lost wage award to an amount between $25,946.66 and $46,498.98.

Since neither party argues that the special damages award of $17,800.06 is incorrect, that amount — which included $7,350.00 for the loss of plaintiff’s automobile, a hospital bill of $7,023.81, doctors’ bills, deposition fees, and other proven expenses incurred in connection with the accident — will be maintained.

As a result of the accident, plaintiff suffered a severe brain concussion that left a portion of her brain permanently scarred. She also suffered several pelvic fractures, and sustained various cuts and bruises. Plaintiff was hospitalized in Our Lady of Lourdes Hospital for a total of 22 days, with the first eight days being spent in the intensive care unit. She was finally discharged on January 25, 1979.

According to Dr. Ricardo Leoni, the neurosurgeon who treated plaintiff for her brain injury, Mrs. Vallot was confused and incoherent during her first few days in the hospital. Doctor Leoni testified that her brain would be permanently scarred due to the bruise on her brain caused by the accident. Following plaintiff’s discharge from the hospital Doctor Leoni saw her again on February 16, March 29, and May 10, 1979. He observed an abnormal reflex in the left leg which was attributable to the accident. This abnormality is permanent. He also commented that remarks that plaintiff made during these examinations seemed “inappropriate” for a woman her age.

Doctor Leoni also testified that an electroencephalogram taken on April 27, 1979, revealed that the electrical discharge to the brain was slower than normal. He said that this slowing of the brain can make one slow mentally. He testified that plaintiff’s injury was to her frontal lobe area. The frontal lobe affects a person’s reliability, emotional stability, ability to reason, and ability to maintain self control. According to Doctor Leoni, an injury to the frontal lobe region can produce permanent residual damage.

The testimony of plaintiff’s sons and daughters, and of the woman who assisted plaintiff in her home during the early period of her convalescence in February and March, 1979, demonstrated that plaintiff was in constant pain during the entire time that she was in the hospital and during the first few weeks at her home after she was discharged from the hospital. This testimony also revealed that the accident transformed plaintiff into a completely different person.

Prior to the accident, plaintiff was a healthy and vigorous woman. She loved plants and had many of them in her home and yard. She took care of all her plants herself. She also did all of her own housework and was characterized by one of her daughters as being very self-sufficient and self-reliant. In addition, she sewed clothes for members of her family and cared for an elderly woman in Erath.

Since the accident, however, plaintiff has been a very nervous person who will not stay alone. She is a slow talker and is very forgetful. She can no longer care for her plants. She needs someone to help her with her housework, and she can no longer sew because she cannot concentrate. She does most of her in-town driving, but does so against the advice of her physician, Dr. Albert Sonnier. According to the medical evidence, all of plaintiff’s personality changes are attributable to her frontal lobe injury.

Defendants attempted to prove that many of these changes were attributable to hardening of the arteries, a vascular disease, but Doctor Leoni refuted this contention when he stated that an arteriogram performed on January 8, 1979, showed no evidence of hardening of the arteries, and he deemed it unlikely that the disease could have surfaced in only a few short months to cause such demonstrable personality changes.

While it may seem that a general damage award of $65,000.00 is low based on the severity and extent of plaintiff’s injuries, it must be remembered that plaintiff’s injuries required no surgery; plaintiff did not recall the accident nor the period during which she was hospitalized, and must therefore have been unaware of the fact that she was in pain during that time; plaintiff is able to walk unassisted and is able to perform some of her household chores; and plaintiff is able to, and does, drive her automobile without assistance.

After reviewing all evidence pertinent to the issue of general damages, we conclude that the general damage award is neither excessively high nor inordinately low and will therefore be neither reduced nor increased.

Both counsel cite cases in support of their arguments urging us to decrease or raise the award. Yet our review of the facts and circumstances in those cases only reinforces our belief that the general damage award to Mrs. Vallot did not constitute a clear abuse of the much discretion vested in the trier of fact by La. C.C. Art. 1934(3). Reck v. Stevens, 373 So.2d 498 (La.1979). Consequently, the general damage award of $65,000.00 will be affirmed.

