author: CUTRER, Judge.

text:
    Laura Jo Rose DUPLISSEY, Plaintiff-Appellant, v. SOUTHERN UNITED LIFE INSURANCE COMPANY and the Bank of Lecompte, Defendants-Appellees.
    No. 7586.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.
    Rehearing Denied July 8, 1980.
    Donald M. Garrett, Alexandria, and Fusilier, Pucheu, Soileau & Cored L. O. Fusilier, Vide Platte, for plaintiff-appellant.
    Provosty, Sadler & deLaunay, David P. Spence, Alexandria, Trimble, Randow, Smith & Wilson, David P. Smith, Alexandria, for defendant-appellee.
    Before CULPEPPER, CUTRER and DOUCET, JJ.
   CUTRER, Judge.

Plaintiff brought this suit as the Admin-istratrix of the succession of her deceased husband, Johnny Lee Duplissey, against Southern United Life Insurance Company (Southern) and the Bank of Lecompte (the Bank) for recovery of $20,000.00 with interest and penalties allegedly due on a credit life insurance policy. Coverage was denied by defendants. From a judgment rejecting her demands, plaintiff brings this appeal. We affirm.

On November 26, 1976, prior to the bank loan in January, Mr. Duplissey, the deceased, received a medical examination from Dr. Carlton of Lecompte, Louisiana. The results indicated that he was in good health. On January 12, 1977, the day before the bank transaction, Mr. Duplissey was seen again by Dr. Carlton. Duplissey complained of lower back pain which was diagnosed as prostate inflammation.

On January 13, 1977, Duplissey executed a note in favor of the Bank in the amount of $39,933.74 which was the amount required for the purchase of a truck by Du-plissey. Credit life insurance was requested by Duplissey. Pursuant to this request, Wade Jones, President of the Bank, issued the certificate of credit life insurance in question. The credit life policy was for the amount of $20,000.00.

On January 20, 1977, Duplissey consulted with his regular physician, Dr. Wesley R. Dyer of Alexandria, complaining of fatigue and weight and appetite loss. Dr. Dyer hospitalized Duplissey for observation and tests. After a week of tests, Dr. Dyer concluded that Duplissey had an obstruction in his urinary tract. Exploratory surgery on February 2,1977 revealed that Duplissey was suffering from cancer. According to the deposition of Dr. Dyer, Duplissey had cancer prior to January 13, 1977.

At the close of business on January 31, 1977, the Bank forwarded to Southern the certificate of insurance. Southern received the certificate on February 2, 1977. On the same date a request for an investigation was made by Southern to Equifax, an insurance investigation firm with an office in Alexandria. Mrs. Duplissey was contacted by equifax on February 17, 1977 and asked about the state of her husband’s health. Mrs. Duplissey explained that her husband had cancer and surgery was scheduled. This information was received by Southern on February 21, 1977. As a result of this information, Louis H. Strickland, an underwriter for Southern, mailed notices to Du-plissey and the Bank advising each that coverage had been denied.

Duplissey died of cancer on April 29, 1977.

The issues presented on appeal are: (1) Whether coverage began upon the issuance of the certificate of insurance by the president of the Bank as agent for Southern; (2) if not, whether Southern and the Bank are equitably estopped to deny coverage; or (3) whether the Bank failed to timely file the certificate of insurance with the company, thus rendering the Bank liable for negligence.

COVERAGE

The trial judge found that there was no coverage under the policy. The trial court relied on provisions printed on the certificate of insurance issued on Duplissey. The provisions read as follows:

“CONDITIONS OF COVERAGE
“Southern United Life Insurance Company hereby certifies that under and subject to the terms of a Master Creditor-Debtor Insurance Policy issued to the Creditor named on the reverse side, the Debtor, if he is in insurable health at the time this certificate is written, is insured for one or more of the coverages listed below provided, however, that the desired coverage must be indicated in the schedule on the face of this certificate.
♦ * * * * #
“The Company may require evidence of insurability satisfactory to it with respect to each debtor who is issued a certificate of insurance. If the Company finds that any applicant is not an insurable risk according to its underwriting standards, it reserves the right to decline the insurance on the life by indicating its intention in writing to the Creditor within 31 days from the time the individual Certificate was received in the Home Office.” (Emphasis added.)

The trial court noted that the certificate provided that it is subject to the master policy which policy includes the following pertinent provisions:

“EFFECTIVE DATES OF INSURANCE. Each eligible debtor under this policy shall become insured with respect to his indebtedness to the Creditor on the later of the following dates :
1. The date he becomes eligible for insurance, and if an application is required, applied for such insurance; or
2. The date on which the Company determines evidence of insurability of the debtor to be satisfactory, if such evidence is required hereunder.
“EVIDENCE OF INSURABILITY. The Company may require evidence of insurability satisfactory to it with respect to each eligible debtor who applies for insurance hereunder with respect to an indebtedness. If the Company finds that any applicant is not an insurable risk according to its underwriting standards, it reserves the right to decline the insurance on the life by indicating its intention in writing to the Creditor within 31 days from the time the individual certificate was received by the Company. If the debtor should die during the 31 days the insurance shall be deemed to have been in effect if the Company, acting on its regular underwriting methods, would have accepted the insurance. Any premium paid under this policy for insurance not granted will be refunded to the Creditor on demand.” (Emphasis added.)

The plaintiff contends that, even though it was subsequently discovered that Duplis-sey was not in sound health due to cancer, Southern was bound to give coverage due to the action of the Bank. Plaintiff contends that the provisions, which allow Southern 31 days in which to decline coverage, does not apply since there was no application required, there is no allegation of fraud or misrepresentation, no medical examination was required, no inquiry into Duplissey’s health at the time of insurance, and the premium was paid.

The plaintiff cites the cases of Brasher v. Life Insurance Company of Louisiana, 306 So.2d 321 (La.App. 3rd Cir. 1975), writ den., 310 So.2d 639 (La.1975); Butler v. Vulcan Life & Accident Insurance Co., 179 So.2d 642 (La.App. 2d Cir. 1965). These cases are not applicable to the case at hand. Those cases did not involve the contractual right of the insurance company to make a determination of the insurability of the applicant after the certificate was issued and to reject the application within 31 days of the receipt of the certificate by the home office for the lack of insurability.

In the case at hand, it is clear that Southern, under the provisions on the certificate, had the right to require evidence of insura-bility and to decline coverage within the 31 day period from receipt of a certificate in the home office. The evidence establishes that, according to Southern’s underwriting standard, Duplissey was uninsurable.

Contrary to the plaintiff’s assertion, that under the agency clause the bank president could bind Southern, Southern specifically retained the right to reject applicants. The pertinent language of the agency agreement is as follows:

“1. The Agent shall solicit life, accident and health insurance from debtors appearing to be in sound health and actively employed and shall forward to the Company all applications or lists of applicants on appropriate forms furnished by the Company daily or at weekly intervals as directed by the Company. No insurance shall be written on a debtor except at the time the indebtedness is incurred.
“2. No applicant for insurance shall be submitted to the Company unless the Agent shall have received from such applicant full settlement of the premium on the insurance applied for. The Company reserves the ricrht to accept or reject anv application submitted.” (Emphasis added.)

It is clear that, even if the bank president issued certificates, that Southern could decline coverage, and that the president could not bind Southern. According to the policy and the certificate, the right to reject depended on the insurability of the applicant. The word “applicant” in these clauses includes those who are issued a certificate since the period to reject is based on the date of receipt of the certificate at the home office. We do not interpret the clause, concerning the right to require evidence of insurability, to mean such evidence must be required before the certificate is issued. As stated by the trial court: is

“. . under the clear terms of the contract, in both the certificate and the master policy, the insurer reserved the right to determine the insurability and to decline coverage for a period of thirty-one days.”

We find no error by the trial court in its finding in this regard.

ESTOPPEL

Plaintiff-appellant’s next argument is based on a theory of equitable estoppel. In Ledoux v. Old Republic Life Insurance Company, 233 So.2d 731 (La.App. 3rd Cir. 1970), we said:

“Equitable estoppel . . . arises when one by his actions, or by his silence when he ought to speak, induces another to believe certain facts and the other relies on these facts to his prejudice.”

Plaintiff argues that the bank president induced Duplissey to believe he had coverage and that he would not have incurred the debt without first obtaining coverage.

The trial court made the following findings:

“Wade Jones, III, President of the Bank, handled both the loan and insurance application. In testimony, he stated that no inquiry was made about Duplis-sey’s health and no statement was made regarding the terms of the insurance contract. Certainly, no explanation was offered regarding the delay in effectiveness because Jones stated that he believed that coverage was effective upon issuance of the certificate. Jones was unaware of the actual terms of the agency agreement. This may well be due to the fact that Jones was agent for other insurers with policies which may have been different. Jones could not recall any conversation regarding insurance when it was made part of the loan transaction.
“Jones also testified that Duplissey had carried a credit life insurance policy on previous loans but could not recall if he had also handled these transactions.
“The Court does believe that the manner in which an individual, such as the President of the Bank, accepts an application for insurance without question or explanation could well induce some individuals to take this as a representation that coverage existed. Key v. Cherokee, supra. However, the Court has no evidence from which it can conclude that the deceased was such a person. The Court has no knowledge of Duplissey's education but the evidence showed prior experience obtaining loans and insurance policies. The Court was also informed that Duplissey drove a school bus as well as owned and operated commercial vehicles, such as the one purchased with the loan at issue. Duplissey should have had sufficient experience in contractual relations to understand the import of a failure to read a policy. The Court cannot conclude, then, that Jones’ conduct led Du-plissey to believe anything that was not true.
“Even were Duplissey influenced, however, the Court does not find any facts which would support a positive finding on the second prong of the estoppel inquiry: an act of detrimental reliance. Assuming that Duplissey was informed of the delay in effective date, the Court does not believe that Duplissey would have acted other than he did. Duplissey was forty-one years old. He had no suspicion that he was ill with cancer. More importantly, the progress of Duplissey’s illness was such that there would have been no opportunity for Duplissey to apply elsewhere and be considered insurable. Thomas v. Life Insurance Co. of Georgia, 219 La. 1099, 55 So.2d 705 (1951).”