We also affirm the lost wages award of $15,000.00. At the time of this accident Mrs. Vallot was 68 years old. She testified at trial that since four months before the accident she had earned $3.00 per hour for 48 hours a week caring for Mrs. Emile Thibodeaux, an 86 year old woman living in Erath. Thus, she earned $144.00 per week. From the date of the accident, January 3, 1979, to the date of trial, May 20, 1980, seventy-two weeks elapsed. Based on $144.00 per week, her lost wages from the date of the accident to the conclusion of the trial totalled $10,368.00. Assuming the court awarded plaintiff all her lost wages to the date of- trial, the court must have awarded her $4,632.00 for loss of future wages. He does not explain his reasons for doing so, yet we do not think this amount is beyond the range of his discretion.

Assuming, as counsel for plaintiff claims, that Mrs. Vallot had a work-life expectancy of 4.0 years at the age of 69, we do not think she is necessarily entitled to an award for loss of future wages for the duration of her work-life expectancy. An award based on one’s work-life expectancy may be proper at times but is not required.

Plaintiff testified that this was the only job that she ever had, and that she had been engaged in this line of work for only four months prior to the accident. The woman plaintiff cared for was 86 years old and was not called to testify at trial. It is uncertain whether Mrs. Thibodeaux was still alive at the time of trial or whether plaintiff would have sought similar employment if Mrs. Thibodeaux had predeceased her. Given this unusual set of circumstances, we do not think the trial court committed manifest error by awarding plaintiff an amount for lost future wages of less than what her work-life expectancy would suggest be awarded.

DECREE

For the above and foregoing reasons the judgment of the district court is affirmed. Costs are assessed against the defendants.

AFFIRMED.

STOKER, J., concurs.

      . Lawrence Harry, the Department of Transportation and Development traffic engineer for the district which included Vermilion Parish, testified that his records reveal that no striping of Highway 167 at the accident site occurred between January 3, 1979 and January 19, 1979.

      . 65 mph X 5280 ft./mile -*• 3600 sec/m = 95.-33 feet per second.

      . If the Petite and Aetna cases, supra, are correct that a left turning motorist has the right to assume that the following traffic will observe all the duties imposed upon it by law and com- ■ mon sense and is keeping a proper lookout, then the decision of the trial court in the instant case is eminently correct in light of the overwhelming evidence of Kenneth Combs’ negligence in failing to obey the speed limit and in failing to obey the prohibition against passing.

      . Plaintiff cites Stanley v. Wiley, 325 So.2d 661 (La. App. 3rd Cir. 1975) and Arado v. Central National Insurance Company of Omaha, 337 So.2d 253 (La. App. 4th Cir. 1976), writ denied 339 So.2d 19. Defendant cites Dupas v. City of New Orleans, 361 So.2d 911 (La. App. 4th Cir. 1978); Wright v. Romano, 279 So.2d 735 (La. App. 1st Cir. 1973), writ refused 281 So.2d 757 and 758; Byrd v. Fulton, 259 So.2d 384 (La. App. 4th Cir. 1972); Trahan v. Girard Plumbing & Sprinkler Co., 299 So.2d 835 (La. App. 4th Cir. 1974); and Berry v. Gulf Coast Construction Company, 229 So.2d 368 (La. App. 4th Cir. 1969).

      . See Lute v. City of Lake Charles, 394 So.2d 737 (La. App. 3rd Cir. 1981) and cases cited therein at footnote 4.


text:
    Anthony R. ROUGEAU and Patsy Annette Smith Rougeau, Plaintiffs-Appellees, v. Doyle MOODY, Defendant-Appellant.
    No. 8085.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.
    Rehearing Denied April 27, 1981.

      William H. Lambert, Lafayette, for defendant-appellant.
    Aaron, Aaron & Chambers, Noble M. Chambers, Crowley, for plaintiffs-appellees.
    Before DOMENGEAUX, STOKER and DOUCET, JJ.
   DOMENGEAUX, Judge.

Plaintiffs, Anthony and Patsy Rougeau, who were husband and wife, sought a money judgment in recognition of a vendor’s lien and special mortgage against the defendant Doyle Moody. The trial court rendered judgment in favor of the plaintiffs and defendant has appealed. For the reasons assigned by the trial court we affirm the judgment. For other reasons, expressed afterwards, we also reject defendant’s contention that he was entitled to a jury trial. We quote the trial court approvingly as follows:

“On December 21, 1977, plaintiffs sold to defendant, by credit sale, certain immovable property located in Acadia Parish, Louisiana, for the sum of THIRTY-FIVE THOUSAND AND NO/100 ($35,-000.00) DOLLARS, SEVEN THOUSAND AND NO/100 ($7,000.00) DOLLARS of which defendant paid to plaintiffs in cash. The credit sale, and the promissory note executed in connection therewith, provided for the TWENTY-EIGHT THOUSAND AND NO/100 ($28,000.00) DOLLARS balance of the purchase price to bear interest at the rate of eight (8%) per cent per annum from date, payable in one hundred eighty (180) monthly installments of TWO HUNDRED SIXTY SEVEN AND 59/100 ($267.59) DOLLARS, with the first payment due on March 1, 1978. The instruments provided that the failure to pay any installment when due shall ipso facto and at once mature all remaining unpaid installments and the note at the option of the holder. By the terms of the credit sale, defendant mortgaged the property therein conveyed in order to secure the debt. The credit sale also recognized plaintiff’s vendor’s privilege on the property described therein. In the event of default, the credit sale and the promissory note also provided for the payment of attorney’s fees in the amount of twenty-five (25%) per cent of the amount due. The credit sale was recorded in the mortgage records of Acadia Parish on December 21, 1977.
On the same day, the parties entered into an agreement whereby defendant granted to plaintiffs the right to the continued possession of the property for a period of ninety (90) days, at which time plaintiffs would be required to vacate the premises.
Defendant failed to pay the first installment due on March 1, 1978. As a result, on March 15,1978, through counsel by certified letter to defendant, plaintiffs elected to call the entire balance of the note due, together with interest and attorney’s fees.
Plaintiffs did not subsequently vacate the premises on March 21, 1979, as per the agreement between the parties; it appears that plaintiffs vacated approximately one and one half (1%) weeks after the designated date.
Defendant answered plaintiffs’ petition, generally denying the allegations contained therein. By affirmative defense, defendant further alleged that the parties had entered into a rental agreement regarding the property in question, whereby the sum of TWO HUNDRED SIXTY SEVEN AND 59/100 ($267.59) DOLLARS (the monthly amount due by defendant under the promissory note) was to be paid monthly by plaintiffs to defendant beginning March 1, 1978, and on the same day of each succeeding month. Because plaintiffs did not make the payment to defendant on March 1, 1978, defendant alleged that the two payments (the monthly installment and the rental) were offsetting and that defendant was therefore not in default in payment on the promissory note.
Alternatively, and by way of further defense, defendant alleged that there has been no actual delivery of the property to him (because of plaintiffs’ failure to timely vacate the premises) and that there has therefore been a failure of consideration.
Defendant has also filed a reconven-tional demand wherein he seeks cancellation of the sale and the return of the cash price previously paid, because of plaintiffs’ failure to timely vacate and deliver the premises. He also seeks an award of expenses and damages occasioned in connection therewith.
After reviewing the evidence as a whole this Court finds that there was in fact no rental agreement between the parties. Accordingly, defendant’s failure to pay the March 1, 1978 installment to plaintiffs placed him in default under the terms of the promissory note.
Defendant’s contention that there has been a failure of consideration because there has been no actual delivery of the property to him is without merit. By the very terms of the agreement between the parties, plaintiffs were not obliged to deliver corporeal possession of the property to defendant until March 21, 1978. At that time, defendant had defaulted in his obligation to timely pay the first installment on the note. Because defendant was in default as to his obligation, he could not thereafter place plaintiffs in default for their failure to timely vacate the premises in order to invoke the remedy of cancellation of the sale, which would otherwise have been available to him.
Because the sale will not be cancelled, however, plaintiffs should not be unjustly enriched to the extent of the value of their occupancy of the premises beyond the term granted to them by defendant. Plaintiffs remained on the premises for approximately ten (10) days after the March 21, 1978 deadline. This Court will assess the reasonable monthly rental value of the premises as TWO HUNDRED SIXTY SEVEN AND 59/100 ($267.59) DOLLARS. Accordingly, the value of plaintiffs’ ten (10) day use of the premises is valued at $89.20 (10/3o X $267.59), for which defendant will be entitled to compensation.
For the reasons hereinabove stated, let there be judgment in favor of plaintiffs Anthony R. Rougeau and Patsy Annette Smith Rougeau and against defendant Doyle Moody in the full sum of TWENTY EIGHT THOUSAND AND NO/100 ($28,000.00) DOLLARS together with interest at the rate of eight (8%) per cent per annum from December 21,1977, until paid, and for attorney’s fees in the amount of twenty-five (25%) per cent of the aggregate amount of principal and interest due. Let there be further judgment in favor of plaintiffs Anthony R. Rougeau and Patsy Annette Smith Roug-eau and against defendant Doyle Moody recognizing plaintiffs’ special mortgage and vendor’s lien on the immovable property involved herein.
Let there also be judgment in favor of plaintiff in reconvention, Doyle Moody, and against defendants in reconvention, Anthony R. Rougeau and Patsy Annette Smith Rougeau in the full sum of EIGHTY NINE AND 20/100 ($89.20) DOLLARS together with legal interest from date of judicial demand until paid.
Costs to be paid by defendant.”