We find no manifest error as the record supports the conclusion of the trial court that Duplissey did not rely on any representations by Jones to his (Duplissey’s) detriment.

The plaintiff cites the following cases to support its position of estoppel. Flaherty v. Gulfco Life Insurance Company, 327 So.2d 436 (La.App. 3rd Cir. 1976), writ den., 329 So.2d 430 (La.1976); Key v. Cherokee Cred it Life Insurance Co., 298 So.2d 892 (La. App. 3rd Cir. 1974); Ducote v. Life Insurance Company of Louisiana, 245 So.2d 531 (La.App. 3rd Cir. 1971); Ledoux v. Old Republic Life Insurance Company, supra. These cases are not applicable to the facts herein. In each of those cases, the court found as a fact that the agent’s representations were relied upon by the applicant to his detriment.

NEGLIGENCE

The final claim of the plaintiff-appellant is that the Bank negligently and unreasonably delayed in submitting the insurance certificate to Southern. The certificate was held by the Bank from January 13, 1977 to January 31, 1977, at which time it was sent to the insurance company. The evidence reveals that the insurance company requested the Bank to forward the certificates of insurance once a month, on the last day of business for the month. There was a time span of 18 days between the loan application and the forwarding of the certificate to the insurance company.

The leading case on an insurance company’s obligation to accept or reject a policy within a reasonable period of time is Thomas v. Life Ins. Co. of Georgia, 219 La. 1099, 55 So.2d 705 (1951), in which our Supreme Court said:

“. . . that since an unreasonable delay and the retention of an unearned premium might deprive an insurable applicant of an opportunity to apply elsewhere for and to procure life insurance, there is a remedy in the form of an action in tort for an unnecessary and negligent delay in performing the duty of acting on the application within a reasonable time, if by such delay, an insurable applicant is prevented from procuring insurance, thus causing a loss.”

See also, Antoine v. Sentry Life Ins. Co., 352 So.2d 768 (La.App. 3rd Cir. 1977); Wyble v. Preferred Life Assurance Society, 83 So.2d 785 (La.App. 1st Cir. 1955).

In a recent case, Duke v. Valley Forge Life Ins. Co., 341 So.2d 1366 (La.App. 4th Cir. 1977), the Fourth Circuit held that a delay of 47 days was not unreasonable. In that case the court determined that in order for the plaintiff to be successful he must prove that there was an unnecessary and negligent delay involved in the procurement of the policy and the person could have obtained insurance from another source.

We conclude that the 18 day delay in forwarding the policy was not unreasonable. Even if the delay could be labeled unreasonable, plaintiff did not show that such a delay deprived Duplissey of an opportunity to apply for and procure insurance elsewhere. Duplissey was clearly un-insurable at the time of the issuance of the certificate due to cancer.

The trial court did not err in denying recovery under the plaintiff’s negligence theory.

For the assigned reasons, the judgment of the trial court is affirmed. Costs are assessed to plaintiff-appellant.

AFFIRMED.


source: Caselaw Access Project

author: SWIFT, Judge.

license: Public Domain

text:
    Edna F. YOUNG, Plaintiff-Appellant, v. Lionel J. MANUEL et al., Defendant-Appellee.
    No. 7591.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.
    Rehearing Denied July 16, 1980.

      Preston N. Aucoin, Ville Platte, for plaintiff-appellant.
    Daniel J. McGee, Mamou, for defendant-appellee.
    Before FORET, SWIFT and STOKER, JJ.
   SWIFT, Judge.

• Plaintiff, Mrs. Edna Young, filed this action seeking a permanent injunction prohibiting defendants, Ogea Hebert, Lionel J. Manuel and their wives, from interfering with her right of passage over their properties from the public road to her home. The petition also requested a preliminary injunction to the same effect and a rule therefor was issued. On its return date an order was signed restraining the defendants from blocking the driveway and bond was furnished by the plaintiff. Mr. and Mrs. Hebert filed an answer and a reconventional demand denying they had refused plaintiff passage over their property and seeking dissolution of the “temporary restraining order or preliminary injunction” theretofore issued, damages and attorney’s fees. Plaintiff answered the reconventional demand. No pleadings were filed on behalf of the Manuels.

On July 13, 1979, the plaintiff moved to continue the “Rule for a Preliminary Injunction” from July 19 to July 27,1979, and it was granted. On July 19 the Heberts moved to continue the “Rule for a Preliminary Injunction” and it was reset for hearing on August 10, 1979.

The case was heard on the day fixed with all counsel being present. The record does not disclose any stipulation or indication that it was being tried on the merits. However the judgment read and signed on September 28, 1979, provides

“IT IS ORDERED, ADJUDGED AND DECREED THAT:
“(1) The demands of the plaintiff be rejected, at plaintiff’s costs, and the preliminary injunction issued herein on the ninth (9th) day of July, 1979, be dissolved;
“(2) The demands of Mr. and Mrs. Ogea Hebert, defendants and plaintiffs in re-convention, for damages be and the same are hereby denied;
“(3) Mr. and Mrs. Ogea Hebert, defendants and plaintiffs in reconvention, be and they are entitled to the sum of $100.00 as attorney fees for dissolving the preliminary injunction issued herein.”

The plaintiff, Mrs. Young, has perfected a suspensive appeal from the judgment, but only against Mr. and Mrs. Lionel J. Manuel. None of the defendants have answered or appealed from the judgment and it is therefore final insofar as the Heberts are concerned.

While there may be some question as to whether this was a judgment on the merits or simply on plaintiff’s rule for a preliminary injunction, we construe it as the latter. There was no agreement that both be tried on August 10, 1979. And an ordinary proceeding on the merits would have been a nullity insofar as the Manuels were concerned, because is was fixed for trial before any answer was filed by them in violation of LSA-C.C.P. Article 1571. Jackson v. Hannie, 225 So.2d 385 (La.App. 3 Cir. 1969); Ellis v. Evans, 247 So.2d 173 (La.App. 3 Cir. 1971); Phillips v. Schmidt, 311 So.2d 471 (La.App. 4 Cir. 1975); Deville v. Gaudet, 361 So.2d 980 (La.App. 3 Cir. 1978). Of course, the Manuels were not required to file an answer prior to the trial of the rule for a preliminary injunction as it was a summary proceeding. LSA-C.C.P. Article 2593.

Turning now to the question of whether or not the plaintiff was entitled to a preliminary injunction, the facts are that on June 20, 1970, Mrs. Young purchased from Ogea Hebert a lot in Chataignier, Evangeline Parish. It was bounded on all sides by property owned by private individuals and had no access to a public road. Hebert retained the land on the east side. The Manuel tract is situated on the south side of Hebert’s property and it fronts on a public street or road. Lying south of the plaintiff’s land and on the west of Manuel’s property is a parcel which appears to be owned by Blaine Vidrine. It also faces the street. The Young and Vidrine tracts are divided by a coulee. The Young, Hebert and Vidrine properties formed a tract of land that was owned previously by a Mrs. Bathilde Rozas. She conveyed one acre thereof (the Young and Hebert tracts) to Mr. Hebert on July 30, 1968. That deed contained the following provision:

“Vendor also grants a right of passage to the property being sold herein, said right of passage to be adjacent to the Coulee or canal and it is agreed that purchaser will fix said right of passage at his own expense and will not in any way interfere with with the garden fence or the clothes line on vendor’s property. In the event that purchaser interferes with any other improvements on the land of vendor he shall repair and replace same at his own expense.”

Although a bridge was constructed by the parish over the coulee between the Hebert and Vidrine tracts not long after Hebert’s purchase in 1968, apparently this right of passage has never been used. Instead a gravel driveway, which runs from the properties of plaintiff, Hebert and Manuel to the public street or road, has been used as the means of ingress and egress by the Heberts from 1968 and by plaintiff from 1970. At first Mr. Hebert paid Mr. Manuel $10.00 per year for the passage, but it is not clear as to just how long this continued. In the spring of 1979 Manuel informed plaintiff and Hebert that they could continue to pass through his property for a charge of $5.00 each per year. Mr. Hebert agreed but plaintiff rejected Mr. Manuel’s offer. In June, 1979, Manuel put a gate on the driveway depriving plaintiff of access to the public road and this suit resulted.

The plaintiff contends that the trial judge erred in failing to find that she was entitled to a right of passage through the Manuel’s property. Although no oral or written reasons were given for the judgment, the judge apparently concluded that Mrs. Young was not entitled to a right of passage over the Manuel tract as the owner of any enclosed estate, because she had access to the public road by another means.

The applicable provisions of our Louisiana Civil Code, Articles 699, 700, 701 and 747, were amended by Act 514 of 1977 and are now Articles 689, 692, 694 and 776, respectively. However, no changes were made in their substance that affect this case.

Article 699 (now 689) provided that the owner of land having no access to a public road is entitled to a right of passage over neighboring property to the nearest public road, but is obliged to pay for the damages caused his neighbor thereby. Article 700 (now 692) limited the enclosed owner’s choice to a passage generally along the shortest route to the public road and at the location least injurious to the intervening lands. But where the tract became enclosed as a result of a partition or a voluntary alienation of an estate or a part thereof, Article 701 (now 694) provided that the right of passage be furnished gratuitously by the owner of the land on which the right of passage was previously exercised, even though not the shortest route to the road and even if not mentioned in the act of alienation or partition. Article 776 (now 747) provided that where the dominant estate is divided, the servitude is due each part if no additional burden is imposed on the servient estate. Thus, the owners of all of the divided parcels are bound to exercise the right of passage through the same place.

The nearest public road to the Young lot is the street on which the Manuel and Vidrine tracts front. The plaintiff contends that the shortest route from her property to the public road is the driveway which passes through the Manuel property. The record is not entirely clear in this respect. Nevertheless, we think that her right of passage to the road is governed by Article 701 (now 694) across the Hebert land, the bridge and the tract to the south formerly owned by Mrs. Rozas (now by Vidrine) as mentioned in the 1968 deed from her to Mr. Hebert. Picard v. Shaubhut, 324 So.2d 517 (La.App. 1 Cir. 1976); Langevin v. Howard, 363 So.2d 1209 (La. App. 2 Cir. 1978), Writ denied, 366 So.2d 560 (La. 1979).

According to Picard, the provision in the deed, rather than creating a servitude of passage by agreement of the parties, simply recognized and designated that servitude of passage which the Hebert land (including the lot now owned by the plaintiff), as the dominant estate, had over and across the balance of the Rozas tract (now the Vidrine lot), as the servient estate. Such a servitude imposed by law is a necessary servitude and as such is imprescripta-ble.

Since it appears that plaintiff is entitled to a right of passage to the public road over the tract on the south side of her property, and the evidence in the record supports the defendant’s contention that with minor adjustments it can be used satisfactorily, she is not entitled to a preliminary injunction to prevent Mr. and Mrs. Manuel from interfering with her use of the gravel driveway on their land. However, the case must be remanded to the trial court for a final determination of her rights in this respect and to a permanent injunction.

The record reveals that there is a suit presently pending which apparently involves the right of plaintiff and Mr. Hebert to passage across the Vidrine property. Because of this common issue of law and fact, we suggest that the trial court consider consolidating the further proceedings in this case with the suit against Mr. Vidrine.

For the foregoing reasons, the judgment of the trial court is affirmed and this case is remanded to the district court for further proceedings in accordance with law and the views expressed herein. All costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED AND REMANDED.

APPENDIX I

      . Attached hereto as APPENDIX I is a sketch prepared by the court showing the general location of the properties.


author: FORET, Judge.

text:
    Ruth D. ALBRITTON, Plaintiff-Appellant, v. J. C. PENNEY COMPANY, INC., Liberty Mutual Insurance Company, and Louisiana Investors of Delaware, Inc., Defendants-Appellees.
    No. 7610.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.
    Rehearing Denied July 16, 1980.

      Boatner & Luke, R. H. Luke, Bunkie, for plaintiff-appellant.
    Bolen & Erwin, James A. Bolen, Jr., Alexandria, for defendant-appellees, Penney Co. and Lib. Mutual.
    Gold, Little, Simon, Weems & Bruser, Herbert J. Mang, Alexandria, for defendant-appellee, La. Investment Co.
    Before FORET, SWIFT and STOKER, JJ.
   FORET, Judge.

This is a tort suit. Plaintiff, Ruth D. Albritton, brought suit against the J. C. Penney Company (hereinafter Penney), its liability insurer, Liberty Mutual Insurance Company (hereinafter Liberty), and Louisiana Investors of Delaware, Inc. (hereinafter the Mall), the owner and lessor of the premises wherein Penney conducts its retail business, to recover damages allegedly suffered as a result of a slip and fall accident plaintiff had while at the mall. In their answer, Penney and Liberty asserted a third party demand against the Mall pursuant to LSA-C.C.P. Article 1111. The case was tried to a Rapides Parish jury which exonerated all defendants of liability. While the jury found that the plaintiff did slip on a foreign object, and she did receive her injuries as a result of the accident, the jury went on to find that Penney, Liberty and Louisiana Investors were not negligent.

Plaintiff now prosecutes this appeal assigning as specification of error number I, that the jury was clearly wrong and its verdict was not supported by a preponderance of the evidence, and in specification of error number II, that the trial court committed error with reference to a “charge conference” to rule on proposed jury charges, and in submitting to the jury confusing and inconsistent verdict interrogatories, failing to provide counsel an opportunity to review or discuss the special verdict interrogatories propounded by the court, and failing to charge the jury under Article 2317 of the Louisiana Civil Code. As seen herein below, we agree with plaintiff that the jury verdict denying plaintiff recovery against Penney and Liberty was clearly wrong; so, in reversing the trial court judgment for that reason, we need not consider specification of error number II.

On September 10, 1977, plaintiff went to the J. C. Penney automotive service center in the Alexandria Mall, Alexandria, Louisiana, to exchange a tire. Upon inspection of the tires on her vehicle, plaintiff was informed by Penney employees that three were defective, that they were still under warranty, and that she was entitled to have them replaced. Plaintiff was then advised that it would be approximately three hours before her vehicle would be ready. At approximately 3:30 P.M., the necessary repairs had been done. Prior to leaving the Penney premises, plaintiff could not find her new tire warranty, and was informed by Penney employees that same should be in her car’s trunk. With the assistance of one of Penney’s service personnel, plaintiff again searched for but could not locate the warranty. Plaintiff then, accompanied by the serviceman, was returning to the shop supervisor’s desk in an attempt to locate the warranty. Upon walking up an inclined concrete apron or entranceway surrounding the shop area, plaintiff allegedly slipped on a foreign object, causing her to fall and sustain an “egg shell” fracture on the nose, a fracture of the radius of the right arm, and other minor abrasions and bruises.

Appellate jurisdiction of the courts of appeal of this State extends to both law and fact. La.Const., 1974, Art. 5, § 10(B). The standard for appellate review in Louisiana, which has been enunciated in Canter v. Koehring Company, 283 So.2d 716 (La.1973) and was thereafter clarified in Arceneaux v. Domingue, 365 So.2d 1330 (La.1979) and its progeny, that: “the appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong (manifestly erroneous) . . . ” is now axiomatic and no further discussion or citation is necessary. After a thorough review of the record before us, we are of the opinion that the jury’s application of the relevant law to the facts is manifestly erroneous. Under the provisions of LSA-C.C.P. Article 2164, we are empowered to render any judgment which is just, legal and proper upon the record on appeal and reverse the trial court, where appropriate, and render judgment accordingly in lieu of a remand.

The jury found that plaintiff did in fact slip and fall on a foreign object while on the premises of the defendant, J. C. Penney automobile repair facility and that she received injuries as a result of said fall.

In Louisiana, storekeepers owe an affirmative duty to their customers to use ordinary or reasonable care to keep aisles, passageways, and floors in a reasonably safe condition and this duty includes a reasonable effort to keep objects off the floor which might give rise to a slip and fall. These reasonable protective measures which must be taken to insure that the aisles and floors are free of substance or objects which may cause customers to fall, include periodic inspections. Broussard v. National Food Stores of Louisiana, Inc., 233 So.2d 599 (La. App. 3 Cir. 1970), affirmed 258 La. 493, 246 So.2d 838 (1971); Kavlich v. Kramer, 315 So.2d 282 (La.1975); Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976).

Once the plaintiff has established a prima facie case, i. e., that a hazardous condition existed and that it caused his injury, an inference of negligence arises and the burden of proof falls upon the defendant, who must then go forward with evidence to exculpate himself from the presumption that he was negligent. Kavlich v. Kramer, supra; Gonzales v. Winn-Dixie, supra. Thus it became incumbent on the defendants to exculpate themselves once the plaintiff proved that she slipped on a foreign object and was injured.

Owners and occupiers of land have an affirmative duty to exercise reasonable care in maintaining their premises in a safe condition and of warning any individuals, who they know or should have known may venture onto those premises, of any concealed or hidden defects. LSA-C.C. Articles 2315, 2316; McCauley v. Nicholas, 297 So.2d 914 (La.App. 1 Cir. 1974), writ denied 302 So.2d 24 (La.1974). LSA-C.C. Article 2695, which provides for strict liability of a landlord for damages resulting from hazardous conditions on the leased premises, is restricted to the landlord-tenant relationship and does not apply to third parties, whose rights are protected by LSA-C.C. Articles 2315, 2316, 2322, and former Article 670 (see now Article 660). Reed v. Ramsay, 355 So.2d 618 (La.App. 4 Cir. 1978). In order for a plaintiff to recover from a landowner-lessor, he must prove that the damages he suffered were as a result of a defect or vice in the thing owned or leased. Lanclos v. Tomlinson, 351 So.2d 1218 (La. App. 3 Cir. 1977), writ denied, 352 So.2d 1023 (La.1977).

Additionally, not every defect can serve as a basis for a claim. The defect must be of such a nature as to constitute a dangerous condition which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. McCauley, supra; Templin v. Traders & General Insurance Co., 288 So.2d 660 (La.App. 3 Cir. 1974).

Mrs. Albritton did not slip and injure herself because of any fault or defect in the design or construction of the leased premises. There is no evidence in the record to indicate that defects existed. At no time during the course of events which precipitated the injury sued upon was the Mall in control, actual or constructive, of the concrete area where the plaintiff fell. As is evident from a cursory glance at Exhibit “B”, the area where plaintiff fell was leased to defendant, J. C. Penney. The Mall was responsible for the cleaning of “common areas” such as sidewalks, parking lots, public toilets, etc. Obviously, by the very use of the word “common” as an adjective to describe the word “areas” is meant such areas as are used conjointly by the Mall tenants. Penney argues that the Mall was responsible for the area where plaintiff fell. We disagree. Nowhere in the lease can we find any provision which would seem to support his assertion. As noted previously, the apron where plaintiff fell is clearly delineated on the Mall’s Exhibit “B” as being leased to J. C. Penney.

Defendant, Louisiana Investors of Delaware, Inc., owner and lessor of the premises where plaintiff fell and was injured, has successfully carried its burden. It is for these reasons that we will affirm that part of the verdict finding the Mall not negligent and additionally will dismiss the third party demand by J. C. Penney against the Mall.