Defendant argues that the trial court erred in denying his request for a trial by jury. We do not agree.

La.C.C.P. Article 1733 specifically states:

“A trial by jury shall not be available in:
(2) A suit on an unconditional obligation to pay a specific sum of money, unless the defense thereto is forgery, fraud, want or failure of consideration; ...”

By the terms of the note, defendant was unconditionally obligated to pay a specific sum of money. Defendant argues that he has pled failure of consideration due to lack of delivery as one of his defenses. The trial court rightly concluded that lack of delivery was unavailable as a defense. La.C.C. Article 2479 provides:

“The law considers the tradition or delivery of immovables, as always accompanying the public act, which transfers the property. Every obstacle which the seller afterwards interposes to prevent the taking of corporal possession by the buyer, is considered as a trespass.”

In this instance, defendant acknowledged delivery in the Act of Sale, and in a separate instrument executed the same date, he agreed to allow the plaintiffs to remain on the premises through March 21, 1978. In the face of this acknowledgment and subsequent agreement, defendant was without right to assert that the plaintiffs did not deliver the property to him. He further alleged that their failure to vacate by March 21, 1978, constituted a failure of delivery. However, the trial court observed that the defendant defaulted before plaintiffs were required to vacate, so this defense is also without merit.

Plaintiff’s occupancy of the premises past March 21, 1978 without defendant’s consent is considered a trespass under La. C.C. Article 2479. We cannot say the trial court erred by granting to defendant judgment equal to the only established value of the plaintiffs’ unauthorized occupancy of defendant’s property. The court’s equitable decision in awarding defendant $89.20 prevented the plaintiffs from being unjustly enriched at defendant’s expense. In the total absence of any other evidence establishing that a higher value was more reasonable, we will not disturb the equitable award. See La.C.C. Article 1965.

For the above and foregoing reasons the judgment of the district court is affirmed. All costs are assessed against the defendant, Doyle Moody.

AFFIRMED.


author: CUTRER, Judge.

text:
    KRAWFISH KITCHEN RESTAURANT, INC., Plaintiff-Appellant, v. Lee ARDOIN, d/b/a R & L Asphalt Paving Co., Inc., et al., Defendants-Appellees.
    No. 8102.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.

      Domengeaux & Wright, William P. Rutledge, Lafayette, for plaintiff-appellant.
    Young & Burson, I. J. Burson, Jr., Eunice, for defendants-appellees.
    Before GUIDRY, CUTRER and LA-BORDE, JJ.
   CUTRER, Judge.

This is a suit for damages arising out of an alleged breach of a construction contract to lay asphalt upon plaintiff’s parking lot. The plaintiff appeals from a judgment dismissing its suit against one of the defendants, Lee Ardoin, by sustaining exceptions of no cause of action and improper joinder of parties filed by Ardoin.