Unlike the Mall, however, J. C. Penney has failed to carry its burden. There was no regular pattern of frequent inspection and cleaning of the area in question by any Penney employees. Both Reggie French, the merchandise manager of Penney’s automotive store, and Rickey Gauthier, the shop foreman at Penney’s, testified that the cement apron where plaintiff fell was cleaned when mechanics were not too busy to clean it. French did say that the shop and adjoining area was cleaned every morning, but cleaning during the day is done on a sporadic basis. Gauthier testified that on days when the workload is particularly heavy, the apron may not be cleaned at all. Both men testified that not only was it possible for debris from inside the shop to somehow find its way to the apron, but that this in fact occurs from time to time. French stated that the apron is cleaned when “necessary”. It is also noteworthy that Penney has a policy of allowing its automotive customers into the shop area so that they may view first hand the repairs being made to their vehicles. (Tr., pp. 82, 83). Penney’s automotive customers, like patrons of any merchandising establishment, are entitled to have a reasonably safe place to walk. Under the present jurisprudence of this State, the weight of which holds that storekeepers have a heightened duty to minimize the risk of slip and fall accidents by frequent inspections and cleanups, we find that J. C. Penney breached its duty and said breach was a cause-in-fact of plaintiff’s harm.

QUANTUM

Plaintiff seeks as damages $173.67 for past unpaid and future medical expenses, $903.00 for loss of sick leave and/or wages, and $20,000.00 for residual disabilities, pain and suffering.

Defendant, Liberty Mutual, has paid approximately $3,000.00 to plaintiff for loss of wages and/or sick leave and for past medical expenses. The $903.00 plaintiff claims for loss of sick leave represents approximately 260 hours at an average of $3.50 per hour. However, $3.50 multiplied by 260 equals $910.00. In her petition, plaintiff prayed for $2,025.00 for loss of wages. Plaintiff testified that she lost approximately 270 hours of sick leave which she was not compensated for. Mr. C. J. Dupont, plaintiff’s supervisor, testified that plaintiff lost a total of 732 hours of sick leave and/or wages as a result of her accident. We find that the record supports an award of $910.00 for loss of sick leave and/or wages, and same will be awarded.

Following her accident, plaintiff was rendered first aid and was immediately taken to St. Frances Cabrini Hospital for emergency treatment. She was x-rayed and treated by Dr. Thomas Lacour. She was diagnosed as having an egg shell nasal fracture and fractured radius of the right arm. Plaintiff was later released and returned home that evening. The following day, plaintiff was x-rayed again and placed in a full arm plastic cast for approximately six weeks. She was seen by Dr. Lacour again on September 14, 1977 and on September 21, 1977. On September 26, 1977, plaintiff was seen by Dr. James White, who recommended surgery on her nose. A close reduction nasal fracture operation was performed by Dr. White at Rapides General Hospital on September 28, 1977. Thereafter, plaintiff was seen on October 4,1977, by Dr. Lacour, who x-rayed plaintiffs sinuses and found that they were infected. On October 19, 1977, plaintiff’s cast was removed from her right arm, and she attended out-patient therapy at St. Frances Cabrini Hospital for the next ten days.

On November 3, 1977, plaintiff was seen again by Dr. Lacour, who found that she lacked 20° in having full extension of her right arm, and was having difficulty in breathing through her nostrils. Plaintiff, at this time, had been discharged by Dr. White. On April 4, 1978, plaintiff was again seen by Dr. Lacour, who found that plaintiff had some tenderness and swelling of the nose. She also had difficulty in breathing and could not wear glasses for a long period of time without experiencing pain.

On April 5, 1978, plaintiff reinjured her arm in the course of her work while carrying file folders. On April 11, 1978, x-rays revealed that the radius of her right arm (elbow) had separated components due to the original fracture. On April 13, 1978, after consultation with Dr. P. M. Davis, orthopedic surgeon, plaintiff was placed in a posterior splint for approximately one week, and thereafter in a flaccid-type cast for another week. From January of 1978, through September of 1979, plaintiff was treated on several occasions by Dr. Lacour for pain, tenderness, swelling, and osteoarthritis of her right elbow. The cast was removed from plaintiff’s elbow on May 9 of 1978. In August of 1978, her nose and elbow were again x-rayed. Throughout her treatment, plaintiff continued taking various medications for pain.

Plaintiff was examined on February 27, 1979, by Dr. C. W. Lowrey, an orthopedic surgeon, at the request of counsel for defendants, Penney and Liberty Mutual. Dr. Lowrey had previously concluded, on November 6, 1978, that plaintiff had approximately a 5% permanent and partial impairment of the upper extremity as a whole, but could continue her prior employment as assistant director of housing for the Town of Bunkie. On September 6, 1979, plaintiff was again examined at the instance of counsel for defendants, Penney and Liberty Mutual, and her biceps were measured. The left bicep measured llVs inches and the right bicep, the one on the injured arm, measured 9V2 inches. The elbow was tender and pain was present during the last 20° of full extension.

Plaintiff’s exhibit # 9 shows that plaintiff has sustained $173.67 in medical expenses for which she has not been compensated. No evidence was offered to rebut plaintiff’s allegation as to these expenses. We therefore find it a proper item of damage.

Plaintiff has experienced considerable pain and suffering, as is evidenced from the foregoing summary of her medical history resulting from the injuries she received. Based on the record before us, we feel an award of $15,000.00 as general damages in favor of Mrs. Albritton is justified.

For the reasons assigned, the judgment of the trial court is reversed and judgment is rendered herein as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff, Mrs. Ruth D. Al-britton and against the defendants, J. C. Penney and Liberty Mutual Insurance Company, in the sum of $16,083.67.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Louisiana Investors of Delaware, Inc. and against defendants, J. C. Penney and Liberty Mutual Insurance Company, dismissing their third party demand.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the judgment of the trial court finding the defendant, Louisiana Investors of Delaware, Inc., not negligent and therefore not liable to plaintiff be affirmed.

All costs of these proceedings, both at trial level and on appeal are assessed against the defendants, J. C. Penney and Liberty Mutual Insurance Company.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . Plaintiff alleges that she slipped on a rubber valve stem. These stems are ordinarily attached to automobile tires so that the tires may be inflated with air.

      . For a concise analysis of the bifurcated nature of this concept, see 37 La.Law Rev. 636, Note 13, at page 636.


author: DOMENGEAUX, Judge.

text:
    In the Matter of Succession of Joseph Clevlanc VICE, Sr. Marie Leone Woods VICE, Surviving Spouse in Community, Plaintiff-Appellant, v. Marie Brandon VICE, Administratrix, et al., Befendants-Appellees.
    No. 7627.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.
    Rehearing Denied July 16, 1980.

      J. Minos Simon and Gerald J. Block, Edward J. Milligan, Jr., Lafayette, for plaintiff-appellant.
    Lester J. Gauthier, Jr., Lafayette, Fun-derburk & Conque, J. Isaac Funderburk, Abbeville, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and LABORDE, JJ.
   DOMENGEAUX, Judge.

In this succession dispute the decedent’s fourth wife and surviving spouse, Marie Leone Woods Vice (appellant), appeals from an adverse judgment alleging the trial court committed reversible error in:

(1) Granting the issuance of a preliminary injunction and continuing all protective orders issued prior to the trial of this matter;

(2) Holding that all immovable property and improvements thereon were acquired by the decedent prior to his marriage to Leone Woods Vice and constituted the separate property of appellant’s former husband, the decedent;

(3) Holding that there was no valid donation of the certificates of deposit as well as interest paid on the said certificates and further rejecting appellant’s claim to the certificates and interest as a dation en paiement;

(4) Holding that appellant was not entitled to restitution of her separate and para-phernal property expended for the benefit of the community of acquets and gains existing between appellant and her former husband, the decedent; and

(5) Holding that plaintiff was not entitled to restitution of expenses of last illness and funeral expenses on behalf of Clevlanc Vice, Sr., for the reason that these expenses were paid with commingled funds.

For the following reasons we reject all but the first of appellant’s assignments of error.

This particular dispute arose during the course of the succession proceedings when appellees, Marie Brandon Vice, decedent’s third wife and executrix of his estate, and decedent’s two sons, his forced heirs, filed a motion to traverse the proces verbal of the public inventory of the succession property.

After a trial on the merits of appellees’ motion to traverse, the trial court characterized the movable property as either separate or community, found certain immovable property to be the separate property of the decedent, and found the six certificates of deposit currently in the name of Mrs. Clevlanc Vice, Sr. (Marie Leone Woods Vice, appellant) and deposited in Guaranty Federal Savings & Loan in Lake Charles, to be community property and ordered one-half of the principal amount of the certificates and one-half of the interest to be delivered to the Clerk of Court in Vermilion Parish. Various claims made by appellant for reimbursement of her separate funds allegedly used for the benefit of the community were rejected by the trial court. Finally, the trial court enjoined appellant and Guaranty Federal from alienating or transferring the certificates of deposit to any person other than the Vermilion Parish Clerk of Court in compliance with the judgment. This appeal followed.

1. PRELIMINARY INJUNCTION

Appellant asks this Court to award her damages including attorney’s fees for having to obtain the dissolution of a temporary restraining order issued September 7, 1978, and extended on four occasions — September 15th, September 25th, October 4th, and October 20th, 1978. This order was made final in the trial court judgment.

Appellant submits that the temporary restraining order of September 7, 1978, and extensions thereof, were issued improperly and should be dissolved.

La. C.C.P. Art. 3601 provides in part: “An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law. ...”

The courts of this state have repeatedly defined irreparable injury, loss, or damage as:

“. . that injury, loss or damage for which the injured party cannot be compensated adequately in damages or for which his damages cannot be measured by a pecuniary standard. City of Lake Charles v. Lake Charles Ry., Light & Waterworks Co., 144 La. 217, 80 So. 260; Louisiana State Board of Medical Exam. v. Tackett, La.App., 70 So.2d 207.”

Amacker v. Amacker, 146 So.2d 672, at 675 (La.App. 1st Cir. 1962). See also National Pacific Corporation v. American Commonwealth Financial Corporation, 348 So.2d 735 (La.App. 1st Cir. 1977).

La. C.C.P. Art. 3603 provides that a temporary restraining order will be granted where it “clearly appears from specific facts shown by a verified petition or by supporting affidavit that immediate and irreparable injury, loss, or damage will result . .

All that was alleged by appellees in their motion to obtain a restraining order was: Decedent’s estate had a possible claim to six certificates of deposit totalling $100,000.00 deposited in Guaranty Federal Savings & Loan in Lake Charles; Mrs. Clevlanc Vice, Sr. (appellant) had the power to withdraw all sums represented by the six certificates of deposit on deposit in Guaranty Federal; petitioner (Marie Brandon Vice, appellee) had “reason to believe” that the appellant would withdraw the funds; for her to have done so would have been prejudicial to the estate and would have resulted in irreparable injury, loss, or damage. On the basis of these allegations of fact and of two affidavits, one by one of decedent’s sons, the other by appellees’ attorney, which concluded that irreparable harm would result if the temporary restraining order was not issued, the trial court granted the order.

From the facts alleged by appellees, it is clear that the only injury which could be sustained is the loss of a sum certain in money, an injury which could, if inflicted, be readily compensated in money and easily measured by pecuniary standards. Not only does appellees’ motion for a temporary restraining order fail to aver that a judgment against appellant would be valueless either because of her insolvency or for other reasons but also the record convincingly establishes the financial ability of the appellant to respond in judgment in the event she is cast herein.

Amacker v. Amacker, supra, is squarely on point in this respect. There the court found the plaintiff was not entitled to injunctive relief because of the reasons above expressed in the preceding paragraph and because he was entitled to the legal remedy of sequestration. (See La. C.C.P. Article 3501, et seq.) Since plaintiff had an adequate remedy at law (sequestration) the Court declined to impose the harsh remedy of injunctive relief. Using the same rationale, the Second Circuit in Danzie v. Rutland, 232 So.2d 303 (La.App.2nd Cir. 1970), reached a similar result. For the same reasons, we find that the temporary restraining order originally issued on September 7, 1978, and subsequent extensions thereof, were improvidently and improperly granted and must be dissolved.

La. C.C.P. Article 3608 provides in part that attorney’s fees are recoverable when a temporary restraining order is dissolved after a trial on the merits. Roy v. Union Bank, 347 So.2d 286 (La.App.3rd Cir. 1977) has interpreted this portion of the statute to mean that the temporary restraining order can be dissolved by the Court of Appeal which can then grant damages and/or attorney’s fees for the first time on appeal. We will follow the Roy case and grant appellant attorney’s fees in the amount of $500.00.

In making this award, we note that the District Court, earlier in these proceedings, dismissed a similar temporary restraining order for failure to comply with the requirements of the Code of Civil Procedure and granted appellant’s attorney $350.00. We think the $500.00 granted here adequately compensates appellant’s attorney for services rendered in connection with the dismissal of the temporary restraining order at the trial level and on appeal. This Court granted an identical amount in the recent case of Cook v. Ed. Francis Chevrolet, Inc., 365 So.2d 1178 (La.App.3rd Cir. 1978).

There has been absolutely no showing that appellant was damaged in any other way by the issuance or continuance of the temporary restraining order. Accordingly, we make no award for that item since damages (other than attorney’s fees) have not been shown.

Our opinion is not altered by the fact that appellees ultimately succeeded at the trial level and in this Court (as will be discussed later) in proving that the certificates of deposit were community assets. An action for damages for the wrongful issuance of a temporary restraining order does not depend upon the resolution of the underlying dispute in favor of or against the party seeking the restraining order. Central Louisiana Electric Company v. Pointe Coupee Electric Membership Corporation, 182 So.2d 752 (La.App.1st Cir. 1966). Here, appellant is entitled to claim attorney’s fees and damages because the temporary restraining order which issued without a showing of irreparable harm infringed upon her right to alienate or transfer $100,-000.00 worth of certificates of deposit. See Roy v. Union Bank, supra. This right existed regardless of whether the certificates were later held to belong to appellant or to the community.

2. IMMOVABLE PROPERTY

The trial court held the immovable property to be separate property of the decedent, finding that the parties had stipulated in open court that all immovable property at issue and improvements thereon were acquired by decedent prior to his marriage to appellant.

The record discloses that appellant, in response to paragraph 5 of appellees’ “motion to traverse” pleading, filed an answer which admitted that the land and home (the immovable property at issue) should be listed on the inventory as separate property of decedent’s estate. Appellant further stated in the answer that she had no objection to showing this property as “Separate Property”. At page 6 of appellant’s brief this admission is confirmed.

At the beginning of the trial counsel for both sides stipulated to the pre-marriage acquisition by decedent of the immovable property by introducing into evidence two cash deeds executed in 1965 and 1966, many years before decedent was married to appellant. In both cash deeds decedent represented himself as a single man. The deeds read that decedent was thrice-married — the third time to Marie Brandon (the executrix) —but was also thrice-divorced. Appellant, when introducing the deeds into evidence, never disputed decedent’s representation that he was single when he purchased the property.

During the course of the trial Marie Brandon, executrix, testified. She claimed to have been married to decedent for almost thirty years, beginning in March of 1944 and ending, presumably, in November of 1973, when she and decedent entered into a compromise and settlement agreement. The substance of the settlement was that the executrix conveyed any interests she may have had in all movable and immovable property acquired by her and her late ex-husband during the duration of their marriage. In return for this conveyance she received $11,000.00 from decedent. Appellant also caused to be dismissed, with prejudice, the divorce suit she filed against decedent in 1973. (See Footnote 5).

Appellant’s argument on appeal is that she has a claim to the immovable property acquired by decedent prior to her marriage to him in July of 1973 because the compromise and settlement agreement was executed in November of 1973 subsequent to appellant’s marriage. Appellant contends this was an acquisition during the existence of the community existing between herself and decedent within the contemplation of La. C.C. Article 2402. Therefore, the argument goes, whatever interest the executrix conveyed is community property of which she has an interest. We reject appellant’s argument and affirm the trial court’s finding that the immovable property was the separate property of decedent.

Because of appellant’s answer to the motion to traverse and her stipulation with respect to the cash deeds, she is estopped from attempting to show the property was not acquired by decedent until after he wed his fourth wife (appellant). Her answer and stipulation amount to a judicial confession that the immovable property was acquired by decedent prior to his marriage to appellant.

With respect to judicial confessions, Article 2291 of the Civil Code provides:

“Art. 2291. The judicial confession is the declaration which the party, or his special attorney in fact, makes in a judicial proceeding.
It amounts to full proof against him who has made it.
It can not be divided against him.
It can not be revoked, unless it be proved to have been made through an error in fact.
It can not be revoked, on a pretense of an error in law.”

The Supreme Court very recently reviewed the jurisprudence interpreting Article 2291 in Cheatham v. City of New Orleans, 378 So.2d 369 (La.1979). Much of that review is pertinent to this case and is quoted here:

“The jurisprudence interpreting this statute is well settled to the effect than an admission made in a pleading is within the purview of this statute. It is also well settled that a judicial confession is a party’s explicit admission of an adverse factual element and that it has the effect of waiving evidence as to the subject of the admission, of withdrawing the subject matter of the confession from issue. Crawford v. Deshotels, 359 So.2d 118 (La.1978); J. H. Jenkins Contractors, Inc. v. Farriel, 261 La. 374, 259 So.2d 882 (1972); Jackson v. Gulf Ins. Co., 250 La. 819, 199 So.2d 886 (1967); Farley v. Frost-Johnson Lumber Co., 133 La. 497, 63 So. 122 (1913); McCorkle v. Service Cab Co., 305 So.2d 589 (La.App. 4th Cir. 1974); Guil-beau v. Fireman’s Fund Ins. Co., 293 So.2d 216 (La.App.3rd Cir. 1974). There is also jurisprudence to the effect that under La.Civ. Code art. 2291, once a party has made a judicial confession, and it has been relied on by the other party, the party making the admission may not take a contrary position later. Crawford v. Deshotels, supra; and McCorkle v. Service Cab Co., supra. The above has been held where the admission was made in the trial court and a contrary position was urged on appeal. McCorkle v. Service Cab Co., supra; and Faust v. Pelican Plumbing Supply, Inc., 215 So.2d 373 (La. App.4th Cir. 1968).”

378 So.2d at 374-375.

Since appellant admitted that the immovable property and improvements thereon were acquired by decedent prior to his fourth marriage, that fact—the date of acquisition—was withdrawn from consideration and was no longer an issue to be decided by the trial court. Appellant will not now be heard to assert a contrary position by saying that decedent did not really acquire the immovable property until he executed the compromise and settlement.

Our conclusion that appellant stipulated to the date of acquisition, and that appel-lees relied on that stipulation during trial, is borne out in the record. Appellees’ counsel at all times objected to the relevancy of evidence concerning the executrix’s marriage to and divorce from decedent and the compromise and settlement. Counsel correctly pointed out that both sides stipulated to the date of acquisition and asserted that there were no pleadings raising this date as an issue. The trial court agreed that he felt the evidence was irrelevant but allowed it for whatever bearing it may have had on the executrix’s credibility.

Assuming that there had been no judicial confession or, if one existed that appellant had proved it was made through an error in fact, the evidence tending to prove that the immovable property was .purchased while decedent was married to the executrix is inconclusive.

The only evidence of decedent’s marriage to and divorce from his third wife was adduced from the third wife’s testimony and from the compromise and settlement agreement. She (the executrix) testified that their marriage existed until 1973, in which year she filed an action for divorce from decedent. According to the compromise and settlement agreement, she alleged in her petition for divorce that the divorce decedent obtained in Florida in 1953 was invalid; that if it was valid she and decedent later established a common law marriage while residing together in Georgia and Texas; that since the establishment of said marriages she and decedent established a community of acquets and gains consisting of considerable property both movable and immovable; and that she wanted to partition the property. The decedent opposed her petition for divorce, alleging that the 1953 divorce was valid; that the parties never thereafter held themselves out as husband and wife, although they did live together at times; and that a community of acquets and gains never existed between the parties since the 1953 divorce. Marie Brandon was never granted a divorce. Upon her receipt of $11,000.00 from decedent she had her divorce suit dismissed with prejudice and apparently acquiesced in the 1953 divorce obtained by decedent.