We will first address the issue of whether the trial court correctly sustained the exception of no cause of action.

The function of the peremptory exception of no cause of action is to test the sufficiency in law of the petition. In the case of Guillory v. Nicklos Oil and Gas Company, 315 So.2d 878 (La.App. 3rd Cir. 1975), this court summarized the function and principles regarding consideration of such exceptions as follow:

“The peremptory exception of no cause of action C.C.P. art. 927(4) questions whether the law affords any remedy to the plaintiff under the allegations of his petition. No evidence may be introduced to support or controvert an objection that the petition fails to state a cause of action. C.C.P. art. 931. American Creosote Company v. Sorinser. 257 La. 116, 241 So.2d 510 (1970). The exception is triable solely on the face of the petition. All well pleaded facts in the petition and attached documents must be accepted as true and any doubts must be resolved in favor of the sufficiency of the pleading to state a cause of action. The exception must be overruled unless the allegations affirmatively establish that under no facts admissible under the allegations of the petition does plaintiff have a cause of action. See Hero Lands Company v. Texaco. Inc.. 310 So.2d 93 (La.1975); Watkins v. Louisiana High School Athletic Ass'n. 301 So.2d 695 (La.App. 3rd Cir. 1974).”

Plaintiff’s petition filed suit against “Lee Ardoin d/b/a R & L Asphalt Paving Company, Inc. and R & L Asphalt Paving Company, Inc.” alleging that it had entered into a construction contract with defendants wherein defendants were to perform the construction of the- asphalt paving of a parking lot at plaintiff’s restaurant.

Plaintiff alleges that defects occurred and thereby seeks damages, praying for judgment against defendants for breach of warranty.

Attached to the petition, and made a part thereof, is the alleged contract which we will reproduce! This contract is as follows:

Defendant filed the exception contending that:

“Plaintiff has no cause of action against Lee Ardoin individually because the contract sued upon was entered into by Lee Ardoin as an officer of R. & L. Asphalt Paving Company, Inc., and said corporation, its equipment and personnel executed the contract in its entirety."

The exception of no cause of action presents the question of whether the petition states a cause of action against Lee Ardoin personally.

As we examine the allegations of the petition and the document attached thereto, we conclude that the trial court erred in sustaining the exception of no cause of action.

The petition names “Lee Ardoin d/b/a R & L Asphalt Paving Company, Inc.” as a defendant. The contract is signed by “Lee Ardoin d/b/a R & L Asphalt Paving Co., Inc.” The fact that Ardoin signed the instrument in such a manner does not mean that he was signing on behalf of the corporation or as an officer of the corporation.

The court in the case of Southern Ins. Co. v. Consumer Ins. Agcy., Inc., 442 F.Supp. 30 (E.D.La.1977), was faced with the effect of a contract signature which was in the following form: “W. C. Moore d/b/a Consumer Insurance Agency, Inc. of New Orleans.” After finding that such a signature created personal liability under Texas law, the court stated that such signature creates the same personal obligation under Louisiana law, as follows:

“In Louisiana, where defendant conducted business, the phrase is given the same meaning as it is in Texas and in common parlance. LSA-C.C.P. Art. 736 states:
‘A person who does business under a trade name is the proper defendant in an action to enforce an obligation created by or arising out of the doing of such business.’
“The rationale of this interpretation, which has also been reached in other states, was explained in Duval v. Midwest Auto Citv. Inc.. D.Neb.1977, 425 F.Supp. 1381, 1387:
‘The designation “d/b/a” means “doing business as” but is merely descriptive of the person or corporation who does business under some other name. Doing business under another name does not create an entity distinct from the person operating the business. The individual who does business as a sole proprietor under one or several names remains one person, personally liable for all his obligations. So also with a corporation which uses more than one name.’”

Following this reasoning, we conclude that the petition, when considered along with the document annexed thereto, states a cause of action against Lee Ardoin. The trial court erred in its ruling otherwise.

Ardoin’s dilatory exception of improper joinder of parties is likewise without merit. The only party who may raise the question of improper joinder of parties is the party who has been improperly joined. Such remedy is not available to a party who is properly joined. Ocean Acc. & Guar. Corp. v. Robert Jefferson & Son, 44 So.2d 730 (La.App. Orleans 1950); Jacobs v. Ben-dler, 26 So.2d 389 (La.App. Orleans 1946). Since we have concluded that Lee Ardoin was properly joined as a party in this suit, the remedy of improper joinder of parties is unavailable to him. The trial judge erred in granting this exception.

For these reasons the judgment of the trial court is reversed and the case is remanded for further proceedings according to law and consistent with this opinion. The costs of this appeal are assessed against defendants-appellees. Assessment of costs in the trial court must await a final judgment there.

REVERSED AND REMANDED.

GUIDRY, J., concurs.


author: LABORDE, Judge.

text:
    Leroy LeBLANC, Plaintiff-Appellee, v. Web ROBERTSON, Defendant-Appellant.
    No. 8136.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.
    Rehearing Denied April 27, 1981.

      Paul J. deMahy, St. Martinville, for defendant-appellant.
    Provost, Ernest & Schwing, James W. Schwing, New Iberia, for plaintiff-appellee.
    Before GUIDRY, CUTRER and LA-BORDE, JJ.
   LABORDE, Judge.

Leroy LeBlanc, plaintiff-appellee, filed suit against Web Robertson, defendant-appellant, for damages resulting from Robertson’s breach of a building contract. Robertson failed to answer and a default judgment was entered on March 26, 1980. The default was confirmed on July 18,1980, and judgment was rendered in LeBlanc’s favor in the sum of $39,950.19 plus attorney’s fees. Robertson appeals. We affirm.

In his petition, LeBlanc alleged that he entered into a building contract with Robertson involving the construction of an addition to LeBlanc’s residence. LeBlanc further alleged that after Robertson commenced the work called for in the contract and received a portion of the price, he (Robertson) then ceased operations, refused to continue, and even refused to repair the defects in the completed portion. As a result, LeBlanc claims he was forced to employ other persons to complete the contract and to remedy the defects.

LeBlanc seeks damages resulting from Robertson’s breach of contract. These damages include costs of repairing alleged defects in construction, compensation for mental anguish, and contracted-for attorney’s fees. LeBlanc attached a certified copy of the alleged building contract making it a part of his petition.

No transcript was made of the evidence taken at the confirmation of default, nor, so far as the record shows, was any effort made by appellant to secure a written narrative of facts, either by joint agreement of the parties or else by the trial court if the parties could not agree. LSA-C.C.P. art. 2131.

Robertson first argues that the trial court erred in granting a default judgment beyond the allegations of plaintiff’s petition. In support, he argues that the contract excludes recovery for painting, electrical work, plumbing and insulation; that the contract forms a part of the petition; and that the court allowed recovery for these excludable items. Hence, he reasons, this amounts to recovery beyond the allegations of plaintiff’s petition. Appellant’s first argument lacks merit for the following reasons.

This court has held that when the record contains neither a transcript of testimony nor a written narrative of facts and the respective claims of the parties present factual issues predicated upon the missing oral testimony, the appellate court must presume that the judgment of the trial court is correct and supported by sufficient competent evidence, absent a contrary showing in the record. See Holbrook v. Palermo, 352 So.2d 419 (La.App. 3rd Cir. 1977) and cases cited therein.

Returning to the facts of the instant case, we note that without a transcript of evidence, a written narrative of facts, or even an itemized judgment there is nothing to support appellant’s statement that the court allowed plaintiff recovery for any ex-cludable items. Instead, we note that the award given was well within the allegations of plaintiff’s petition which itemized damages much higher than the ultimate judgment rendered.

We conclude that the record contains nothing to show that the judgment was rendered beyond the allegations of the petition. Hence, we must presume that the trial judge excluded those items which required exclusion and fashioned the award appropriately.

Appellant next contends that the trial court erred in awarding mental anguish damages for breach of a building contract. Due to appellant’s failure to prove that such an award was made, this contention also lacks merit.