The couple was judicially divorced in 1953 and no evidence was shown that the divorce was invalid. The immovable property was acquired by decedent, alleging he was single, in 1965 and 1966, after his third marriage ended and before his fourth began. Thus, there is a sufficient evidentiary basis to reject appellant’s claim and conclude that the property belongs entirely to the estate.

Furthermore, simply because the compromise and settlement agreement was executed subsequent to decedent’s fourth marriage does not establish the presumption that the subject immovable property and improvements thereon were acquired during decedent’s fourth marriage because the compromise and settlement does not specify any property to which the appellee may have had a claim.

3. CERTIFICATES OF DEPOSIT

The trial court held that the six certificates of deposit on deposit in the Guaranty Federal Savings & Loan institution were community property, rejecting appellant’s claim that decedent either donated the certificates of deposit as well as the interest thereon to appellant, or that he effected a dation en paiement of the certificates of deposit to appellant. We affirm the trial court’s finding in this respect.

The record shows that the certificates of deposit were acquired during the marriage between decedent and his fourth wife. These certificates of deposit were payable to Mr. or Mrs. Clevlanc Vice, Sr. There is evidence that decedent, in July of 1976, attempted to change the name on the certificates of deposit from Mr. or Mrs. Clev-lanc Vice, Sr. to just Mrs. Clevlanc Vice, Sr. instead, but was unsuccessful because he did not have the certificates of deposit with him at the time. He was successful, however, in having future interest payments made to his wife only. Thereafter, in December of 1976, or January of 1977, the name change on the certificates of deposit was effected, but not until after Mr. Vice died on December 1, 1976. Thus, he never successfully transferred the certificates of deposit to his last wife during his lifetime.

That the certificates of deposit, or the interest payable thereon, were never successfully donated to appellant is not at issue here. Cases abound in our jurisprudence that bank accounts, or other amounts on deposit in banks or savings institutions, are incorporeal movables which can be subjects of inter vivos donations only upon the execution of an authentic act. Succession of Palermo, 359 So.2d 1040 (La.App.4th Cir. 1978); Vercher v. Roy, 171 La. 524, 131 So. 658 (1930); Succession of Grubbs, 170 So.2d 256 (La.App.2nd Cir. 1965); Basco v. Central Bank & Trust Company, 231 So.2d 425 (La.App.3rd Cir. 1970). See also C.C. Articles 1536, 1538, and 1539.

There is no authentic act of record, nor is there any evidence that an authentic act, showing that the decedent donated the certificates of deposit to his wife, was ever executed. Thus, the trial court was correct in finding that no valid donation was made.

Moreover, the appellant conclusively testified that her deceased husband did not intend to donate the interest payments to her:

“Q. One other question mam, is it true that your husband agreed to let you have the interest payments on the CDs before he died?
A. No.”

(See Record at 325). Lest she misunderstood the question it was repeated to her but her answer was the same. There being no donative intent, the act of changing the interest payments to appellant’s name alone was without legal effect, and no donation was made. Succession of Brewster, 259 So.2d 388 (La.App.2nd Cir. 1972).

Appellant’s main argument is that the decedent succeeded in effecting a dation en paiement (a giving in payment) of the certificates of deposit to his wife. The trial court rejected this argument also, finding the evidence establishing a dation en paiement to be insufficient. We agree.

La. C.C. Article 2655 provides:
“The giving in payment is an act by which a debtor gives a thing to the creditor, who is willing to receive it, in payment of a sum which is due."

With respect to this Article our jurisprudence has held:

“Three essentials are necessary to maintain the validity of a dation en paiment: First, a real indebtedness of the husband to the wife; second, just value of the property transferred for the existing debt; third, delivery of the property to the wife. Rev.Civ. Code, arts. 2446, 2655, and 2656; People’s National Bank v. Voorhies, 134 La. 303, 64 So. 120.”

Krauss Co. v. Godchaux, 13 La.App. 607, 128 So. 673, at 674 (Orl. 1930).

Our reading of the evidence offered at trial persuades us that the evidence of indebtedness is lacking. The only evidence in support of appellant’s claim is her own testimony that the decedent was indebted to her as well as documentary evidence of cancelled checks and notes, which allegedly evidence appellant’s payment of decedent’s debts. These documents do not, however, tend to corroborate appellant’s testimony because they are not self-evident. They show only that certain bills or other debts were paid. They do not show these debts to have been contracted by decedent prior to his fourth marriage and later paid by appellant with her separate funds. Absent appellant’s testimony to the contrary, these bills or debts may just as well have been community debts paid with community funds.

Our courts regard a party’s self-serving testimony as extremely weak when attempting to establish a claim against a succession:

“A litigant’s testimony in her own favor to establish a large claim against a succession is received with great caution. It is, in itself, of the weakest character, and, unless strongly corroborated, cannot serve as a basis for judgment. Cutler v. Succession of Collins, 37 La.Ann. 95 (1885); Caldwell v. Turner, 129 La. 19, 55 So. 695 (1911); Succession of McBurney, 162 La. 758, 111 So. 86 (1927); Willis v. Gordon, 143 So.2d 798 (La.App. 1 Cir. 1962); Succession of Oulliber v. Oulliber, 204 So.2d 625 (La.App.4 Cir. 1967). Under LSA-C.C. art. 2282, her credibility is diminished because she is a party.”

Succession of Broussard, 306 So.2d 399 (La. App.3rd Cir. 1975).

The trial court obviously did not rely upon appellant’s testimony and also felt the documentary evidence did not adequately corroborate appellant’s testimony. Our review of the record discloses no error committed by our trial brother.

Having agreed with the trial court that an indebtedness from decedent to appellant in an amount commensurate with the value of the certificates of deposit has not been satisfactorily proven, we find it unnecessary to consider whether decedent delivered the property to his wife.

4. RESTITUTION OF SEPARATE AND PARAPHERNAL PROPERTY

Appellant testified that her separate funds were commingled with community funds. Our jurisprudence is established that:

“. . . when large sums of community funds are commingled indiscriminately with separate funds, to the extent that the separate funds are no longer capable of identification, all of the commingled funds become community property. Succession of Land, 212 La. 103, 31 So.2d 609; Magnolia Petroleum Co. v. Crigler, 12 So.2d 511 (La.App.); Bruyninckx v. Woodward, 217 La. 736, 47 So.2d 478; Slater v. Culpepper, 233 La. 1071, 99 So.2d 348.”

Paxton v. Bramlette, 228 So.2d 161 (La. App.3rd Cir. 1969).

A wife is entitled to restitution of her separate property at the time of dissolution of the community if the funds delivered by the wife to the husband and commingled with community funds can be traced to her separate funds or if the benefit to the community is established with reasonable certainty. Guilott v. Guilott, 326 So.2d 551 (La.App.3rd Cir. 1976). In the absence of compelling proof that a strong and substantial economic advantage inured to the benefit of the community, the wife’s restitution claim will be denied. Succession of Russo, 246 So.2d 26 (La.App.4th Cir. 1971), writs refused, 258 La. 760, 247 So.2d 861.

Documentary evidence establishes that appellant did deposit separate funds in the community savings account. However, many thousands of dollars were deposited in and withdrawn from the joint checking account shared by decedent and appellant during their 3V2 year marriage. Many of these deposits were made by decedent. Appellant failed to satisfy the trial court and this Court that her separate funds were used for the benefit of the community and not for her own personal use. Although appellant testified that she gave decedent large sums of her separate funds to pay off his debts, other evidence shows that decedent, a rice farmer and racehorse owner, was capable of paying off his own debts. Appellant may have written the checks discharging some of the debts, but those funds might well have been provided by decedent. Using the same rationale as that found in Paxton, we affirm the trial court’s denial of appellant’s claim to restitution.

5. EXPENSES OF LAST ILLNESS

The trial court found the expenses of decedent’s last illness to be community expenses for which no reimbursement is due. Although appellant testified that she paid the expenses of the last illness, she did not establish that these expenses were paid from an account containing only her separate funds. Her testimony was not refuted, but the trial court is not bound to accept as fact all or any of her testimony. Here, the court evidently did not. In this finding, we detect no manifest error.

The trial court found the funeral expenses to be a debt of decedent’s estate. Appellant’s brief lists as error the trial court holding that appellant is not entitled to restitution of funeral expenses. However, appellant offers no proof whatsoever that she has paid any funeral expenses. In fact, the record discloses a claim against the estate filed by the funeral home for the entire cost of the funeral indicating that the funeral expenses had not been paid by anyone.

DECREE

For the above and foregoing reasons, the judgment of the District Court is reversed insofar as it approves of and perpetuates the temporary restraining order and extensions thereof issued against Marie Leone Woods Vice, appellant, which forbade her from expending $100,000.00 in certificates of deposit on deposit in Guaranty Federal Savings & Loan in Lake Charles. As a result of this Court’s dissolution of the wrongfully issued temporary restraining order, and extensions thereof, appellant is hereby awarded, as damages pursuant to La. C.C.P. Article 3608, $500.00 in attorney’s fees. The judgment of the District Court is affirmed in all other respects.

Costs are assessed four-fifths to appellant, Marie Leone Woods Vice, and one-fifth to appellee, Marie Brandon Vice, as executrix of the decedent’s estate.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . The separate or community nature of the movables is not at issue on this appeal.

      . Appellant, against whom the temporary restraining order was directed, consented, on or before October 12 (as reflected in a judgment signed by Judge Babineaux on October 20), to the extension of the order “until such time as this Court shall hear the Rule for Preliminary Injunction, or until the further order of this Court, with full reservation of ail rights under motion to dissolve filed by Leone Woods Vice." (Emphasis added). A similar order submitted by attorney for appellees and signed on the same day (October 20) by a different judge did not include a reservation of appellant’s rights. However, nothing indicates that this extension order was ever acquiesced in by appellant. Therefore, appellant is not estopped from assailing the correctness of the restraining order since she agreed to the open-ended extension only after reserving her rights to dissolve the order.