Even though plaintiff alleged and prayed for mental anguish damages, appellant has failed to show that the trial court made such an award. Because we are without a transcript of evidence, a written narrative of facts, or a judgment itemizing damages, we must assume that the trial judge correctly construed the law and the evidence and rejected plaintiff’s claim for mental anguish damages. This is borne out by the award made which is within the damages alleged without suggesting that the court added an award for mental anguish.

Appellant’s final contention is that the trial court erred in applying an improper measure of damages for breach of a building contract.

The basic law with regard to a contractor’s liability for breach of a building contract is found in Civil Code Article 2769 which provides:

“Art. 2769. If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.”

Without the transcript of the evidence in the record, or a written narrative of facts, this court does not on review have any basis by which to determine that the trial court committed error in construing the evidence and awarding damages.

Applying the presumption of its correctness above discussed, we affirm the default judgment at the cost of the defendant-appellant.

AFFIRMED.


author: CULPEPPER, Judge.

text:
    SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Plaintiff and Appellee, v. Wilson J. SONNIER, Defendant and Appellant.
    No. 7954.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 1981.
    Rehearing Denied April 27, 1981.
    Gerald J. Block, Lafayette, for defendant-appellant.
    Davidson, Meaux, Sonnier & Roy, M. Candice Hattan, Lafayette, for plaintiff-ap-pellee.
    Before CULPEPPER, FORET and SWIFT, JJ.
   CULPEPPER, Judge.

Plaintiff carried medical payments insurance on the defendant’s automobile. Defendant’s son, while driving the car, was killed in a collision with a Missouri-Pacific Railroad train. Plaintiff paid defendant $2758.40 for the funeral expenses of his son. Defendant settled his claim against Missouri-Pacific. Plaintiff then filed the present suit against defendant to recover the $2758.40, alleging the settlement destroyed its conventional subrogation under the policy against the railroad in violation of the policy provisions. The trial judge awarded plaintiff the $2758.40 sued for. Defendant appealed. We affirm.

Sonnier raises three issues on appeal: (1) Is Southern Farm legally subrogated to Sonnier’s claim against Missouri-Pacific for the amount of the funeral expenses paid under the insurance policy? (2) Did'Sonnier prejudice Southern Farm’s subrogation rights by settling the suit against Missouri-Pacific? (3) Did Southern Farm’s claim for the amount of the funeral expenses prescribe?

The parties stipulated the following facts:

Mr. and Mrs. Wilson J. Sonnier’s son died in a car-train collision on August 9, 1974. Southern Farm, pursuant to a medical payments clause in the insurance policy, paid Wilson J. Sonnier $2758.40 for his son’s funeral expenses. The Sonniers sued Missouri-Pacific in federal district court for the wrongful death of their son. On June 3, 1977, the jury found Missouri-Pacific negligent and awarded the Sonniers $103,160 in damages. The award included $3,160 to Wilson J. Sonnier for his son’s funeral expenses. Missouri-Pacific appealed.

Southern Farm learned of the suit from a newspaper clipping forwarded by an agent to its Baton Rouge offices six days after the judgment. Southern Farm contacted Son-nier’s attorney to collect the $2758.40, relying upon a subrogation clause contained in the insurance policy. Before it could be determined whether Sonnier would honor Southern Farm’s claim, the Sonniers settled their suit against Missouri-Pacific for $90,-000 on March 21,1978. The next day, Son-nier’s attorney informed Southern Farm Sonnier would not honor its claim. Southern Farm filed suit on March 28, 1978.

In its written reasons for judgment, the trial court quoted the subrogation clause from the policy, set out below, and stated plaintiff had a “legal subrogation” against Missouri-Pacific. Sonnier contends the trial court erred in finding “legal” subrogation. It is obvious the trial judge did not mean a “legal” subrogation under LSA-C.C. Article 2161. In any event, we need not reach this issue since the insurance policy clearly provides for conventional subrogation. For a discussion of the legal subrogation of insurer to insured’s rights upon payment of a claim, see The Work of the Louisiana Appellate Courts for the 1977-78 Term — Obligations, 39 La.L.Rev. 675 (1979), which comments on Courtney v. Harris, 355 So.2d 1039 (La.App. 4th Cir. 1978). That case involved a medical payments subrogation claim under a policy which did not provide a conventional subrogation. The court held there was no legal subrogation, a position with which the author of the Law Review article disagrees, but the court, in dicta, states insurance companies have the right to provide ini their policies for conventional subro-gation.