      .Appellees do not contend that the temporary restraining order was issued pursuant to another law which specifically provides for its issuance under this set of circumstances, and we know of no such law.

      . Sequestration of co-owned property by one of the co-owners has been approved in Interstate Land Co. v. Doyle, 120 La. 46, 44 So. 918 (1907), and in Le Blanc v. Guy, 14 La.App. 162, 128 So. 715 (2nd Cir. 1930).

      . Marie Brandon admits that decedent obtained a judicial divorce from her in 1953 but claimed, in a divorce proceeding begun by her against decedent in 1973, that this divorce was invalid. Decedent answered her divorce suit by alleging the 1953 divorce was valid.

      . Before that Article was repealed by Act 709 of the 1979 Regular Legislative Session.

        . By showing, for instance, that appellant was unaware of the agreement prior to the judicial confession. We note, however, that the appellant has not argued that the judicial confession was made through an error in fact.

      . Appellant did prove that decedent issued to her prior to their marriage a $25,000.00 promissory note payable on demand. The value of this debt is hardly commensurate with the value of the property allegedly given in payment to the appellant (the $100,000.00 in CDs).

      . The evidence on this point favors the trial court’s holding also. The decedent may have intended to effect a dation en paiement to appellant, but he was unable to effect a name change on the certificates prior to his death. We decline to say whether such a name change, if it would have been accomplished, would have been a sufficient delivery within the contemplation of Article 2655 and cases thereunder.


author: LABORDE, Judge.

text:
    Jean Baptiste LAFLEUR, Jr., Individually, and as Administrator of the Estate of his minor son, Bryan Lafleur, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Defendant-Appellee.
    No. 7674.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 1980.
    Rehearing Denied July 16, 1980.

      Fruge and Vidrine, Chris B. Fruge, Ville Platte, for plaintiff-appellant.
    Cooper and Thompson, William H. Cooper, Jr., Baton Rouge, for appellant.
    Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and LABORDE, JJ.
   LABORDE, Judge.

Plaintiff-appellant has perfected this appeal from an adverse judgment in the trial court.

We adopt the well written statement of fact and findings of law outlined by the distinguished trial judge in his reasons for judgment:

Plaintiff filed this suit on December 28, 1977, individually and as administrator of the estate of his minor son, against State Farm Mutual Automobile Ins. Co. to recover damages for an injury which his son suffered as a result of the alleged negligence of one Franklin Vidrine owner and operator of a school bus employed by the Evangeline Parish School Board. Defendant State Farm Mutual Automobile Insurance Company (actually State Farm Fire and Casualty Company) hereinafter referred to as “State Farm”, is the insurance carrier of Franklin Vidrine through the Evangeline Parish School Board.
Plaintiff thereafter on April 20, 1978, by First Supplemental and Amending Petition, made (1) Superior Coaches, Inc., (2) Sheller Globe Corporation, and (3) Superior Coach Sales, Inc., defendants alleging that these defendants were negligent in failing to properly design and construct the body of the school bus, and further alleging that the injury suffered by Bryan Lafleur was cause wholly or in part by said negligence.
Superior Coach Sales, Inc. filed on August 28, 1978, a Motion for summary judgment which the court granted on October 6, 1978.
Answer by defendants Sheller Globe Corporation and Superior Coach, Inc. was filed on August 23, 1978. They also filed an amending answer on March 20, 1979, alleging particularly the negligence and contributory negligence of Bryan Lafl-eur.
State Farm answered plaintiff’s first supplemental and amending Petition in Tort and made a Third Party Demand against Sheller Globe Corporation and Superior Coach, Inc. The latter Third Party Defendants filed their answer thereto and made a Third Party demand against State Farm. State Farm filed its answer to this demand.
The accident and resultant injuries occurred on May 13, 1977, when Bryan Lafleur sought to exit from a school bus in which he was a passenger and his left wrist became caught in the school bus door “V”, that is, between that portion of the bus door which opens outwards and the pillar to which it is attached. This door has a so-called “piano hinge” which is a continuous hinge from the floor to a point 52 inches above the floor. The remainder of the door from the 52 inches to the top of the door frame has no hinge but is slightly angled for about 2% feet so that when it is open there is a space called a “V” space. It is in this “V” that Bryan Lafleur’s left wrist came somehow to rest and causing serious injury thereto.
There are three issues presented to the court for determination:
1. Was Franklin Vidrine negligent, and was his negligence the proximate cause of the accident as alleged in Article 12 of plaintiff’s petition?
2. Were Superior Coaches, Inc., and Sheller Globe Corporation negligent by failing to properly design and construct the body of the school bus so as to make it safe during its normal use and operation?
3. Was Bryan Lafleur contributorily negligent?
At the time of the accident, Bryan Lafleur, was a little over twelve years of age, and was disembarking from the school bus owned and operated by Franklin Vidrine. As the bus approached the place where Bryan Lafleur was to get off the bus, he arose from the place where he had been sitting, which was on the right hand side of the bus about midway down the aisle from the front of the bus, and made his way to the exit. These are two steps which lead from the floor of the bus to the exit which is composed of a door one side of which opens inwards and the other which opens outwards. There is a bar at the head of the steps which goes from the floor to the ceiling of the bus, and whose purpose it is to provide support for passengers about to disembark from the bus. From this bar another bar leads off at right angle thereto about 3 feet from the floor, and which is also used by passengers to support themselves when descending the steps to get off the bus.
From the testimony it appears that Bryan Lafleur grabbed hold of the upright bar and swung his body down to the first step, missing the second or intermediate step altogether, and while so doing his left wrist got caught in the “V” of the open door and he sustained rather serious injuries to the left wrist and left hand.
He was taken to the Ville Platte General Hospital where he was treated by Dr. Charles J. Aswell, a physician and surgeon of Ville Platte, who cleaned and sutured the wound. Healing proceeded in a normal manner but the hand took on a claw-like appearance. About 4 months later Bryan had to be hospitalized and operated on at the Lafayette General Hospital by Dr. Stephen I. Goldware, a neuro-surgeon, to correct this condition. He made an uneventful recovery and his hand is fortunately normal for all practical purposes, although he will have a slight permanent residual disability of the hand. He has about 70% of the muscle strength in the hand, and the range of motion is normal, and has good apposition, good movement of the thumb. Taken all in all his left hand is just about normal although Dr. Goldware says the boy probably should not aspire to be a neurosurgeon, and would have difficulty being a watch maker. In short, he would have difficulty in performing fine or delicate motions or movements. Fortunately he is right handed, and it was the left hand which was injured. The boy did suffer much pain and discomfort for a long period of time.
Lisa McDaniel who was sitting next to Bryan testified, but she did not see the accident. She did say however that the bus was moving at the time she saw Bryan near the door of the bus, but did not see him descend from the bus.
Franklin Vidrine, the operator of the bus testified categorically that:
1. The bus was stopped when Bryan exited the bus,
2. That the door of the bus was open, and
3. There had been no change in the door since he became the owner of the bus several years before the accident.
Two experts testified, Mr. Paul M. Hale for the plaintiff and Mr. John Ho-nert for defendants. There is great conflict in their testimony.
Without going into an exhaustive review of the evidence the court finds that Franklin Vidrine was not negligent in the operation of his bus at the time of the accident. The court further finds that the school bus he owned and operated was free of defect in design or construction, and consequently he was free of negligence in operating the bus.
The court also finds that defendants Sheller Globe Corporation and Superior Coach, Inc. were not guilty of any negligence in the design or construction of the bus owned and operated by Franklin Vid-rine.
It is the law of this state that public carriers of passengers, such as school buses, are required to exercise the highest degree of care, and when passengers are injured as a result of an accident the burden is on the carrier to show that it was free of negligence. However, a public carrier is not the insurer of their safety-
The court has carefully reviewed the pleadings, testimony, deposition of Dr. Goldware, the briefs, and the applicable law and jurisprudence, and finds that plaintiff has failed to prove his case against any of the three defendants herein by a preponderance of the evidence as required by law, and further finds that Bryan Lafleur was contributorily negligent in exiting from the bus, and that this negligence was the proximate cause of the accident and resultant injuries, and, therefore, the demands of the plaintiff against the three defendants herein will be dismissed at his costs.
The third party demand by State Farm against defendants Sheller Globe Corporation and Superior Coach will be dismissed, as will their third party demand against State Farm.

As errors of the trial court, plaintiff-appellant assigns the following:

1. THE TRIAL COURT MANIFESTLY ERRED IN RULING THAT STATE FARM WAS NOT LIABLE TO PLAINTIFF FOR THE ACCIDENT SUSTAINED, AND THE INJURIES SUFFERED, BY BRYAN LAFL-EUR;
2. THE TRIAL COURT MANIFESTLY ERRED IN RULING THAT SHELLER AND SUPERIOR WERE NOT LIABLE TO PLAINTIFF FOR THE ACCIDENT SUSTAINED, AND THE INJURIES SUFFERED, BY BRYAN LAFLEUR:
3. THE TRIAL COURT MANIFESTLY ERRED IN FINDING THAT BRYAN LAFLEUR WAS CONTRIBUTORY NEGLIGENT.

The standard of review in a factual dispute such as the one before us was explained in Canter v. Koehring, 283 So.2d 716 (La.1973):

“When there is evidence before the trier of facts which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of facts; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

In Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), the Supreme Court defined manifestly erroneous as meaning clearly wrong.

Our careful review of the record does not reveal that the trial judge’s factual determination was manifestly erroneous.

Plaintiff-appellant argues that the duty owed to him is so strict that once a passenger shows injury and his failure to safely reach his destination, a prima facie case of liability is established as against the carrier, and the carrier then bears the burden of exonerating itself by convincingly proving that he was free from any negligence, or that the bus was free from any defects, which caused or contributed to the accident from which plaintiff suffers or suffered. LSA-C.C. Article 2316 and numerous cases are cited by plaintiff-appellant in support of his argument.