LSA-C.C. Article 2160(1) provides that conventional subrogation occurs:

“When the creditor, receiving his payment from a third person, subrogates him in his rights, actions, privileges, and mortgages against the debtor; this subro-gation must be expressed and made at the same time as the payment.”

The requirement that the subrogation agreement must be “made at the same time as the payment” does not mean the agreement cannot be entered into before the payment, but that it cannot be entered into after the payment. The reason for this requirement is that once payment is made the debt is extinguished and can no longer be the cause of an obligation. Cooper v. Jennings Refining Company, 118 La. 181,42 So. 766 (1907).

The automobile insurance policy issued by Southern Farm in Sonnier’s favor contains the following clause:

“11. Subrogation. Upon payment of any loss covered under this policy, the Company shall succeed to all the rights of recovery of the insured, or any other person in whose behalf payment is made, and they shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights, and shall do nothing after loss to prejudice such rights.”

Under this conventional subrogation, Southern Farm became subrogated to Son-nier’s claim against Missouri-Pacific upon payment of the $2758.40. State Farm Fire & Casualty Company v. Sentry Indemnity Company, 346 So.2d 1331 (La.App. 3rd Cir. 1977); American Auto Insurance Company v. Twenty Grand Towing Company, 225 So.2d 114 (La.App. 1st Cir. 1969).

Next, Sonnier contends Southern Farm’s subrogation rights were not prejudiced by his actions. He argues any harm suffered by Southern Farm resulted from its own inaction.

We do not find Southern Farm caused its own misfortune. Southern Farm attempted to settle the matter in an amicable manner without intervening in the appeal of the Sonniers’ suit against Missouri-Pacific. Rather, it is Sonnier who breached his obligations under the insurance policy. Under the terms of the policy, Sonnier undertook the following duties:

“3. INSURED’S DUTIES. The insured, or someone on his behalf, shall as soon as practicable after an accident or loss: ...
(C) Immediately deliver to the company all papers in connection with any claims or suits.
(D) Assist the company in all respects in connection with any claim or suit, including examination under oath, and the exhibition and protection of any damaged property.”

The settlement reached between the Son-niers and Missouri-Pacific did “hereby release, acquit and forever discharge Missouri-Pacific Railroad Company from and against all such claims and amounts adjudged to them.” As Sonnier’s subrogee, Southern Farm had no greater rights than Sonnier. The release of all claims against Missouri-Pacific makes it impossible for Southern Farm to collect the $2758.40 from Missouri-Pacific.

Where an insured has prejudiced the subrogation rights of his insurer by settling a claim against a third party tort-feasor, he has breached his contract, and the insurer is allowed to recover the amount paid from its insured. Travelers Fire Insurance Company v. Ackel, 29 So.2d 617 (La.App. 2d Cir. 1947). See also Dupre v. Vidrine, 261 So.2d 288 (La.App. 3rd Cir. 1972), writ refused, 263 So.2d 48 (La.1972), and the cases therein holding a release of tort-feasor by insured violated the subrogation clause. The trial court correctly awarded Southern Farm the amount of the funeral expenses paid out under the insurance policy.

Finally, Sonnier contends Southern Farm’s cause of action prescribed due to Southern Farm’s failure to intervene prior to the settlement. He argues that as his subrogee, Southern Farm is subject to the same one year prescriptive period for tort actions applicable to his cause of action against Missouri-Pacific. Also, he argues that upon settlement, the cause of action against Missouri-Pacific terminated.

It is true that Southern Farm now has no cause of action against Missouri-Pacific. However, Southern Farm does have a cause of action against Sonnier. Southern Farm’s cause of action to recover the $2758.40 arose when Sonnier prejudiced Southern Farm’s subrogation rights by settling with Missouri-Pacific. Southern Farm filed suit only seven days after the settlement. Southern Farm’s cause of action against Sonnier for breach of contract did not prescribe.

For the reasons assigned, the judgment appealed is affirmed at the cost of defendant-appellant.

AFFIRMED.