While we agree that the cases cited fully support that principle of law, it is clear that the trial court correctly concluded that the defendants had convincingly overcome the prima facie case of negligence and had exonerated themselves from negligence.

For the above and foregoing reasons, the judgment of the trial judge is affirmed. All costs of this appeal are taxed to the plaintiff-appellant.

AFFIRMED.


author: CHEHARDY, Judge.

text:
    Rhonda Reinhold, wife of/and Clyde A. STIPE v. JOSEPH A. NEYREY GENERAL CONTRACTORS, INC.
    No. 11135.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1980.
    Rehearing Denied July 21, 1980.
    Dan R. Dorsey, River Ridge, for plaintiffs-appellants.
    Hammett, Leake, Hammett, Hulse & Nelson, Herbert B. Bowers, III, John A. Stewart, Jr., New Orleans, for defendant-appellee.
    Before GULOTTA, GARRISON and CHEHARDY, JJ.
   CHEHARDY, Judge.

On June 30, 1961, plaintiffs-appellants, Rhonda Reinhold and Clyde A. Stipe, husband and wife, entered into a building contract with defendant-appellee, Joseph A. Neyrey General Contractors, Inc., for construction of a residence at 3717 Neyrey Drive in Metairie, Louisiana. The Stipes occupied the residence in October of 1961.

Plaintiffs allege that in January of 1977 they became aware the house was sinking in the rear. They further claim a contractor surveyed the house and determined the pilings beneath the house were inadequate and that some of the pilings called for in construction blueprints were actually missing. Plaintiffs filed suit against the defendant on January 19,1978, claiming damages of $50,000 for expenses of leveling, devaluation of the house, and mental pain and suffering.

The trial court maintained the defendant’s exception of no cause of action and dismissed the plaintiffs’ suit at their cost, concluding that plaintiffs’ cause of action was pre-empted under LSA-R.S. 9:2772, which came into effect in 1964, and stating that the statute should be given retroactive effect since such an application would not divest the plaintiffs of a vested property right nor violate the due process clauses of the federal and state constitutions. Plaintiffs have appealed to this court.

LSA-R.S. 9:2772 states:

“A. No action whether ex contractu, ex delicto or otherwise, to recover on a contract or to recover damages shall be brought against any person performing or furnishing the design, planning, supervision, inspection or observation of construction or the construction of an improvement to immovable property:
(1) More than ten years after the date of registry in the mortgage office of acceptance of the work by owner; or
(2) If no such acceptance is recorded within six months from the date the owner has occupied or taken possession of the improvement, in whole or in part, more than ten years after the improvement has been thus occupied by the owner; or
(3)If the person furnishing the design and planning does not perform any inspection of the work, more than ten years after he has completed the design and planning with regard to actions against that person.
“B. The causes which are pre-empted within the time described above include any action:
(1) For any deficiency in the design, planning, inspection, supervision or observation of construction or in the construction of an improvement to immovable property;
(2) For damage to property, movable or immovable, arising out of any such deficiency;
(3) For injury to the person or for wrongful death arising out of any such deficiency; and
(4) Any action brought against a person for the action or failure to act of his employees.
“This pre-emptive period shall extend to every demand whether brought by direct action or for contribution or indemnity or by third party practice, and whether brought by the owner or by any other person.
“C. If such an injury to the property or to the person or if such a wrongful death occurs during the ninth year after the date set forth in Sub-section A, an action to recover the damages thereby suffered may be brought within one year after the date of the injury, but in no event more than eleven years after the date set forth in Sub-section A (even if the wrongful death results thereafter).
“D. Actions for the causes enumerated in Sub-section B of this Section, against the persons enumerated in Subsection A of this Section, shall prescribe by the applicable prescriptive periods established by law for such actions.
“E. The pre-emptive period provided by this Section shall not be asserted by way of defense by a person in possession or control, as owner, lessor, tenant, or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury, damage, or death sued upon with regard to any cause of action arising out of the alleged delict, quasi delict, or obligation of any such person arising out of his possession or control of property.
“F. Nothing in this Section shall be construed as modifying the liability or responsibility otherwise imposed by law on the owner of an immovable or the possessor, lessor or lessee of an immovable, by reason of the design, planning, supervision, inspection or observation of construction, or construction of improvements to immovable property.
“G. Causes of action which exist prior to July 29, 1964 shall be pre-empted one year from said date or by the applicable pre-emptive period established by this Section, whichever is later.”

In the case of Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d 1331 (La.1978), the Supreme Court, in deciding that a statute which did not adopt a standard tied to locality for medical specialists should be given a retrospective effect and thus should be applied to facts arising prior to its promulgation, said at pages 1338-1339:

“The general principle of non-retroac-tivity of laws is stated in Article 8 of the Civil Code, which provides:
‘A law can prescribe only for the future; it can have no retrospective operation, nor can it impair the obligation of contracts.’
According to civilian theory, however, the principle of non-retroactivity of existing legislation admits three exceptions: laws that suppress or lessen penalties, laws that are merely interpretive of existing legislation, and those that the legislature has expressly or impliedly declared to be retroactive. 1 M. Planiol, Civil Law Treatise, Nos. 249-252 (La.St.L.Inst. Transl.1959); A. Yiannopoulos, Civil Law System, 68 (1977).
sfc j}c sfc s(c
“According to this Court’s consistent interpretation, Article 8 of the Civil Code contemplates 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. General Motors Acceptance Corporation v. Anzelmo, 222 La. 1019, 1028, 64 So.2d 417, 420 (1953); Stallings v. Stallings, 177 La. 488, 148 So. 687 (1933); State v. Brossette, 163 La. 1035, 113 So. 366 (1927).
“Applying these principles to La.R.S. 9:2794, we conclude that the statute should be given retrospective effect. To the extent that the statute establishes a burden of proof in malpractice actions, it clearly should be characterized as procedural and therefore applied to pre-exist-ing facts and relations. * * * ”

In further discussion of this issue, in Lott v. Haley, 370 So.2d 521, 523-524 (La.1979), the Supreme Court reiterated the general rule set forth in Ardoin, supra; however, the Court also said:

“ * * * This jurisprudential rule is subject to the exception that procedural and remedial laws are not accorded retroactive effect where such retroactivity 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; De Armas v. De Armas, 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 pre-existing 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).”

In Lott, supra, the plaintiff’s cause of action arose in January 1972 when he was examined by Dr. Haley. He did not discover his condition, however, until April 1976 and did not file suit until March 1977. The applicable malpractice statute, LSA-R.S. 9:5628, stating that actions against physicians must be filed within a period of three years from the date of the neglect was enacted in the summer of 1975. Lott was divested of his cause of action before the statute came into effect; therefore, the Court concluded it could not apply the statute retroactively because to do so would be in violation of the due process guarantees of the federal and state constitutions.

However, we are not confronted with the situation of the Lott case and agree with the trial judge, who explained in reasons for judgment:

“Section G of the statute is expressly designed to correct this constitutional problem. Under that section, causes of action which existed prior to the effective date of the statute would not be preempted until one year from the effective date or until the applicable statutory period, whichever is later. Thus the situation which occurred in Lott, namely, the divesting of the cause of action before the statute even came into effect, cannot happen under 9:2772. Further, due to the sixteen-year time span between the contract date and the date of defect discovery, plaintiffs’ cause of action here would be preempted even if the time period for computing the preemption had not commenced until the effective date of the statute. In such a situation, no violation of due process is presented by the retroactive applicable of the statute. See also Orleans Parish School Board v. Pittman Construction Company, 372 So.2d 717 (La.App. 4th Circuit, 1979).”

We conclude, therefore, that plaintiffs had a reasonable time under the terms of LSA-R.S. 9:2772, to assert their rights, and there has been, therefore, no violation of their constitutional rights.

The plaintiffs also contend that when the foundation of their house was staked out and the positions of the pilings were marked on the ground, several markings were negligently omitted. They contend, therefore, applicability of the 1979 amendment to LSA-R.S. 9:2772, which states:

“A. No action, whether ex contractu, ex delicto or otherwise, to recover on a contract or to recover damages shall be brought against any person performing or furnishing the surveying, marking, and related services preparatory to construction or the design, planning, supervision, inspection, or observation of construction or the construction of an improvement to immovable property:
(3) If the person furnishing the surveying, marking, or related services or the design and planning does not perform any inspection of the work, more than ten years after he has completed the surveying, marking, or related services or the design and planning with regard to actions against that person.
“B. The causes which are preempted within the time described above include any action:
(1) For any deficiency in the surveying, marking, and related services or in the design, planning, inspection, supervision or observation of construction or in the construction of an improvement to immovable property;
[See main volume for text of B(2) to (4); CtoF]
“G. Causes of action arising from the surveying, marking, and related services preparatory to construction which exist prior to the effective date of the 1979 Regular Session amendment to this Section shall be preempted one year from said date or by the applicable preemptive period established by this Section, whichever is later.”

Plaintiffs conclude, therefore, that since their suit was filed on January 19, 1978, it had not prescribed nor could it have prescribed until September 7, 1980. It is not necessary for this court to determine whether surveying or marking encompasses the staking of pile locations since a review of Mr. Stipes’ sworn testimony in deposition reveals that when he was called during the excavation of the house to observe the missing pilings, he saw that “There was a stick there in the ground showing where the pile should be, right exactly where the pile should be but there was no pile there.”

Therefore, even assuming that the plaintiffs have a cause of action that was not pre-empted due to the applicability of LSA-R.S. 9:2772 as amended by Acts 1979, No. 329, Section 1, Mr. Stipes has already testified under oath that the negligence or error involved was not the result of misplaced or missing markers.

Accordingly, the judgment of the trial court maintaining the defendant’s exception of no cause of action and dismissing the plaintiffs’ suit at their cost is affirmed in all respects.

AFFIRMED.